FAO No. 822 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
FAO No. 822 of 1986
Date of decision: August 13, 2009
M/s M G Electricals. Plot No. 97, Sector 24, Faridabad ........ Appellant
Versus
Employees State Insurance Corporation, Chandigarh .......Respondent(s)
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. Roshan Lal Batta, Senior Advocate with
Mr. Sanjay Tangri, Advocate
for the appellant
Mr. Vikas Suri, Senior Standing Counsel
` for ESIC with
Mr. Rajiv Kumar Saini, Advocate
for the respondent
-.-
1. Whether Reporters of local papers may be
allowed to see the judgement?
2. To be referred to the Reporter or not?
3. Whether the judgement should be reported in
the Digest?
Nirmaljit Kaur, J.
The appellant, herein, filed petition under Section 75 of the
Employees’ State Insurance Act, 1948 (in short ‘the 1948 Act’) seeking declaration
to the effect that the appellant is not covered under the 1948 Act and the recovery
certificate and the amount of contributions claimed from the appellant, are illegal.
The aforesaid petition was dismissed vide order dated 05.08.1986 passed by the
Employees’ Insurance Court, Faridabad.
FAO No. 822 of 1986 2
Learned counsel for the appellant has challenged the aforesaid order
dated 05.08.1998, mainly, on two counts.
Raising his first argument, learned counsel for the appellant stated
that the Insurance Court had erred in law by disbelieving the documentary
evidence of the appellant-firm in the shape of attendance register entries Ex. P-5
to P-18, which shows that the number of employees never exceeded 10 during the
relevant period. Mohan Gupta, Proprietor of the Firm, who appeared as PW1 has
clearly stated that the number of employees never exceeded 8 in the factory. The
trial Court has erred by relying upon the Survey Reports of the respondent-
Corporation, which cannot be relied upon, as it were prepared in the absence of
the appellant or any responsible person of the factory. These Survey Reports were
not signed by any person on behalf of the appellant-firm. Bal Kishan, who is
alleged to have signed the Survey Reports was not the employee of the factory.
His name (Bal Kishan) has been wrongly mentioned. PW1 has stated, in his
evidence, that no over time register has been maintained in the factory by the
appellant firm. RW 2 has wrongly stated about the maintenance of overtime
register. The report given by RW2 dated 11.06.1975 is absolutely wrong. The
survey report given by RW1 cannot be relied upon as the Inspector did not
mention the names of the workers working in the factory of the appellant and no
signatures were obtained from any representative of the employer on the survey
report. This has been admitted by RW1. RW 2 has also admitted in the cross
examination that he did not count the workers and the letter pad was given by a
fictitious person Bal Kishan.
In response, learned counsel for the respondents invited the court’s
attention to the Survey Reports Ex. R1 and R3. Both the Survey Reports are duly
FAO No. 822 of 1986 3
stamped as a token of proof that these were prepared in the presence of the
employees of the factory. These Survey Reports have been made on the letter pad
of the appellant firm. The inspection of the premisses carried out by the Inspector
is admitted in the statement of Shri Mohan Lal Gupta, RW1. There is no mala fide
alleged against the officials of the Corporation, submitting the Survey Reports.
Thus, the arguments raised by learned counsel for the appellant that the name of
the employee, who signed the Survey Reports, is not mentioned, is not relevant.
Fact remains that they are duly stamped and are also prepared on the writing pad
of the Firm. Therefore, the authenticity of the Survey Reports cannot be doubted
only on the ground that neither the owner of the firm, nor his representative was
present in the factory at the time of inspection.
Learned counsel for the appellant, thereafter, relied on the
examination-in-chief and cross examination of Shri Om Parkash Sharma, RW1
and Shri D R Dhall, RW2, who were the witnesses of the respondent-Corporation,
to show that the same are contradictory and that there were discrepancies in their
statements. The discrepancies so pointed out by the learned counsel for the
appellant are minor in nature as the statements having been recorded after a lapse
of 10 years, can always vary. The fact remains that the documentary evidence in
the form of Survey Report lie. The clinching documentary evidence in the face of
the oral evidence will have to be relied upon. Learned counsel for the appellant
further argued that in order to prove that the 1948 Act was applicable, it was
necessary to prove that the machines were being run by power. The plea that no
electric power was being used in the factory, was taken up by the appellants.
Thus, it was for the appellant to prove that no electric power was being used, but
the appellant did not lead any evidence to the effect that the machines were not
FAO No. 822 of 1986 4
being run on power.
Learned counsel for the appellant while raising the second argument
submitted that the Employees’ Insurance Court has illegally held that the petition
under Section 75 of the 1948 Act is time barred, inasmuch as, the order, under
challenge, vide which the Regional Director had finally determined the
contributions, to be paid by the appellant firm, is dated 21.03.1983. It was further
submitted that since the order dated 21.03.1983 was challenged under Section 75
of the 1948 Act on 01.09.1983 and then the same is clearly within time as
prescribed under section 77 of the 1948 Act. It was further stated that no other
order was received before the aforesaid order dated 21.03.1983.
Learned counsel for the respondent-Corporation, however, invited the
Courts’ attention to the prayer clause made in the plaint i.e. para 15, which runs as
follow:-
“15. It is, therefore, prayed that the recovery demanded by
the respondent towards E.S.I. Contributions vide their Ref.
No. PB 13/14561/67/SF(4) 1033 dated 19.04.1976, for
recovery of Rs.1535.50 paise plus interest @6% per annum
and RC No. 1055 dated 06.08.1976 and Reference No.
PB/13/14561/67/SF (221)1795 dated 31.08.1977 for the
recovery of Rs.1394.85 plus interest @6% per annum R.C.
No. 652 dated 07.04.1977 and Ref No. PB/12/14561/609
dated 30.06.83 for Rs.1054.25 paise and any other amount of
recovery, so made by the respondent be declared illegal and
the orders so made by the respondent be struck down and
declared null and void and the respondent be restrained from
FAO No. 822 of 1986 5recovering the same perpetually.”
It is obvious from the reading of the aforesaid para of the plaint that
the order for recovery was issued for the first time on 19.04.1976 and then on
06.08.1976, 31.08.1977 and 07.04.1977 and finally on 30.06.1983. As such,
cause of action had arisen from the date of issuance of the first recovery order i.e.
On 19.04.1976. Therefore, petition under Section 75 of the 1948 Act is clearly
time barred, as Section 77(1)(a) of the 1948 Act, allows a period of three years
from the date of cause of action, whereas the petition under Section 75 of the 1948
Act was moved as late as on 01.09.1983, i.e. almost after seven years.
Learned counsel for the appellant, however, denied the receiving of
the aforesaid orders and referred to para 9 of the plaint, wherein, the appellant had
taken a stand that they had received the demand notice for the first time on
14.10.1980.
After having heard the learned counsel for the parties and having
perused the entire record, it is difficult to accept that the appellant heard about the
demand notice for the first time only on 14.10.1980, inasmuch as, all the orders
dated 19.04.1976, 06.08.1976, 31.08.1977, 07.04.1977 and 30.06.1983 have been
challenged by the appellant in the plaint. All these orders must have been received
by the appellants on the respective dates, as its details have been mentioned in the
prayer clause of the plaint. A specific reply has also been given by respondent in
para 9 of their written statement, which reads as follow:-
“9. That contents of para 9 of the petition are admitted to the
extent that the petitioner was informed that it was covered under
the ESI Act with effect from March, 1975, but rest of the
contents of this para of the petition are wrong and false and
FAO No. 822 of 1986 6hence denied. Instead, it is submitted that the petitioner was
informed regarding his coverage under ESIC in the year 1975.”
A plea that the appellant had received demand notice, for the first
time, only on 14.10.1980, has not been proved by leading any cogent evidence in
this regard. Even the official witnesses have not been cross examined to that
effect. Nor, the orders dated 19.04.1976, 06.08.1976, 31.08.1977, 07.04.1977,
which were duly exhibited, had been objected to. It is apparent that these orders
of the year 1976 and 1977 were in the knowledge of the appellant. As such, the
petition under section 75 of the 1948 Act, is hopelessly time barred.
In view of the position delineated above, I find no merit in this appeal
and the same is accordingly, dismissed.
(Nirmaljit Kaur)
Judge
August 13, 2009
mohan
Whether to be referred to the Reporter: Yes or No