The central legal point established in the judgment is the interpretation of the definition of 'employee' under Sec. 2(9) of the ESI Act and the provisions related to the payment of contribution and interest under the ESI Act.

JUDGMENT/ORDER

1. This appeal is filed by the Employees State Insurance Corporation (hereinafter referred to as 'the ESI Corporation') under Sec. 82 of the Employees State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') challenging the order dtd. 29/9/2014 passed by the Employees State Insurance Court at Bangalore (hereinafter referred to as 'the ESI Court') in E.S.I. Application No.20/2010, whereby the application has been allowed in part and applicant was held liable to pay the contribution towards the wages and salaries for the year 2006-2007 to the ESI Corporation, but in respect of the years 2004-2005 and 2005-2006, the same has been rejected.

2. For the sake of convenience, the parties are referred to as per their rankings before the E.S.I. Court.

3. The brief facts of the case are that the applicant was carrying on the business in steel trading for which it uses cranes and also engaged the services of loaders and un-loaders and for the services rendered by the loaders and un-loaders the applicant was paying coolie and there is no master and servant relationship between the applicant and the loaders and un-loaders. Hence, they are not the employees as defined under Sec. 2(9) of the ESI Act. Therefore, the applicant is not liable to pay any contribution in respect of the loaders and un-loaders.

4. The ESI Inspector visited the establishment of the applicant on 24/9/2007 and 7/11/2007 and submitted a report to the ESI Corporation that there are more than 20 employees working in the establishment, for the years 2004-2005, 2005-2006 and 2006-2007 the applicant has not paid any contribution to the ESI Corporation in respect of the employees working in the establishment. On the basis of the report submitted by the ESI Inspector, the ESI Corporation has initiated a proceedings under Sec. 45-A of the ESI Act and issued a notice to the applicant on 8/4/2009. After considering the reply submitted by the applicant, the ESI Corporation has passed an order under Sec. 45-A of the ESI Act on 15/1/2010 which is marked as Ex.A13 directing the applicant to pay contribution to the Corporation for the years 2004-2005 to 2006-2007. Being aggrieved by the same, the applicant filed an application before the ESI Court in E.S.I. Application No.20/2010. The ESI Court, by the impugned order dtd. 29/9/2014 allowed the application in part and directed the applicant to pay contribution towards wages and salaries for the year 2006-2007 without any interest. In respect of 2004-2005 and 2005-2006 are concerned, the claim of the Corporation has been rejected. Being aggrieved by the rejection of the claim of the ESI Corporation in respect of the years 2004-2005 and 2005- 2006 and also waiver of interest, the ESI Corporation has filed this appeal.

5. Smt. Geethadevi M.P., learned counsel appearing for the appellant has raised the following contentions: Firstly, as per the report of the ESI Inspector who has conducted the inspection, the establishment of the applicant has more than 20 employees. Since the establishment is covered under the ESI Act, they have to pay the contribution towards wages and salaries to the ESI Corporation. Even though the applicant claims that they are only hamalies and they are not regular employees, by looking to the nature of work, payment of salary made for the years 2004-2005 to 2006-2007 it is very clear that they are working as regular employees.

Secondly, even though they are hamalies, they are engaged for loading and unloading of the goods, which is a regular activity. Hence they are employees as defined under Sec. 2(9) of the ESI Act. In support of her contention, she has relied on the judgment of the Hon'ble Apex Court in the case of RAJAKAMAL TRANSPORT AND ANOTHER vs. EMPLOYEES STATE INSURANCE CORPORATION, HYDERABAD reported in (1999) 9 SCC 644.

Thirdly, if any amount is due from the establishment in respect of contribution, as per Sec. 39(5) of the ESI Act the establishment has to pay the interest for the