49 4r FAO No831 of 2010 1 4J IN THE HIGH COURT FOR THE STATES OF PUNJAB 8 HARYANA AT CHANDIGARH FAO No831 of 2010 Date of Decision2 Decembers 2011 Talbros Automative ComponentsLtde Appellant 1 VERSUS 0 Employees State Insurance Corporation and another 0 Respondents C5 CORAM HONBLE MRJSTICE MOHINDER PAL Z Presentl MrsAbha Rathore Advocate l for the appellant I MrJikas Suri Advocate forrespondentsNoland 2 0 Z m MOHINDER PAL J 7 This appeal IS filed againsttlle order dated 15012010 Z passedby the Judge EmployeesState Insurance Court Gurgaonin Il EeS Petition No26 dated 27072002 The brief facts of the case necessary for disposalof this appeaiare as underl The dispute In this appeal is to the demand of Rs1641021 as ESI contribution with effect from 4197to 3199with interestamounting to Rs 141251 up to 3 1122001 in all a sum of Rs 3082271 as contained in Ietter Ex P5 which relates to the paymentsmade by the appellantto the contractor towards payment 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 SO 4 FAO N0e1831 of 2010 2 rnade towardshiring chargesallowances reimbursement incentive salarypackageThe appellantchallengedall these items on various groundsas mentioned in the a pplicationas wrong ilIegal void a nd non est the applicationunder Section 77 of the Employees State Insurance Act 1949 lereinafter referred as to the ActI filed in the Trial Court The appellantis a IimitedCompanyduly registered underthe Indian 1 In the written statement the respondent Ct controverted the pleasraised in the applicationan d 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 the contribution amount is quiteIegalone Z On the pleadingsof the parties the followingissues wereframedl I 1 Whether the demand raised by the respondent vide Ietter dated 04e022002 is wrong illegal Z againstthe principle of natural justice and CO unsustainable in the eyes of Iaw Iil para No6 of the petition7OPP e Z 2 Whether the petitionerhas no cause of action7 OPR Qm 3 Whether the petitioneris estoppedfrom Olingthe presentpetitionby its own act and conduct7 OPR 4 Whether the petitionerhas concealed the material facts as alleged7OPR 5 Whether the petition is not maintainable in the presentform7 OPR 6 Whether the petitionIS bad for misejoinderor nonmjoinder of parties7OPR 7 Relief Il Learned trial Court under Issue No l held that 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 51 J 44 FAO No831 of 2010 3 demand raised by the respondentvide Ietter dated 0402m2002 towardsESI contribution from the appellantis legal and decided the same against the appellant Issues Nos 2 to 6 were not pressedby the Iearned counsel for the respondentsat the time of arguments applicationfiled by the appellantunder Section 77 of the Act was dismissed with costs Dissatisfied with the decision of the trial Court the m appellanthas filed the present appeal which is now meant for disposal 0 I have heard the Iearned counsel for the partiesand 0 I have gone throughthe record of the case very carefully 0 At the very outset it is pertinentto mention here that I the trial Court mentioned about the pendencyof the appealbefore the Z AppellateAuthorityregardingthe impugnedorder under chaliengeIll the judgmentof the connected case but Iearned counsel for the I appellanthas submitted that no such appealagainstthe impugned Z order was ever filed before the AppellateAuthoritynor it was provided under the statute Factum of pendencyof appealby the Trial court in OO the Judgmentunder challenge was wronglymentioned and oniy the 4 17 Z presentappeal has been filed againstthe order of the Trial court 0m which culminated into the presentappeal The applicationof the appellant under Section 77 of the Act was rejectedby the Trial Court on the followinggroundsl 1 That the appeilantdid not produceNKChoudhary who had signed the petition filed in the Court and thus withheld the best evidence and therefore adverse inference should be drawn against the appellante 2 That the evidence of PVl Harish Madan has been 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 52 1 4r FAO No831 of 2010 4 rejectedon the groundthathe did notproduceany card to prove that he was the Deputy GM of the Appeliant Companyand further that he has producedno resolutionor authorisation from the Company 3 That the evidence of PV2 SanjayJha was rejected on the groundthat he was not cross examined This decisionis not disputed C 4e The evidence of PV3 Nirmal Singhwas rejectedby 0 the Ld ESI Court on the groundthat he had 0 I producedno proof of being an employeeof the C5 company nor he has producedany resolution of the I Companyenablinghim to make a statement Z 5e That the documents ExPe5 and Pe6 which are the repliessubmitted by the Appellant to the ESI I authorities giving reply to their notice on the groundthat there is no proofthat it was submitted Z to the authorities It lD While arguingbefore me Iearned counsel for the 7 Z 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 PWl Harish Madan and PV3 Nirmal Singhwere wrongly rejectedon the ground that they failed to producethe resolution of the company to provethat theywere authorized to make statement Documents Ex P5 and Ex P6 detailed replies to the notices submitted by the appellant to the ESI authorities were not considered Num ber of documents producedby the appellantwere over Iooked as there is not an oblique reference in the judgment of the trial court Thus it was prayedthat 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 53 P FAO N0e1831 of 2010 5 the order be set aside and the case be remanded back to theTrial Court for fresh decision for fresh decision On theother hand Iearned counsel for the respondents contendedthat the arrived at by the Trial Court are findingsof facts and of the trial court contain completereasoningwhile the applicationof the appellantand no interference by this court is warranted After the Iearned counsel for the parties I am of 1 theopinionthat this case deserves to be remitted back for decidingthe 0 rnatter afresh Mr N KChoudhary who had signedthe Petition has 0 I Ieft the company as IS evidentfrom the affidavit of Mr K P Dhiman 0 Senior Manager of the company attached with this appeal So it was I notinthe control ofthe appellanttoproducehim in the case So far Z as evidenceof PW 1 a nd PW3 are concerned they both have 1 2 tendered their affidavits and were duly cross examined at Iengthby I the PW l has stated that he is Deputy General Manager t0 of the company There was sufficient proofof his identity Since PWl Z was as a witness before the trial court no resolution is 10 required PWe2Sajay Kumar Jha who had appearedin the case and 7 Z whoseexamination in chief was recorded failed to turn up as he has Il Ieft the company His statement was not admissible under Iaw as he was not put to cross examination by the respondent This had necessitatedto examine another witness PW3 who was successor of PW2 and this witness has proved number of documents Thus both PWl and PW3 have appearedas witnesses and no resoiution is requiredas projectedby the Trial court while ignoring their evidence Documents proved by the witnesses proved on record were not discussed by the Trialcourtand no findingtouchingthe merits of the case was given Even the case Iaw cited by the Iearned counsel for 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 54 P 6 FAO No831 of 2010 the before the Trial court was not properlyappreciatedAII these points are requiredto be probedby the Trial court while returning the findingson issue noele In the Iightof the aforesaid position the appeal IS allowed and the order passedby the trial Court is set asideCaseis remanded back to the trial Court for afresh decision with the direction to consider the statementsofPWl and PV minutely and numerous documents producedby the appellantfor assessment W r of the amount for contribution from the appellant The partiesmay 0 Iead further additional evidence if they So desire to support their 0 I claims The Trial court shall decide the dispute preferably 0 within six months from the receiptof the record as the case is old I one The partiesthroughtheir counsel are directed to appear before Z the trial Court on 05012012 The record of trial court be sent back 2 C immediatelyso as to reach before the said court before the date Oxed I No fresh notices shall be issued to the parties It is hopedthat the 0 partiesshall cooperatebefore the trial court and shall not seek une Z necessaryadjournments QO A 6 17 Z 2011 C PALI jt OUDGE W 1 r J C 7 1 l 6 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