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2009 DIGILAW 667 (AP)

E. S. I. Corporation represented by its Regional Director v. D. Narasiah S/o Mallaiah

2009-09-22

L.NARASIMHA REDDY

body2009
JUDGMENT L. Narasimha Reddy, J. 1. This appeal is presented under Section 82 of the Employees' State Insurance Act (for short 'the Act'). The appellant initiated proceedings under the Act, against the respondent, stating that the latter was supplying labour to various agencies, including Medwin Hospital, Hyderabad, (for short 'the Hospital'), and though the number of persons engaged by the respondent was more than 20, he did not make any contribution under the Act. The respondent, in turn, opposed the claim, by stating that the principal employer is the Hospital, and except that he arranged for employment of persons, there did not exist any relationship of employer and employee between him and the persons working in the Hospital. Since that did not find favour with the appellant, the respondent approached the E.S.I. Court-cum-Chairman, Industrial Tribunal-I, Hyderabad, by filing E.I Case No. 8 of 1998. The Tribunal allowed the case on 26-04-1999, and held that the respondent is not liable to pay any contribution. It was, however, left open to the appellant to demand the contribution from the principal employer, or to issue revised proceedings, in case it is found that the respondent has engaged any employees by himself. The said order is challenged in this appeal. 2. Heard the learned counsel for the appellant and learned counsel for the respondent. 3. Even from the description of the respondent, it is evident that he is only an individual, handling a manpower supply agency. In a way, he can be compared with, or equated to, an employment exchange. His principal activity is to supply the qualified persons to various hospitals, which, in turn, would employ them. It is but natural that he would be paid some amount as commission, or other charges. 4. The officials of the appellant reviewed the records of the respondent and initiated proceedings under the Act, by taking the stand, that the persons, though working in the hospital, are actually employed by the respondent. This can not be Substantiated at all. Firstly, it was not mentioned as to when and on what terms the individuals were employed by the respondent. Secondly, it was not mentioned as to, in what activity the respondent engaged the persons, said to have been employed by him. 5. The Act itself takes note of a situation, wherein a worker can be said to have been employed by more persons than one. Secondly, it was not mentioned as to, in what activity the respondent engaged the persons, said to have been employed by him. 5. The Act itself takes note of a situation, wherein a worker can be said to have been employed by more persons than one. Keeping this in view, the word 'principal employer' is defined as the one, who actually extracts the services of the persons. Naturally, the obligation to pay contribution would be more with the principal employer. 6. If there exists any uncertainty, as to who exactly is the person, liable to pay the contribution, due to lack of clarity between the principal employer, on the one hand, and supplying agency, on the other hand, it may be permissible for the authorities under the Act, to proceed against either of them. When the principal employer himself admits that he is the one, who had employed the persons in question, and extracted the services, there cannot be any justification for the authorities under the Act, to proceed against any other agency, even if it is true that the employees were supplied by the concerned agency. 7. In the instant case, M/s Medwin Hospital addressed specific letters at various stages of the proceedings, that it is they, who have employed the persons in question. Still, the appellant has chosen to proceed against the respondent alone. It was not even alleged that the respondent employed 20, or more persons, to look after its administration. In such an event, there would have been some scope for the appellant to bring the respondent under the purview of the Act, irrespective of the number of persons being supplied by other agencies. The proceedings were not initiated on that account. 8. The Tribunal has undertaken detailed discussion in each and every aspect of the matter, and has arrived at just and proper conclusion. This Court is not inclined to interfere with the same. 9. The appeal is accordingly dismissed. There shall be no order as to costs.