Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 1413

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. THARANI, J.
Employees State Insurance Corporation, Sub-Regional Office (Tirunelveli), Municipal Shopping Complex, Tirunelveli, Rep. By its Joint Regional Director - Appellant
Versus
P.P. & Sons, Registered Firm, Rep. By its Partner - Respondent
C.M.A.(MD) No. 960 of 2013
Decided On : 13-08-2021

Advocates Appeared:
For the Appellant :R. Ravindaran, Advocate.
For the Respondent:Jerin Mathew, M.E. Ilango, Advocates.

Point of law : Partnership Act - In the enquiry, sufficient opportunity was not given to the respondent to produce documents or to adduce evidence. Hence, the question raised by the appellant regarding the Section 101 of Indian Evidence Act is not maintainable

Headnote:
E.S.I. Act, 1948 - Sections 82, 45(a) and 2(12) - Indian Evidence Act - Sections 101 and 115 - Violation of principles of natural justice - Partnership firm - petitioner is a partnership firm dealing in yarn business - Petitioner is manufacturing lungis and sarees for wages. The petitioner is not the owner of the textile mills - Petitioner engaged only three labourers - No electricity was utilized for the purpose of manufacturing inspection report was prepared by the Officer, it was mentioned that 20 persons were engaged in the manufacturing unit - Petitioner never engaged 20 persons - Enquiry was adjourned enquiry was adjourned Without giving sufficient opportunity to the petitioner, the enquiry officer closed the enquiry and without the knowledge of petitioner, passed an order under Section 45(a) and also passed an order that the petitioner has to pay - Each manufacturing unit is a separate firm –
Finding of the Court:
, Particulars of employees working in respondent company, at the time of visit was not narrated in the visit note - Though it is stated that the unit was a power loom, R.W.1 has deposed that he has not noted E.B. connection number and R.W.1 has deposed that nine power loom were available. But nobody was working in the power loom - He has further deposed that he visited the premises at the time of change of shift and that he did not know how many employees were entering the premises and how many were leaving premises - Contention of visit note was denied by the respondent - Availability of the 20 workers working in the premises was denied by the appellant. The name of the employees, father name were not furnished in the visit note, Ex.R1. visit note mentioned name of the firm as P.P. & Sons power loom - Case was registered against P.P. & sons. No document was filed to show signature in the visit note was made by proprietor or the manager of the unit - Decided that visit note prepared by R.W.1 cannot be treated as an estoppel against the respondent under Section 115 of the Indian Evidence Act - Respondent failed to produce the relevant documents. In the enquiry, sufficient opportunity was not given to the respondent to produce documents or to adduce evidence –
Result: Appeal is dismissed

JUDGMENT :

(Prayer: This Civil Miscellaneous Appeal is filed under Section 82 of the E.S.I. Act, 1948, to set aside the order dated 04.01.2013 passed in ESIOP No.15 of 2008 by the Employees Insurance Court (Labour Court), Tirunelveli.)

1. This Civil Miscellaneous Appeal has been filed against the order passed in E.S.I.O.P.No.15 of 2008 dated 04.01.2013 on the file of the Employees State Insurance Court, Labour Court, Tirunelveli.

2. The appellant herein is the respondent and the respondent herein is the petitioner in the claim petition. The respondent herein has filed a claim petition in E.S.I.O.P.O.P.No.15 of 2008 for permanent injunction and to set aside 45-A order No.66/31027/11/45A/32/08/INS/SRO/TLI dated 02.06.2008.

3. A brief substance of the claim petition in E.S.I.O.P.No.15 of 2008 is as follows:

The petitioner is a partnership firm dealing in yarn business. The petitioner is manufacturing lungis and sarees for wages. The petitioner is not the owner of the textile mills. The petitioner engaged only three labourers. No electricity was utilized for the purpose of manufacturing. On 19.08.2008, in the inspection report was prepared by the Officer, it was mentioned that 20 persons were engaged in the manufacturing unit. The petitioner never engaged 20 persons. Notice under C 18(1) was issued to the petitioner. On 25.04.2008, an enquiry was conducted. The petitioner prayed time for filing document. The enquiry was adjourned to 12.05.2008. Again the enquiry was adjourned to 04.06.2008. Without giving sufficient opportunity to the petitioner, the enquiry officer closed the enquiry and without the knowledge of the petitioner, passed an order under Section 45(a) on 02.06.2008 and also passed an order that the petitioner has to pay Rs.14,300/-. Each manufacturing unit is a separate firm. They have separate door numbers and were doing separate business. There is no connection between the owner of the power looms and there is no common investment. Separate premises and separate E.B. connection is available. There is no possibility of treating the petitioner's unit as a part of other power looms.

4. Brief substance of the counter filed by the respondent is as follows:

The petitioner is manufacturing sarees and lungis using power looms utilizing the heavy electric connection. On 19.02.2018, the Inspector of the respondent visited the premises and found out twenty employees were engaged. No document was filed by the petitioner. The petitioner failed to give the particulars of the employees. Without any objection, the petitioner signed the inspection report. Since the power loom is utilizing electricity, the firm comes under ESI Act, as per Section 2(12) of the Act. Hence, form C(11) with separate number was given to the petitioner. The petitioner failed to file the accounts and failed to pay the contribution to the ESI for the period from 02/2008 to 03/2008. Form C18 was sent. An opportunity was given to the petitioner, but he failed to utilize the same. He has not produced the accounts. Hence, the order under Section 45A was passed.

5. On the side of the petitioner, four witnesses were examined and 24 documents were marked. On the side of the respondent, two witnesses were examined and five documents were marked. After hearing both sides, the Labour Court set aside the order passed by the Corporation. Against the same, the Corporation has preferred this appeal.

6. On the side of the appellant, it is stated that the employer has submitted only irrelevant documents. The relevant documents are not marked. The trial Court has allowed the O.P., without considering the fact that the employer failed to prove the case under Section 101 of Indian Evidence Act and the Labour Court failed to consider that the employer signed Ex.P1. As per Section 115 of the Indian Evidence Act, the respondent is estopped from taking a contra plea against his act. It is the duty of the Inspecting Officer to prepare the visit note and a copy was given to the employer. The

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2021 Supreme(Mad) 1413

Point of law : Partnership Act - In the enquiry, sufficient opportunity was not given to the respondent to produce documents or to adduce evidence. Hence, the question raised by the appellant regarding the Section 101 of Indian Evidence Act is not maintainable

Cases Referred (1)