EMPLOYEES STATE INSURANCE CORPORATION v. PURNA DISTRIBUTORS
2004-07-14
ALOK KUMAR BASU
body2004
DigiLaw.ai
ALOK KUMAR BASU, J. ( 1 ) BOTH sides are present. The hearing is resumed to consider the submission of the learned Advocate for the opposite party who is opposing this application filed at the instance of ESI Corporation. ( 2 ) THE present application has been filed under Article 227 of the constitution of India calling in question the legality and propriety of an order dated 24th September, 2001 passed by the learned Judge, Employees insurance Court in connection with ESI Case No. 32 of 1998. ( 3 ) THE Corporation served a notice upon the opposite party for coverage under the provisions of the Act as, according to the report received through officer of the Corporation, it was available that the opposite party engaged more then 20 employees in the year 1996 so as to attract the provision relating to coverage of employees under the Act. ( 4 ) THE opposite party has challenged the factual aspect relating to engagement or employment of more than 16 permanent employees on the ground that the employees whose names were disclosed by the Officer of the Corporation had no way connected with the affairs of the comipany and hence, they cannot be considered on the wage-list of the company. ( 5 ) THE matter came up for consideration before the learned Judge, employees Insurance Court in connection with Case No. 32 of 1998. Before the Employees Insurance Court both sides adduced both oral and documentary evidence in respect of their respective stand and the learned Judge, after considering the evidence on record, expressed his opinion that there was no evidence to substantiate the contention of the Corporation that the company engaged more than twenty employees at the relevant period as alleged and accordingly, the learned Judge exonerated the company from the liability of coverage under the Act. Being dissatisfied with the order of the learned Judge of the Insurance Court, the Corporation has now come before this Court under Article 227 of the Constitution of India. ( 6 ) THE learned Advocate appearing forthe Corporation has taken me through the judgment of the learned Judge and submits that the learned judge was not justified in arriving at the conclusion that the company did not engage more than twenty employees.
( 6 ) THE learned Advocate appearing forthe Corporation has taken me through the judgment of the learned Judge and submits that the learned judge was not justified in arriving at the conclusion that the company did not engage more than twenty employees. The learned Advocate has referred to a number of decisions to substantiate his point that even if there is no proof to show that the excess employees were not employed directly by the company, yet, if it can be shown from evidence that those employees had nexus with the direct employer through any other agency, those employees would be considered as employee within the meaning of Section 2 (9) of the act. The learned Advocate, in this regard has referred to a Single Bench decision of Andhra Pradesh High Court reported in 2000 (84) FLR 971. The learned Advocate has also relied on two other decisions, one from Andhra pradesh High Court, reported in 2000 (85) FLR 202 and one of Madras High court reported in 2000 (85) FLR 294 touching the same point. The learned advocate, therefore, concludes that the order of the learned Judge of the insurance Court cannot be supported either in fact and law and the same is liable to be set aside. ( 7 ) THE learned Advocate appearing for the company with reference to specific plea of the company taken in the application before the Insurance court and also the stand taken by the Corporation in its written statement submits that there is nothing on record to substantiate the plea that there was additional sixteen employees in the Pay-Roil of the Company and they would come within the meaning of 'employee' as provided in the Act and thereby the Company was under legal obligation to pay the coverage charge underthe Act. The learned Advocate submits that the learned Judge while discussing evidence of both sides clearly held that in the report of the officer of the Corporation there was no recommendation for coverage which would indicate that the officer was not fully satisfied about the number of employees to be included forthe purpose of coverage in the Act. ( 8 ) BEFORE dealing with the merit of the matter it will be relevant to add a few line about the scope of interference with the present order under Article 227 of the Constitution of India.
( 8 ) BEFORE dealing with the merit of the matter it will be relevant to add a few line about the scope of interference with the present order under Article 227 of the Constitution of India. ( 9 ) THE Apex Court has time and again reminded the basic guideline required to be followed while disposing of an application under Article 227 of the Constitution of India. The Apex Court has made it clear that while exercising power under Article 227 of the Constitution of India the High Court is not expected to sit over on appeal overthe order of the Subordinate Court or Tribunal. The Apex Court has further clarified that a Subordinate Court or tribunal would be well within its jurisdiction to pass even an erroneous order and the High Court cannot correct that erroneous order while exercising jurisdiction under Article 227 of the Constitution of India. The Apex Court made further guideline that in order to attract the supervisory jurisdiction of the High Court an aggrieved party must satisfy that there has been apparent mistake on the face of record such a mistake does not require any deep probe but the mistake is ex facie available on record. The Apex Court has. also observed that when there has been a flagrant violation of any statutory provision the High Court must come forward to exercise its jurisdiction. In the same context it has been further held that it is no business of the High court to make reappraisal of evidence and to substitute its own findings with that of the Court below or the Tribunal in the name of exercising jurisdiction under Article 227 of the Constitution of India. I feel that all these guidelines must be kept in mind while disposing of the present application and in that view of the matter, I find that the learned Judge of the Insurance Court on discussing evidence of the parties came to a finding that there was no excess employees so as to attract the provisions. Hence, I cannot take exercise of reappraisal of the evidence to substitute that finding and, accordingly, there is no scope for interference with the present order and the application stands dismissed without any order as to costs. Urgent xerox certified copy of this order, if applied, be supplied as expeditiously as possible.