IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTIETH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.3029 OF 2003 Between: Navata Road Transport ..... Appellant AND 1. Employees State Insurance Corporation, Hill Fort Road, Hyderabad, Rep. by its Regional Director. 2. The Recovery Officer, E.S.I. Corporation, Hill Fort Road, Hyderabad. ..... Respondents The Court made the following: HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.3029 OF 2003 JUDGMENT: The Civil Miscellaneous Appeal, under Section 82 of the Employees’ State Insurance Act, 1948, is directed against the order dated 07.05.2003 in E.I.C.No.95 of 2000, on the file of the Employees Insurance Court and Chairman, Industrial Tribunal, Hyderabad, whereunder and whereby, a petition filed under Section 75 (1) (g) of the Employees’ State Insurance Act, 1948 (for short, “the Act”), to declare the order of the respondent corporation, dated 26.07.2000, made under Section 45-A of the Act, as contrary to the principles of natural justice, illegal and opposed to the provisions of Section 45-A of the Act, was dismissed. 2. The factual matrix is not in dispute. Learned counsel for the appellant vehemently contended that the employees for whom the recovery of contribution was made are not actually engaged by the appellant, but they were engaged by a contractor and in view of the decision of this Honourable Court reported in BOC INDIA LTD., CULCATTA VS. ASSISTANT REGIONAL DIRECTOR, EMPLOYEES’ STATE INSURANCE CORPORATION, HYDERABAD[1], the appellant is not liable to pay any contribution to the employees who are engaged by the contractor and therefore, he prays to set aside impugned order. 3. On the other hand, the learned counsel for the respondents contended that there is absolutely no evidence to show that the employees for whom the corporation is seeking contribution were engaged by the contractor and not by the appellant and therefore, the trial Court rightly dismissed the petition filed under Section 75 (1) (g) of the Act and there are no grounds to interfere with the same. 4. The respondents issued an order dated 26.07.2000, under Section 45-A of the Act, which is marked as Ex.R9, directing appellant to pay Rs.1,92,612/- plus interest towards the contribution of the employees engaged towards repairs and maintenance of the building and on the building constructed at Kanuru. That order was under challenge before the trial Court. 5. The only ground taken in the appeal is that appellant need not pay any contribution to the employees engaged for repairs and maintenance of the building which is located at a different place who are engaged by the contractor and not by the appellant. Therefore, the appellant is not liable to pay any contribution. For that, the learned counsel for the appellant relied on BOC INDIA LTD.’s case (1 supra), wherein it is held thus: “SECTION 2 (9) of the Act defines the term “employee”. This definition takes in its fold, not only the employees directly engaged by the employer, but those who are placed at its disposal by an agency known as “immediate employer”. The term “immediate employer” is defined under sub-section (13) of Section 2. It reads as under: “immediate employer”, in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of a factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily let or let on hire to the principal employer;” two important facets of this definition are that, the persons so employed shall work on the premises of a factory, or that they shall be under supervision of the principal employer or his agent.” A perusal of the above decision shows that in order to bring the principal employer under purview of the Employees’ State Insurance Corporation, two factors are required to be proved; one is that they were engaged by the principal employer and the other is that they were working under the supervision of the principal employer. 6. A plea has been taken by the petitioner that the work for repairs and maintenance of the building was given to a contractor and the contractor engaged the employees, and therefore, the appellant is not liable to pay any contributions. When a plea has been taken by the appellant and when a specific issue is framed as to whether the petitioner is entitled to challenge Ex.R9-order, the burden is upon him to show that he has not engaged the employees and those employees were actually engaged by the contractor and that he is not liable to pay any contributions to the employees who were engaged by the contractor. There is no evidence adduced by appellant on that aspect. The appellant himself did not come to the witness box to prove the same. Mere taking a plea does not amount to any evidence. In the absence of any evidence, the Tribunal rightly held that the appellant is liable to pay the contribution as demanded under Ex.R9 and there are no grounds to interfere with the same. Therefore, the Civil Miscellaneous Appeal is devoid of merit and is liable to be dismissed. 7. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ______________ (K.C.BHANU, J) Dated: 20th September, 2010. KL HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.3029 OF 2003 20th September, 2010. KL [1] 2005 ALT (1) 397