South India Viscose Co-operative Stores Ltd. vs Regional Director, Employees State Insurance Corporation

Ramanujam, J.—This appeal is directed against the decision of the Employee''s State Insurance Court, Coimbatore, in E.S.I.C.P. No. 98 of

1984, holding that the appellant is liable to pay contribution under Central Act 34 of 1948 for the period from 12th February, 1978, to 1st

October, 1982.

The appellant herein runs a co-operative store for the benefit of the employees of the South India Vicose Limited, Sirumagai. The employees of

the company numbering about two thousand are members of the society. It is not in dispute that the society is running a co-operative store where

more than 20 persons are employed. The Employees'' State Insurance Act was extended to Coimbatore as per the Notification No. 39, dated

20th January, 1978. It has come into force from 12th February, 1978. However, the appellant did not pay contribution as provided under the Act.

The Insurance Inspector, attached to Employees'' State Insurance Corporation, inspected the society on 27th September, 1982. He found that

more than 20 persons are employed by the appellant society during the relevant period, i.e. between 12th February, 1978, and 1st October,

1982. He sent a survey report, exhibit B-1, dated 27th September, 1982, in Form G-10 to the Regional Director. After the inspection, the

appellant society submitted returns under the Act for the period from 1st October, 1982, and had paid the contribution. Thus there is no dispute

about the appellant''s liability for the period from 1st October, 1982, onwards. The dispute is as regards the appellant''s liability to pay contribution

for the period from 12th February, 1978, to 1st October, 1982. On the basis of the survey report, exhibit B-1, a notice was given to the appellant

society calling upon it to pay the outstanding contributions for the period from 12th February, 1978 to 1st October, 1982, within 15 days from the

receipt thereof and stating that if the contributions are not paid, the contribution payable by the appellant society will be determined under S. 45A

of the Employees'' State Insurance Act, hereinafter referred to as the Act. The appellant did not pay the outstanding contributions as called upon in

the said notice dated 18th February, 1984. Proceedings, had, therefore, been initiated for the determination of the quantum of contribution payable

by the appellant for the relevant period at Rs. 29,106.76. A demand for paying the said amount was served on the appellant society and the same

was also sent to the Collector of Coimbatore.

Thereafter, the appellant filed the said E.S.I.C.P. No. 98 of 1984, before the Employees'' State Insurance Court, Coimbatore. There the

appellant took a plea that S. 45A of the Act had no application to the facts of the case and that, in any event, a notice to the appellant should have

been given before the determination of the quantum of contribution under S. 45A of the Act. The plea that the appellant is entitled to a show-cause

notice under S. 45A before the amount of contribution is quantified under S. 45A of the Act was not argued at all before the Employees'' State

Insurance Court. As a matter of fact, a perusal of the affidavit field in support of the application for stay filed before the Employees'' State

Insurance Court indicates that the only point urged before the Court was that the Society has no resources or reserves to meet the liability arising

out of the demands made by the Corporation and that, therefore, the appellant is not liable to pay the contribution for the period in question. The

order of the Employees'' State Insurance Court also indicates that the only point urged before it was that the society is not liable to pay the

contribution for the disputed period as it has no resources. Even though one of the grounds set out in the appeal grounds before the Employees''

State Insurance Court was the non-issue of show-cause notice before the quantification was undertaken under S. 45A of the Act, the appellant

does not say anywhere as to how the quantification was erroneous. If really the appellant is aggrieved against the quantum and if he satisfies the

Court that the quantification has not been done properly, the Employees'' State Insurance Court itself would have directed a quantification after

giving notice to the appellant. But, where the appellant has not chosen to question the quantification on giving proper basis, the Employees'' State

Insurance Court has proceeded on the basis that the quantum of contribution determined by the authorities was not challenged by the appellant,

and the challenge was only of the liability on the ground that the appellant has no resources and that its employees are not going to be benefited by

payment of such contribution now. Even before us the learned counsel for the appellant is not in a position to say as to how the quantification made

by the authorities is erroneous. As a matter of fact, the quantification has been made as per the particulars gathered by the Inspector from the

records of the appellant. If the appellant had made out a case either before the Employees'' State Insurance Court or before us as to how the

quantification made by the authorities is erroneous, it may be a matter for redetermination after giving notice to the appellant. But, where the

quantification has not been challenged or questioned in any manner and when the appellant merely stands on a technicality that it should have been

done after giving a show-cause notice to it, the quantification, which has been made only with reference to the records of the appellant, cannot be

said to be erroneous. As already stated, before the Employees'' State Insurance Court the only two grounds urged for non-liability to pay the

contribution as quantified by the authority are (1) that the society has not resources, and (2) that the employees of the establishment are not getting

any benefit in any manner by paying the contribution for the period in question. These two grounds have been rejected by the Employees'' State

Insurance Court. We are of the view that the Employees'' State Insurance Court is right in coming to the conclusion that he ability of the society to

pay the contribution is not relevant even assuming that the society has no resources. That is not a ground which can be urged against the liability

imposed by a statute. If that were to be legal position, practically every one who is made liable to pay the contribution under the Act will say that

he has no sufficient resources and so the statutory liability cannot be enforced. Therefore, whether the appellant has sufficient resources or not, it

liability under the Act cannot be disputed. Similarly, the fact that there is not possibility for the members in the society to get benefit for the back

period from 12th February, 1978, to 1st October, 1982, is not a ground for escaping the statutory liability. It should be remembered that the

liability to pay contribution is not made to depend on the benefit to be receive by the members in respect of whom the contribution is sought for. In

this case, the notification has been issued bringing the Act into force with effect from 12th February, 1978, in Coimbatore District, and, as per the

notification, the appellant''s undertaking stands covered by the provisions of the Act. Even though the appellant has not made the contribution as

per the provisions of the Act, the employees, if the undertaking is covered by the Act, could have had the benefit as per the provisions of the Act.

It is the appellant, who has not paid the contribution for the period 12th February, 1978, to 1st October, 1982, and the appellant cannot rely on

his own default for saying that since the employees of his establishment would not have the benefit for the past period, the contribution is not

payable. If the appellant had paid the contribution for the said period, the employees would have had the benefit of the provisions of the Act. Thus,

the appellant cannot take advantage of his own default and say that by his default, the employees of the society had no benefit of the Act and that,

therefore, the appellant is not liable to pay the contribution for the past period. Thus the second ground also has been rightly rejected by

Employees'' State Insurance Court. In view of this, we are not in a position to take a different view from the one taken by the Employees'' State

Insurance Court. The appeal is dismissed.