E.S.I.C v. Radha Maheshwari

V.B.GUPTA, J. bhatti

* HIGH COURT OF DELHI : NEW DELHI FAO No.403 of 2002 % Judgment reserved on:,3rd August, 2009 Judgment delivered on:11thAugust, 2009 Employees State Insurance Corporation, (Through its Regional Director), DDA Shopping-cum-Office Complex, Rajendra Place, New Delhi. ….Appellant Through: Mr. K. P. Mavi. Versus Ms. Radha Maheshwari, W/o S. M. Maheshwari, R/o 9, Navjivan Vihar, New Delhi-110 017. …Respondent Through: Nemo Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Appellant has filed this appeal under Section 82 of the Employee State Insurance Act, 1948 (for short as "Act") against judgment of Senior Civil Judge, Delhi, dated 29th April, 2002, vide which petition under Section 75 of the Act, filed by respondent, was allowed. 2. The brief facts of this case are that respondent is stated to be carrying on business of fabrication of garments since 1st February, 1983 in the name of M/s Radha Maheshwari. It is her case that number of persons employed by her in the business, never exceeded 17. No power is being used. Appellant"s Inspector visited the business establishment of the respondent and informed that since, she was using an over-locking machine which operates with power, her establishment was liable to be covered under the Act. Accordingly, appellant issued an order dated 23.12.1991, creating a liability of Rs.38,270/- on account of ESI contribution for the period 1st April,1985 to 25th March, 1988 in the name of respondent. 3. On 1st April, 1985, respondent disposed off said over locking machine and intimation to this effect was given to the appellant. Despite this, appellant issued a liability of ESI contribution in the name of respondent for the period 18th February, 1985 to 21st August, 1985. Appellant after being satisfied that, Act ceases to have its applicability on the respondent, rectified the liability earlier created for the period 18th February, 1985 to 21st August, 1985 and confined the same up to 31st March, 1985 and asked the respondent to pay sum of Rs.1298.10/- up to 31st March, 1985. This amount was also paid by respondent under protest. Thereafter, order dated 31st December, 1991, under Section 45-A of the Act was passed. Respondent filed petition before the Trial Court challenging that order. Trial court, vide impugned judgment set aside the demand. 4. On 28th July, 2003, this matter was admitted and came up for hearing on 27th July, 2009. On that date, none appeared on behalf of respondent. It remained continuously on board since 27th July 2009. As nobody appeared on behalf of respondent since that date, on 3rd August, 2009, arguments advance by counsel for appellant were heard. 5. It has been contended by learned counsel for appellant that respondent failed to discharge the burden cast upon her to prove that she was not using power in manufacturing process and was not employing more than 17 persons. On the contrary, vide letter dated 9th January, 1989 it was intimated that she had now stopped the use of power, indicating thereby, that earlier she was using power in manufacturing process. 6. It is further contended that officer of appellant visited the premises of respondent and physically inspected the same and filed survey report stating that there were 17 persons employed during the period 1st April, 1985 to 31st March, 1988, in the unit of the respondent and power is being used in the manufacturing process. 7. Last contention made by learned counsel for appellant is that as per Section 1 (6) of the Act, even if respondent ceases to use the power, still the provisions of the Act would apply to her establishment. 8. Respondent"s case is that the number of workers employed by her never exceeded 17 and she never used power, as the operation of over-locking machinery is manual. While the case of appellant is, that over-