An establishment with fewer than ten employees does not fall under the Employees State Insurance Act, 1948, and arbitrary orders without due process violate principles of natural justice.

JUDGMENT :

Subhash Chand, J.

This miscellaneous appeal has been directed under section 82(2) of Employees State Insurance Act, 1948 on behalf of the appellant/petitioner Rajesh Kumar Sharma against the Employees State Insurance Corporations and others dissatisfied with the order dated 17.06.2009 passed by the Presiding Officer of Labour Court-cum-Employees Insurance Court, Ranchi in E.S.I Case No. 10 of 2002 whereby the appellant/petitioner’s case instituted under section 75 of Employees State Insurance Act challenging the order dated 02.06.2000 under section 45A of Employees State Insurance Act has been dismissed.

2. The brief facts leading to this miscellaneous appeal are that appellant/petitioner Rajesh Kumar Sharma has filed an application under section 75(1)(a)(g) of Employees State Insurance Act, 1948 before the Presiding Officer of Labour Court, Patna after creation of Jharkhand State filed the same application before the Presiding Officer, Labour Court, Ranchi with these averments that the petitioner Rajesh Kumar Sharma is the proprietor of restaurant at Main Road, Ranchi. The said restaurant is run by the name and style Marwari Kalewalaya. The snacks, meals are prepared and are sold and served therein to the customers. The said establishment is duly registered under the provisions of Bihar Shops and Establishment Act right from the year 1966 and in lieu of such registration Labour Department, Ranchi had granted and renewed the registration certificate time to time under the said Act. The registration certificate under the said Act has been renewed upto 01.12.1998 and the petitioner’s application for renewal of the same thereafter was pending with the Labour Department, Ranchi.

2(i). It was also further stated that petitioner Rajesh Kumar Sharma had received notice on 15/23.02.1999 from the Manager, E.S.I Corporation, Kokar PS Sadar District Ranchi in which the petitioner was asked to show cause why the proceeding against him be not instituted for non-registration and non-compliance of the Provisions of E.S.I Act. The reply of the very notice was also given by the petitioner Rajesh Kumar Sharma on 09.03.1999 enclosing therewith the copy of registration certificate under the Bihar Shop and Establishment Act and also the photo copy of the attendance register showing therein the number of employee to be nine (9).

2(ii). Further it has been submitted that E.S.I Inspector, ESI Corporation, Kokar District Ranchi alongwith other officers of the E.S.I Corporation had made a surprise inspection of the establishment of the petitioner Rajesh Kumar Sharma time to time. They never found more than eight (8) employee at the establishment. Even on 29.06.2000 during inspection the eight (8) employees in the said establishment were found and the attendance-cum-wages register was also counter-signed by the Inspector in which eight employees were found working. Petitioner Rajesh Kumar Sharma never received any other notice except the notice dated 15.02.1999 issued by the Manager, E.S.I Corporation, Kokar PS Sadar District Ranchi. All of a sudden he received an order dated 06.06.2000 passed by the Deputy Director, E.S.I Corporation, Panchdeep Bhawan, District Patna wherein it has been held inter-alia that no record was produced before him to show the number of employee while at the time admitting receipt of the petitioner’s representation dated 09.03.1999 the ex-parte order under section 45A of the E.S.I Act, 1948 levying dues to the tune of Rs.37,180/-in addition to the interest of Rs.9,056/-for the period of 01.09.1997 to December, 1998. The said order is wholly arbitrary, illegal and is high handed manner. On 29.06.2000 the petitioner Rajesh Kumar Sharma appellant herein pointed out to E.S.I Inspector, E.S.I Corporation, Kokar District Ranchi that at the adjoining restaurant were number of shops and establishment having similar number of employee but the respondent no.3 and his higher authorities were not proceeding against them and were pic