M/S Mobile Centre (Petrol Pump) vs Employees State Insurance ...
2009 Latest Caselaw 4127 Del

*             HIGH COURT OF DELHI : NEW DELHI

              FAO No.69/2001 & CM No.129/2001

%     Judgment reserved on: 9th September, 2009

      Judgment delivered on: 13th October, 2009

M/s Mobile Centre (Petrol Pump),
Rajendra Market,
Near Tis Hazari Exchange,
New Delhi-110 054                ....Appellant
                   Through: Mr. K. N .Kataria, Adv.

               Versus
Employees„ State Insurance Corporation.
Through its Regional Director,
Regional Office,
DDA Shopping-cum -Office Complex,
Rajindra Place,
New Delhi.                      ....Respondent.
                   Through: Nemo

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     Yes

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                      Yes

V.B.Gupta, J.

Appellant has filed this appeal under Section 82

of Employees‟ State Insurance Act, 1948 (for short as

„Act‟) against order dated 9th December, 2000, passed

by Senior Civil Judge, Delhi, vide which petition of

appellant was dismissed.

2. Brief facts are that appellant is a partnership

concern and is running a Petrol Pump near Tis Hazari.

Its records were inspected in the year 1984, 1987,

1988 & 1990 by the Inspector of respondent-

Corporation. On 15th May, 1980, appellant was

informed by respondent that attendants of the Petrol

Pump are not covered under the Act. It is further

alleged that on 3rd February, 1988, respondent,

informed Delhi Petrol Dealers Association that

coverage of Petrol Pump would be enforced from 1st

January, 1987, but appellant was covered from 29th

September, 1981. Appellant protested against it, but to

no use.

3. The coverage of appellant with retrospective

effect from 29th September, 1981, is wrong and illegal

when earlier he was informed that coverage would be

from 1st January, 1987. Moreover, coverage has been

effected after more than seven years, which is not as

per law. Appellant never employed more than twenty

employees and Petrol Pump attendants are not

covered.

4. Respondent in its written statement did not deny

most of the averments made in the petition. However,

it denied that respondent is estopped from covering

the appellant from 29th September, 1981. It also denied

that notification issued by Delhi Administration is not

legal and coverage cannot be affected beyond seven

years. Respondent also denied that, appellant did not

employ more than twenty workers.

5. On 3rd August, 2009, when matter came up for

hearing before this Court, only counsel for appellant

was present. None appeared on behalf of respondent.

The matter was listed for 9th September, 2009 for final

disposal.

6. On 9th September, 2009, again none appeared for

respondent. Under these circumstances, there was no

option but to proceed with the matter. Arguments

advanced by learned counsel for appellant have been

heard.

7. It is contended by learned counsel that trial court

wrongly held that appellant is covered under the Act,

w.e.f. 29th September, 1981, ignoring the fact that

appellant on the said date, was not employing twenty

or more persons.

8. The issuance and contents of letter dated 3rd

February, 1988 have not been denied by respondent-

corporation. In fact, they admitted the same. Issuance

of this letter is conclusive proof of undertaking of the

respondent that corporation is not covering Petrol

Pumps prior to 1st January, 1987. The same was in the

nature of final order, which is binding on respondent

for all times to come.

9. It is further contended that coverage of petrol

pump of appellant‟s firm w.e.f. 29th September, 1981

was not only in contravention of the official letter

issued by respondent but was also retrospective in

nature. Thus respondent is estopped by its own

conduct, from covering Petrol Pump from a date, prior

to 1st January, 1987.

10. In the pleadings, respondent had specifically

stated that appellant firm is covered under the Act

since 1987. Therefore, under the circumstances, there

was no occasion for the trial court to hold that

appellant firm is covered by the Act from 29th

September, 1981.

11. Another contention is that under Section 77 of the

Act, no claim can be made by respondent, after five

years of the period to which the claim relates. In the

case in hand, claim relates to the period of 1981, thus,

the same is patently time barred under the provisions

of the Act.

12. Lastly, it is contended that as per Survey Report,

appellant firm, was not employing twenty or more

persons for the period of coverage under challenge and

as such appellant is not covered under the provisions

of the Act.

13. Learned counsel for appellant in support cited

following decisions of Supreme Court;

(i) Mahabir Vegetable Oils Pvt. Ltd. and Anr. v. State of Haryana and Ors., JT 2006 (3) SC 544;

(ii) Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., AIR 1979 SC 1628 and;

(iii) The Union of India and Ors. v. M/s.

Anglo Afghan Agencies etc., AIR 1968 SC 718.

14. Though respondent did not appear at the time of

final arguments, but in reply to appeal filed on behalf

of respondent, it has been stated that appellant itself

admitted that more than 10 persons were employed by

it during the relevant period. The pumping of oil being

a manufacturing process, the Act became applicable in

first instance itself, when 10 or more than 10 persons

are employed.

15. Another plea taken is that trial court after due

appreciation of letter dated 3rd February, 1988, rightly

came to the conclusion that said letter was not the

final order, but only an adhoc/provisional order.

16. Case of respondent-Corporation hinges on letter

dated 3rd February, 1988. This letter has been duly

proved as Ex.-PW1/1. It has been addressed to

President, Delhi Petrol Dealers Association and subject

of this letter is "Coverage of Petrol Pumps under E.S.I.

Act". Relevant portion of it reads as under;

"You may kindly recall the discussions held by the Additional Secretary (Ministry of Labour) with you and your representatives on 12-12-88 on the above subject, when our Insurance Commissioner was also present.

I am directed to inform you that each case of coverage will be examined on its own merit after

obtaining full particulars. But to start with the coverage of Petrol Pumps in Delhi is being enforced w.e.f. 1-1-87.

Sd/-

Regional Director"

17. A bare perusal of this letter, shows that each case

of coverage has to be examined on its own merit after

obtaining full particulars. But to start with the

coverage of Petrol Pumps in Delhi is being enforced

w.e.f. 1st January, 1987.

18. There is no ambiguity in this letter with regard to

enforcement of the Act, w.e.f. 1st January, 1987, qua

Petrol Pumps in Delhi. It nowhere states that Act with

regard to Petrol Pumps, would be enforceable

retrospectively, i.e. with effect from back date.

19. Moreover, as per letter Ex.-PW 1/5 of respondent,

attendants working on the Petrol Pumps are not

covered. Relevant extract of this letter reads as under;

"This has a reference to your letter dated 8-5-80 on the above subject. In this connection, I am

to inform that your letter dated 15-4-80 was not received by this office. So far as the coverage of Petrol Pump under the ESI Act is concerned, it is advised that attendants working on the Petrol Pump are not covered."

20. Also on record is a Memorandum issued by

respondent-Corporation, No.P.11/21/11/44/87-Ins.IV

(2/88)-Dated-22nd December, 1988. It pertains to

"Coverage of Petrol Pumps/Service Stations".

Relevant portion of which reads as under;

"(1)Coverage of petrol-pumps & service station be examined by clubbing both the units and not independently as earlier advised. However, in cases where only petrol pump or service station exists & both sub-units do not exist, in the same premises the coverage be decided independently, if other conditions are satisfied. For this purpose, we have to count the employees both in service station as well as in petrol pump, irrespective of the position that employer is maintaining combined/separate records & whether the

employees are interchangeable or not.

(2)Above guidelines are to be made effective from 1/1/89 but not retrospectively.

(3) Old cases wherein coverage aspect has already been decided (prior to issue of this Memo) need not be reopened."

21. According to this Memorandum, guidelines with

regard to coverage of Petrol Pumps/Service Stations,

are to be made effective from 1st January, 1989, but not

retrospectively.

22. Thus, it is apparent from letter, Ex.-PW 1/5 and

Memorandum No.P11/21/11/44/87-Ins. IV (2/88), that

there was no occasion for respondent to enforce the

Act, qua present appellant, w.e.f. 29th September,

1981. In view of the clear admission made by

respondent in its letter Ex.PW1/1, that to start with,

the coverage of Petrol Pump in Delhi is being enforced

w.e.f. 1st January, 1987, now, respondent is estopped

from taking contrary plea.

23. One cannot interpret the lines mentioned in

Ex.PW1/1, as provisional and completely overlook the

conclusive portion of this letter which states;

"but to start with the coverage of Petrol Pump in Delhi is being enforced w.e.f. 1st January, 1987"

24. The rule for interpretation has clearly been

explained in Ramana‟s case (Supra), where it is

observed;

"It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the court should not be prompt to ascribe superfluity to the language of a document "and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as

possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable."

25. Thus, applying the principles of Estoppel in the

present case, the impugned order passed by trial court

is unsustainable and hereby set aside. The present

appeal stands allowed.

26. Parties shall bear their own costs.

27. Trial court record be sent back.

+CM No.129/2001

28. Application stands disposed of.

13th October, 2009 V.B.GUPTA, J.

Bhatti/rb