Kerala High Court
Esi Corporation vs Smt.P.Mandakini on 19 October, 2009
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939
Ins.Appeal No. 26 of 2010 (E)
AGAINST THE ORDER IN IC NO.25/2007 OF THE EMPLOYEES' INSURANCE COURT,
PALAKKAD DATED 19-10-2009.
APPELLANT/OPP.PARTY:
ESI CORPORATION
REPRESENTED BY ITS REGIONAL DIRECTOR,
NORTH SWARAJ ROUND, THRISSUR-680 020.
BY ADVS.SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN.
SRI.K.M.ABDUL MAJEED
RESPONDENT/APPLICANT:
SMT.P.MANDAKINI
W/O.LATE SHRI KAMALASANAN,
PURAMPIL VEEDU,, VALIYODU,
ODANAVATTOM,KOLLAM.
BY ADV. SRI.T.M.CHANDRAN
BY ADV. SRI.JOSEPH ALBIN NEDUNTHALLY
BY ADV. SRI.V.A.SASIDHARAN
THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON
15.06.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. Harilal & P.Somarajan, JJ.
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Ins. Appeal No.26 of 2010 (E)
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Dated this the 15th day of June, 2017
JUDGMENT
Harilal, J.
This Insurance Appeal is filed by the Opposite Party, Employees State Insurance Corporation, challenging the order passed by the Employees' Insurance Court, Palakkad in I.C.No.25 of 2007. The respondent herein was the applicant therein. She filed the said application challenging Ext.A1 notice requiring her to pay contribution, under the Employees' State Insurance Act, 1948, for the periods from 06/85 to 07/85 and from 10/91 to 09/2001. According to the respondent, she was not the employer of the factory in question, as she had already transferred the factory, under lease, to different persons and she is not liable to pay contribution, after the said transfer, under lease, in view of Section 93A of the Employees' State Insurance Act. After considering the objection raised by the appellant herein, the Insurance Court quashed Ext.A1 notice, on a finding that even though the factory license continued in her name, she had already transferred the factory to different persons during Ins. Appeal No.26 of 2010 (E) :: 2 ::
different periods and thereby, she is not liable for the amount quantified in the notice, as employer. The above finding is mainly challenged in this Appeal.
2. Learned counsel for the appellant submits that the respondent, being the principal employer, will not get immunity from the liability to pay contribution, under Section 93A of the Employees' Insurance Act and the court below went wrong in granting exemption by interpreting the said provision.
3. Per contra, learned counsel for the respondent advanced arguments to justify the findings of the Insurance Court made under Section 93A of the Employees' Insurance Act and cited the decision in K.C.Thomas v. Regl. Director, ESI Corporation (1997 (1) K.L.J.
321) to fortify his argument.
4. We have gone through the findings of the court below in view of the decision cited before us. It is the case of the respondent that she had already transferred the factory under lease to different persons during different periods and thereby, she is not liable to pay Ins. Appeal No.26 of 2010 (E) :: 3 ::
contribution for that period. It is pertinent to note that the notice issued under Section 93A of the Employees' Insurance Act alone is challenged in the said application. We are of the opinion that, on receipt of the notice, the respondent rushed to the Employees' Insurance Court challenging the notice without filing an objection against the notice, stating that she had already leased out the factory to different persons covering the said period. We find that without examining genuineness of the alleged transfer claimed by the respondent, the Insurance Court has exonerated her, on a finding that she had already transferred the factory to different persons, as she alleged. We further find that it was a matter to be proved by the respondent by documents evidencing such a transfer, as claimed by her. However, without considering the factual question in controversy, the Insurance Court quashed the entire proceedings, under Section 93A on the basis of the decision referred above. Thus the impugned order is vitiated by illegality and irregularity. Of course, the respondent has the right to file an objection before the Appellant and substantiate her contentions.
5. In the above view, we set aside the impugned order under Ins. Appeal No.26 of 2010 (E) :: 4 ::
challenge. It is made clear that the respondent is at liberty to file an objection against Ext.A1 notice before the Appellant and, in that event, the Appellant shall pass orders after affording an opportunity of being heard to the respondent herein. Respondent shall file objection within one month from the date of receipt of a copy of this judgment, and in case, the Respondent fails to file objection, within the aforesaid time, the Appellant will be at liberty to enforce Ext.A1 notice. But, on compliance, Ext.A1 shall not be enforced till the passing of orders thereon. It is also made clear that we have not considered the merits of the case.
The Insurance Appeal is allowed in part. Registry is directed to send back the records, at the earliest.
K. Harilal Judge P.Somarajan Judge ahz/