Madras High Court
The Joint Director vs Sundaram Textiles Limited on 19 December, 2017
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.12.2017 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.M.A.(MD)No.1201 of 2016 1.The Joint Director, ESI Corporation, Sub Regional Office, Panchdeep Bhavan, ESIC Complex, Salai Street, Vannarpettai, Tirunelveli ? 627 003. 2.The Deputy Director, ESIC Corporation, Sub Regional Office Panchdeep Bhavan, ESIC Complex, Salai Street, Vannarpettai, Tirunelveli ? 627 003. ... Appellants Vs. Sundaram Textiles Limited, Nambi Nagar, Nanguneri, Tirunelveli District rep. By through its Factory Manager ... Respondent Prayer: Civil Miscellaneous Appeal is filed under Section 82 of the E.S.I. Act, 1948, to set aside the order dated 07.04.2015 passed by the E.S.I. Court (i.e. Labour Court), Tirunelveli in ESI O.P.No.6 of 2014. !For Appellants : Mr.P.Ganapathisamy ^For Respondent : Mr.P.Chandrabose :JUDGMENT
E.S.I.Corporation has filed this appeal questioning the order dated 07.04.2015 in E.S.I.P.No.6 of 2014.
2.The respondent is a factory covered by the provisions of the E.S.I. Act. The appellant passed an order dated 27.09.2013 under Section 45 A of the E.S.I. Act, 1948 levying contribution in respect of the wages paid under certain categories. They are as under:
Particulars Period Wages ITI Apprentice stipend 2008-09 206917.00 Stipend paid to Apprentice 2008-09 3436046.00 Wage difference 2008-09 2.00 Erode depot salary 2008-09 30000.00 Mumbai Depot Salary 2008-09 5400.00 Canteen expenses 2008-09 31695.00 Loading and unloading expenses 2008-09 101133.00 Repairs to others 2008-09 35387.00 Job work yan batta 2008-09 1550.00 Total wages 3848130.00 Contribution payable 250129.00
3.The establishment thereupon challenged the same before the E.S.I. Court by filing petition under Section 75 of the Act. The E.S.I. Court, by order dated 07.04.2015 partly allowed the petition and set aside the order of the Corporation insofar as it fixed the contribution under the heading I.T.I. Apprentice stipend, Stipend paid to apprentices, loading and unloading expenses and repairs to others. Aggrieved by the same, this appeal has been filed.
4.The learned standing counsel appearing for the appellant Corporation would contend that the contribution was levied for the period 2008-2009. It pertains to the pre-amendment period. By Act 18 of 2010, the definition ?employee? was amended with effect from 01.06.2010. Prior to the said amendment, the Act apprentices and those engaged under the certified standing orders were exempted.
5.The learned standing counsel would contend that prior to the amendment, only the apprentices engaged under the certified standing orders or the establishment alone were exempted. In this case, the respondent is not an establishment. It is a factory. He would therefore contend that the said apprentices should also be included for the purpose of computing contribution. This submission of the appellant had already been considered in detail by this Court and rejected in C.M.A.(MD) No.864 of 2016. This Court had already held that the distinction sought to be made by the appellant Corporation is one without any difference. Therefore, the said contention fails.
6.As regards the loading and unloading expenses, the learned counsel placed reliance on the decision of the Supreme Court reported in (1996) 89 FJR 42 ?
Rajkamal Transport and another Vs. E.S.I.Corporation. In the said case, the expenses incurred towards payment of wages to the loading workers was also included for the purpose of computing contribution.
7.The learned counsel for the respondent would point out that that was a case in which covered the establishment was engaged in transportation industry. Therefore, the said case cannot have any application to the facts on hand.
8.E.S.I. Court had also pointed out that in this case, the payment was made to the contractor, who in turn, would engage coolies for loading and unloading purposes and the work was sporadic in nature. The payment made to coolies could not be considered as wages. Similarly, other payments made to workers to carry out the works of sporadic nature cannot also be included within the expression ?wages?. The order passed by the ESI Court setting aside the order passed under Section 45 of the Act does not warrant any interference. No substantial question of law arises for consideration in this appeal.
9.Accordingly, this civil miscellaneous appeal stand dismissed. No costs.
To
1.The E.S.I. Court (i.e. Labour Court), Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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