TULIP DIAGNOSTICS PVT LTD REPRESENTED BY ITS MANAGING DIRECTOR Vs. REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION

JUDGEMENT

(1.) HEARD Shri V. Palekar, the learned Counsel appearing for the appellants and Mrs. A. Agni, the learned Counsel appearing for the respondent.

(2.) THE above appeal has been admitted by this Court on 22/10/2008 on the following substantial question of law:

(3.) SHRI V. Palekar, the learned Counsel appearing for the appellant in support of his appeal has pointed out that the learned E.S.I. Court at Panaji whilst passing the impugned judgment dated 17/11/2007 has failed to appreciate the evidence of AW1 Shri V.K. Naik who was apparently the Director at the relevant time to come to the conclusion that the Directors are to be included to arrive at the minimum number of employees for the purpose of considering whether the appellants would come within the coverage from the period 1991 to 1996. The learned Counsel further pointed out that the appellants have accepted that they come within the coverage from April 1996 onwards and that necessary contribution is being paid by the appellants from time to time. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has made sweeping observation that merely because no documentary evidence has been adduced by the appellants to substantiate their contention that the remuneration of the Directors at the relevant time was Rs.5,000/- per month which came to be increased to Rs.7,500/- per month thereafter the Directors are to be included for the purpose of computing the number of employees in the establishment. The learned Counsel further pointed out that in the affidavit of evidence of AW1 there is a categorical statement made by the appellants to the effect that at the relevant time the remuneration of the Directors in the year 1991 to 1992 was Rs.5,000/- per month and that subsequently the said remuneration came to be increased to Rs.7,500/-. The learned Counsel has further taken me through the cross-examination of AW1 and pointed out that there is no suggestion to the contrary of the respondent disputing the said fact. The learned Counsel further pointed out that during the pendency of the above appeal, the records which had been misplaced by the appellants at the time when the proceedings were going on before the learned E.S.I. Court were located and as such the appellants have filed an application under Order 41 Rule 27 of the Civil Procedure Code for leave to produce the auditor's report, bank pay slip and copy of the income tax returns of the concerned Director. The learned Counsel has taken me through the income tax returns of AW1 Shri V.K. Naik and pointed out that the salary shown to have been received by the said Director is Rs.54,000/- for the assessment year 1992 to 1993. The learned Counsel has also taken me through some of the paying slips of the bank and pointed out that the same discloses that thereafter a sum of Rs.7,500/- was deposited by the appellants in the account of such Directors. The learned Counsel has thereafter taken me through the auditor's report and pointed out that the report shows that the salary of Rs.60,000/- per year was paid to the Directors. The learned Counsel, as such, submits that the cumulative effect of such evidence corroborates the statement of AW1 to establish that the remuneration paid to the Directors was more than the statutory limits and as such according to him the Directors could not be included for the purpose of computing the minimum number of employees to extend the coverage to the appellants. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has not at all considered the evidence of AW1 and other material adduced by the appellants on that count. The learned Counsel, as such, submits that the impugned judgment cannot be sustained and deserves to be quashed and set aside.