IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31^ST DAY OF JULY 2021

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

M. F. A. NO. 4985 OF 2011 (ESI)

BETWEEN:

VIVIAN CRASTO

PROPRIETOR, CRASTO SONS,

CHIKKANSAL ROAD, KUNDAPUR-576 201

UDUPI DISTRICT.

...APPELLANT

(BY SRI. K R ANANDA, ADVOCATE)

AND:

1 . THE ESI CORPORATION

REPRESENTED BY ITS REGIONAL DIRECTOR,

REGIONAL OFFICE, ESI CORPORATION, NO.10,

BINNY FIELDS, BINNY PET, BENGALURU-23.

2 . THE DEPUTY DIRECTOR

ESI CORPORATION, REGIONAL OFFICE,

NO.10, BINNY FIELDS,

BINNY PET, BENGALURU-23.

&RESPONDENTS

(BY SRI. M P GEETHA DEVI, ADVOCATE FOR R-1 AND R-2)

THIS MFA IS FILED UNDER SECTION 82 OF E.S.I. ACT,

AGAINST THE ORDER DATED 19.03.2021 PASSED IN ESI CASE

No.8/2009 ON THE FILE OF PRESIDING OFFICER, LABOUR Court-

CUM-ESI Court, MANGALORE, DISMISSING THE APPLICATION

FILED UNDER SECTION 75 OF E.S.I.ACT.

2

THIS MFA COMING ON FOR HEARING THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal under Section 82(2) of Employees9 State

Insurance Act, 1948 (8the ESI Act9 for short) by the appellant

Establishment is filed aggrieved by the order dated

19.03.2011 passed by the ESI Court on the application filed

under Section 75 r/w Section 77(1) of ESI Act in ESI

No.8/2009, confirming the order passed by the respondent

dated 17.07.2007.

2.

Brief facts leading rise to filing of this appeal are

as under:

That the appellant is running a workshop at Kundapur

which has less than 10 employees and the provisions of the

ESI Act is not applicable to the said workshop in view of

amended provision of Sub-section (6) of Section 1 of the ESI

Act. The respondent No.2 vide order dated 17.07.2007

determining that the appellant is liable to pay a sum of

Rs.4,28,760/- as a contribution for the period from

3

01.04.1989 to 31.09.2006, is illegal and contrary to the

provisions of the Act and the determination under Section

45A of the Act is supposed to be made on the basis of

information available to the Corporation. The respondent

No.2 issued a show-cause notice dated 04.03.2007. The

appellant did not reply to the show-cause notice. The

respondent No.2 passed an order dated 17.07.2007 calling

upon the appellant to pay the contribution for the said

period. The appellant, aggrieved by the order passed by the

respondent No.2 has filed an application before the ESI

Court. The respondent opposed the said application. The

ESI Court on the basis of the pleadings, framed the following

issues:

(1)

Whether applicant proves that the order

dated

17.07.2007

passed

by

the

respondent, is illegal and arbitrary and the

same is liable to be set aside?

(2)

Whether the applicant proves that the

provisions of ESI Act are not applicable to

his

workshop

for

the

period

from

22.09.1989 to 13.09.2006?

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(3)

Whether the applicant proves that he is only

liable to pay the contribution on the wages

actually disbursed by him for the period

from 1.4.1989 to 21.9.1989?

(4)

What order?

The appellant in support of his case examined one witness as

AW-1 and got marked 27 documents. Respondent examined

one witness as RW-1 and got marked 5 documents. The ESI

Court, after recording the evidence and considering the

material on record has answered issue Nos.1 to 3 in negative

and consequently dismissed the application filed by the

appellant. Hence the appellant has filed this appeal.

3.

Heard learned counsel for the appellant and

learned counsel for respondent.

4.

Learned counsel for the appellant submits that

provision of Sub-section (6) of Section 1 of the ESI Act was

inserted and came into force on 20.10.1989. The period in

question was subsequent to amendment. The said Act is not

applicable to the appellant Establishment. The ESI Court

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without examining the question relating to the liability of the

appellant, has passed the impugned order. Hence prayed to

allow the appeal.

5.

Learned coun