Allowed

Maa Kalyaneshwari Misthan Bhandar through Its Proprietor Asta Bihari Mudi v. the Employees State Insurance Corporation

Jharkhand HC20 Jun 2019WPC/247/2019

Case brief

AI extract

What is this about?

High Court at Ranchi allowed a writ petition quashing the Labour Court's order rejecting the petitioner's belated application to produce an attendance-cum-payment register. The Court held that under the beneficial ESI Act, delay does not bar production if the document is necessary for proper adjudication. It directed the petitioner to produce the document within a week and the Labour Court to disp

What did the court decide?

Writ petition allowed; impugned order of Labour Court quashed; direction to petitioner to produce attendance-cum-payment register within one week; direction to Labour Court to decide on merits within

Maa Kalyaneshwari Misthan Bhandar through Its… — Service and Employment | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.247 of 2019

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Maa Kalyaneshari Misthan Bhandar

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Asta Bihari Mudi ……… Petitioners

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Versus

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The State of Jharkhand

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The Employees State Insurance Corporation, Namkum, Ranchi

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The Regional Director, Employees State Insurance Corporation, Regional Office, Namkum, Ranchi

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The Dy. Director (Recovery), Employees State Insurance Corporation, Namkum, Ranchi

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The Branch Manager, Employees State Insurance Corporation, Namkum ………. Respondents

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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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--------For the Petitioner : Mr. Mahesh Tiwari, Advocate For the State : A.C. to G.P.-VI For the Respondents : Mr. Ashutosh Anand, Advocate ---

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07/20.06.2019 The writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 04.12.2018 as contained under annexure-10 passed by the Presiding Officer, Labour Court at Dhanbad, by which the petition filed by the petitioner dated 22.06.2018 seeking leave to produce all the genuine documents such as attendance-cum-payment register of the employer of the petitioner and marked it as exhibit, has been rejected.

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2. It is the case of the petitioner that a case under Section 75(1)(g) of the Employees State Insurance Act, 1948 has been filed being registered as E.S.I. Case No.2/2013 for quashing the notice dated 29.11.2012, whereby and whereunder, the petitioner was directed to deposit Rs.4,40,726/- towards contribution under Section 45(c) to 45(i) of the Act, plus amount of interest 12 per cent per annum calculating on the amount @ 104.02 per day w.e.f. 29.11.2012 to the date of recovery and further to quash the notice of demand dated 30.11.2012 which was issued by the respondents for recovery from the said amount.

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3. The petitioner has filed appropriate application and questioned the demand for adjudication by the competent authority under the Employees State Insurance Act.

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4. The respondent- E.S.I.C. has appeared and contested the case by taking plea that no infirmity has been committed in adjudicating the aforesaid demand.

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5. The evidence has been led and the matter has been posted for argument and at that juncture a petition has been filed by the petitioner on 22.06.2018 (annexure-9) seeking leave of the Court to produce all the genuine documents such as attendance-cum-payment register of the employer of the petitioner and marked it as exhibit through P.W.-1.

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The said application has been objected by the E.S.I.C. authority and the Labour Court has passed the order on 04.12.2018 by which the petition dated 22.06.2018 has been rejected and the case has been posted for argument.

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The aforesaid order has been assailed by the petitioner on the ground that the document which has been sought to be a part of the record which is relevant for the purpose of proper adjudication as because it is from the said attendance-cum-payment register, the finding recorded by the competent authority of the Employees State Insurance Corporation, can be ascertained as to whether the petitioner is liable to pay the said amount and also to assess the legality and propriety, the determination of the quantum which is the subject matter of the dispute.

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6. The reason has been stated in the said petition of not bringing the said documents at the earliest stage by making submission to the effect at paragraph-3 of the said petition by stating that those documents are kept in another old wooden box in the said sweet shop of the applicant and therefore, the same could not have been filed earlier due to lack of knowledge and sheer in-advertence.

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The Labour Court has not appreciated these aspects of the matter more particularly the relevancy of the documents and only gone into the fact that in spite of the repeated opportunity granted to the petitioner, no such document has been filed and as such, at such

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belated stage, the same is not fit to be accepted thereby, the submission has been made that the document, according to the petitioner is required to be assessed by the Labour Court and therefore, the Court ought to have been taken liberal approach instead of technical approach, the ground of delay.

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7. Mr. Ashutosh Anand, learned counsel appearing for the Respondent-E.S.I.C., has submitted that the said petition has been filed by the petitioner only to delay the entire proceeding since the Labour Court has granted ample opportunity to produce the attendance-cumpayment register but not have been brought and when the dispute has reached to the stage of the argument, the petition has been filed which is nothing but to delay the entire proceeding, consequence would be that fruits of the enactment of the Act of the E.S.I. would not reach to the people for which the Act has been enacted.

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He has relied upon the Bihar Employees Insurance Courts Rules, 1952, wherein under Chapter-II, there is procedure and execution of orders and process has been provided under Rule 14 which provides that the party is willing to rely upon the document, the same is to be appended to the said application or if not appended to the application, it is to be produced at or before the first hearing. However, if the documents have not been produced as per the provision of sub-rule (1) or (2), the document can be produced with the permission of the Court, for its consideration.

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According to him, the petitioner has not annexed the documents i.e., attendance-cum-payment register along with the application or even not sought to produce before the date of first hearing and as such, the said documents have rightly not been considered to be accepted by this Court, hence suffer from infirmity. He has also disputed the veracity of the document.

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8. Having heard the learned counsel for the parties and on appreciating their rival submissions, it is evident from the material available on record that a dispute has been raised by the petitioner/establishment against the demand made by the E.S.I.C.

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9. It is the admitted case of the petitioner that at the time of making application, raising objection with respect to the said demand,

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the attendance-cum-payment register has not been appended to the said application or even the said application has not been sought to be brought before the first date of hearing.

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The matter has proceeded and reached to the stage of argument at that stage, the petitioner has filed a petition on 22.06.2018, seeking leave of the Court to allow him to produce the attendance-cumpayment register for its appreciation before reaching to the conclusion with respect to the legality and propriety of the demand raised by the E.S.I.C. in exercise of power conferred under Section 45(A) of the Employees’ State Insurance Act, 1948.

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10. This Court after hearing the learned counsel for the parties has gathered that the sole question which is to be answered by this Court as to whether any document if not submitted by person aggrieved against the demand along with any application or before the first date of hearing, can it be accepted in the later stage, herein at the stage of argument.

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It is not in dispute that the Employees’ State Insurance Act is beneficial legislation and has been enacted in order to provide the benefit to person concerned who are the members of the Employees State Insurance.

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Against the petitioner/establishment, proceeding under Section 45(A) of the Employees State Insurance Act initiated and upon appearance, liability of demand has been casted upon the petitioner against which, an objection has been raised to the concerned Labour Court having its jurisdiction in which the authorities of the E.S.I.C. has put his appearance and contested the case and at the time of argument, the attendance-cum-payment register has sought to be incorporated.

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11. It is not in dispute that the E.S.I.C. for the purpose of following the process to act in pursuance to the Employees State Insurance Act, 1948, the Bihar Employees Insurance Courts Rules, 1952 has been notified on 22.11.1952 whereby and whereunder, the Employees Insurance Courts have been constituted and the procedure has been laid down therein.

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The said rules contains the procedure and execution of orders under Chapter-II, wherein Rule 13 provides that the application under Section 75 of the Act, 1948 shall be instituted by the presentation of an application to the Court and with respect to the production of the documents, a provision has been made under Rule 14 which reads as hereunder:-

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“14. Production of documents.- (1) When any application is based upon a document, the document shall be appended to the application.

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(2) Any other document which any party desires to tender in evidence shall be produced at or before the first hearing.

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(3) Any document which is not produced at or within the time specified in sub-rule (1) (2), as the case may be, shall not, without the permission of the Court, be admissible in evidence on behalf of the party who should have produced it.

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(4) All such documents shall be accompanied by an accurate list thereof prepared in the manner prescribed in Form 2.

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(5) Nothing in this Rule shall apply to any document which is produced for the purpose of cross-examining a witness or is handed to a witness to refresh the memory.”

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12. It is evident from the provision of Rule 14 that the document is required to be filed along with the application as would be evident from sub-rule (1) while sub-rule (2) provides that if the document has not been filed along with the application, such document which any party desires to tender in evidence shall be produced at or before the first hearing while sub-rule (3) provides that if any document which is not produced at or within the time specified in sub-rule (1) or (2), as the case may be, shall not, without the permission of the Court, be admissible in evidence on behalf of the party who should have produced it.

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Thus, it is evident that sub-rule (3) of Rule 14 stipulates a provision that in case any document has not been submitted along with the application at or before the first date of hearing, the same can be admissible evidence with the permission of the Court, meaning thereby, there is no bar in accepting the document but save and except with the leave of the Court.

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13. In the light of this legal provision, the factual aspect as has been pleaded in the writ petition has been examined by this Court wherefrom, it is evident that the Court has granted ample opportunity

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to produce attendance-cum-payment register but one reason or the other, the said documents could not have been produced save and except by making a petition on 22.06.2018 and at that time, the proceeding has reached to the stage of argument.

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14. The provision of Section 75 of the Act, 1948 under which the Court is now proceeding which contains a provision about the decision of matters to be decided by the Employees’ Insurance Court.

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Sub Section (1)(g) provides that in a case of 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, such question or dispute shall be decided by the Employees’ Insurance Court in accordance with the provision of this Act.

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15. The said provision provides a provision of adjudication of the dispute and when the purpose of the said provision is of adjudication, adjudication is to be made by appreciating all the documents. Herein, although delay is there on the part of the petitioner but the reason has been explained in the application dated 22.06.2018 to the effect that the said document was in old wooden box about which the petitioner was having no knowledge and at that moment when he came to know about the same, a petition has been filed, since the delay has been explained by the petitioner and if such document is necessary for its scrutiny by the Court in exercise of power of adjudication, therefore, the document is to be looked into by the concerned Court otherwise it will not said to be proper adjudication.

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It has no-where stated by the Court that said document is not necessary or proper for adjudication save and except the ground of delay, meaning thereby, the technical approach has been taken by the Court.

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16. Section 75 of the Act, 1948 deals with the provision for adjudication of the issue which means that the Court is fact finding and after the order passed by the Court under Section 75 of the Act, the appeal will lie under Section 82 of the said Act before the High

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Court and it is not in dispute that the appeal would be considered in the light of the finding recorded basing upon the document produced before the original Court and therefore, the order impugned is allowed to sustain the prejudice will be caused to the party.

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17. In view thereof, the order impugned is not sustainable, accordingly, quashed.

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18. In the result, the writ petition is allowed.

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Since it is evident from the impugned order dated 04.12.2018, the ample opportunity has been given to the petitioner but the same has not been availed and keeping the intent and aim of the Act into consideration which is for benefit of the Section of the Society, it would be relevant to direct the petitioner to produce the document within a week from the date of receipt of copy of the order.

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19. The trial Court will proceed in accordance with law upon such document.

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20. Since the case is of the year 2013, therefore, the Labour Court is directed to dispose of the appeal within a period of three months’ thereafter on its own merit.

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21. Needless to say that the Labour Court will pass an order in accordance with law with the document which is lying before it by way of exhibit without being prejudiced by the order passed by this Court.

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(Sujit Narayan Prasad, J.)

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Rohit/-

Maa Kalyaneshwari Misthan Bhandar through Its Proprietor Asta Bihari Mudi v. the Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

Maa Kalyaneshwari Misthan Bhandar through Its Proprietor Asta Bihari Mudi v. the Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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