IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.AO. No. 329 of 1986
Date of Decision : December 18, 2008
Modern Food Industries (India) Limited
.....Appellant
Versus
Employees State Insurance Corporation and another
.....Respondents
CORAM : HON'BLE MR JUSTICE T.P.S. MANN
Present : Mr. Ashim Aggarwal, Advocate
for the appellant.
Mr. Ajay Pal Singh, Advocate for
Mr. B.S.Bhalla, Advocate
for respondent No. 1.
None for respondent No. 2.
T.P.S. MANN, J.
Petition under Section 75 of the Employees State Insurance
Act, 1948, filed by the appellant for challenging the assessment order
passed by respondent No. 1 under Section 45A of the Act, was
dismissed by E.S.I. Court, Chandigarh on 27.1.1986 which order stands
challenged by way of appeal under Section 82 of the Act.
In its petition, the appellant had stated that it had entered
into a railway booking and forwarding contract with Rajinder Kumar,
F.AO. No. 329 of 1986 -2-
Proprietor, Him Soft Drinks-respondent No. 2, who used to book and
forward the appellant’s goods, i.e. bread, from Kalka, besides supplying
some packing material to the appellant. Said respondent did not carry
out any function in the premises of the appellant. A letter dated
28.9.1983 was received by the appellant from respondent No.1,
i.e. Employees State Insurance Corporation (hereinafter referred to
as ‘the Corporation’), which was replied by the appellant. On
26.11.1984, the appellant received a letter from the Collector,
Chandigarh from which it learnt that its plea stood rejected by the
Corporation and the amount assessed under Section 45A of the Act had
to be paid by the appellant. The said assessment was illegal and
unlawful.
In its reply, the Corporation averred that the appellant had
given a copy of the agreement at the time of inspection, which the
appellant had entered into with respondent No. 2 and in view of the
same, the appellant was liable to pay contribution because the packing
was done in the factory and even if some process was carried out
outside the factory, that was under the supervision of the appellant.
Therefore, the appellant, being the principal employer, was liable to
pay contribution.
Respondent No. 2 also filed a written statement wherein it
was stated that no part of the contractual obligations was carried out in
F.AO. No. 329 of 1986 -3-
the premises of the appellant and the entire work done at Kalka over
which the appellant had no control .
Learned Insurance Court, on the basis of the evidence led
by the parties, framed the following issues :-
1. Whether the respondent No. 1 is not
entitled to receive the amount in dispute
from the petitioner. OPP.
2. Whether Col. Sukhjit Singh is competent
to file the present petition. OPP.
3. Relief.
After going through the evidence, Court below held that
the Corporation was entitled to recover the amount of contribution
from the appellant. The petition under Section 75 of the Act was,
accordingly, dismissed.
I have heard learned counsel for the parties and perused the
evidence with their able assistance.
The most relevant document on record is the terms and
conditions of the tender floated by the appellant for engaging the
booking and forwarding contract. Same is, Ex. R3, which is proved by
Hardial Singh-RW1. Col. Sukhjit Singh, General Manager of the
F.AO. No. 329 of 1986 -4-
Corporation, while appearing as PW1 admitted his signatures at point
‘A’ on the same. Para 5 of Ex. R3 provided for depositing interest free
cash security of Rs. 5,000/- by the Contractor-respondent No. 2.
Alongwith Ex. R3 was Schedule mark ‘A’. It was mentioned therein
that respondent No. 2 would do the entire process of packing and
loading in the factory premises of the appellant. In such a situation, the
version of the appellant could not be accepted that it had no control
over the working of respondent No. 2 and it was not its duty to know if
respondent No. 2 had employed any member or not in carrying out his
duties as booking and forwarding contract.
In his testimony, Col. Sukhjit Singh PW1 only stated that
respondent No. 2 used to come to his factory only for collecting the
payment and not for any other purpose. According to the appellant, it
used to transport its goods to respondent No. 2 for further transmission
to different places after packing the same, therefore, the appellant had
no connection with the labour employed by respondent No. 2-
Contractor. However, PW1 admitted his signatures on Ex. R1, which
was a report prepared by Hardial Singh-RW1 at the time of inspection
of the record of the appellant, the said report having been prepared by
him correctly from the record shown to him. Col. Sukhjit Singh also
admitted his signatures on Ex. R2, which he handed over to Hardial
Singh-RW1, as per which packing was to be done in the premises of
the appellant by the Contractor and, thereafter, the packed material to
F.AO. No. 329 of 1986 -5-
be despatched to Kalka. The contract included the packing of material,
loading and unloading. Thus, it stands established from testimony of
Col. Sukhjit Singh-PW1 that respondent No. 2 had been packing the
material in the premises of the appellant.
Once the aforementioned conclusions are drawn, the
appellant was legally and validly required to pay the contribution in
respect of the amount of wages and the amounts shown under the head
‘packing and forwarding charges’. The same had been done in the
present case by the Corporation by passing the assessment order under
Section 45A of the Act.
Resultantly, there is no merit in the appeal, which is,
therefore, dismissed. No order as to costs.
( T.P.S. MANN )
December 18, 2008 JUDGE
satish
Whether referred to the Reporters : YES / NO