Madras High Court
The Deputy Director vs Hotel Gowri Ganga on 27 November, 2017
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.11.2017
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.M.A(MD)No.1156 of 2016
The Deputy Director,
Employees' State Insurance Company,
Sub-Regional Office,
4th Main Road, K.K.Nager,
Madurai-625 020. ...Appellant /Respondent
Vs.
Hotel Gowri Ganga,
Madurai,
Properietor, V.Ravikumar,
51, west Perumal Maistry Street,
Madurai-1. ... Respondent/Petitioner
PRAYER:- Civil Miscellaneous Appeal filed under Section 82 of the ESI Act,
1948, to set aside the order dated 09.06.2015, passed by the ESI Court
(i.e.Labour Court), Madurai in ESI OP No.61 of 2005, uphold the order of the
ESI Corporation that there is no employment injury in the case and allow this
Civil Miscellaneous Appeal.
!For Appellant :Mr.R.Ravindran
^For Respondent :Mr.K.Hemakarthikeyan
:JUDGMENT
The respondent establishment stood covered by the provisions of the Employees' State Insurance (ESI) Act, 1948. The respondent is running a hotel. The hotel is run from two places, one at West Perumal Maistry Street and other at Tamil Sangam Road. On 09.02.2002, one Durai Pandi died due to electrocution during the course of his employment. Since the deceased died during his employment, a claim petition was lodged for the payment of requisite benefits to the Legal Representatives of the deceased.
2. Since the appellant Corporation rejected the said claim, the establishment filed ESI OP.No.61 of 2005 before the ESI Court, Madurai.
3.The appellant Corporation had filed a counter affidavit, agreeing to disburse the benefit to the dependants of the deceased under the said Act. However, in paragraph 12 of the counter, it was submitted that since only a posthumous registration was done by the employer, the appellant sought liberty to proceed under Section 68 of the ESI Act, to recover the capitalized value of the benefit from the employer. But the ESI Court merely allowed the petition by impugned order dated 09.06.2015, without adverting to the implication of Section 68 of the ESI Act. Aggrieved by the same, this appeal has been filed by the Corporation.
4.This Court admitted this appeal on 09.11.2016. The substantial questions of law that had arisen for determination in this appeal is as to whether the ESI Court ought to have permitted the ESI Corporation to proceed under Section 68 of the EST Act, against the employer for recovery of the capitalized value.
5. It is not in dispute that the employer did not register the name of the deceased employee originally. It is beyond dispute that only posthumous registration was made. When the employer had not remitted any contribution under the ESI Act, Section 68 of the Act will automatically come into play. In this case, the Corporation was satisfied that contribution ought to have been paid by the employer for the deceased Duraipandi. The dependants of the deceased Duraipandi cannot be made to suffer for the omission on the part of the employer. In order to deal with such situation, Section 68 of the Act has been incorporated. The ESI Court had remarked that it is for the ESI Corporation to decide and if law permits would be entitled to proceed against the employer.
6. I am of the view that the ESI Court ought to have given a specific finding in this regard, by enabling the Corporation to proceed under Section 68 of the ESI Act. Even while confirming the other findings rendered by the ESI Court, this Court answers the substantial questions of law framed in this appeal in favour of the appellant. Therefore, the order dated 09.06.2015, in E.S.I.O.P No.61 of 2005 on the file of the ESI Court, Madurai, is modified. The ESI Corporation is permitted to proceed under Section 68 of the ESI Act, to recover the capitalized value from the employer/respondent herein.
7.This Civil Miscellaneous Appeal is allowed with the aforesaid modification. No costs.
To,
1.The ESI Court (Labour Court), Madurai.
Copy to The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.