IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13-02-2009 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU C.M.A.No.703 of 2003 The Regional Director, Regional Office, Employees State Insurance Corporation Ltd., 143, Sterling Road,Chennai 600034. ... Appellant/Respondent vs. Hotel Ganesh (P) Ltd., rep. by its Finance Manager, V. Sundaram 103, Nungambakkam High Road, Chennai 600034. ... Respondent/Claimant Civil Miscellaneous Appeal filed under Section 82 of E.S.I Act, 1948, to set aside the fair and decretal order of the I Additional Judge, City Civil Court, Chennai, passed in ESIOP.No.24 of 1993 dated 16.02.2000 For appellant : Mr. K.C. Ramalingam For Respondent : Mr. S. James JUDGMENT 1. The allegations contained in the petition under 75 of the E.S.I. Act, 1948 are as follows: 1. (i) The petitioner(respondent herein) is a catering establishment. It is under coverage of Employees State Insurance Act, 1948 (in short ESI Act). The respondent Corporation sent a notice to the petitioner in Form C-18 (No.19943/INS/C-18/INS.III/1428/C-18/93) dated 25.02.93 requiring the petitioner to pay Rs.5,74,670.63 as contribution, calculated @ 7% for Rs.79,26,491.51 for the period from 1985-86 to 1989-90. The petitioner sent a reply denying its liability to pay the amount. It was explained that the amount of contribution has been worked out were paid to certain companies which are separate legal entities, who carried out certain repair work for the petitioner's establishment. Expenditure incurred for hire-charges, water charges, linen, cleaning items etc., were not wages and therefore they had to be excluded and persons who received more than Rs.1600/- https://hcservices.ecourts.gov.in/hcservices/ per mensum, were to be omitted. The petitioner also appeared in person and explained the case. Thereafter for the above said period, on 14.5.1993 the respondent issued an order. 1.(ii) Excepting certain arithmetical discrepancies, the expenses incurred for payment of bills preferred by outside companies for having carried out certain repair work, does not fall within the definition of "wages" under the Act. The claim is also barred by limitation which is for payment of contribution retrospectively beyond a period of 5 years. Hence the order dated 25.02.1993 has to be declared as invalid. 2. In the written statement filed by the respondent(appellant herein), the following contentions have been raised: 2 (i) Certain omissions on the part of the petitioner came to the notice of the respondent corporation through the inspection of the petitioner Hotel. Based on the report of the Inspector, the petitioner was addressed on 19.7.1991 to segregate the amount of wages and salary paid. However, the petitioner did not respond to the letter and hence a communication dated 25.02.1993 in standard Form C-18 came to be issued and the petitioner was asked to show cause as to why determination of contributions as detailed therein shall not be made as per the provisions of Sec.45-A of the Act. 2.(ii) On 31.3.1993 the petitioner sent a reply stating that the contributions have been assessed on the expenditure which are not wages. The claim is not time barred. The contributions that have been levied through the order under Section 45-A of the Act were only with respect to expenditure which was treated as wages and that the authority under this Section has not solely relied on the report of the Inspector while determining contributions by the impugned order. Most of the items of contribution were waived after consideration of the objection, both in oral and writing by the petitioner. The employees employed on such nature of work including casual employees, are employees falling within the definition of Sec.2(9) of the Act. E.S.I. Act, 1948, does not lay down any time limit for claiming contributions. The impugned order is just and reasonable and it has been passed with due authority of law, after application of mind and after following the principles of natural justice. Hence the petition has to be dismissed. 3. After hearing both sides and scrutiny of the documentary and oral evidence, the learned I Additional Judge, City Civil Court, Chennai, allowed the application. The said order is under challenge before this Court. 4. The petitioner is a catering establishment engaged in hotel business under coverage of the E.S.I. Act, 1948. On 25.2.1993 impugned notice in Form C-18 was issued calling upon this respondent to pay https://hcservices.ecourts.gov.in/hcservices/ contribution of Rs.5,74,670.63 calculated @ 7% of total amount of Rs.79,26,491.51 for the period 1985-86 to 189-90, for which the respondent sent a reply stating that for certain work in the establishment, contractors were engaged and amount was paid to them, who in turn, pay wages to their employees and the payments made to the contractors could not be taken for consideration for the purpose of contribution to the Corporation, as per the contention of the respondent. It is further contended that the payments made for the work were relating to the hotel business and so the respondent is not liable to make to the payment of contribution. One Egambaram inspected the establishment and submitted report to the Corporation upon which the impugned notice was drafted. Since he was not examined before the Court below, the learned I Additional Judge has opined that Ex.R-1 report given by him remains unproved. One Ramanathan was examined to prove the report. 5. However, before this Court, an affidavit was filed by this appellant stating that the said Ekambaram breathed his last on 25.05.1994. Hence the dispute could be set at rest with this. It is to be treated that Ex.R.1 report stands proved. 6. It is the quintessence of the respondent that whatever be the wages paid by the contractors engaged by the establishment could not be considered to be wages paid by it to the employees of contractors and the said payment of wages to them cannot be considered for the purpose of contribution. It is further contended by Mr. S. James, learned counsel for the respondent that the maintenance work of the buildings such as painting, plastering etc., was entrusted to the contractors. P.W.1 in his cross examination also admitted that the works undertaken by the contractors are also relatable to the hotel business. 7. Conversely, Mr. K.C. Ramalingam, learned counsel for the appellant would submit that inasmuch as the above said works are incidental to the business of the respondent, the respondent is liable to pay contribution to the work and that the wages paid by the contractors to their employees is on behalf of the respondent alone and in this regard, the claim of compensation is sustainable. 8. Learned counsel for the appellant draws attention of this Court to the Full Bench decision of the Supreme Court in AIR 1964 SCC 737 [J.K. Cotton Spinning and Waving Mills Co. Ltd., v. Labour Appellate Tribunal of India and others] in which it is held as follows: "11. ... ... ... In our opinion, an employee who is engaged in any a work or operation which is incidentally connected with the main industry of the employer would be a workman provided the other requirements of Section 2(s) are satisfied. https://hcservices.ecourts.gov.in/hcservices/ 12. In this connection, it is hardly necessary to emphasise that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. Reverting to the illustration of the buses owned by the factory for the purposes of transporting its workmen if the bus drivers can legitimately be held to assist an operation incidental to the main work of the industry, we do not see why a Mali should not claim that he is also engaged in an operation which is incidental to the main industry." Their Lordships are of the view that several incidental operations could be undertaken in an establishment and they resultantly constitute industry and hence the employees employed for such works have to be held to render their assistance to an operation incidental to the main work of the industry. 9. In 1986 (II) LLJ 304 [Employees State Insurance Corporation v. South India Flour Mills] the Supreme Court has held that the definition of the term "employees" includes within its ambit any person employed on any work incidental or preliminary to or connected with the factory or establishment, it is difficult to enumerate different types of work which may be said to be incidental or preliminary to or connected with the work of the factory or establishment and that any work that is conducive to the work of the factory or establishment or that is necessary for the augmentation of the work of the factory or establishment will be incidental or preliminary to or connected with the work of the factory or establishment. 10. Learned counsel for the appellant also placed reliance on a Division Bench Decision of Kerala High Court in 1997 (II) LLJ 839 [Regional Director, ESI Corpn. v. Kerala Wheat Flour Roller Mill] in which it is opined as follows: "10. What is involved in the present case is that the casual workers were employed by the Contractor for the construction of the office building. In view of what is already discussed herein above, the only point which remains to be considered is whether the construction of the office building for the establishment would come within the meaning of Section 2 https://hcservices.ecourts.gov.in/hcservices/ (9) of the Act. The construction of the office building or the maintenance or repair of existing building is a work 'incidental to the purpose' of the establishment. The office building is inseparably belonging to, connected with or inherent in establishment." The decision of the Supreme Court in South India Flour Mill's case (supra) has also been followed by the Kerala High Court. 11. Following the ratio laid down in the decision of the Supreme Court cited supra, it has to be necessarily held that even though the works were undertaken by the contractors, employed by the respondent in their establishment premises, the wages made to their employees would also attract the provisions of the E.S.I. Act, inasmuch as the works were for the purpose which are incidental to the business of the establishment. In order to show that the said works are separable, necessary materials have to be shown, but they are significantly absent in this case even though his employees are unidentifiable by the respondent, still the liability to pay contribution to them by the respondent would in no way disappear in view of the weighty judicial pronouncements and statutory provisions. In this regard, even if the workers were engaged by an independent contractor who may be the immediate employer since they were engaged for the purpose of the affairs which constitute integral part of the business, their engagement was incidental the function of the establishment. 12. Yet another limb of argument on behalf of the respondent is that the claim of the appellant was hopelessly barred by limitation. But there is no provision in the E.S.I. Act prescribing period of limitation for the corporation to claim contribution. In other words, the Act does not provide for any time limit to claim contribution. Section 77(1)(A) provides a time limit of five years for corporation to make a claim before the Employees Insurance Court. But the present case is otherwise. It is the claim by the Corporation and there is no time limit prescribed in the Act for claiming contribution. In 1994 Suppl. (2) SCC 142 [Nagamani Cotton Mills v. Employees' State Insurance Corporation] the Supreme Court has held that there could be no time limit for a claim of contribution. Following the said decision, the Karnataka High Court also held as such in Vol.91, 1997 FJR 135 [Siddeshwar and Co. v. Employees State Insurance Corporation and others]. Hence, the inevitable conclusion is that there is no time limit for claiming contribution by the Corporation. 13. In view of the above said discussions, it could be very well observed that the appellant can maintain the claim as mentioned in the notice impugned. Such being the position, the order passed by the Court below is not sustainable, which deserves to be set aside and accordingly set aside. https://hcservices.ecourts.gov.in/hcservices/ In fine the Civil Miscellaneous Appeal is allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ggs To 1. The I Additional Judge, City Civil Court, Chennai. 2. The Registrar, City Civil Court, Chennai-104. Copy to : The Section Officer, V.R.section, High Court, Madras. + 1 CC to Mr.K.C.Ramalingam,Advocate,SR.6105 C.M.A.No.703 of 2003 CK(CO) EM/25.2. https://hcservices.ecourts.gov.in/hcservices/