Delhi High Court
M/S Brahamputra Cargo Carriers ... vs Union Of India And Ors on 5 October, 2021
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05th October, 2021
+ FAO 231/2021& CM APPLN. 34942-43/2021
M/S BRAHAMPUTRA CARGO
CARRIERS PVT LTD ..... Appellant
versus
UNION OF INDIA AND ORS ..... Respondent
Advocates who appeared in this case:
For the Petitioner: Dr. Rajiv Nanda and Manish Kumar Vikkey, Advocates
For the Respondents: Mr. Ripudaman Bhardwaj, CGSC with Kushagra Kumar,
Advocate for R-1/UOI
Mr. Shlok Chandra, Advocate for R-2 to 5 (through VC)
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
CM APPLN. 34944/2021 (Exemption)
Allowed, subject to all just exceptions
FAO 231/2021
1. Appellant impugns judgment dated 14.09.2020, whereby the petition
filed by the appellant, under Section 75 of the Employees State Insurance
Act (ESI Act) seeking setting aside of order dated 22.02.2017 and order
dated 03.04.2017 has been dismissed.
2. As per the appellant an inspection was carried out at the premises of
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:05.10.2021
Signing Date:06.10.2021 08:28:03 23:17
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the petitioner and it was noted in the inspection report that appellant failed
to produce certain record based on which a demand of Rs. 1,32,27,414/-
was raised on 01.12.2016. Consequent thereto a show cause notice dated
01.12.2016 was issued which was responded to, however, the same
culminated in an order which was challenged by the subject petition under
Section 75 of the ESI Act.
3. Learned Counsel for the petitioner inter-alia submits that both the
Commissioner as well as the ESI Court has erred in not appreciating that
the so-called lorry drivers and the owners were not the employees of the
petitioner but there was a principle to principle contract with them.
4. He further submits that the impugned order erroneously records that
the petitioner has not produced any document as all the documents which
were tendered in evidence of the witness produced by the petitioner were
de-exhibited at the time of recording of the statement of the witness of the
petitioner on 24.01.2019 on the ground that original documents have not
been produced.
5. Learned counsel points out that subsequently an application was
filed to exhibit the said documents and original documents were produced,
which application was allowed on 20.02.2019 and the documents were
exhibited as Exb. PW1/2 to Exb. PW1/7 and the Court has recorded that the
originals were seen and returned.
6. He submits that at the time of pronouncing the impugned judgment,
it appears that ESI Court on account of oversight did not notice this order
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:05.10.2021
Signing Date:06.10.2021 08:28:03 23:17
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
and has erred in holding that no documentary evidence was produced by the
petitioner in support of its claim.
7. Issue notice. Notice is accepted by learned counsel appearing for
respondent no. 1 as also by counsel for respondent no. 2 to 5.
8. Learned counsel appearing for respondent no. 2 to 5 disputes that the
order on merits is erroneous. He submits that the appellant has failed to
produce the requisite material in support of his claim. He, however, fairly
concedes that the documents which were subsequently exhibited seems to
have been missed out by the ESI Court at the time of passing of the
impugned judgment.
9. Without getting into the controversy of merits, it is quite clear that
the impugned order erroneously records that the appellant has not produce
any documentary evidence. In paragraph 7, the impugned order records that
appellant has only proved one document and all documents have been de-
exhibited. Further in paragraph 14 of the impugned order, the Court
records that appellant has not produced any documentary evidence and all
documents have remained unproved since these documents were de-
exhibited.
10. The ESI Court has clearly erred in not noticing its subsequent order
dated 20.02.2019 where all documents were once again exhibited.
11. In view of the above, I am of the view that the impugned order
cannot be sustained on the said ground and calls for a remit to the ESI
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:05.10.2021
Signing Date:06.10.2021 08:28:03 23:17
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
Court to consider the case of the appellant afresh by also taking into
account the documents which were subsequently exhibited.
12. In view of the above, impugned order dated 14.09.2020 is set aside.
The matter is remitted to the ESI Court for passing a fresh order on merit
after giving an opportunity of hearing to the parties.
13. The appeal is allowed in the above terms.
14. It is pointed out by learned counsel for the appellant that during the
pendency of the proceedings the before ESI Court there was interim
protection granted to the appellant by order dated 25.11.2017.
15. It is accordingly further directed that during the pendency of the
proceedings before the ESI Court, the interim protection granted to the
appellant, by order dated 25.11.2017, shall continue to operate till disposal
of the proceedings.
16. ESI Court shall further endeavour to dispose of the proceedings
expeditiously. All rights and contentions of the parties are reserved.
SANJEEV SACHDEVA, J
OCTOBER 5, 2021
'rs'
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:05.10.2021
Signing Date:06.10.2021 08:28:03 23:17
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
