ESI Corporation appealed against a Labour Court order setting aside its contribution assessment on a petrol bunk. The High Court held no substantial question of law was framed or arose under Section 82 and that non-furnishing of the inspection report denied the employer fair opportunity, dismissing the appeal.
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C.M.A.(MD)No.1650 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 21.03.2024
CORAM:
THE HON'BLE MR.JUSTICE P. DHANABAL C.M.A.(MD)No.1650 of 2013
The Joint Regional Director Employees State Insurance Corporation, Sub Regional Office 1-B, Old Post Office Street, Tallakulam, Madurai and 2nd West Street, K.K.Nagar, Madurai- 625 020 .. Appellant/ Respondent
Vs.
L.Subbaiah .. Respondent/Petitioner
Prayer : This Civil Miscellaneous Appeal filed under Section 82 of the E.S.I Act, 1948 against the decree and judgment of the ESI Court(Labour Court) Madurai passed in ESIOP No.39 of 2001 dated 16.05.2013.
For Appellant : Mr. R.Ravikumar For Respondent : Mr.Karthikeyan for Mr.P.Chandrabose
JUDGMENT
This Civil Miscellaneous Appeal has been filed as against the order passed in ESIOP No.39 of 2001 on the file of the Labour Court,
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Madurai, wherein the respondent herein has filed petition before the ESI Court challenging the order passed by the authorities and the same was allowed. As against the order passed by the Labour Court, the present appeal has been filed by the ESI authorities.
3. The brief facts of the petition before the Labour Court are as follows:
The petitioner concern is a Bharat Petroleum Outlet and engaged only four employees. Two partners are looking after the petrol bunk and they have also engaged one part time Accountant Saleem Deen and he was not authorised to look after the petitioner concern and to sign on behalf of the petitioner. Whileso on 13.08.1998, ESI Inspector has inspected the petitioner's bunk and at that time one pump attender, cashier and part time Accountant were alone present. The ESI Inspector has signed in the attendance register and then he had written something in the petitioner's company letter pad and compelled the Saleem Deen to sign the same. Due to the force he received the letter from the Manager
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stating that the petitioner has engaged 11 employees and directed them to comply with the Act. On 23.11.1999 the petitioner has issued letter to the ESI Corporation mentioning the facts happened on the date of inspection. Thereafter the Manager of ESI Corporation neither visited the petrol bunk nor sent any reply. In the meantime the respondent issued notice dated 24.11.1998 under Form C-18 proposing to asses contribution of Rs.90,427/- from 13.08.1998 to 31.03.1999. The petitioner attended personal hearing and filed detailed reply, inspite of that the respondent has passed impugned order dated 31.10.2000 fixing the liability. The copy of inspection report was not furnished to the petitioner. Hence he filed the petition to declare the impugned order passed by the respondent is null and void.
4. The counter filed by the respondent are as follows:
The petition is not maintainable either in law or facts. Infact the ESI inspector visited the petrol bunk on 31.08.1988 and found 11 employees are working for wages and four persons were working as found in the attendance register and two persons were working in the service station situated in the premises and four other persons found employed for wages in addition to Saleem Deen. The Inspector has issued notice to the Manager of the bank and obtained his
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signature. On the basis of inspection report petrol bunk was covered under the ESI Act and number was also allotted through C-18 notice and the same was issued on 24.11.1999 for the period from 31.08.1998 to 31.03.1999 on the basis of the assumed average wage for Rs.3575/- per employee per month. The respondent also appeared before the ESI Authority through advocate for personal hearing and raised objection. After considering the objection raised by the petitioner the respondent passed the order. The copy of the ESI Inspection Report shall not be furnished suo motu, hence the petition is liable to be dismissed.
5.Before the Labour Court on the side of the petitioner they have examined P.W.1 and marked exhibits Ex.P.1 to Ex.P.10 and on the side of the respondent R.W. 1 was examined and marked documents Ex.R.1 to R.5.
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employed. On behalf of the petitioner in the main original petition P.W.1 was examined and marked documents. Based on the evidences and documents the lower court has set aside the order passed by the authorities holding that the report of the inspection did not contain details and he was not served with the copy of the report of the inspector which form basis of the impugned show cause notice. Therefore the Tribunal has passed reasoned order and thereby the present appeal is liable to be dismissed.
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and obtained signature from the part time employee who is not a full time employee and noted that more than 10 persons were working in the premises. The inspection report also not furnished to the respondent.
Court.
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infirmity or perversity found in the order passed by the Labour Court.
13.In the result, the Civil Miscellaneous Appeal stands dismissed. No costs.
21.03.2024
NCC : Yes/No Index : Yes/No Internet: Yes/No aav
To:
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
8/9
C.M.A.(MD)No.1650 of 2013
P. DHANABAL,J.
aav
C.M.A.(MD)No.1650 of 2013
21.03.2024
2 issues framed by the court
Whether the appeal under Section 82 of the ESI Act involved any substantial question of law.
Whether failure to furnish the inspection report to the employer vitiated the contribution order passed under Section 45-A.
3 provisions across 1 enactments
The Joint Regional Director Employees State Insurance Corporation, Sub Regional Office, Madurai
L. Subbaiah
P. Dhanabal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
