Madras High Court
M/S.Sivagami Blue Metal vs Employees State Insurance ... on 9 March, 2021
C.M.A.No. 2087 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No. 2087 of 2016
M/s.Sivagami Blue Metal,
Trisulam, Chennai – 600 045
Rep. By its Proprietor ..Appellant
Vs
Employees State Insurance Corporation,
No.143, Sterling Road,
Chennai – 600 034.
Rep. By the Assistant Director ..Respondent
Appeal filed under Section 82 of the Employees State
Insurance Act, 1982 against the fair and decreetal order dated
28.07.2016 passed in E.I.O.P.No. 13 of 2012 on the file of the
Employees State Insurance (Principal Labour Court), Chennai.
For Appellant : Mr.C.Manohar Gupta
for M/s.Gupta and Ravi
For Respondent : Mr.K.Prabakar
JUDGMENT
The order dated 28.07.2016 passed in EIOP No. 13 of 2012 is
under challenge in the present civil miscellaneous appeal.
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C.M.A.No. 2087 of 2016
2. The substantial questions of law raised by the appellant
read as under:
“(a) Whether the Appellant is liable to cover its
employees under the provision of the ESI Act
even though the appellant has not engaged 10
persons at any point of time and therefore the
provisions of ESI Act does not apply?
(b) Whether the Appellant is liable to be
covered under the provisions of the ESI Act
even though the appellant does not satisfy the
definition term factory as defined under Section
2(12) of the Factories Act?
(c) Whether there is a violation of principle of
natural justice in passing the order under
Section 45A of the ESI Act on remand as no
proper notice was served on the Appellant by
the ESI authorities?”
3. As far as the first substantial question of law is concerned,
the same is relatable to the facts and circumstances of the case.
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C.M.A.No. 2087 of 2016
4. Learned counsel for the appellant mainly contended that no
opportunity was being provided to the petitioner and, therefore, the
principles of natural justice has been violated. When the parties
have neither verified the document nor provided an opportunity
then the order is liable to be scrapped.
5. The appellant has stated that he has never employed more
than four persons for wages and therefore, there cannot be any
coverage. However, the ESI Court, considered these aspects and
Ex.P3 order was passed under Section 45A of the ESI Act on
27.06.2003/10.07.2003 were set aside and order with a direction to
give copy of the inspection report to the petitioner, issue fresh C.18
notice and pass orders under Section 45A of the Act after giving the
petitioner opportunity of hearing. Thus, the appellant again says
that no opportunity was provided to them. The ESI Court also
categorically considered the documents as well as the opportunity
provided to the appellant to support their case.
6. The respondent/ESI Corporation has produced Exs.R1 to R9
and Ex.R1 is the copy of the personal hearing notice dated
12.01.2011, for the hearing dated 04.02.2011. Ex.R2 is the
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C.M.A.No. 2087 of 2016
returned cover along with the acknowledgment card. Ex.R3 is the
personal hearing notice dated 27.12.2011 for the hearing dated
10.01.2012. Ex.R4 is the returned cover along with
acknowledgment card. Ex.R5 is also the returned cover along with
acknowledgment card. Ex.R6 is the form C18 notice for the period
17.11.93 to 30.09.2000. Ex.R7 is the returned cover. Ex.R8 is the
returned cover. Ex.R9 is the impugned order passed u/s.45A of the
ESI Act on 05.03.2012. All these aspects were categorically
considered by the ESI Court. Thus, there is no reason to consider
the said substantial question of law. The next substantial question of
law is inter-connected. The principles of natural justice also has
been followed by providing adequate opportunity to the appellant to
present their case.
7. After considering all the documents as well as the
opportunities provided to the appellant, the ESI Court, made the
following findings in paragraph 13, reads as under:
“13. Admittedly, the petitioner has not
produced any documents to show the number
of persons employed by the petitioner by
producing the attendance register, wage
register, day book, ledgers, cash book,
vouchers, etc. before the enquiry officer. Even
before this Court, the petitioner has not
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C.M.A.No. 2087 of 2016
produced these documents to show that the
petitioner had employed only 4 persons during
the relevant period and therefore the petitioner
is not liable to pay contribution under the Act.
The petitioner has failed to avail the opportunity
available to it in the enquiry before this Court to
prove its case. Therefore, the order passed
u/s.45A of the ESI Act with available records
cannot be faulted. Though the copy of the
inspection report is not filed, the non production
becomes immaterial in the absence of
production of the documents by the petitioner
to show the number of persons employed. It is
seen from Ex.R6 that contribution was claimed
for the period from 11.7.93 to 30.09.2000 on
the assumed wages. However, it has been
wrongly typed in the impugned order that claim
period was 17.11.93 to 30.12.96. This is only a
typographical error and it will not dent the case
of the respondent. The analysis of the evidence
produced in this case clearly shows that the
petitioner has failed to avail the opportunity of
personal hearing given by the respondent and
again failed to avail the opportunity available to
him during the enquiry before this Court to
show that the petitioner had employed only four
persons and therefore it is not coverable under
the provisions of the ESI Act. In the said
circumstances, the impugned order passed on
the basis of the available records cannot be
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C.M.A.No. 2087 of 2016
faulted and it is confirmed. Therefore the
prayer of the petitioner that the impugned
order has to be set aside cannot be accepted.
In this view of the matter, this petition is
dismissed with costs of the respondent.”
8. In view of the said facts and circumstances, the appellant
could not be able to establish any acceptable substantial questions
of law required for consideration in respect of the present appeal.
Thus, the order dated 28.07.2016 passed in E.I.O.P.No. 13 of 2012
stands confirmed and the civil miscellaneous appeal is dismissed. No
costs. C.M.P. No. 15211 of 2016 is closed.
09.03.2021
Index: Yes
ssm
To
The Presiding Officer,
Principal Labour Court, Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 2087 of 2016
S.M.SUBRAMANIAM, J.
(ssm)
C.M.A.No. 2087 of 2016
09.03.2021
https://www.mhc.tn.gov.in/judis/
