DEPUTY DIRECTOR, E.S.I. CORPORATION, NO. 10, BINNYFIELDS, BINNYPET, BANGALORE - 560 023 Vs. M/S. SYED NOORUDDIN AND SONS, AUTO ENGINEERING WORKS, NO. 1, 8TH CROSS, H. SIDDAIAH ROAD, BANGALORE - 560 027

JUDGEMENT

(1.) APPLICATION filed by the respondent under S.75 and 76 of the ESI Act, 1948 (for short, the Act) in the ESI Court, Bangalore, assailing an order dated 31.5.88 passed by the respondent under S.45 -A of the Act levying contribution of Rs. 22,590,56 for the wage period 27.1.85 to 30.9.87 having been allowed in part and the impugned order having been modified, feeling aggrieved, the ESI Corporation has filed this appeal.

(2.) THE ESI Court, by an order dated 4.9.96 had directed the applicant to pay Rs. 1,255,99 and interest on the said sum in accordance with Regulation 31 -A of the Act and the claim of the Corporation regarding the remaining sum was rejected. The said order was assailed by the Establishment in MFA 807/97 and by the Corporation in MFA 4683/96. By a common Judgment dated 12.10.2000, MFA 807/97 filed by the employer / Establishment was dismissed and MFA 4683/97 filed by the ESI Corporation was allowed and the application filed by the Establishment in the ESI Court to declare the determination made under S.45 -A of the Act as bad in law, was rejected. Aggrieved, the employer / Establishment filled SLPs. Leave having been granted, cases were registered as Civil Appeal Nos.348 and 349 of 2004. Upon hearing and finding that there is confusion as to the number of employees employed by the Establishment, the impugned Judgment / order was set aside and the matter was remanded to the ESI Court to decide afresh.

(3.) SRI N.S. Narasimha Swamy, learned counsel appearing for the appellant contended that, the Corporation having proved that the Establishment had engaged the services of more than 10 persons from 27.1.85 to 30.9.87, the inspection report having clearly revealed the said aspect of the matter, the ESI Court has failed to take into consideration the material circumstances appearing on record and has erroneously come to the conclusion that the Establishment is liable to pay contribution only for the period from January to March, 1985. Learned counsel submits that the ESI Court is not justified in modifying the order passed by the Corporation and that the finding recorded on issue No. 1 is perverse. Learned counsel submitted that, the ESI Court has not decided the case keeping in view the remand order passed by the Hon'ble Supreme Court wherein it was made clear that the burden of proof as to how many employees were working in the Establishment was on the employer. Learned counsel submitted that, the evidence of AW -2 and Ex.A5 brought on record, subsequent to the order of remand does not make out a clear case with regard to the number of employees employed in the Establishment for the period from April, 1985 to September, 1987 and hence, the impugned order is unsustainable.