Dismissed

The Regional Director, Esi Corporation v. M/S. Divya Exports Enterprises

Kerala HC5 Jun 2014Ins.APP/4/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against the Employees Insurance Court's judgment declaring a contribution notice illegal. The Court found the impugned judgment sustainable, noting the lower court did not find illegality in the Corporation's proceedings.

What did the court decide?

The insurance appeal is dismissed, though appellants can pursue proceedings if legally entitled.

The Regional Director, Esi Corporation Vs… — Pension and Retirement Benefits | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936

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Ins.APP.No. 4 of 2013 ()

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AGAINST THE JUDGMENT IN IC 5/2008 of EMPLOYEES INSURANCE COURT, ALAPPUZHA DATED 16-07-2012

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APPELLANTS/RESPONDENTS:

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THE REGIONAL DIRECTOR,

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EMPLOYEES STATE INSURANCE CORPORATION

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REGIONAL OFFICE, NORTH SWARAJ ROUND, THRISSUR.

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THE DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION

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NORTH SWARAJ ROUND, THRISSUR

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THE RECOVERY OFFICER, EMPLOYEES STATE INSURANCE CORPORATION

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REGIONAL OFFICE, NORTH SWARAJ ROUND, THRISSUR

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BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN.

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RESPONDENT/APPLICANT:

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M/S. DIVYA EXPORTS ENTERPRISES, ERUVA POST,

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KAYAMKULAM, ALAPPUZHA DISTRICT REPRESENTED BY ITS PROPRIETOR SRI.P.GOPALAKRISHNA PILLAI ERUVA PO, PIN 690 572.

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BY ADV. SRI.GEORGE JACOB (JOSE)

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THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Ins. Appeal No.4 of 2013 A

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Dated this the 5^th day of June, 2014

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Aggrieved by judgment dated 16.07.2012 passed

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by the Employees' Insurance Court, Alappuzha, the

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respondents therein have come up in appeal. The respondent herein is a cashew factory at Eruva, Kayamkulam.

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The case of the appellants is that there was a short fall in the payment of contribution for a particular period, amounts to ₹61,352/- by the respondent herein. Consequently, they have issued Ext.A4 notice dated 26.09.2007 claiming the said balance contribution. The respondent approached the court below alleging that Ext.A4 as such was not legally sustainable. The E.I. Court, after perusing the documentary evidence produced by either

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Ins. Appl.4/2013

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: 2 :

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side, has come to the conclusion that Ext.A4 is illegal and unsustainable. Consequently, it was found that all the steps taken by the appellants were legally unsustainable.

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Heard the learned counsel for the appellants Smt.T.D.Rajalakshmi and learned counsel for the respondent Sri.George Jacob.

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The learned counsel for the respondent has pointed out that the appellants have made an assessment of contribution in the case merely based on some surmises and conjectures without caring to arrive at the actuals. It is the specific case of the respondent that the Corporation has made the assessment without verifying any of the account books and even without having recourse to the provisions of Section 45(a) of the Employees State Insurance Act, 1948 (hereinafter referred to as “ESI Act”). It has been fairly conceded by the learned counsel for the appellants that there was procedural lapse on the part of the Corporation in making the assessment in the particular case, because of

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Ins. Appl.4/2013

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: 3 :

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the lapse from the part of some of the employees of the Corporation. It has clearly come out that the Corporation has failed to comply with the mandatory provisions contained in Section 45(a) in making the assessment. Ext.A4 itself is self speaking that any of the account books were not verified. It clearly reveals that no opportunity of being heard was extended to the respondent in the matter. It seems that the first proviso to Section 45(a) has given a go by and an assessment was made merely by considering the returns of some other cashew factories.

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It is the case of the appellants that the return filed

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by the respondent was not correct as it did not reflect the actual wages paid to the concerned employees. When it is a cashew factory, it is a known case that the work therein was based on piece rate as it is a seasonal industry depending upon the availability of the raw materials. Wages were being paid on the actual output of the individual employees. In such case, instead of making an assessment

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Ins. Appl.4/2013

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: 4 :

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by perusing the books of accounts as well as by taking evidence, the Corporation has arrived at a conclusion that an average payment at the rate of ₹62.43 was only made by the respondent. The Corporation has picked out in random, the average payments allegedly made by 2-3 other cashew factories and they came to the conclusion that in such factories, an amount of ₹85.93 was the average daily payment. Without making any further enquiry, the Corporation has gone to the extent of concluding that a daily payment ought to have been made by the respondent at the rate of ₹90/-.

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The learned counsel for the respondent has pointed out that the aforesaid assessment made by the Corporation based on mere surmises and conjectures without having recourse to the provisions of Section 45(a) and without perusing the account books or making any enquiry is devoid of merit and the same cannot be accepted. On going through the impugned judgment passed by the

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Ins. Appl.4/2013

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: 5 :

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court below, this Court does not find any illegality, irregularity

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or impropriety in the impugned judgment. There is absolutely nothing to interfere with the impugned judgment.

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Finally, the learned counsel for the appellant has sought for an opportunity to have recourse to the entire procedure once again against the respondent. If law permits, of course, there is absolutely nothing to fetter such powers, if any, available to the appellants.

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In the result, this appeal is dismissed. At the same time, the dismissal of this appeal will not stand in the way of the appellants in having recourse to all the procedures once again, if they are entitled to do so, as per law including the period of limitation.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/05/06

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// True Copy //

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PA to Judge

The Regional Director, Esi Corporation v. M/S. Divya Exports Enterprises

Case brief

What is this about?

What did the court decide?

The Regional Director, Esi Corporation v. M/S. Divya Exports Enterprises

Case brief

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What did the court decide?

What the court decided

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