Bombay High Court
H. Fillunger And Co. Pvt. Ltd. vs The Employees State Insurance ... on 22 February, 2005
Author: D.G. Deshpande
Bench: D.G. Deshpande
ORDER D.G. Deshpande, J.
1. Heard advocate for the appellants. Respondent is served. Nobody is present for the respondent. The matter is on board yesterday for final hearing. But nobody appeared for the respondent. It was keep today in order to enable the respondent to keep their advocate present.
Today also nobody is present for the respondent.
2. A short question is involved in this case and, the question is, if Main Office or Head Office of the appellant is in Pune and it was not covered under the Employees' State Insurance Act, then whether the Corporation was justified in issuing notices to the appellant to pay contribution under the ESI Act after taking into consideration the total strength of the employees in Pune Office and other branches at Bombay, Bangalore, Delhi, Culcutta, 34 in number ? Counsel for the appellant drew my attention to the Notification issued by the Government of Maharashtra No.ESI-1875/800/PH-15 appointing the 27th November 1976 as the date on which all the provisions of the said Act shall extend to the classes of establishments, mentioned in Column 1 of the Schedule in the areas specified in Column 2 of the Schedule. Clause 3 of the said Notification is in respect of establishments.
3. Issuance of notices by the Corporation to the appellant was preceded by the visit and inspection, i.e. the enquiry which is Appendix A of this record and proceeding. In the said Enquiry Report it has been stated that "in my opinion this Establishment can be coverable u/s. 1(5) of ESI Act w.e.f. 27.11.76 (date of implementation) as the strength of No. of employees in the month of November, 1976 alongwith its branches exceed 20 (Total 34 as particularly in visit note)." In the Visit Note dated 22.4.93 it is stated as under :
"No. of Employees as on 11/76 Poona (8), Bombay (10), Bangalore (6), Delhi (6), Calcutta (4) = 34 in all"
4. Counsel for the appellant strenuously urged that if the Act is applicable to the establishment having more than 20 employees, then the Act was not applicable to the Pune Office of the appellant. Because even, according to the corporation, the employees working in Pune office were (8). He also contended that if the Pune office was covered under the ESI Act, in case there are 20 or more than 20 employees, then automatically all the branches of the appellant were bound to be covered but, when Pune Office employed 8 employees and the Act could not be applicable to the Head Office of the appellant at Pune, then Act could not be made applicable to the branch offices and, total number of employees employed by the appellant in Pune and in branch offices could not be taken as the basis of applicability of the Act. Counsel for the appellant also relied upon the judgment of the Supreme Court reported in 2001-1-LLJ SC 1, Transport Corporation of India v. E.S.I. Corporation and Anr. This was in support of his contention that if the Principal Office is covered by the E.S.I. Act, then branch office would also be automatically covered. Even under clause 3 of the aforesaid Notification of the Government of Maharashtra, the Act applies only where 20 or more persons are employed in an establishment. Admittedly, in this case even as per the Enquiry Report and Visit Report the employees employed by the appellant in their Pune Office were only (8). Therefore, the Act was not applicable to the Head Office and, consequently, it could not be made applicable to the branch offices, nor the persons employed in the Head Office and the persons employed in the branch offices would be clubbed together for applying the provisions of this Act.
5. Insurance Court did not take into consideration this material aspect of the matter which was core of the Issue and came to a wrong conclusion. Therefore, this appeal is required to be allowed. Hence I pass the following order:-
:ORDER:
The appeal is allowed.
The impugned order of the Employees' Insurance Court at Pune dated 4th May 2001 is set aside. Application of the appellant for quashing the order dated 17th August 1993 at Exhibit J to the application stands allowed and the said order stands quashed. Since nobody is present for the respondent, there will be no order as to costs.