Dismissed

Deputy Director E.S.I. Corporation and Another v. M/S Modern Locks Manufacturing Co. Aligarh

Allahabad HC10 Jul 2018FAFO/1636/2017

Case brief

AI extract

What is this about?

This is a first appeal against a Section 75(G) order granting exemption from insurance contributions. The court held that no appeal lies against a pre-hearing notice under Section 45(AA) but affirmed the Tribunal's power to waive the deposit requirement when the establishment lacked prima facie coverage under the Act.

What did the court decide?

Appeal rejected; exemption order of the Tribunal is affirmed.

Deputy Director E.S.I. Corporation and… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 26

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Case :- FIRST APPEAL FROM ORDER No. - 1636 of 2017 Appellant :- Deputy Director, E.S.I. Corporation & Another Respondent :- M/S Modern Locks Manufacturing Co., Aligarh Counsel for Appellant :- Vipul Kumar Counsel for Respondent :- Vishnu Pratap,Vishwjit

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the appellants and Sri Vishwjit for respondent.

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This first appeal from order is directed against the order of Prescribed Authority, Employees' State Insurance Tribunal/ Civil Judge (Sr. Div.), Aligarh in Misc. Case No. 62 of 2012 instituted by the respondent herein under Section 75(G) of the Employees' State Insurance Act, 1948 (hereinafter to be referred as 'Act, 1948').

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The case has been instituted against the notice issued by the insurance corporation created under the Act, 1948 for an amount within 30 days towards insurance of the employees working with the establishment.

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The Tribunal, while considering and entertaining the application for disposal also entertained an application as per the proviso 2(D) of Section 75 of the Act, 1948, wherein there is a power to exempt the applicant from payment of any dues towards the insurance contribution and then granted exemption from payment under the order impugned herein this appeal.

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The argument advanced on behalf of the appellant is that there is an alternative remedy of appeal available to the respondents under Section 45(AA) of the Act, 1948 against the direction issued for the payment of contribution towards insurance amount. The second argument is that the Tribunal has failed to record any cogent and convincing reason while allowing the application for exemption under the order impugned.

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Per contra the argument advanced by learned counsel for the respondent is that the case under Section 75(G) was instituted only against a notice and not an order and therefore, there would not lie an appeal in this matter. According to him, Section 45(AA) of the Act, 1948 confers statutory right to appeal only in those cases where orders have been passed for payment. He has taken the Court to Section 45(AA) of the Act, 1948 wherein there is specific provision for direction/ order to be passed by authorities of the corporation to the employer for

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depositing the contribution towards insurance, but there is further proviso that any order shall be passed only after giving opportunity of hearing to the employer. In the instant case, according to him it was a notice which was given to him whereby, opportunity of hearing was being offered to the employee and, therefore, at this stage there was no right to appeal conferred. According to him right to appeal is a statutory right and unless and until there is specific provision providing for an appeal against specific order there cannot be a right to appeal.

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Under the circumstances, according to him, the argument advanced by learned counsel for the appellants that there was an alternative remedy of appeal is baseless. The second argument raised by the learned counsel for the respondent is that the court has recorded cogent and convincing reasons while while granting exemption and as per proviso to sub Section 2-B of Section 75 of the Act, 1948, the power vests with the Tribunal to grant exemption.

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The rival submissions fall for consideration.

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Looking to the provisions of Act, 1948, I find that under Section 45-A of the Act, the authorities created under the statute have right to pass an order against the factories and establishment in cases if returns have not been filed, but at the same time, there is proviso also to the effect that any order required to be passed under the aforesaid section, then opportunity of hearing has to be offered to an employer. Section 45-A runs as under:

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" 45A. Determination of contributions in certain cases. (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Social Security Officer or other official of the Corporation referred to in sub-section (2) of section 45 is prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment;

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[Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard.]

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[Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contribution shall become payable.]

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(2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for

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recovery of the amount determined by such order as an arrear of land revenue under section 45B [or the recovery under section 45C to section 45-I].

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Section 45-AA of the Act, 1948 provides for an appeal to be preferred before the appellate authority. Section 45-AA runs as under:

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" 45-AA . Appellate Authority.-- If an employer is not satisfied with the order referred to in Section 45-A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent, of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the Corporation."

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From the bare perusal of two provisos and in the conjoint reading of two provisions, it comes out very clearly that right to appeal has been given under the statute only in respect of the orders that have been passed by the authorities created under the statute for issuing direction for payment of such returns and contribution of the insurance as are required under the law. There is no right to appeal created under the statute in respect of interlocutory stage where only notices are issued to the employer offering opportunity of hearing and therefore, I find force in the argument advanced by counsel for the respondent that alternative remedy of appeal as being argued by counsel for appellants, is not at all available to him, against the notice in respect of which the proceedings under Section 75-G of the Act, 1948 have been initiated.

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Coming to the second argument raised by counsel for the appellants that Tribunal was not justified in granting exemption for deposit, I find that section 75-G of the Act, 1948 provides for such disputes to be resolved by the Tribunal created under the Act under Section 74 of the Act, 1948 between the employer and corporation relating to the contribution or benefit or other dues payable or recoverable under the Act. Section 75 of the Act, 1948 reads as under:

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"75. Matters to be decided by Employees' Insurance Court.- (1) If any question or dispute arises as to--

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(a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution, or

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(b) the rate of wages or average daily wages of an employee for the purposes of this Act, or

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(c) the rate of contribution payable by a principal employer in respect of any employee, or

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(d) the person who is or was the principal employer in respect of any

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employee, or

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(e) the right of any person to any benefit and as to the amount and duration thereof, or

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[(ee) any direction issued by the Corporation under section 55A on a review of any payment of dependants' benefits, or]

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(f) [Omitted], or

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(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer in respect of any contribution or benefit or other dues payable or recoverable under this Act [or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act],

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such question or dispute [subject to the provisions of sub-section (2A)] shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act.

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(2) [Subject to the provisions of sub-section (2A), the following claims] shall be decided by the Employees' Insurance Court, namely:--

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(a) claim for the recovery of contributions from the principal employer;

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(b) claim by a principal employer to recover contributions from any immediate employer;

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(c) [Omitted];

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(d) claim against a principal employer under section 68;

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(e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and

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(f) any claim for the recovery of any benefit admissible under this Act.

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[(2A) If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance Court under sub-section (2) of section 54A in which case the Employees' Insurance Court may itself determine all the issues arising before it.]

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[(2B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due

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from him as claimed by the Corporation:

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Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this subsection.]

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(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by [a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court]."

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From bare perusal of very heading of Section 75 of the Act, 1948 it is clear that there are matters which have been enumerated to be decided by Employees' Insurance Court and since the respondent has disputed the liability to make any contribution towards the employees insurance under the Act, 1948, as his establishment is not a factory within the meaning of Section 2(12) of the definition clause, the dispute was valid one and rightly raised under Section 75-G of the Act, 1948.

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Once the plaint has been filed before the insurance Tribunal disputing the notice issued by the authority of Corporation, it was rightly entertained. It is not disputed by the counsel for the appellants that the application was not entertainable as far as dispute in question is concerned. Now coming to the question of granting exemption, I find that Section 75(2-B) proviso, clearly provides for such exemption by way of waiver clause in the form of proviso Section 75(2-B) reads as under:

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"75 [(2B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation:

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Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this subsection.]"

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From the above proviso, it is quite explicit that Tribunal has absolute authority to grant exemption if it finds it to be valid one and a prima-facie case is made out by the employer. Thus, discretion to waive the condition to deposit the amount is very much available to the Tribunal.

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In the instant case, I find that once the employer has come up with a case that it is neither any establishment nor a factory to be covered under the Act, 1948, it has come up with a prima facie case to question the notice and so mere issuance of notice, there was no question of the appellants compulsorily depositing any amount at that stage and, therefore, the balance of convenience lay in favour of respondent. As far as irreparable

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loss is concerned, the question of depositing, which if ultimately liability would not have found to be incurred to favour the employer, then such an amount if kept in a sundry account of the Corporation without any utilization, will further result in loss of interest to the respondent.

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In view of the above, I do not find any merit in appeal and appeal is accordingly rejected .

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Order Date :- 10.7.2018/IrfanUddin

Deputy Director E.S.I. Corporation and Another v. M/S Modern Locks Manufacturing Co. Aligarh

Case brief

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Deputy Director E.S.I. Corporation and Another v. M/S Modern Locks Manufacturing Co. Aligarh

Case brief

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What did the court decide?

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