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Kandaswami Weaving Factory I Co. Vs. Regional Director, - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 84 of 1962
Judge
Reported inAIR1966Mad51
ActsEmployees' State Insurance Act - Sections 2(9), 73-A, 73-B, 73-B(1), 73-B(2), 74, 75, 76 to 81, 82 and 82(1); Indian Limitation Act - Sections 5 and 12; Factories Act
AppellantKandaswami Weaving Factory I Co.
RespondentRegional Director, ;employees State Insurance Corporation, Madras
Cases ReferredParshuram Pottery Works and Co. Ltd. v. Union of India
Excerpt:
.....82--maintainability--appeal under section only from orders of employees' insurance court--order of authority constituted under section 73-b, not appealable ; on an appeal directed against the order of the additional commissioner for workmen's compensation, madras, holding that the appellant is liable to pay the employer's special contribution to the employees' state insurance corporation, the respondent raised a preliminary objection as to the maintainability of the appeal on the ground that section 82, under which provision the appeal had been filed did not apply to an order made by a commissioner as it was confined only to orders made by the employees' insurance court.; held, in the instant case, the petition before the commissioner was no doubt under section 75 of the employees' state..........s. 75 of the employees state insurance act. but the petition was actually dealt with not by the employees insurance court but by the commissioner. the appeal before me is under s. 82 of the act. what is argued by the respondent is that s. 82 does not apply to an order made by the commissioner and it is confined only to orders made by the employees insurance court. it seems to me that the objection has force. ch. vi of the act relates to adjudication of disputes and claims, s. 74 provides for the constitution of the employees insurance court by the state government by notification in the official gazette. the matters to be decided by such a court are enumerated in s. 75. ss. 76 to 81 contain rules of procedure to be followed by the employees insurance court relating to institution,.....
Judgment:
(1) This appeal is directed against an order of the Additional Commissioner for Workmen's Compensation, Madras, holding that the appellant is liable to pay the employer's special contribution to the Employees' State Insurance Corporation, Madras, under S. 73-A of the Employees' State Insurance Act. The appellant contended before the Commissioner that the persons employed in his establishment were not workmen as defined by S. 2(9) of the Act and that the establishment itself was not a factory as defined in the Factories Act. On those grounds, he denied his liability to make the employer's special contribution. Before me the order of the Commissioner has been canvassed on the ground that the indicia required to constitute the relationship of master and servant are wholly absent, so that the appellant would not come within the purview of the Employees' State Insurance Act. But in view of the question raised for the respondent and the view I take on that question, it has become unnecessary to deal with the validity of the order on its merits.

(2) The petition before the Commissioner was no doubt under S. 75 of the Employees State Insurance Act. But the petition was actually dealt with not by the Employees Insurance Court but by the Commissioner. The appeal before me is under S. 82 of the Act. What is argued by the respondent is that S. 82 does not apply to an order made by the Commissioner and it is confined only to orders made by the Employees Insurance Court. It seems to me that the objection has force. Ch. VI of the Act relates to adjudication of disputes and claims, S. 74 provides for the constitution of the Employees Insurance Court by the State Government by notification in the official Gazette. The matters to be decided by such a court are enumerated in S. 75. Ss. 76 to 81 contain rules of procedure to be followed by the Employees Insurance Court relating to institution, commencement of proceedings, the court's powers, appearance by counsel, time limit for making claims and reference by the Employees Insurance Court of a question of law for the decision of the High Court. S. 82(1) says that save as expressly provided in the Section, no appeal shall lie against an order of an Employees Insurance Court. Sub-section (2) of that section provides for an appeal to the High Court from an order of an Employees Insurance Court if it involves a substantial question of law. The next sub-section provides for a period of limitation for an appeal and sub-section (4) attracts Ss. 5 and 12 of the Indian Limitation Act to appeals under the section. It is obvious, therefore, that an appeal under S. 82 will only lie on a point of law from an order of an Employees Insurance Court as constituted under S. 74.

The claim here in question related, as already mentioned, to the appellant's liability to make employee's special contribution to the Corporation. Section 73-A enjoins that every principal employer shall pay to the Corporation a special contribution at the rates specified under the section. Disputes or questions relating to such contribution under the contemplation of the Act are generally to be decided by the Employee's Insurance Court where once exists. In fact, S. 75 specifically says that the employees' Insurance Court will, among other things, have jurisdiction to decide whether any person is an employee within the meaning of the Act or whether he is liable to pay the employee's contribution. Where no such Insurance Court has been constituted for a particular jurisdiction, S. 73-B(1) directs that if any question or dispute arises in respect of an employer's special contribution payable or recoverable under Chapter V-A, such question or dispute shall be decided by such authority as the Central Government may specify in that behalf. It is not in dispute that by notification the Additional Commissioner for Workmen's Compensation has been specified as the authority to decide such a question or dispute. It is in exercise of this authority, the order under appeal was made by the Additional Commissioner for Workmen's Compensation. Sub-section (2) of S. 73-B reads :

"The provisions of sub-section (1) of Ss. 76 and 77 to 79 and 81 shall, so far as may be, apply in relation to a proceeding before an authority specified under sub-section (1) as they apply in relation to a proceeding before an Employees Insurance Court."

It is significant that the sub-section makes no reference to S. 82 and does not make that section applicable in respect of proceedings under S. 73-B(1). While therefore, the statutory provisions in Ch. VI, relating to the procedure, to be followed by the Employees Insurance Court, where one exists, apply to the proceedings before an authority constituted under S. 73-B(1), the terms of sub-section (2) of that section do not make any provision for an appeal against an order made by such authority. There appears to be a lacuna. Logically there could be no reason why, when an appeal is provided against an order by the Employees Insurance Court, no such appeal is provided against an order made under S. 73-B(1). But the fact is that as S. 73-B stands at the moment, there is no appeal from an order made by authority constituted under S. 73-B(1).

(3) It is argued that because an authority under S. 73-B(1) is empowered to decide a dispute relating to an employer's liability to pay special contribution which an Employees Insurance Court, where one is constituted, can decide, for that purpose and for the purpose of appeal under S. 82, the authority under Section 73-B(1) should be regarded as virtually an insurance court. In other words, the argument is that if the same powers, as the Employees Insurance Court may exercise, are exercisable by the authority under S. 73-B(1), by a process of equation the authority must by a process as an insurance court. The fallacy underlying the argument is obvious because the constitution of the Employees Insurance Court is under the specific provision namely under S. 74 and by an authority different from the case of the authority under S. 73-B(1). It may not also be correct to say that the authority under S. 73-B(1) and the Employees Insurance Court exercise parallel powers in all respects. The authority and the Employees Insurance Court are entirely two different bodies and the fact that where an Employees Insurance Court does not exist, the authority is expected to decide certain disputes, will not clothe it with the character of an Employees Insurance Court. In my view, therefore, no appeal lies under S. 82 from the order of an authority constituted under S. 73-B(1).

Venkatadri J. in East Asiatic Co. (India) Pvt. Ltd., Madras v. Regional Director, Employees State Insurance Corporation, Madras, was apparently of the view that an appeal lay. With due respect, I am unable to share this view. Normally, I would have referred the question to a Division Bench. As far as I can see from the reported judgment of the learned judge, it does not appear that his pointed attention was drawn to the difference in the constitution, set up, powers and procedures in relation to the authority referred to under S. 73-B(1) and an Employees Insurance Court under S. 74. Especially sub-section (2) of S. 73-B does not appear to have been considered there because the learned Judge's attention was not invited to it. I feel that I am bound by the statutory provision which is expressly clear. Reference may also be made to Parshuram Pottery Works and Co. Ltd. v. Union of India, (S) AIR 1956 Sau 96, where Shah C. J. and Baxi J. took the same view as I have taken.

(4) The appeal is not maintainable and is dismissed on that ground. No costs.

(5) Appeal dismissed.


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