IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 Ins.APP.No. 20 of 2005(A) ------------------------------------ IC.12/2001 of ESI COURT,IDUKKI .................... APPELLANT/OPPOSITE PARTY -------------------------------------------- THE EMPLOYEE STATE INSURANCE CORPORATION, PANCHA DEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR -20, REPRESENTED BY THE REGIONAL DIRECTOR. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT(S): APPLICANT -------------------------------------------- M/S. JOS BROTHERS, K.K.ROAD, KOTTAYAM, REPRESENTED BY ITS MANAGING PARTNER, K.J.CHRISTOPHER. BY ADV. SRI.A.V.XAVIER THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. ........................................... Ins.A.No.20 OF 2005 ............................................. Dated this the 8th day of December, 2010. J U D G M E N T This is an appeal preferred against the judgment of the E.I.Court, Idukki in I.C.No.12/2001. The establishment moved an application for setting aside the order of the Corporation which was allowed by the court below and held that the establishment is not liable to be covered under the provisions of the E.S.I. Act. 2. Now the crux of the matter depends upon the clubbing of 5 units viz M/s. Jos Brothers, M/s. Cut Piece Centre, M/s. Jos Fabrics, M/s.Jos Garments and M/s.Jos Saree Mandir. The case of the establishment is that they are all independent units having separate existence and entity and therefore the question of clubbing does not arise. The result of the clubbing or non clubbing would directly affect the interest of the workers employed therein. 3. The Hon'ble Supreme Court in the decision reported in Fertilisers & Chemicals Travancore Ltd.v. E.S.I Corporation (2009 (3) KLT 946 SC) held that “in all cases under labour statutes, the workmen or at least some of : 2 : Ins.A.No.20 OF 2005 them in a representative capacity or trade union representing concerned workmen must be made a party.” 4. In para 10, the Supreme Court held that: “It may be seen that Section 75 of the Act does not mention who will be the parties before the Insurance Court. 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”. 5. In Para 11, it was held that : In our opinion, wherever any petition is filed by an employee under Section 75 of the Act, the employer has not only to implead the E.S.I.C but has also to implead at least some of the workers concerned (in a representative capacity if there are a large number of workers) or the trade union representing the said workers. If that is not done, and a decision is given in favour of the employer, the same will be violation of the rules of natural justice”. 6. Again the Hon'ble Supreme Court reiterated the same in Employees' State Insurance Corporation v. : 3 : Ins.A.No.20 OF 2005 Bhakra Beas Management Board (2009 (10) SCC 671). 7. In para 8, it is reiterated that: In our opinion, wherever any petition is filed by an employer under Section 75 of the Act, the employer has not only to implead ESIC but has also to implead at least some of the workers concerned (in a representative capacity if there are a large number of workers) or the trade union representing the said workers. If that is not done, and a decision is given in favour of the employer, the same will be in violation of the rules of natural justice. After all, the real parties concerned in labour matters are the employer and the workers.” 8. Now in the light of these authoritative pronouncements, as admittedly the application is filed under Section 75 of the ESI Act, decisions of the Supreme Court will squarely apply. If it is decided to be not clubbed, then this Court will be entering into a finding without hearing the workers, who will be adversely affected. Therefore, I feel that the judgment passed by the trial court is to be set aside and the matter is to be decided afresh after permitting all concerned to produce further documentary as well as oral evidence in support of their respective contentions and the establishment is directed to : 4 : Ins.A.No.20 OF 2005 implead the workers or representative of the workers and thereafter the matter be disposed of in accordance with law. I make it very clear that this is an open remand where all points can be considered which is raised by all the parties. The Employees Insurance Court is directed to issue notice to the parties fixing the date of appearance. I make it very clear that I had not considered the matter on merits. M.N. KRISHNAN, JUDGE. cl : 5 : Ins.A.No.20 OF 2005 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 11th day of November, 2010. J U D G M E N T