IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 Ins.APP.No. 31 of 2008() ----------------------------------- IC.133/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT (S)/ APPLICANT ------------------------- STEEL CRAFT INDUSTRIES, CHANGAMPUZHA NAGAR, KALAMASSERY, COHCIN-682 033. REP. BY ITS PARTNER, MATHEW ALEXANDER. BY ADVS.MR.A.V.XAVIER MR.K.JOLLY JOHN RESPONDENT(S): RESPONDENT ----------------------------- EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, TRICHUR-680 020. REP. BY ITS REGIONAL DIRECTOR. R1 BY ADV. MR.T.V.AJAYAKUMAR, SC, ESI CORPN. THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1321/2008 IN INAP. NO.31/2008 DISMISSED 02.12.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 31 OF 2008 = = = = = = = = = = = = = = = Dated this the 2nd day of December, 2009. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Alappuzha in I.C.133/03. It was an application submitted by the applicant before the said Court seeking for a declaration that Ext.P11 order of the respondent, Corporation assessing Rs.58,957/- towards contribution of omitted wages relating to the period 5/97 to 3/01 is unsustainable in law. After elaborately considering the matter the insurance Court held against the applicant and directed him to make the payment. It is against that decision the applicant has come up before this court in appeal. The following two questions are the substantial questions of law in this appeal. “(a) Whether the E.I.Court is justified in holding the Annexure A6 order as legal and proper which was passed by the respondent without hearing the appellant which is in violation of the provision in Section 5A of the Act? INS.APPEAL NO. 31 OF 2008 -:2:- (b) Whether the E.I.Court is justified in relying on Ext.D1 series and proceedings pursuant to it when it lacks in material aspects?” 2. Heard the learned counsel for the appellant as well as the Corporation. Learned counsel for the appellant very strongly contends before me that under the provisions and rules of the E.S.I.Act principles of natural justice is to be complied with and there was a refusal on the part of the Corporation to heed to the request for time and as the accountant of the establishment was laid up it was not able to produce the material documents and that has resulted in passing an order under Ext.P11. 3. On the contra, the learned counsel for the Corporation would contend as many as three chances were given and the applicant never made use of those opportunities and therefore it has to blame itself for the laches. Now that stage is over and the matter has reached the E.I.Court and the correctness of Ext.P11 order is in challenge before the said Court. So the correctness of the INS.APPEAL NO. 31 OF 2008 -:3:- same can be established or incorrectness of the same can be found out with the materials that were produced before the Court. We find the applicant had produced documents such as Exts.P3 series, P4 series, P5 series and P6 series relating to the period from 1997-98 to 2000-01. I had also perused the method adopted by the E.S.I Corporation in determining the amount and it is mainly on the basis of a report submitted by one of its officers. In all these orders the main question is regarding the difference in wages or salary. i.e., for 1997-98 it is shown as 1,59,605, 1998-99 1,85,951, 1999-2000 1,94,715 and 2000–2001, 3,10,388. So this forms the real chunk for the claim of arrears on account of the omitted wages. The definite contention of the applicant establishment is that there was a Manger called Mr.George, the Supervisor called K.S.Jain, and the marketing engineer by name Shibu and they were having pay which was above the prescribed one to be considered for the purpose of roping the establishment under the E.S.I.Act. It is submitted that during the period one Francis had also worked as the INS.APPEAL NO. 31 OF 2008 -:4:- marketing engineer. Now a perusal of the documents produced would show that these persons had been paid salary and some receipts had been obtained from them for the relevant period. As stated by me earlier if they are persons who are not to be taken into account by the establishment for the purpose of fixing the ceiling limit then their salary cannot be taken as omitted wages for the purpose of imposing liability on the applicant. Though the learned E.I.Court had considered the matter elaborately I do not find any specific reference to this point as well as these documents. If these documents are proved as genuine and especially since it is a sizable amount on which the levy is made has to be deducted which will make the liability of the establishment to a very less extent. Since that is not considered that has resulted as a question of law for the reason that there has not been a proper appreciation of the materials made available before the Court. Therefore I feel an opportunity can be given to the establishment to convince the conscience of the E.I.Court regarding the correctness and INS.APPEAL NO. 31 OF 2008 -:5:- genuineness of these salaries mentioned above. Therefore the order under challenge is set aside and the matter is remitted back to the E.I.Court with a specific direction to permit the applicant as well as the ESI Corporation to adduce evidence in support of their respective contentions and especially of stamped receipts obtained and the E.I.Court shall consider those factors regarding the salary to the Manager, Supervisor and Marketing Engineer and then decide whether that salary has to be reckoned for the purpose of fixing the quantum. The other amounts being not very much and trivial I do not disturb that finding and for the purpose mentioned alone the parties are permitted to adduce evidence. The E.I.Court shall give notice to the establishment as well as the Corporation fixing the date of appearance for the parties. M.N. KRISHNAN, JUDGE. ul/-