Dismissed

Pt. Ravi Shnker Shukla v. Regional Director and Anr.

Chhattisgarh HC1 Dec 2024MA/61/2012

Case brief

AI extract

What is this about?

Appellant University challenged an order rejecting its claim that its printing press was not a 'factory' covered under the ESI Act. The High Court dissected the definition of 'factory' and employee count, relying on Supreme Court precedent to dismiss the appeal.

What the court decided

AI extract

Pt. Ravi Shnker Shukla Vs Regional Director and… — Service and Employment | Chhattisgarh HC (2024)

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2024:CGHC:47416

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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MA No. 61 of 2012

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Pt. Ravi Shanker Shukla Vishwavidyalaya, through its Registrar, Pt. Ravi Shanker Shukla Vishwavidyalaya, G.E. Road Raipur (CG) ... Appellant

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Digitally signed by PRAVEEN KUMAR SINHA

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versus

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Regional Director, Regional Office, Employees State Insurance Corporation, 18 South Avenue, Choubey Colony, Raipur CG

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Recovery Officer, R.O.E.S.I. Corporation, 18 South Avenue, Choubey Colony, Raipur CG

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... Respondents

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For Appellant : Mr. Neeraj Choubey, Advocate For Respondents : Mr. Pranav Saxena, Advocate appears on behalf of Mr. Pradeep Saxena, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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Order On Board

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02/12/2024

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This Miscellaneous Appeal is filed under Section 82 of the Employees’ State Insurance Act, 1948 (hereinafter referred to as “ Act of 1948 ”) challenging the legality and sustainability of the judgment dated 13.04.2012 passed by Judge, Employees State Insurance, Labour Court No.2 Raipur in Case No.98/2007/E.S.I Act/New Case No.142/2012/ESI Act whereby claim filed by the appellant/University under Section 75 read with Section 76 of

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the Act of 1948 was rejected.

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Perusal of order sheet dated 31.10.2012 would show that the appeal was admitted for hearing. However, no substantial question of law was framed. Even in the memorandum of appeal the appellant has not proposed any substantial question of law for consideration of this Court.

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Under Section 82 (2) of the Act of 1948 it is provided that “an appeal shall lie to the High Court from an order of an Employees’ Insurance Court if it involves a substantial question of law.”

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As the substantial question of law has not been framed, this Court is considering this appeal on admission.

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Facts relevant for disposal of this appeal are that the appellant is a University wherein one Printing Press is also established. Officials of respondent inspected the Printing Press established within the premises of the appellant- University on 21.06.2001 and found that on the date of inspection, 11 persons were employed. Thereafter, printing press of the appellant was covered under the Act of 1948 and Coverage Letter was issued on 06.09.2001. Thereafter, assessment of the amount has been made and on 12.07.2005 demand notice was issued to the appellant for recovery of sum of Rs. 1,29,445/- for the period from 21.06.2001 till 30.06.2005. On 23.08.2006 another demand notice was issued for recovery of the amount of Rs.38,342/- for the period from 01.07.2005 till 31.07.2006. As the

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aforementioned amount has not been paid, as per the letter of Recovery Officer of the respondent addressed to the Bank, transaction in the bank account of the appellant/University was prohibited and restrained and it was again made operative only when the appellant/University deposited the amount of Rs. 2,37,848/- (Rs.1,29,445 + Rs.38,342 + interest). The appellant thereafter has filed the claim under Section 75 read with Section 76 of the Act of 1948 seeking relief of declaration that the Act of 1948 is not applicable to the University, proceeding initiated against the appellant be quashed and further the relief that the amount of Rs.2,37,848/- be returned back from the respondents as also damage of Rs.50,000/- on the ground pleaded therein.

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Respondents submitted reply to the claim of appellant, denied the pleading that Printing Press established in the University is not covered under the Factory Act, 1948 and further pleaded that Printing Press is well within the ambit of definition of “Factory” under Section 2 (m) of the Factory Act as well as under Section 2 (12) of the Act of 1948, hence, Act is applicable. Before coverage and demand notice, proper opportunity to the appellant was afforded. It is further denied that applicant does not come within the scope of Act 1948.

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Learned Judge under the Act of 1948 based on the pleadings made by respective parties has formulated three issues for consideration and upon appreciation of documentary and oral evidence brought on record has rejected the claim of the

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appellant.

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Learned counsel for the appellant/University submits that learned Judge under the Act of 1948 fell into error in not taking note of the fact that the appellant being University is not covered under the Act of 1948. He also referred to notification Annexure P-4 C dated 27^th October 2005 to contend that the educational institutions (including private, aided or partially aided) were included under the Act of 1948 only with effect from 01.04.2006. The inspection based upon the proceedings were initiated against the appellant under the Act of 1948 is of 21.06.2001 and on the said date appellant was not covered under the Act of 1948. He next contended that the respondents could not prove by admissible piece of evidence that on the date of inspection more than 10 persons i.e. 11 were employed in the printing press established within the appellant/University. There is admission in the evidence of NAW-1 that he has not taken signature of the employees employed on the date of inspection and further that Act of 1948 is not applicable according to Ex.P1. He contended that in the aforementioned facts of the case finding recorded by the Judge under the Act of 1948 is perverse.

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Learned counsel for the respondents opposes the submission of learned counsel for the appellant and would submit that inspection was carried out on 21.06.2001 and according to definition of “factory” as prevailing on the date of inspection, only mentions where ten or more persons are employed or were

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employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, is covered within the definition of “factory”. Running a Printing Press is a manufacturing process and therefore Printing Press though established within the University is covered within the definition of “factory”. He also contended that issue of Printing Press covered under the Act of 1948 running within the University has been considered by Hon’ble Supreme Court in the case of Osmania University Vs. Regional Director, Employees State Insurance Corporation, Andhra Pradesh and Ors . (1985) 4 SCC 514 wherein Hon’ble Supreme Court observed that department therein is engaged in carrying on a ‘manufacturing process’ in the printing of text books, journals, forms and other items of stationery and held that department in question is a ‘factory’ within the meaning of the said expression as defined in Section 2 (12) of the Act of 1948. He next contended that submission of learned counsel for the appellant based on the evidence of NAW-1 in view of the specific provision and definition of “factory” under the Act of 1948 would not be much relevant. He also contended that with respect to number of employees employed on the date of inspection is certified by the employer in the specified ‘Form’. The employment of 11 persons on the date of inspection is provided under the signature of employee of appellant and, therefore, submission of learned counsel for the appellant that number of employees employed on the date of inspection is not proved by

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cogent and reliable piece of evidence is also not sustainable in the light of document Ex.D-2. He contended that document is not disputed or controverted by appellant in the evidence.

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10.I have learned counsel for the parties and also perused the documents available on record.

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So far as the first ground raised by learned counsel for the appellant that appellant being a University is not covered under the Act of 1948 is concerned, it is not in dispute that the premises/department which is inspected by the respondent on 21.06.2001 is a Printing Press running within the campus /premise of the appellant-University. The work of printing with the use of power is also not disputed. As the inspection of the department/Printing Press was carried in the year 2001 therefore unamended provision of Section 2 (12) of the Act of 1948 will be applicable, which is extracted below for ready reference :-

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“2. Definitions- In this Act, unless there is

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anything repugnant in the subject or context-

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(12) “factory” means any premises including the precincts thereof-

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(a) whereon then or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on , or

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(b) whereon twenty or more

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persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does not include a mine, subject to the operation of Mines Act, 1952 (35 of 1952) or a railway running shed. ”

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12.The definition of factory came to be amended w.e.f. 01.06.2010. Bare perusal of the aforementioned definition would show that it is specifically provided that where ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, to be covered within the definition of “Factory”.

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13.During course of recording of evidence NAW-1 exhibited Ex.D1C which is inspection report dated 21.06.2001. Ex.D 2-C is the information supplied by the employer to the Insurance Inspector under the provision of Section 44 (2) and 45 (2) of the Act of 1948 with respect to department where the inspection was conducted, nature of work, the date on which department started and the number of employees employed on the date of inspection. It is issued under the seal and signature of Incharge University Printing Laboratory and Printing Press. As the said information is under the seal and signature of the person employed by the appellant/University unless and until said document is disputed and controverted by cogent piece of evidence that, it has not been issued or executed by the said

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employee whose seal and signature is there, it cannot be said to be inadmissible in evidence. It is to be read in evidence as it is . From aforementioned document Ex.D 2-C it is clear that the department name is mentioned as University Printing Laboratory and Printing Press and the nature of work is printing and publication and also number of employees to be 11.

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14.With regard to submission of learned counsel for the appellant/University that there is no proof of employment of 11 persons on the date of inspection as there are no signatures of the employees employed on the date of inspection i.e. 21.06.2001 is also not acceptable in view of the document Ex.D 2-C which is under the signature of employee of the appellant and the said document is not controverted and refuted by any admissible piece of evidence by the appellant in his evidence. Therefore, finding recorded by learned Judge under the Act of 1948 that on the date of inspection 11 employees were employed cannot be said to be perverse based on the evidence available on record.

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15.Issue with regard to printing press established within the University will fall within the ambit of Section 2 (12) of the Act of 1948 was considered by Hon’ble Supreme Court in the case of Osmania University (supra) wherein it was held as under:-

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“2. Clause ( k ) of Section 2 of the Factories Act defines the expression “manufacturing process”. For the purposes of this case we need refer to only sub-clause ( i ) of the said definition clause. That sub-clause stages that

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manufacturing process means any process for “making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal”

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3. In the connected appeal — C.A. No. 204 of 1973 filed by the same appellant, we had occasion to consider whether the Department of Publications and Press run by the University is liable for coverage under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 together with Schemes and notifications. In our judgment in that appeal we have taken the view that the said department is engaged in carrying on a “manufacturing process” in the printing of text books, journals, forms and other items of stationery. The definition of “manufacturing process” contained in Section 2( i-c ) of the Employees' Provident Funds and Miscellaneous Provisions Act is identical in all respects with that contained in Section 2( k )( i ) of the Factories Act.

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4. In the light of the aforesaid conclusion recorded by us in C.A. No. 204 of 1973 it must be held that the department in question is a “factory” within the meaning of the said expression as defined in Section 2(12) of the Act. The judgment under appeal does not, therefore, call for any interference. ”

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16.Ground raised by learned counsel for the appellant that Printing Press established within the University is not included under the

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Act of 1948, in view of aforementioned facts, evidence available in record and decision of Hon’ble Supreme Court in case of Osmania University (supra), is not sustainable. Accordingly it is repelled.

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17.For the forgoing discussions, I do not find any merit in this appeal. No substantial question of law is involved. Accordingly, the appeal is dismissed at the admission stage.

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Sd/----/-/- (Parth Prateem Sahu) Judge

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Praveen

Pt. Ravi Shnker Shukla v. Regional Director and Anr.

Case brief

What is this about?

What the court decided

Pt. Ravi Shnker Shukla v. Regional Director and Anr.

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