IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins APP No. 35 of 2003()
1. THE REGIONAL DIRECTOR,
... Petitioner
Vs
1. K.S.BASHEER,
... Respondent
For Petitioner :SRI.T.V.AJAYAKUMAR
For Respondent :SRI.A.M.SHAFFIQUE
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :21/03/2007
O R D E R
K.Padmanabhan Nair,J.
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Insurance Appeal No.35 of 2003
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Dated, this the 21st day of March, 2007
JUDGMENT
The Regional Director of Employees’ State Insurance
Corporation is the appellant. Appellant issued Exhibit A1 show cause
notice to the respondent informing him that since he had default
payment of contribution, criminal proceedings will be initiated against
him. The respondent filed I.C.No.9 of 2002 before the Employees’
State Insurance Court, Palakkad challenging the liability to pay
contribution. The E.I.Court after considering the evidence, held that
though there were 14 persons, the materials on record shows that the
employees were paid salary on 1.8.1993 and on 26.8.1993, thereby
the total wages received by some of them had exceeded Rs.3,000/-
and hence the establishment was decovered.
2. Learned counsel appearing for the appellant has argued
that at no point of time the salary of the employees were enhanced
beyond Rs.3,000/- per mensem. It is submitted that two months’
salary was paid during August because of the Onam festival. It is
submitted that the salary for the month of July due to the 14
employees were paid to them on 1.8.1993 and because of the Onam
festival, the salary for the month of August and payable on 1.9.1993
was also paid in advance on 26.8.1993 so as to enable the employees
Ins.Appeal No.35 of 2003
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to celebrate their Onam festival. It is also submitted that there was no
payment of salary during September 1st.
3. The reasoning given by the Tribunal is unsustainable.
Merely because of a special circumstance the employer paid salary of
two months on a particular month is not a ground to hold that the
salary has increased more than the statutory limit. The materials on
record show that the salaries of all employees were less than
Rs.3,000/-. Because of the special circumstance, two months’ salary
was paid in one month. So, the finding of the E.I. Court that
respondent’s factory is not covered under the Act is illegal and
unsustainable. So the order of the Court below is only to be set aside.
In the result, the appeal is allowed. The finding of the
E.I.Court that the respondent’s factory is not covered under the
E.S.I.Act is hereby set aside. The order passed by the Insurance Court
quashing Exhibit A1 is also set aside. The order passed by the
appellant is restored.
K.Padmanabhan Nair
Judge
vku/-