Kaprecon Sleeper Works Pvt.Ltd vs The Employees State Insurance ...
2017 Latest Caselaw 5048 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR


                   Writ Petition No.4893 of 2006
                                And
                   Writ Petition No.115 of 2007


                   Writ Petition No.4893 of 2006


  1. Vijay Rambharan Patil,
     Aged about 42 years.

  2. Kishor Bhaurao Hande,
     Aged about 45 years.

  3. Shankar Laxman Sahare,
     Aged about 39 years.

  4. Shriram Narayanrao Ade,
     Aged about 43 years.

  5. Harichand Govind Parse,
     Aged about 43 years.

  Nos.1 to 5 Elected Representatives
  of employees : C/o Kaprecon Sleeper
  Works Private Limited, Railway Yard,
  Butibori, Taluqa and District Nagpur.            ... Petitioners


       Versus


  1. The Employees State Insurance
     Corporation,




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       through Joint Director,
       Sub-Regional Office,
       Panchadeep Bhavan,
       Ganeshpeth,
       Nagpour-440 018.

  2. Kaprecon Sleeper Works Pvt. Ltd.,
     and having factory at Railway Yard,
     Butibori, District Nagpour,
     And having its registered office
     at 5-A, Poonam Plaza, 
     Palm Road, Civil Lines,
     Nagpur-440 001,
     through its duly constituted
     attorney Ramniwas Kisanlal Pareek.

  3. Government of India,
     through Secretary,
     Ministry of Labour & Employment,
     New Delhi.                                    ... Respondents



  Shri H.V. Thakur, Advocate for Petitioners.
  Smt. Mugdha R. Chandurkar, Advocate for Respondent No.1.
  Smt. B.P. Maldhure, Advocate for Respondent No.2.


                                       And

                           Writ Petition No.115 of 2007


  Kaprecon Sleeper Works Pvt. Ltd.,
  a Company registered under the
  provisions of the Indian Companies
  Act, 1956, having its Regd. Office at
  5-A, Poonam Plaza, Palm Road,




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  Civil Lines, Nagpur-440 001, and
  having its Factory at Railway Yard,
  Butibori, Tahsil and District Nagpur,
  through its Constituted Attorney
  Shri Ramniwas s/o Kisanlal Pareek.        ...Petitioner

       Versus

  1. The Employees' State Insurance
     Corporation,
     through its Joint Director,
     Sub Regional Office,
     Panchdeep Bhawan,
     Ganeshpeth,
     Nagpur-440 018.

  2. Vijay s/o Rambharan Pali,
     Aged about 42 years.

  3. Kishor s/o Bhaurao Hande,
     Aged about 45 years.

  4. Shankar s/o Laxman Sahare,
     Aged about 39 years.

  5. Shriram s/o Narayanrao Ade,
     Aged about 43 years.

  6. Harichand s/o Govind Parse,
     Aged about 43 years.

  Respondents No.2 to 6 are Elected
  Representatives of the Employees;
  C/o Kaprecon Sleeper Works Pvt. Ltd.;
  Railway Yard, Butibori,
  Tahsil and District Nagpur.

  7. Government of India,




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        through Secretary,
        Ministry of Labour & Employment,
        New Delhi.                                      ... Respondents


  Shri Rohit Joshi, Advocate for Petitioner.
  Smt. B.P. Maldhure, Advocate for Respondent No.1.
  Shri H.V. Thakur, Advocate for Respondent Nos.2 to 6.


                Coram : R.K. Deshpande & Mrs. Swapna Joshi, JJ.

th Dated : 26 July, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. Kaprecon Sleeper Works Pvt. Ltd., a Company, has

preferred Writ Petition No.115 of 2007 challenging the

show cause notice dated 8-6-2006 issued by the Employees' State

Insurance Corporation calling upon it to pay the contribution

under the Employees' State Insurance Act, 1948 (for short, "the

said Act") for the period from 1-10-2004 to 30-9-2005.

2. Writ Petition No.4893 of 2006 has been filed by the

employees of Kaprecon Sleeper Works Pvt. Ltd. challenging the

notification dated 28-9-2004 issued by the Government of India,

Ministry of Labour and Employment applying the provisions of

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the said Act to the revenue village of Butibori with effect from

1-10-2004, and also the notice of demand issued on 8-6-2006

calling upon the employer to deposit the contribution of

employer and employees both, as required by the said Act, for

the period from 1-10-2004 to 30-9-2005.

3. The petitioner-Kaprecon Sleeper Works Pvt. Ltd. is

engaged in the manufacture of concrete sleepers for the

Railways, and its factory is established in the area of Butibori, in

the precincts of Railways. By issuing the notification

dated 28-9-2004 by the Ministry of Labour and Employment,

Government of India, the provisions of the said Act were made

applicable to the area of Butibori for the first time with effect

from 1-10-2004. Accordingly, in terms of the provisions of

Section 2A of the said Act read with Regulation 10B of the

Regulations, framed under the said Act, the employer was

required to file a return in respect of the contribution of the

employer as well as the employees, within a period of fifteen

days. The applicability of the said Act was opposed by the

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petitioner-Company as well as the employees, and ultimately the

inspection was conducted on 27-10-2005 and the order for

coverage of the industry was passed on 29-11-2005.

Accordingly, the notices in question were issued calling upon the

employer to pay the contribution under the said Act for the

period from 1-10-2004 to 30-9-2005. Undisputedly, the

petitioner-Company has complied with the provisions of the said

Act from the month of October, 2005. Hence, we are not

concerned with the period from October, 2005.

4. The applicability of the said Act was opposed on the

ground that the better medical facilities were provided by the

employer to the employees. The facilities of medical insurance

and the accident policy were provided by the employer and the

infrastructure under the provisions of the said Act was made

available immediately upon issuance of the notification in

question. It is the claim of the petitioners in both these petitions

that none of the employees have availed the benefits and

facilities of the Scheme under the provisions of the said Act

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during the period from 1-10-2004 to 30-9-2005.

5. Shri Thakur, the learned counsel appearing for the

employees, has relied upon the decisions of the Apex Court in the

cases of - (i) Employees State Insurance Corporation v. Hyderabad

Race Club, reported in (2004) 6 SCC 191; (ii) Employees' State

Insurance Corpn. and others v. Jardine Henderson Staff Association

and others, reported in (2006) 6 SCC 581; and (iii) Employees'

State Insurance Corpn. v. Distilleries & Chemical Mazdoor Union

and others, reported in (2006) 6 SCC 604. It is urged that the

recovery of contribution for the period from 1-10-2004 to

30-9-2005 should not be insisted upon and the equitable relief is

claimed on the basis of the maxim "Lex non cogit ad impossibilia".

It is urged that the persons in the employment during this period

have left the job or have retired or have expired and, therefore, it

is not possible for the petitioner-Company to obtain the

contribution from them for deposit of the amount.

6. Both these petitions were admitted on 9-6-2008 and the

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interim relief not to take coercive action was continued on the

condition that the petitioners shall file an undertaking in this

Court that in the event the petition fails, the petitioners will pay

the specified amount along with interest not less than 12% or as

the Court may direct at the time of disposing of the petition.

Accordingly, the undertaking was furnished before this Court.

7. Shri Thakur and Shri Joshi, the learned counsels

appearing for the petitioners in both these petitions, could not

point out to us any provision under the said Act exempting the

establishment of the petitioner from complying with the

provisions therein on the ground that the employer has provided

better medical facilities to the employees. The notification dated

28-9-2004 has made the applicability of the said Act to the

establishment of the petitioner with effect from 1-10-2004. It is

not necessary under the provisions of the said Act to wait for any

show cause notice being issued by determining that the

provisions of the said Act have become applicable to any

establishment. The notification impugned is very clear and it

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applies to Village Butibori, where the factory of the petitioner is

located. We do not find any ground to set aside the said

notification or to postpone the operation of notification to any

future date. The petitioner-establishment was under a statutory

obligation in terms of Section 2A of the said Act read with

Regulation 10B of the Regulations, framed thereunder, to submit

the return and to pay the contribution of the employer as well as

the employees within a period of fifteen days. It is, therefore, not

possible for us either to quash and set aside such notification or

to prevent recovery of the contribution for the period from

1-10-2004 to 30-9-2005.

8. The petitioner-Company has brought to the notice of the

employees, the applicability of the provisions of the said Act and

the contribution required to be made thereunder by publishing a

notice on 1-1-2005. In view of this, the argument that it has

become impossible for the petitioner-Company to recover the

amount of contribution from the employees, who have already

left the job or have retired or have died, cannot be accepted. The

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fact that none of the employees have availed the benefits or that

the employer has provided better medical facilities to the

employees, cannot be a ground to challenge the notification. The

medical facilities were made available with effect from 6-1-2005.

In view of this, reliance for grant of equitable relief to the

petitioners on the basis of the decisions cited, is of no

consequence. The only remedy available to the

petitioner-Company is to move the appropriate Government to

claim exemption under the provisions of Section 87 of the said

Act, and the petitioner-Company is at liberty to adopt such mode,

if so advised.

9. In view of above, we do not find any substance in both

these petitions. The same are dismissed. The

petitioner-Company shall be at liberty to deposit the entire

amount of contribution for the period from 1-10-2004 to

30-9-2005 with the respondent-Employees State Insurance

Corporation within a period of four months from today, and it is

upon failing to deposit such amount, the interest at the rate of

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12% becomes applicable as per the provisions of the said Act and

the order of this Court passed on 9-6-2008.

10. Rule stands discharged. However, in the circumstances,

there shall be no order as to costs.

                             JUDGE.                                   JUDGE.

   Lanjewar