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IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
A.M. BASHEER AHAMED, J.
ESI Corporation Sub-Regional Office - Appellant
Versus
M/s. Sri Jayavilas Meals Hotel - Respondent
C.M.A (MD) No. 1451 of 2012 and C.M.A (MD) No. 1767 of 2013
Decided On : 04-07-2018
ESI Act, 1948 - Section 82 - Section 45(A) - Employees State Insurance Corporation - ESIC has resorted to Section 45-A against the employer, since there is failure of production of records and there is no co-operation by the employer. Since the employer failed to appear after receipt of show-cause notices issued by the ESIC, there is no need to give any findings in the said order, dated 30.01.2000, on whether the ESI Act is applicable to the unit or whether the claim is within the period of limitation - , no question of violation of Rules of Natural Justice arises in this case. Considering the above facts and circumstances of the case and also the Judgments of the Apex Court relied by ESI Corporation in respect of limitation point, this Court is inclined to allow these Appeals by setting aside the order passed by the ESI Court- issue in respect of number of employees, as contended by the employer, and also the point of issue of limitations raised by the employer in his appeal, is also decided in favour of the ESIC, in these appeals and hence, order of remand for fresh disposal as ordered by the Court below is also set aside - Civil Miscellaneous Appeals are allowed
A.M. BASHEER AHAMED, J.
1. The Civil Miscellaneous Appeal in C.M.A(MD)No.1451 of 2012 has been filed praying to set aside the order, dated 30.08.2012, passed by the ESI Court (Labour Court), Madurai, in E.S.I.O.P.No.17 of 2001.
2. The Civil Miscellaneous Appeal C.M.A(MD)No.1767 of 2013 has been filed under section 82 of ESI Act, 1948, praying to set aside the order, dated 30.08.2012 of the Employees State Insurance Court (Labour Court), Madurai, passed in E.S.I. O.P.No. 17 of 2001.
3. The appellant and the respondent in CMA(MD)No.1451 of 2012 are arrayed as respondent/petitioner respectively in E.S.I.O.P.No.17 of 2001, on the file of the ESI Court (Labour Court) Madurai. The Employer/Petitioner in E.S.I.O.P.No.17 of 2001 also filed CMA(MD)No.1767 of 2013. Both the Civil Miscellaneous Appeals are filed before this Court challenging the order, dated 30.08.2012, passed by the ESI Court (Labour Court), Madurai, in E.S.I.O.P.No.17 of 2001, which allowed the petition, setting aside the notice of the Employees State Insurance Corporation, (in short ESIC), dated 30.01.2000, issued under section 45(A) of the ESI Act, 1948 and also remitted the case back to the ESIC for fresh disposal according to law, after issuing notice to the employer and affording reasonable opportunity to file representations and documents and after hearing the employer, within a period of three months from the date of receipt of a copy of that order.
4. The main contention of the employer is that the ESIC has no right to claim contribution from the employer establishment, as per the provisions of the Act, since the employer establishment has never employed more than 7 or 8 persons to run the establishment and the claim of the contribution in the Notice, dated 30.01.2000, is barred by the limitation, since the notice has been issued after lapse of more than 18 years ie., on 06.10.1998.
5. The proprietor of the establishment/hotel was examined as P.W.1. Ex.P1 (C18 Notice), dated 06.10.1998, Ex.P2 (Section 45(A) Order), dated 31.01.2000, Ex.P3, Ledger of 1992-93 and Ex.P4, Ledger of 1993-94 were marked on the side of the employer. The Inspector of ESIC, who inspected the petitioner Establishment/Hotel on 25.02.1997, in the presence of one B.Saravanan, representing the employer was examined as R.W.1., On proof affidavit, Exs.R1 to R8 were marked.
6. The preliminary Inspection Report of the establishment, dated 25.02.1997/Ex.R1 reveals the fact that the inspection/visit was carried out on 25.02.1997, in the presence of one B.Saravanan and on the date of inspection, 11 persons were found working including the above said Saravanan, in the manufacturing process, with the use of powers and verified the records. Ex.R2/Visit Note also proves the factum of 10 named persons were employed in the manufacturing process. Exs.R4 & R6 are the C18 Adhoc basis show-cause notices issued to the employer for the period from 01.06.1992 to 31.03.1998 regarding the proposed determination of contribution for Rs. 1,10,682/- totally and from 01.04.1998 to 30.09.1998 for Rs. 15,337/- respectively for 11 employees, by fixing personal hearing with necessary documents for appearance of the employee or his representatives on 08.11.1998 and 05.08.1998 respectively. Both the show-cause notices were received by the employer under Exs.R5 and R6.
7. The above facts are not disputed by the employer during evidence of R.W.1. There is no mentioning about the issuance of Ex.R6, show-cause C18 Notice and also receipt of it, in the main petition. Hence, sufficient opportunities were given for hearing of the petitioner establishment against the proposed adhoc assessment for the period from 01.06.1992 to 31.03.1998 and from 01.04.1998 to 30.09.1998.
8. P.W.1 has categorically admitted during his evidence that he failed to appear for the personal hearing and also failed to send any representation/reply to the show-cause notices. No valid reason is assigned for his non-appearance in the personal hearing. The e
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