Delhi District Court
Esic vs Ms Sada Kaur Khalsa Girls Sr. Sec. School ... on 7 May, 2025
IN THE COURT OF MS SANGHMITRA, JUDICIAL
MAGISTRATE FIRST CLASS- 01 (SHAHDARA), KKD
COURTS DELHI
CT Cases 6078/2016
ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School & Anr.
PS: GTB Enclave
U/S: 85(g) of ESI Act
ID number of the case : DLSH02-003260-2015
Date of commission of offence : April 2011 - March
2013
Date of institution of the case : 01.07.2015
Name of the complainant : Sh. Krisha Kumar, SSO,
ESIC
Name of accused and address : (i) M/S Sada Kaur
and their parentage Khalsa Girls Sr. Sec.
School, Daryaganj, New
Delhi-110002.
(ii) Ms. Malti Harit,
Principal of Sada Kaur
Khalsa Girls Sr. Sec.
School, Daryaganj, New
Delhi-110002.
Offence complained of or proved : 85(g) of ESI Act
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 07.05.2025
CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.1 of 10
Digitally signed
by
SANGHMITRA
SANGHMITRA
Date:
2025.05.07
18:03:48 +0530
JUDGMENT
I. Brief Background of the case -
1. Briefly stating, the case of the complainant is that the accused persons are under statutory obligation to produce the record maintained under the ESIC Act in respect of the school M/s Sada Kaur Khalsa Girls Sr. Sec. School, Darya Ganj, New Delhi and accused no. 2 is the principal of the school and the school is under her supervision and control. It is alleged that as the accused failed produce documents upon inspection by the SSO and also despite show cause notice and thus, have failed to discharge their statutory obligation in time. The prosecution of the accused has been sanctioned by Regional Director in exercise of powers u/s 86(1) of the Act. It is thus alleged that the accused has committed the offence punishable u/s 85 (g) of the ESI Act, 1948.
2. Upon the present complaint, cognizance was taken by Ld. Predecessor of this Court vide order dated 27.04.2016 and accused was summoned. Thereafter charge was framed against accused for the offence punishable u/s 85(g) of the ESI Act, 1948. The accused persons pleaded not guilty and claimed trial. Thereafter, the matter was listed for Complainant Evidence ('CE').
II. Complainant Evidence -
3. In order to prove the case, the complainant examined several witnesses. CW1 is Social Security Officer Sh. Jai Shankar Tiwari who visited the school, CW2 is Sh. Rajender Singh Bisht, Assistant ESIC who brought the CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.2 of 10 Digitally signed by SANGHMITRA SANGHMITRA Date: 2025.05.07 18:03:54 +0530 dispatch register containing the dispatch details of show cause notice dated 03.04.2014 issued to accused, CW3 is the complainant Sh. Krishan Kumar, Social Security Officer, ESIC.
III. Statement / Defence of the Accused -
4. The statement of the accused was recorded u/s. 313 Cr.P.C and all the incriminating circumstances appearing against the accused in evidence were put to her. The accused denied the case of the complainant and pleaded innocence by stating that her school is a govt. aided school and is covered by DGEHS and the said fact was also certified by Accounts Officer, Department of Education, Govt. of NCT of Delhi and thus they do not maintain any record under ESI Act and that she is the employee of the school and not the employer and had joined the school in December, 1982. She stated that he is innocent and opted to lead defence evidence.
IV. Defence Evidence -
5. In her defence, accused examined two witnesses i.e. Sh.
Raje Ram, SSO, ESIC as DW1 who brought copy of certain letters and herself as DW2.
V. Arguments Advanced by the Parties -
6. It has been argued by the Ld. Counsel for complainant that the accused school is covered under the ESI Act vide gazette notification issued by the Ministry of Labour and Employment dated 23.03.2011. There is no such rule which excludes the application of the ESI Act on establishments in which the employees are availing CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.3 of 10 Digitally signed by SANGHMITRA SANGHMITRA Date: 2025.05.07 18:04:12 +0530 DGEHS facility. Further, u/s 45 of ESI Act, the social security officer can seek from any principal or immediate employer to furnish the documents required to be necessarily maintained by the establishment. The accused despite the application of the ESI Act failed to produce any document and rather have admittedly not maintained any document under the Act and thereby has committed an offence u/s 85(g) of the Act. Further, the accused Malti Harit being the Principal of the School was the person having supervision and control over the school and thus, falls within the definition of Principal Employer as defined under section 2(17) of the Act. Furthermore, the complaint for the offence u/s 85(g) is required to be file within one year from the date of sanction. In the present case, the present complaint has been filed within limitation. Therefore, it is prayed that the accused be convicted for offence under section 85(g) of the ESI Act.
7. Per contra, Ld. Counsel for accused has argued that the ESI Act is not applicable upon the accused as the employees of the accused school have been availing DGEHS facility and even as per the RTI reply from the ESIC, the ESI Act is not applicable on the establishments in which employees avail DGEHS facility. Further, the accused Malti Harit is not the Principal employer of the accused school and is only the employee of the said school and has been employed by the government as the said school is the government aided school. Furthermore, the present case is also barred by limitation. The accused has CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.4 of 10 Digitally signed by SANGHMITRA SANGHMITRA Date:
2025.05.07 18:04:20 +0530 been falsely implicated in the present case. Thus, she prayed that the accused be acquitted of the charges.
VI. Appreciation of evidence -
8. I have heard the arguments of Ld. Counsels for both side and perused the material on record.
9. The accused has been tried for offences under section 85
(g) of the ESI Act, 1948.
10.At the outset, it is important to note that it is an admitted case of the accused that the accused has not maintained record under the ESI Act as according to the case of the accused the ESI Act is not applicable upon the accused school. It is also the case of the accused Malti Harit that she is not the principal employer of accused no.1 school and that the present complaint is barred by limitation. Thus, following issues needs to be adjudicated upon:-
Issue no.1: Whether ESI Act is applicable upon the accused school?
Issue no.2: Whether the accused no.2 Ms. Malti Haritt falls under the definition of principal employer defined under section 2(17) of the Act? Issue no.3: Whether the present complaint is barred by limitation?
Issue no.1: Whether ESI Act is applicable upon the accused school?
11.In the present case, the complainant has brought on record a gazette notification issued by the Ministry of Labour and Employment dated 23.03.2011 Ex. CW1/D2 vide which the ESI Act is extended to all the educational institutions, CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.5 of 10 Digitally signed by SANGHMITRA SANGHMITRA Date: 2025.05.07 18:04:28 +0530 including public, private, aided, or partially aided, run by an individual, trust, society, or other organization. Thus, vide the abovesaid gazette notification, the ESI Act is made applicable on all the educational institutions situated within the territory of NCT of Delhi. The accused, on the other hand, in her defence has produced a reply of an RTI dated 02.03.2017 EX. CW1/D1 issued from the office of ESI stating that ESI act is not applicable on those institutions which are availing the medical facilities of DGEHS and are paying contributions from their monthly salaries, but is only applicable on contractual employees in such institutions. The accused has also brought on record a letter dated 10.08.2016 DW2/3 issued by the accounts officer, Office of Deputy Director of Education, District Central, New Delhi stating that the ESI Act is not applicable on the accused school.
12.The accused has not examined the concerned official from the ESIC, who had given the reply of the RTI or any other official so as to bring on record the basis on which the said reply was given. Further, the accused has also not examined any official from the office of Directorate of Education to prove the basis on which such letter Ex. CW2/3 was issued. The accused has not brought on record any order, rule or regulation to show that the accused school is excluded from the applicability of the Gazette notification issued by the Ministry of Labour and Employment Ex. CW1/D2.
13.It is important to note that in the said notification Ex.
CW1/D2, no bifurcation has been carved by the Digitally signed by SANGHMITRA SANGHMITRA Date: 2025.05.07 18:04:50 +0530 CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.6 of 10 government so as to exclude the applicability of the Act on any specified categories of school. From bare perusal of the said notification, it is clear that the ESI Act is made applicable on all the schools falling within the territories of NCT of Delhi, including public, private, aided, or partially aided, run by an individual, trust, society, or other organization. Further, no exception has been carved by the said notification which excludes its applicability on those schools which are availing the facility of DGEHS. In absence of any order, rule or regulation of the government showing specific exclusion of the schools which are availing the DGHS facilities from the applicability of the ESI Act, and merely by producing an RTI reply or a letter purported to be issued by the Directorate of Education without examining the officials to bring on record and to substantiate the basis of such replies, it cannot be said that the ESI Act is not applicable on the accused school. Thus, the notification specifically makes the Act applicable on all the schools without carving any exception. And no exception, if any, to the said notification has been brought on record showing the specific exclusion of certain school from the applicability of the said notification. Therefore, in light of above, the complainant through the government notification CW1/D2 has proved the applicability of ESI Act, 1948 upon the accused and the accused has failed to bring on record sufficient evidence to prove that the ESI Act is not applicable on the school. Thus, I find that the ESI Act is applicable on the accused.
Digitally signed by SANGHMITRASANGHMITRA Date: 2025.05.07 18:04:59 +0530 CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.7 of 10 Issue no.2: Whether the accused no.2 Ms. Malti Haritt falls under the definition of principal employer defined under section 2(17) of the Act?
14.The term principal employer is defined under section 2(17) of the act. The provision reads as under-
"(17) "principal employer" means
(i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named;
(ii)in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department;
(iii) in any other establishment, any person responsible for the supervision and control of the establishment;"
15.In the present case, the accused no.2 Ms. Malti Harit was admittedly the principal of the accused school at the relevant time in question. Thus it can be said that she was working in the capacity of the head of the said School.
16. Further, admittedly, the school is the government aided school. Furthermore, it is also the case of the accused that the employees are appointed by the directorate of the education. Thus, in such situation no evidence has been brought on record by the accused to show that such department of the government had appointed any specific authority in this behalf as a head of the school. The accused has also deposed that the school is run by a trust, however, no proof has been brought on record by the accused to substantiate this claim. Thus, in absence of such evidence, the head of the School who is responsible for the Digitally signed by SANGHMITRA SANGHMITRA Date: 2025.05.07 18:05:08 +0530 CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.8 of 10 supervision and control of the school is to be considered as the principal employer which in the present case was the accused no. 2. Therefore, according to section 2(17) of the Act, as the accused no.2 was working in the capacity of head of the school at the relevant time, she falls within the definition of principal employer under the Act. Issue no.3: Whether the present complaint is barred by limitation?
17.During the course of arguments, it has been submitted by Ld counsel for the accused that the present complaint is barred by limitation as the same has been filed after one year of the first visit by the social security officer. The accused has also brought on record the new inspection policy EX. DW1/2 in which it is written that the action for filing prosecution must be completed within one year from the date of first visit by the Social Security officer. However, it is important to note that that the said inspection policy EX. DW1/2 is dated 01.08.2014 and is stated to be effective from 01.09.2014, whereas, in the present case the inspection had already been taken place in the year 2013, and the sanction had also been granted on 13.08.2014 i.e well before coming into force of the above said inspection policy.
18.The offence under section 85(g) of the ESI Act is punishable for upto one year or fine or both. Thus, as per section 468 Cr.P.C the limitation for offence which is punishable up to one year is one year. Further, as per section 470 Cr.P.C time required for obtaining sanction is to be excluded in calculating the period of limitation. In Digitally signed by SANGHMITRA SANGHMITRA Date: 2025.05.07 18:05:17 +0530 CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.9 of 10 the present case the sanction has been obtained on 13.08.2014 and the present case has been filed on 01.07.2015 i.e well within the period of limitation.
19.Thus, as discussed above, the complainant has been able to establish that ESI Act is applicable upon the accused and the accused no.2 despite being the principal employer of the school failed to produce the relevant record required to be maintained under the ESI Act in compliance of section 45 of ESIC Act, 1948 and thus, established commission of offence under section 85(g) of the ESIC Act. VI. Decision -
20.In view of the above said discussion, since the prosecution has been successful in proving that the accused failed to produce the record in compliance of section 45 of ESIC Act, 1948 and thereby has committed offence punishable u/s 85(g) of the ESIC Act, 1948, accused is hereby held guilty and convicted for offense u/s 85(g) of the ESIC Act, 1948. Digitally signed by SANGHMITRA Announced in the open court SANGHMITRA Date:
2025.05.07 18:05:23 +0530 on dated : 07.05.2025 (Sanghmitra) Judicial Magistrate First Class-01 (SHD) Karkardooma Court/Delhi This judgment consists of 10 pages and each and every page of this judgment is signed by me. Digitally signed by SANGHMITRA SANGHMITRA Date:
2025.05.07 18:05:30 +0530 (Sanghmitra) Judicial Magistrate First Class-01 (SHD) Karkardooma Court/Delhi CT Cases 6078/16 ESIC Vs. M/s Sada Kaur Khalsa Girls Sr. Sec. School and Ors. Page No.10 of 10