JUDGEMENT

FACTUAL BACKGROUND

1. This judgment shall decide an appeal under section 82(2) of The Employees‟ State Insurance Act, 19481 filed by the appellant company assailing judgment/order dated 12.12.2018 passed by the then learned SCJ-CUM-RC (West), Tis Hazari Courts, Delhi, designated as Employees‟ Insurance Court, in ESIC Petition No. 18/16 titles as „M/S Gujral Tour and Travels Pvt. Ltd. vs. Employees State Insurance Corporation2, whereby the Learned Trial Court dismissed the petition filed by the appellant company challenging the applicability of the EST Act to it.

1ESI Act 2ESIC FAO 119/2019 Page 2 of 10 FACTUAL BACKGROUND:

2. The appellant is a Private Limited Company duly incorporated under the Companies Act having its office at GL-13, Shiv Nagar, Jail Road, New Delhi – 110058 and is being represented by Shri A S Gujral who is the Managing Director of the appellant company. The appellant company is engaged in business as Travel Agents, Tours Operators, Clearing and Forwarding Agents, Tourists Transport Operators, Ship Broker Customs Agents, Consultants for General Sales for any Airlines, Steamship Companies, Railways, Transport Companies etc.

3. On the other hand, the respondent ESIC3 is an organization fully financed from the contributions received from the poor workers/ insured persons and their employers. The respondent constituted under the ESI Act is enjoined upon to provide for certain benefits to the employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto.

4. Briefly stated, an inspection of the Establishment of the appellant company was conducted by the Social Security Officer4 of the respondent on 05.02.2009, and thereafter on 19.02.2009. Consequently, vide communication dated 23.02.2009, it was conveyed to the appellants herein that they fell under the purview of ESI Act provisionally w.e.f., 01.01.2009 and the establishment was allotted the code 11-40-106673-1006.

3 Employee‟s State Insurance Corporation 4 SSO FAO 119/2019 Page 3 of 10

5. Thereafter, vide order dated 20.12.2011 passed under Section 45-A of ESI Act, the appellants herein were directed to contribute Rs. 85,800/- for the period from April 2009 to March, 2020 under the Act.

It was further stated that this amount would be recovered under Section 45-C to 45-I under ESI Act if the same was not contributed.

Additionally, interest amounting to the tune of Rs. 11,148/- was ascertained to be paid for the period of March 2011 to November

2011.

6. Aggrieved by the above order, the appellant herein filed a petition under Section 75-76 of the ESI Act challenging the demand and recovery of Rs. 85,800/- vide order5 dated 20.12.2011 and demand and recovery of Rs. 11,148.00 vide C-18 no. D/Ins.I/CDO/ l1001066730001006/574/140 dated 02.02.2012. The learned Trial Court framed the following issues for consideration: -

“1. Whether the petitioner is entitled for quashing of the impugned demand of Rs. 85,800/- (as raised by the respondent against the petitioner) and also the order dt 20.12.2011 passed by the respondent? OPP

2. Whether the petitioner has not come to the court with clean hands as mentioned in preliminary objection no. 1 of WS of the respondent and if so, its effect ? OPR

3. Relief ” IMPUGNED ORDER:

7. Suffice to state that at this stage that the learned Trial Court on appreciation of evidence led by the parties found that on the date of inspection, a report was prepared on the spot by the SSO Ex.RW1/1, and admittedly 29 employees were found working in the Establishment and the plea of the petitioner/appellant company that FAO 119/2019