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2006 DIGILAW 1596 (AP)

E. S. . CORPORATION, REP. BY ITS REGIONAL DIRECTOR, HYDERABAD v. CHAIRMAN AND PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, VISAKHAPATNAM

2006-12-19

A.GOPAL REDDY

body2006
( 1 ) SINCE the issue involved in both the writ petitions and the facts are common, they are heard together and are being disposed of by this common order. ( 2 ) THE petitioner-Employees State insurance Corporation obtained a rule from this Court calling upon the respondents to show-cause as to why a writ in the nature of certiorari should not be issued calling for the records and quashing the orders dated 4/4/1995 passed in. D. Nos. 1 and 2 of 1995 on the file of Chairman and Presiding Officer, industrial Tribunal-cum-Labour Court, visakhapatnam. ( 3 ) THE Inspector of petitioner-Corporation on 26-7-1991 inspected the organization of the second respondent to verify whether the provisions of the Employees State Insurance act, 1948 (for short the Act) are applicable and found that more than 20 workers are employed in the second respondent organization. Accordingly, he addressed a letter to the second respondent on 4/9/1991 requesting it to comply with the provisions of the Act. Since the second respondent failed to comply with the provisions of the Act, the inspector again on 13/5/1992 visited the organization of the second respondent and on verification of the records found that the said organization came into the purview of the Act with effect from 22/7/1989. In spite of the same, as the second respondent did not comply with the provisions of the Act for more than 2 years, the Inspector of the corporation issued a notice to the second respondent on 14/10/1993 and 4/11/1993 to deduct the contributions from the wages of its employees. Aggrieved by the same, the employees. e. the Respondents 3 to 6 in w. P. No. 22808 of 1995 and Respondents 3 to 5 in W. P. No. 22809 of 1995 raised Industrial disputes in. D. Nos. 1 and 2 of 1995 respectively. The petitioner-Corporation questioned the jurisdiction of the Tribunal to go into the question whether the second respondent organization is covered by the employees Provident Fund Insurance Act or not in view of the remedy available under section 75 (1) (g) of the Act and the jurisdiction of all the Courts is ousted to decide such disputes in view of the bar contained under section 75 (3) of the Act. Therefore, the petitioner-Corporation contended before the labour Court that the industrial disputes raised by the employees before it are not maintainable. Therefore, the petitioner-Corporation contended before the labour Court that the industrial disputes raised by the employees before it are not maintainable. The Tribunal by the impugned awards held that the second respondent organization constitute three different legal personalities having independent dealings and geographically they can be treated as they separate independent units for all purposes under the Act. It was held that since the second respondent was proved to be a different distinct one carrying on separate business in a separate building, the second respondent has no case to demand contribution and the provisions of the Act have no application to it. Further, on the point of jurisdiction, it was held that the Tribunal has jurisdiction to enquire any dispute under section 33-C (2) of the Industrial Disputes act. It was observed that the dispute before it is that the amount is sought to be deducted from the salaries of the workmen by the management and therefore, the management must be directed to pay entire salary due to the workmen and while deciding the said dispute, it can go into the matter incidentally to find out whether the provisions of the Act are applicable to the organization of the second respondent. Accordingly, the Tribunal allowed the applications and directed the petitioner-Corporation not to demand contribution from the second respondent organization. ( 4 ) HEARD the learned standing counsel for the petitioner-Corporation and the counsel for the second respondent. In spite of service of notice on the respondents-employees, they have not chosen to put up appearance. ( 5 ) THE point that arises for consideration is "whether the Industrial Tribunal has jurisdiction to decide the aspect of coverage of an establishment under the provisions of the Employees State insurance Act, in an application filed under Section 33-C (2) of the Industrial disputes Act?" ( 6 ) SECTION 75 of the Employees State insurance Act reads as under: "75. Matters to be decided by Employees insurance Court:- (1) If any question or dispute arises as to- (a) Whether any person is an employee within the meaning of this Act or whether he is liable to pay the employees contribution, or (b) the rate of wages or average daily wages of an employee for the purpose of this Act, or (c) the rate of contribution payable by a principal employer in respect of any employee, or (d) the person who is or was the principal employer in respect of any employee, or (e) the right of any person to any benefit and as to the amount and duration thereof, or [ (ee) any direction issued by the corporation under Section 55-A on a review of any payment of dependants benefits or,] (f) [x x x] (g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be or which may be decided by the employees Insurance Court under this Act, such question or dispute subject to the provision of sub-section (2-A), shall be decided by the Employees Insurance court in accordance with the provisions of this Act. (2) x x x (3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees Insurance court. " ( 7 ) SECTION 33-C (2) of the Industrial disputes Act reads thus: "33-C (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate government within a period not exceeding three months. Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit. " ( 8 ) industrial Dispute has been defined under Section 2 (k) of the Industrial Disputes act, which reads thus: "industrial Dispute" means any dispute or difference between employers and employees or between employers and workmen, or between workmen and workmen, which is connected with the employment or with the conditions of labour, of any person. " ( 9 ) THE Employees State Insurance Act, 1948 has been enacted to provide certain cash benefits to the employees in the recognized contingencies of sickness maternity and employment injury and to make provision for certain other matters in relation thereto. The said Act is applicable to all factories including factory belonging to the government and other seasonal factories. Chapter-IV deals with contributions by the employees to be insured and the employers contribution. Chapter V of the Act enumerates the benefits to the insured, their dependents as specified under Section 46 to 73. For adjudication of disputes and claims, Insurance courts have been established under section 74 of the Act to decide the matters enumerated under Section 75 of the Act. ( 10 ) ADMITTEDLY, in the present case it is not a dispute by the workmen with regard to money due from the employer to attract the ingredients of Section 33-C (2) of the Industrial disputes Act to be decided by the Labour court. Under Section 75 of the Employees state Insurance Act, it is the Employees insurance Court which is vested with the jurisdiction to decide the questions/disputes such as liability of the employer/establishment to pay employees contribution, coverage of the establishment under the said act, and whether any person is an employees within the meaning of the Act and his contribution and the rate of contributions etc. and the rate of contribution payable by the principal employer in respect of an employee. As seen from the statements, objects and the scheme of the Act, it goes without saying that the Act is a special enactment enacted with a closely knit scheme providing for coverage of an establishment under the Act, employers and employees contribution for the insured. Employer has to furnish returns and maintain registers as required under the regulations. As seen from the statements, objects and the scheme of the Act, it goes without saying that the Act is a special enactment enacted with a closely knit scheme providing for coverage of an establishment under the Act, employers and employees contribution for the insured. Employer has to furnish returns and maintain registers as required under the regulations. For effective implementation of the scheme, Inspectors and other officials are appointed under Section 45 of the Act, who are authorized to inspect and enquire into the correctness of the particulars stated in the returns referred under Section 44 of the act and determination of the contribution etc. payable by the employer and employees including coverage of the Act. The Inspector or other official appointed under the Act is under obligation to verify the records of an establishment for the purpose of employers contribution and employees contribution. The insurance Court is constituted to decide the disputes in implementation of the Act including a controversy whether a person is an employee within the meaning of the Act and whether the employer is liable to pay the contribution and other disputes as enshrined under section 75 of the Act. It is apparent that the act enacts a complete code containing detailed provisions covering all the essential features of a scheme for coverage of the Act and the contribution to be made by the employer and an employee. It creates the right of contribution by the employer and recovery of certain amounts from the payments due to the employee towards his contribution and remitting the same to the employees State Insurance Fund. The arrears of amounts payable towards contribution under the Act, may be recovered as arrears of land revenue under Section 45-B of the Act on issuance of a certificate by the recovery Officer under Section 45-C of the act. Notwithstanding the issuance of a certificate to a Recovery Officer under section 45-C of the Act, the Director General or any other officer authorized by the corporation may recover the amount by any one of the mode specified under sub-section (2) of section 45-G of the Act. Notwithstanding the issuance of a certificate to a Recovery Officer under section 45-C of the Act, the Director General or any other officer authorized by the corporation may recover the amount by any one of the mode specified under sub-section (2) of section 45-G of the Act. For effective implementation of the provisions of the Act, the Act provides for appointment of an inspector/authorized person entrusted with the task of administering the Act and the persons aggrieved by the orders passed by the Inspector/authorized person, can move the Insurance Court constituted under the act for effective disposal, and the jurisdiction of the civil Courts is barred to entertain such matters. ( 11 ) FROM the scheme of the Act, the conclusion is inescapable that the Parliament intended that the proceedings for coverage of the establishment under the Act must be taken under the Act and not under any other act. Once the special remedy is provided under the Act constituting Insurance Courts to resolve the said dispute, the jurisdiction of the civil Courts and the Tribunals is impliedly barred. The Tribunal committed a manifest illegality in passing the impugned award holding that the Employees State Insurance act has no application to the organization of the second respondent, with fallacious reasoning as referred to above. It assumed the jurisdiction over a non-industrial dispute and therefore, its decision is without jurisdiction. That being so, it must be held that the application filed by the employees- respondents under Section 33-C (2) of the industrial Disputes Act did not lie and the tribunal has no jurisdiction to entertain the dispute and on that ground the writ petitions have to succeed. ( 12 ) FOR the reasons aforementioned, the writ Petitions are allowed and the impugned awards passed by the first respondent are set aside. No costs. .