High Court Kerala High Court

The Employee State Insurance vs M/S. Jos Brothers on 8 December, 2010

Kerala High Court
The Employee State Insurance vs M/S. Jos Brothers on 8 December, 2010
       

  

  

 
 
  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.
                   ...........................................
                       Ins.A.No.20 OF 2005
                  .............................................
           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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Ins.A.No.20 OF 2005

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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Ins.A.No.20 OF 2005

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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Ins.A.No.20 OF 2005

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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Ins.A.No.20 OF 2005

M.N. KRISHNAN, J.

…………………………………….
A.S.NO.389 OF 2001
………………………………………
11th day of November, 2010.

J U D G M E N T