Karnataka High Court
The Hubli Taluka Agricultural Produce vs The Assistant Director on 22 November, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.25114/2013
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MFA No.25114/2013 (ESI)
BETWEEN:
THE HUBLI TALUKA AGRICULRURAL PRODUCE
CO-OPERATIVE MARKETING SOCIETY, LTD.,
APMC YARD, AMARGOL, GODOWN NO.1, HUBLI.
... APPELLANT
(BY SRI.S.K.HEGDE AND SRI.B.SHIVAKUMAR SHETTY, ADVS.)
AND:
THE ASSISTANT DIRECTOR,
EMPLOYEES STATE INSURANCE CORPORATION LTD.,
SUB REGIONAL OFFICE, SARVODAYA CIRCLE,
KESHWAPUR, HUBLI.
... RESPONDENT
(BY SRI.V.M.SHEELVANT, ADV.)
---
THIS APPEAL IS FILED UNDER SECTION 82(2) OF THE
EMPLOYEES STATE INSURANCE ACT, AGAINST THE ORDER
DATED 31.10.2013 PASSED IN E.S.I. APPLICATION NO.18/2008 ON
THE FILE OF THE EMPLOYEES STATE INSURANCE COURT, HUBLI
REJECTING THE APPLICATION FILED UNDER SECTION 75 OF THE
EMPLOYEES STATE INSURANCE ACT, 1948.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
M.F.A.No.25114/2013
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JUDGMENT
The present appeal is filed by the appellant-Society under Section 82(2) of the Employees State Insurance Act (henceforth for brevity referred to as 'the ESI Act') challenging the order dated 31.10.2013 passed by the Employees State Insurance Court at Hubballi (henceforth for brevity referred to as 'the ESI Court') wherein the application of the present appellant filed under Section 75 of the ESI Act came to be rejected.
2. The summary of the case of the appellant as could be gathered from the material placed before this Court that, it is a Co-operative Society registered under the Karnataka Co-operative Societies Act, 1959 engaged in promoting the sales of agricultural products. For some period during the year 1985-1986, it had underwent loss also. However, in January 1990 the Society was served with a letter from the respondent allotting ESI Code under ESI Act and proposing to cover the appellant-Society retrospectively with effect from 28.02.1986. The M.F.A.No.25114/2013 :3: respondent also issued Form No.C-18 notice dated 31.12.1990 claiming an amount of `1,15,281/- in respect of wages for the period from 28.02.1986 to 31.08.1990. Challenging the said order, the appellant preferred an application before the ESI Court under Section 75 of the ESI Act. By passing the impugned order, the ESI Court rejected his application. Against the said order, the appellant has preferred this appeal.
3. Though this appeal is coming on for admission, with the consent of learned counsel for both sides, the matter was taken up for final disposal.
4. The grounds raised by the appellant in his memorandum of appeal as well as the argument of the learned counsel for the appellant is that, no sufficient opportunity was given to the appellant before passing the impugned order. Further, the appellant-Society has filed an application under Section 87 of the ESI Act seeking exemption from the coverage of the ESI Act, as such, in M.F.A.No.25114/2013 :4: view of the pendency of the said application, the ESI Court ought not to have passed the impugned order. Further, the very act of the respondent in issuing Form No.C-18 itself is uncalled for. However, during the course of arguments, it is brought to the notice of this Court a judgment of this Court passed in MFA No.25115/2013 (ESI) dated 31.05.2017, wherein the plea of the appellant that pendency of its application under Section 87 of the ESI Act before the Central Government was not considered as valid ground for allowing the appeal.
5. Admittedly, the appellant in the said MFA No.25115/2013 (supra) is the appellant in the present case also. As such, the establishment remains the same, however, the periodicity of the ESI coverage as demanded in the notice under Form No.C-18 alone differs. As such, as observed by this Court in the said MFA No.25115/2013, admittedly, the number of employees who are working in the appellant organisation are more M.F.A.No.25114/2013 :5: than ten. As such, the organisation comes under the coverage of the ESI Act as per the order dated 08.01.1990 covering the appellant establishment. Further, the very act of the appellant in filing an application seeking an exemption from the coverage of the Act itself goes to show that the Society does not dispute that it falls within the coverage of ESI. As such, it has sought for an exemption by the Central Government from the coverage of ESI Act. Considering the said aspect, this Court in the said MFA No.25115/2013 by its order dated 31.05.2017 has dismissed the appeal reserving liberty to the appellant to approach the writ jurisdiction, if it desired so for early consideration of its application, which is said to be pending before the Central Government.
6. In the instant case also, the only contention taken up by the appellant is not non-applicability of ESI Act. Though at one stage it has stated that ESI Act is not applicable but in the very same memorandum of appeal by M.F.A.No.25114/2013 :6: clearly stating that the appellant has submitted an application to the Central Government seeking exemption from the coverage of the ESI Act has admitted that it falls under the ESI Act, unless it gets exemption from the Central Government. Rest of the contention taken up by the appellant about not providing sufficient opportunity to him and the impugned order said to be not being a reasonable order does not deserves consideration in view of the perusal of the impugned order, which clearly shows that sufficient opportunity has been granted to the appellant. Further, the order under consideration is a detailed and reasoned order.
7. As such, in the light of the above finding and also in the light of the order of this Court passed in MFA No.25115/2013 (ESI), the present appeal does not survive. As such, the appeal stands dismissed.
However, this order would not come in the way of the appellant pursuing his remedy through his application M.F.A.No.25114/2013 :7: said to have been filed under Section 87 of the ESI Act pending before the Central Government.
Sd/-
JUDGE MBS/-