FAO No.18 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 18 of 1984 Date of decision: 25.11.2008 M/s Amrit Ice and Cold Storage …..APPELLANT Versus The Employees State Insurance Corporation …..RESPONDENT CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr A.P.Bhandari, Advocate for the appellant. Mr Vikas Suri, Sr Standing Counsel for ESIC-respondent. T.P.S.MANN, J. (Oral): By this common order, I intend to dispose of present FAO No.18 of 1984, as well as FAO No.19 of 1984. However, for facility of reference, facts are taken from FAO No.18 of 1984. The order passed by the respondent on 9.5.1980, demanding contribution amounting to Rs.5579/- from the appellant-concern for the period 11/1976 to 3/1978 and 7/1978 to 1/1979 was challenged by the concern by filing a petition under Section 75-G of the Employees' State Insurance Act, 1948, hereinafter referred to as “the Act”, which petition was, however, dismissed by learned Employees Insurance Court vide impugned order dated 24.9.1983. Aggrieved of the same, the appellant- FAO No.18 of 1984 -2- concern filed the present appeal under Section 82 of the Act. The case of the concern, as set up in its petition under Section 75-G of the Act was that it was a registered firm working at Chandigarh and Jasbir Singh Sethi was its partner, who was authorized to sign, verify and present the petition. It was alleged that M/s T.S.Sethi and Company was the lessee of M/s Amrit Ice and Cold Storage in the year, 1976. The said concern was dissolved and two separate firms having their separate entities were established under the name and style of M/s T.S.Sethi and Company, for the wing of Ice Factory and M/s Amrit Ice & Cold Storage for the Cold Storage wing. In spite of the same, the respondent passed an order on 9.5.1980, requiring the appellant-concern to pay contribution in respect of both the firms by treating them to be one firm, which was illegal, as it was not based on the record. Further that the firm was not covered under the Act, nor respondent asked the concern to file 0.1 form and accordingly, it was prayed that the petition be accepted and the impugned order be quashed. The petition was contested by the respondent on the grounds that the concern was employing 14 persons on 5.9.1976, as was clear from the survey report dated 31.12.1976 prepared by the Insurance Inspector. Accordingly, the concern was covered under the Act with effect from 5.9.1976. The respondent was not concerned with the alleged dissolution of the firm M/s T.S.Sethi and Company. In fact, no material had been brought on the record by the concern to establish the said fact. The impugned order was legal, valid and passed in accordance with law. In spite of issuance of notice to the concern, no record was produced. Accordingly, C-18 was sent to the concern, but no compliance was made FAO No.18 of 1984 -3- by it. It led to the passing of final order on 9.5.1980 under Section 45-A of the Act. From the pleadings of the parties, learned Employees' Insurance Court framed the following issues: 1. Whether the petitioner firm is registered under the Indian Partnership Act and Sh. Jasbir Singh Sethi is one of its partner? 2. Whether the order passed by the respondent on 9.5.1980 demanding contribution on adhoc basis amounting to Rs.5579/-is illegal and unenforceable as alleged? 3. Relief. After going through the pleadings of the parties and the evidence led by them, learned Presiding Officer of the Employees' Insurance Court held that the concern failed to prove that it was a registered firm and Jasbir Singh and Rajbir Singh Sethi were competent to sign, verify and present the petition. Further that, no illegality had been pointed out by learned counsel representing the concern in the order claiming contribution. Accordingly, the petition was dismissed. Learned counsel for the appellant has submitted that the order passed by the respondent claiming contribution amounting to Rs.5579/- was illegal, as the appellant concern was not covered under the Act. As is apparent from the record, the Insurance Inspector submitted his survey report dated 31.12.1976, as per which the appellant concern was employing 14 persons as on 5.9.1976 and as it was engaged in a manufacturing process, therefore, the concern was very well covered under the Act. FAO No.18 of 1984 -4- Learned counsel for the appellant then submitted that vide notification dated 21.1.1977, the Chandigarh Administration exempted the Cold Storages which were also manufacturing Ice, from the operation of the Act for a period of one year from 1.7.1976 to 30.6.1977 and the exemption was further extended for another period of one year from 1.7.1977 to 30.6.1978 vide notification dated 8.6.1978. As the appellant concern was engaged in the business of Cold Storage and manufacturing of Ice only, it could not be covered by the Act and the demand of contribution up to 30.6.1978 was illegal and void. Though as per notification dated 21.1.1977, all the Cold Storages, which were also engaged in the manufacturing of Ice and situated within the Union Territory, Chandigarh were exempted from the operation of the Act from 1.7.1976 to 30.6.1977, yet no such exemption in respect of Cold Storages, which were also engaged in the manufacturing of Ice was extended vide notification dated 8.6.1978, as is clear from the copy of the notification which has been produced by learned counsel for the respondent today in the Court. The names of the various concerns indulging in manufacturing processes, which were exempted from the application of the Act were mentioned in the notification dated 8.6.1978. Only the following concerns were exempted from the operation of the Act: “1. Redrying manufacturing leaf tabacoo 2. Rice Milling 3. Salt Manufacture 4. Oil Mills 5. Ice Manufacture FAO No.18 of 1984 -5- 6. Wool pressing either with or without cotton pressing and ginning.” It is, thus, apparent that exemption which had been granted in respect of the Cold Storages which also engaged in manufacturing of Ice as well was only up to 30.6.1977 and not beyond. Therefore, the respondent could only ask for contribution for the period starting from 1.7.1977 and not for the earlier period i.e from 11/1976 to 6/1977. However, the respondent will have to undertake an exercise once again so as to determine as to how much contribution was required to be paid by the appellant concern from 1.7.1977 to 3/1978 and from 7/1978 to 1/1979. There is no material on the record to establish that the appellant-concern is a seasonal factory. The testimony of Jasbir Singh PW-1 is contradicted by Basant Ram RW-2. Therefore, the appellant- concern has been rightly held to be covered under the Act. Accordingly, the order dated 9.5.1980 passed by the respondent is up-held, except in regard to the period from 11/1976 to 30.6.1977. The present appeal is partly accepted by exempting the appellant concern for making contribution for the period 11/1976 to 30.6.1977. However, for the period from 1.7.1977 to 3/1978 and from 7/1978 to 1/1979, the matter is remanded to the respondent to undertake the necessary calculations and then to pass an order so as to specify the amount of contribution required to be paid by the appellant concern. Once such calculations are made, the appellant concern be given two months' time to make the payment. Before the judgment could be concluded, learned counsel for FAO No.18 of 1984 -6- the appellant submitted that when the present appeal was admitted, no stay was granted and, in fact, a specific order was passed, declining the prayer for stay. Therefore, there is every likelihood that the total amount of contribution of Rs.5579/- may have been deposited by the appellant concern. If that be so, the contribution for the period 11/1976 to 30.6.1977 be refunded to the appellant. In view of the aforementioned findings, FAO No.19 of 1984 has no merit and the same is, accordingly, dismissed. November 25, 2008 (T.P.S.MANN) Pds. JUDGE