Karnataka High Court
M/S.Group 4 Securitas Guarding (P) Ltd vs The Regional Director Esi Corporation on 12 August, 2010
Bench: K.L.Manjunath, B.Manohar
I IN THE HIGH COURT 0? KARNATAKA AT BANGALogg DATED THIS THE 12" DA! OF AUGUST, zozatta. PRESENT 'W » THE HON'BLE MR. JUSTICE gpL,4MAN3U§3Tfi:TT'_p AND : A A . . .. THE HON'BLE M. Jfi§T;¢E B TnxQ$$fi§~_H; MISC. FIRST APR$AL T952393/2o§5:K$Si§ BETWEEN: V K A h t M/s Group 4 segupitgé Gfiafdihg (fig itd., Hemkuné No.32; 38 ft, Road; ' ' ' HAL 3"'Stage;_Bangal§;é:75;fv R/by its Gepetal Managér"~; " Personnel M£;A[Eamacpafidtaiah§ .. APPELLANT (BY Sri;KastfiEi};3r;VCounsel for M/s"Kastu:i.A3Sts1) AND: V The Regicna; Diréétor, tES;aCorpcxatiQn, Regional office (Karnataka) Nofilc; Biany Fields, ._a¢ 5innypety_8angalorew23. .. RESPONDENT
t" (By Advocate Sri.V.Narasimha Holla) fldolvannnlnnuawwnanln Hafiz.
VtV-_ This ,K9gfiIar First Appeal is filed under Sac.82(2) of the ESI Act against the order dated T'§p*4;2.2oe5 passed. in. ESI Application. No.12/2002 on rp/ 2 the file of the Judge, ESI Court, Bangalore, partly allowing the application filed by the appellant herein under Sec.75 of the ESI Act and modified the order dated 8.2.2002 passed by the _respondent herein under Sec.45-A of the ESI Act_ by 'h§1a:gg_ that the appellant herein is liahlepgto pay g contribution of Rs.61,99,375~6G,a_ This Appeal is coming on for final hegrihg this day, MANJUNATH J. de1ivered'the §9l1owinq:yv' ' * * Appellant is challenging. the» legality and correctness of;" the Employees State Insurance Conrt at Bangalore on 4.2.2005 in as: App11¢atioafNo§i9[2Qb2. ill
2. The facts_ °;éaai§g~' to this case are as hereunder}* fiegional Director, ESI Corporation passed an order under Sec.45A of the Act demanding 7V_ the appellant to pay a sum of Rs.65,20,855--18 from 7r"April,l99?h to July,2000 on the ground that the . appellant herein has failed to pay its contribution 4W,inI respect of over time wages paid to its .l'%_ éaployees. Aggrieved by the same, appellant filed 6v/ 3 an application under Sec.75 of the ESI Act contending that no over time has been paid by the appellant to its employees, what is paid. tQ_ the employees in excess of the wages is only conveyance allowance which cannot be treated as over time aaa< which does not attract the contribution figyable byi an employer. Respondentwcorporation tfieputgfimfihe contention of the appellant on the qronnd that on inspection of the est--ahlishme.nt'ii"of the'-Aapvpellant, it was noticed that over"tifie charges was paid to its employees _an.d'---_itcan_n:ot_ considered as re--- imbursement'Uofi=conUeyance' allowance. In the circumstancea, following issues were framed by the court below:
»lp Whether the applicant proves that they have ", not; paid} any over time wages to their Ahxemployees and it was only conveyance »_allowance?
V*.2. whether" the applicant further- proves that ' claiming contribution on conveyance is bad __in law?
To what relief the applicant is entitled to?
65/ 4 In order to prove their respective contentions, both the parties have let in evidence,flpfi_0n considering the materials placed before dthedrE$IV Court, ESI Court allowed the applicatidn in part. * holding that the appellant 2iei.liable" tdW'pay contribution of Rs.61,99,3?$»§0 and considering the' amount already deposited in_a sum of Rs,13;04,27l/w directed the appellant .hereindhtop¢pay a sum of Rs.48, 9s,2o4--so _b'y__ its""cr}:1:eVr.._a._a£éd._'f'4"."2 .2005. This order is called in question in this appeal.
3. We zhaye' heard ythe learned senior counsel Mr.Kasturi* for _the lappeilant and Mr. Narasimha Holla, counsel_for the éorporation. 45» The main contention of the appellant's counsel vbe£c§;:pé*1..lué.""V§i;':;-..'that the E31 Court has committed a leéserious error in not considering the point that was
-drequired to be considered by the court. The only d\_question that was raised by the appellant was that d"~_ the appellant did not pay wages as over time but (V. 5 what was paid to its employees is re--imbursement of the amount spent by the employees towards; their conveyance to reach the place of work_ as "these employees were required to attend different clients , business places of the appellant as they ae;e?fi¢t posted to any particular office or a £g¢tor§f¢:"a unit or establishment of any one of the clients of the appellant permanently.7 "He also contends that the court without consideringiflgfihe documents produced by the"appellan; and without any basis has given a finding as if the conveyance allowance rec imbursed by the appellant.to its employees as over time wagesffi Therefore} he requests the court to set aside the order and allow the appeal.
5.'%.@erss§atfa,lMr.Holla contends that based on the x"appxeciation sf evidence let in by the parties, ESI 'sifiourt has rightly held that the amount was paid to "=the 'employees as wages and not as conveyance l"llowance. Therefore, he requests the court to l? "dismiss the appeal.
&\/ 6
6. Having heard the counsel for the parties, the question that arises for the consideration of this court in this appeal is:
Whether ESI court has committed afivérforg in holding that the amount .paidx*by, the appellant to its employees towards over time' wages or not?
7. The payment made by 'the 'appellant "to: its' employees is not in disputer, The question is that under what head said amount has been paid by the appellant to its employees and whether it is really a over time" wages «or git dish reimbursement of conveyance allouance, Kfrom looking into the entire order of the" we are of the opinion that a: definite _finding has not been given by a'pprec--iVat..ir:ggthe documents produced by the parties. Zflg vWhen= the 'amount paid by the appellant to its ltuemployees is in dispute, it is for the appellant as u:uellx'a$ dfor the respondent to let in cogent '.peviéan¢é before the court to show 'that the said V"-_ amount was paid as conveyance allowance or wages as 8/ ?
contended by the respondent. But unfortunately though voluminous records were produced,w proper evidence was not let in by both the partieefdrwhenp the appellant contends that _the_ amafinef paid =;s< ' towards reimbursement of' conveyance: allowance, ?it was for- the appellant to niet in Vevidence~;takingd through the documents produced by it is+_that it is really a reimbursement of é9fiy§§aa;§ and not a over time. Similarly5"when the §¢sp§§a§§£ contends that the amount paid hp the appelidht to its employees is a over, tine} _;5gfl begden is also on the respondenti to lshow thatfi such payments were made towards over eimelp lhe:hurden of proof would shift on the_%a$pondent if the appellant discharges its onus showingvthat the amount paid by the appellant 7<_ is towards. reimbursement of conveyance. Since Vh_these two aspects were not considered by the court _pb§;pV;;RasN the parties have not focussed their '7,attention on this point, we have no other option .a"~,pth§fi to set aside the order of ESI Court and to €K// 8 remand the matter to the ESI Court for _fresh disposal in the light of the observations mede by us above.
8. Accordingly, the appeal is el1owed:' fine order passed by the ESI Courtp_datedpr4.2.2GD5'°inp°ESIo Application No.18/2002 is hereby set esideé dfiatter is remanded to théa _Es:iIpdourt l"£¢§ fresh consideration and. the Woesefl shall ihel disposed of within a peric_5d"'j:;eo.r the date of receipt of records."
Sd/-' IUDGE sd/-l JUDGE ia:*nj2oos1e