IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 MFA.No. 1286 of 1995 (F) ---------------------- ( IC.54/1994 of INDUSTRIAL TRIBUNAL, IDUKKI) .................... APPELLANT - APPLICANT: --------------------------------------- THE DAIRY MANAGER, KOTTAYAM DAIRY, ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD., VADAVATHUR, KOTTAYAM – 10. BY ADVS. SRI.B.S.KRISHNAN, SENIOR ADVOCATE SRI.K.ANAND, SMT. LATHA KRISHNAN RESPONDENTS - OPPOSITE PARTIES: ------------------------------------------------------- 1. THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, PUNCH DEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR – 20. 2. THE KOTTAYAM DISTRICT CO-OPERATIVE MILK SUPPLIERS UNION, VADAVATHUR, KOTTAYAM, REPRESENTED BY ITS SECRETARY. 3. THE ASSISTANT DIRECTOR, DAIRY DEVELOPMENT, KOTTAYAM. R1 BY ADV. SRI.TPM.IBRAHIM KHAN R2 BY ADV. SRI.V.G.ARUN R3 BY SENIOR GOVERNMENT PLEADER, SRI.P.K.BABU THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK M.N.KRISHNAN, J ------------------------------ M.F.A.NO.1286 OF 1995 ---------------------------------------- Dated this the 16th day of November, 2010 JUDGMENT This is an appeal preferred against the order of the Employees Insurance Court, Idukki in Insurance Company Appeal No.54 of 1994. The brief facts as follows: The matter relates to a dispute between the Kottayam Diary and Kottayam District Co-operative Milk Supplies Union which is the second respondent. The second respondent was collecting milk and bottling and selling it. It is contended that the Diary appellant, machineries were taken over and handed over to Milma. Now the principal contention appears to be whether for the contribution to the employees the appellant Kottayam Diary is liable or the second respondent Kottayam District Co-operative Milk Supply Union is liable. So it is an important fact to be decided firstly, under whom the employees are working and secondly, whether there were any terms of agreement whereby the liability can be fixed on one or them and lastly, what will impact of the statutory provision of Section 93 A of ESI Act in this case. First, the court may have to resolve dispute regarding employees. Then only suppose it is concluded that they were working under a particular person namely the appellant or the second M.F.A.NO.1286 OF 1995 2 respondent then the decision will be easier for the reason that the court can look into the provisions of law and determine the issue. Ultimately, now workers are affected in this case, for the reason there is a fight between the appellant Kottayam Diary and the second respondent regarding liability. So when the workers interest or involved the Hon’ble Apex court in the two decisions in 2009 (3) KLT 946 SC i.e Fertilizers & Chemicals Travancore Ltd., v. ESI Corporation and in ESI Corporation v. Bhakra Beas Management Board and Another 2009 (10) SCC 671 at held that the junction of the workmen or their representative is necessary. In 2009 (3) KLT 946 (SC) in para 10 of the judgment Supreme Court made it clear that “it may be seen that Section 75 of the Act does not mention who may be the party before the Insurance Court'. Since the determination by the Insurance Court is Quasi Judicial Determination, natural justice requires that any party which may be adversely affected or may suffer civil consequences of such determination, must be heard before the person any or other authority/court. In para 12 again it reiterated that ”hence the workmen (or at least some of them in a capacity or their union) have to be necessarily made a party or parties because the Act is a labour M.F.A.NO.1286 OF 1995 3 legislation made for the benefit of the workmen”. In the other decision referred to Supreme Court held that thus “if determination is given by the Employees Insurance Court that the persons concerned are not the employees of the petitioner and that determination is given even without hearing the persons concerned”, that it will be clearly against the rules of the natural justice. It may be seen that Section 75 of the Act does not mention who will be the parties before the Insurance Court. Therefore, by the dictum laid down in this case it is clear that where the interest of the workmen are involved either the workmen or the representatives of the workmen are also to be heard for a proper adjudication of the matter. As far as this case is concerned they have not been impleaded or heard and now their interest is now hanging and so it is desirable that the entire matter is reconsidered after impleading them or at least some of the representatives of the union. Therefore, the order under challenge is set aside and the matter is remitted back to the Employees Insurance Court with a direction to implead the workers/representatives of the workers and then permit all concerned to produce both documentary as well as oral evidence and dispose of the matter in accordance with law. I make it clear that the present M.F.A.NO.1286 OF 1995 4 appellant and second respondent are permitted to project their case in accordance with their contentions and the court is also bound to consider the impact or Section 93A of the State Employees Insurance Act and then dispose of the matter in accordance with law. The Employees Insurance Court is directed to give notice to the parties fixing a date of appearance and thereafter implead the workers or representatives of the workmen for a proper disposal of the matter. The appeal is disposed of accordingly. M.N.KRISHNAN,JUDGE pm