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Judgment
Heard Mr. K.K. Nandi, learned counsel for the appellants.
By an order passed on 03.05.2017, the appellants were directed to take steps for service of notice on the sole respondent by substituted
manner by publishing the notice on two dailies, namely, ""Assam Tribune"" and ""Assomia Pratidin"", fixing the date of appearance on 21.06.2017.
By an order passed on 11.01.2018, notice on sole respondent was deemed to have been served. On the said date, though names of some of
the counsel were also shown on the side of the respondent, as the record did not contain any Vakalatnama, this Court directed the Registry to
verify whether any counsel had appeared for the respondent.
Registry has put up a note dated 24.01.2018 indicating that till 11.01.2018, no Vakalatnama had been received on behalf of the sole
respondent by the concerned Section.
Today, no names are shown on the side of the respondent. Thus, the respondent is not represented in this proceeding.
This appeal under Section 82 of the Employees'' State Insurance Act, 1948 is directed against an order dated 16.10.2006 passed by the
learned Commissioner, Employees Insurance Court, Guwahati in ESI Case No.2/2006. As the order is short, it will be appropriate to quote the
said order in its entirety:-
M/s Accolade India Pvt. Ltd., NIIT, Panbazar - Guwahati -1 established an Educational Centre at Panbazar, Guwahati to impart computer
education to people as per the course and syllabus prepared by NIIT.The Company is required to deposit the tuition fee received from the
students in the Bank Account of NIIT who in term would disburse 80% of the collection to the Company. It has been stated for the petitioner that
at no point of time, the Institute had more than 20 employees, but 18 employees were working in the Institute. Inspite of the fact that the Petitioner
Company had less than 20 employees, the Inspector of E.S.I.C. included the education Centre within the ambit of the E.S.I.C. and served notices
without notifying the petitioner Company as a company falling under the E.S.I. Act. It has further been stated that since the company was not a
manufacturing process, it cannot be assessed under the E.S.I. Act.
The E.S.I.C. filed written statement, whereby the E.S.I.C. categorically denied the submission of the petitioner Company and stated that
32(thirty two) employees were working in the said company.
The Petitioner submitted evidence on affidavit, whereby he clearly stated that his company does not come within the definition of Factory as
contemplated in the E.S.I. Act, and exhibited Ext. 1, whereby the petitioner wanted to point out that the Petitioner Company is imparting computer
education only to the students. In spite of giving repeated opportunities, the E.S.I.C. did not cross-examine the petitioner. Hence, the evidence on
affidavit of the petitioner remains unrebutted. Since, the Petitioner''s statement is duly supported by an affidavit remain unrebutted, the evidence
adduced by him should be accepted as true state of affairs.
The E.S.I.C. did not cross-examine the petitioner and also did not adduce any evidence which also supports the case of the petitioner. Hence,
the petition is allowed and the prayer of the petitioner as contained in petition is hereby allowed with cost.
Given under my hand and seal of this court on this 13th day of October, 2006.
Mr. K.K. Nandi, learned counsel for the appellant submits that as the appellants had submitted written statement, assuming that no step was
taken by the appellants for cross-examination of PW-1 on 12.10.2006, the case ought to have been fixed for evidence of the appellants and
instead of doing so, the very next day was fixed for argument. He, accordingly, submits that one opportunity might be granted to the appellants to
adduce evidence.
From the order-sheet, it appears that the appellants submitted written statement on 08.06.2006. On 05.07.2006, the respondent herein
(petitioner before the Employees Insurance Court) filed additional written statement, which was accepted. On that day, evidence of PW-1 was
also filed and 20.07.2006 was fixed for crossexamination of PW-1. On 20.07.2006, cross-examination of PW-1 was adjourned at the instance of
the petitioner and the matter was fixed on 03.08.2006 for cross-examination of PW-1. On 21.09.2006, on the request of the appellants, cross-
examination of the PW- 1 was fixed on 12.10.2006. On 12.10.2006, the following order was passed:-
The petitioner is represented. For the petitioner, a petition has been submitted, which will be considered later on. The E.S.I.C. has not taken any
step. Hence, this case will proceed on ex parte against E.S.I.C. Fix 13.10.06 for argument.
On 13.10.2006, the following order was passed:-
Heard argument. Fixed 16/10/2006 for award.
Although orders dated 08.06.2006, 29.06.2006, 05.07.2006, 20.07.2006, 03.08.2006 and 31.08.2006 specifically record that parties were
present, a perusal of the records reveal that there is no Hazira (attendance-sheet) on any of these dates on behalf of the appellants while the
petitioner had submitted either petition or attendancesheet on those relevant dates. Going by the order-sheet, it would appear that only on
12.10.2006, the appellants did not take any steps and, therefore, I am inclined to accept the submission of Mr. Nandi that one opportunity ought
to have been granted to the appellants to adduce evidence. However, so far as the evidence of PW-1 is concerned, I am of the considered opinion
that no case is made out to allow the appellants to cross-examine PW-1 as no appropriate steps had been taken by the appellants.
In that view of the matter, this appeal is allowed by setting aside the award dated 16.10.2006 passed by the learned Commissioner,
Employees'' Insurance Court, Guwahati in ESI Case No.2/2006 and remanding back the case to the Commissioner, Employees State Insurance
Court, Guwahati for fresh determination. The petitioner will be at liberty to adduce further evidence. The appellants shall also be granted
opportunity to adduce evidence.
The appeal stands allowed and disposed of on the above terms.
Registry will send back the records.