High Court Kerala High Court

The Regional Director vs K.V.Rugmini on 7 December, 2006

Kerala High Court
The Regional Director vs K.V.Rugmini on 7 December, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Ins APP No. 2 of 2003()


1. THE REGIONAL DIRECTOR, EMPLOYEES STATE
                      ...  Petitioner
2. THE RECOVERY OFFICER, EMPLOYEES STATE

                        Vs



1. K.V.RUGMINI, DAUGHTER OF AMBU VYDIAR,
                       ...       Respondent

                For Petitioner  :SRI.TPM.IBRAHIM KHAN

                For Respondent  :SRI.C.P.PEETHAMBARAN

The Hon'ble MRS. Justice K.HEMA

 Dated :07/12/2006

 O R D E R
                           K. HEMA, J.
            -------------------------------------------
              INSURANCE APPEAL No.2 OF 2003
            --------------------------------------------
          Dated this the 7th day of December, 2006.

                         J U D G M E N T

The respondent filed an application under Sections 75 and

76 of the Employees State Insurance Act (Act, for short) before

the Employees Insurance Court (Court, for short).

2. According to the respondent, she is the proprietrix of

M/s. Latest Offset Press which was started functioning since

December 1995. Ever since the establishment of M/s. Latest

Offset Press, the respondent had no occasion to employ more

than eight employees on any day. It is a small scale industrial

unit run with the financial assistance rendered by the Nedungadi

Bank Limited. The provisions contained in the Act and the

scheme framed are not applicable to the said press. Therefore,

the appellant-Corporation has no right to enforce the provisions

of the Act against the respondent. It is also averred in the

petition that, before establishing Latest Offset Press, the

respondent was running a printing press under the name and

style of “Latest Power Press” at a different premises in a rented

building. It was closed down in November 1995. Both these

INS. APP. No. 2/03 2

units have no connection with each other. The printing and

composing systems are totally different, employees are different.

They have no right to enforce the provisions of the Act.

3. In September 1998, the respondent received a letter

dated 16.09.1998, that is Exhibit P9, directing her to pay

Rs.14,925/- for the period from 01.04.1996 to 31.07.1998 as

contribution. A reply was sent disputing the coverage of her

establishment and liability to pay contribution. Later without

giving the respondent any opportunity of hearing, recovery officer

was instructed to realize the amount resulting to revenue

recovery proceedings. She received a notice dated 01.03.1997,

Exhibit P10, from the recovery officer alleging that she is bound

to pay Rs. 89,570/- by way of contribution. No previous notice of

information was sent to the respondent to pay the said amount of

contribution in respect of M/s. Latest Offset Press. The entire

recovery proceedings initiated are irregular, illegal and against

the principle of natural justice.

4. The appellants also not informed the respondent about

the reason for insisting coverage of the respondent’s

establishment. In the above circumstances, the respondent filed

INS. APP. No. 2/03 3

the application for a declaration that the Act and the scheme are

not applicable to M/s. Latest Offset Press and the respondent is

not liable to pay any amount by way of contribution in respect of

the said press. Declaration that coverage of Latest Offset Press

under the Act and enforcing the provisions of the Act are illegal

and unlawful. A declaration that Exhibit P10 notice is illegal was

sought for. Permanent injunction restraining appellants from

demanding, claiming or collecting any amount on the basis of

impugned coverage was also sought for.

5. The respondent filed a written statement and denied all

the allegations. It was contended that, the respondent’s

establishment was a continuation of another press by name

“Latest Power Press”, which was conducted in a rented building.

The respondent, however, did not pay contribution nor produce

any documents, records or registers at the time of inspection by

the inspectors in the establishment and hence they were forced

to initiate action on the ground that the Latest Offset Press is a

continuation of Latest Power Press with a change in the name and

change in the premises.

INS. APP. No. 2/03 4

6. Evidence was adduced by both sides. The evidence on

the side of the respondent consists of oral testimony of PW1. On

the side of the respondent Exhibits P1 to P11 were marked. The

appellants examined DWs 1 and 2 and marked Exhibits D1 to D5.

On consideration of the entire evidence on record, the court

below found that the Latest Offset Press is not liable to be

covered under the Act. It was held that M/s. Latest Offset Press

cannot be treated as a factory under Section 2(12) of the Act as

the stipulations as to minimum employment of ten is not

satisfied. It was also held that the technology, the premises and

the employees of both the press are different and on totality of

all materials on record, the conclusion inescapable is that

M/s. Latest Offset Press is not a continuation of Latest Power

Press, but it is a new press. Therefore, Latest Offset Press

cannot be treated as a continuation of the Latest Power Press and

hence E.S.I coverage cannot be extended as per Section 1(6) of

the Act. Various reasons are also given in the order.

7. The court below declared that M/s. Latest Offset Press is

not liable to be covered under the Act independently or as a

continuation of M/s. Latest Power Press. It is also clarified that

INS. APP. No. 2/03 5

the respondent is liable to pay E.S.I contributions in respect of

Latest Power Press till the date of its closure. It was also

declared that the application is not hit by resjudicata as per the

orders of the court below in E.I.C. 94/1992 or E.I.C. 12/1997.

The said order is challenged in this appeal on various grounds by

the Corporation.

The substantial question of law raised in this appeal is,

whether the appellant-Corporation is empowered to cover an

establishment under Section 1(6) of the Act even if it has shifted

to a different premises by assigning a new name. Another

question raised is, whether the establishment can escape from

the statutory liability of the continued coverage under

Section 1(6) of the Act on the sole reason that it has shifted to a

new place by giving new name. The third question is, what is the

statutory value of the Manager of the Corporation in deciding the

coverage of an establishment. At the time of hearing, the third

question was not argued. With respect to the first and second

question the learned counsel appearing for the appellants fairly

conceded that, as per the decision reported in Abdul Azeez vs.

Regional Director (2005 (2) KLT S.N. 66) the finding of the

INS. APP. No. 2/03 6

Insurance Court is essentially a finding of fact with respect to the

question whether the disputed establishment is a new one or

continuation of old establishment and no substantial question of

law arises from such findings. In the said decision the only

question arising for consideration was whether the establishment

run by the respondent is a new one or the continuation of the old

one and hence the appeal was held to be not maintainable. It

was hence fairly conceded that the appeal may not be

maintainable, since the only question to be decided is the

question of fact and not any question of law. Hence, I do not find

any reason to probe into further details. This appeal is only to be

dismissed and I do so.

This appeal is dismissed.

K. HEMA, JUDGE

smp