High Court Kerala High Court

The Regional Director vs M/S.Tata Tea Limited on 13 December, 2010

Kerala High Court
The Regional Director vs M/S.Tata Tea Limited on 13 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Ins.APP.No. 12 of 2009()


1. THE REGIONAL DIRECTOR,
                      ...  Petitioner
2. THE RECOVERY OFFICER, E.S.I.CORPORATION,

                        Vs



1. M/S.TATA TEA LIMITED,
                       ...       Respondent

                For Petitioner  :SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN.

                For Respondent  :SRI.E.K.NANDAKUMAR

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :13/12/2010

 O R D E R
                M.N. KRISHNAN, J.
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            INS.APPEAL NO. 12 OF 2009
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    Dated this the 13th day of December, 2010.

                 J U D G M E N T

This appeal is preferred against the order

of the Employees Insurance Court, Alappuzha in

I.C.79/04. The applicant’s establishment moved

an application u/s 75 of the E.S.I.Act for

setting aside the direction to pay E.S.I.

contribution on the amount reimbursed to M/s

P.G. Parameswara Iyer and sons, their stockists

in connection with their sale promotion

activities. The applicant’s establishment is

engaged in the manufacturing and marketing of

tea. They are having dealers and stockists at

different centres and they purchase packets of

tea from the establishment and they are being

sold. The applicant also introduced a promotion

scheme whereby the dealers/stockists are free to

INS.APPEAL NO. 12 OF 2009
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accept any mode prescribed in the sale promotion

scheme. Those persons receive remuneration from

the stockists which was reimbursed by the

applicant by way of sale promotion expenses. It

has nothing to do with the persons so involved

and therefore the prayer is to set aside the

order of the E.S.I. Corporation.

2. On the other hand the E.S.I.

Corporation would contend that the records of

the establishment reveal reimbursement of those

charges to the stockists and therefore it can be

considered as the principal employer liable to

pay contribution. This was based on the report

of an insurance inspector.

3. In the trial court PW1 and DW1 were

examined. Exts.P1 to P3 and D1 were marked. On

an analysis of the materials the trial court

INS.APPEAL NO. 12 OF 2009
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found in favour of the establishment and held

that interim salesmen are not employees under

the E.S.I.Act therefore set aside the order. It

is against that decision the E.S.I. Corporation

has come up in appeal. The points of law

formulated are,

(1) Whether the interim salesmen are

employees within the meaning of Section 2 (9)

of the E.S.I.Act and the salary paid to them

will be wages to attract the E.S.I.

Contribution.

(2) Whether the interim salesmen are coming

under provisions of Section 2 (9) of the Act and

the contributions are payable in the facts and

circumstances of this case.

INS.APPEAL NO. 12 OF 2009
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Points 1 and 2:

4. Heard the learned counsel for the

appellant as well as the respondent. It is

desirable to understand the work done by these

persons in order to decide the question. Tata

Tea Ltd. is a manufacturer and seller of tea

products. M/s P.G. Parameswara Iyer and sons

is the stockists/dealer under them. They are

non-exclusive in the sense that they are

entitled to store and sale the products of other

companies as well. The persons who are

attempted to be roped in for the purposes are

persons who had purchased packets of tea from

the stockists and had sold it during different

festivals or exhibitions. It is contended that

since Tata Tea Ltd. has reimbursed the amount

incurred for the sale promotion which amounts to

INS.APPEAL NO. 12 OF 2009
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wages and therefore the company is bound to pay

contribution for these persons. So the question

to be decided is whether a person who sells tea

for promotion activities independently whose

expenses are reimbursed by the Tata Tea Ltd. to

its stockists can be considered as wages for an

employee that is either under the principal

employer or the immediate employer. This fact

has been considered by the learned Insurance

Court Judge in paragraph 9 of the award. He had

considered the evidence of DW1 and found that

payments were reimbursed by the Tata Tea Ltd. to

M/s P.G. Parameswara Iyer and Company. In cross-

examination DW1 deposed that he did not see any

agreement executed between Tata Tea Company and

M/s P.G. Parameswara Iyer and sons and his

report was based only on the ledger payments.

INS.APPEAL NO. 12 OF 2009
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He had not enquired about the nature of works of

interim salesmen and nothing is stated in the

report. It is also not stated that those

interim salesman were attached to the stockist’s

office. He does not know whether E.S.I.

Corporation has claimed contribution from M/s

P.G. Parameswara Iyer and sons. He would submit

further it had not entered into any agreement

with M/s P.G. Parameswara Iyer and sons as

stockists. It is further interesting to note

that the so called activities of salesmen are

not carried out in the establishment of M/s

P.G. Parameswara Iyer and sons and again it is

deposed that the said Company did not maintain

any records relating to interim salesmen. So

the basis on which the E.S.I. Corporation wanted

to rope in the establishment is that since the

INS.APPEAL NO. 12 OF 2009
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amounts spent by the stockists for promotion of

sale had been reimbursed to the stockists, the

principal company will become liable for

contribution. I am afraid such an interpretation

may lead to dare consequences. As extracted by

the trial court neither the stockists nor the so

called principal employer has any control or

right over these salesmen. In fact what they do

is they purchase these stocks but sell it for

the purpose of the improvement of the business

for which the stockists paid some remuneration

and as a part of the sale improvement scheme the

Company reimburses that amount to the stockists.

In order to be an employee it is fundamental

that he is to be employed by the person. Though

employment need not be direct S.2(a)(i) gives a

picture about the same. So far as this case is

INS.APPEAL NO. 12 OF 2009
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concerned 2(a)(i) of the E.S.I.Act cannot have

any application at all and if at all we have to

see whether S.2 (9)(ii) will have any

application. In S.2(9)(ii) also employee means,

“………..who is employed by or through an

immediate employer, on the premises of the

factory or establishment or under the

supervision of the principal employer or is an

agent of work which is ordinarily part of the

work of the factory or establishment or which is

preliminary to the work carried on in or

incidental to the purpose of the factory or

establishment.” Just because the stockists or

somebody else makes genuine attempts to improve

their business and in the process since the

products of the manufacture is being sold out if

one comes to the conclusion that these people

INS.APPEAL NO. 12 OF 2009
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have to be tacked with the principal employer,

as stated by me earlier will lead to dangerous

consequences. Sale promotion activity is a

factor which is concerning all, right from the

manufacturer to the wholesaler or the retailer

as the case may be and in all those cases just

because the reimbursement is made by the

manufacturer as an incentive for the sale

promotion activity one cannot classify it as

wages so as to attract the provisions of the

E.S.I.Act or broadly speaking neither they can

be treated as an employee of the principal

employer nor the amount received as taken as

wages for the purpose of the E.S.I.

Contribution. The learned judge had considered

the matter elaborately on factual basis and the

finding on the said fact does not appear to be

INS.APPEAL NO. 12 OF 2009
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perverse or mis guided by law. So the facts

emanating make it very clear that they are not

attracted and therefore considering the nature

of the work done in this case I hold that they

will not be covered under the provisions of the

Act and so the respondent Tata Tea Ltd. cannot

be directed to pay any contribution. Both the

questions of law are answered against the

Corporation and the appeal fails and the same is

dismissed but without costs.

Sd/-

M.N. KRISHNAN, JUDGE.

ul/-

[true copy]

P.A. To Judge.