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S. Gurdial Singh and Ors. Vs. the Regional Director, Employees' State Insurance Corporation and Ors. (07.09.1972 - PHHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 774 of 1972
Judge
Reported inAIR1974P& H33
ActsEmployees' State Insurance Act, 1948 - Sections 2(17) and 40; Factories Act, 1948 - Sections 2, 2(15)
AppellantS. Gurdial Singh and Ors.
RespondentThe Regional Director, Employees' State Insurance Corporation and Ors.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........of this petition.2. the short submission on behalf of the petitioners is that they are not the 'principal employer' of the factory as defined in section 2(17) of the act. the definition of 'principal employer' reads as under:--'2(17) 'principal employer' means-- (i) in a factory, the owner or occupier of the factory, and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the factories act, 1948, the persons so named; (ii) in any establishment under the control of any department of any government in india, the authority appointed by such government in this behalf or where no authority is so appointed, the head of the department; (iii) in any other.....
Judgment:
ORDER

1. The petitioners are four in number. Gurdial Singh is the Chairman of Hindustan Embroidery Mills Private Limited, Chheharta (Amritsar), his son, Iqbal Singh, is the Managing Director and two other sons are the Directors of the Company and they are the petitioners in this petition. Gurdial Singh has another son, Inder Singh, who was also a Director of the Company and was occupier of the factory. The factory is owned by a private limited Company incorporated under the Companies Act. The Company owes a sum of Rs. 73,879/- to the Regional Director, Employees' State Insurance Corporation, Chandigarh, on account of contributions under the Employees' State Insurance Act, 1948(hereinafter called the Act) for the years 1968-69, 1969-70 and 1970-71. Since this amount was not paid, proceedings for the recovery of the amount as arrears of land revenue were taken against the petitioners which led to the filing of this petition.

2. The short submission on behalf of the petitioners is that they are not the 'principal employer' of the factory as defined in Section 2(17) of the Act. The definition of 'principal employer' reads as under:--

'2(17) 'principal employer' means--

(i) in a factory, the owner or occupier of the factory, and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948, the persons so named;

(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the department;

(iii) in any other establishment, any person responsible for the supervision and control of the establishment.'

3. The word 'occupier' is defined in Section 2(15) of the Act, as under:--

' 'occupier' of the factory shall have the meaning assigned to it in the Factories Act, 1948.'

4. Section 2(n) of the Factories Act, 1948, defines 'occupier' as under:--

' 'occupier' of a factory means the person who has ultimate control over the affairs of the factory, and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the occupier of the factory.'

5. From these definitions, it is quite clear that the petitioners are not covered by the definitions of 'principal employer' or 'occupier'. The owner of the factory in the Company namely, the Hindustan Embroidery Mills Private Limited, Chheharta (Amritsar). Inder Singh was appointed the Manager of the Company for the purposes of the Factories Act and he was, therefore, the occupier of the Factory for all purposes. The petitioners cannot be said to be the persons who have ultimate control over the affairs of the factory had been or are entrusted to any of the petitioners. The liability for the payment of contributions to the Employees State Insurance Corporation is that of the principal employer under Section 40 of the Act. As the petitioners cannot be termed as 'principal employer', no recovery can be made from them.

6. It is stated on behalf of the petitioners that the amount can be easily recovered from the assets of the factory which can be attached and sold. That procedure, for reasons best known to the respondents, is not being followed. It will be for the respondents to recover the amounts from the Company or the occupier of the factory in any manner permissible under the law. The petitioners cannot be personally held liable for the same. This petition is accordingly accepted, notice dated February 18, 1972(Annexure 'B' to the petition) is quashed and the respondents are restrained from recovering the amount of Rs. 73879-00 from the petitioners. In the circumstances of the case, the parties are left to bear their own costs.

7. Petition allowed.


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