Appellant vs The Regional Director
2021 Latest Caselaw 5148 Mad

                                                                                C.M.A.No.490 of 2014

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated : 26.02.2021

                                                      CORAM:

                                    THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

                                                C.M.A.No.490 of 2014
                                                and M.P.No.1 of 2014

                   The Pondicherry Co-operative Wholesale Stores Ltd.,
                   No.P.44, Rep. by its Managing Director,
                   Mr.T.Chanemougam,
                   288, Mahatma Gandhi Road,
                   Puducherry - 605 001.

                   (Cause title accepted vide order of Court dated 10.01.2014
                   made in M.P.No.1 of 2014 in CMA.SR.No.103371 of 2013)
                                                                                      .. Appellant
                                                          Vs.
                   The Regional Director,
                   Employees State Insurance Corporation,
                   ESI Complex,
                   Bouuvankare Street,
                   Mudaliarpet, Pondicherry.                                       .. Respondent


                   PRAYER : Civil Miscellaneous Appeal is filed under Section 82(2) of E.S.I
                   Act, 1948, against the order dated 29.05.2013, in ESIOP.No.12 of 2009, on
                   the file of the Employees Insurance Court, Pondicherry.
                                         For Appellant      : Mr.R.Sreedhar
                                         For Respondent     : M/s.Jayakumari


                   1/6


https://www.mhc.tn.gov.in/judis/
                                                                                  C.M.A.No.490 of 2014

                                                    JUDGMENT

The appellant herein is the petitioner, who filed ESIOP.No.12 of

2009, praying to declare the assessment order dated 07.05.2009 and the

recovery proceedings initiated by this respondent/Employees State Insurance

Corporation as null and void. But ESI Court erroneously dismissed the

application. Aggrieved by that, he preferred this Civil Miscellaneous Appeal.

The Employees State Insurance Corporation contested the appeal.

2. Point for consideration:

"Whether the order passed by the ESI Court is liable

to be set aside as erroneously concluded that he is liable to pay

the contribution to the wages paid by the canteen employees , who

are not employed by him and there is no employer-employee

relationship between them."

3. The learned counsel appearing for the appellant argued that

the appellant is operating a whole sale stores registered under Pondicherry

proprietary society and running liquor shops as allotted by the Government.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.490 of 2014

Accordingly, 10 shops are running in Pondicherry by its own employees. The

petitioner has leased out part of the premises of each and every liquor shops

to individual third parties for running canteen or petty shops dealing in

eatables items. All the ten lessees running the canteen by their own

employees and there is no employer-employee relationship between the

petitioner and the employees of the canteen. While so, the Insurance

Inspector visited the liquor shops and verified the attendance register and

treated the employees of the canteen contractors as employees of the

petitioner establishment and suggested compliance with the provisions of ESI

Act. Based on the above report, the respondent issued Show Cause Notice

describing him as a Principal Employer and demanding contribution.

Immediately, he challenged that notice before the ESI Court at Pondicherry,

but without considering his evidence, the ESI Court, erroneously dismissed

the application. Aggrieved by that, he approached this Court and he prays to

allow the appeal.

4. By way of reply, the counsel for the ESI Corporation submits

that all those canteens are running inside the premises of the liquor shops and

https://www.mhc.tn.gov.in/judis/ C.M.A.No.490 of 2014

there is no evidence of the appellant side to show that those employees were

running canteen through its contractor separately. When there is no evidence,

with regard to such contract then all those employees in canteen are comes

under the principal employer namely this appellant. Even during their

inspection, the appellant not produced any registers to show that the canteen

employees were appointed through its contractor.

5. Even before the ESI Court, no oral evidence on the side of the

appellant was adduced and the documents marked as Exs.P1 to P12. On the

side of the respondents Exs.R1 and R5 were marked.

6. The appellant relied the lease agreement said to be entered

between himself and those contractors, but those agreements are a self

serving document, which is not sufficient to conclude that the canteen

employees are appointed through contractors. Inspite of opportunity given to

the appellant they have not produced any other relevant tangible material

evidence. So, the ESI Court rightly concluded that the canteen employees are

also come under the control of the principal employees/appellant, who is the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.490 of 2014

immediate employer and rightly dismissed the petition. This Civil

Miscellaneous Appeal is dismissed as not maintainable in law. Accordingly,

the substantial question of law is answered.

7. Accordingly, this Civil Miscellaneous Appeal is dismissed.

Consequently, connected miscellaneous petition is closed. No costs.

26.02.2021

ub Index : Yes/No Speaking Order: Yes/No

https://www.mhc.tn.gov.in/judis/ C.M.A.No.490 of 2014

T.V.THAMILSELVI,J.

ub

C.M.A.No.490 of 2014

26.02.2021

https://www.mhc.tn.gov.in/judis/