VIKRAMPORE ENGINEERING AND INFRASTRUCTURAL CO. PVT. LTD. & ANR. Vs. EMPLOYEES STATE INSURANCE CORPORATION & ORS.

JUDGEMENT

(1.) The petitioners have assailed an Order dated April 20, 2011 passed under Sec. 45-A of Employees' State Insurance Act, 1948 (ESI Act, 1948) and a Circular dated Jan. 3, 2011 issued by the Joint Director, Employees' State Insurance Corporation.

(2.) Learned Advocate for the petitioners has submitted that, the first petitioner is engaged in the business of building construction. The first petitioner is not covered by the ESI Act, 1948. However, ESI authorities had sought to make an enquiry in respect of the employees of the first petitioner. The enquiry under the ESI Act, 1948 was for the period from June 2008 to March 2010. He has referred to the Circular dated Jan. 3, 2011 and has submitted that, the circular cannot be given a retrospective effect since the period of enquiry in respect of the petitioners was prior to the date of the circular. He has submitted that, the first petitioner was sought to be brought under the purview of the ESI Act, 1948 by virtue of the Circular dated Jan. 3, 2011. Since the Circular dated Jan. 3, 2011 does not have a retrospective effect, the first petitioner cannot be proceeded against in terms of such circular for a period prior to the date of the circular.

(3.) Learned Advocate for the petitioners has referred to Sec. 16 of the Act of 1948 and has submitted that, a notification is required to be published for an association to be covered under the same. He has submitted that, no such notification exists in respect of the nature of business carried on by the petitioners. He has submitted that, a building construction site is not a factory. He has referred to the definitions given in Sections 1(3) and 1(5) of the Act of 1948. He has submitted that, workers engaged by the petitioners at the construction site of the petitioners are governed by the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. He has submitted that, the petitioners do not come within the definition of shop under the Shop and Establishment Act.