Punjab-Haryana High Court
The Employees State Insurance ... vs Shri Hari Health And Education ... on 8 December, 2023
Author: Karamjit Singh
Bench: Karamjit Singh
Neutral Citation No:=2023:PHHC:157508
FAO-6519-2023 [1] 2023:PHHC:157508
118
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-6519-2023
Date of decision: 08.12.2023
The Employees State Insurance Corporation and others
...Appellants
Versus
Shri Hari Health and Education Foundation M.K. Hospital Bhiwani
...Respondent
CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH
Present: Mr. Ashwani Talwar, Advocate for the appellants.
****
KARAMJIT SINGH, J. (ORAL)
1. The present appeal is filed by the appellants against the
judgment dated 22.08.2023 passed by ESI Court of Civil Judge (Senior
Division), Bhiwani whereby the petition filed by respondent under Section
75 of the Employees State Insurance Act has been allowed.
2. The brief facts of the case of the respondent are that
respondent's hospital i.e. M.K. Hospital, Bhiwani was being run by Shri
Hari Health and Education Foundation, New Delhi and is a charitable
hospital. The said hospital came under ESI Act w.e.f. 07.05.2013 and its
started complying with the provisions of ESI Act. The hospital prepared the
list of employees. That appellant No.2 passed order dated 06.07.2016 to the
effect that employer has failed to pay the contribution in respect of the
employees who were employed by house keeping company i.e. M/s Krishna
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Facility Management Services which was hired by respondent hospital. As
per order dated 06.07.2016 team of SSO reported about the coverable
employees on 17.05.2013. The team also mentioned the name of Dinesh
Pahuja head of marketing. The SSO team forced Dinesh Pahuja to sign
certain statement, which he was not authorized to do. The team did not
obtain copies of identity cards and attendance sheet. The balance sheet
submitted by respondent shows that no payment was made to M/s Krishna
Facility Management Services as the alleged employees were not on pay
roll of the respondent and were not employed by it at any point of time. The
team led by SSO did not follow the proper procedure and had not obtained
signatures of employees who were present in the hospital at that time.
Petitioners also violated principals of natural justice as no opportunity of
hearing was provided to the respondent through its representative. That
actually, at the time of aforesaid checking respondent hospital was virtually
closed due to acute shortage of staff including house keeping services. That
order dated 06.07.2016 is illegal being passed without application of mind
and in contravention to the provisions of ESI Act and notifications. Hence,
petition under Section 75 of ESI Act was filed by respondent.
3. The petition was contested by the appellants who filed written
statement taking preliminary objections regarding maintainability and locus
standi. On merits, it was pleaded that respondent failed to deposit the ESI
contribution of its entire employees and also failed to pay the contribution
amount as per order dated 06.07.2016. That appellants raised demand of
contribution amount as per inspection and in accordance with provisions of
ESI Act. It was further pleaded that SSO inspected the premises of the
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hospital on 17.05.2013 and found 10 employees employed through Gajraj
Security Guards Limited and 5 employees through M/s Neelkanth Drugs
Private Limited and accordingly site inspection report was prepared which
was countersigned by Dinesh Pahuja marketing and admn, incharge of the
respondent hospital and during the said inspection team led by SSO
followed proper procedure. At that time 27 employees were working under
outsourcing scheme and they were covered under the employment of
respondent hospital it being principal employer and thus, was liable to
deposit the payment of ESI contribution. The other averments of the petition
were denied and it was pleaded that the petition be dismissed.
4. From the pleadings of the party, the following issues were
framed by ESI Court:-
1. Whether the order for recovery of Rs.1,68,833/- from the petitioner
is illegal on the grounds as mentioned in the petition? OPP
2. Whether the petition of the petitioner is not maintainable? OPR
3. Whether the petitioner has no cause of action to file this petition?
OPR
4. Relief.
5. The counsel for the petitioner examined PW-1 Balraj Kumar
and PW-2 Dr. Divya, Kirti Ahuja, General Physician who was competent
and authorized person appointed on behalf of respondent. The respondent
also produced documents Ex.P-1 to Ex.P-31 which also includes lists of
employees, copy of visit note. On the other hand, the petitioners examined
DW-1 M.K. Garg, Assistant Director Regional Office, ESIC, Faridabad
(since retired) and DW-2 Harinder Kumar Sethi, Helper and also produced
documents Ex.R-1 to Ex.R-14 which also includes preliminary inspection
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report and inspection cum observation report.
6. After hearing the counsel for the parties, the ESI Court allowed
the petition while holding that the visiting team of ESIC, Bhiwani failed to
comply with the guidelines/instructions Ex.P-30 issued by the department
for survey of coverage under ESI scheme.
7. The petitioners being aggrieved by the impugned judgment
passed by ESI Court dated 22.08.2023 have filed the present appeal.
8. I have heard the counsel for the petitioners.
9. The counsel for the petitioners inter alia contends that evidence
available on the record shows that the team of ESIC visited the respondent
hospital and at the time of said inspection the workers M/s Krishna Facility
Management Services were found working there and Dinesh Pahuja the
concerned officer admitted this fact. It is further contended that Dinesh
Pahuja admitted the list of employees Ex.R-4 and signed the same. It is
further contended that the inspection team during its visit followed the
proper guidelines and instructions and the demand raised by the petitioners
vide order dated 06.07.2016 is valid and legal. It is further contended that
the impugned judgment is liable to be set aside.
10. I have considered the submissions made by counsel for the
petitioners.
11. The ESI Court while taking into consideration the
guidelines/instructions Ex.P-30 regarding survey for coverage under ESI
scheme, rightly pointed out that the visiting team of ESIC, Bhiwani did not
mention the name, father's name and native place of employees, length of
their service and further did not take signatures/thumb impressions of the
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alleged 10 employees as shown in Ex.R-4 and thus, violated the aforesaid
guidelines/instructions which requires the inspection team of ESIC to note
down the complete details of the concerned employee including their
parentage, designation, date of appointment, monthly wages and average
monthly days of work etc. with the signatures of the concerned employees
and authentication of the employer. Further, the ESI Court rightly observed
that Dinesh Pahuja was not authorized person appointed by the respondent
and rather PW-2 Dr. Divya Kirti Ahuja was the competent person
authorized on behalf of respondent vide power of attorney Ex.PW-2/B and
her signatures were not taken on any of the inspection documents prepared
by the inspection team. Further the ESI Court rightly concluded that Dinesh
Pahuja, appointed as Manager Marketing vide appointment letter Ex.P-2
was not authorized to make any statement or put any signatures on behalf of
the respondent and thus, rightly disbelieved the alleged admission made by
him on behalf of the respondent regarding number of employees available at
the time of the inspection by team of ESIC as he was having no authority to
make any such statement.
12. In light of the above, this Court is of the view that there is no
illegality or infirmity in the impugned judgment of the ESI Court. So no
ground for interference is made out in the matter.
13. Consequently, the present appeal is hereby dismissed in limine,
being devoid of merits.
08.12.2023 (KARAMJIT SINGH)
Yogesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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