Judgment : The present appeal has been preferred under Section 82 of the Employees' State Insurance Act, 1948 being aggrieved and dissatisfied with the order dated 25.3.2009 passed by the Employees State Insurance Court, Ranchi-cum-Labour Court, Ranchi in ESI Case No. 01/2003 finding that the petitioner/appellant being legal heir of the owner of Ranchi Metal Industries is liable to pay legal dues of his father payable to Opp. Party/Respondent. 2. The brief facts of the case is that the appellant is the proprietor of M/s Ranchi Industries established in the year 1998 and production was started from March 2000 with its workshop and office situated at Ratu Road, Ranchi and his factory deals in manufacturing and selling of utensils. A notice dated 11.3.1999 was issued to the appellant by the Opp. Party to pay the contribution as per statement enclosed (Annexure-1 to this appeal) Thereafter, another notice was issued on 15.5.2001 to the appellant directing therein to pay the contribution in respect of M/s Ranchi Metal Industries. In response to the said notice, the appellant stated that the proprietor of M/s Ranchi Industries and Ranchi Metal Industries are two different entity and therefore, Ranchi Industries is not liable to pay the said contribution under ESI Act. Thereafter, the Deputy Director, ESI passed the order dated 4.12.2002 under Section 45-A of the ESI Act (Annexure-IV) directing therein to pay Rs.1,41,815/-(ruprees one lac forty one thousand eight hundred and fifteen) along with 15% interest from the date of order till the payment is made. Thereafter, the appellant preferred a petition before the learned Presiding Officer, Labour Court, Ranchi-cum-ESI Court under Section 75 of the ESI Act and raised various contentions including the contention that M/s Ranchi Industries and Ranchi Metal Industries are two different legal entity and therefore, the appellant being the proprietor of M/s Ranchi Industries is not liable to pay the said contribution. It was also contended before the learned ESI Court that assuming for the time being that the appellant is liable to pay the contribution than in that case the liability will be to the extent of 25% only in view of the provisions as contained in Section 25 of the Partnership Act and he cannot be made responsible for the entire claim of contribution. The another contention was regarding limitation that the petition preferred by the appellant was within the prescribed period of limitation. 3. The another contention was regarding limitation that the petition preferred by the appellant was within the prescribed period of limitation. 3. Opposite Party has filed written statement cum show cause and raised various contentions in response to the contention raised by the appellant. The learned ESI Court rendered the decision after evaluating the evidence on record vide its order dated 25.3.2009 and thereby dismissed the petition filed by the appellant. 4. Being aggrieved and dissatisfied with the aforesaid order, the appellant has preferred this appeal. The learned counsel for the appellant made the following submissions. (a) That the Ranchi Metal Industries and the Ranchi Industries are two different legal identity and the appellant being a partnership of Ranchi Industries cannot be held responsible for the claim, which has been made against the Ranchi Metal Industries. (b) Notice required under law has not been served upon the Ranchi Industries and the order passed under Section 45-A of the ESI Act dated 4.12.2002 is an ex parte order as the same has been passed without giving any opportunity of being heard to the appellant. (c) The petition preferred under Section 75 of the Act was well within the prescribed period of limitation and therefore, the findings recorded by the ES I Court is contrary to the provisions of law pertaining to limitation as the limitation will be counted from the date of service of notice to the Ranchi Industries and not to the Ranchi Metal Industries. (d) Alternatively, it is also submitted that assuming for the time being that the appellant is responsible then in that case, the liability of the appellant will be limited to the extent of 25% only in view of the provision as contained in Section 25 of the Partnership Act and the appellant cannot be held responsible as a whole in respect of the claim made by the ESI Court. (e) That the respondent fixed the liability upon the appellant for the payment of contribution in respect of M/s Ranchi Metal Industries. The first demand notice dated 11.3.1999 which was not received by the appellant on 10.4.1999 as such, he does not appear and it cannot be treated as the 1st notice of demand and it cannot be treated as the date of cause of action for the purpose of this case. The learned lower court below has wrongly held that the application is barred by limitation. The learned lower court below has wrongly held that the application is barred by limitation. (f) That the appellant is the proprietor of M/s Ranchi Industry, which is the separate Industries from M/s Ranchi Metal Industries which does not come within the purview of ESI Act. It is also submitted that the learned lower court's finding is not based upon the evidences that the appellant is the legal heir of Sri Jaichand Agarwal and as such, he is not liable to pay the legal dues of his father payable to the ESI Corporation. 5. As against this, the learned counsel for the respondent submitted that the present appeal is not maintainable in view of Section 82(2) of the Act as the scope of Sub-Section (2) of the Act is similar to that of Second Appeal and therefore, the concurrent findings of fact recorded by the ESI Court as well as the Deputy Director, ESI under Section 45-A of the Act goes against the appellant and no substantial question of law has been raised in the present appeal. It is also submitted that the licence produced by the appellant (Annexure-3) is not the licence but it is renewal of licence for the calendar year 1999 in the name of factory “Ranchi Industry” address as Ratu Road, P.O.-Hehal, Ranchi. It is further submitted that the show cause notice was given on 11.3.1999/25.3.1999 to the Ranchi Metal Industries, Ratu Road, Ranchi and the said notice was duly served upon the Ranchi Metal Industries on 10.4.1999. Since no body appeared in response to the said notice, another notice was served to Shri Sajan Kumar Agarwal, the proprietor of M/s Ranchi Metal Industry, Ratu Road, Ranchi and the said notice was received by S.K. Agrawal as per the endorsement made upon the said notice (Annexure-2). After service of the said notice, the Deputy Director, ESI passed a reasoned order after careful consideration of the representation made in writing in response to the notice, which was served upon the appellant. The contention raised by the appellant that he has no concern with the Ranchi Metal Industries was not believed by the Deputy Director, ESI on the basis of inspection report carried out by O.P.Ws. 3 and 12. It is further submitted that the Dy. The contention raised by the appellant that he has no concern with the Ranchi Metal Industries was not believed by the Deputy Director, ESI on the basis of inspection report carried out by O.P.Ws. 3 and 12. It is further submitted that the Dy. Director, ESI, Ranchi vide order dated 4.12.2002 directed the appellant being the principal employer that he is required to pay the total amount of Rs.1,41,815/-for the period 12/93 to 12/98 with interest @ 15% for each day of further default from the date of this order till the date of payment. It is also submitted that the application filed under Section 75 of the ESI Act by the appellant before the learned Labour court-cum-ESI Court, Ranchi challenging the judgment and order dated 25.3.2008 has been decided after careful consideration of the documentary as well as oral evidence submitted by the parties and therefore the said findings of fact recorded by the Presiding Officer, Labour Court cum-ESI Court, Ranchi may not be disturbed in the present appeal as there is no substantial question of law as required for consideration in second appeal under Section 82(2) of the ESI Act is involved. Learned counsel for the respondent by referring Section 77(1-A) of the ESI Act submitted that the claim made by respondent was well within the time from the date of the cause of action but the appellant filed the petition before the ESI Court after lapse of more than three years. Therefore, the findings have been recorded by the ESI Court that the petition filed by the appellant is barred by limitation. It is also submitted that the learned ESI Court has also recorded the findings that on the basis of documentary as well as oral evidence, it appears that M/ s Ranchi Metal Industries and M/s Ranchi Industries both are one and same Firms. The appellant has admitted that he is the son of late Jaichand Agarwal, the owner of Ranchi Metal Industries and his father has get 25% share of the factory. By referring Section 25 of the Partnership Act, it is submitted that the liability of the partnership is jointly and severally and therefore, the learned ESI Court has rightly and properly held that the appellant is liable to pay the legal dues. By referring Section 25 of the Partnership Act, it is submitted that the liability of the partnership is jointly and severally and therefore, the learned ESI Court has rightly and properly held that the appellant is liable to pay the legal dues. Learned counsel for the respondent also submitted that with a view to avoid the liability for making payment of the contribution, the appellant has changed the name of the firm from Ranchi Metal Industries to Ranchi Industry. It is also submitted that although before the ESI Court it was pointed out that Ranchi Metal Industries was closed, but no such closure report was ever submitted on record. 6. Learned counsel for the respondent by referring Employees' State Insurance Corporation Employees' Registration Form 01 prescribed under Regulation 10-B submitted that in view of Regulation 5(i) of Regulation 109, the “Principal Employer” means 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, the person so named. 7 It is further submitted that in view of the aforesaid provision also, the appellant cannot be absolved from the liability making payment of the said contribution. While justifying the order of the Dy. Director, ESI, Ranchi under Section 45-A of the Act, it is submitted that in view of the proviso of Section 45-A of the Act, reasonable opportunity has been given to the appellant but the appellant did not appear before the Dy. Director, ESI and therefore, on the basis of the representation made in respect of show cause notice, the impugned decision was taken by the Dy. Director, ESI Court under Section 45-A of the Act after careful consideration, which is legal and proper. 8. Considering the aforesaid rival submissions advanced by the learned counsel for the parties and from perusal of materials placed on record, it appears that initial notice was served to M/s Ranchi Industry, Ratu Road, Ranchi on 25.3.1999, whereby, a demand of Rs.1,41,815/-was raised. Thereafter, another notice was served to Mr. Sajjan Kumar Agarwal, the proprietor of M/s Ranchi Industries (former by known as M/s Ranchi Metal Industry), Ratu Road, Ranchi on 15.5.2001 and the said notice was received by S.K. Agarwal. Thereafter, another notice was served to Mr. Sajjan Kumar Agarwal, the proprietor of M/s Ranchi Industries (former by known as M/s Ranchi Metal Industry), Ratu Road, Ranchi on 15.5.2001 and the said notice was received by S.K. Agarwal. In the said notice, it was categorically mentioned that the name of the factory has been changed to M/s Ranchi Industries and, therefore, the present proprietor of M/s Ranchi Industries was advised to comply with the provision of ESI Act, 1948 as amended. Since the appellant has not given any reply to the above referred notice, the Deputy Director, ESI passed an order dated 4.12.2002 under Section 45-A of the ESI Act, 1948. Before passing of the said order on 19.4.1999 an opportunity of personal hearing was given to the appellant but neither the employer nor his representative appeared before the Deputy Director, ESI for personal hearing. It also appears that the Deputy Director, ESI on the basis of materials on record passed an order under Section 45-A of the ESI Act, 1948 and thereby, directed the appellant-the proprietor of M/s Ranchi Industries to contribute the total amount of Rs.1,41,815/-(Rs. One lakh, forty one thousand, eight hundred fifteen only) for the period December-1993 to December-1998 along with interest @ 15% for each day of further default from the date of the order till the date of payment. It also appears that the Dy. Director, ESI, has taken the decision on the basis of survey and inspection conducted by the ESI Officials wherein it is found that the factory was never closed permanently but it is running in the name and style of M/s Ranchi Industries in the same campus/premises. It is further decided that when the factory/establishment is continuously common under the ESI Act, it is obligatory on the part of the appellant-proprietor of the factory to pay the amount of said contribution, which the appellant has failed to do so. 9. Being aggrieved and dissatisfied with the said decision, a petition under Section 75 of the ESI Act was moved before the learned Presiding Officer, Labour Court -cum-Employees' State Insurance Court, Ranchi. The learned Presiding Officer, Labour Court, Ranchi after giving proper opportunity to the parties and upon careful consideration of the materials available on record including oral as well as and documentary evidence, arrived at conclusion that the appellant is liable to pay ESI Contribution as claimed by the respondents. The learned Presiding Officer, Labour Court, Ranchi after giving proper opportunity to the parties and upon careful consideration of the materials available on record including oral as well as and documentary evidence, arrived at conclusion that the appellant is liable to pay ESI Contribution as claimed by the respondents. The issues, which have been formulated in paragraph 3 of the judgment have been answered properly and therefore, the findings recorded by the learned Presiding Officer, Labour Court, Ranchi which are concurrent in nature are not required to be disturbed by this Court in the instant Miscellaneous Appeal which is as good as Second Appeal, as provided under law. 10. Therefore, the submission advanced by the learned counsel for the appellant that the appellant is not liable to pay the amount of the contribution cannot be accepted in view of the detailed reason assigned by the learned Presiding Officer, Labour Court, Ranchi-cum-Employees' State Insurance Court, Ranchi in its judgment dated 25.3.2009. Accordingly, the appellant is not entitled to get any relief(s) as sought for. The judgment dated 25.3.2009 passed by the learned Presiding Officer, Employees State Insurance Court-cum-Labour Court, Ranchi is upheld. 11. With the above observation, this appeal stands dismissed.