THE EMPLOYEES STATE INSURANCE CORPN.& ORS. vs TIMKEN INDIA LTD

The appellants have preferred the instant appeal being dissatisfied with the judgment and order of the learned Single Judge dated July 12, 2016 passed in W.P.No.531 of 2016 (Timken India LTD.versus The ESI Corporation & Ors.).For the purpose of convenience, the Timken India LTD.is hereinafter referred to as the Company/Establishment whereas the Employees State Insurance Corporation is referred to as Corporation.

The order is assailed on the grounds that the learned Single erred in setting aside the order dated February 6, 2012 passed by the E.S.I.Authority fixing the liability of ESI contributions of the could company have from been 1992; passed holding for a that period no order beyond five years from the date on which the contribution became payable.

The contention of the appellants is that the amendment to section 45A of the ESI Act w.e.f.01.06.2010 by insertion of second proviso thereto prohibits the Corporation from determining the liabilities of the employer beyond five years from the date of contribution will not be applicable in the instant case. in the instant determination of It has no manner of application case also dues had order dated 08.09.1997. for the already reason been made that vide As such, the said amendment being prospective to section 45A of the Act would not have retrospective application.

An order dated February 6, 2012 was passed by the Corporation under section 45A of the Act to the effect that the E.I.Court vide Order No.02 dated 03.11.2011 had further directed to complete the proceedings within 3 months from the date of order and, therefore, it is said to have no other alternative than to decide the case on merit to honour the order of the E.I.Court.

Relying Inspector and visited 07.02.1995 upon the and the facts, that establishment verified the on Insurance 23.02.1995 records for the period April, 1992 to February, 1995, recommended the establishment (provisionally).for the coverage date on from which the 01.07.1992 number of employees employed in the company for wages reached 20, drawing wages not exceeding Rs.3000/- per month.

It is in the aforesaid backdrop that the writ petition no.531 of 2012 was preferred by the company on June 26, 2012 challenging the order dated February 6, 2012 principally on the ground that by reason of the amendment carried to section 45A of the 1948 Act by inserting the second proviso thereto with effect from June 1, 2010, the Corporation lost jurisdiction to pass order to recover earlier contributions/dues in respect of the period beyond five years from the date became due and payable. on which contributions However, the learned Single Judge, by order dated July 12, 2016, inter alia, was pleased to allow the aforesaid writ petition to the following extent: I have accepted all the contentions made by learned counsel for the ESI Corporation, except one.

It is quite fundamental and goes to the root of the matter.

The impugned order was made on 6th February, 2012 by the Deputy Director, Employees State Insurance Corporation, Kolkata.

He decided that the writ petitioner employed 20 persons for wages as on 1st July 1992 and that they were covered under section 1(5) of the ESI Act, 1948 with effect from that date.

As a reason in support of the order he relied on a Form 01 dated 7th February, 1995 submitted by the employer.

I have absolutely no hesitation in coming to the conclusion that as far as this factual issue was concerned, the Deputy Director decided it correctly.

I find from this form as filled up by the writ petitioner (page 14 onwards of the affidavit in opposition) that they specifically declared that they had twenty emplyoees drawing wages not exceeding Rs.3,000/- per month as on 7th February, 1995.

They also declared that there were twenty persons in their employment on 1st July, 192.

There is every reason to believe that the self same persons were employed at a rate not above Rs.3,000/because in three years time the wages could not have fallen. But the jurisdictional issue is this.

Section 45A was amended with effect from 24th May, 2010 by insertion of a second proviso thereto.

It stipulated that the Corporation would not pass any order for a period beyond five years from the date on which the contribution was payable.

Therefore, any contribution which was payable beyond a period of five years would not be subject matter of any order passed by the Corporation.

The petitioner gets the benefit of this protection by the statute.

The order dated 6th February, 2012 was clearly erroneous fixing liability on the petitioner from 1992.

The impugned order th dated 6 February, 2012 is set aside on this ground.

This writ application is allowed to the above extent. Being aggrieved by the above judgment and order of the learned Single Judge dated July 12, 2016, the Corporation authorities have preferred the instant appeal.

In support of his argument, the learned counsel for the appellants cited the decisions reported in AIR1958SC915(Anant Gopal Sheorey versus State of Bombay).replying upon paragraph Nos.6, 7 and 8. 1989 SC Behari He also relied upon paragraph 21 of AIR1247Khare) (Mithilesh and Kumar upon the & Anr. judgment versus Prem reported in (2003) 4 SCC147(Sarwan Kumar & Anr. versus Madan Lal Aggarwal) which are not related to the facts of this case.

Per contra, learned counsel for the writ petitioner/respondent submitted that the Corporation while passing the order dated February 6, 2012 was to be governed by the amended provisions of the second proviso to section 45A of the 1948 Act which came into force from June 1, 2010 and is applicable to the period much beyond the year even in the midst of such a continuing proceeding.

The coverage with retrospective effect cannot be given and as on the date of insertion of the amended provision of second proviso to coverage 1992. section cannot be 45A. given Therefore effect to the order of from July 1, In support of his argument, he relied upon the decision reported in (2013) 16 SCC16(State of Maharashtra & Anr. versus Sarva Shramik Sangh, Sangli & Ors.) which otherwise is clearly distinguishable on facts and law from the instant case.

The moot point for consideration is as to whether the order under section 45A of the 1948 Act having been set aside the authority while passing the impugned order dated February 6, 2012 was to be governed by the amended provision of the second proviso to section 45A of the 1948 Act which came into force prospectively with effect from June 1, 2010.

After hearing the learned counsel for the parties and on perusal of the records, it is apparent that the establishment was inspected by the Insurance Inspector on 7.2.1995 and was covered provisionally with effect from 1.7.1992 in view of section 1(5) Inspectors submitted of the report by the Act as on well employer. the basis as the The of the documents notice to the company made it clear that in case the establishment was found coverable from a date prior to the date mentioned above i.e.1.7.1992, the establishment itself would be liable to comply with the provisions from such earlier date.

The company also appears to have been advised to take immediate steps for registration and payment maintenance of its of the records contribution for making and the contribution under code no.41 allotted to it.

The records also reveal that there were subsequent communications between the parties and an amount of Rs.1,13,701/- (including interest of Rs.36200/-) upto 31.7.1997 assessed by the authority which was challenged by the company before Insurance Court under section 75 of the Act. the This order was set order dated aside by September the 10, Insurance 1997 for Court vide determination afresh after giving opportunity of hearing to the company and that vide order dated 24.11.2010, the authority on remand again re-assessed the amount due from the company in proceedings under section 45A of the Act holding that the employer has not complied with its obligations to keep all the records till final disposal of the case, also noting that the company had not produced the relevant records and had disputed the coverage only on the basis of the amendment by introduction of second proviso under section 45A of the Act for avoiding to produce those records.

The Court circumstances in also which noted the the various records of the Corporation were earlier inspected by the Inspector who had recommended for coverage with effect from 1.7.1992 finding that the employees employed for wages by the establishment were 20 and that this strength of the employees was also confirmed by the employer in the 7.2.1995 taking establishment declaration into was form no.01 consideration covered dated that from the 1.7.1992 provisionally on the basis of the Inspectors report dated 7.2.1995 and other materials on record.

At this juncture the company again moved the Insurance challenging Court the under aforesaid section order 75 dated of the Act 24.11.2010 which was set aside on the ground of having been passed without transparency cogent in the reasons and proceeding. for The lack matter of was again remanded to the Corporation for hearing afresh in the spirit of the earlier order no.47 28.04.2010 passed in ESI Case no.169/1997. dated By this order, the ESI Court directed the point of coverage with regard to the actual number of employees coming under the coverage of ESI Act by further directing the parties to conclude the hearing and sort out the problem within three months thereof.

In all the aforesaid proceedings the company always challenged the recovery on the ground of coverage saying it did not employ 20 persons or more employees at the relevant time in 1992 when it was provisionally covered.

The Insurance Court had been remanding the matter back for findings afresh on the ground of opportunity not being provided to the company and sometime on other grounds.

Ultimately the authority on the basis of the Inspectors report and notice given to the company found by the impugned order that it was employing 20 or more persons.

The contention of the company therefore that it did not employ more than 20 persons at the relevant time was not finally decided by the Insurance Court in the litigation before it and was remanded back for decisions from time to time to be decided by the authority afresh.

Admittedly, the establishment is not a new establishment which has to be covered after the second proviso to section 45A was inserted therein and came into force with effect from 01.06.2010.

The order for provisional coverage had already been issued from time to time and was under litigation.

Since this is establishment not which a is fresh at coverage present paying of the the ESI contribution the matter is limited to the previous period since 1992 and not to five year period counting backward from 01.06.2010.

Furthermore, the company appears to have also avoided to file any document in support of its case before the Corporation that it was employing less than 20 persons.

On the other hand the Inspectors report and the notices have been given to the company informing the period of coverage on the basis that it was employing 20 employees at the relevant time in 1992.

In view of the above, we are of the view that the would amendment apply to in those question being establishments prospective which are covered from June 1, 2010 and not to establishments which had earlier been covered even provisionally in respect payment of of matter of dues of coverage ESI or assessment contribution of pending litigation.

For all the reasons above, we find that the amendment is not applicable to the facts and circumstances of the case.

There is ample record to show that the establishment had been employing more than 20 persons since 1992 and has rightly been covered since then.

Accordingly, the appeal is allowed by quashing the order of the learned Single Judge which is under challenge with costs assessed at Rs.50000/to be deposited within two weeks from date by the respondent-company Authority charges in with an with account a the State earmarked further Legal for direction Services litigation upon the respondent-company to deposit the amount assessed by the Corporation authority which has been challenged in the instant writ petition within a period of one month with upto date interest.