Delhi District Court
Gupta Trader vs Esic on 25 October, 2023
In the Court of Ms. Upasana Satija: Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
ESIC No.79/2016
CNR No.DLCT030052682016
In the matter of :-
1. M/s. Gupta Traders,
Through Shri Vijay Prakash Gupta,
Proprietor,
Unit No. 108, Plot No. 4,
Vardhan Shopping Mart,
Derawal Nagar, New Delhi-110009.
2. Smt. Imrana Khatoon @ Khanam
W/o Sh. Mohd. Yameen,
3. Mohd. Musaif Saifi,
S/o Mohd. Yameen,
4. Mohd, Rihan,
S/o Mohd. Yameen
No. 2 to 4 R/o E-54,
Street No. 5, South Anarkali,
Krishna Nagar, Delhi-110051.
......Petitioners
VERSUS
1. Employees State Insurance Corporation,
Panchdeep Bhawan, CIG Marg,
New Delhi-110002.
2. Employees State Insurance Corporation,
Regional/Divisional Office,
Rajemdra Bhawan, Rajendra Place,
New Delhi.
3. Employees State Insurance Corporation,
Branch Office : Subzi Mandi,
Delhi-110007.
......Respondents
ESIC No.79/2016 Page no. 1 of 14
Date of institution : 08.09.2016
Reserved for Judgment : 25.10.2023
Date of decision : 25.10.2023
Petition under Section 75 of the ESI Act
JUDGMENT
1. This is the petition under Section 75 of Employees State Insurance Act, 1948 (hereinafter referred as " ESI Act") initially filed by petitioner no. 1 M/s. Gupta Traders, through its proprietor Shri Vijay Prakash seeking setting aside/quashing of the order No. D/S.Mandi/Death/1013798719 dated 05.08.2014 issued by the Branch Office, ESI Corporation, Subzi Mandi, Delhi-110007, vide which the Regional Director of respondent corporation has rejected the claim of deceased, who died during the course of his employment, in an accident dated 26.11.2013, which arose out of and in the course of employment. The Regional Director of the Respondent Corporation has rejected the claim on the ground that the Joint Director of Division Office, Shahdara, Delhi after verifying the documents submitted after the accident had not accepted the injury, as an Employment Injury. Consequently, the deceased was not found an employee as per the definition of employee, as enunciated in Section 2(a) of ESI Act, 1948.
PLEADINGS Brief Facts pleaded in the petition 2.1. Petitioner no.1 is a proprietorship concern firm and Sh. Vijay ESIC No.79/2016 Page no. 2 of 14 Prakash Gupta is the proprietor, who runs his firm in the name and style of "M/s. Gupta Traders" having address as mentioned in the array of the parties. This present petition is being filed through the proprietor of the petitioner's firm who is well conversant with the facts and circumstances of this case and competent to file the present petition.
2.2. The petitioner's firm is covered under ESIC vide code no. 10000357760001001 w.e.f. 01.08.2002 and in execution of Work Order No. SER/DSC/23529932 of BSES it had deployed its employees wherein one of the employees was Mohd. Yamin, who died during and out of course of his employment. The said employee was duly covered under the said policy vide Insurance No. 1013798719 in due course of time. On the most unfortunate day of 26.11.2013, while the workman Mohd. Yamin was working at the site of BSES, he met with an accident by electrocution which resulted into his death. That after the said most unfortunate death of young man, petitioner no. 1 submitted required documents claiming compensation from respondent/corporation, who refused/rejected the claim of the said employee by giving reasons that the injury sustained, resulted into the death of the deceased was not an outcome of employment injury and hence the deceased was not an employee as defined under Section 2(a) of ESI Act, 1948 amended upto date.
2.3. The reasons of rejection of the benefits to an insured employee are not based on legal grounds as the reasons given by the respondents are totally illegal, unjustified, whimsical, against settled law and uncalled for an account of the following amongst other Grounds :
a. In ESI Act, 1948, there is no section as 2(a), referred by the ESIC No.79/2016 Page no. 3 of 14 respondent Corporation, defining employee, which shows that how the approach of the respondent corporation was casual while verifying the documents for approval of the claim filed by the employer of the deceased employee. However, in ESI Act, 1948, Section 2(9) defines "Employee". A bare reading of the said section it is clear the deceased Md. Yamin was an employee who was employed by petitioner no. 1 for wages in connection with the work of the petitioner's unit.
b. On the most unfortunate day of 26.11.2013, one of the employees namely Md. Yamin, now deceased met with an accident at around 11 AM in the morning during the course of and arising out of his employment resulted into his death. That the other employees namely Mr. Satish Kumar bearing insurance no. 1013762069 and another employee namely Mr. Rajesh Negi duly covered under Insurance, were also working with said Mohd. Yamin, who after the said accident had also given in writing about the describing the accident resulted into th death of Md. Yamin. The matter was intimated to the police and an FIR vide its no. 975/2013, U/s. 304A IPC was registered at P.S. Mehrauli, South-West District, New Delhi c. The deceased Sh. Md. Yamin was appointed by petitioner no. 1 on dated 01.10.2013 and in this regard, letter of appointment letter was also issued to him. His name appears on the muster rolls and payment of wage register which was duly maintained by the management it its due course of business.
d. As stated above that the unit was duly covered under the ESI and list of employees was also given to the respondent corporation and name of deceased Mohd. Yamin was well therein the said list, so there is not an iota of doubt that the deceased Md. Yamin was not an employee of the petitioner. Further as per definition of "employee under Section 2(9) of ESIC No.79/2016 Page no. 4 of 14 ESI Act, 1948, said deceased Md. Yamin falls within the definition of the employees.
e. After completing all the formalities and submission of all the documents pertaining to accident dated 26.11.2013, petitioner no. 1 received letter/order dated 05.08.2014 thereby the respondent rejected the claim of deceased employee on the ground that the said employee was not found an employee as defined U/s. 2(9) of Employees State Insurance Act, 1948.
f. Petitioner no. 1 was shocked to know the reasons of rejection of claim and vide its letter dated 19.08.2014, petitioner no. 1 submitted its objections and explained in details as to why the basis of rejection of claim was not tenable in the eyes of law, but despite receipt of said letter explaining therein as to how the rejection by the respondent was baseless, the respondent did not consider the same and in reply thereto the respondent had given reasons of rejection vide its letter no. D/DO/Shd/Nft/Accident/ 146/1013798719/2014/part file dated 05.09.2014. Respondent has given appalling reasons for rejecting the claim. g. Petitioner no.1 approached the head office of the respondent for revision of the order passed by its Regional Office and the said representations for revision was rejected by the Respondent ESIC vide its order dated 05.04.2016 without assigning any reason. h. The respondent had acted arbitrarily and in utter violation of law as enunciated under the ESI Act, 1948 and thereby rejected the claim of deceased workman more or so when the unit was covered under ESI, deceased was insured, accident had occurred during the course and out of his employment, the contributions have already been paid and accepted by the respondent corporation.
ESIC No.79/2016 Page no. 5 of 14 Brief Facts pleaded in the Written Statement filed by Respondents
3.1. It has been concealed that the said employee was not on the role of the petitioner no. 1 company on the date of accident. It has also been concealed that the employee Mohd. Yaseen remain absent from 02.11.2013 to 24.11.2013 just after joining the petitioner no. 1 on dated 01.11.2013 and became present in the petitioner firm on 25.11.2013 i.e. just one day before the accident. It has also been concealed that Mohd. Yameen was working (as per FIR) under the control of contractor Mr. Saket Gupta and Saket Gupta has been shown the proprietor of Mohd. Yameen while as per the record of ESIC, Mr. Vijay Prakash Gupta is the proprietor of M/s. Gupta Traders and the police officials have also not shown that Mohd. Yameen was working under Mr. Ved Prakash Gupta on dated 26.11.2013. It has also been concealed that Mohd. Yameen has been registered with ESI corporation dated 19.12.2013 after 49 days of the appointment of the employee. It is also concealed that the accident report was submitted by the Employer after six month from the accident.
3.2. The contribution amount in respect of the said employees has never been deposited with the ESIC and Mohd. Yameen was got registered with ESIC on 19.12.2013 just after 49 days of appointment and 24 days after accident.
3.3. Petitioner no. 1 is liable to be prosecuted for manipulating the employment record of the employee as the death occurred on dated 26 th Nov. 2013 while the employee was got registered on 19.12.2013, just to extort money from the ESI Corporation.
ESIC No.79/2016 Page no. 6 of 14 3.4. The decision of Hon'ble Apex Court in Bharagath Engineering Vs. R. Ranganayaki is not applicable upon the respondent as the deceased employee was not the employee of petitioner under Section 2 sub Section 9 of ESI Act.
3.5. The insured person (if insured with ESI Corporation) cannot seek any compensation or other grants except from the ESI Court.
4. Legal heirs of the deceased were added as Petitioner no. 2, 3 and 4 upon an application under Order I Rule 10 moved subsequent to order dated 20.04.2017 of Hon'ble Delhi High Court in FAO No. 93/2016 and C.M. Nos. 10222/16 & 6677/2016 titled Saket Gupta v. Imrana Khatoon & ors.
ISSUES
5. On the basis of the pleadings, following issues were framed:
1. Whether the letter/order no. D/No. Mandi/Death Case/1013798719 dated 05.08.2014 issued by respondents vide which the claim for dependent benefit was rejected is liable to be quashed? OPP
2. Whether the petitioner is guilty of concealment of true facts from the Court? OPR
3. Relief
6. It has been submitted on behalf of petitioners, that in view of order of Hon'ble Delhi High Court, it is established that deceased was an ESIC No.79/2016 Page no. 7 of 14 employee of petitioner no. 1 firm and was covered under ESIC Act and hence, there is no requirement of leading any evidence. It was further submitted that Hon'ble Supreme Court in the case of Bharagath Engineering Vs. R. Ranganayaki and Another (2003) has held that "once an employee is an employee covered under the ESIC Act, merely because the registration is granted under the ESIC Act to the employer with respect to the deceased employee after the death of the employee, would not mean that the ESIC Act will not apply." Hence, even if in the present case registration of the deceased under ESIC Act was after his death, in view of the judgment of Hon'ble Supreme Court, the legal heirs are entitled to claim compensation under ESIC Act.
7. On behalf of respondents, it was submitted that judgment of Hon'ble Supreme Court is not applicable as respondents dispute that deceased was employee of the petitioner no. 1 firm.
8. Submissions heard. Record perused.
9. Order dated 20.04.2017 of Hon'ble Delhi High Court in FAO No. 93/2016 and C.M. Nos. 10222/16 & 6677/2016 titled Saket Gupta v. Imrana Khatoon & ors. is reproduced hereunder:
"1. This first appeal under Section 30 of the Employees Compensation Act, 1923 challenges the judgment of the Employees Compensation Commissioner awarding the claim/compensation to the respondents herein, and who were the claimants before the Employees Compensation Commissioner, on account of the death of one Mohd. Yameen. The respondents herein are the legal heirs of deceased Mohd. Yameen.
ESIC No.79/2016 Page no. 8 of 14
2. The impugned judgment dated 18.11.2015 shows that the appellant had taken the objection that the deceased Mohd. Yameen was in fact an employee of M/s Gupta Traders which is a sole proprietary concern, not of the appellant, but of the father of the appellant Sh. Vijay Prakash Gupta. The firm of M/s Gupta Traders; sole proprietor Mr. Vijay Prakash Gupta is duly registered under the Employees State Insurance Corporation Act, 1948 (in short 'ESIC Act') as per Code No. 10000357760001001 with effect from 2002. Accordingly, it was contended on behalf of the appellant that the respondents will have to take their benefit not under the Employees Compensation Act but under the ESIC Act in view of Section 53 of the ESIC Act. Section 53 of the ESIC Act contains a bar to the grant of compensation under the Employees Compensation Act in case the employee is covered under the ESIC Act.
3. ESIC was noticed by the Employee's Compensation Commissioner and since ESIC denied its liability, hence the Employee's Compensation Commissioner allowed the claim petition under the Employee's Compensation Act.
4. It may be noted that ESIC denied its liability on the ground that the deceased Mohd. Yameen was registered as an employee with the ESIC after his death and consequently respondents did not have entitlement under the ESIC Act. Mohd. Yameen died on 26.11.2013 and he was registered under the ESIC Act from 19.12.2013. Learned counsel for the appellant has placed reliance upon the judgment of the Supreme Court in the case of Bharagath Engineering Vs. R. Ranganayaki and Another (2003) 2 SCC 138 and which judgment holds that once an employee is an employee covered under the ESIC ESIC No.79/2016 Page no. 9 of 14 Act, merely because the registration is granted under the ESIC Act to the employer with respect to the deceased employee after the death of the employee, would not mean that the ESIC Act will not apply. Supreme Court in the case of Bharagath Engineering (supra) has referred to various provisions of the ESIC Act and rules framed there under along with regulations framed under the ESIC Act to observe that in spite of insurance premium being not paid by the employer, the employee or his dependants cannot be deprived of the benefit of the ESIC Act.
5. Learned counsel for the appellant also states that appellant has in fact filed an appeal under Section 75 of the ESIC Act against the order of the competent authority under the ESIC Act refusing to treat the respondents as beneficiaries under the ESIC Act and this appeal is pending. It is stated that the appellant will add the present respondents, being the legal heirs of Mohd. Yaseen as co-appellants in that appeal, and needful will be done within a period of two weeks from today. Appellant will do the needful as per this statement.
6. Since the respondents are confronted with the bar under Section 53 of the ESIC Act whereby compensation cannot be claimed under the Employees Compensation Act, learned counsel for the respondents agrees that this appeal be disposed of by setting aside the order of the Employees Compensation Commissioner dated 18.11.2015, but the respondents be held entitled to rights under the ESIC Act, and for which purpose as already stated above, respondents will be added as co- appellants in the appeal filed by the appellant under the ESIC Act. Ordered accordingly. The application when filed by the present appellant before the appellate authority ESIC No.79/2016 Page no. 10 of 14 under the ESIC Act will be signed by the respondents herein giving their consent for being added as co-appellants in the appeal filed under Section 75 of the ESIC Act.
7. In view of the above discussion, though the impugned judgment of the Employee's Compensation Commissioner dated 18.11.2015 is set aside, respondents are directed to be made as parties to the appeal filed under Section 75 of the ESIC Act and the respondents along with the present appellant will be entitled to pursue the appeal for getting appropriate claims under the ESIC Act in terms of the ratio of the judgment of the Supreme Court in the case of Bharagath Engineering (supra). Appeal is accordingly disposed of, leaving the parties to bear their own costs."
10. The claim of the deceased was rejected by the respondents citing the reason that deceased was not an employee. Dependants of the deceased were awarded compensation under the Employee's Compensation Act but said order has been set aside by Hon'ble Delhi High Court observing that dependants are confronted with bar under Section 53 of the ESI Act whereby compensation cannot be claimed under Employee's Compensation Act.
11. Section 53 of ESI Act provides:
"An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen's Compensation Act, 1923 or any other law for the time being in force or otherwise, in respect of an employment injury ESIC No.79/2016 Page no. 11 of 14 sustained by the insured person as an employee under this Act."
12. Accordingly, Hon'ble Delhi High Court has already come to conclusion that deceased was an insured person as an employee under ESI Act and hence, his dependants are confronted with bar of Section 53 of ESI Act.
13. Respondents in their Written Statement stated that it has been concealed that the said employee was not on the role of the petitioner no. 1 company on the date of accident. It has also been concealed that the employee Mohd. Yaseen remain absent from 02.11.2013 to 24.11.2013 just after joining the petitioner no. 1 on dated 01.11.2013 and became present in the petitioner firm on 25.11.2013 i.e. just one day before the accident. It has also been concealed that Mohd. Yameen has been registered with ESI corporation dated 19.12.2013 after 49 days of the appointment of the employee.
14. Accordingly, on one hand respondents state that deceased was not on the role of the petitioner no. 1 company on the date of accident and on other hand, they state that the deceased remain absent from 02.11.2013 to 24.11.2013 just after joining the petitioner no. 1 on dated 01.11.2013. Hence, the fact that as per records, the deceased joined petitioner no. 1 firm on 01.11.2013 is admitted by the respondents. Further the fact that deceased was registered with ESIC is also admitted although the registration is stated to have been after 49 days of the appointment of the employee.
15. Respondents in their Written Statement further stated that Petitioner no. 1 is liable to be prosecuted for manipulating the employment ESIC No.79/2016 Page no. 12 of 14 record of the employee as the death occurred on dated 26 th Nov. 2013 while the employee was got registered on 19.12.2013, just to extort money from the ESI Corporation.
16. For the alleged conduct of the employer, dependants of the deceased cannot be made to suffer. Order granting compensation to them under Employees Compensation Act has already been set aside as they were confronted with bar under Section 53 of ESI Act. Now making them go through the entire trial appears to be unjust. The dispute is between petitioner no. 1 and the respondents. The facts that deceased was shown as an employee of petitioner no. 1 and has been registered with ESIC are admitted by the respondents. In view of the judgment of Hon'ble Supreme Court in Bharagath Engineering Vs. R. Ranganayaki and Another (2003), merely because the registration is granted under the ESIC Act to the employer with respect to the deceased employee after the death of the employee, would not mean that the ESIC Act will not apply. If there has been any manipulation in the employment record, respondents are at liberty to proceed against employer as per law however, the claim of the dependants cannot be declined.
17. In view of the above discussion, the petition stands allowed and letter/order no. D/No. Mandi/Death Case/1013798719 dated 05.08.2014 issued by respondents vide which the claim for dependent benefit was rejected is hereby quashed. Respondents are directed to decide the claim of dependants of deceased within one month from the date of this order.
18. No order as to cost.
ESIC No.79/2016 Page no. 13 of 14
19. Decree sheet be prepared accordingly.
20. File be consigned to Record Room after due compliance.
Announced in the Open Court
on 25.10.2023
This judgment contains 14 pages Digitally signed
and each page is signed by me UPASANA by UPASANA
SATIJA
SATIJA Date: 2023.10.26
16:41:48 +0530
(Upasana Satija)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
ESIC No.79/2016 Page no. 14 of 14