The voluntary contribution under the EPF Act does not automatically encompass an establishment under the ESI Act, and the Act cannot be extended to establishments without a notification from the appropriate government.

JUDGMENT :

1. The present appeal emanates from the judgment and award dated 30.08.2019 passed by the Employee State Insurance Court, Ahmedabad in E.S.I. Application No.31 of 2009, filed under section 82 of the Employee State Insurance Corporation Act, 1948 (in short “the ESI Act”), by which the court below has partly allowed the application holding that the action of the Employee State Insurance Corporation of issuing C-11 notice to the opponent-Firm under the ESI Act, thereby covering it under the provisions of the ESI Act w.e.f. 01.01.2007 is illegal and unreasonable and also held that the ad hoc assessment notice dated 06.04.2009 issued by the appellate- Corporation under section 45 of the ESI Act against the Firm is illegal and unreasonable.

FACTS :

2. The opponent-Firm filed ESI Application No.31 of 2009 along with interim application before the Employee State Insurance Court, Ahmedabad under section 75 of the ESI Act challenging the order dated 19.04.2007. The appellant-Corporation filed a written statement at Exh.8 and Exh.9, producing a Visit Note dated 03.04.2007, of the Inspector mentioning the details of the salary sheet and attendance sheet of 34 employees working in the firm, which are covered under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (in short “the EPF Act”). A C-11 notice was issued on 19.04.2007 covering the opponent- Firm. It is the case of the appellant that the officers again visited the premises but the records were not given by the opponent- Firm on 29.08.2008. Finally, an ad hoc assessment was issued vide order dated 12.11.2008 by the appellate-Corporation based on the salary sheet and attendance sheet shown to the inspector on the first visit on 03.04.2007. A show-cause notice was issued by the appellant-Corporation on 26.12.2008 and finally an order came to be passed on 31.03.2009 under section 45A of the ESI Act.

SUBMISSIONS:

3. Learned Advocate Ms.Dimple Thakker appearing for the appellant-Corporation has submitted that at the time of inspection, as mentioned in the visit note dated 03.04.2007, mentions that total 34 employees were working in the opponent-Firm and it was further admitted on their part that they are willingly registered under the EPF Act. Thus, it is submitted that the opponent-Firm is treating its employees as employees within one central legislation i.e. the Provident Fund Act and are willingly contributing towards their provident funds, however they are denying treating them, as an employee under the Insurance Act.

3.1) Learned Advocate Ms.Thakker has submitted that the learned Judge of ESI Court has failed to appreciate that at the time of passing the impugned judgment around 83 employees were working and the provident fund was contributed qua them. It is submitted that as on 16.09.2022 around 124 employees were employed and the provident fund was contributed by the opponent-Firm undisputedly. Hence, it is urged that the submission of the opponent-Firm that they are not an establishment qua the Employee State Insurance Act and their employees are not employees within the meaning of the said Act may not be accepted.

3.2) Finally, it is submitted that the opponent- Firm is a “Commercial Establishment” as defined under section 2(6) of the Gujarat Shops and Establishment (Employees Life Insurance) Act, 1980, and as is required to be covered under section 1(5) of the Employees State Insurance Act.

4. Per Contra learned Senior Advocate Mr.Soparkar with learned Advocate Mr.Gadhia appearing for the opponent-Firm has submitted that, the opponent-Firm is an 'Office of an Advocate', which was covered under the ESI Act and the ESI Corporation also made an ad hoc assessment of Rs.3,28,900/-. It is submitted that the same was challenged by way of ESI Application No.31 of 2009.

4.1) Learned Senior Advocate Mr.Soparker has submitted that the ESI Act is applicable to all the "factories" as per section 1(4) of the ESI Act. It was submitted that the term “factory” is defined