ESI Corporation v. Rajiv Nayar & Anr.

The Hon(cid:146)ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. S.R. Sharma, Advocate. For the Respondents : Mr. Bimal Gupta, Advocate. Surjit Singh, Judge( Oral ) Appellant, Employees(cid:146) State Insurance Corporation, has assailed the judgment, dated 10th April, 2001, of the trial Magistrate, whereby its complaint, under Section 85(a) of the Employees(cid:146) State Insurance Act, 1948, read with Regulation 31 of the Employees(cid:146) State Insurance (General) Regulations, 1950, which it (the appellant) filed against Rajiv Nayar and M/s Ess Aar Fabrics, respondents No.1 and 2, respectively, has been dismissed.

Appellant filed a complaint against the respondents alleging that they have a factory at Kala Amb, in Sirmour District, and they are covered and governed by the Employees(cid:146) State Insurance Act and in terms of the said Act and the Regulations framed thereunder, they are supposed to pay contribution every month, in respect of the employees engaged Whether reporters of the local papers may be allowed to see the judgment? (cid:133)2(cid:133) by them. It was alleged that for the period from October, 1998 to March, 1999, they had not paid either their own contribution or the contribution of the employees, in terms of Regulation 31 of the Employees(cid:146) State Insurance (General) Regulations and thereby they committed an offence, punishable under Section 85(a) of the Employees(cid:146) State Insurance Act.

Trial Magistrate has dismissed the complaint, holding that the contribution had been paid by the respondents, even though belatedly and that the reason for late deposit of the contribution was the sickness of respondent No.1, who was the principal employer on behalf of respondent No.2. Trial Magistrate also held that sanction for the prosecution of the respondents had not been proved according to law.

I have heard the learned counsel for the appellant as also the learned counsel for the respondents and gone through the record.

View taken by the learned Magistrate that the contribution could not be deposited on time, because of the sickness of respondent No.1, cannot be endorsed because the Act and the Regulations, framed thereunder, do not provide that in case the principal employer is sick or is unable due to some other reason to deposit the contribution, he and the factory would not be liable to be prosecuted. In case respondent No.1 was sick, some other person, officiating in his place, was supposed to have deposited the contribution. Otherwise also, there was no evidence, except the suggestions thrown to PW-1 A.N. Arora, who filed the complaint, with regard to the alleged (cid:133)3(cid:133) sickness of respondent No.1, which he (PW-1 A.N. Arora) denied for want of knowledge. No doubt, one employee of the factory, namely DW-1 Bhupender Kumar, was also examined, who stated that respondent No.1 remained sick, but he did not produce any record regarding his sickness.

However, I find a good deal of merit in the second ground of dismissal of complaint, i.e. non-proof of sanction. The Officer of the Employees(cid:146) State Insurance Corporation, who filed the complaint, namely A.N. Arora, appeared as PW-1. He did not even make a mention of the sanction, Ex. P-1, leave alone proving it while in the witness-box. His statement as PW-1 was recorded on 11.12.2000. He only tendered Ex. P-1, the alleged sanction, in evidence, without uttering a word as to by whom it was signed or who had granted it and that too, not while in the witness-box, but when closing his evidence. Thus, the sanction does not stand proved according to law. Consequently the appeal is dismissed. September 26, 2008(sd) ( Surjit Singh ), J