Delhi High Court
M/S. Dammo Enterprises vs The Regional Director, Esic on 8 November, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O. No.510/2002
Decided on : 8th November, 2013
M/s DAMMO ENTERPRISES ...... Appellant
Through: Mr.Shiv Charan Garg and Mr.Shashank
Mittal, Advocates.
Versus
THE REGIONAL DIRECTOR, ESIC ...... Respondents
Through: Mr.K.P.Mavi &
Mr.B.P.Mishra, Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is an appeal against the order dated 04.06.2002 passed by
Sh.O.P.Saini, the learned Senior Civil Judge, ESIC Judge, Delhi.
2. Briefly stated the facts of the case are that the present appellant is a
proprietorship concern of one Smt.Daya Wati. It is alleged in the plaint
filed by the appellant that it is engaged in the distribution of LPG Gas
Cylinders since 06.09.1983. It is alleged that some time in the month of
May, 1998, the officials of the respondent came to the premises of the
appellant herein and without issuance of any notice to the appellant
inspected the factory premises of the appellant. It was stated that the
respondent after inspection filed the report and fastened the liability on
the appellant to pay the ESI contribution assuming that the proprietorship
concern of the appellant had employed more than 20 people because of
which certain statutory requirements were to be complied with. The
respondent filed its reply contesting the claim of the appellant. So far as
the inspection of the premises in question is concerned, it was stated that
the inspection was done in the month of February, 1998 and not in the
month of May, 1998 and on inspection ESI official had found that at the
premises in question the appellant had employed more than 21 people. It
is further alleged that because of the number of persons employed, the
applicability of the Employees‟ State Insurance Act, 1948 („ESI Act,
1948‟ for short) is attracted and since the appellant had not paid its
contribution, they were fastened with the liability to pay the contribution.
3. On the pleadings of the parties, the following issues were framed:
" 1) Whether the petitioner is not liable to be
covered under the ESI Act?
2) Whether the impugned demand is liable
to be set aside for the reasons given in the
plaint?
3) Relief."
4. The parties adduced their evidence. The appellant examined its
proprietor Smt.Daya Wati as PW-1. The respondent examined two
witnesses namely RW-1 Sh.Rohtas Singh and RW-2 Sh.T.K.Ghosal.
5. After recording the evidence, the learned Civil Judge, rejected the
plea of the appellant both with regard to the proof of the persons
employed by the appellant and the plea of no notice having been given to
them and upheld the liability of the appellant to pay the contribution to
ESIC. Feeling aggrieved, the appellant has preferred the present appeal.
6. In the instant case, the trial court has come to a finding that the
appellant had employed at a given point of time 21 people and, therefore,
the objections of ESI Act, 1948 were applicable.
7. The plea of the appellant is that it had employed only 15 people
was not accepted by the learned Civil Judge on the ground that it had
failed to produce any register in Form 7 which was mandatorily required
to be maintained by them. So far as the question of non giving of notice
before inspecting the factory premises of the appellant was concerned,
that was also not accepted by the court below because of the reason that
the appellant himself had written a letter contesting the claim of the
respondent in the month of March, 1998 that the provisions of the ESI
Act, 1948 were not applicable and, therefore, the entire purpose of notice
was served inasmuch as the purpose of service of notice is that the other
side must be made aware of its statutory duties.
8. I have gone through the impugned judgment as well as the
provisions of law.
9. The appeal under Section 82 of the ESI Act, 1948 is permissible
only if a substantial question of law is involved. In the instant case, no
substantial question of law is involved nor the learned counsel for the
appellant has been able to make out one. On the contrary what has been
stated in the impugned order is that the notice was duly served on the
appellant.
10. I have seen the notice and merely because the notice is not to the
liking of the appellant, does not mean that the notice is bad in law. There
is no prescribed format or language given in the ESI Act, 1948 so far as
the issuance of notice is concerned. The entire purpose of sending a
notice is to make out the other side aware of certain legal consequences in
case certain statutory requirements are not met. The requirement is
sufficiently met in the instant case.
11. I accordingly feel that the question of notice raised is of no merit
because the inspection had been carried out in the month of May, 1998
and the appellant themselves have admitted that in the month of March,
1999 they had sent a letter to the respondent denying their liability to pay
the contribution to ESIC. Once such a letter is established on record, it
clearly shows that they were aware of the liability fastened upon them by
the respondent. Merely because the notice is not required to be in a
particular format or a language, does not mean the notice itself becomes
bad. The notice has been delivered to the appellant.
12. So far as the question of proof of persons employed by the
appellant at its factory premises is concerned, this is a question of fact
which has been decided by the court below against the appellant on the
basis of the evidence. Further, the onus of proof of the exact number of
persons employed by the appellant is a fact specifically within their
knowledge and according to Section 106 of the Evidence Act, 1892 they
had to discharge the said onus which they failed to do.
13. I do not find any merit or any substantial question of law arising
from the present appeal and according the same is dismissed.
V.K. SHALI, J.
NOVEMBER 08, 2013
dm
