Asstt. Director Employees State ... vs Proprietor M/S. Divekar School ...
2017 Latest Caselaw 4712 Bom

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                                                                     947 First Appeal 76 of 2001.odt


              THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       BENCH AT AURANGABAD.


                            FIRST APPEAL NO. 76 OF 2001

The Assistant Director,
Employees State Insurance 
Corporation, Panchdeep Bhavan,
Ganesh Peth, Nagpur.                                       ... APPELLANT
                                                          (Orig. Respondent)

                  V E R S U S

The Proprietor,
M/s. Divekar School Bus Services,
Padampura, Aurangabad.                                    ... RESPONDENT
                                                         (Orig. Applicant before 
                                                         ESIC, Court, Aurangabad)

                                    ...
Mr. Vilas D. Sonwane, Advocate for the Appellant.
Mr. B. R. Kaware, Advocate for the Respondent.
                                    ...


                                             CORAM  : V. K. JADHAV, J.

                                             DATE     :  19th July, 2017.


ORAL JUDGMENT:  
 

.                 Being   aggrieved   by   the   judgment   and   order   dated   26th

October, 1999 passed by the Employees Insurance Court,

Aurangabad in Application (ESI) No.9 of 1998, the original

Respondent / Assistant Director, Employees State Insurance

Corporation has preferred this appeal.

947 First Appeal 76 of 2001.odt

2 Brief facts giving rise to the present appeal are as follows:

a) M/s. Divekar School Bus Services is a proprietorship

concern, registered under the Motor Transport

Workers Act, 1961 as well as under Bombay Shops

and Establishment Act, having its registered office at

Bhagiratnagar, Station Road (Padampura),

Aurangabad. According to the Applicant, the Applicant

is rendering its transport services to the school

children who are below the age of 15 years within the

territory of Municipal Corporation, Aurangabad. The

Applicant had started its transport services in the year

1991 employing one driver and one school bus. Even

the Road Transport Authority has given the special

concession in tax purpose. In all six persons are

working including the Manager / supervisor in the said

Establishment concern. The motive of the

Establishment is not profit making but to serve the

people. The Applicant is having another business

namely Divekar Auto Works, at another place,

947 First Appeal 76 of 2001.odt

Opposite Building and Construction Department,

Padampura, Aurangabad. The said Divekar Auto

Works is covered under the Employees State

Insurance Corporation registration code No.25-0984-

90 and the said Establishment making regular

compliance under the Employees State Insurance Act,

1948 (hereinafter referred to as "the Act of 1948").

However, the ESI Corporation called upon M/s.

Divekar School Bus services through its letters dated

9th November, 1998 and 4th August, 1998 respectively

directing to make the compliance in respect of Divekar

School Bus services from the date 1st October, 1996

without giving any justification. It is further the case of

the Applicant that the Establishment as well as the

Applicant had replied the letter narrating all the facts

that there is no interconnection or physical proximity

between the two units and both the units are

independent and separate from each other and as

such, the Applicant is not liable to make any

compliance or any contribution as contemplated under

947 First Appeal 76 of 2001.odt

the Act of 1948. The Respondent / Assistant Director,

Employees State Insurance Corporation has come to a

conclusion that the Applicant Establishment is clubbed

with the Divekar Auto Works.

b) The Appellant / Corporation has strongly resisted the

application by filing the reply. It has been contended

that M/s. Divekar Auto Works is covered under the

provisions of the Act of 1948 and there are three units

namely (1) M/s. Divekar Auto Works, (2) M/s. Divekar

School Bus Services and (3) M/s. D. A. Agencies and

all the three units situated in one factory shed/

premises of the Applicant's and therefore, they are

covered under the Act of 1948. It has also been

contended that the Applicant was making the

compliance under the provisions of the Act of 1948 in

respect of all the three units. However, the Applicant

suddenly discontinued the E.S.I. compliance of the

employees in respect of Divekar School Bus services

from 10/96 and onwards. The Respondent /

Corporation has also raised some other grounds. Both

947 First Appeal 76 of 2001.odt

the parties have not adduced any oral evidence but

placed their reliance on the documentary evidence.

The learned Judge of the E.S.I. Court vide impugned

judgment and order allowed the said application and

held that M/s. Divekar School Bus Services is an

independent and separate from Divekar Auto Woks

and as such, the provisions of Act of 1948 are not

applicable to the said Unit and further held that the

order of Corporation dated 4th November, 1998 is

illegal and set aside accordingly. Being aggrieved by

the same, the original Respondent / Corporation has

preferred this appeal.

3 I have heard the learned counsel for parties at length.

However, this Court has allowed Civil Application No.10907 of 2016 in

terms of prayer clause (A) and accordingly permitted the Applicant /

Appellant herein for production of additional evidence i.e. inspection

report of inspection conducted by E.S.I. Inspector and other record

and correspondence, as per the list, in terms of the provisions of

Order XLI, Rule 27 (1) (b) of the Code of Civil Procedure. It appears

947 First Appeal 76 of 2001.odt

that the xerox copies of those documents are placed on record. It is

thus, necessary for the Appellant / Corporation to produce the original

documents before the Court below and to prove those documents in

accordance with law. In view of the above, the matter needs to be

remanded to the Employees Insurance Court with certain directions.

Hence, the following order:

O R D E R

I. The appeal is hereby partly allowed. No costs.

II. The judgment and order dated 26th October, 1999

passed by the Employees Insurance Court,

Aurangabad in Application (ESI) No.9 of 1998, is

hereby quashed and set aside.

III. The matter is remanded to the Employees

Insurance Court, Aurangabad with the following

directions:

a) Restore Application (ESI) No.9 of 1998 to its original number and the Employees Insurance Court, Aurangabad shall decide the said application afresh.

b) The Respondent / Corporation is at liberty to

947 First Appeal 76 of 2001.odt

produce the original documents before the Court below as per the list of documents submitted alongwith Civil Application No.10907 of 2016 and lead evidence to prove the same if required.

c) The original Applicant / Proprietor, M/s.

Divekar School Bus Services is also at liberty to adduce oral and documentary evidence in rebuttal.

IV. The parties shall appear before the Employees

Insurance Court, Aurangabad on 16th August, 2017

and the Employees Insurance Court, Aurangabad

shall decide the said application within six months

from the date of appearance of the parties before it.

V. The appeal is accordingly disposed of.

[ V. K. JADHAV, J. ] ndm