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South India Granite Corporation Vs. Employees State Insurance Corporation, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case Number417 of 1981
Judge
Reported in(1986)ILLJ441AP
ActsEmployees' State Insurance Act, 1948 - Sections 44, 45, 45(2), 45A, 45B, 54A, 55A, 68, 70, 75, 75(1), (2), 77, 77(1), (1A) and 85
AppellantSouth India Granite Corporation
RespondentEmployees State Insurance Corporation, Hyderabad
Excerpt:
(i) labour and industrial - employer's contribution - sections 44, 45 (2), 45a, 45b, 54a, 55a, 68, 70, 75, 75 (1), 75 (2), 77, 77 (1), 77 (1a) and 85 of employee's state insurance act, 1948 - inspector appointed under act visited factory of appellant - act is applicable to every establishment in which ten or more workers are employed - respondent sent notice to appellant for contribution as act is applicable to establishment otherwise criminal proceedings were initiated - appellant invoked adjudication of insurance court but insurance court held against him - against decision of insurance court writ petition filed - whether ten or more persons employed in establishment - it was apparent from refusal to produce necessary documents by appellant during inspection that number of employees.....seetharam reddy, j.1. in this appeal, two points are canvassed by the learned counsel for the appellant. firstly, the judgment under appeal, is erroneous inasmuch as the lower tribunal has taken a perverse view of the matter as no evidence has been let in on behalf of the state insurance corporation to establish that in the appellant's factory ten or more persons were engaged as employees. secondly, in this case, it is the corporation that is constrained to invoke the jurisdiction of the employees' state insurance court and it is not for the appellant to get the dispute adjudicated. 2. the facts, in brief, may be stated : the appellant was doing business in cutting stones and selling the same. m/s. south india granite corporation was said to be previously the proprietary concern of sri t......
Judgment:

Seetharam Reddy, J.

1. In this appeal, two points are canvassed by the learned counsel for the appellant. Firstly, the judgment under appeal, is erroneous inasmuch as the lower tribunal has taken a perverse view of the matter as no evidence has been let in on behalf of the State Insurance Corporation to establish that in the appellant's factory ten or more persons were engaged as employees. Secondly, in this case, it is the Corporation that is constrained to invoke the jurisdiction of the Employees' State Insurance Court and it is not for the appellant to get the dispute adjudicated.

2. The facts, in brief, may be stated : The appellant was doing business in cutting stones and selling the same. M/s. South India Granite Corporation was said to be previously the proprietary concern of Sri T. Abdul Sattar; later, the appellant became one of the partners. The firm's business became established for a short duration from 1976 to 1979 and then again, it was commenced with effect from 10th February, 1979, when it became the sole concern of the appellant herein.

3. The Inspector of the Insurance Corporation visited the factory on 22nd February, 1979, and after due inspection, made a report to the Corporation stating that the factory engages power and also employs ten persons and, hence, it is liable for contribution and, therefore, the Corporation issued a demand notice and when it was not complied with, criminal proceedings were initiated. It is on that the appellant invoked jurisdiction of the Insurance Court while, of course, at the same time making a claim that he is approaching the Court without prejudice to his claims that it was not necessary under the circumstances for him to invoke the jurisdiction of this Court as it was for the Corporation to have got the said dispute inter se between the parties adjudicated by the Court. The Insurance Court held against the appellant and, therefore, he is here.

4. In so far as the claim with regard to the number of persons which has to be minimum of ten as per S. 2(xii) of the Employees' State Insurance Act in order to be liable for payment of contributions under the Act, the contention of the learned counsel for the appellant was that the report of the Inspector has no relevancy as it was pertaining to the period, viz., 1973 to 1976, which is anterior in point of time to the relevant year for which the demand in respect of the contributions has been made. Secondly, there is no specific mention that the factory engages ten persons, and, thirdly, the report should not be given due weight inasmuch as the Insurance Inspector, who is R.W. 1 in this case, was motivated in tendering the report which is obvious from exhibit R-2(a).

5. So, the two points in the main that arise are : (1) Whether the factory in question engages 10 or more persons so as to be exigible to the Employees' State Insurance Act, No. 34 of 1948; (2) Whether it is for the Insurance Corporation alone to have the dispute referred to the Insurance Court for due adjudication and not for the appellant-factory in question.

6. In so far as the first point is concerned, it is fairly apparent from the inspection report, whereby, R.W. 1 in column 6, mentioned :

'6. Number of employees (employed for wages) on the date of inspection : at factory 9, Office : 1, Immediate Employer : Total 10.'

that including the person who are working in the office at the time when the inspection was made, the total employees were ten in number. That apart, in the letter addressed by the learned counsel for the company communicating to the Regional Director, Employees' State Insurance Corporation, it is stated as under :

'Regarding para 2 of your letter, under reply my clients state that on reopening of their factory on 10th February, 1979, and, thereafter, my clients' establishment does not come under the provisions of the E.S.I. Act, since the maximum number of persons employed at any time does not exceed 10.'

That apart, when the Inspector visited the factory, it is admitted in evidence saying as under :

'He (the Inspector) visited our factory only on 22nd February, 1979, and 25th March, 1980. We had not produced any records before him.'

All the above material when examined either independently or cumulatively would undoubtedly establish that the appellant has engaged ten employees in its factory. In fact, the lower Court stated, while adverting to this issue, as under :

'24. Exhibit P-7 letter is dated 23rd June, 1979. I already observed that even on 2nd March, 1979, exhibit R-2(a) along with exhibit R-2 was received in the office of the respondent. By exhibit R-3 dated 27th April, 1979, the office of the respondent corporation addressed a letter to the petitioner demanding the contribution for the period from 1st July, 1973, to 15th June, 1976. In the same letter by note 2, the petitioner was requested to intimate the date on which 10 or more persons were employed from 10th February, 1979. Further, in paragraph 2 of the said letter, the petitioner was informed that his factory stands covered under the E.S.I. Act on reopening as per the details furnished by the Insurance Inspector who verified the records of the petitioner on 22nd February, 1979. Evidently, the inspector referred to therein is R.W. 1. So even long prior to the date of exhibit P-7, the officer of the respondent-corporation informed the petitioner that his factory stands covered as 10 workers were engaged on 22nd February, 1979. It may be further noted that it is for the concerned officers of the respondent-corporation to demand the contribution amount and also to launch prosecution. It is not for R.W. 1 to issue a demand notice or to file a complaint under S. 85 of the E.S.I. Act. So when even the petitioner had not come up with the version that on 27th April, 1979, or earlier R.W.1 demanded from the petitioner bribe and as there was no oblique motive for R.W. 1 by the time he submitted exhibit R-2(a) in the office of the respondent-corporation, it cannot be stated that the demand as per exhibit P-7 is in regard to the matter in issue, even assuming that the amount referred to therein was demanded by way of bribe. So there is no need to consider for the purpose of this petition as to whether the amount referred to therein was demanded as a bribe. It is a matter for the respondent-corporation to consider the same as petitioner is contending that the said amount was demanded as bribe.

25. When it is a case of oath against oath, the matter has to be decided after taking all the relevant matters into consideration. It is the simply because R.W. 1 is an official, his evidence cannot be preferred to that of P.W. 1 merely on the ground that the former is an official. But, this is a matter where R.W. 1 deposed on the basis of a report submitted by him to the office of the respondent-corporation long before the date on which the oblique motive was attributed to him. The evidence of P.W. 1 is not supported by any documentary evidence. The denial on the part of the petitioner by his letter to the respondent had come long after R.W. 1 submitted his report to the respondent. So, when by the date of submission of exhibit R-2 along with exhibit R-2(a) and (b) in the office of the respondent-corporation, there was no motive for R.W. 1 to come with wrong particulars in regard to the employment strength of the petitioner in the said report, and when even in exhibit B-5 letter addressed by the petitioner through his advocate to the respondent, the employment strength was said to be not exceeding ten, and as it supports the version of R.W. 1 and as the petitioner did not challenge the ad hoc assessment determined by R.W. 1 on the basis of particulars noted by him, exhibit R-2(b), the version of R.W. 1 can be preferred to that of P.W. 1.

26. One 29th April, 1980, the petitioner submitted in this Court, the ledger upto 30th June, 1979, cash book from 1st July, 1978 to 30th June, 1979, and payment voucher file containing 15 vouchers in pursuance of exhibit P-8 notice issued by the learned counsel for the respondent to the petitioner. But, attendance register for the relevant period was not filed, even though request for production of that book also was made as per exhibit P-8.

27. As neither side has chosen to get the above records marked as evidence, there is no need to consider the same. It may be noted that R.W. 1 deposed that the current attendance register was produced before him and he signed in the said register when he visited this factory on 22nd February, 1979. Anyhow, in view of the other circumstances referred to, it can be stated that the version of R.W. 1 in regard to the employment strength of the petitioner can be believed and hence I find this issue against the petitioner.'

7. The Insurance Court eventually held that the appellant-company is liable to pay contribution from 22nd February, 1979, till 21st March, 1980. Now, this is assailed primarily on the ground that the letter, exhibit P-7, signed by R.W. 1, the insurance inspector, demanding the sum Rs. 500 as bribe, must invite adverse inference and, therefore, the evidence given by R.W. 1 should not be believed and, in fact, adverse inference should be drawn against the insurance corporation. We apprehend there is no substance in this contention. The letter, exhibit P-7, is not only much later in point of time to the actual submission of the inspection report, but also has been very satisfactorily clarified by none other than R.W. 1 himself. So, the appellant-company cannot be allowed to use it as a lever support of its case. It is very apparent from the very conduct of the appellant which not only refused to disclose the information at a time when inspection was made but also deliberately failed to produce the necessary documents, in particular, the attendance register which would have certainly indicated the number of employees that were engaged by the appellant-factory and the decision in Orient Distributors v. Bank of India Limited, : AIR1979SC867 , wherein it was held that any inferences drawn from the facts and surrounding circumstances were substantial questions of law, is of little assistance to it. In our unhesitated view, the lower court even if it has drawn any adverse inference without giving much value to exhibit P-7, even then, we would say, the inference is properly drawn and the appellant himself cannot make any capital out of it. We, therefore, do not see any perversity in the appreciation of evidence warranting upsetting the judgment under appeal.

8. The second question which is purely a question of law is whether under S. 45 of the Employees' State Insurance Act, is it for the insurance corporation to have any dispute that would be said to arise between the Corporation and the employer, to have it adjudicated by the Insurance Court

9. Now, for proper appreciation of the question, a few relevant provisions of the statue may be set out as under :

'44. Employers to furnish returns and maintain registers in certain cases. - (1) Every principal and immediate employer shall submit to the Corporation or to such officer of the Corporation as it may direct such returns in such form and containing such particulars relating to persons employed by him or to any factory or establishment in respect of which he is the principal or immediate employer as may be specified in regulations made in this behalf.

(2) Where in respect of any factory or establishment the Corporation has reason to believe that a return should have been submitted under Sub-s. (1) but has not been so submitted, the Corporation may require any person in charge of the factory or establishment to furnish such particulars as it may consider necessary for the purpose of enabling the Corporation to decide whether the factory or establishment is a factory or establishment to which this Act applies.

(3) Every principal and immediate employer shall maintain such register or records in respect of his factory or establishment as may be required by regulations made in this behalf.

45. Inspectors, their junctions and duties - (1) The Corporation may appoint such persons as Inspectors, as it thinks fit, for the purposes of this Act, within such local limits as it may assign to them.

(2) Any Inspector appointed by the Corporation under Sub-s. (1) (hereinafter referred to as Inspector), or other official of the Corporation authorised in this behalf by it may, for the purposes of enquiring into the correctness of any of the particulars stated in referred to in S. 44 or for the purpose of ascertaining whether any of the provisions of this Act has been complied with :-

(a) require any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or

(b) at any reasonable time enter any office, establishment, factory or other premises occupied by such principal or immediate employer and require any person found in charge thereof to produce to such Inspector or other official and allow him to examine such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or

(c) examine, with respect to any matter relevant to the purpose aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factory, establishment, office or other premises, or any person whom the said Inspector or other official has reasonable cause to believe to be or to have been an employee;

(d) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or other premises;

(e) exercise such other powers as may be prescribed.

(3) An Inspector shall exercise such functions and perform such duties as may be authorised by the Corporation or as may be specified in the regulations.

45-A. Determination of contributions in certain cases :- (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provision of S. 44 or any Inspector or other official of the Corporation referred to in Sub-s. (2) of S. 45 is obstructed by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under S. 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment.

(2) An order made by the Corporation under Sub-s. (1) shall be sufficient proof of the claim of the Corporation under S. 75 or for recovery of the amount determined by such order as an arrear of land revenue under S. 45-A.

75. Matters to be decided by Employees' Insurance Court. - (1) If any question or dispute arises as to :-

(a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employees' contribution, or

(b) the rate of wages or average daily wages of an employee for the purpose of this Act, or

(c) the rate of contribution payable by a principal employer in respect of any employee, or

(d) the person who is or was the principal employer in respect of any employee, or

(e) the right of any person to any benefit and as to the amount and duration thereof, or

(ee) any direction issued by the Corporation under S. 55A on a review of any payment of dependant's benefits, or

(f) [Omitted by the Act 44 of 1966].

(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be to which may be decided by the Employees' Insurance Court under this Act,

such question or dispute, subject to the provisions of Sub-s. (2A), shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act.

(2) Subject to the provisions of Sub-s. (2A), the following claims shall be decided by the Employees' Insurance Court, namely :-

(a) claim for the recovery of contributions from the principal employer;

(b) claim by a principal employer to recover contributions from any immediate employer;

(c) [Omitted by Act 44 of 1966].

(d) claim against a principal employer under S. 68;

(e) claim under S. 70 for the recovery of the value of amount of the benefits received by a person when he is not lawfully entitled thereto; and

(f) any claim for the recovery of any benefit admissible under this Act.

(2A) If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except whether an appeal has been filed before the Employees' Insurance Court under Sub-s. (2) of S. 54-A in which case the Employees' Insurance Court may itself determine all the issues arising before it.

(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decide by a medical board or by a medical appeal tribunal or by the Employees' Insurance Court.'

Section 45A of the Act has been introduced by the Amendment Act 44 of 1966. This section, by itself confers a right on the Employees' State Insurance Corporation to determine the amount of contributions, payable in respect of the employees of the factory or establishment on the basis of information available under S. 45 of the Act. It also empowers the Corporation, at a time when the factory or establishment fails to furnish returns, particulars, registers or records expected to be maintained under the provisions of S. 44 or at a time when the Inspector of the Corporation is obstructed by the principal or immediate employer or by any other person, the Corporation may, as well, determine the amount of contributions to be paid by the factory or establishment. Not only this, under Sub-s. (2), any determination so made by the Corporation will be adequate proof of the claim of the Corporation under S. 75 and also for the recovery of the amount as arrears of land revenue under S. 45B of the Act. Now, S. 75 is comprehensive enough seeking to confer jurisdiction on the Employees' Insurance Court to decide with regard to any of those matters enumerated Cls. (a) to (g) of Sub-s. (1) of S. 75 of the Act. It is quite obvious that any matter other than that which is already enumerated under Cls. (a) to (ee) of Sub-s. (1) of S. 75 in respect of which any dispute between the principal employer and the corporation arises or between a principal employer and an immediate employer', or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recovered under this Act, shall be decided by the Insurance Court under S. 75(2). In this case, it is not disputed that the Corporation determined the amount of contributions to be paid by the appellant-factory by taking into reckoning that there have been ten employees working in the factory and, accordingly, the same was determined and demand notice was also served and it was eventually sought to be recovered as arrears of land revenue as well. If that be so, reading in combination S. 45A and 75, it becomes quite manifest that a positive power has been conferred upon the Corporation to determine the amount which the employer will be liable to pay towards contributions under the Employees' State Insurance Act and it goes without saying that liability does arise as and when the other provisions of the Act are satisfied, namely, the number of employees, if it is ten or more, and the factory employs power towards the production of the goods, in which case, it becomes eligible to the Act or, alternatively, if there are twenty or more persons employed without power being employed in the manufacturing of the goods, then also it becomes covered by the Employees' State Insurance Act. Now, all these factors have been taken into consideration and determined by the Corporation and then, demand for the contribution has been raised and then it was sought to be recovered. In such circumstances, it becomes quite clear that the party aggrieved, namely, the employer if he agitates this determination, then surely, he has necessarily to raise the dispute before the Insurance Court for due adjudication. Otherwise, recovery of the contribution will be effected both under S. 45-A as well as under S. 45-B of the Act. We apprehend that would be the construction that has to be placed upon the provision of the Act.

10. The learned counsel for the appellant-factory relied upon a Full Bench decision of the Karnataka High Court in Employees' State Insurance Corporation v. Fibre Bangalore (P.) Ltd., [1981] 58 F.J.R. 487 wherein, at pages 496-497, it was held as under :

'After a careful consideration of the matter, we are of the opinion that what emerges from a conspectus of the relevant provisions of the Act is that in case where the requirement of S. 45-A are attracted and satisfied and where the Corporation is enabled to and does make an order under and in accordance with that section determining the amount of contributions payable in respect of the employees of the factory or establishment, the Corporation can proceed to recover the amount so determined as an arrear of land revenue though the employer affected by that order may raise a dispute in regard thereto. The Corporation is not compelled to seek an adjudication before the Insurance Court by reason alone of the fact that the employer disputes the claim so determined. Indeed, the expression 'determine' occurring in S. 45-A is far too strong to permit of its being understood as meaning anything but a decision which, unless set aside by the Insurance Court in exercise of its powers under S. 75, is enforceable under S. 45-B. This, in our opinion, is the clear effect of the provisions in Sub-s. (2) of S. 45-A read with S. 45-B. In such a case, if the employer seeks to dispute and avert his liability. It is for him to institute proceedings before the Employees' Insurance Court.

Section 77(1) of the Act provides that proceedings before an Employees' Insurance Court shall be commenced by application. Section 77(1-A) provides that every such application shall be made within a period of three years from the date on which the cause of action arose. Explanation (b) to Sub-s. (1-A) of S. 77, inter alia, provides that the cause of action in respect of a claim by the Corporation for recovering contributions from the principal employer or a claim by the principal employer for recovering contributions from an immediate employer' shall not be deemed to arise till the date by which the evidence of contributions having been paid is due to be received by the Corporation under the regulations. The provision merely provides a 'deemed date' for the arising of the 'cause of action' by providing that it shall not be earlier than the date by which the evidence of payment of contribution is required to be filed. This provision does not detract from or otherwise affect the position that in cases where a claim for contributions by the Corporation has received prior determination under S. 45-A and the employer raises disputes on such a determination, it is not necessary that the dispute be resolved by the Insurance Court before such a claim can acquire the element of enforceability as arrear of land revenue. However, in cases where there is and can be no determination under S. 45-A and where the claims are disputed by the employer, it is necessary for the Corporation to take its claim before the Insurance Court for a resolution of the dispute. The view taken by a Bench of this Court in Krishna Mills Co.'s case [1972] 42 F.J.R. 532, must be understood as applying only to the latter classes of cases, and so understood, in our opinion, lays down the principal correctly.'

11. We are unable to conceive of any circumstances which could possibly be said to fall outside the gamut of S. 45-A so that the dispute has mandatorily to be riased before the Insurance Court, at the instance of the Corporation. In fact, we pointedly requested the learned counsel for the appellant to cite a single instance which can be said to cover the cases falling outside S. 45-A, constraining the Corporation itself to take the matter to the Insurance Court for due adjudication. We apprehend, no such circumstance or instance was brought to our notice. With greatest deference to the learned Judge, we are not persuaded to follow the decision stating that in cases where there can be no determination of amount under S. 45-A and where the claims are disputed by the employer, it is necessary for the Corporation to take its claim before the Insurance Court for reconciliation of the disputes.

12. In Hindustan Lever Limited v. Employees' State Insurance Corporation, [1973-I L.L.J. 259 at 265], it has been held by the Delhi High Court at page 265.

'It has been contended by Mr. Chopra, learned counsel for the respondents Nos. 1 to 5 that the procedure under the Act is, that a return has to be filed under S. 44 of the Act and then the Corporation has to decide whether a particular workman is covered by the Act or not and it is the Corporation which has to demand the contribution and in case the employer fails to pay the same, the amount in question can be recovered under S. 45-A of the Act as arrears of land revenue. There is no doubt that the Act does seem to indicate that the Corporation can recover the contributions, if not paid as arrears of land revenue. However, if there is a difference and a reasonable dispute regarding the scope and effect of the Act with respect to certain persons is raised, the real dispute between the parties is whether these persons are 'employees' within the meaning of the Act or not, then any decision that may be reached by the Employees' State Insurance Corporation can be merely prima facie in nature. I do not think that it takes away the effect of S. 75(1)(a) of the Act which requires that any dispute relating to 'whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution has to be decided by the Employees' Insurance Court. This means that any prima facie decision by the Employees' State Insurance Corporation can have very little effect unless that dispute is settled by the Court appointed under the Act. I do not think this Court is competent on the facts on record to determine as to whether any of the employees of the petitioner-company are covered by the Act. Therefore, it seems to me that this question must be worked out first by the Corporation by finding out which of the employees are covered and then the matter has to be adjudicated upon by the Court appointed under the Act.'

13 Now, it is hard to see that these observations help in any way the appellant's contention. On the contrary, we thought the observations are in tune with our view that under S. 45A, the Corporation is empowered to determine eventually whether the employer is liable for contribution and, no doubt, it would be only a prima facie determination in nature and then, it would be for the employer under S. 75(1)(a) of the Act, if he disputes, whether in regard to any person being employed within the meaning of the Act or whether any employer is liable to pay any contributions under the Act to take the matter to the Employees' Insurance Court. It is, therefore, obvious that when a decision is arrived at by the Corporation, surely, it can be challenged if the employer chooses to do so at an appropriate forum contemplated by the Act, namely, the Insurance Court. November, in fact, in the decision sited has it been stated that whenever such dispute arises it is the Corporation that has to invoke the jurisdiction of the Insurance Court. We are, therefore, afraid that this decision on the contrary would help the Corporation, rather than the appellant in question. Hence, in our undoubted view, whenever any dispute or question arises in regards to the determination of the contributions that would be liable to be paid by an employer, as made by the Corporation, it is for the employer if he disputes the amount of contributions to be paid as determined by the Corporation, to agitate it before the Employees' Insurance Court or any other point which he would like to so agitate in regard to the dispute. However, since quantum of contribution is not said to have been arrived at after due notice, we, while following the decision of the Supreme Court reported in Royal Talkies, Hyderabad v. Employees' State Insurance Corporation [1978-II L.L.J. 390], direct the matter back to the Regional Director, the Employees' State Insurance Corporation, for due assessment of the contributions to be paid after giving notice and opportunity to the appellant herein. In the result, the appeal is dismissed, with no order as to costs.

14. It is, however, stated by the learned counsel for the appellant that the contributions liable to be paid by the appellant-factory, as determined by the Corporation, has been no doubt, paid subject to the condition that the criminal prosecution launched against the appellant, may be dropped. After due assessment, as indicated above, if there is any non-compliance it shall be open to the Corporation to initiate such action as is available under the Act and the Rules.


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