Janatha Bazar vs The Regional Director, E.S.I. Corporation

L. Narayana Swamy, J.—Notice dated 30.12.1999 issued by the Regional Director, ESI Corporation, Bangalore was challenged by the appellant in ESI Application No. 4/2001 on the file of the Additional Industrial Tribunal and E.I. Court at Bangalore and by its order dated 19.4.2003, the Insurance Court dismissed the application against which, he preferred this appeal.

Before the Insurance Court, it was contended that by its notice dated 30.12.1999, the applicant was asked to pay Rs. 1,02,952/- towards contribution payable in respect of Security Agencies and building repairs for the period from January, 1985 to March, 1996. Pursuant to the said notice, the applicant resisted and further requested to grant time to search for the old records and to contact the Security Agencies in order to know the terms and conditions of agreement between the appellant and the Security Agencies and his complaint is that the authority without giving sufficient opportunity, passed an order dated 22.8.2000 u/s 45-A of the ESI Act, asking the applicant to pay the contribution of Rs. 74,457/-. According to the appellant herein, the said action on the part of the respondent-the Regional Director, ESI Corporation is contrary to law and facts. He preferred an application before the Insurance Court u/s 75 of the Employees State Insurance Act. The Insurance Court by its order dated 19.4.2003 dismissed the application. The appellant has taken a ground that without affording full opportunity to the appellant, the Insurance Court dismissed the application. The order passed by the Insurance Court as per Annexure-A is capricious, whimsical and devoid of merits.

Learned Counsel for the respondent submitted that the allegations made by the appellant that impugned order has been passed without affording opportunity, is the perverse ground and also the ground taken by the appellant that the agency with whom the appellant entered into agreement, has to make the contributions and not the appellant. Learned Counsel for the respondent by reading Section 40 of the Insurance Act, 1948 submitted that, the employer under whom the Security Guards work, shall pay in respect of every employee whether directly employed by him or through an immediate employer, both the employer''s contribution and the employee''s contribution. In view of the said provision, it is the duty on the part of the appellant to make the contribution. There being no valid reasons, the appellant avoided making contributions. Hence, the respondent was justified in issuing notice dated 30.12.1999. Secondly, it is submitted that the ground taken by the appellant that opportunity not being given, is also not correct. By reading para 14 of the impugned order, it is submitted that, when the proceedings were initiated u/s 45-A, the authorised representative of the applicant attended the personal hearing on 25.1.2000 and sought adjournment. On the request of the appellant, the case was adjourned from time to time i.e., from 22nd February, 21st March and then 21st of April of 2000. On 25.4.2000 again they made a request for time. Accordingly it was adjourned to 30.5.2000. Thereafter it was adjourned to 30.6.2000. After affording sufficient opportunity, the impugned order came to be passed. Hence, there is no illegality in passing the present order nor there is violation of principles of natural justice

In the light of the submissions made by the learned Counsel for the respondent, I have gone through the impugned order passed by the Insurance Court and I find that there are no infirmities and illegalities committed by the Court in denying opportunity to the appellant. When the appellant himself abstained from hearing before the Insurance Court and not utilised the opportunities given on his request, it is not open for him to allege that opportunity has been denied by the Insurance Court. In view of the fact that the appellant himself is a defaulter before the Insurance Court in not appearing before it, it is not open for him to make allegations against the Insurance Court. Accordingly I find no justification in interfering with the order. Hence, I pass the following:

ORDER

The appeal is dismissed.