Karnataka High Court
The Divisional Controller vs The Proprietor, Maruti Detective And ... on 25 August, 2014
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
ON THE 25TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
M.F.A.No.31325/2009 (WC)
C/W
M.F.A.CROB.No.1008/2010
IN M.F.A.No.31325/2009
BETWEEN:
THE DIVISIONAL MANAGER,
NEKRTC, GULBARGA-DIVISION
REPRESENTED BY
IT'S CHIEF LAW OFFICER, CENTRAL OFFICE,
SARIGE SADAN, GULBARGA.
...APPELLANT
(BY SRI. SHIVASHANKAR H. MANUR, ADV.)
AND:
1. THE PROPRIETOR,
MARUTI DETECTIVE AND
SECURITY AGENCY,
MEENAKSHI CHOUK,
HOUSE NO. 100,
AJAREKAR CHALL,
BIJAPUR,
2
2. SMT. SARUBAI
W/O. LATE RAJESHAKAR DANGE,
AGE 33 YEARS
OCC: HOUSEHOLD WORK
3. VEENA
D/O RAJESHAKAR DANGE
AGE: MINOR, OCC: STUDENT
4. VILAS
S/O RAJESHAKAR DANGE
AGE: MINOR, OCC: STUDENT
5. VIKHAS
S/O RAJESHAKAR DANGE
AGE: MINOR, OCC: STUDENT
RESPONDENT NOs. 3 TO 5 ARE
REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER
RESPONDENT NO. 2
R-2 TO 5 ARE R/O SAIYAD CHINCOLLI
TQ. & DIST: GULBARGA.
....RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADV. FOR R1
SRI S.S. SAJJANSHETTY, ADV. FOR R2
R3 TO R5 ARE MINORS REPTD BY R2)
THIS MFA FILED U/S 30 (1) OF WC ACT AGAINST THE
JUDGMENT AND ORDER DATED: 26/05/2009 PASSED IN
WCA/SR. NO.133/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION
GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND
SEEKING ENHANCEMENT.
3
IN M.F.A.CROB.No.1008/2010
BETWEEN
1. SARUBAI
W/O LATE RAJSHEKHAR DANGE
AGE: 34 YEARS, OCC: HOUSE HOLD
2. KU. VEENA
D/O LATE RAJSHEKHAR DANGE
AGE: MINOR
3. VILAS
S/O LATE RAJSHEKHAR DANGE
AGE: MINOR
4. VIKAS
S/O LATE RAJSHEKHAR DNAGE
AGE: MINOR
CROSS OBJECTORS NO.2 TO 4 ARE MINOR
U/G OF THIER NATURAL MOTHER
CROSS OBJECTOR NO.1,
ALL R/O SYED CHINCHOLI VILLAGE,
TQ & DIST: GULBARGA.
...CROSS OBJECTORS
(BY SRI. S. S. SAJJANSHETTY, ADV.)
AND
1. THE PROPRIETOR
MARUTI DETECTIVE AND
SECURITY AGENCY
MEENAKSHI CHOWK
HOUSE NO.100
AJREKAR CHALL
BIJAPUR
2. THE DIVISIONAL CONTROLLER
NEKRTC GULBARGA DIVISION
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R/BY ITS CHIEF LAW OFFICER
CENTRAL OFFICE, SARIAGE SADAN
GULBARGA
... RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADV. FOR R1
SRI. SHIVASHANKAR H. MANUR, ADV. FOR R2)
THIS MFA.CROB FILED U/O 41 RULE 22 OF CPC, AGAINST
THE JUDGMENT AND AWARD DATED 26.05.2009 PASSED IN
WCA/CR NO.133/2006 ON THE FILE OF THE LABOUR OFFICER
AND COMMISSIONER FOR WORKMEN'S COMPENSATION AT
GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND
SEEKING FOR ENHANCEMENT OF COMPENSATION.
THIS APPEAL AND CROSS OBJECTION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Aggrieved by the order passed by the Commissioner while granting compensation to the claimants and holding the liability on the NEKRTC responsible to satisfy the award, the NEKRTC-Corporation have filed MFA No.31325/2009. Seeking enhancement of compensation, the claimants have filed MFA Crob 1008/2010.
2. The facts of the case are not in dispute. However, what is contended by the corporation is that in terms of 5 the material available on record, the liability foisted on them is inappropriate. That the claim is covered under the provisions of Employees' State Insurance Act, 1948. Under these circumstances, proceedings would have to be initiated under the said Act. The claim as setout is not maintainable in terms of Section 53 of the E.S.I.Act 1948. Hence, he pleads that the appeal be allowed by setting aside the liability foisted on the insurer.
3. On the other hand, learned counsel for the 1st respondent has filed the affidavit to the effect that he is registered under the E.S.I.Act. That the area in question is within the area registered.
4. I have heard learned counsels. By the order dated 31.07.2014 learned counsel for the employee sought time to file an affidavit to declare and establish that the deceased employee was squarely covered under the insurance policy and the claim for compensation would lie under the E.S.I.Act. In terms whereof an affidavit was 6 filed on 25.08.2014 by the Proprietor of respondent No.1. He has stated that the remittance made by him covered all the employees under him and in terms of the registration such employees as employed in Gulbarga city are also covered. That material has been produced with regard to proof of remission of the ESI and EPF Challans of the NEKRTC applicable throughout the Country and therefore proceedings are to be initiated under the E.S.I.Act.
5. I have considered R.1, the enrolment certificate produced by the employee before the E.S.I. However, the Commissioner came to the view that the validity is under doubt. The contention of the employer is that it does not cover the city of Gulbarga.
6. On considering the reasons assigned by the Commissioner, I' am of the considered view that there has been a failure of the Commissioner to consider the relevant document with regard to the validity of the 7 certificate of the employer. Merely, stating that the validity of the period has expired is incorrect. There is no validity. It is a one time registration which has taken place on 27.12.1990. It is not to a particular area but to the whole country in terms of the Act. Under these circumstances, it would be just and necessary that the Commissioner reappreciates the material on record and thereafter comes to a just conclusion. Whether the employer has produced substantial material in order to show his registration under the Act and bar in terms of Section 53 of the E.S.I.Act requires to be reconsidered. It is needless to state that if the employer is able to satisfy the Commissioner with the same in terms of Section 53 of the E.S.I. Act, the claimants would be barred under the Workmen's Compensation Act.
7. Under these circumstances, the impugned order is set aside. The matter is remitted to the Commissioner/concerned Court for a fresh consideration 8 in terms of the aforesaid observations. The jurisdictional Court is directed to hear and to dispose off the same within a period of four weeks from the date of receipt of copy of this order.
Under these circumstances, the question of considering the cross objection filed by the claimants does not arise for consideration.
The appeal and the cross objection are disposed off accordingly.
The amount in deposit be refunded to the appellant-corporation.
Sd/-
JUDGE sdu