Esi Corporation vs M/S Jeethendra Company on 23 April, 2018

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Karnataka High Court

Esi Corporation vs M/S Jeethendra Company on 23 April, 2018

Bench: L. Narayana Swamy

                             1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF APRIL, 2018

                        BEFORE

  THE HON' BLE MR. JUSTICE L. NARAYANA SWAMY

               M.F.A.NO.6938/2015(ESI)

BETWEEN:
ESI Corporation,
No.10, Binny Fields,
Binny Pet,
Bengaluru-560 023.
Represented by its Security Officer,
ESI Corporation.                           ...Appellant
(By Sri.K.Krishnappa, Advocate)

AND:

M/s. Jeethendra Company,
No.40/1, Seetharama Palya,
Mahadevapura Post,
Bengaluru-560 048,
Represented by its Proprietor
Sri.B.N.Singh.                           ...Respondent

(By Sri.A.Nagarajappa, Advocate)

      This MFA is filed under Section 82(2) of the
Employees State Insurance Act against the order dated
29.07.2015 passed in E.S.I. Application No.21/2013 on
the file of the Employees State Insurance Court,
Bengaluru, allowing the application filed under Section
75 of the ESI Act.1948.
                                2




     This MFA coming on for admission on this day, the
Court delivered the following,

                      JUDGEMENT

This appeal is filed by the ESI corporation challenging the order dated 29.07.2015 passed by ESI Court in ESI application No.21/2013.

2. The respondent made an application under Section 75 of the ESI Act, 1948, challenging the notice issued by the ESI corporation. It was the case of the respondent before the ESI corporation that it has closed the business establishment on 01.11.2008 and there was no functional activities and no wages were paid. Therefore, payment of ESI contribution does not arise at all and nil returns were submitted up to 31.03.2011 as per Ex.A3. Hence, claiming of contribution, assuming under adhoc basis, is illegal and unjustified. It was the case of the respondent herein before ESI court, that the corporation should have examined the case of the 3 respondent since the company itself was closed on 01.11.2008. The specific case of the respondent is, on the last day of closure, contribution was made as required under provision. The ESI Court also made observations in para 18 that as per Ex.A3, nil returns have been submitted to the corporation. Thereafter, it is the duty of the ESI corporation to visit and examine as to whether factory was closed or not.

3. The learned counsel for appellant-ESI corporation submits that the Company has not followed the provisions of Regulation 26(1) (b) and proviso to Regulation 31 of ESI Regulations 1950.

4. Substantial question of law taken by the appellant is whether respondent is liable to pay contribution under section 45 of the ESI Act, and further, whether respondent is liable to provision 26(1)(b) of the Regulation. With regard to the same a factory or a company in service, as required under the provision of 4 Regulations, there shall be a contribution made. Notice issued to the respondent was subject matter before the ESI Court.

5. Learned counsel for the *Respondent submits that absolutely no substantial question of law would arise for consideration. The disputed fact is that whether the contribution is made till the last day of the closure of the respondent-company or not. Closure intimation was not intimated to the appellant-corporation. This matter is pending for last four years, under this juncture remanding this matter ends up in protraction of litigation. Respondent needs to pay *Rs.45,045/-. This itself is not a ground to remand. Appeal is rejected. Order of the E.S.I. Court is confirmed. Amount in deposit is to be refunded.

Sd/-

JUDGE ag * Corrected vide Chamber Order dated:30.07.2018

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