SBC MA NO.1366/2007-EMPLOYEES STATE INSURANCE CORPORATION AND ANR. V/S ASHOK KUMAR
: ORDER DTD. 29.6.2011
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. CIVIL MISC. APPEAL NO.1366/2007
Employees State Insurance Corporation and anr.
versus
Ashok Kumar
PRESENT
HON’BLE Dr.JUSTICE VINEET KOTHARI
Mr.R.K. Soni,for the appellants.
None present for the respondents.
DATE OF ORDER : 29th June, 2011.
1. None appears for the respondents despite service.
2. The learned counsel for the appellant – ESI Corporation
submitted that the respondent A.W.1 Ashok Kumar – employer in his
statement had clearly admitted vide para 11 of the impugned order
that from January, 1997 to November, 1997, only 8 employees
worked in the establishment, whereas from the month of December,
1997, 11 employees worked. He submitted that therefore, since in the
calendar year 1997 even if for one month, more than minimum
number of employees provided in the Act, namely, 10 employees
worked in the said establishment, the ESI coverage for entire year for
SBC MA NO.1366/2007-EMPLOYEES STATE INSURANCE CORPORATION AND ANR. V/S ASHOK KUMAR
: ORDER DTD. 29.6.2011
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all the employees will have to be done as per Section 2(12)(a) of the
Act which defines the term “factory”, which is reproduced hereunder:
“2(12) “factory” means any premises including the
precincts thereof-
(a) whereon ten or more persons are employed or
were employed for wages on any day of the preceding
twelve months, and in any part of which a manufacturing
process is being carried on with the aid of power or is
ordinarily so carried on.”
3. Nobody appears on behalf of the respondent to oppose
these submissions despite service.
4. From a perusal of the impugned order dtd.20.12.2006, it
appears that even though the said statement of A.W.1 Ashok Kumar
is referred in para 11 of the order, while discussing the coverage of
establishment under the provisions of ESI Act, the presence of
employees over 10 has not been discussed by the learned Court below
while deciding the objections/ application of the employer under
Section 75 of the ESI Act. Therefore, while holding that the
establishment is not so covered and directing the refund of the ESI
contribution to the said establishment, the learned Court below has
not considered the effect of admission of A.W.1 Ashok Kumar in his
SBC MA NO.1366/2007-EMPLOYEES STATE INSURANCE CORPORATION AND ANR. V/S ASHOK KUMAR
: ORDER DTD. 29.6.2011
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statement that in the month of December, 1997 11 employees were
working in the establishment. Provisions of Section 2(12)(a) of the
Act clearly stipulates that on any day of the calendar year, if number
of employees has exceeded 10, then the establishment will be
covered under the ESI Act.
5. In view of this statement and legal position, the
application under Section 75 of the Act deserves fresh consideration
by the learned court below.
6. Accordingly, this appeal is allowed and setting aisde the
order dtd.20.12.2006, this matter is restored back to the ESI Court,
Pali for decision a fresh in accordance with law.
(Dr.VINEET KOTHARI)J.
ITEM NO.115
Ss/-