IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.938 of 1990. FIRST APPEAL NO.938 of 1990. FIRST APPEAL NO.938 of 1990. The National Rayon Corporation Ltd., Bombay 20. ..Appellants (Original Applicants) versus 1. The Regioinal Director, Employees State Insurance Corporation, Bombay 400 005. 2. The Collector of Thane, at Thane. ..Respondents Ms.Shobha Gopal with Shri L.A.Ruben and Sujit Suryawanshi i/b. Vigil Juris, for the Appellant. Shri Rajan Jayakar i/b. Jayakars for the respondent No.1. Ms.S.P.Manchekar, AGP for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 21st April, 2009. DATED : 21st April, 2009. DATED : 21st April, 2009. ORAL JUDGMENT. 1. The appellant herein carries on commercial activity in the nature of manufacturing chemicals and other products. The appellants had occasion to engage as many as eight contractors for performing certain jobs within the factory premises of the appellants during the period July 1974 to July 1977. The respondent No.1 by letter dated 23.8.1978 wanted to bring all the persons appointed by the contractor within the provisions of Employees State Insurance Act, 1948 (hereafter -2- referred to as the said Act), as according to the respondent No.1 all those persons who were employed by the said eight contractors were Employees as per the definition of the term "Employees" defined under Section 2(9) of the said Act. The said matter was attended to by the the Regional Director and that the said Regional Director passed an Order dated 15.9.1983 directing the appellants to pay Rs.9,25,401.96 and interest more particularly set out in the said Order. The said Order became the subject matter of the proceedings which came to be filed by the appellant company before the Court viz. Employees’ State Insurance Court, at Bombay. The said application was filed in accordance with the provisions of Section 75 and 77 of the said Act. The said application bearing No.72 of 1983 was tried by the learned Judge of the said Court and by Order dated 4.12.1989 following Order was passed: . "Application is partly allowed and it is hereby held that Applicant is not liable to pay the amount of contributions of Rs.9,25,401.96ps and the interest of Rs.4,25,684.92 ps. as per the Order passed by the Regional Director, E.S.I.C. on 15th -3- September, 1983. . But it is hereby held that the applicant is liable to pay the contributions on the amount of Rs.6,10,014.09 ps at the then prevailing rates for employees’ contributions and employer’s contributions during the period from July 1974 to July 1977. E.S.I. is also entitled to charge interest at 6 p.a. on the actual amount of contributions which would be arrived at for the period from 15th September, 1983 till the date of payment" The appellants were aggrieved by this Order dated 4.12.1989 and that is how they have filed this First Appeal. 2. In the course of proceedings before the E.S.I. Court, on behalf of the appellant evidence came to be recorded that of one Shankar P. Jaisinghani who according to the appellant was appointed by the appellant company as transport contractor. No other witness was examined on behalf of the appellants. On behalf of the -4- respondents, Inspector Mr. HImmatlal Sonpara working under the said Act came to be examined. After going through the evidence placed before the said learned Judge, the said learned Judge arrived at conclusion that the total amount of payment made by the appellant to various contractors to the tune of Rs.1,32,20,028.18p should be looked into and 50% of this amount is required to be treated as base amount for the purpose of calculating the contribution payable by Appellant. Thereafter he passed the impugned Order dated 4.12.1989. 3. I have heard learned Advocates on both the sides. Efforts were made by the learned Advocate for the appellant to point out as to how the Regional Director erred in passing an Order dated 15.9.1983. Efforts were also made on behalf of the appellant to point out as to how the learned Judge of the E.S.I. Court erred in arriving at the final conclusion and Final Order is erroneous. As against this, learned Advocate Mr.Jayakar, appearing on behalf of the respondent No.1 refuted the arguments advanced on behalf of the learned advocate for the appellant. 4. After hearing learned advocates on both the -5- sides for considerably long time, the point which occured to me was as to what is the amount which is finally ordered to be paid by the concerned Court so that the said Company i.e. the appellant company could know as to how much amount is payable by them so as to comply with the requirements of the provisions of law and after going through the impugned judgment dated 4.12.1989 it is noted that the learned Judge of E.S.I. Court has not passed specific Order thereby directing the appellant company to pay an amount towards the contribution. The impugned Order dated 4.12.1989 does not mention the rate of interest payable on a particular contribution to be paid by the appellant from a particular date upto a particular date. The last para of the impugned judgment, namely para 18 of the impugned judgment no doubt refers to the figure which is towards the total amount of monies paid by the appellant company to the various contractors and the calculation is sought to be based at the rate of 50% of the said amount. The learned Judge has specifically observed that the appellant company is not required to pay as per the directions of the Regional Director i.e. to the tune of Rs.9 lakhs and odd amount as contribution and interest to the tune of Rs.4,00,000/-. A -6- reading of the Order quoted above would go to show that the learned Judge of the E.S.I. Court wanted to fix Rs.66 lakhs and odd amount as base and on that amount contributions are to be calculated. In my view, since the learned Judge of the said Court was required to fix the monetary liability of the appellant company, it was incumbent upon him to pass a specific Order mentioning the amount of the contribution as E.S.I. Contribution for the period July 1974 to July 1977 and he should also have passed an Order specifying the rate of interest, the amount on which the said interest is to be paid and the period for which the said amount is to be calculated. That has not been done. 5. In the circumstances mentioned aforesaid, the impugned judgment dated 4.12.1989 is required to be set aside and the matter is required to be remanded to the learned Judge, ESI Court, Bombay so that the learned Judge now presiding in the said Court shall mention the exact amount payable by the appellant company along with interest with appropriate details so that the appellant company may take the decision as to whether the said amount should be paid or fresh appeal should be filed challenging the said Order. -7- 6. Since the learned Judge of the said Court is required to fix the actual monetary liability it would be proper if both the parties are heard by him before the final Order is passed so that the parties would be able to advance their submissions. Ofcourse, after the said Order is passed, it would be open for the appellant to attend to it, including challenging the said Order in accordance with the provisions of law. I have not decided the question on merits i.e. to say whether the provisions of the said Act are attracted to the facts of this case and whether the calculation arrived at by the learned Judge of the E.S.I. Court are right or wrong. All questions are kept open and the matter is being remanded as discussed above. 7. For the reasons mentioned aforesaid, I pass the following Order: ORDER ORDER ORDER i. The impugned judgment dated 4.12.1989 passed by the learned Judge of the E.S.I. Court in application (E.S.I.) No.72 of 1983 is set aside. -8- ii. If the record of this proceedings have reached the High Court, Office shall return the said record to the Court of learned Judge, E.S.I. Court, forthwith. iii. The Application (ESI) No.72 of 1983 is remanded to the Court of learned Judge, E.S.I.Court, Bombay, who shall hear both the parties and shall arrive at a figure to be actually paid by the appellants as and by way of contribution under the Employees State Insurance Act, 1948 for the period July 1974 to July 1977. iv. If any interest is payable on the total amount of contribution the said Judge shall also specify the rate of interest at which the interest will be charged, the amount on which the said interest will be payable and the period for which the said interest shall be payable. To that extent he shall pass a clear and specific Order fixing the monetary liability of the appellant. Once the said Order is passed, it will be open for any of the party to the said Order to look into it and challenge it if it is against a particular party. All questions are kept open. This Court has not -9- expressed any views raised before the learned Judge in the application which came to be decided by the learned Judge on 4.12.1989. v. The learned Judge of E.S.I. Court shall complete the job as expeditiously as possible and preferably before 31.8.2009. vi. Since parties to the said Original Application are before the Court, they are directed to appear before the learned Judge on 10.6.2009. vii. There shall be no order as to costs. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)