57 FAO No832 of 2010 1 IN THE HIGHCOURT FOR THE STATES OF PUNJAB S HARYANA AT CHANDIGARH FAO No832 of 2010 Date of Decisionl December5 2011 Talbros Automative ComponentsLtde Appellant 1 VERSUS 0 U State Insurance Corporation and another I C5 Respondents I Z CORAM HONBLE MRJSTICE MOHINDER PAL Presentl MrsAbha Rathore Advocate for the appellant I MrVikas Suri Advocate 0 forrespondentsNoland2 Z m MOHINDER PAL J 7 Z This appeal IS filed against the order dated 15012010 passedby the Judge EmployeesState Insurance Court GurgaonIll ES Petition No 137 dated 24092002 The brief facts of the case necessary for disposalof this appealare as underl The dispute Irl this appeal is to the demand of Rs6770361 as ESl contribution with effect from 4195to 3197with interest to Rs 1861391 up to 31052002 as contained irl Ietterdated 1607m2002 which isEx P10 Thislevy relatesto the made by the appellanto the contractor towards construction Singh Gagan Preet 2013.04.12 10: 05 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 58 FAO No832 of 2010 2 of payment made towards hlring charges allowances reimbursement incentivesalarypackageThe appellantchallengedall these items on various groundsas mentioned in the a pplicationas wrong illegalvoid and non est throughthe applicationunder Section 77 of the State Insurance Act 1949 lereinafter referred as to the Act filed in the TriaI Court In the written statementfiled by the respondentsthe 0 pleasraised in the applicationwere denied and pleadedthat the 0 had failed to producethe record to the ESI Inspectordespite 0 I several opportunities and thus was Iiable to make the C5 of contribution Order dated 1672002 imposingdemand of I the contribution amount is quiteIegalone Z On the pleadingsof the parties the followingissues were framedl I 1Whether the order dated 16072002 imposing alieged demand IS wrong iIlegal against the Z principle of natural justiceand unsustainable in the m eyes of Iaw as alleged in para No11 of the petition7OPP em Z 2 Whether the petitionerhas no cause of action7 OPR 3 Whether the petitioneris estoppedfrom filingthe presentpetitionby its own act and conduct7 OPR 4 Whether the petitionerhas concealed the material facts as alleged7OPR 5e Whether the petitionis not mainta ina ble in the presentform7 OPR 6 Whether the petition IS bad for misejoinderor nonejoinderof parties7OPR 7 Relief Singh Gagan Preet 2013.04.12 10: 05 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 59 e FAO No832 of 2010 3 Learnedtrial Court under Issue No l held that the order dated 16072002 imposingdemand towards ESI contribution from the appeilantis Iegaland valid and decided the same against the appellantIssue Nos2 to 6 were not pressedby the Iearned counsel for the respondentsat the time of argumentsand the same were decidedagainstthe respondentsConsequentlythe application 1 filed by the appellantunder Section 77 of the Act was dismissed with costs 0 Disesatisfiedwith the decision of the trial Court the U appellanthas filed the presentappeal which is now meant for disposal 9 I have heard the Iearned counsel for the partiesand I have gone throughthe record of the case verycarefully Z At the very outset it IS pertinentto mention here that the trial Court mentioned about the pendencyof the appealbefore I the AppeIIateAuthorityregardingthe impugnedorder under challenge Z Ill the judgmentbut Iearned counsel for the appellanthas submitted that no such appealagainstthe impugnedorder was ever filed before ao the AppellateAuthoritynor it was providedunder the statute Factum m Z of pendencyof appeal by the Trial court in the Judgmentunder Qm chailenge was wronglymentioned and only the present appeal has been filed againstthe order of the TriaI court which culminated into the presentappeal The applicationof the appellant under Section 77 of the Act was rejectedby the Trial Court on the foilowinggroundsl le That the appellantdid not produceNKChoudhary who had signedthe petition filed in the Court and thus withheld the best evidence and therefore adverse inference should be drawn against the Singh Gagan Preet 2013.04.12 10: 05 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 60 FAO No832 of 2010 4 appellante 2 That the evidence of PWl Harish Madan has been rejectedon the groundthat he did not produceany identitycard to prove that he was the DeputyG of the AppellantCompany and further that he has producedno resolution or authorisation from the 1 CompanYe r 3 That the evidence of PWa2 SanjayJha was rejected 0 on the groundthat he was not cross examined This C0 decision is not disputed C5 4 The evidence of PWe3 Nirmal Singhwas rejectedby I the Ld ESI Court on the ground that he had Z producedno proof of being an employeeof the C companynor he has producedany resolution of the I Companyenablinghim to make a statement 5 That the documents ExPe5 and Po which are the Z repliessubmitted by the Appellant to the ESI m authorities giving reply to their notice on the 7 Z groundthat there is no proofthat it was submitted to the authoritieSe Il WhiIe arguingbefore me Iearned counsel for the appellantcontended that the approachof the Iearned Trial Court was erroneous and rejectionof the applicationby the Trial Court IS perverseand contrary to material on record Evidence of PW1 Harish Madan and PVO3 Nirmal Singhwere wrongly rejectedon the groundthat they failed to producethe resolution of the company to provethat theywere authorised to make statement Documents Ex P5 and Ex P6 detailed replies to the notices submitted by the appellant Singh Gagan Preet 2013.04.12 10: 05 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 61 1 e FAO N001832 of 2010 5 to the ESI authorities were not considered Number of documents produced by the appellantwere over Iookedas there is not an oblique reference in the judgmentof the trial court Thus it was prayedthat the order be set aside and the case be remanded back to theTrial Court for fresh decision for fresh decision On the other hand Iearned counsel for the respondents 1 contendedthatthe findings arrived at by the Trial Court are findin9SOf r facts and of the trial court contain completereasoningwhile 0 the applicationof the appellantand no interference by this 0 I court is warranted C5 After hearingthe Iearned counsel for the parties I am of I theopinionthat this case deserves to be remitted back for decidingthe Z rnatter afresh Mr N KChoudhary who had signedthe Petition has r Ieft the company as IS evident from the affidavit of Mr KPDhiman I SeniorManagerof the company attached with this appeal So it was L2 not in the control of the appellantto producehim in the case So far Z as evidence of PW 1 and PW3 are concerned they both have 1 QO tendered their affidavits and were duly cross examined at Iengthby 7 Z the PWl has stated that he is DeputyGeneral Managerof the company There was sufficient proofof his identity Since PWl was appearingas a witness before the trial court no resolution is required PWm2Sajay Kumar Jha who had appearedin the case and whose examination in chief was recorded failed to turn up as he has Ieft the companye His statement was not admissible under Iaw as he was not put to cross examination by the respondent This had necessitated to exa mine another witness PW3 who was successor of PW2 and this witness has proveddocuments ExPW21190 Thus both PW1 and PW3 have appearedas witnesses and no resolution is Singh Gagan Preet 2013.04.12 10: 05 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document 62 Iw FAO N001832 of 2010 6 as projectedby the Trial court while ignoring their evidence Documents provedby the witnesses proved on record were not by the Trial court and no Ondingtouchingthe merits of the case was givenEven the case Iaw cited by the Iearned counsel for the before the Trial court was not properlyappreciatedAll these points are requiredto be probedby the Trial court while 1 returningthe findingson issue no In the Iightof the aforesaid position the appeal IS 0 allowedand the impugnedorder passedby the trial Court is set aside 0 I Case is remanded back to the trial Court for afresh decision with the C5 direction to consider the statementsofPWl and Pl minutelyand I numerous documentsproducedby the appellantfor assessment of the Z amount for contribution from the appellant The parties may Iead further additiona1 evidence if they So desire to support their I claims The Trial court shall decide the dispute preferably within six months from the receiptof the record as the case is old Z one The partiesthroughtheir counsel are directed to appear before 00 the trial Court on 05Ol2012 The record of trial court be sent back m Z immediatelyso as to reach before the said court before the date fixed No fresh notices shall be issued to the parties It is hopedthat the partiesshall cooperate before the trial court and shall not seek ui necessaryadjournments 6 2011 MOHINDER PAL I jt OUDGE Ili 0 16 1 1 r 1 Singh Gagan Preet 2013.04.12 10: 05 True Scanned Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 15:55 I attest to the accuracy and integrity of this document