Textan Chemicals (P) Ltd vs Employees State Insurance ...
2021 Latest Caselaw 5158 Mad

                                                                                 C.M.A.No. 2803 of 2012


                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 26.02.2021

                                                             CORAM

                                    THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                 C.M.A.No. 2803 of 2012


                     Textan Chemicals (P) Ltd.,
                     No.75, 4th Avenue,
                     Ashok Nagar,
                     Chennai – 600 083.
                     Rep. By its Financial Controller                               ..Appellant

                                                              Vs

                     Employees State Insurance Corporation,
                     143, Sterling Road,
                     Nungambakkam,
                     Chennai – 600 034.
                     Rep. By (1) The Dy. Director,
                     and (2) Recovery Officer.                                      ..Respondent


                                   Petition filed under 82 of E.S.I. Act, 1948 to set aside the
                     order and decree dated 12.04.2011 ordered in E.I.O.P.No. 76 of
                     2005 on the file of learned Judge E.I.Court (Principal Labour Court,
                     Chennai), quash/set aside the same as illegal and consequently
                     allow the petition in E.I.O.P.No. 76 of 2005.


                                       For Appellant     :         Mrs.Sharon Elizabeth V.S.
                                                                   For Mr.A.Irudayam

                                       For Respondent    :         Mr.C.V.Ramachandramurthy




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                     Page 1 of 6
                                                                         C.M.A.No. 2803 of 2012




                                                    JUDGMENT

The judgment and decree dated 12.04.2011 passed in

E.I.O.P.No. 76 of 2005 is under challenge in the present civil

miscellaneous appeal.

2. The question of law as raised in the appeal is mostly

relatable to the factual aspects. However, the learned counsel

appearing on behalf of the appellant contended that the order under

Section 45A of the ESI Act was passed beyond the period of five

years which is directly in violation of the proviso Clause 2 of Section

45 of the Act. It is contended by the learned counsel that the order

prima facie is null and void as it was issued beyond the period of

limitation contemplated under the proviso clause. This apart, the

learned counsel appearing for the appellant made a submission that

no opportunity as required under the provisions was not granted to

the appellant and, therefore, she was deprived.

3. Learned counsel appearing on behalf of the

respondent/Corporation pointed out that the second proviso to

Section 45A of the Act was inserted by the ESI (amendment Act

2010) 18.1.2010 with effect from 1.06.2010. Thus, the limitation

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C.M.A.No. 2803 of 2012

was prescribed and came into force only with effect from

01.06.2010. However, with reference to the present appeal, the

order under Section 45A was issued by the competent authority on

05.11.2004, six years prior to the amendment. Therefore, the

appellant is not entitled to avail the benefit of proviso clause

introduced in the year 2010.

4. As far as the merits are concerned, an enquiry was

conducted and the competent authority even under the order

passed under Section 45A of the Act has categorically stated that

the person was called for hearing and failed to attend the same. It

is further submitted that the documents available with the employer

were also not produced before the competent authorities. When the

employer has not submitted the proof of records to substantiate his

claim and the expenditure incurred as per his calculation did not go

with the policy and in the absence of proof, the competent

authorities passed an order under Section 45A and determined the

contribution to be paid as Rs.1,02,032/-. The findings of the ESI

Court is also unambiguous with reference to the reasons stated in

the order passed by the competent authority under Section 45A of

the Act. The ESI Court considered the documents as well as the

evidence produced elaborately and made a finding that there is no

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C.M.A.No. 2803 of 2012

lapse or irregularity with reference to the determination of the

contribution to be paid by the appellant. In respect of the facts and

circumstances, this Court is not inclined to adjudicate the issues as

it was discussed in detail by the ESI Court.

5. As far as the substantial question of law is concerned,

learned counsel appearing for the appellant raised the point of

limitation and the said ground is not available in view of the fact

that the order impugned passed under Section 45A was passed by

the competent authority six years prior to the amendment in the

year 2010 and, therefore, the question of law is accordingly

answered with reference to the facts. This Court need not go further

as there is no substantial question of law which deserves any

further adjudication and, therefore, the judgment and decree dated

12.04.2011 passed in E.I.O.P.No. 76 of 2005 stands confirmed and

the appeal stands dismissed. No costs. Consequently, connected

M.P.No.1 of 2012 is closed.

26.02.2021

Index: Yes ssm

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

C.M.A.No. 2803 of 2012

To The E.I.Court (Principal Labour Court, Chennai.

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C.M.A.No. 2803 of 2012

S.M.SUBRAMANIAM, J.

(ssm)

C.M.A.No. 2803 of 2012

26.02.2021

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