The Regional Director vs Divya Exports Enterprises

B. Kemal Pasha, J.—Aggrieved by judgment dated 16.07.2012 passed by the Employees'' Insurance Court, Alappuzha, the respondents therein have come up in appeal.

The respondent herein is a cashew factory at Eruva, Kayamkulam.

The case of the appellants is that there was a short fall in the payment of contribution for a particular period, amounts to 61,352/- by the respondent herein. Consequently, they have issued Ext. A4 notice dated 26.09.2007 claiming the said balance contribution. The respondent approached the court below alleging that Ext. A4 as such was not legally sustainable. The E.I. Court, after perusing the documentary evidence produced by either side, has come to the conclusion that Ext. A4 is illegal and unsustainable. Consequently, it was found that all the steps taken by the appellants were legally unsustainable.

Heard the learned counsel for the appellants Smt. T.D. Rajalakshmi and learned counsel for the respondent Sri. George Jacob.

The learned counsel for the respondent has pointed out that the appellants have made an assessment of contribution in the case merely based on some surmises and conjectures without caring to arrive at the actuals. It is the specific case of the respondent that the Corporation has made the assessment without verifying any of the account books and even without having recourse to the provisions of Section 45(a) of the Employees State Insurance Act, 1948 (hereinafter referred to as "ESI Act"). It has been fairly conceded by the learned counsel for the appellants that there was procedural lapse on the part of the Corporation in making the assessment in the particular case, because of the lapse from the part of some of the employees of the Corporation. It has clearly come out that the Corporation has failed to comply with the mandatory provisions contained in Section 45(a) in making the assessment. Ext. A4 itself is self speaking that any of the account books were not verified. It clearly reveals that no opportunity of being heard was extended to the respondent in the matter. It seems that the first proviso to Section 45(a) has given a go by and an assessment was made merely by considering the returns of some other cashew factories.

It is the case of the appellants that the return filed by the respondent was not correct as it did not reflect the actual wages paid to the concerned employees. When it is a cashew factory, it is a known case that the work therein was based on piece rate as it is a seasonal industry depending upon the availability of the raw materials. Wages were being paid on the actual output of the individual employees. In such case, instead of making an assessment by perusing the books of accounts as well as by taking evidence, the Corporation has arrived at a conclusion that an average payment at the rate of 62.43 was only made by the respondent. The Corporation has picked out in random, the average payments allegedly made by 2-3 other cashew factories and they came to the conclusion that in such factories, an amount of 85.93 was the average daily payment. Without making any further enquiry, the Corporation has gone to the extent of concluding that a daily payment ought to have been made by the respondent at the rate of 90/-.

The learned counsel for the respondent has pointed out that the aforesaid assessment made by the Corporation based on mere surmises and conjectures without having recourse to the provisions of Section 45(a) and without perusing the account books or making any enquiry is devoid of merit and the same cannot be accepted. On going through the impugned judgment passed by the court below, this Court does not find any illegality, irregularity or impropriety in the impugned judgment. There is absolutely nothing to interfere with the impugned judgment.

Finally, the learned counsel for the appellant has sought for an opportunity to have recourse to the entire procedure once again against the respondent. If law permits, of course, there is absolutely nothing to fetter such powers, if any, available to the appellants.

In the result, this appeal is dismissed. At the same time, the dismissal of this appeal will not stand in the way of the appellants in having recourse to all the procedures once again, if they are entitled to do so, as per law including the period of limitation.