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Rajasthan High Court · body

2013 DIGILAW 1575 (RAJ)

Deputy Regional Director v. Mahalaxmi Process

2013-09-10

P.K.LOHRA

body2013
JUDGMENT 1. - The appellants have preferred this appeal under Section 82 of the Employees' State Insurance Act, 1948 (for short, 'the Act of 1948') against the judgment and order dated 141 1 of March, 2007, passed by the learned mployees State Insurance Court, Pali (for short, 'the learned ESI Court'), whereby the learned ESI Court has quashed and set aside the order dated 21 June, 2004 and demanding amount of contribution, interest and damages from the respondent-employer. The learned Court below has also granted liberty to the appellants to examine the relevant record of the respondent-establishment, namely, payment of wages register and other documents for making assessment of contribution, interest and damages w.e.f., May, 1996 to April, 1999. 2. Assailing the impugned verdict, learned counsel for the appellants, Mr. R.K. Soni, has strenuously argued that finding of the learned Court below regarding contribution, interest and damages anterior to May, 1996 is per-se erroneous because the learned Court below has recorded a definite finding that demand of the same is barred by limitation without properly construing the relevant provisions in this behalf. Submission of the learned counsel for the appellants is that in relation to said demand, no period of limitation is prescribed, and therefore, this finding of the learned Court below is perverse and contrary to the established principles of law. For canvassing this proposition, learned counsel for the appellants has placed reliance on E.S.I.C. v. C.C. Santhakumar, (2007) 1 SCC 584 , wherein the Apex Court, while considering the provision of limitation under Section 77(1A)(b) of the Act of 948 vis-a-vis Section 45A & 45B (Chapter IV) has observed in para 26 to 31 as under:- 26. On a plain reading of Sections 45-A and 45-B in Chapter IV and Sections 75 and 77 in Chapter VI of the Act, as indicated above, there cannot be any doubt that the area and the scope and ambit of Sections 45-A and 75 are quite different. On a plain reading of Sections 45-A and 45-B in Chapter IV and Sections 75 and 77 in Chapter VI of the Act, as indicated above, there cannot be any doubt that the area and the scope and ambit of Sections 45-A and 75 are quite different. 27.If the period of limitation, prescribed under proviso (b) of Section 77(1-A) is read into the provisions of Section 45-A, it would defeat the very purpose of enacting Sections 45-A and 45-B. The prescription of limitation under Section 77(1-A)(b) of the Act has not been made applicable to the adjudication proceedings under Section 45-A by the legislature, since such a restriction would restrict the right of the Corporation to determine the claims under Section 45-A and the right of recovery under Section 45-B and, further, it would give benefit to an unscrupulous employer. The period of five years, fixed under Regulation 32 (2) of the Regulations, is with regard to maintenance of registers of workmen and the same cannot take away the right of the Corporation to adjudicate, determine and fix the liability of the employer under Section 45-A of the Act, in respect of the claim other than those found in the register of workmen, maintained, and filed in terms of the Regulations. 28.What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, ut also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dispute in the determination either under Section 45-A(1) or under Section b8, the Corporation can straightaway go for recovery of the arrears. 29. Section 77 of the Act relates to commencement of proceedings before the ESI Court. The proviso to sub- Section (1-A)(b) of Section 77 of the Act cannot independently give any meaning without reference to the main provision, namely, Section 77 of the Act. 29. Section 77 of the Act relates to commencement of proceedings before the ESI Court. The proviso to sub- Section (1-A)(b) of Section 77 of the Act cannot independently give any meaning without reference to the main provision, namely, Section 77 of the Act. Therefore, the proviso to Clause (b) of Section 77 (1-A) of the Act, fixing the period of five years for the claim made by the Corporation, will apply only in respect of claim made by the Corporation before the ESI Court and to no other proceedings. 30. The Legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. So, the non-availability of the records after five years, as per the Regulations, would not debar the Corporation to determine the amount of arrears. Therefore, if the provisions of Section 45-A are read with Section 45-B of the Act, then, the determination made by the Corporation is concerned. It may not be final so far as the employer is concerned, if he chooses to challenge it by filing an application under Section 75 of the Act. If the employer fails to challenge the said determination under Section 75 of the Act before the Court, then the determination under Section b45-A becomes final against the employer as well. As such, there is no hurdle for recovery of the amount determined under Section 45-B of the Act, by invoking the mode of recovery, as contemplated in Sections 45-C to 45-I. 31. In ESI Corpn. v. F. Fibre Bangalore (P) Ltd. it was observed that it is not necessary for the Corporation to seek a resolution of the dispute before the E.S.I. Court, while the order was passed under Section 45-A. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim, it is for him to move the ESI Court for relief. If the employer disputes the claim, it is for him to move the ESI Court for relief. In other cases, other than cases where determination of the amount of contributions under Section 45-A is made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the ESI Court, before enforcing recovery. 3. Per contra, learned counsel for the respondent, while defending the impugned order passed by the learned E SI Court has urged that demand for payment of employer's contribution, interest and damages from March 993 to April 1996 was barred by limitation, and therefore, the learned ESI Court has rightly concluded that the said amount is not recoverable. As regards the period commencing from March 1993 to April 1996, learned counsel for the respondent has also argued that the relevant record including the payment for wages register for the aforesaid period i.e., anterior to 1996 may not be available with the respondent-establishment, and therefore, taking into account the passage of time, matter relating to demand of contribution, interest and damages for the interregnum period may not be reopened. Mr. Bohra, learned counsel for the respondent would urge that there is no substantial question of law involved in this appeal warranting interference by this Court. Learned counsel for the respondent submits that the learned Court below has simply remanded the matter back to the appellants for taking a decision afresh after examining the relevant record i.e., from May 1996 to April 1999 of the establishment, and therefore, this part of the order is not liable to be interfered with. 4. I have heard the learned counsel for the parties and perused the impugned order. 5. On evaluation of the factual matrix of the case it is crystal clear that the subject matter of judicial scrutiny before the learned ESI Court was demand notice dated 02.06.2004 containing the amount of contribution plus interest for the interregnum period of March, 1993 to March 999. The total demand of contribution comes to Rs.46787/- and interest of Rs.55,580/- under Ex.7 denotes indisputably that the respondent is a tiny establishment and from its earnings the lady proprietor is pulling on her livelihood. The total demand of contribution comes to Rs.46787/- and interest of Rs.55,580/- under Ex.7 denotes indisputably that the respondent is a tiny establishment and from its earnings the lady proprietor is pulling on her livelihood. Although question of limitation as canvassed by the learned counsel for the appellant has been dealt with in the E.S.I.C case (supra) but the matter still requires examination in the backdrop of peculiar facts of this case. The learned ESI Court has remanded the matter back to the appellants for taking decision afresh for the period May 996 to April 1999 after examining relevant record of the respondent establishment for quantifying demand of contribution and interest. So far as the period anterior to May 1996 is concerned, the learned Court below has found it barred by limitation. The reasoning spelt out in the order impugned in this behalf may not be per-se sound but then looking to the meager sum involved in the matter and small establishment, I am not persuaded to interfere with this part of the impugned verdict. Remanding the matter for the demand anterior to May 1996 will unnecessarily prolong the agony of a poor establishment. Moreover, passage of time inasmuch as since 1996 almost more than one and half decade has elapsed, it may not be possible for the respondent establishment to produce the relevant record. There is every likelihood that relevant record may not be traceable for unearthing the truth. Regulation 32 of The Employees' State Insurance (General) Regulatinos, 1950 provides that it is responsibility of the every employer to preserve the register maintained under the Regulation for a period of five years. Regulation 32 reads as under:- 32. b Register of employees.-(1) Every employer shall maintain a register in [Form 6] in respect of every employee of his factory or establishment. (1A) Register of employees engaged by immediate employer. - Every immediate employer shall maintain a register in Form [6] in respect of every employee engaged by him and submit the same to the principal employer before the settlement of any amount payable under sub-section (1) of section 41 of the Act. (2) Every employer shall preserve every register maintained under this regulation after it is filled, for a period of five years from the date of last entry therein. (2) Every employer shall preserve every register maintained under this regulation after it is filled, for a period of five years from the date of last entry therein. (3) The employer shall give a reasonable opportunity to any of his employees, if he so desires, to see entries in respect of such employee in this register once a month. 6. Thus, viewed from any angle, remanding the matter for reassessment of demand pertaining to contribution, interest and damages for the period prior to May, 1996 may not yield fruitful result as the appellants may not have any access with the relevant record, I feel dissuaded to interfere with the impugned order. 7. Taking into account the peculiar facts of the instant case my irresistible conclusion is that no substantial question of law is involved in the matter requiring adjudication in exercise of appellate jurisdiction under Section 82 of the Act of 1948.The net result of the above discussion is that there is no merit in this appeal and the same is accordingly dismissed. No order as to costs.S.B. Civil Misc. Appeal dismissed. *******