Miscellaneous Appeal No. 653 of 2008 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.653 of 2008 =========================================================== 1. Employees’ State Insurance Corporation, Panchdeep Bhawan, Jawahar Lal Nehru Marg, Patna-800001 2. Regional Director, ESIC, Panchdeep Bhawan, Panchdeep Bhawan, Jawahar Lal Nehru Marg, Patna 800001, 3. Dy. Regional Director, Panchdeep Bhawan, J.L.Nehru Marg, Patna 800001. .... .... Appellant/s Versus M/S Tubex India Pvt. Ltd. through its Director Shri Arvid Sharma, son of Shri B.L.Sharma, Industrial Area, Hajipur, District-Vaishali .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Anshuman, Adv. For the Respondent/s : Mr. Alok Kumar Sinha, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT Date: 20-12-2013 Heard learned counsel for the parties. This appeal under Section 82(2) of the Employees State Insurance Corporation, 1948 (hereinafter referred to as the ‘Act’) is directed against the judgment and order dated 25.8.2008 passed by the Presiding Officer, Labour Court-cum-Employees State Insurance Court, Patna in E.S.I. Case No. 3 of 1996 whereby the application filed by the sole respondent under Section 75(1)(g) of the Act for setting aside the coverage order dated 23.2.1996/26.2.1996, has been allowed. The respondent herein is an establishment registered under the Factories Act, and is engaged in the manufacture of metal flexible 2
Legal Reasoning
Patna High Court MA No.653 of 2008 dt.20-12-2013 2 / 6 tubes with the aid of power and for which purpose they maintain a 40 HP machine. A survey was conducted by the Social Security Officer of the appellant- Corporation on 23.2.1996 and when it recommended for coverage of the sole respondent having found 9 person present on the rolls of the factory while one person by the name of Tanik Singh was found discharging the duty of a sweeper. A survey report recommending coverage was submitted and following which the coverage order dated 23.2.1996/26.2.1996 was issued and questioned before the Court below. While nine persons working on the rolls of the sole respondent is not in dispute, it is also not in dispute that the respondent is engaged in manufacturing process with the aid of power. The only issue contested by the parties is whether Tanik Singh the 10th person stated to be present within the factory premises, was in fact an employee of the sole respondent. The issue was put to contest in the case filed by the sole respondent giving rise to ESI Case No. 3 of 1996 and having been allowed, hence this appeal by the Corporation. The provisions of Section 82 makes it manifest that an appeal against the order of the E.S.I. Court can only be filed raising a substantial question of law.
Legal Reasoning
I have heard Dr. Anshuman, learned counsel for the appellant- 3 Patna High Court MA No.653 of 2008 dt.20-12-2013 3 / 6 Corporation while the respondent is represented by Mr. Alok Kumar Sinha. With particular reference to Ext. A led by the Corporation before the Court below, it was submitted by learned counsel for the appellant that the Social Security Officer found ten persons working for the respondent but the employer had recorded the name of only nine persons in the attendance register as well as the wage register. It is next with reference to the deposition of the Social Security Officer, Kapildeo Singh who deposed as P. W. No.2 submitted that it was categorically stated by the said officer that the 10th person Tanik Singh was found working within the factory premises and on interrogation he stated that he was working as a sweeper in the factory since last several years, though his name was not recorded in the relevant registers. Learned counsel with reference to Exts. 3 and 3A which are muster roll as well as the wage register which was led as Ext.4, has submitted that although the said evidences are supporting the employment of nine persons but the respondent very conveniently did not produce the accounts register which would have demonstrated the actual state of affairs. Learned counsel has submitted that since the evidence of the Social Security Officer and his report has not been appreciated by the 4 Patna High Court MA No.653 of 2008 dt.20-12-2013 4 / 6 Court below in its true perspective, the same by itself raises substantial question of law. The argument of Mr. Anshuman has been contested by Mr. Sinha to submit that neither the 10th person was led as evidence by the Corporation during the lower Court proceedings nor the said person was examined by the Social Security Officer nor the Social Security Officer has taken the evidence of any of the other employees present in the factory in support of the said fact even when such powers are vested in him under the provisions of Section 45(2)(c) of the Act. He further submits that a dispute as regarding the number of workmen does not constitute a substantial question of law. I have heard learned counsel for the parties and I have perused the materials on record. That the name of the 10th person stated to be present within the factory premises by the Corporation finds mention only in the survey report and in no other document is not in dispute. It is also not in dispute that no attempt was made by the Corporation to examine the said person in the manner prescribed under Section 45(2)(c) of the act. The presence of 10th person within the factory premises finds mention only in the opinion of the Social Security Officer as per his report. Although Dr. Anshuman while elaborating on the features of a social welfare legislation and the object for which the Act was enacted, tried 5 Patna High Court MA No.653 of 2008 dt.20-12-2013 5 / 6 to submit that once the name of the person finds mention in the report, it was for the factory to vindicate its stand but the fact remains that even if the legislation is for the welfare of the employees, there is onus cast upon the Social Security Officer which he has to first discharge before shifting the burden on the factory or the establishment concerned to clarify the position. In so far as the present case is concerned, neither Tanik Singh has been examined by the Social Security Officer either during the course of survey or during the course of trial nor any other employee has been examined by the said officer who would corroborate the statement of Tanik Singh. It is again not in dispute that no such application was filed before the Court below by the appellants seeking the presence of the said Tanik Singh or any of the employee of the factory or for summoning the accounts register. In the aforementioned circumstances this Court fails to appreciate as to how any question of law would arise in the present contest muchless a substantial question of law. In fact considering the evidence available on record, there could not have been any other decision than the one impugned in this appeal. The Corporation having failed to discharge its obligation to prove the engagement of 10 persons by the respondent, the onus is sought to be shifted on the establishment even in absence of any evidence. 6 Patna High Court MA No.653 of 2008 dt.20-12-2013 6 / 6 For the reasons aforementioned, this Court is not persuaded to interfere with the judgment and order impugned and this appeal failing to raise any substantial question of law is dismissed accordingly. Let the lower Court Records received in connection with E.S.I. Case No. 3 of 1996 be returned to the Court of Presiding Officer, Labour Court-cum-Employees State Insurance Court, Patna forthwith. Bibhash/- (Jyoti Saran, J)