Madras High Court
The Regional Director vs Sri Ganapathy Roadways on 21 June, 2023
C.M.A(MD)No.549 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.549 of 2018
1.The Regional Director,
Employee's State Insurance Corporation,
Sub Regional Office (Tirunelveli),
Salai Street, Vannarpet,
Tirunelveli-627 003.
2.The Recovery Officer,
The Employee's State Insurance Corporation,
Sub Regional Office (Tirunelveli),
Salai Street, Vannarpet,
Tirunelveli-627 003. ... Appellants/Respondents
Vs.
Sri Ganapathy Roadways,
C-67/16th Cross Street,
Maharajanagar, Tirunelveli-627 011,
Represented by V.Lakshmi
Proprietor. ... Respondent/Petitioner
PRAYER: Civil Miscellaneous Appeal is filed under Section 82 (2) of
Employees State Insurance Act, to set aside the decree and judgment of
the Employee's State Insurance cum Labourer Court, Tirunelveli passed
in E.S.I.O.P.No.19 of 2016, dated 04.04.2017 as illegal and against law.
https://www.mhc.tn.gov.in/judis
1/9
C.M.A(MD)No.549 of 2018
For Appellants : Mr.I.Pinaygash
For Respondent : Mr.M.Jerin Mathew
JUDGMENT
The present appeal has been filed by the E.S.I corporation
challenging the allowing of E.S.I.O.P.No.19 of 2016 by Labour Court,
Tirunelveli.
2. Factual background:
(i) One Mr.Kuppusamy was running Sri Ganapathy Motor Service
with 5 buses and the employees and the said concern were covered under
the E.S.I Act with code number 5421. During the life time of
Mr.Kuppusamy, her daughter Lakshmi was running another motor
service in the name and style of Sri Ganapathy Roadways and the E.S.I
code number is 012421. Therefore, the father and the daughter were
running 2 independent businesses which were covered under the E.S.I
Act with two different E.S.I codes. The said Kuppusamy had passed
away on 12.12.2009. Thereafter, by way of some family arrangement,
two buses were allotted to the share of one of the daughters Lakshmi and
two other buses were allotted to the share of another daughter
Gandhimathi and one another bus was allotted to the share of the wife of
Kuppusamy, namely Valli Perumal Nayaki.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
(ii) The E.S.I corporation had initiated proceedings under Section
45-A and passed an order on 23.07.2012 demanding a sum of Rs.
1,50,150/- for the period covering April 2010 – October 2011. The said
order was challenged by Mrs.Gandhimathi in E.S.I.O.P.No.8 of 2014
contending that after the death of her father, she has received only 2
buses and the respective employees. Therefore, the entire demand cannot
be fastened upon her. The said submission on the side of Gandhimathi
was accepted by the labour Court and the E.S.I.O.P.No.8 of 2014 was
allowed on 29.06.2016 and the case was remitted back to the E.S.I
corporation with a direction to issue separate notices to the legal heirs of
the deceased Kuppusamy and proceed further.
(iii) In view of the order of remand passed in E.S.I.O.P.No.8 of
2014, dated 29.06.2016, a notice was issued to Sri Ganapathy Roadways
demanding a sum of Rs.13,788/- for the period between April 2010 and
October 2011. An order was passed on 21.10.2016 under Section 45-A
confirming the above said amount. This order was accepted and amount
was remitted.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
(iv) In the meantime, the corporation had initiated proceedings for
recovery of the E.S.I contribution from Sri Ganapathy Roadways (which
is an independent entity owned by Lakshmi) by passing an order under
Section 45-A on 19.02.2013 demanding a sum of Rs.67,389/-. Since the
contribution was not paid, the corporation had initiated recovery
proceedings under Section 45-C of the Act and an order was passed on
23.11.2015 demanding a sum of Rs.84,188/- which included the interest
component also. These two orders were challenged in E.S.I.O.P.19 of
2006.
(v) The Labour Court after considering the fact that the E.S.I code
numbers referred to in the order, dated 19.02.2013 and 21.10.2016 were
one and the same, arrived at a finding that for the same period, for the
same establishment, a second order has been passed which is not legally
sustainable and thereby set aside the order, dated 21.10.2016. This order
is under challenge in the present appeal by the E.S.I corporation.
3. According to the learned counsel appearing for the
appellant/E.S.I corporation, 19.02.2013 order under Section 45-A though
relates to the same period, it is in respect of the vehicles that were
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
originally owned by Sri Ganapathy Roadways. However, the order, dated
21.10.2016 is in relation to two additional buses with 4 employees that
were inherited by Lakshmi (Sri Ganapathy Roadways) due to the death of
her father. Therefore, both the orders are relating to different employees
of the same period. The E.S.I Court had not properly appreciated the said
fact and allowed the petition.
4. On the other hand, the learned counsel appearing for the
respondent had contended that in E.S.I.O.P.No.19 of 2016, they have
challenged the 45-A order, dated 19.12.2013 and the recovery order,
dated 23.11.2015 on the ground that those two orders were passed before
order of remand and therefore, those two orders have lost their validity
after an order of remand was passed in E.S.I.O.P.No.8 of 2014. He
further contended that after remand, an order under Section 45-A has
been passed on 21.10.2016 which they have accepted and paid the
contribution amount. Therefore, the E.S.I Court was right in setting aside
the 45-A order and recovery proceedings which were passed prior to the
order of remand.
5. I have carefully considered the submissions made on either side.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
6. A perusal of the order, dated 19.02.2013 indicates that it has
been issued as against Sri Ganapathy Roadways whose proprietor is
Mrs.Lakshmi for the period between April 2010 and January 2011. A
perusal of the 45-A order, dated 23.07.2012 indicates that it was passed
against Sri Gnapathy whose proprietor is Mrs.Gandhimathi for the period
between April 2010 and October 2011. Only this order, namely, dated
23.07.2012 was challenged in E.S.I.O.P.No.8 of 2014 and only this
order, dated 23.07.2012 was set aside and remitted back to the E.S.I
corporation. However, the E.S.I Court has wrongly understood that the
order, dated 19.02.2013 has already been set aside in E.S.I.O.P.No.8 of
2014. The Labour Court has also arrived at a finding that for the same
establishment and for covering the same period having the same E.S.I
code, two different orders have been passed and they are sought to be
implemented.
7. The following documents were referred to by the learned
counsel appearing for the appellant:
(i) The order, dated 29.06.2016 passed in E.S.I.O.P.No.8 of 2014
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
(ii) A letter, dated 19.10.2016 said to have been sent by V.Lakshmi
along with wage register.
(iii) The order, dated 23.07.2012 under Section 45-A passed by the
E.S.I corporation.
8. These three documents have not been placed by the E.S.I
corporation before the Labour Court. The learned counsel appearing for
the respondent brought to the notice of the Court that there is no
reference about these documents in the counter filed by the E.S.I
corporation. Therefore, this Court is of the view that there is a confusion
relating to the buses that were originally owned by Sri Ganapathy
Roadways and the additional buses that were inherited by Lakshmi after
the death of her father Kuppusamy. These factual disputes have to be
settled only by the E.S.I Court. Therefore, the order passed by the E.S.I
Court is hereby set aside and the matter is remitted back to the file of the
Labour Court, Tirunelveli. The employer as well as the corporation shall
be entitled to file additional documents. The corporation, if they are so
advised, they are entitled to file an additional counter.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
9. With the above said observations, the Civil Miscellaneous
Appeal stands allowed. No costs.
21.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Employee's State Insurance
cum Labourer Court,
Tirunelveli.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.549 of 2018
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.549 of 2018
21.06.2023
https://www.mhc.tn.gov.in/judis
