Madras High Court
M/S.Carborundum Universal Ltd vs The Employees State Insurance ... on 27 January, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2014 CORAM : THE HONOURABLE Mr.JUSTICE R.SUBBIAH W.P.No.31928 of 2013 and M.P.Nos.1 & 2 of 2013 1.M/s.Carborundum Universal Ltd., Post Box No.2272, Tiruvottiyur, Chennai-600 019, Rep. by its Managing Director K.Srinivasan. 2.K.Srinivasan, Managing Director, Carborundum Universal Ltd., Post Box No.2272, Tiruvottiyur, Chennai-600 019. ... Petitioners Vs. 1.The Employees State Insurance Corporation, 143, Sterling Road, Nungambakkam, Chennai-600 034, Rep. by its Deputy Director. 2.Mrs.Saratha 3.Priya Rosaiah 4.Chinna Rosaiah 5.Sri.Bharath Krishna Sankar, Director of M/s.Aparajitha Corporate Services (P) Ltd., No.5, Jawahar Road, Chokkikula, Madurai-625 002. ... Respondents (R2 to R5 impleded suo motu as per order of this Court dated 26.11.2013) Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorari to call for the records and quash the complaint in C.C.No.5988 of 2012 on the file of the II Metropolitan Magistrate, Egmore, Chennai. For Petitioner : Mr.Ramesh, Senior Counsel for M/s.Gupta and Ravi For Respondents : Mr.K.Prabakar for R1 ORDER
This writ petition has been filed praying for issuance of a writ of certiorari to call for the records and quash the complaint in C.C.No.5988 of 2012 on the file of the II Metropolitan Magistrate, Egmore, Chennai.
2.The petitioners herein have been arrayed as A1 & A2, along with four other accused, in the complaint filed by the 1st respondent viz., Employees' State Insurance Corporation, for the offence punishable under Section 85(ii) of the Employees State Insurance Act, 1948, in C.C.No.5988 of 2012 on the file of the Metropolitan Magistrate No.II, Chennai.
3.The allegation in the complaint filed by the 1st respondent-ESI Corporation is as follows:-
3(1)The 1st accused viz., M/s.Carborundum Universal Limited, is the principal employer and the 3rd accused viz., M/s.Aparajitha Corporate Services (P) Ltd., is the immediate employer, which are companies registered under the Companies Act. The 2nd accused is the Managing Director of the Principal Employer and the Accused 4 to 6 are the Directors of the immediate employer respectively.
3(2)The 1st accused/1st petitioner is an establishment, to which the provisions of the Employees State Insurance Act, 1948 (hereafter referred to as 'ESI Act') will apply. All the employees of the 1st accused/1st petitioner, direct and indirect, are covered under the provisions of the ESI Act. The 1st accused/1st petitioner has appointed the 3rd accused viz., M/s.Aparajitha Corporation Services (P) Ltd, as contractor, who has obtained licence under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970. The 3rd respondent is also covered under the provisions of ESI Act.
3(3)The 3rd accused provides manpower for certain activities, which are carried on in the factory of the 1st accused/1st petitioner. On 18.12.2011 two employees by name Moses and Anand Raj were engaged by the contractor/3rd respondent to clean sewage sump and while they were cleaning the sewage sump due to inhaling of toxic gas, both of them died.
3(4)As per Regulation 12 of ESI (General) Regulations, 1950, the employer in respect of the Factory or an Establishment shall, before taking any person into employment in such factory or establishment, after the appointed day, require such person (unless he can produce an Identity Card or other document in lieu thereof issued to him under these regulations) to furnish and such person shall on demand furnish to him correct particulars (along with his/her photograph and that of his/her family) required for the Declaration Form including the Temporary Identification Certificate. Such employer shall enter the particulars in the Declaration Form including the Temporary Identification Certificate and obtain the signature or the thumb-impression of such person and also complete the form as indicated thereon.
3(5)But, in the instant case, the above said two workers were taken into employment on 18.12.2011, but the Declaration Form along with Accident Report was submitted to the Branch Manager, Branch Office, Kaladipet on 19.12.2011 posthumously, after the date of accident without the signature of the employees. In the Accident Report, it was stated that the deceased persons were asked to clean the sewage sump, since the pumping of sewage could not be progressed due to some blockage in the suction line. The deceased Moses (Insured Person, Ins.No.51-21055150), is said to be wearing the safety belt. While climbing down the sump to remove the blockage, the other end of the safety belt rope is said to have been held by the other deceased Anand Raj (Ins No.51-21055163), standing on the top of the sump. It is further stated that when Moses tried to climb up the ladder, slipped and fell down in the sump bringing down Anand Raj also. As a result, both fell on the sludge of the sump and became unconscious and died due to suffocation of toxic fumes.
3(6)In the instant case, the insurable employment was on 18.12.2011, date of accident was on 18.12.2011 and the date of death was also 18.12.2011, whereas the accused had submitted the Declaration Form along with the Accident Report only on 19.12.2011 ie., after the death of the employees without the signature of the employees. The accused had delayed the submission of Declaration Form and Accident Report. The Principal Employer and the immediate Employer are squarely liable for violation of the provisions under Regulation 12 of ESI (General) Regulations, 1950. Since the accused failed to comply with the statutory obligations and committed an offence of non-compliance with the requirements of Section 85(g) of the ESI Act, which is punishable under Section 85(ii) of the ESI Act, the complaint has been lodged by the Employees' State Insurance Corporation against the accused.
4.Now, the present writ petition has been filed by the petitioners/Accused 1 & 2 seeking to quash the complaint filed by the Employees' State Insurance Corporation.
5.It is the contention of the learned counsel for the petitioners that the deceased employees were engaged by the contractor(A3) to clean the sewage sump only on 18.12.2011. Since 18.12.2011 happened to be a Sunday, the particulars of the employees could not be sent on that day, but unfortunately, the said employees died while cleaning the sewage sump due to inhaling of toxic gas. On the next day ie., on 19.12.2011, both the employees were allotted with Registration Numbers under the ESI Act. The said employees had come for clearing activities for one day only. There is no master and servant relationship between the 1st Petitioner-Company and the deceased persons. In this regard, the learned counsel for the petitioners has also invited the attention of this Court to Regulation 14 of ESI (General) Regulations and submitted that the employer is having 10 days' time to submit the Declaration Form. In the instant case, the deceased persons were engaged for work on 18.12.2011 and very next day, the particulars of the Declaration Forms were furnished. When there is no requirement of sending the Declaration Form signed by the employees immediately on the same day of their appointment and when the employer is having 10 days' time to send the Declaration Form, absolutely there is no lacuna in the procedures followed by the petitioners. Hence, the complaint filed against the petitioners is not warranted.
6.The learned counsel for the petitioners has further submitted that the delay in submitting the Declaration Form has also been explained by the petitioners as well as by the Contractor/3rd accused to the Employees' State Insurance Corporation. Further, the 1st petitioner has also disbursed the compensation payment to families of the deceased persons Rs.4,10,000/- each for family expenses.
7.That apart, the learned counsel for the petitioners has also submitted that under Section 2(17) of the ESI Act, only if a person is actually in control of the day-to-day affairs of the factory, he is liable for the alleged acts of commission or omission. Though the 2nd petitioner herein has been nominated as the 'occupier' of the factory, he is not involved in the day-to-day operations of the concerned factory, as he is managing the business of eighteen factories in India and five factories are in abroad. Thus, the learned counsel for the petitioners submitted that no case has been made out as against the petitioners herein and prayed for quashing of the complaint.
8.Per contra, the learned counsel for the 1st respondent-Corporation, by filing a detailed counter, submitted that the petitioners have failed to submit the Declaration Form in respect of the deceased employees. Further, there is a reason to believe that the deceased employees could have been employed since long back and not on 18.12.2011 ie., date of the accident, as stated by the petitioners. The Declaration Form was submitted along with the Accident Report only on 19.12.2011 ie., a day after the death of the employees, that too without the signatures of the employees. In fact, the ESI Corporation has introduced a system of registering the Employees covered under the Act instantly through an on-line portal 'www.esic.in'. The Employers are that way enabled and empowered to register their employees through on-line instantaneously while taking into employment. In the instant case, the employer had that facility very much available and could have registered his employees through on-line before taking into employment. Hence, in the instant, since the declaration Form was submitted with delay, it is very clear that the employer is guilty of committing an offence punishable under Section 85(ii) of ESI Act.
9.It is further submitted by the learned counsel for the 1st respondent-Corporation that no significance could be given to the submission made by the learned counsel for the petitioners that the employer is having 10 days' time to furnish the Declaration Form. The petitioners had delayed the submission of Declaration Form and the Accident Report, hence they are squarely liable for violation of Regulation 12 of ESI (General) Regulations. Since the petitioners failed to comply with the statutory liabilities and committed an offence of non-compliance with the requirements of the Act, they are liable to be punished under Section 85(ii) of the ESI Act. Thus, the learned counsel for the 1st respondent-Corporation prayed for dismissal of the writ petition.
10.Heard the submissions made on either side and perused the materials available on record.
11.The 1st respondent-Corporation has filed a complaint as against the petitioners herein on the allegation that the petitioners have failed to comply with the statutory obligations required under Section 85(g) of the ESI Act, which is punishable under Section 85(ii) of the ESI Act. The 1st petitioner/1st accused-Firm is the principal employer and the 2nd petitioner/A2 is the Manager Director of the 1st petitioner-Firm. The 3rd accused-Firm is the immediate employer. On 18.12.2011, the 3rd accused - immediate employer engaged two employees viz, Moses and Anand Raj to clean the sewage sump. While the said employees were cleaning the sewage, they died due to inhaling of toxic gas. It is the allegation in the complaint that before engaging the employees, the petitioners ought to have furnished the particulars of the employees for filing the Declaration Form as per Regulation 12 of ESI (General) Regulations. Since the accused have failed to furnish the particulars of the employees by filing the Declaration Form in time, they have violated the requirements of the ESI Act, which is punishable under Section 85(ii) of the ESI Act.
12.But, according to the learned counsel for the petitioners, they are having 10 days' time from the date of engagement of the employees in the work to furnish the particulars about the said employees. The said two persons were employed only on 18.12.2011 and on the same day, they died when they were cleaning the sewage sump. On the very next day, Declaration Form was filed. When the petitioners are having 10 days' time to furnish the details of the employees, the complaint against them is totally unwarranted.
13.In view of the submission made by the learned counsel for the petitioner as well as the counter submissions made by the learned counsel for the 1st respondent-Corporation, it would be appropriate to extract Regulations 12 & 14 of the ESI (General) Regulations.
Regulation 12- Declaration by persons engaged after the appointed day_ (1)The employer in respect of a factory or an establishment shall, before taking any person into employment in such factory or establishment after the appointed day, require such person (unless he can produce an Identity Card or other document in lieu thereof issued to him under these regulations) to furnish and such person shall on demand furnish to him correct particulars [along with his/her photograph and that of his/her family] required for the Declaration Form including the Temporary Identification Certificate. Such employer shall enter the particulars in the Declaration Form including the Temporary Identification Certificate and obtain the signature or the thumb impression of such person and also complete the form as indicated thereon.
(2)Where an Identity Card is produced under sub-regulation (1), the employer shall make relevant entries thereon.
Regulation 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.
It is no doubt, as contended by the learned counsel for the petitioners, that the petitioners are having 10 days time to furnish the particulars for declaration form to the 1st respondent-Corporation from the date on which the employees were engaged. But, it is the contention of the learned counsel for the 1st respondent-Corporation that they are having the materials to show that the above said two employees were engaged by the accused since long back. Since the employees had died on 18.12.2011, very next day the accused furnished the declaration form as if the employees were engaged only on 18.12.2011.
14.Considering the materials available on record and the submissions made on either side, I am of the opinion that the question as to whether the petitioners delayed to furnish the Declaration Form or not, has to be decided only in trial based on the evidence that is going to be adduced in the case. This question cannot be decided in this writ petition. It is well settled legal principle that if the complaint is not legally maintainable or if the allegations made in the complaint, on the face of it, do not constitute an offence, then only the complaint can be quashed. In the instant case, the ground raised by the learned counsel for the petitioners is purely a matter of evidence. Therefore, I am not inclined to allow the present writ petition.
15.Hence, the writ petition is dismissed. However, the petitioners are at liberty to file an appropriate application before the Trial Court to dispense with their personal appearance. If such an application is filed, the Trial Court is directed to consider the same on merits.
Connected Miscellaneous Petitions are closed.
No costs.
27.01.2014 Index : Yes / No Internet : yes / No ssv R.SUBBIAH, J., ssv Pre-delivery order in W.P.No.31928 of 2013 and M.P.Nos.1 & 2 of 2013 27.01.2014