Karnataka High Court
The Joint Director vs M/S Nilgiri Mechanised Bakery Pvt Ltd on 10 October, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL No.7346 OF 2015 (ESI)
BETWEEN:
1. THE JOINT DIRECTOR
ESI CORPORATION,
REGIONAL OFFICE (KARNATAKA)
NO.10, BINNY FIELDS
BINNY PETE,
BANGALORE - 560 023
2. THE RECOVERY OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
REGIONAL OFFICE (KARNATAKA)
NO.10, BINNY FIELDS
BINNY PETE
BANGALORE - 560 023 ... APPELLANTS
(BY SRI.K KRISHNAPPA, ADV.)
AND:
M/S.NILGIRI MECHANISED BAKERY PVT. LTD.,
NO.23, MAGRATH ROAD,
BANGALORE - 560 025
(PRESENTLY LOCATED AT NO.13,
VEERASANDRA INDUSTRIAL ESTATE
ELECTRONIC CITY POST,
BANGALORE - 560 100
REPRESENTED BY ITS AUTHORIZED SIGNATORY
SRI. R.KUMARASWAMY ... RESPONDENT
2
(BY SRI.K.SOMASHEKAR, ADV. FOR
M/s. S N MURTHY ASSOCIATES)
THIS MFA IS FILED U/S 82(2) OF THE EMPLOYEES STATE
INSURANCE ACT, AGAINST THE ORDER DT.31.01.2015 PASSED
IN E.S.I. APPLICATION NO.15/2011 ON THE FILE OF THE
EMPLOYEES STATE INSURANCE COURT, BANGALORE,
ALLOWING THE APPLICATION FILED U/S 75 & 76 OF THE ESI
ACT.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED
FOR JUDGMENT ON 16.04.2018, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the Corporation being aggrieved by the order dated 31.01.2015 in ESI Application No.15/2011 passed by the ESI Court, at Bengaluru allowing the application filed by the respondent holding that the respondent is not liable to pay damages of Rs.3,03,573/- on the ground that new Amnesty Scheme 2010 was applicable to the respondent.
2. On the basis of inspection of records by Inspector for the period 4/2004 to 3/2006, the appellant Corporation issued notice claiming ESI contribution of Rs.7,03,439/- on various heads of account such as difference of wages, repair & 3 maintenance, processing charges, Staff Welfare, Traveling Allowances, consultancy and cartage & coolie etc.,
3. While ESI Application No.31/2008 was pending before the ESI Court, the ESI Corporation vide Circular dated 28.2.2010 announced New Amnesty Scheme 2010 providing payment of contribution and interest, thereby to avail the benefit of waiver of damages. Availing the said benefit, the respondent paid the entire claim amount. However, thereafter the appellant issued letter dated 11.3.2011 contending that New Amnesty Scheme - 2010 is not applicable to the respondent thereby to pay the amount as demanded therein.
4. Being aggrieved, the respondent filed ESI-15/2011 before the ESI Court.
5. The appellant appeared and filed objection contending that as the respondent failed to clarify the liability criteria as per the terms of the scheme, the requisition of the respondent could not be considered. It is further stated that respondent unit having covered under the ESI Act required to remit the 4 contribution regularly and periodically. The delay in remitting the contribution is proved by the records. After giving opportunity of personal hearing, which was not availed by the respondent, the appellant proceeded to confirm claim of damages passing order under Section 85-B of the Act and there is no illegality in the order.
6. On behalf of the respondent, AW-1 was examined who is HR and got marked Ex.A1 to A17. The appellant did not adduce any evidence.
7. So far as ESI contribution and interest which the respondent has already paid, it is not in dispute. The dispute is only relating to payment of damages. It is the case of the respondent that after availing the Amnesty Scheme, he has paid the contribution and interest thereby he is not liable to pay damages. The appellant submitted no objection to the application filed by the respondent seeking permission to avail the benefits available under the New Amnesty Scheme - 2010 and accordingly the ESI Court permitted the respondent to avail the said benefit. However, after collecting the amount from the 5 respondent, the appellant without hearing the respondent issued letter dated 11.3.2011 mentioning that `New Amnesty Scheme - 2010 is not applicable to the respondent.
8. The respondent has paid the contribution to the ESI as per Ex.A10. The ESI authority has also responded in respect of settlement of disputed claim under Amnesty Scheme dated 30.11.2010 in response to the letter issued by the respondent dated 18.11.2010. Both the parties have acted upon the New Amnesty Scheme and accordingly there are letter correspondence in between the parties. When the matter is settled through Amnesty Scheme taking permission of the ESI Court, again claiming amount after payment of the amount by the respondent, is impermissible. If such an objection was raised in ESI Application No.31/2008, he could have prosecuted the said case. Ex.A9 discloses that "settlement of disputed claim under Amnesty Scheme regarding". The respondent approached the ESI Corporation and availed the Amnesty Scheme and filed application. The ESI Corporation has endorsed the same thereby the respondent has paid the amount to the ESI Corporation. It 6 cannot be said that the respondent is at apparent fault in delayed payment.
9. In the circumstances, the appellant was not justified in denying the benefit of New Amnesty Scheme 2010 to the respondent. Appreciating the said aspect of the matter, the ESI Court has allowed the application filed by the respondent. There is no error or illegality in the order and no substantial question of law arises in the matter.
Accordingly, appeal is rejected.
Sd/-
JUDGE akd