Employees'' State Insurance Corporation and Others vs M/s. Palm Tree Service Station

Shailesh Kumar Sinha, J.—This appeal is directed against the order dated 9.4.2009 in ESI. Case No. 8 of 2006 passed by the Presiding Officer, Labour Court and Employees'' State Insurance Court, Patna whereby the application filed by the respondent u/s 75(1)(g) of the Employees'' State Insurance Act, 1948 (hereinafter referred to as the Act) was allowed holding that the order dated 27.5.2005/9.11.2005 u/s 45A of the Act was perverse and not sustainable in law. The appellant-State Insurance Corporation being aggrieved has preferred this appeal with a prayer to set aside the order under the appeal. Mr. Rabindra Kumar Choubey appears on behalf of the appellant, however no one appears on behalf of the respondent.

The facts in short is that the respondent on being aggrieved by the order u/s 45A of the Act, as referred to the above, as sailed the same before the Labour Court basically alleging that the contributions as demanded is not payable and secondly that the order u/s 45A of the Act was passed without giving reasonable opportunity to defend his case. Before the Labour Court oral evidences were adduced as also documents were brought on record as evidence which were marked as exhibits. The order u/s 45A of the Act dated 27.5.2005 is marked as Exhibit-D.

Mr. Choubey, learned counsel for the appellant submits that the finding recorded by the Court below to the, Affect that the order u/s 45A (Exhibit-D) being not a speaking order, and as such, the same having set aside is not justified in law. It is submitted that on perusal of the Exhibit-D it would appear that the aforesaid order was passed after giving opportunity of hearing and pursuant to the notice the respondent appeared before the authority concerned and produced the relevant documents. It is further submitted that the aforesaid order was passed after considering the materials brought on record, and as such, it cannot be validly said that the aforesaid order has been passed without application of mind or without considering the documents brought on record. Accordingly, it is submitted that the order under appeal deserves to be set aside.

Now in order to consider as to whether the Exhibit-D the order u/s 45A of the Act is a non-speaking order, on perusal of the aforesaid order it would appear that it was found that the contributions are not being deposited as required under the aforesaid Act, a notice was issued to the Principal employer as per notice dated 26.8.2004/21.9.2004 under registered post to show-cause within fifteen days as per the statement enclosed why the amount be not recovered from the concerned employer. A further opportunity of personal hearing was provided on 15.10.2004. On perusal of the aforesaid order it would appeal that pursuant to the above notice although the respondent or his representatives did not appear on 15.10.2004, however written representation dated 15.10.2004 was filed seeking one month''s time. Accordingly, the authority allowed the time as per letter dated 19.10.2004 and the next date was fixed on 30th November, 2004. The employer-respondent vide his letter dated 9.2.2005 appeared and produced the relevant records. It would further appeal on perusal of the aforesaid order that the authority concerned have specifically stated that the relevant documents as also the facts on the record was duly considered and on consideration it was found that under the head ''security expenses'' the contribution is payable on different amount of salary as well and also considered with respect to the expenditure on repair and renewal as well as the labour charge have been bifurcated on which contribution is payable. On considering the above, appropriate authority ordered for payment of the contribution amount as mentioned in the order which was for the period 1995-96 to 2002-03 allowing a time of fifteen days from the date of the order failing which the same was recoverable under the provisions of the Act. The respondent employer having not paid, a notice dated 8.5.2006 was issued vide Exhibit-B and the same having not carried, a certificate was issued vide Certificate Case No. 5294 dated 18.5.2006 vide Exhibit-C.

From the discussions made above and on perusal of the order passed u/s 45A of the Act vide Exhibit-D, it cannot be held to be a non-speaking order. Under the circumstances, the order under appeal dated 9th April, 2009 passed in E.S.I. Case No. 8 of 2006 cannot be sustained in law and the same is accordingly set aside.

The appeal accordingly stands allowed. Lower Court''s record be sent down without delay.