Delhi High Court
Employee State Insurance ... vs Radha Krishan Prakashan Pvt Ltd on 30 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 30.11.2018
+ F.A.O. No.152/2017
EMPLOYEE STATE INSURANCE CORPORATION
..... Appellant
Through: Mr. K.P. Mavi, Mr. Bhudev Prashad
Mishra & Mr. Vijay Kumar, Advs.
Versus
RADHA KRISHAN PRAKASHAN PVT LTD
....Respondent
Through: Mr. Pravin Sharma, Ms. Kanika
Sharma & Mr. Prannav Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
C.M. No.13293/2017 (for delay)
For the reasons justified in the application, the delay of 54 days
in filing the appeal is condoned.
The application is disposed of.
F.A.O. No.152/2017
1. The impugned order dated 08.12.2016 passed by the court of
learned Senior Civil Judge, Central District, Tis Hazari Courts, New
Delhi ('SCJ')/ESI court in old ESIC No.45/05 (new ESIC
No.76/2016) allowing the petition of the respondent company under
Section 75 (1) (g) of Employees State Insurance Act, 1948 ('ESI Act')
declaring the notice of demand dated 08.05.2003 issued by the
appellant under Section 45A of ESI Act as null and void is the subject-
matter of challenge in this appeal.
2. An inspection was carried out by the inspecting staff/surveyor
of the appellant at the premises of the respondent company on
30.10.2000 by which they found 20 employees working there. A
show cause notice dated 16.04.2002 was issued to the respondent.
Eventually, by order dated 08.05.2003 under Section 45-A of ESI Act,
the appellant determined the demand of contribution under ESI Act of
Rs.2,82,034/- for the period from 08.12.1994 to 31.03.2001 against the
respondent company. It is mentioned in this order that after the
inspection was carried out, the respondent had deposited a sum of
Rs.82,146/- for the period from January, 1995 to March, 2001 and
demand was for payment of remaining amount of Rs.1,99,888/-
against the respondent.
3. Having received this demand, the respondent filed a petition
under Section 75 (1) (g) of the ESI Act before the ESI court/SCJ.
While coming to the conclusion, the ESI court/SCJ found 'it is
significant to note that respondent ESIC has not examined concerned
officer/Inspector for proving veracity of survey report and order dated
08.05.2003 passed under Section 45-A of ESI Act in respect of 20
employees. Since survey report and list of employees of company as
required under law could not be proved by respondent, so, order
dated 08.05.2003 passed under Section 45-A demanding Rs.2,82,034/-
as adhoc contribution and application dated 16.05.2005 forwarded to
Recovery Officer for recovery of a sum of Rs.3,01,760/- are patently
illegal which are liable to be quashed/set aside. Issue No.1 is
therefore decided in favour of petitioner.' While granting relief, the
ESIC court/SCJ observed ‗Petition filed under Section 75 (1) (g) of
ESI Act is accordingly allowed and order dated 08.05.2003 passed
under Section 45-A of ESI Act and recovery proceedings vide
application dated 16.05.2005 are declared null and void. Parties to
bear their own costs.'
4. Learned counsel for the appellant contends that the respondent
is carrying out the business of publication and sale of Hindi books. He
further contends that in para 4 of their application, they admitted
having employed more than 12-14 employees. He refers to definition
of 'factory' as mentioned in Section 2 (12) of the ESI Act which reads
as under :-
"Factory‖ means any premises including the precincts
thereof whereon ten or more persons are employed or
were employed on any day of the preceding twelve
months, and in any part of which a manufacturing
process is being carried on or is ordinarily so carried on,
but does not included a mine subject to the operation of
the Mines Act, 1952.‖
5. He urges that since the respondent is in business of
publication and sale of Hindi books, they are involved in
manufacture process which is contained in Section 2 (14 AA) of
ESI Act and thus respondent is a Factory under Section 2 (12).
Section 2 (14AA) of ESI Act defines ―‗Manufacturing
process' as having the meaning assigned to it in the
Factories Act, 1948.‖
6. Section 2 (k) of Factories Act, 1948 reads as under :-
―(k) ―manufacturing process‖ means any process for--
(i) making, altering, repairing, ornamenting, finishing,
packing, oiling, washing, cleaning, breaking up,
demolishing, or otherwise treating or adapting any
article or substance with a view to its use, sale, transport,
delivery or disposal,
[(ii) pumping oil, water, sewage or any other substance;
or]
(iii) generating, transforming or transmitting power; or
[(iv) composing types for printing, printing by letter
press, lithography, photogravure or other similar process
or book binding;]
(v) constructing, reconstructing, repairing, refitting,
finishing or breaking up ships or vessels;
[(vi) preserving or storing any article in cold storage;]
7. He contends that it is respondent's own case that number of
employees working with them were always more than 10 and not less
than 12 to 14 but they have not deposited the ESI contribution with the
appellant. He submits that the findings arrived by the ESI court/SCJ
are perverse in view of the admission by the respondent in their
petition itself.
8. Per contra, learned counsel for the respondent submits that no
appeal lie against an order of ESI Court except in a question of law.
He refers to Section 82 of ESI Act which reads as under :-
―Appeal - (1) Save as expressly provided in this
section , no appeal shall lie from an order of an
Employees' Insurance Court.
(2) An appeal shall lie to the High Court from an
order of an Employees' Insurance Court if it involves a
substantial question of law.
(3) The period of limitation for an appeal under this
section shall be sixty days.
(4) The provisions of sections 5 and 12 of the
Limitation Act, 1963 shall apply to appeals under this
section.‖
8. He contends that in their written statement, the appellant never
took the plea that the respondent is a 'factory'.
9. I have heard the learned counsel for the parties. I do not find
any question of law included in the matter. Even on facts, there is no
merit in the contention of learned counsel for the appellants. It is not
disputed that the appellant has not examined the concerned
officer/Inspector who carried out the survey on 30.10.2000 in the
premises of the respondent. The surveyor/Inspector, who allegedly
carried out the survey in the premises of the respondent, has not been
examined by the appellant and as such the appellant has failed to
prove the survey report to the effect that the respondent had employed
20 employees. They have also failed to prove that during a period
from 08.12.1994 to 31.03.2001 such number of employees were
working which is only a guesswork, without any basis.
10. Therefore, I do not find any illegality or perversity in the
impugned order. There is no merit in the appeal. The appeal is
accordingly dismissed with no order as to costs.
(VINOD GOEL)
JUDGE
NOVEMBER 30, 2018
'AA'
