Telangana High Court
The Management Of Padmeni Fans vs Koneru Parasuram on 7 April, 2022
Author: M. Laxman
Bench: M. Laxman
THE HON'BLE SRI JUSTICE M. LAXMAN
CIVIL MISCELLANEOUS APPEAL NO.1529 OF 2008
ORDER:
1. The present appeal is directed against order dated 02.06.2007 passed in W.C. No.2 of 2004 by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Circle-I, Rangareddy District, whereunder the claim made by the applicant for grant of compensation of Rs.4,65,000/- on account of injuries sustained by him during the course of employment, was allowed in apart by granting compensation of Rs.1,77,171/-.
2. The present appeal is at the instance of the employer, who was the sole respondent before the Assistant Commissioner of Labour.
3. For convenience, the ranking of the parties are referred as they were mentioned in the claim petition.
4. The brief facts of the case are that the applicant/respondent herein was employed with the appellant as a fitter. On 27.10.2003 at about 4.00 p.m. while the respondent was discharging his duties, he met with an accident. Immediately, he was shifted to Ram Hospital, Jeedimetla and a complaint was lodged with the Police Jeedimetla, and on the basis of the complaint lodged by the respondent, the police registered a case in Cr.No. 26 of 2004.
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5. The appellant admits that the injured/respondent was his employee, who met with an accident while discharging his duties. The main grievance of the appellant is that the respondent is covered by ESI contributions and he is entitled to claim compensation from the ESI Corporation since there was contribution from the employer to cover the risk of injuries and permanent disability without resorting to such course, the claim petition was filed before the Commissioner, Workmen Compensation, which is against the statutory provision contained in the ESI Act.
6. The applicant/respondent herein in support of his case, examined AW.1 and relied upon Ex.A1 to A5. The appellant was examined as RW.1 and relied upon Ex.B1 to B4.
7. The Commissioner having appreciated the evidence on record, accepted the employer and employee relationship and also found that the appellant failed to establish that there was a ESI contribution as required under ESI Act, as such, he was made liable to pay the amount determined. Aggrieved by the same, the appellant preferred this appeal.
8. The only substantial question of law raised in the present appeal is:
The learned Assistant Commissioner of Labour failed to take into account Ex.B1 to B4 which show that applicant/respondent was insured with the ESI Corporation, 3 ML,J CMA No.1529 of 2008 and compensation is liable to be paid by the ESI Corporation and not by the appellant.
9. Ex.B2 and B3 are the only letters which are addressed by the appellant to the ESI Corporation, and basing on these Ex.B2 and B3, the appellant claims that the respondent is covered by the insurance with the ESI Corporation by virtue of contribution made by the employer. It is also his contention that the Assistant Commissioner has not taken into account the insurance number which is furnished in pleadings i.e. IPINS No.4542916 and without looking into the same, the Commissioner wrongly held that the respondent is entitled to compensation under the Workmen Compensation Act.
10. On the contrary, the learned counsel for respondent has submitted that the appellant had not produced any statutory provision and records to be maintained by the employer and relevant contribution made to the Bank in the form of challans and there is no proof to show that insurance number which is furnished in the pleadings, was relating to the respondent and the Commissioner has rightly considered these aspects and held that there is no coverage under the ESI Act.
11. In this regard, to answer such contentions, it is apt to refer certain regulations which indicate how the conditions have to be maintained. In this connection, regulation No. 14, 15, 17, 17-A, 17- B and 26 of Employees' State Insurance Act are relevant:
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14. Declaration Forms to be sent to appropriate Office. -- The employer shall send to the appropriate Office by registered post or messenger, all Declaration Forms without detaching the Temporary Identification Certificate prepared under these regulations together with a return in duplicate in Form 3 within ten days of the date on which the particulars for the Declaration Forms were furnished.
15. Allotment of Insurance Number. -- On receipt of the return required under Regulation 14, the appropriate Office shall promptly allot an Insurance Number to each person in respect of whom the Declaration Form has been received unless it finds that the person had already been allotted an Insurance Number. The Temporary Identification Certificate with Insurance Number marked thereon shall be detached and returned to the employer along with one copy of Form 3.
The employer shall deliver the Temporary Identification Certificate to the employee to whom it relates after obtaining his signature or thumb impression thereon except in the case of an employee to whom a certificate of employment has been issued under Regulation
17. Identity Card. -- The appropriate Office shall arrange to have an identity Card prepared in Form 4 for each person along with the photograph in respect of whom an insurance number is allotted and shall include in such card the particulars and photograph of the family entitled to medical benefit under Regulation 95A and send all such identity cards to the employer. Such employer shall if and when the employee has been in service for 3 months, obtain the signature or thumb impression of the employee on the Identity Card and shall after making relevant entries thereon, deliver the Identity Card to him. The employer shall obtain a receipt from the employee for the Identity Card. The Identity Card in respect of an employee who has left employment before 3 months shall not be given to him, but shall be returned to the appropriate Office as soon as possible. The Identity Card shall not be transferable. 17-A. Issue of Certificate of Employment. -- If an insured person happens to need medical care before the Temporary Identification Certificate is issued to him, the employer shall issue a certificate of employment in such form as may be specified by the Director General to such person on demand. Such certificate shall also be 5 ML,J CMA No.1529 of 2008 issued on demand, if an insured person loses his Temporary Identification Certificate before the receipt of the Identity Card.
17-B. Issue of permanent Acceptance Card. -- In areas where the Director General considers it appropriate the appropriate Office shall also supply a permanent Acceptance Card for each employee in such form as the Director General may specify along with the Identity Card and this shall also be delivered to the employee. Permanent Acceptance Card for the employee who has left employment before 3 months shall not be given to him but returned to the appropriate Office along with the Identity Card as soon as possible.
26. Return of contributions to be sent to appropriate office. -- (1) Every employer shall send a return of contributions in quadruplicate in Form 5 along with receipted copies of challans for the amounts deposited in the Bank, to the appropriate office by registered post or messenger, in respect of all employees for whom contributions are payable in a contribution period, so as to reach that office -- (a) within 42 days of the termination of contribution period to which it relates ; (b) within 21 days of the date of permanent closure of the factory or establishment, as the case may be ; (c) within 7 days of the date of receipt of requisition in that behalf from the appropriate office. 1 (A) Every employer shall be required to submit details in Form 5 (Return of Contribution) with regard to employees engaged through Principal and Immediate Employers and their coverage, submission of Declaration Forms, distribution of Temporary Identification Certificates/Permanent Identity Cards and wages considered for payment of contribution and wages excluded for such purpose. (2) For the purposes of Section 77 of the Act, the due date by which the evidence of contributions having been paid must reach the Corporation shall be the last of the days respectively specified in clauses (a), (b) and (c) of sub- regulation (1).
12. A reading of regulation No.14 shows that the employer has to give a declaration in the prescribed form attaching temporary identification certificate prepared under the regulations and submit to the ESI Authorities. Regulation 15 gives allotment of insurance 6 ML,J CMA No.1529 of 2008 number by attaching the temporary identification certificate. Regulation 17 requires issuance of ID cards and 17-A shows issuance of certificate of employment whenever a treatment of employee is required basing on the temporary identification certificate and 17-B is issuance of permanent acceptance card.
13. Regulation 26 is more relevant to the facts of the present case. Regulation 26 requires the employer to send report of contribution in quadruplicate in form No.5 along with copies of challans for the amount deposited in the Bank to the appropriate office by registered post in respect of the employees for whom contributions are payable for the period. Regulation 27 requires issuance of certificate of contribution paid by the employer. Regulation 29 shows that contribution must be paid to the Bank only. In this regard, Section 61 of ESI Act is relevant which reads as under:
61. Bar of benefits under other enactments. --When a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.
14. No doubt, if the employer is able to prove that there were proper ESI contributions covering the employees working under him and if evidence is placed on record to show that prompt contributions were made in terms of statutory requirements, workman has remedies under Employees' State Insurance Act. The risk covered in the present claim is one of the risks contemplated under the Employees' State Insurance Act and for such risk; the 7 ML,J CMA No.1529 of 2008 respondent is entitled for compensation only under Employees' State Insurance Act, if appellant establishes that contribution is made. In the present case, except letters in between the appellant and the ESI Corporation, no material is placed on record to show that the contribution in respect of respondent was made to the ESI Corporation and the evidence placed on record do not show that prompt contributions as required under the Act were made by the appellant to the ESI Corporation. The Commissioner having considered Ex.B2 and B3, found that those letters have not been acknowledged by the ESI Corporation and no proof of allotment of such ESI number to the respondent/employee was placed on record.
If really there was contribution, the appellant could have examined the officials from ESI Corporation and summoned relevant documents even if he is not possession of particular piece of evidence establishing the contribution. Those steps were not taken by the appellant. Therefore, I do not find any irregularity in the impugned order making the appellant liable for the fixed compensation under the Workmen Compensation Act. Therefore, the appeal is liable to be dismissed.
15. In the result, the appeal is dismissed with costs.
16. As a sequel, pending miscellaneous applications, if any, shall stand closed.
________________________ JUSTICE M. LAXMAN DATE: 07.04.2022 BDR