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Judgment
P.K. Sethuraman, J.—Petitioner is the appellant. This is an appeal against the order passed by the Employee State Insurance Judge (First
Additional Judge, City Civil Court), Madras, in the petition E.I.O.P. No. 2 of 1980, filed by the appellant herein, under S. 75 of the Employees''
State Insurance Act, 1948, hereinafter referred to as the Act. The appellant herein filed the petition contending that the petitioner is a partnership
firm and the factory of the petitioner is admittedly covered by the provisions of the Act. While so, on 18-8-1978 and 23-8-1978 an Inspector of
the respondent/Corporation visited the factory premises and following his report the respondent/Corporation is claiming further contribution in
relation to persons employed casually through contractors and employees engaged through security services. The Corporation had assessed the
contribution under the provisions of S. 45A of the Act. No contribution is payable in respect of casual employees as well as the employees
engaged through the contractor and also in respect of the security staff who are already covered under the provisions of the Act in the
establishment to which they belong. The respondent did not give due and proper opportunity to make the representation, but has proceeded under
S. 45A of the Act to fix the quantum of contribution.
In the written statement the respondent Corporation contended that all the employees of the petitioner are liable to be covered irrespective of
the fact whether they are permanent, casual or employed through contract. The assessment under S. 45A was made on the basis of the details
shown in the books of the petitioner and proper procedure had been followed in making the assessment under S. 45A of the Act.
The following issues were framed for determination by the Employees State insurance Court :
Are any of the employees of petitioner casual employees and if so are they to be taken into consideration in deciding coverage under Act 34 of
1987?
Are the security staff not employees under S. 2(9) of the Act?
Is the assessment not valid?
To what reliefs are the petitioner entitled?
The Manager of the petitioner/firm Thiru V.N. Aranganathan and the Inspector of the respondent/Corporation Thiru P.A. Perey had been
examined as P.W.1 and R.W.1, respectively. Either side had filed documents and they had been marked as Exs.P1 to P11 and R1 to R4. The
learned First Additional Judge, City Civil Court, constituting the Employees Insurance Judge, held that none of the employees under the petitioner,
with reference to whom particulars had been gathered by R.W.1 the Inspector of the Corporation from the books maintained by the petitioner,
could be classified as casual labour. Accordingly Issue No. 1 was held against the petitioner. As regards Issue No. 2 the security staff employed
through Southern Security Services it was held that they will be covered from the period prior to 15-1-1977 and after that date if the Southern
Security Services had already covered them and paid the contribution they will not be liable to be covered once again. Accordingly it was held
under that issue that the security staff employed through Southern Security Services would be employees under the petitioner as defined under S.
2(9) of the Act. As regards Issue No. 3 relating to assessment of the contribution under S. 45A the learned Judge has pointed out that on the basis
of the figures gathered from the registers of the petitioner regarding the payment made to the disputed staff assessment was made. Therefore it
cannot be said that the assessment had been done speculatively or on mere ad hoc basis. Accordingly it was held that the assessment made by the
respondent/Corporation cannot be said to be invalid. Ultimately the petition was dismissed. Aggrieved with the said order, the present appeal had
been filed.
The points that arise for consideration in this appeal are�
Whether some of the employees of the appellant/firm are casual labourers and so they are not liable to be covered under the provisions of the
Act?
Whether the determination of the contribution amount is liable to be set aside in view of the contention that due opportunity was not given to the
appellant/firm.
Points 1 & 2 : Admittedly the appellant was already covered under the provisions of the Act. While so, after the inspection of the appellant''s
factory on 18-8-1978 and 23-8-1978, the Corporation brought to the notice of the appellant under the original of Ex. R2 that as per the wages
registers, wages had been paid to contract labourers, cutting and bundling workers, cooly casual workers for the period from 1st April, 1976 to
31st July, 1978 and in one case upto 30-9-1978. The appellant had been asked to pay the contribution at the rate of 7 per cent per annum.
Likewise contribution had been asked to be paid for the security staff also. Ex.R.2 is dated 6-10-1978. Thereafter Ex.R.3, dated 14-6-1979,
referring to Ex.R.2, had been sent demanding contribution in respect of one Nirmal Singh as well as contract workers engaged in cutting and
bundling and for the security staff and also in respect of another individual byname Narayanaswarni. Thereafter Ex.R 4, dated 8-11-1979 had
been sent by the respondent/Corporation calling upon the appellant for payment of the amount shown therein totalling to Rs. 17,632.86. The
original of Ex.R.4 is shown to have been sent to the Collector for the collection of the amount under S. 5 of the Revenue Recovery Act. Thereafter
only the appellant is shown to have rushed to the Court with the petition. As pointed out by the trial Court the details of the persons working in the
factory had been taken from the registers maintained which had been marked as Exs.P.2 and P.4. The said registers reveal that about 30 to 40
workers were being regularly employed month after month. The other attendance registers marked as Exs.P.10 and P.11 also contain the names of
some of the persons whose names were found in Exs.P.2 and P.4. There had been no explanation by the appellant for maintenance of two
registers for one and the same period and R.W.1 has also stated that Ex.P. 10 and P.11 were not shown to him at the time of inspection. There
had been no sort of register to show that some of the workers were employed through contract as casual labourers. It is also to be seen that the
appellant is shown to have advanced the contention stating that some of the employees were casual labourers relying on the decision E.S.I.
Corporation v. Gnanambigai Mills Limited reported in 1974 Lab. I.C. 798=1974 (2) L.L.J. 530>=(1937) 86 L.W. 658 (D.B.). In this connection
it is to be seen that in the decision Regional Director, Employees'' State Insurance Corpn., Madras Vs. South India Flour Mills (P) Ltd., , the
Supreme Court has held that casual employees also will come within the purview of the Act and the Supreme Court has overruled the decision
Employees State Insurance Corporation v. Gnanamblkai Mills Ltd. reported in 1974 Lab. I.C. 798=1974 (2) L.L.J. 530= (1937) 86 L.W. 658
(D.B.), rendered by our High Court. In the said decision it has been stated by the Supreme Court that the workers employed for the construction
work in respect of additional building for expansion of factory are coming within the definition under S. 2(9) of the Act and are liable to be covered
under the Act. Having regard to the decision rendered by the Supreme Court, the contention of the appellant with regard to casual labourers
cannot at all be accepted. As regards the contention of the appellant regarding the assessment of the contribution under S. 45-A of the Act it is
seen that there had been notices issued by the Corporation and having regard to such circumstance it cannot at all be stated that opportunity had
not been given to the appellant. It is also to be pointed out that the number of workers had been arrived at from the figures obtained from the
registers of the appellant and therefore the appellant cannot come forward with any grievance in this regard. Accordingly I find both the points
against the appellant. In the result the civil miscellaneous appeal is dismissed with costs.