THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.126 of 2015

JUDGMENT:

Aggrieved by order dated 28.02.2011 passed in E.I.C.No.46 of 2005 on the file of the Employees Insurance Court and Chairman Industrial Tribunal-I, Hyderabad (for short ‘the Tribunal’), this Civil Miscellaneous Appeal is filed.

2. Heard Mr. P.Rajasekhar, learned counsel for appellants and none appears for respondent.

3. Respondent is running a filling station under dealership and license of M/s. Indian Oil Corporation Limited. Inspecting Officer, Sri S.G.Taher, inspected the respondent establishment/ filling station on 22.01.2004, as a part of pre-implementation survey, conducted by Employees’ State Insurance (for short ‘ESI’) Corporation, to ascertain the establishments covered under the ESI Act. The Inspecting Officer found that respondent filling station was using power in its business unit and engaged ten employees from 01.01.2003. An inspection report was prepared and recommended that the establishment/filling station is covered under provisions of ESI Act from the date of which the area would be covered under the provisions of ESI Act.

4. On 18.05.2004, code bearing No.52-23326-90 was allotted (Ex.R5). It was informed to the management of the establishment that the provisional date of coverage of the filling station under the ESI Act would come into effect from 01.05.2004. The proceedings in Form C-11 dated 18.05.2004 and proceedings in Form C-18 dated 16.08.2005, proposing to determine the contribution amount of Rs.16,991/- towards ESI contribution payable for the period from 01.05.2004 to 31.03.2005 were issued. It is these proceedings for payment of contribution challenged before the Tribunal. The Tribunal, after elaborately discussing the evidence and documents marked, set aside the proceedings dated 18.05.2004. It is this order dated

28.02.2011 in EIC No.46 of 2005 under challenge.

5. It is submitted by learned counsel for appellants that inspection was conducted in the filling station and found that filling station has employed 10 members and as such, it was informed to the management that the said Unit will be covered under ESI Act, as it employed ten persons and as such, Unit was liable to pay the contribution determined i.e., Rs.16,991/- for the period from 01.05.2004 to 31.03.2005. It is further submitted that once the Unit is inspected and the report speaks that the number of employees were ‘10’ and Unit stands covered under the ESI Act, there is no infirmity in the issuance of proceedings in Form C-11 dated 18.05.2004 and Form C-18 dated 16.08.2005. It is also submitted that the Tribunal did not consider the fact that if the number of employees are 10 in the Unit, it is covered under the ESI Act and that officers of the ESI Corporation inspected the Unit and rightly concluded that the contribution amount is payable by the Unit for the period from 01.05.2004 to 31.03.2005. It is submitted that there is no infirmity in the order passed and the proceedings issued on 18.05.2004. That Tribunal fell into error in not considering the fact that the Unit employed 10 persons, a contention is raised that the Unit made an application to be covered under the ESI Act (such application date and details are not forthcoming in the Tribunal order).

6. There is no appearance on behalf of respondent-Unit. It is observed from the cause-list that the notice is unclaimed.

7. CMA pertains to year 2015 and EIC is of the year 2005. The proceedings under challenge in the EIC are dated 18.05.2004, this Court is not inclined to grant any time and is disposing the matter on merits.

8. Heard learned counsel for appellants and perused the record.

9. Respondent is running the filling station under a dealership and license of M/s. Indian Oil Corporation Limited. Inspector of ESI Corporation visited the unit in 2003 and reported that provisions of ESI Act are applicable in the area(s) and sought to survey the establishment/Unit. Inspector got filled Form No