[2009] 14 (ADDL.) S.C.R. 656

A ..

EMPLOYEES STATE INSURANCE CORPORATION

BHAKRA BEAS MANAGEMENT BOARD & ANR.

(Civil Appeal No. 8335 of 2004)

SEPTEMBER 17, 2009

[MARKANDEY KAT JU AND ASOK KUMAR

GANGULY, JJ.] -+- c Employees' State Insurance Act, 1948 •

ss. 45-A and 75 - Employers contribution towards Employees' State insurance - Notice to employer - Challenged before Employees' State Insurance Court - D Employees or their representative not made party - Held: + Principles of natural justice have been violated - Judgment and order of High Court as well as that of the Employees' State Insurance Court are set aside and matter remitted to

•, I

Employees' State Insurance Court for deciding the same after E impleading the workers of the Board or their Union in a representative capacity - Since, the case pertains to the year

1987, the Employees' State Insurance Courl would decide the;

+ same expeditiously - Patty - Natural justice.

..1~0t >

F Fertilizer & Chemicals Travancore Ltd. vs. Regional Director, ESIC & Ors. 2009 (11) SCALE 766, relied on

I J l_ • Case Law Reference:

•· r- '

2009(11) SCALE 766 relied on Para 6 ·. -''i r. . .

G CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. )lqic• 8335 of 2004. ~·

From the Judgment & Order dated 14.11.2002 of the High Court of Delhi at New Delhi in F.A.O. No. 291 of 1987 . • 4 H 656

~MPLOYEES STATE INSURANCE CORPORATION v. 657 . .

BHAKRA SEAS MANAGEMENT BOARD & ANR.

WITH A ;

Civil Appeal No.8336 of 2004.

V.J. Francis and Anupam Mishra for the Appellant.

Om Prakash Mishra and Ghan Shyam Vasisht for the B Respondents.

The following Order of the Court was delivered

ORDER c

CIVIL APPEAL NO. 8335 OF 2004

Heard learned counsel for the parties.

This appe~I has been filed against the judgmnt and order D + dated 14.11.2002 of the High Court of Delhi at New Delhi

whereby the appeal filed by the respondent No. 1 herein has .,,. been allowed anc~ it has been declared that the respondent No . 1 Board is not liable to make any contribution towards the Employees State Insurance in respect of the impugned demand.

-44 The facts in detail have been given in the impugned

-.1 judgment and hence we need not repeat the same herein.

It appears that the appellant had issued a notice under F Section 45-A of the Employees State Insurance Act, 1948 (hereinafter for short 'the Act') for making employer's contribution towards the employees state insurance. The respondent No.1 Board challenged that notice before the Employees State Insurance Court, Delhi. It appears that neither G .,. the workers concerned of the respondent No. 1 Board nor any

-~ one of them in representative capacity were made parties in the petition under Section 75 of the Act before the Employees

State lnsurance Court or before the High Court.

The Employees State Insurance Court decided in favour H

A of the appellant and against the respondent No. 1 Board and directed the respondent No. 1 to pay its contribution towards ""' the employees insurance. Against the said order of the Employees State Insurance Court, the respondent No. 1-Board filed an appeal under Section 82 of the Act before the High B Court and the High Court has allowed the said appeal holding that the sub-stations of the respondent No. 1 Board are not factories within the meaning of the Act. Hence this appeal by special leave.

... c This Court has recently held in the case of Fertilizer & Chemicals Tranvancore Ltd. vs. Regional Director, ESIC & Ors. 2009 ( 11 )SCALE 766 as under :

"5. It may be noted that in its petition before the Employees Insurance Court, the appellant herein only impleaded the

' 0 Employees State Insurance Corporation and the District Collectors of Alleppey, Palaghat and Cannanore as the + respondents but did not implead even a single workman as a respondent. ....

6. Labour statutes are meant for the benefit of the workmen. Hence, ordinarily in all cases under labour statutes the workmen, or at least some of them in a representative capacity, or the trade-union representing the ... concerned workmen must be made a party. Hence, in our y.

F opinion the appellant {petitioner before the Employees . Insurance Court) should have impleaded atleast some of the persons concerned, as respondents.

7. The case of the appellant was that, in fact, none of the concerned persons was its employee and it was difficult G to identify them.

8. In this connection we may refer to Section 75(1)(a) of

~-•

the Act which states that if any question or dispute arises as to whether any person is an employee of the employer

H concerned, or whether the employer is liable to pythe

employer's contribution towards the said persons' A insurance, that is a matter that has to be decided by the Employees Insurance Court. Hence, in our opinion, the concerned person has to be heard before a determination is made against him that he is not an employee of the employer concerned.

9. The rules of natural justice require that if any adverse order is made against any party, he/she must be heard.

Thus if a determination is given by the Employes

Insurance Court that the concerned persons are not the C employees of the petitioner, and that determination is given even without hearing the concerned persons, it will be clearly against the rules of natural justice.

10. It may be seen that Section 75 of the Act does not mention who will be the parties before the Insurance Court.

D Since the determination by the Insurance Court is a quasijudicial determination, natural justice requires that any party which may be adversely affected or may suffer civil consequences by such determination, must be heard before passing any order by the authority/court.

11. In our opinion, wherever any petition is filed by an employer under Section 75 of the Act, the employer has not only to implead the ESIC but has also to implead atleast some of the workers concerned (in a representative capacity if there are a large number of F workers) or the trade-union representing the said workers.

If that is not done, and a decision is given in favour of the employer, the same will be in violation of the rules of natural justice. After all, the real concerned parties in labour

matters are the employer and the workers. The ESI G Corporation will not be in any way affected if the demand notice sent by it under Section 45A/45B is quashed.

12. It must be remembered that the Act has been enacted for the benefit of the workers to gi\':.. 'hem medical benefits, H

which have been mentioned in Section 46 of the Act.

HE:mce the principal beneficiary of the Act is the workmen and not the ESI Corporation. The ESI Corporation i~ pnly the agency to implement and carry out the object of the Act and it has nothing to lose if the decision of the Employee!li Insurance Court is given in favour of the employer. It is only the workmen who have to lose if a decision is given in favour of the employer. Hence, the workmen (or at least some of them in a representative capacity, or their trade union) have to be necessarily made a party/parties because the Act is a labour lgislation made for the benefit of the workmen.

13. In the present case the workmen concerned were not made parties before the Employees Insurance Court, nor was notice issued to them by the said Court."

Neither the workers of the respondent No. 1 nor any one of them in representative capacity were impleaded either before the Employees Stte Insurance Court or before the High Court. In our opinion, this is .in violation of the principles of E natural justice. Hence, we allow this appeal, set aside the

, impugned judgment and order of the High Court as well as that of the Employees State Insurance Court and remand the matter to the Employees State Insurance Court for deciding the same after impleading the workers of the respondent No. 1 Board or F their union in a representative capacity. Since, the case pertains to the year 1987,, we request the Employees State . Insurance. Court to decide the same expeditiously.

Appeal allowed. No order as to the costs.

G Civil Appeal No. 8336/2004

For the reasons stated in order passed in Civil Appeal No. 8335/2004, this appeal is also allowed and the impugned judgment of the High Court as also of the Employees Insurance H Court are set aside and the matter remanded to the Employees

State Insurance Court for deciding a fresh after impleading the .A workers of the Respondent No. 1 or their union in a representative capacity. Since, the case pertains to the year 1987, we request the Employees State Insurance Court to decide the same expeditiously.

Appeal allowed. No order as to the costs. , 8

R.P.

Appeal allowed.