ASHU PRODUCTS REPRESENTED BY ITS PROPRIETOR ASHWIN K. SOOD Vs. SECRETARY TO THE MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS GOVERNMENT OF INDIA, THE REGIONAL DIRECTOR E.S.I. CORPORATION AND THE DEPUTY COMMISSIONER

JUDGEMENT

(1.) THE appellant before the Court was the applicant before the E.S.I. Court in E.S.I. Application No. 187/88 and the challenge to the show cause notice issued by the respondents. E.S.I. Corporation dated 17.3.1988 claiming contribution from the appellant in a sum of Rs. 7,656/ - for the wage period from 1.4.1987 to 30.9.1987, was turned down by the E.S.I. Court by dismissing the application filed under Section 75(1)(g) of the E.S.I. Act.

(2.) SRI D.R. Ravi Shankar, the learned Counsel appearing for M/s. Lex Nexus for the appellant argued that the impugned order of the E.S.I. Court cannot be sustained in law because, as on the date of issuance of the ratification covering the appellant's establishment, i.e., on 1.4.1987, there were less than 20 employees employed by the appellant and therefore the E.S.I. Court could not have dismissed the application filed. Secondly, it is argued that the clubbing of the appellant's establishment, viz., M/s. Ashu Products with M/s. Ashu Fibres was with effect from 1.4.1987 and therefore, prior to the said date, the question of there being more than 20 employees engaged, does not arise. Further, the very notification itself was issued on 27.3.1987 extending the provisions of the E.S.I. Act to the area in which the appellant is situated, the E.S.I. Court, therefore committed an error in arriving at the conclusion that the E.S.I. Act is applicable to the appellant's establishment.

(3.) LEARNED Counsel also submitted that the appellant had also no opportunity to question the finding on the two units being held to be one unit because the appellant did not contest the matter before this Court on an earlier occasion when the matter was remanded by this Court w the E.S.I. Court for fresh consideration. Secondly, even before the E.S.I. Court, at the appellant did not cross -examine RW1, the Court was also of the considered view and remanded the matter so that the appellant gets one more opportunity to place its material on record. As far as the number of employees employed by the appellant is concerned, in this connection, it is submitted that even the documents produced by the appellant which were taken note of by the E.S.I. Court, viz., Exhibits R5 and R6 would not give a clear picture as to whether the piecemeal workers were engaged commonly by two units or only by one unit. Insofar as the granting of the opportunity to the appellant to clarify all these aspects before the E.S.I. Court is concerned, the reliance is placed on the decisions reported in 1979 LAB.I.C. 844 E.S.I. Corporation Vs. Subbaraya Adiga, ILR (1988) KAR 1805 (E.S.I. Corporation v. Subbaraya Adiga) as well as AIR 1999 SC 803 (Employees State Insurance Corporation v. M.M. Suri and Associates (P) Ltd.) to support the aforesaid submission made.