IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE.25-02-2011. PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.334 OF 2006 Between: 1. The Employees State Insurance Corporation, Hill Fort Road, Rep. by its Regional Director, Hyderabad. 2. The Recovery Officer, ESI Corporation, Hill Fort Road, Hyderabad. --- Appellants/ Respondents. AND M/s. Aruna Straw Boards Pvt, Ltd., Suryaraopalem, Duvva, West Godavari District, Rep. by its Managing Director. --- Respondent/ Petitioner. The Court made the following: HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.334 OF 2006 JUDGMENT: This appeal is directed against order passed in E.I.C. No.21 of 2002, dated 27-04-2005 on the file of Employees’ Insurance Court and Chairman, Industrial Tribunal-I (for short, ‘the Tribunal’), Hyderabad, in so far as partly allowing the claim of the Respondent-Petitioner is concerned. 2. Whereas the appellants are the respondents and the respondent is the petitioner in the said case. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the Tribunal. 3. The petitioner filed the case under Section 82 of the Employees State Insurance Act, 1948, to declare a notice issued by the respondents to the petitioners to pay Rs.47,593/- towards contribution in respect of its Directors and loading and unloading Hamalies as illegal. The respondents contested the matter. 4. Considering the material available on record, the Tribunal framed the following issues for trial and disposal : 1) Whether the remuneration paid to the Directors of petitioner-company is not a wage as defined under Section 2 (22) of ESI Act? 2) Whether the petitioner is not liable to pay any contribution on the omitted wages towards loading and unloading charges during the period from 16-01-1996 to 31-01-1997? 3) Whether the petitioner is not liable to pay any amount as demanded in the notice dt.03-11-1998 and 03-03-1999? 4) To what relief? 5. On behalf of the petitioner, one Md. Ali Clay was examined as PW.1 and got marked Exs.P.1 to P.11-A and on behalf of the Respondents, one K.S. Murthy, was examined as RW.1 and one S. Samnathan was examined as RW.2 and got marked Exs.R-1 to R-9. 6. Taking into consideration the material available, it is the observation of the Tribunal that Ex.R-1 which is survey and preliminary inspection report dated 07-02-1996 is silent with regards to the employment of any Hamalies by the petitioner, whereas, the respondents mainly relied upon that document in support of their claim and further RW.1 the Deputy Director of the Respondents’ corporation deposed that there were 87 employees working in the unit of the petitioner but he failed to give the names of those employees including Hamalies said to have been engaged by the petitioner and Ex.R-2 inspection report dated 27-06-2000 is also completely silent with regards to the employment of any Hamalies by the petitioner and also about payment of any amount to them and further Ex.R-4 which is C-18 notice dated 19-11-1997 in which necessary contributions were demanded towards loading and unloading charges also does not give any basis to uphold the claim of the petitioner and further even otherwise, there is no material in support of the claim of the respondents with regards to the Hamalies, whereas there is material to the effect that the petitioner is liable to pay necessary contributions as far as the salaries of its Directors are concerned. Hence, aggrieved by the same, the present Appeal has been preferred. 7. Therefore, the point for consideration is whether the order passed by the Tribunal is sustainable and whether the petitioner is to be directed to pay necessary contributions towards such Hamalies? 8. It is the contention of the learned counsel for the petitioner that it is clearly admitted by the petitioner in the petition that he engaged some Hamalies to carry out loading and unloading work in the corresponding manufacturing process and it is sufficient to hold that he constantly employed the Hamalies and as such he is liable to pay necessary contributions but the Tribunal failed to appreciate the matter properly. He has also relied upon a decision reported in M/s. Rajakamal Transport and another Vs. The Employees’ State Insurance Corporation, Hyderabad[1] in which it is observed with reference to relevant circumstances that when there is evidence to the effect that the Hamalies were engaged as carriers of goods for loading and unloading purpose and transporting charges were collected from customers and payments were made to the Hamalies in accordance with their work for the establishment, that is sufficient to direct their employer to pay necessary contributions and further the test of payment of their salaries or wages is not relevant consideration whereas, the relevant consideration is to find out whether the work was done by the employees in connection with the establishment. But, necessary details are not available in this case to the effect that any Hamali was employed by the petitioner for doing any work for the establishment regularly and the petitioner paid necessary salaries or wages to the Hamalies in connection with the said work in order to apply the observations made by the Supreme Court in the decision first cited here. Simply because it is submitted by the petitioner, in fact that Hamalies were engaged for doing certain works, it is not sufficient to hold that he regularly employed them for doing certain works for its establishment. Further, even supposing that it gives some conclusion that the petitioner in fact engaged some Hamalies regularly for the establishment and paid relevant salaries to them, the same circumstance is not sufficient to come to a conclusion as to how many Hamalies were engaged. Therefore, it is only a vague statement which can not be based to uphold the claim of the respondents, therefore there is no basis to interfere with the order passed by the Tribunal. In the result, for the reasons stated above, the Civil Miscellaneous Appeal is dismissed but in the circumstances of the case without costs. __________________________ G. KRISHNA MOHAN REDDY, J Date.25-02-2011 Dsh. [1] 1996 II LLJ 435 (SC)