Madras High Court
P.Ganesan (Deceased) vs The Deputy Director on 17 December, 2019
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
C.M.A. No.878 of 2019 and
C.M.P. No.2449 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/12/2019
C O R A M:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
C.M.A. No.878 of 2019 and
C.M.P. No.2449 of 2019
Sri Ganesh Enterprises
Rep. by its Proprietor
1.P.Ganesan (deceased)
2.G.Malliga
3.G.Latha Sri
4.G.Saravana Kumar
5.G.Srinivasan ... Appellants
Vs.
The Deputy Director,
Employees State Insurance Corporation,
143, Sterling Road
Chennai - 600 034 ... Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 83 of the
Employees' State Insurance Act against the judgment and decree of
the Employees State Insurance Court (Principal Labour Court),
Chennai dated 31.3.2016 in EIOP No.327/04 insofar as upholding the
demand of respondent vide 45A order dated 22/27.11.2002 in
Proceedings No.TN/INS.VIII/51-59351-56/2697.
For Appellant : Mr.Solomon
For Respondent : Mr.C.V.Ramachandramoorthy
http://www.judis.nic.in
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C.M.A. No.878 of 2019 and
C.M.P. No.2449 of 2019
JUDGMENT
The present appeal has been preferred under Section 82 of the Employees' State Insurance Act, 1948 against the order of the Employees State Insurance Court (Principal Labour Court), Chennai dated 31.3.2016 in EIOP No.327/04 insofar as upholding the demand of respondent vide 45A order dated 22/27.11.2002 in Proceedings No.TN/INS.VIII/51-59351-56/2697.
2. Contending that the original proprietor, who is said to be the contractor is no more and his legal representatives have been brought on record, it is stated that the original proprietor, who was not only a contractor but was also an employee and the ESI Corporation has foisted the liability to pay the ESI contribution for the period between February 1997 to January 1999 and also for the period between June 1999 to March 2002.
3. The Attendance Register produced showing the wages payable to the employees, was marked as Ex.P3. But, neither the ESI Authority, while passing an order under Section 45-A of the Act nor the ESI Court (Principal Labour Court), Chennai, while passing an http://www.judis.nic.in Page 2/6 C.M.A. No.878 of 2019 and C.M.P. No.2449 of 2019 order under Section 75 of the Act, has taken note of the amount already paid. Since the legal representatives of the deceased are very poor, the amount cannot be paid. It is submitted that, already a portion of the amount has been paid during the pendency of the matter before the ESI Court. Further amount, if any, is liable to be paid, even accepting the contention it was submitted that there were two periods for which demand was made, namely for the periods 2/97 to 6/97, 9/97 to 5/98, 8/98, 9/98, 12/98 and 1/99 and between June, 1999 to March 2002.
4. The ESI Court, has accepted the contention of the deceased that the contract period was terminated from 1.5.1999 and hence set aside the claim made between June 1999 and March 2002. However, it was observed that the appellant has not produced any record to show the payment of contribution for the period 2/97 to 6/97, 9/97, 5/98, 9/98, 12/98 and 1/99 excepting the payment for the period August, 98 and the proof of which has been marked as Ex.R3. For proof of payment for the above periods, except Ex.P1, no other document was produced by the appellant. He further submitted that in 1997, the deceased had registered a proprietorship covered under the provisions of the ESI Act, 1948 but he has not made any contribution even http://www.judis.nic.in Page 3/6 C.M.A. No.878 of 2019 and C.M.P. No.2449 of 2019 though the same was demanded. Even after notice was issued to him, as no document except the one produced and marked as Ex.P1, ESI court has confirmed the order of demand under under Section 45-A of the Employees' State Insurance Act, 1948 and directed the amount to be paid by the concerned.
5. Though the appellants tried to emphasise that the method of calculation was not correct, the nature of dues and the wages taken at Rs.3,575/- per month per employee, were all disputed question of facts, that have already been decided by the ESI court and that the deduction has been made at Rs.285/- per month that Ganesh Industries is covered by the ESI Act, 1948 as the proprietorship concern is liable to pay contribution and having not paid the same, the liability is to be fixed by the authorities as confirmed by the ESI Court under Section 75 of the ESI Act, 1948, cannot be interfered with. Since the appellant even assuming that he was a contractor, it is open to the ESI Corporation to recover the amount from the principal employer and it is open to the principal employer to recover the amount from the legal representatives of the deceased. Even assuming that Thermal Power Plant is the principal employer and the deceased was a contractor, this court cannot substitute this finding of http://www.judis.nic.in Page 4/6 C.M.A. No.878 of 2019 and C.M.P. No.2449 of 2019 fact unless it run counter to this evidence on record.
6. I find no merit in the appeal and the same deserves to be dismissed. Accordingly, the civil miscellaneous appeal is dismissed. However, there shall be no order as to cost. Consequently, the connected civil miscellaneous petition is closed.
17/12/2019
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
Asr
To
The Employees State Insurance Court
(Principal Labour Court), Chennai
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C.M.A. No.878 of 2019 and
C.M.P. No.2449 of 2019
S.VAIDYANATHAN, J.
Asr
C.M.A. No.878 of 2019 and
C.M.P. No.2449 of 2019
17/12/2019
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