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Judgment
S.M. Sidickk, J.—The appellant is the petitioner and the respondent is the respondent before the District Court (ESI Court) at
Nagapattinam in ESIOP. No. 14 of 1986. The appellant/petitioner filed an application u/s 75 of the ESI Act raising the following contentions:- The
appellant is a partnership firm dealing in textile goods. The number of employees is less than 20 during the period in question. So the petitioner''s
establishment is not at all covered by the provisions of the ESI Act. The Inspector of the ESI Corporation, who is the respondent herein, inspected
the appellant''s concern on 22.12.1981 and 7.12.1982, but he did not make any remarks about the number of employees working in the
appellant''s establishment. The Inspector has not noted that the number of employees was 20 or more. Nagapattinam where the appellant''s branch
is situate is not included in the notification dated 3.4.1976 issued under the Act and as such the appellant concern is not covered by the provisions
of the ESI Act to be herein after referred to as ""the Act"". That being so the respondent issued a notice dated 22.8.1984 along with a calculation
sheet thinking that the provisions of the Act are applicable to the appellant''s firm and directing that a sum of Rs. 15,052.80 should be paid by way
of contribution under the Act by the appellant for the period from 16.1.1977 to 30.11.1982. Sufficient opportunity was not given to the petitioner
by way of personal hearing before the respondent passed final orders dated 4.1.1985 u/s 45 of the Act. On these grounds the petitioner is not
liable to pay any amount towards the contributions from 16.1.1977 to 30.12.1982.
The respondent-ESI Corporation has filed a counter-statement raising the following contentions:- Establishments employing 20 or more persons
are legally obliged to submit reports to the ESI Corporation disclosing the contributions made by them. The appellant''s establishment was
inspected by the Inspector on 22.12.1981 and 17.12.1982 and it was found that the appellant''s establishments employed more than 20 persons.
There was also an admission made by the petitioner in the Registration Form (01) to the effect that it was employing more than 20 persons. The
petitioner is having Headquarters at Madurai which is covered under the E.S.I. Act from 16.11.1977. Consequently the branch at Nagapattinam is
also coverable under the Act by virtue of the definition in Section 2 (9) of the Act. Nagapattinam also came under the purview of the Act with
effect from 16.1.1977 itself. The petitioner himself had declared that the strength of the employees in Madurai head office and Nagapattinam
branch office was independently above 20. Hence the appellant is liable to pay the contribution as per the Act. Show-cause notice was issued to
the petitioner on 22.4.1984 for the period from 16.1.1977 to 30.11.1982. The appellant did not send any reply. A reminder was also sent to the
appellant on 18.9.1984. The appellant did not oblige. ''Hence the final order dated 4.1.1985 was passed u/s 45 of the Act and still the amount was
not paid. Hence the respondent resorted to Revenue Recovery Act for payment of contribution. In these circumstances the appellant is not entitled
to have any of declaration prayed for.
On the above pleadings and on the materials placed before him, the learned District Judge (ESI Court) at Nagapattinam, came to the conclusion
that the appellant''s concern is covered under the purview of the ESI Act and the final order of the respondent-Corporation is legal and
enforceable, and ultimately he dismissed the petition filed by the appellant without costs. Aggrieved against the said findings of the ESI Court, the
appellant/petitioner has come up in appeal.
On hearing the learned counsel for the appellants as well as the respondent the points that arise for consideration in this appeal are as follows:-
(1) Whether the appellant firm is liable to pay the contribution for the period from 16.1.1977 to 30.11.1982 and as to whether the order passed
by the Deputy Regional Director of ESI Corporation on 4.1.1985 is liable to be set aside?
(2) Whether the appellant is entitled to any of the declarations prayed for in the ESIOP?
Point No. 1:- The learned counsel for the appellant contended that the order passed by the ESI Court at Nagapattinam is not sustainable on the
facts and circumstances of the case, and the lower Court ought to have held that less than 20 employees were working in the appellant firm for the
period from 16.1.1977 to 30.11.1982, and further contended that G.O.Ms. No. 360 (Labour and Employment) dated 2.5.1978 has come into
force with effect from 14.5.1978 to the notified areas in Nagapattinam District, and therefore the liability of the appellant to pay the contribution for
the branch office of the appellant firm at Nagapattinam can only be from 14.5.1978 onwards and not prior to that date. The learned counsel for the
respondent refuted the above arguments put form on the side of the appellant and contended mat the appellant firm is liable to pay the contribution
for the period from 16.1.1977 to 30.11.1982 because more than 20 employees were working in the main office as well as in the branch office of
the appellant firm even prior to the coming into force of G.O.Ms. No. 360 dated 2.5.1978, and therefore the appellant is liable to pay the
contribution for the relevant period, and the appellant is not entitled to any relief as prayed for in the main ESIOP.
The appellant firm is dealing in textile goods and they are having the main office at Madurai and the branch office at Nagapatinam. According to
the evidence of one of the partners of the appellant firm examined as P.W.1 Visakamurthy the main office at Madurai is paying the contribution to
the ESI Corporation from the year 1977 onwards, and their branch office at Nagapattinam is functioning for the last 50 years, and they have got
attendance register and wage acquittance register. Yet the appellant firm did not produce those attendance registers or wage acquittance registers
to show that less than 20 employees were working in the main office as well as in the branch office at any point of time. P.W.1 Visakamurthy
admitted that they filed the 01 form before the ESI Corporation marked as Ex.B.2 on 12.8.1976, and as per the 01 form more than 26 employees
were working in the branch office at Nagapattinam alone as on 12.8.1976. His admission in the cross examination in Tamil reads as follows:-
In the light of the admissions of P.W. 1 Visakamuthry in the witness box, it is futile to contend on behalf of the appellant firm that less than 20
persons were working in the main office as well as in the branch office during the relevant period from 16.1.1977 to 30.11.1982. Therefore the
first contention urged on behalf of the appellant that less than 20 employees were working in the main office as well as in the branch office during
the relevant period is not entitled to any acceptance in this case.
The second contention raised on behalf of the appellant is that as per G.O.Ms. No. 1088 (Labour and Employment) dated 22.12.1976 the
coverage of the ESI Act was extended to shops also and as per G.O.Ms. No. 360 (Labour and Employment) dated 2.5.1978 the area within
revenue limits of Nagapattinam Taluk has been covered under the ESI Act, and if at all any contribution is liable to be paid for the employees
working in the branch office at Nagapattinam, it should only from 14.5.1978 since the G.O.Ms. No. 360 (Labour and Employment) dated
2.5.1978 stipulates that the said G.O. will take effect from 14.5.1978 in respect of the coverage of the ESI Act to the areas in the limits of
Nagapattinam Taluk and consequently the appellant is not liable to pay any contribution for the employees for the branch office at Nagapattinam
prior to 14.5.1978.
The above contentions raised on behalf of the appellant on the basis of G.O.Ms. No. 360 (Labour and Employment) dated 2.5.1978 are
untenable for the following reasons. It is not in dispute that the appellant firm is covered under the ESI Act, and the appellant firm was paying
contribution right from the year 1977 as admitted by P.W. 1 Visakamurthy in the witness box during his cross examination. On 22.8.1984 the ESI
Corporation issued a notice marked as Ex.A-2 calling upon the appellant to pay a sum of Rs. 15,052.80 towards the contribution for the period
from 16.1.1977 to 30.11.1982 on the total wages of Rs. 2,15,039.98 at 7% on the total wages paid. Under this notice marked as Ex.A-2 the
appellant firm was called upon to pay the contribution amount within 15 days thereon failing which the ESI Corporation will be obliged to
determine the contribution amount by an order Section 45A of the ESI Act. Though P.W.1 Visakamurthy stated that he could not remember as to
whether the appellant firm has given any reply to the show-cause notice marked as Ex.A-2,. nothing has been filed on the side of the appellant to
show that a reply was sent to the show cause notice marked as Ex.A-2. It follows that no reply was given by the appellant to the show cause
notice marked as Ex.A-2. Thereafter on 4.1.1985 the Deputy Regional Director of ESI Corporation passed an order u/s 45-A of the ESI Act
marked as Ex.A-3 determining the contribution amount of Rs. 15,052.80. In this order it is specifically stated that notice was issued to the
appellant firm on 22.8.1984 and the employer has not replied to the said notice, It is further stated in the order marked as Ex.A-3 that the
appellant firm has a branch office and the main office, and the Insurance Inspector of the ESI Corporation inspected the records of the appellant
firm and reported that an amount of Rs. 2,15,039.98 has been paid as wages for the period from 16.1.1977 to 30.11.1982. It is evident that a
reasonable opportunity was given to the appellant firm by the ESI Corporation before ever this order is passed under Ex.A-3 to state their
objections and the appellant firm failed to putforth their objections. It also transpires from the report marked as Ex.B-3, that inspection of the
offices of the appellant firm were held on 22.12:1981 and 7.12.1982 and the Inspector of the ESI Corporation found that more than 20
employees were working in the appellant firm as mentioned in his report marked as Ex.B-3 in this case. On the basis of the Inspector''s report the
branch office at Nagapattinam was sought to be covered from 16.1.1977 to 30.11.1982 also. As already stated, there was no reply to the show
cause notice dated 22.8.1984 marked as Ex.A-2 in this case. Further the form 01 submitted by the appellant firm on 12.4.1976 marked as Ex.B-
2 shows that more than 20 employees were working in the branch office at Nagapattinam even in the year 1976. From the above facts and
circumstances of the case I have no hesitation to come to the conclusion that more than 20 employees were working even in the branch office at
Nagapattinam from the year 1976 onwards and it cannot be disputed.
The further question is whether a branch office of an establishment covered by the ESI Act is so covered even if the number of branch
employees is less than 20 persons. The ESI Act is beneficial piece of legislation in the interest of labour in the establishment and in the factories. In
the instant case the branch office of the appellant firm at Nagapattinam is part of the main establishment at Madurai and it comes under the
administration of the appellant firm. In this view of the matter the relationship of the main establishment at Madurai and the employees at
Nagapattinam has to be linked. The employees at the Branch Office at Nagapattinam even assuming less than 20, are part of the main
establishment at Madurai. That is why in the definition of ""employee"" u/s 2 (9) of the E.S.I. Act, the employee includes any person employed for
wages on any work connected with the administration of any establishment or any branch thereof. The branch office at Nagapattinam is therefore
covered by the ESI Act and the appellant firm is liable to pay the contribution amount as determined by the order dated 4.1.1985 by the Deputy
Regional Director of ESI Corporation marked as Ex.A-3 in this case. This view gains support from the decision of a Division Bench of Andhra
Pradesh High Court reported in E.S.I.C. Hyderabad v. Southern Eastern Roadways (1983 (2) L.L.J. 396) , wherein it was laid down as follows:-
It is well settled that the employees in head office as well as the branches are comprehended within the ambit of the coverage of the Act. The
branch office is only an appendage to the head office, and the branches are located in the place or state where the head office is situated or other
places outside the States also measure up to the expansion or diversification of the business of the undertaking. Each branch is an offshoot of the
head office and cannot be considered to have an independent entity as all the transactions ultimately funnel into head office and the entirety of
transactions of the head office and branches as well are reflected by the Head Office as one unit.
Each branch is a component of the main office and all the branches are miniature of the main office and as such cannot be considered as separate
and independent units.
The situs or coverage of the head office is not relevant for the purpose of coverage of the employees in the branch office. The coverage of head
office as condition precedent for coverage of employees in the branch office is not visualised by the provisions of the Act.
Considering the above facts and circumstances of the case I am to hold that the appellant firm is liable to pay the contribution for the period from
16.1.1977 to 30.11.1982, and the order passed by the Deputy Regional Director of the ESI Corporation on 4.1.1985 is not liable to be set aside,
and consequently I answer this point as against the appellant firm and in favour of the respondent.
Point No. 2:- In view of the findings recorded on the earlier point I am to hold that the appellant is not entitled to any of the declarations as
prayed for in the ESIOP. and this appeal is devoid of merits, and the same has to be dismissed with costs and the Judgment and decree of the ESI
Court (District Court) at Nagapattinam in ESIOP. No. 14/86 dated 23.2.1989 have to be confirmed, and consequently I answer this point as
against the appellant and in favour of the respondent. In the result the appeal is dismissed with costs. The Judgment and decree of the ESI Court
(District Court) at Nagapattinam in ESIOP. No. 14 of 1986 dated 23.2.1989 are confirmed. Counsel''s fee Rs. 250/- in this C.M.A.