The Esi Corporation vs M/S.Indian Mineral Exports
2022 Latest Caselaw 3159 Tel

         THE HONOURABLE SRI JUSTICE M.LAXMAN

     CIVIL MISCELLANEOUS APPEAL No.3804 OF 2003

JUDGMENT:

1. The present appeal assails the order dated 21.01.2002

in E.S.I. O.P. No.97 of 1999 on the file of the Court of the

Senior Civil Judge, Nellore (for short, the trial Court),

wherein and whereby the order dated 01.10.1999 passed by

the first respondent under Section 45-A of the Employees'

State Insurance Act, 1948 (for short, the Act), fixing the

liability of the appellant for payment of Rs.12,781/-, was set

aside.

2. The brief facts leading to the present litigation are that

the respondent herein is a proprietory concern involved in

the activity of grinding Mica Ore. While so, an inspection

was conducted by the officials of the appellants -

Corporation on 09.01.1999 and verified the ledger of the

factory and found that eleven (11) workers were employed in

the factory. The Corporation, by notice dated 12.02.1999,

informed the petitioner that as there were eleven workers

employed in the factory, it is covered under the Act.

Accordingly, the provisional assessment was made for the

period covering from 01.11.1998 to 31.03.1999 and

demanded the respondent to pay Rs.12,781/-. When there 2 ML,J CMA_3804_2003

was no response from the respondent, the first respondent

issued a show cause notice dated 30.07.1999 proposing to

take action under Section 45-A of the Act. After hearing the

respondent, final order under Section 45-A of the Act was

passed on 01.10.1999, determining the liability of the

respondent at Rs.12,781/-. Challenging the same, the

respondent filed E.S.I. O.P. No.97 of 1999 before the trial

Court and the trial Court, by the impugned order, set aside

the order of the first respondent. Aggrieved by the same, the

present appeal is at the instance of the appellants -

Corporation.

3. The main contention of the learned Standing Counsel

for the appellants - Corporation is that the trial Court erred

in not including the casual workers for coverage under the

Act. According to him, the casual workers who are doing

sporadic work are also covered under the Act. In support of

his contention, he relied upon the decision of the Apex Court

in Royal Western India Turf Club Ltd. v. E.S.I. Corpn.1.

    2016 (4) SCC 521
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                                                    CMA_3804_2003

4. Despite service of notice, none appears for the

respondent. Therefore, the matter is taken up for ex parte

hearing and is disposed of on merits.

5. The following substantial question of law falls for

consideration:

"Whether the trial Court is justified in giving a finding that 3 workers, who were engaged for loading and unloading, are not workers covered under the Act and whether such finding suffers from any perversity?"

Findings of substantial question of law:

6. The entire genesis and foundation for the claim of the

appellants - Corporation is Ex.B-1 and the registration form

submitted by the respondent. In Column No.10 of the

registration form of the respondent, it is mentioned that

eight (8) workers were employed for wages and three (3)

coolies were employed for loading and unloading, now and

then. According to the Corporation, the three workers who

claimed to be engaged for loading and unloding are the

casual workers and they do the perennial nature of work,

and therefore, they were to be included for application of the

Act.

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                                                        CMA_3804_2003

7. In this regard, para 13 of the judgment in Royal

Western India Turf Club Ltd's case (supra) is relevant and

the same reads as under:

"13. Mr. Cama, learned senior counsel has pressed into service a decision of this Court in Employees' State Insurance Corpn. v. Premier Clay Products (1994) Supp. 3 SCC 567. In the said case the work itself was of a sporadic nature. The coolies were available for work to others and on the very day worked for several others who also engaged them for loading and unloading of goods. Thus it was held that coolies could not be said to be casual workmen under the ESI Act. The said decision has absolutely no application to the fact situation of the instant case where work is not sporadic in nature. The employees' work for the day of racing which is perennial activity of Royal Turf Club and in view of the provisions of the Act, Rules, Regulations and notification dated 18.9.1978, there is no doubt that such employees are covered and consequently are entitled for benefit of the Act."

8. A reading of the above decision would show that when

the coolies are engaged for loading and unloading, which is a

sporadic nature of work, they cannot be said to be casual

workers.

9. A reading of the order dated 01.10.1999 of the first

respondent would show that the workers engaged by the

respondent were casually referred to as casual workers,

which is contrary to the very endorsement made by the

respondent, basing on which, the entire assessment

proceedings were taken up. As per the endorsement, the 5 ML,J CMA_3804_2003

respondent has not treated the three workers who were

engaged for loading and unloading as causal workers, but

the case of the respondent is that they are coolies engaged

now and then. If such endorsement is there, the decision of

the Apex Court in Royal Western India Turf Club Ltd's

case (supra) squarely covers the facts of the present case.

10. The present appeal was filed only on the ground that

the trial Court, though held that the three workers are

casual workers, erroneously observed that they were not

covered under the Act. I find that the said finding of the

trial Court is contrary to the evidence on record since Ex.B-1

which contains the registration form submitted by the

respondent clearly shows that they were coolies, but not

casual workers engaged for sporadic work of loading and

unloading now and then. Therefore, the trial Court has

committed error in referring the said workers as casual

workers without correctly appreciating the endorsement

under Ex.B-1.

11. The entire case of the appellants - Corporation is

based on the registration form submitted by the respondent.

Such a registration form does not specifically refer to the 6 ML,J CMA_3804_2003

sporadic nature of the work in which the coolies were

engaged, but such endorsement clearly shows that they

were engaged now which only means sporadic work.

Therefore, the said three workers cannot be treated as

casual workers for the purpose of the Act. The trial Court

rightly set aside the notice of the appellants - Corporation

and I see no grounds to interfere with the conclusions of the

trial Court.

12. In the result, the Civil Miscellaneous Appeal is

dismissed, confirming the order dated 21.01.2002 in E.S.I.

O.P. No.97 of 1999 on the file of the Court of the Senior Civil

Judge, Nellore. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand closed.

________________ M.LAXMAN, J Date: 30.06.2022 TJMR