Jharkhand High Court
M/S. Bol Bom Industry Godhar vs The Employees State Insurance ... on 11 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
M.A. No. 31 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.31 of 2010
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M/s. Bol Bom Industry Godhar, a partnership firm (Jharkhand), through its partner, namely, Hanuman Prasad Singhal, son of Sri Nurang Lal Singhal, resident of Chattantand Baar, P.O. -Kusunda, P.S. -Kenduadih, District -Dhanbad.
.... .... .... Appellant Versus
1. The Employees State Insurance Corporation, through its Regional Director, having its office at Namkum, opposite Namkum Police Station, P.O. & P.S. -Namkum, Ranchi.
2. The Assistant/Deputy Regional Director, Employees State Insurance Corporation, having its office at Namkum, Opposite Namkum Police Station, P.O. & P.S. -Namkum, Ranchi.
3. Insurance Inspector, Employees State Insurance Corporation, having its office at Namkum, opposite Namkum Police Station, P.O. & P.S. - Namkum, Ranchi.
.... .... .... Respondents
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For the Appellants : Mr. Amit Kumar Das, Advocate
: Ms. Swati Shalini, Advocate
: Ms. Kanishka Deo, Advocate
For the Respondents : Mr. Ashutosh Anand, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This appeal is directed against the order dated 14.11.2009, passed by the Labour Court, Dhanbad in E.S.I Case No. 1 of 2007 whereby and whereunder the learned court below dismissed the application filed by the appellant under Section 75 of the Employees State Insurance Act, 1948.
3. At the outset, it is pertinent to mention here that the scope of an appeal under section 82 of the Employees State Insurance Act, 1948 is very limited as such appeal can be entertained only if it involves any substantial question of law. Section 82 of the Employees State Insurance Act, 1948 reads as under:
2M.A. No. 31 of 2010
"82. Appeal (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees' Insurance Court.
(2) An appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves substantial question of law. (Emphasis supplied) Xxxxxxxxxx
4. The brief facts of the case is that on 29.01.2003, the Inspector of Employees State Insurance made a report in respect of the appellant- industry which is a partnership firm involved in manufacture of soap and 13 employees were found working in the firm and a machine was used by the appellant-insurance partnership firm which runs on electric power for cutting soap. It is the case of the appellant-industry that on the relevant day, only 9 employees were working and no electric power was used by the appellant-industry, hence the appellant industry do not come within the ambit of factory as defined under Section 2(12) Employees State Insurance Act. Hence, prayer was made by the appellant-industry before the learned court below that since the appellant-firm is not covered under the Employees State Insurance Act, 1948, therefore, the provisional registration certificate issued by the respondent-corporation and demand of contribution of Rs.77,441/- for the period from 29.01.2003 to 31.10.2006 be quashed. The case of the respondent on the other hand is that at the time of inspection on behalf of the respondent-corporation, 13 employees were found working in the appellant-industry and electric motor was used for cutting the soaps. It is undisputed fact that the appellant-company did not appear personally before the concerned authority of the respondent corporation by sending any of its representatives with the relevant documents sought for, even after notice to appear personally with ledger, registers, payment vouchers, attendance register; despite sufficient opportunity being given 3 M.A. No. 31 of 2010 to the appellant-industry by the respondent corporation. It is however the case of the appellant-industry that it provided some information by post. In the learned court below, two witnesses were examined on behalf of the appellant-applicant besides producing the documents which have been marked Ext. A-1 to Ext. A-9/5 and two witnesses were also examined on behalf of the respondent-corporation besides the respondent-corporation also proved documents which have been marked Ext. M-1 to M-5. The learned court below upon appreciation of the evidence in the record, believed the version of the respondent- corporation that on the date of inspection, 13 workers were found working though in the attendance register it was mentioned that only 9 workers were working on that day and came to the conclusion that the appellant-industry is a factory within the meaning of Section 2(12) of the Employees State Insurance Act,1948 as the said section stood before its amendment in the year 2010, hence the appellant-applicant-industry is liable to pay contribution amount mentioned in the provisional recovery order and dismissed the application.
5. Ms. Swati Shalini, learned counsel for the appellant submits that the learned court below failed to consider the evidence in the record in its proper perspective. It is next submitted by the learned counsel for the appellant that the learned court below failed to consider that the inspector of the respondent-corporation himself has put signature in the register of the appellant-industry which shows that at the time of such putting of signature, the name of only eight persons were mentioned in the register. Ms. Shalini, relied upon the Judgment of Hon'ble Supreme Court of India in the case of Employees State Insurance Corporation Vs. Hyderabad Race Club, reported in (2004) 6 SCC 191 and submits that 4 M.A. No. 31 of 2010 the contribution should not have been directed to be deposited from a period with retrospective effect. Ms. Swati Shalini next relied upon the Judgment of Hon'ble Supreme Court of India in the case of Food Corporation of India v. Provident Fund Commissioner and Anr. reported in (1990) 1 SCC 68 and submits that since Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 is Pari Metria with Section 45 of the Employees State Insurance Act, 1948, hence the Inspector erred by not following the procedure laid down under the Code of Civil Procedure. Hence, it is submitted that the impugned order be set aside and the prayer of the appellant-industry to quash the provisional registration certificate issued by the respondent- corporation and the demand of contribution be allowed.
6. Mr. Ashutosh Anand, the learned counsel for the respondent on the other hand defends the impugned order and submits that both the Judgments relied upon by the appellant are not applicable to the facts of this case; as in this case, the contribution amount has been directed to paid from the date of inspection i.e. 29.01.2003 and not from any date prior to that. So by no stretch of imagination, it can be said that in this case the contribution under the E.S.I. contribution was asked to be paid with retrospective effect. It is next submitted by Mr Ashutosh Anand that And it is further submitted by Mr. Ashutosh Anand that in the case of Employees State Insurance Corporation Vs. Hyderabad Race Club (supra), the Hon'ble Supreme Court has not laid down the law that demand cannot be made from an establishment from any date prior to its inspection by the Inspector. It is further submitted by Mr Ashutosh Anand that Section 45 of the Employees State Insurance Act, 1948 is not in Pari Metria under with Section 7A of the Employees Provident Fund 5 M.A. No. 31 of 2010 and Miscellaneous Provisions Act, 1952 as there is no such provision in that act, as enshrined in Section 45 (2) (a) to (d) of the Employees State Insurance Act, 1948 regarding
(a) requiring any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or
(b) at any reasonable time enter any office, establishment, factory or other premises occupied by such principal or immediate employer and require any person found in charge thereof to produce to such Social Security Officer or other official and allow him to examine such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or
(c) examine, with respect to any matter relevant to the purposes aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factory, establishment, office or other premises, or any person whom the said Social Security Officer or other official has reasonable cause to believe to be or to have been an employee;
(d) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or other premises;
rather Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 envisages that the Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner or any Regional Provident Fund Commissioner may, by order determine the amount due from any employer under any provision of the said Act, the scheme or the Family Pension Scheme or the Insurance Scheme as the case may be and for the said purpose of determining the amount due 6 M.A. No. 31 of 2010 from any employer, may conduct such inquiry as he may deem necessary and the officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a 'court' under the Code of Civil Procedure, 1908, for trying a suit in respect of the following matters:
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Penal Code, 1860.
It is submitted by Mr Anand that hence the principle of law settled in the case of Food Corporation of India v. Provident Fund Commissioner and Anr. (supra) is not applicable to the facts of the case. It is next submitted by Mr. Ashutosh Anand that the A.W.1, the principal witness of the appellant-industry has disowned his own attendance register as in his oral testimony, he has categorically stated that at no point of time, employees beyond 4 to 8 were employed by the factory though the undisputed register of the appellant-applicant-industry shows that on the date of inspection it contained the names of 9 employees. It is next submitted by Mr. Ashutosh Anand that the inspector is not supposed to make endorsement of his comments on the register of the industry which was inspected by the concerned officer of the respondent-corporation; hence no fault can be found of him for not having done so. It is next submitted that the inspection register which has been marked Exhibit M- 1 has also remained uncontroverted and the same coupled with the fact 7 M.A. No. 31 of 2010 that admittedly the appellant-industry did not respond to the notice of the respondent-corporation to produce ledger, registers, payment vouchers and the attendance register by themselves are sufficient enough to come to the conclusion that the appellant-industry comes within the ambit of factory as defined under Section 2 (12) of the Employees State Insurance Act, 1948. It is lastly submitted by Mr. Ashutosh Anand that as there is absolutely no substantial question of law involved in this appeal hence this appeal being without any merit be dismissed.
7. Now coming to the first contention of the appellant regarding the judgment of Employees State Insurance Corporation Vs. Hyderabad Race Club (supra) in paragraph 6 of that judgment it was inter alia observed as under:
"6. Xxxxxxxxxxx It is undisputed that till the judgment of this Court in the case of Hindu Jea Band v. Regional Director, ESI Corpn. (1987) 2 SCC 101 the law in regard to institutions like a club coming within the purview of the definition of establishment for the purpose of the Act was nebulous. It was so understood even by the Corporation itself which is evident from the fact that the action against the appellant for non-compliance with its liability was not taken for nearly 15 years until the visit of the Inspector of the Corporation on 17-6- 1990. In that background, even the Corporation was not very certain whether the word establishment used in the notification concerned of 26-3-1975 included a club. Therefore, in our opinion, the High Court was justified in coming to the conclusion to call upon the Club to make contribution for the period between 1975 and 1986, would be somewhat unreasonable. Thus on the peculiar facts of this case, we are in agreement with the finding of the High Court that the demand under the Act as against this Club can be enforced only from the year 1987 onwards." (Emphasis supplied) so it is crystal clear that in the case of Employees State Insurance Corporation Vs. Hyderabad Race Club (supra) the Hon'ble Supreme Court has not laid down the law as claimed by the learned counsel for the appellant that, contribution should not have been directed to be deposited from a period with retrospective effect rather in that case even though the inspector visited the establishment- which was a club; on17-6- 8 M.A. No. 31 of 2010 1990 but the Hon'ble Supreme Court approved demand under the Employees State Insurance Act, 1948 as against the Club from the year 1987 onwards, that is from a date prior to the date on which the inspector visited the establishment. In the peculiar facts of that case, as the law was nebulous as to whether, the establishment in that case, which was a club is to be covered under the employees state insurance Act, 1948 and the law in this respect was made clear by the Supreme Court of India in the case of Hindu Jea Band v. Regional Director, ESI Corpn. (Supra), by holding that the club can be treated to be an establishment under the provisions of The Employees State Insurance Act, 1948, hence the Hon'ble Supreme Court of India, approbated the judgment of the High Court whereby and whereunder the High Court exempted demand from the club concerned involved in that case from being treated as an establishment under the Employees State Insurance Act, 1948 before the date, when the law was not clear as to such club can be treated as an establishment of not under the provisions of The Employees State Insurance Act, 1948. So under such circumstances this court is of the considered view that the judgment of Employees State Insurance Corporation Vs. Hyderabad Race Club (supra) is no way relevant to the facts of this case, as in this case the demand is made from the date of inspection of the instant establishment by the inspector and not from any anterior date and it is not even the case of the appellant- industry that there was any ambiguity regarding the appellant-industry being treated as an establishment under the provisions of the Employees State Insurance Act, 1948, once it is found that the said industry was employing 10 or more persons and was using power in the manufacturing process rather the contention of the appellant industry 9 M.A. No. 31 of 2010 was only confined to the ground that there were less than 10 persons employed in the industry and power was not used in manufacturing process. So there is no merit in this limb of argument of the appellant.
8. So far as the contention of the appellant regarding Food Corporation of India v. Provident Fund Commissioner and Anr. (Supra) is concerned, it is pertinent to refer at this stage section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 which reads as under:
"7-A Determination of moneys due from employer--(1) The Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner or any Regional Provident Fund Commissioner may, by order determine the amount due from any employer under any provision of this Act (the scheme or the Family Pension Scheme or the Insurance Scheme as the case may be) and for this purpose may conduct such inquiry as he may deem necessary. (2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908, for trying a suit in respect of the following matters, namely:
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Penal Code, 1860." (Emphasis supplied) It will also be relevant at this stage to refer to section 45(2) of the the Employees State Insurance Act, 1948 which reads as under:
45. Social Security Officers, their functions and duties. --
Xxxxxxxxxxx (2) Any Social Security Officer appointed by the Corporation under sub- section (1) (hereinafter referred to as Social Security Officer), or other official of the Corporation authorised in this behalf by it, may, for the purposes of enquiring into the correctness of any of the particulars stated in any return referred to in section 44 or for the purpose of ascertaining whether any of the provisions of this Act has been complied with--
(a) require any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or
(b) at any reasonable time enter any office, establishment, factory or other premises occupied by such principal or immediate employer and require any 10 M.A. No. 31 of 2010 person found in charge thereof to produce to such 116 [Social Security Officer] or other official and allow him to examine such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or
(c) examine, with respect to any matter relevant to the purposes aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factory, establishment, office or other premises, or any person whom the said Social Security Officer or other official has reasonable cause to believe to be or to have been an employee;
(d) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or other premises;
(e) exercise such other powers as may be prescribed. Xxxxxxxx After going through the section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and section 45 (2) (a) to (d) of the Employees State Insurance Act, 1948, this court has no hesitation in holding that section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 is not pari materia with section 45 (2)
(a) to (d) of the Employees State Insurance Act, 1948, because section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, envisages that the Central Provident Fund Commissioner, any Deputy Provident Fund Commissioner or any Regional Provident Fund Commissioner may, by order determine the amount due from any employer under any provision of the Employees Provident Fund and Miscellaneous Provisions Act or the scheme or the Family Pension Scheme or the Insurance Scheme, as the case may be and for the said purpose of determination of the amount due from any employer under the provisions of the said act, it mandates the Commissioner concerned to conduct such inquiry as he may deem necessary and further envisages that for the purpose of said inquiry such Commissioner concerned shall and the powers of a 'court' under the provisions of the Code of Civil Procedure, 1908 in respect of the following matters:
(a) enforcing the attendance of any person or examining him on oath; 11 M.A. No. 31 of 2010
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) issuing commissions for the examination of witnesses and further envisages that any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Penal Code, 1860.
It is needless to mention that in the case of Food Corporation of India v. Provident Fund Commissioner and Anr. (Supra) it was observed by the Hon'ble Supreme Court of India that when a party to the proceedings requests for summoning evidence from a particular person, the Commissioner concerned, ought to have allowed the same and as in that case, the Commissioner concerned failed to discharge the duty cast upon him, the Hon'ble Supreme Court remanded the matter by inter alia observing thus in paragraph 9 relevant portion of which reads as under: "9. Xxxxxxxxxx The Commissioner should exercise all his powers to collect all evidence and collate all material before coming to proper conclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person." On the other hand perusal of section 45(2) of the Employees State Insurance Act, 1948, reveals that any Social Security Officer appointed by the Corporation under sub-section (1), or other official of the Corporation authorised in this behalf by it, for ascertaining whether any of the provisions of this Act has been complied with inter alia may do any or all of the following: --
(a) require any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or
(b) at any reasonable time enter any office, establishment, factory or other premises occupied by such principal or immediate employer and require any person found in charge thereof to produce to such Social Security Officer or other official and allow him to examine 12 M.A. No. 31 of 2010 such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or
(c) examine, with respect to any matter relevant to the purposes aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factory, establishment, office or other premises, or any person whom the said Social Security Officer or other official has reasonable cause to believe to be or to have been an employee;
(d) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or other premises;
Unlike the Commissioners as envisaged under section 7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952; the Social Security Officer appointed by the Corporation under sub-section (1), or other official of the Corporation authorised in this behalf by it, for ascertaining whether any of the provisions of this Act has been complied with; is not a 'court' nor he is expected to conduct an inquiry to which any provision of the Code of Civil Procedure, 1908 is applicable. Without doubt the Hon'ble Supreme Court of India rendered the judgment in the case of Food Corporation of India v. Provident Fund Commissioner and Anr. (Supra) in respect of the provision of law as enshrined in section-7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. Hence this court is of the considered view, the ratio of Food Corporation of India v. Provident Fund Commissioner and Anr. (Supra) it is not applicable in this case as Section 7A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 is neither pari materia now even akin to section 45(2) of the Employees State Insurance Act, 1948. Hence this limb of argument of the appellants has also no leg to stand.
9. Now coming to the facts of the case, A.W.1, the principal witness of 13 M.A. No. 31 of 2010 the appellant-industry has in his oral testimony contradicted the contents of his own attendance register regarding the number of employees employed by the appellant industry as mentioned in the said register. The inspection register which has been marked Exhibit M-1 has remained uncontroverted. The appellant-industry did not respond to the notice of the respondent-corporation to produce ledger, registers, payment vouchers and the attendance register without any plausible reason. Hence, the conclusion arrived at by the learned court below, that the appellant-industry comes within the ambit of factory as defined under Section 2 (12) of the Employees State Insurance Act, 1948 do not suffer from any perversity. This Court finds that the learned court below has elaborately discussed the evidence put forth by the parties and appreciated the same in its right perspective and there is absolutely no substantial question of law involved in this appeal.
10. Accordingly this appeal being without any merit is dismissed but in the circumstances without any costs.
11. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 11th July, 2022 AFR/ Sonu-Gunjan/-