Madras High Court
M/S.Chennai Cottons vs The Regional Director on 9 March, 2021
C.M.A.No.1060 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1060 of 2018
and
C.M.P.No.8650 of 2018
M/s.Chennai Cottons
No.2, Vijayaraghava Road
Chennai – 600 017
Rep.by its power agent
J.P.Shah ..Appellant
Vs.
1.The Regional Director,
E.S.I.Corporation,
No.143, Sterling Road,
Chennai – 34.
2.The Authorised Officer,
E.S.I.Corporation,
No.143, Sterling Road,
Chennai – 34.
3.The Recovery Officer,
E.S.I.Corporation,
No.143, Sterling Road,
Chennai – 34. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 82 of the
Employee's State Insurance Act, against the order and decree dated
07.04.2017 in E.I.O.P.No.95 of 2006 passed by the learned Judge,
Principal Labour Court, (Employees' Insurance Court), Chennai.
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1/6
C.M.A.No.1060 of 2018
For Appellant : Mr.D.Abdullah
For Respondents : Mr.S.P.Srinivasan
JUDGMENT
The order dated 07.04.2017 passed in E.I.O.P.No.95 of 2006 is
under challenge in the present Civil Miscellaneous Appeal.
2. Though the appellant has raised three substantial question of
law, the learned counsel for the appellant confined by stating that only
question of law to be considered by this Court is that whether the trial
Court erred in passing an order in a cryptic and non-speaking manner.
3. The learned counsel for the appellant made a submission that
the appellant factory closed its operations from 01.11.1992 and the said
factum was not considered by the authorities as well as by the ESI Court.
However, closure of the establishment is a factual aspect to be
considered with reference to the documents. If at all, the appellant closed
the business, it is for him to establish the same by filing documents and
adducing evidences. However, the ESI Court made a categorical finding
that the petitioner has not proved the fact that factory was closed its
operation on 01.11.1992 in a satisfactory manner. In the absence of any
proof to establish the closure, the ESI Court is right in not considering
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C.M.A.No.1060 of 2018
the case of the appellant. In respect of closure of business, more
specifically, when the business is covered under the ESI Act, is to be
established through an acceptable evidence. A mere statement in this
regard is insufficient to arrive a conclusion. The findings of the ESI
Court reveals that the appellant did not intimate the
respondent/Corporation about the closure of business or changes in the
number of workmen. Even before the ESI Court also, the appellant has
not established that the business was closed its operations from
01.11.1992 by producing reliable evidence Exs.P1 to P13 do not contain
any evidence to show that the business of the petitioner was closed on
01.11.1992. Non-operation of Bank operation is insufficient to establish
the closure of the business. The appellant has obtained a license under
the Factories Act to run the factory as the factory involved in Garment
Manufacture. When it was closed, then all appropriate steps are to be
taken and at least before the ESI Court, the appellant would have
produced some document to establish the same. However, the ESI Court,
in categorical terms, held that the appellant had not produced any
evidence to show that that it had obtained license or to show that it has
surrendered after October 1992. Thus, the ESI Court could not able to
arrive a conclusion that the appellant company closed its operations on
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C.M.A.No.1060 of 2018
01.11.1992. The findings in this regard are unambiguous and the same
are extracted hereunder:
“6.......The petitioner admittedly was engaged in
manufacture of garments and therefore, it is clear that it
was a factory. The petitioner must have obtained a
license under the Factories Act to run the factory. If it
was closed, the license must have been surrendered to
the officer concerned. The petitioner must have been
registered with other Government authorities also and
the registration must have canceled when the operations
were closed. But the petitioner has not produced any
evidence to show that it had obtained license or to show
that it has surrendered after October 1992. It has not
produced any evidence to show that its registration was
also cancelled. The petitioner has not produced any
evidence to show that the partnership firm was dissolved
on or immediately after 01.11.1992. The attendance
registers and wage registers are the serving documents
of the petitioner and merely on the basis of the absence
of entries in these registers, I cannot come to the
conclusion that the petitioner must have closed its
operations from 01.11.1992. The petitioner has
conveniently stated that it has to locate the papers to
find out whether the factory license was obtained and
whether it was surrendered subsequently. The petitioner
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C.M.A.No.1060 of 2018
on 01.11.1992 in a satisfactory manner. Therefore, there
was nothing wrong in the respondent determining the
contribution on adhoc basis. The petitioner has I have
already stated, failed to intimate to the Corporation
about the alleged closure of business or the alleged fact
that there were no employees from 01.11.1992. Having
failed to abide by the law, the petitioner cannot now
complain that the respondent passed the order
arbitrarily. There is no satisfactory evidence to come to
the conclusion that the petitioner closed its operation on
01.11.1992 itself and therefore, I come to the conclusion
that the impugned order is legally sustainable. These
issues are answered accordingly.”
4. In view of the above finding, this Court is of the opinion that the
appellant has not raised any acceptable substantial question of law,
warranting further adjudication on merits and therefore, the order dated
07.04.2017 passed in E.I.O.P.No.95 of 2006 stands confirmed and the
Civil Miscellaneous Appeal in C.M.A.No.1060 of 2018 is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
09.03.2021
kak
Index: Yes/No
Internet:Yes/No
http://www.judis.nic.inSpeaking order/Non-Speaking Order
C.M.A.No.1060 of 2018
S.M.SUBRAMANIAM, J.
kak
To
The learned Judge,
Principal Labour Court,
(Employees' Insurance Court), Chennai.
C.M.A.No.1060 of 2018
09.03.2021
http://www.judis.nic.in
