Judgment :- 1. This civil miscellaneous appeal has been preferred against Employees State Insurance Corporation against the order of the Principal Judge, City Civil Court dated 04.04.1997 made in ESIOP No.35/1991. 2. The facts leading to the filing of the civil miscellaneous appeal, in brief, are stated as under:- a) The appellant, namely Western Transport Agency, is a firm of transport contractors engaged in undertaking transportation of bare chassis manufactured by M/s.Ashok Leyland Limited, Madras from their units at Ennore, Hozur, Poonamallee Yard and other places to different destinations as specified by Ashok Leyland Limited. In order to carry out its activities, the appellant engages its own staff, convoy drivers, parking drivers and casual drivers. As per the contention of the appellant, casual drivers are engaged on contract basis for each assignment of transportation and their accounts are settled at the completion of each assignment. Excepting transporting the chassis of Ashok Leyland Limited, the appellant does not have any other business activity. The branch office of the appellant functions at No.9C, Tiruvottiyur High Road, Chennai - 600 019 in which one branch manager, one yard supervisor, seven clerks, one office boy, five watchman and thirty six permanent drivers comprising convoy drivers and parking drivers are employed. b) The appellant undertakes transportation of chassis only for Ashok Leyland Limited and it does not render any service to anyone else in its Madras branch office. While so, the Regional Director of ESI Corporation, by his letter dated 210. 1989, informed the appellant that the Madras branch office of the appellant was an establishment which would come under Section 1(5) of the ESI Act, 1948. Accordingly, Code No.51-55068-106 was allotted to the Madras branch office of the appellant firm, directing the appellant to submit the necessary returns in compliance with the provisions of the ESI Act, 1948 and regulations. A reply was sent to the Regional Director, ESI Corporation on 211. 1989 contending that the Madras branch office of the appellant firm would fall neither under the definition of motor transport undertakings nor under the definition of hotel, restaurant, shop, cinema and newspaper establishment. Thereafter, the Deputy Regional Director of ESI Corporation sent a communication dated 212. A reply was sent to the Regional Director, ESI Corporation on 211. 1989 contending that the Madras branch office of the appellant firm would fall neither under the definition of motor transport undertakings nor under the definition of hotel, restaurant, shop, cinema and newspaper establishment. Thereafter, the Deputy Regional Director of ESI Corporation sent a communication dated 212. 1989 stating that the Madras branch office of the appellant concern would come under the definition of shops, pursuant to which the appellant sent a further representation dated 05.01.1990 contending that no commodity or service was being sold to the public for a price in the Madras branch office of the appellant concerned to bring it under the definition of shops. Thereafter, the Deputy Regional Director of ESI Corporation sent a communication on 24.02.1990 stating that the appellant concern in its branch office at Chennai was covered by Section 1(5) of the ESI Act, 1948 as it was an immediate employer attending to transportation of chassis manufactured by Ashok Leyland Limited, Chennai which was covered as a factory under ESI Act, 1948 and bound to pay contribution in respect of its direct employees and employees engaged through the appellant as their immediate employer. A reply was also sent by the appellant for the same, pursuant to which the Regional Director of ESI Corporation passed an order in his proceedings No.51/INS1/51-55068-106 dated 10.04.1900 assessing the contribution payable by the appellant for the period from 01.01.1986 to 312. 1989 at Rs.1,62,307/-and informed him that if the said amount was not paid and declaration forms were not submitted, appellant would be prosecuted for an offence punishable under Section 85 read with 85(A) and 85(C) of the Employees State Insurance Act which might result in a punishment with imprisonment for a term that may extend to 6 months subject to a mandatory punishment of 3 months of imprisonment and also fine. c) The Deputy Regional Director, ESI Corporation sent a further communication on 16.04.1990 in his proceedings TN/INS.I/51-55068-106 stating that the appellant would come under the definition of immediate employer and also coverable by the ESI Act as a shop, though the appellant was rendering services solely to the Ashok Leyland Limited. c) The Deputy Regional Director, ESI Corporation sent a further communication on 16.04.1990 in his proceedings TN/INS.I/51-55068-106 stating that the appellant would come under the definition of immediate employer and also coverable by the ESI Act as a shop, though the appellant was rendering services solely to the Ashok Leyland Limited. After considering the objections raised by the appellant, the Regional Director of ESI Corporation passed a final assessment order directing payment of Rs.1,62,307/-as contribution for the period from January 1986 to December 1989 with interest at the rate of 12% per annum from the expiry of the grace period of 15 days from the date on which the contribution fell due. A further communication dated 110. 1990 was also sent to the appellant directing compliance with the said order. In the said communication itself a show cause notice was issued as to why legal steps in accordance with the ESI Act, including the prosecution of the appellant, should not be taken. d) Aggrieved by and challenging the said order of assessment made by the Regional Director of ESI Corporation, Chennai, the appellant filed a petition under Section 75 of the ESI Act before the Employees State Insurance Court (First Additional City Civil Court), Chennai raising similar contentions, especially contending that the Madras branch office of the appellant concerned would fall neither under the category of shops nor under the definition of any other establishments or transport undertaking. e) The Employees State Insurance Corporation, through its Regional Director, Chennai filed a written statement contending that the appellant establishment conforms to the definition of establishment as defined under the notification issued under the Act and that its liability to pay contribution is independent of the liability of M/s.Ashok Lelyland Limited and that since the appellants establishment was independently covered by the Act, the fact that the appellant was only a contractor or an immediate employer could not help the petitioner in advancing its case. However, the respondent had incorporated a further contention in the written statement that once an establishment is covered independently under the Act its status as an immediate employer would not lead to any adverse communication that the scheme of the principal employer or immediate employer as envisaged in the social welfare legislature was one of co-existence and not mutually exclusive and that since the petitioners establishment employed 20 or more persons for wages, the appellant establishment is thereby covered independently under the provisions of the Act and that hence the petition filed under Section 75 of the ESI Act should be dismissed. f) The following were issues framed by the Employees State Insurance Court: 1) Whether the petitioner establishment is not coverable under ESI Act? 2) Whether the order of the respondent dated 30.07.1990 directing the petitioner to pay Rs.1,62,307/- towards contribution is incorrect and liable to be set aside? 3) To what relief were the issues framed by the learned judge of the ESI Court, Chennai who tried the case? g) In the trial both parties did not adduce any oral evidence and produced only documents in support of their respective claims. The appellant/petitioner marked 9 documents as Ex.A1 to Ex.A9, whereas the respondent filed three documents as Ex.B1 to Ex.B3. 3. After considering the said documentary evidence in the light of the respective pleadings made by the parties, the learned judge of the ESI Court, Chennai came to the conclusion that the order of the respondent i.e., Regional director of ESI Corporation, holding that the regional office of the appellant would come under the definition of shop and that hence the appellants Madras branch office shall necessarily attract the provision of ESI Act. However, holding that the ESI authorities determine the contribution on adhoc basis as the appellant/petitioner failed to produce records and registers for correctly determining the contributions payable by the appellant/petitioner, the matter must be remitted back to the ESI Corporation with a direction to the appellant to produce all the relevant registered and with a direction to the authorities under the ESI Act to fix the contribution payable by the appellant after affording a reasonable opportunity to the corporation. Accordingly, the learned judge of the ESI Court, Chennai setting aside the order passed by the ESI Corporation which was challenged in the said ESIOP and remitted the matter back to the ESI Corporation to decide the issue afresh in the light of the above said observation. The operative part of the order is extracted hereunder:- " In the result the petition is ordered holding that the petitioner establishment is a shop attracting the provisions of ESI Act and the order passed by the corporation is set aside and the matter is remitted back to the corporation to decide the issue afresh in the light of the aforesaid observations. Petitioner is directed to produce the records and registers before the corporation and after affording an opportunity for personal hearing the corporation is directed to fix the contribution on actual basis. The corporation is directed to pass an order within a period of 3 months, from the date of the receipt of the copy of this order. There will be no order as to costs. Advocates fee is Rs.250/-." 4. Aggrieved by and challenging the said order, the appellant has brought-forth this civil miscellaneous appeal under Section 82 of the ESI Act on various grounds set out in the memorandum of grounds of appeal. 5. This court heard the submissions made by Mr.S.Ravindran, learned counsel appearing on behalf of the appellant and Mr.S.Vaidyanathan, learned counsel appearing on behalf of the respondent and paid its anxious consideration to the same. The materials available on record were also perused. 6. The learned counsel for the appellant argued that the stand of the respondent was not uniform; that at the first instance, in the communication dated 210. 1989, a notice was sent stating that the appellants establishment was coverable by the ESI Act as a principal employer; that subsequently by the communication dated 212. 1989 marked as Ex.A3 they changed their stand and contended that the appellant concern would come under the definition of shops; that subsequently the respondent once again changed its stand in its provisional assessment order and subsequent communications. Provisional assessment order, show cause notice, Order under Section 45A and a further show cause notice have been marked as Ex.A5, A6, A7 and A8. Provisional assessment order, show cause notice, Order under Section 45A and a further show cause notice have been marked as Ex.A5, A6, A7 and A8. They have once again changed their stand and took the stand that the appellant concern, being immediate employer attending to the transportation of the chassis manufactured by the principal employer, namely M/s. Ashok Leyland Limited, Chennai, would be covered under Section 1(5) of the Employees State Insurance Act, 1948. Again when the matter was brought before the ESI Court by the appellant by way of a petition under Section 75 of the Employees State Insurance Act in E.S.I.O.P.No.35 of 1991, the respondent took a confused stand that the petitioners concern at Chennai would come under the definition of a shop independently as it employed 20 or more persons and that the mere fact that the appellant being an agent or contractor of the principal employer, namely M/s.Ashok Leyland Limited, would in no way affect its liability as an independent establishment covered under the Act. The learned counsel for the appellant would also contend that when that being so, the learned judge of the ESI Court, on an erroneous appreciation of the stand taken by the respondent, came to the conclusion that the appellant concern was a shop as defined under the Act. It is the contention of the learned counsel for the appellant that the appellant concern will not come under the definition of shop, as no commodity or service is sold to the customers for a price and that it cannot also come under the definition of motor transport undertaking. The learned counsel also pointed out the fact that the respondent had also taken a stand that the appellant, even if services of the appellant was not made available to any other person as an agent and contractor for transporting the chassis manufactured by M/s. Ashok Leyland Limited to various places at the instructions of M/s. Ashok Leyland Limited shall be liable to collect contribution from its employees as immediate employer and that the same had to be paid through the principal employer, namely M/s. Ashok Leyland Limited, which was already a covered establishment. According to the learned counsel for the appellant when such is the contention of the respondent (Employees State Insurance Corporation), the ESI Court should have taken steps to issue notice to the so-called principal employer and then decide the matter after giving an opportunity and ascertaining the views of the so-called principal employer and since the learned judge of the ESI Court, Chennai has not chosen to do so, the orders of the said court suffers from serious defect and infirmity and for that reason alone, the order has to be set aside. 7. The learned counsel for the appellant, in support of his contention, has relied on the recent judgment of the Honble Supreme Court made in the case between Bharat Heavy Electricals Ltd. and ESI Corporation reported in 2008-II-LLJ-302(SC). In the said judgment a principal employer was held responsible by the corporation to pay contribution in respect of employees of the contractor/ immediate employer. The same was challenged on the ground that no reasonable opportunity was given to implead the immediate employer from whom the contribution amount could be recovered by the principal employer, even though as per the provisions, the principal employer is liable to pay contribution in respect of the employees under the immediate employer with a right to recover the same from the immediate employer. The case on hand is the converse. Herein the alleged immediate employer is sought to be held liable to pay contribution without impleading the principal employer. 8. The case on hand is the converse. Herein the alleged immediate employer is sought to be held liable to pay contribution without impleading the principal employer. 8. Section 2(13) of the Employees State Insurance Act, 1948 defines immediate employer in the following terms:- "immediate employer", in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of a factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer [and includes a contractor];" Section 2(17) of the Employees State Insurance Act, 1948 defines principal employer as follows: "Principal employer" means - (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named; (ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department; (iii) in any other establishment, any person responsible for the supervision and control of the establishment; Section 40 and 41 of the Employees State Insurance Act, 1948 are the relevant provisions dealing liability of the employer to pay contribution. Section 40 deals with the liability of the principal employer to pay contributions in the first instance and Section 41 deals with the right of the principal employer who has paid contribution in respect of an employee employed by him through an immediate employer to recover the same from the immediate employer. The said sections are extracted hereunder: 40. Section 40 deals with the liability of the principal employer to pay contributions in the first instance and Section 41 deals with the right of the principal employer who has paid contribution in respect of an employee employed by him through an immediate employer to recover the same from the immediate employer. The said sections are extracted hereunder: 40. Principal employer to pay contribution in the first instance " (1) The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employers contribution and the employees contribution. .(2) Notwithstanding anything contained in any other enactment but subject tot he provisions of this Act and the regulations, if any, made thereunder, the principal employer shall, in the case of an employee directly employed by him (not being an exempted employee), be entitled to recover from the employee the employees contribution by deduction from his wages and not otherwise: .Provided that no such deduction shall be made from any wages other than such as relate to the period or part of the period in respect of which the contribution is payable, or in excess of the sum representing the employees contribution for the period. .(3) Notwithstanding any contract to the contrary, neither the principal employer nor the immediate employer shall be entitled to deduct the employers contribution from any wages payable to an employee or otherwise to recover it from him. .(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted. .(5) The principal employer shall bear the expenses of remitting the contributions tot he Corporation." 41. Recovery of contribution from immediate employer: "(1) A principal employer, who has paid contribution in respect of an employee employed by or through an immediate employer, shall be entitled to recover the amount of the contribution so paid (that is to say the employers contribution as well as the employees contribution, if any) from the immediate employer, either by deduction from any amount payable to him by the principal employer under any contract, or as a debt payable by the immediate employer. [(1-A) The immediate employer shall maintain a register of employees employed by or through him as provided in the regulations and submit the same to the principal employer before the settlement of any amount payable under sub-section (1).] (2) In the case referred to in sub-section (1), the immediate employer shall be entitled to recover the employees contribution from the employee employed by or through him by deduction from wages and not otherwise, subject to the conditions specified in the proviso to sub-section (2) of section 40." .9. The stand taken by the respondent (ESI Corporation) is that though the scheme of the Act as provided under Section 40 and 41 is to the effect that the principal employer alone shall be directly responsible to the ESI Corporation for payment of contribution subject to a rider that he can recover the same from the immediate employer or contractor, when the establishment run by the contractor (immediate employer) itself can be a shop or establishment it could be independently covered by the Act and the mere fact that the said employer did have a principal employer shall have no consequence so far as such employers liability to pay contribution to the corporation is concerned. It is true that if the branch office of the appellant concern have at Chennai can be independently covered as a shop or an establishment under the Employees State Insurance Act, 1948, then the mere fact that it renders services to M/s.Ashok Leyland Limited alone will not have any consequence. The learned counsel for the respondent would point out the fact that there is an admission on the part of the appellant that they had employed more than 20 employees and hence the same can be covered independently as an establishment or shop liable to pay contribution to the ESI Corporation. But, the appellant/petitioner has taken a stand that though a number of drivers had been employed by the appellant, as they were drawing salaries more than the limit prescribed in the Act, they could not be construed to be workers covered by the Act and hence the number of workers to be covered by the Act employed by the appellant would be less than 20 and that hence it could not be construed to be an independent establishment covered under the provisions of the Act. .10. .10. It is the contention of the learned counsel for the appellant that they do not have any transport vehicle of their own for transporting goods or passengers for hire or reward and hence the appellant concern will not come under the definition of transport undertaking and that since they have not made available for sale any commodity or service to the intending purchasers and their activities are confined exclusively to the transporting of chassis for M/s. Ashok Leyland Limited, the appellant concern cannot be construed to be a shop also. It seems the appellant has also taken a stand that they are providing services to M/s. Ashok Leyland Limited alone for transporting their chassis to various places at their instructions and as contractors for M/s. Ashok Leyland Limited, the ESI Corporation should have proceeded against M/s. Ashok Leyland Limited, as the principal employer and not against the appellant which cannot be construed as an independent unit coming under the purview of the ESI Act. As no sale of any commodity or service is being made in the Madras branch office of the appellant concern, the finding of the court below that the appellant concern comes under the definition of shop, as rightly pointed our by the learned counsel for the appellant, could not be sustained. On the other hand, the learned judge of the ESI Court, without assigning any reasons and without giving a finding as to whether any commodity or service is made available for sale for a price to any intending purchaser, it simply came to the conclusion that the appellant concern comes under the definition of shop. The learned counsel for the respondent also conceded that the respondent had taken a stand that the appellants concern was an independent establishment, and as such, he could not advance any argument in support of the finding of the ESI Court that the appellant concern would come under the definition of a shop. It is the further submission of the learned counsel for the respondent that in case the appellant concern (Chennai branch) does not come under the definition of shop and the employees coverable are less than 20, then liability can be fixed on the appellant concern for payment of contribution if it is to be construed as an immediate contractor for M/s. Ashok Leyland Limited and thus an immediate employer. 11. 11. Therefore, the learned counsel for the appellant and the respondent suggested that the order of the ESIC court could be set aside and the matter may be remitted back to the ESI Court with a direction to the said court to issue notice to the alleged principal employer, namely M/s. Ashok Leyland Limited and to decide the matter afresh after giving an opportunity of being heard to the said concern (alleged principal employer). The learned counsel appearing on either side also agreed that the appellant can also be directed to render every assistance by producing the records so as to enable the ESI court to decide the question whether M/s. Ashok Leyland Limited is its principal employer? Therefore this court comes to the conclusion that the order of the E.S.I. Court dated 04.04.1997 deserves to be set aside and the matter shall be remitted back to the E.S.I. Court for fresh disposal in accordance with the directions indicated supra. In the result, the appeal is allowed. The order passed by the learned Principal Judge, City Civil Court, Chennai - 104 in E.S.I.O.P No.35 of 1991 dated 04.04.1997 is set aside. The matter is remitted back to the learned Principal Judge, City Civil Court, Chennai for fresh consideration after giving notice to the so-called Principal employer, viz. Ashok Leyland Limited and after giving an opportunity of being heard to both the alleged principal and the immediate employers. The appellant shall render all assistance by producing relevant Registers.