IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 20 of 2005(A)
1. THE EMPLOYEE STATE INSURANCE
... Petitioner
Vs
1. M/S. JOS BROTHERS,
... Respondent
For Petitioner :SRI.T.V.AJAYAKUMAR
For Respondent :SRI.A.V.XAVIER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/12/2010
O R D E R
M.N. KRISHNAN, J.
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Ins.A.No.20 OF 2005
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Dated this the 8th day of December, 2010.
J U D G M E N T
This is an appeal preferred against the judgment of the
E.I.Court, Idukki in I.C.No.12/2001. The establishment moved
an application for setting aside the order of the Corporation
which was allowed by the court below and held that the
establishment is not liable to be covered under the provisions
of the E.S.I. Act.
2. Now the crux of the matter depends upon the
clubbing of 5 units viz M/s. Jos Brothers, M/s. Cut Piece
Centre, M/s. Jos Fabrics, M/s.Jos Garments and M/s.Jos Saree
Mandir. The case of the establishment is that they are all
independent units having separate existence and entity and
therefore the question of clubbing does not arise. The result of
the clubbing or non clubbing would directly affect the interest
of the workers employed therein.
3. The Hon’ble Supreme Court in the decision reported
in Fertilisers & Chemicals Travancore Ltd.v. E.S.I
Corporation (2009 (3) KLT 946 SC) held that “in all cases
under labour statutes, the workmen or at least some of
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them in a representative capacity or trade union representing
concerned workmen must be made a party.”
4. In para 10, the Supreme Court held that:
“It may be seen that Section 75 of the Act
does not mention who will be the parties
before the Insurance Court. Since the
determination by the Insurance Court is a
quasi judicial determination, natural justice
requires that any party which may be
adversely affected or may suffer civil
consequences by such determination, must be
heard before passing any order by the
authority/court”.
5. In Para 11, it was held that :
In our opinion, wherever any petition is
filed by an employee under Section 75 of the
Act, the employer has not only to implead the
E.S.I.C but has also to implead at least some of
the workers concerned (in a representative
capacity if there are a large number of workers)
or the trade union representing the said workers.
If that is not done, and a decision is given in
favour of the employer, the same will be violation
of the rules of natural justice”.
6. Again the Hon’ble Supreme Court reiterated the
same in Employees’ State Insurance Corporation v.
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Bhakra Beas Management Board (2009 (10) SCC 671).
7. In para 8, it is reiterated that:
In our opinion, wherever any petition is filed
by an employer under Section 75 of the Act, the
employer has not only to implead ESIC but has
also to implead at least some of the workers
concerned (in a representative capacity if there
are a large number of workers) or the trade
union representing the said workers. If that is
not done, and a decision is given in favour of the
employer, the same will be in violation of the rules
of natural justice. After all, the real parties
concerned in labour matters are the employer and
the workers.”
8. Now in the light of these authoritative
pronouncements, as admittedly the application is filed under
Section 75 of the ESI Act, decisions of the Supreme Court
will squarely apply. If it is decided to be not clubbed, then
this Court will be entering into a finding without hearing
the workers, who will be adversely affected.
Therefore, I feel that the judgment passed by the trial
court is to be set aside and the matter is to be decided afresh
after permitting all concerned to produce further
documentary as well as oral evidence in support of their
respective contentions and the establishment is directed to
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implead the workers or representative of the workers and
thereafter the matter be disposed of in accordance with law.
I make it very clear that this is an open remand where all
points can be considered which is raised by all the parties.
The Employees Insurance Court is directed to issue notice to
the parties fixing the date of appearance. I make it very
clear that I had not considered the matter on merits.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
…………………………………….
A.S.NO.389 OF 2001
………………………………………
11th day of November, 2010.
J U D G M E N T