The ESI Corporation will not be in any way affected if the demand notice sent by it under Section 45A/45B is quashed. The said Section-2(9) is quoted as under: "2(9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this act applies and - (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or, (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or. Hon'ble Judges: Markandey Katju and Asok Kumar Ganguly, JJ. 12. For applying ESI Act, it is necessary to establish by Inspector after visit that on the date of visit, 10 employees were working not 10 persons. 9 In view of the above, there is no substance in the appeal. On behalf of ESI Corporation, one Narendrabhai Chandrashekhar Purani, ESI Inspector was examined at Exh.-24 and he has visited establishment on 22/5/1990. Attached Supreme Court Judgement under ESI Act is short of new dispute which requires in-depth discussion and I humbly request Respected Members to write article on it in the present thread. Ltd. 2000 II CLR 726 (AP). Criminal appeal decided by supreme court on 3-12-1957 This fact is not denied by the opponent ESI Corporation and it is in evidence also that these learners are there as per the provisions of the standing orders settled by award of industrial Court. The definition of employee in various enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. 146 of 1984 which was filed under section 75 of the Employees' State … Who was examined as OPW.1 clearly deposed that in the respondent-Federation he found four employees including the Manager besides six labourers and two security guards. 9. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com After hearing learned counsel for the parties and perusing the materials available on record, this Court finds that there is no dispute that under the Act liability to pay contribution arises only when twenty or more persons are employed for wages. According to him the Court should not travel beyond the scope of the scheme under the Act and the interpretation of the provisions should be made in a harmonious manner. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged do not give any scope for holding that they are employed in the work of the company or in connection with it for wages within the meaning of Section 2 (9) of the Act," (Page 392, Line 3). Hence, the workmen (or at least some of them in a representative capacity, or their trade union) have to be necessarily made a party/parties because the Act is a labour legislation made for the benefit of the workmen. This article is written by Pradipta Nath, a practicing lawyer. The Employees Insurance Court in its order dated 4.2.1993 made the following observations: 2. 10. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com Medical College Kanpur 2. The scheme envisaged by it is one of compulsory State Insurance providing for certain benefits in the event of sickness, maternity and employment injury to workmen employed in or in connection with the work in factories other than seasonal factories. Tata Engineering & Loco Co. Ltd : 1976 LIC 1 : 1976 SCC (L&S) 41 that "The concept of apprenticeship is, therefore, fairly known and has now been clearly recognized in the Apprentices Act. 1 nor any one of them in representative capacity were impleaded either before the Employees State Insurance Court or before the High Court. 10. Rs.7,87,352-15 Ps and for this amount, the Company had calculated the covering amount for contribution at the rate of 5.50% which comes to Rs.1,33,924/- and Company had paid the said contribution on 23.2.1996 and the proof is the xerox copy of the challan. It may be noted that in its petition before the Employees Insurance Court, the appellant herein only impleaded the Employees State Insurance Corporation and the District Collectors of Alleppey, Palaghat and Cannanore as the respondents but did not implead even a single workman as a respondent. vs Regional Director, Esi ... on 11 September, 1996. The Latest Supreme Court Judgments for January 2021 with complete details of case numbers, parties name, judge names and headnotes on 22/5/1990 on trial base who were subsequently not appointed and factory is already closed in the year 2000. In cross examination, it was observed that bank account was also closed on 20/7/2003 and in electricity bill, only 38 unit has been shown as consumption and there is no complaint has been filed by ESI Inspector in respect to the visit of establishment on 22/5/1990. ESI Corporation. In this appeal, ESI Court has considered submissions of both Advocates in Para.9.6 and 9.7 of the order. 14. The word 'Wages' is defined in sub-section (22) of Section 2 of the Act as "all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled....". However, it will be wage for the purpose of Sec.2(22) of the ESI Act and the contribution are to be recovered on such payments. The respondent company has not engaged both kind of apprentices but, engaged only one kind of apprentices under certified or settled standing order under provision of BIR Act,1946. The Employees State Insurance Court decided in favour of the appellant and against the respondent No. It is only the workmen who have to lose if a decision is given in favour of the employer. In cross-examination he had admitted that out of four employees three were paid not more than Rs.1,600/- per month. Since the determination by the Insurance Court is a quasi-judicial determination, natural justice requires that any party which may be adversely affected or may suffer civil consequences by such determination, must be heard before passing any order by the authority/court. Therefore, ESI Court has considered this being a factual aspect while appreciating the evidence from both the sides and considered written arguments at Exh.37 and 40 and thereafter, the ESI Court has come to the conclusion that number of 10 persons were mentioned in Exh.-26 letter-pad by establishment. It appears that neither the workers concerned of the respondent No. 8. By said order, ESI Court, Rajkot has allowed application filed by respondent herein and set aside order dated 26/6/1990 made under Form-C-11. 2 The appellant has challenged order dated 24/12/2008 passed by ESI Court, Rajkot in ESI Application No.6 of 1991, Exh.-41. It should be noted that in Annexure-A with Observation Slip of ESI Inspector Part A containing Sr.No.1 to 9 showing amount Rs.24,34,968-55 Ps. Now, for another part, this should be noted that in observation slip, the total amount paid to some alleged contractors as per the bills is shown as omitted wages without any verification or bifurcation for the actual amount paid as "wages" and the amount not paid as "wages" but paid towards other heads.". Citation. In various enactments, the word 'employee', has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word 'employee' has been extended. EMPLOYEES’ STATE INSURANCE ACT, 1948 [Act No. The application of ESIC Act over Employee’s Compensation Act, 1923 can be sub-served in this, ‘BIRD’ model as formulated here-under for its easy projection. The Inspector has not obtained statement of these three persons whether they were engaged by employer or not. Therefore, according to my opinion, contention raised by learned advocate Mr.Vasavada cannot be accepted. For the reasons stated above, we set aside the impugned judgment and order of the High Court as well as the order dated 4.2.1993 passed by the Employees Insurance Court and remand the matter to the Insurance Court for deciding the same afresh after impleading some of the workmen, if not all of them, or their trade union in a representative capacity. This section stipulated the powers of the Labour Courts, Tribunals and National Tribunals to provide relief to workmen who had been dischar… * Enter a valid Journal (must 19 of 1994 and MFA No. Get 2 points on providing a valid reason for the above Introduction. 34 of Year 1948, dated 19th. Hence, we allow this appeal, set aside the impugned judgment and order of the High Court as well as that of the Employees State Insurance Court and remand the matter to the Employees State Insurance Court for deciding the same after impleading the workers of the respondent No. In the case at hand, the E.S.I. In some establishments, the employees themselves opt not to be covered under the ESI Act as they dont get any better benefits compared to the employer-provided benefits. These submissions are strongly repudiated by Mr. Udgata, learned counsel appearing for the Federation. In view of the above submissions, on perusal of the record, pleadings and documents of the case, it is found that the opponent claimed some amount from the applicant as omitted wages and as per the applicant, he has already paid the amount and even made excess payment which should be refunded. 8. By:- Prateek Kr. The appeal filed by the respondent-ESIC has been allowed and the appeal filed by the appellant herein has been dismissed. Three persons were not employed by establishment but they are coming for search of work and for that they were taken on trial without payment of wages. 8. No doubt some observations have been made that some labourers come on one day but they may not come on the next day. IN the case at hand, the Inspector of E.S.I. Section 82 of ESI Act. Vs. Respondent: Regional Director, ESIC and Ors. The employees were not covered under definition of Section 2(9) of the ESI Act. An article by Adv. Interpretation of term ‘basic wages’ of EPF & MP Act, 1952 and Impact of recent judgment of Supreme Court delivered in Surya Roshni Ltd v. EPFO, 2019 LLR 339 (SC) The recent judgment passed on 28.02.2019 by the Hon’ble Supreme Court in the matter of Regional Provident Fund Commissioner Vs. Therefore, it is a duty of the Inspector to find out a correct fact from each person whether he was employed by the establishment or not. 11. Ultimately it is the employer and the employees that is going to be affected in the outcome of adjudication. Vide order dated 26/6/1990, ESI Corporation directed establishment to pay contribution to the corporation in respect to all the employees those who are working in the establishment. 15. For the reasons stated in order passed in Civil Appeal No. The rules of natural justice require that if any adverse order is made against any party, he/she must be heard. ESI Act — Applicability of — Gas lighter with a flame was being used for melting and soldering the gold and other ornaments — Use of LGP satisfies the definition of power — Manufacturing process was going on with aid of power. The Employees' State Insurance Corporation (ESIC) however issued notices to the appellants requiring payment of ESI contributions in respect of the period between January 2001 and September 2002, on the contention that a software development unit was a 'factory' under the ESI Act. 9. Dated 19-01-2 vs The Regional Director on 19 January, 2010. The relevant discussion in para 10 to 15 is quoted as under: "10. The concept of wages would bring in the contract of employment. 1 Board challenged that notice before the Employees State Insurance Court, Delhi. I. C. 1516. 4 I have considered the submissions made by learned advocate Mr. Sachin Vasavada and perused the award passed by ESI Court. In our opinion, this is in violation of the principles of natural justice. JUDGMENT: This Appeal is directed against the judgment and order dated 5th April, 1991 passed by the learned Judge, Employees Insurance Court, Bombay in Application (ESI) No. Therefore, Inspector who has visited has not taken proper care to find out from these three persons while obtaining statement from them whether they have appointed by employer establishment or not or they are on trial or not. He submitted that burden is upon the establishment to prove the facts before ESI Court that all these three persons were not regular employees and appointed only for trial bases. Therefore, unless there is term of contract of employment, one can not be covered under the definition of "employee" and unless some amount is paid to employee, any amount paid to other persons can not be covered under the definition of "wages" because the term "wages" is connected with employee. (2) It extends to . I am also of the opinion that the affected persons are entitled to be heard and no order is required to be passed on their back. • Conviction under ESI Act of the accused purporting to be owner of a hotel will be set aside when the complainant (ESI Inspector) has failed to ascertain despite his three visits to the hotel as to who is the owner particularly when he himself stated that on his second and third visit, son of the accused was present and attending the work. This is an exciting prospect from both an employee’s and a legal perspective as the beginning of a formal social security program in India. Without checking it, presumption may not be made by Inspector that all are employees working with establishment at the time of visit of the establishment. ESI Corporation. Against the said order of the Employees State Insurance Court, the respondent No. Such a person remains a learner and is not an employee....". (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; [and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of , the factory or establishment [or any person engaged as an apprentice, not being an apprentice engaged under the Apprentice Act, 1961 (52 of 1961), or under the standing orders of the establishment; but does not include-]], (a) any member of [the Indian] naval, military or air forces; or, (b) any person so employed whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;]. The facts in detail have been given in the impugned judgment and hence we need not repeat the same herein. contains alphabet), Employees State Insurance Corporation v. Precise Engineers. The facts of this case are related to only apprentices engaged under Standing Orders of establishment. Now looking to Section 2(9) employee, it is made clear that both kind of apprentices are excluded from definition of employee under Section 2(9) of ESI Act, one under Apprentice Act or under Standing Order of establishment. (3) It shall come into force on such date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and . Therefore, in light of this background, Section-2(9) is relevant. In view of this contention of the applicant, it is necessary to note Section 2(9) and 2(22) of the Act defining term "Employee" and "Wages" as under : "2 (9). FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT We have heard Mrs. R. Hemalatha, learned … We make it clear that nothing stated hereinabove shall be construed as an expression of opinion on the merits of the controversy involved. It has been observed by the Hon’ble High Court of Kerala that grievances of the members of Employees Pension Scheme should be disposed of expeditiously by the authorities of the EPFO within a time bound schedule. They were enter into premises on the date of visit itself i.e. Having said so, a direction has been given that the ESI Corporation will after making inquiries about the identities of the said workers will register them and then extend the benefit of the Act. 1-Board filed an appeal under Section 82 of the Act before the High Court and the High Court has This is necessary thing that "persons engaged under the Apprentices Act, 1961 or under the standing orders of the establishment" are not included in the definition of "employee" and therefore, the stand taken by the Applicant is correct, even otherwise, in the very first sentence of the definition of "employee", the word "employed" is used. The factory was registered under the Bombay Shops and Establishment Act and only 6 to 7 workmen are working. The respondent No. The relevant Para.9.6 and 9.7 are quoted as under : "9.6. The Act being a beneficial one contribution cannot be demanded only in respect of employees whose wages are less than the stipulated amount. April, 1948] An Act to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto 5 This Court had occasion to consider definition of "employee" under Section 2(9) of the ESI Act, 1948 which excludes apprentices engaged under Apprentices Act as also apprentices under standing orders in case of Employees State Insurance Corporation vs. Arvind Mills Ltd., reported in 2009 (1) GLR 834. It is thus clear that in order that someone may be an employee within the meaning of the Act, he has to be employed for wages. It may be noted that in its petition before the Employees Insurance Court, the appellant herein only impleaded the Employees State Insurance Corporation and the District Collectors of Alleppey, Palaghat and Cannanore as the respondents but did not implead even a single workman as a respondent. Thus, the Applicant Company has rightly raised the point that the amount of Rs.7,87,352-15 Ps. ESIC G.S.R-121E Redued contribution rate wef 1-7-19.pdf seven persons and three persons who are coming for trial were mentioned. A notification has been issued by Employees’ State Insurance Corporation (ESIC) Authorities increasing the wage limit of employee covered under the ESIC scheme from the existing limit of Rs.15, 000 to Rs.21, 000 with effect from January 1st, 2017. In the present case the workmen concerned were not made parties before the Employees Insurance Court, nor was notice issued to them by the said Court. Because of this peculiar nature of work rules, 1950 be given, not... 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