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Free India Private Ltd. Vs. Regional Director, Employees' State Insurance Corporation (19.02.1973 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1726 of 1971
Judge
Reported in[1973]43CompCas427(Mad); [1974(29)FLR1]; (1973)IILLJ584Mad; (1973)2MLJ303
ActsEmployees' State Insurance Act, 1948 - Sections 45A and 75; Revenue Recovery Act
AppellantFree India Private Ltd.
RespondentRegional Director, Employees' State Insurance Corporation
Appellant AdvocateR. Alager, Adv.
Respondent AdvocateK. Alagiriswami, Junior Central Govt. Standing Counsel
Cases ReferredA. R. A. Kamppiah Nadar v. Commissioner of Civil Supplies
Excerpt:
- - i am not satisfied that in the instant case there was a fair enquiry on the material question as to what is the working strength of the company......the excess number of employees found working at or about the time when the inspector of the state insurance corporation visited the factory, were not the regular employees of the company, bat were employees of an independent contractor who was associated seasonally for particular business secured by the petitioner-company. as a matter of fact, such inspections were made in april, 1969 and july, 1970. on both the occasions, the report was to the effect that there were 26 or 27 workers inside the factory precincts and that the excess of the workers over the statutory minimum were to be deemed to be the workers of the petitioner-company notwithstanding the fact that they were the employees of an independent contractor. the petitioner tried to explain from time to time, on the memos issued.....
Judgment:

Ramaprasada Rao, J.

1. The petitioner is a private limited company registered under the Indian Companies Act. It undertakes printing works and publishes a journal. Daring 1968 and 1969, the respondent levied what is known as the Employer's Special Contribution under Section 73-A under Chapter V-A of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Insurance Act). This demand was founded on the hypothesis that there were more than 18 employees in the company of the petitioner. The petitioner's attempt throughout was to establish that the working strength of the factory was always below the prescribed minimum or at any rate it did not exceed the minimum prescribed, and that the excess number of employees found working at or about the time when the Inspector of the State Insurance Corporation visited the factory, were not the regular employees of the company, bat were employees of an independent contractor who was associated seasonally for particular business secured by the petitioner-company. As a matter of fact, such inspections were made in April, 1969 and July, 1970. On both the occasions, the report was to the effect that there were 26 or 27 workers inside the factory precincts and that the excess of the workers over the statutory minimum were to be deemed to be the workers of the petitioner-company notwithstanding the fact that they were the employees of an independent contractor. The petitioner tried to explain from time to time, on the memos issued by the Department calling upon them to specially contribute in view of such engagement of workers over and above the prescribed minimum. The petitioner's grievance is that he was not given a full opportunity to explain that the excess of workers are not to be considered or in'any event not deemed to be the workers of the petitioner-company. Whilst the subject remained as it was, the petitioner received a notice dated 26th April, 1971, from the respondent, stating that the matter has been sent to the Collector of Madras, that there has been a determination of the liability of the petitioner to contribute specially under the Act and that in consequence of the delay of non-payment of the demand already made, the Collector of Madras was requested to recover the same under the Revenue Recovery Act. On receipt of this information, the copy of which was sent to the petitioner, the petitioner has come up to this Court for the issue of a writ of certiorari or other appropriate order, to quash the order dated April 26, 1971, of the Regional Director of the Employees' State Insurance Corporation,

2. In my view, if there is a dispute which is genuine as between a statutory authority or Government and a citizen in the matter of payment of dues, then until the dispute is resolved in a manner known to law, processing further of the demand by recourse to the Revenue Recovery Act is not possible and is not available. This was my view under similar circumstances, as is seen from the decision in A. R. A. Kamppiah Nadar v. Commissioner of Civil Supplies, Madras, [1972] 85 L.W. 887 It was a case where the quantum was in dispute. But, here is a case where the petitioner's dispute is that he is not liable to contribute at all since he has engaged the prescribed minimum of workers and that the excess of workers found in the factory precincts are employees of independent contractors with whom the petitioner does not have the jural relationship of servant and master. Nevertheless, there is a dispute about the liability to contribute.

3. An employer is liable to contribute under the Employees' State Insurance Act only if he comes within the various yardsticks prescribed and dealt with by the Act. One of the fundamental aspects which touch on this issue is that the strength or the working force of a factory should not be beyond 18 and if it exceeds such a limit then only such an employer would be liable to contribute or specially contribute, as the case may be, under the provisions of the Act. Therefore, it should be established beyond reasonable doubt after a fair enquiry, whether the working strength of a factory is beyond the prescribed minimum. The reports of the Inspectors of the Corporation no doubt have great weight. But, those reports cannot be an equation for acceptable proof on which action could be taken against the employer without a further reasonable or fair opportunity being given to the employer to prove to the contrary. In the instant case, two such reports were available in the records of the respondent to the effect that the petitioner employed more than 18 workers. Excepting to inform the petitioner that consequent upon such reports he was liable to specially contribute, it appears to me that no attempt has been made to call upon the petitioner to prove what exactly is the working strength inside his factory or to test the veracity of the petitioner's statement with reference to the records of the limited company, whether the strength was 18 or 26 or 27, as claimed by the Inspector and the company. I am not satisfied that in the instant case there was a fair enquiry on the material question as to what is the working strength of the company. As this is the foundation for action under the Insurance Act, I am of the view that until that aspect is settled, recourse to the Revenue Recovery Act, as if the demand is certain and unerring, is not available to the Corporation. As a matter of fact, even in a case where the factory obstructs the officers in the discharge of their duties, the Corporation is expected to make an order underSub-section (1) of Section 45-A and determine the amount of liability. Here again, the determination of liability is not an empty formality. It should also satisfy the essential principles of natural justice. Before a final order is made by the Corporation under Section 45-A(2), it is essential that the person to suffer the claim has to be notified and given another opportunity to explain whether the quantum or determination as made by the Corporation is justified or not. The determination under Section 45-A(1), which the Corporation has to make, is not an administrative order, but is a quasi-judicial one which will impinge upon the rights of parties. That being so, the principles of natural justice have to be adhered to and the determination of liability being made after due notice and a responsible enquiry. Even Section 45-B says that any contribution payable under this Act may be recovered as an arrear of land revenue. It is not always compulsory for the Corporation to have recourse to the provisions of the Revenue Recovery Act. A fortiori' in a case where the quantum of liability is in dispute, recourse to such a summary procedure is not permissible. The petitioner also has to be equally blamed in the instant case. He know that he had a right under the Act to move the Employees' Insurance Court for deciding the question or dispute, whether any one or more of the persons employed in his factory are employees within the meaning of the Act itself. As a matter of fact, Section 75, Sub-sections (1) and (2), provides an alternative remedy to the petitioner to deal with the situation and set at naught the correspondence which was rather prolonged in this case. But, the petitioner did not do so, obviously to prolong the issue as far as possible.

4. As there is a dispute whether the number of persons over and above the prescribed statutory minimum are employees of the petitioner within the meaning of the Act, recourse to the Revenue Recovery Act is not permissible in law. In this view, the writ petition is allowed and there will be no order as to costs. The petitioner is granted three months' time before which he should move the Employees' Insurance Court and secure thereafter a decision whether all his employees or only some of them are employees within the meaning of the Act or not. If the petitioner fails to do so, the department is at liberty to proceed under the Revenue Recovery Act as it should be deemed by them that the petitioner is not disputing his liability.


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