Case: Vijay Rambharan Patil and Others Vs. The Employees State Insurance Corporation and Others

R.K. Deshpande, J.1. Kaprecon Sleeper Works Pvt. Ltd., a Company, has preferred Writ Petition No. 115 of 2007 challenging the show cause notice dated 8-6-2006 issued by the Employees State Insurance Corporation calling upon it to pay the contribution under the Employees State Insurance Act, 1948 (for short, "the said Act") for the period from 1 -10-2004 to 30-9-2005. Writ Petition No. 4893 of 2006 has been filed by the employees of Kaprecon Sleeper Works Pvt. Ltd. challenging the notification dated 28-9-2004 issued by the Government of India, Ministry of Labour and Employment applying the provisions of the said Act to the revenue village of Butibori with effect from 1-10-2004, and also the notice of demand issued on 8-6-2006 calling upon the employer to deposit the contribution of employer and employees both, as required by the said Act, for the period from 1 -10-2004 to 30-9-2005.2. The petitioner-Kaprecon Sleeper Works Pvt. Ltd. is engaged in the manufacture of concrete sleepers for the Railways, and its factory is established in the area of Butibori, in the precincts of Railways. By issuing the notification dated 28-9-2004 by the Ministry of Labour and Employment, Government of India, the provisions of the said Act were made applicable to the area of Butibori for the first time with effect from 1 -10-2004. Accordingly, in terms of the provisions of Section 2A of the said Act read with Regulation 10B of the Regulations, framed under the said Act, the employer was required to file a return in respect of the contribution of the employer as well as the employees, within a period of fifteen days. The applicability of the said Act was opposed by the petitioner-Company as well as the employees, and ultimately the inspection was conducted on 27-10-2005 and the order for coverage of the industry was passed on 29-11 -2005. Accordingly, the notices in question were issued calling upon the employer to pay the contribution under the said Act for the period from 1-10-2004 to 30-9-2005. Undisputedly, the petitioner-Company has complied with the provisions of the said Act from the month of October, 2005. Hence, we are not concerned with the period from October, 2005.3. The applicability of the said Act was opposed on the ground that the better medical facilities were provided by the employer to the employees. The facilities of medical insurance and the accident policy were provided by the employer and the infrastructure under the provisions of the said Act was made available immediately upon issuance of the notification in question. It is the claim of petitioners in both these petitions that none of the employees have availed the benefits and facilities of the Scheme under the provisions of the said Act during the period from 1-10-2004 to 30-9-2005.4. Shri Thakur, the learned counsel appearing for the employees, has relied upon the decisions of the Apex Court in the cases of - (i) Employees State Insurance Corporation v. Hyderabad Race Club, reported in (2004) 6 SCC 191 : [2004(5) ALL MR 949 (S.C.)]; (ii) Employees State Insurance Corpn. and others v. Jardine Henderson Staff Association and others, reported in (2006) 6 SCC 581 ; and (iii) Employees State Insurance Corpn. v. Distilleries & Chemical Mazdoor Union and others, reported in (2006) 6 SCC 604. It is urged that the recovery of contribution for the period from 1 -10-2004 to 30-9-2005 should not be insisted upon and the equitable relief is claimed on the basis of the maxim "Lex non cogit ad impossibilia". It is urged that the persons in the employment during this period have left the job or have retired or have expired and, therefore, it is not possible for the petitioner-Company to obtain the contribution from them for deposit of the amount.5. Both these petitions were admitted on 9-6-2008 and the interim relief not to take coercive action was continued on the condition that the petitioners shall file an undertaking in this Court that in the event the petition fails, the petitioners will pay the specified amount along with interest not less than 12% or as the Court may direct at the time of disposing of the petition. Accordingly, the undertaking was furnished before this Court.6. Shri Thakur and Shri Joshi, the learned counsels appearing for the petitioners in both these petitions, could not point out to us any provision under the said Act exempting the establishment of the petitioner from complying with the provisions therein on the ground that the employer has provided better medical facilities to the employees. The notification dated 28-9-2004 has made the applicability of the said Act to the establishment of the petitioner with effect from 1-10-2004. It is not necessary under the provisions of the said Act to wait for any show cause notice being issued by determining that the provisions of the said Act have become applicable to any establishment. The notification impugned is very clear and it applies to Village Butibori, where the factory of the petitioner is located. We do not find any ground to set aside the said notification or to postpone the operation of notification to any future date. The petitioner-establishment was under a statutory obligation in terms of Section 2A of the said Act read with Regulation 10B of the Regulations, framed thereunder, to submit the return and to pay the contribution of the employer as well as the employees within a period of fifteen days. It is, therefore, not possible for us either to quash and set aside such notification or to prevent recovery of the contribution for the period from 1-10-2004 to 30-9-2005.7. The petitioner-Company has brought to the notice of the employees, the applicability of the provisions of the said Act and the contribution required to be made thereunder by publishing a notice on 1-1-2005. In view of this, the argument that it has become impossible for the petitioner-Company to recover the amount of contribution from the employees, who have already left the job or have retired or have died, cannot be accepted. The fact that none of the employees have availed the benefits or that the employer has provided better medical facilities to the employees, cannot be a ground to challenge the notification. The medical facilities were made available with effect from 6-1-2005. In view of this, reliance for grant of equitable relief to the petitioners on the basis of the decisions cited, is of no consequence. The only remedy available to the petitioner-Company is to move the appropriate Government to claim exemption under the provisions of Section 87 of the said Act, and the petitioner-Company is at liberty to adopt such mode, if so advised.

Decision:
0[ds]6. Shri Thakur and Shri Joshi, the learned counsels appearing for the petitioners in both these petitions, could not point out to us any provision under the said Act exempting the establishment of the petitioner from complying with the provisions therein on the ground that the employer has provided better medical facilities to the employees. The notification dated 28-9-2004 has made the applicability of the said Act to the establishment of the petitioner with effect from 1-10-2004. It is not necessary under the provisions of the said Act to wait for any show cause notice being issued by determining that the provisions of the said Act have become applicable to any establishment. The notification impugned is very clear and it applies to Village Butibori, where the factory of the petitioner is located. We do not find any ground to set aside the said notification or to postpone the operation of notification to any future date. The petitioner-establishment was under a statutory obligation in terms of Section 2A of the said Act read with Regulation 10B of the Regulations, framed thereunder, to submit the return and to pay the contribution of the employer as well as the employees within a period of fifteen days. It is, therefore, not possible for us either to quash and set aside such notification or to prevent recovery of the contribution for the period from 1-10-2004 to 30-9-2005.The petitioner-Company has brought to the notice of the employees, the applicability of the provisions of the said Act and the contribution required to be made thereunder by publishing a notice on 1-1-2005. In view of this, the argument that it has become impossible for the petitioner-Company to recover the amount of contribution from the employees, who have already left the job or have retired or have died, cannot be accepted. The fact that none of the employees have availed the benefits or that the employer has provided better medical facilities to the employees, cannot be a ground to challenge the notification. The medical facilities were made available with effect from 6-1-2005. In view of this, reliance for grant of equitable relief to the petitioners on the basis of the decisions cited, is of no consequence. The only remedy available to the petitioner-Company is to move the appropriate Government to claim exemption under the provisions of Section 87 of the said Act, and the petitioner-Company is at liberty to adopt such mode, if so advised.