(adsbygoogle = window.adsbygoogle || []).push({}); Join LAWyersclubindia.com and Share your Knowledge. 3 Learned advocate Mr. Sachin Vasavada submitted that on 20/5/1990, ESI Inspector has visited the establishment. Such a person remains a learner and is not an employee....". The appellant challenged the said demand notice by filing a petition under Section 75 of the Act before the Employees Insurance Court, Alleppey. In our opinion, the Employees Insurance Court should have itself made a proper investigation of the facts after getting evidence from the parties, including the workmen concerned, and after impleading them as party in the petition, it should have determined the question as to whether the persons concerned were the employees of the appellant or not. 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. Aggrieved, the appellant filed a petition in the ESI Court which, by a judgment dated 25.11.1986, while allowing the petition of the appellant-club, held that preparation of eatables does not fall under "manufacturing process" and hence, ESI Act is not applicable to the appellant-club and the appellant was not liable to pay contribution. It appears that a demand notice was sent against the appellant company under Section 45A of the Act in respect of the employers contribution under the Act. Neither the workers of the respondent No. In view, the claim before the National Commission was not maintainable.". The application of ESIC Act over Employee’s Compensation Act, 1923 can be sub-served in this, ‘BIRD’ model as formulated here-under for its easy projection. 1 Board and directed the respondent No. That, however, does not mean that in common parlance an apprentice is an employee. Abhilash Jewellery, reported in 2009 (2) Scale 1. 917-918 of 2004 Decided On: 20.08.2009 Appellants: Fertilizers and Chemicals Travancore Ltd. 3. After the visit of Inspector, these three employees were not employed by establishment. It appears that the appellant had issued a notice under Section 45A of the Employees State Insurance Act, 1948 (hereinafter for short 'the Act') for making employer's contribution towards the employees state insurance. Appeal allowed. If there is requirement, a group of headload workers will come and they do the work collectively and payments are received on tonnage basis. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. 8336/2004 9. No order as to the costs. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com The Builder Association of India challenged the extension of ESI Scheme to construction site workers before Hon'ble Supreme Court of India vide SLP No.13351/2018. The respondent company has not engaged both kind of apprentices but, engaged only one kind of apprentices under certified or settled standing order under provision of BIR Act,1946. We are of the opinion that the view taken by the National Commission is not correct. 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 workers) or the trade-union representing the said workers. 8. Vs. Respondent: Regional Director, ESIC and Ors. Three persons were not employed by establishment but they are coming for search of work and for that they were taken on trial without payment of wages. The ESI Corporation will not be in any way affected if the demand notice sent by it under Section 45A/45B is quashed. Who was examined as OPW.1 clearly deposed that in the respondent-Federation he found four employees including the Manager besides six labourers and two security guards. 8335/2004, this appeal is also allowed and the impugned judgment of the High Court as also of the Employees Insurance Court are set aside and the matter remanded to the Employees State Insurance Court for deciding a fresh after impleading the workers of the Respondent No. Equivalent Citation: 2009(11)SCALE766 IN THE SUPREME COURT OF INDIA Civil Appeal Nos. The scheme envisaged by it is one of compulsory State Insurance providing for certain benefits in the event of sickness, maternity and employment injury to workmen employed in or in connection with the work in factories other than seasonal factories. Citation. vs Regional Director, Esi ... on 11 September, 1996. 11. In common parlance the concept of employee would take with it the correlation of the employer. However, it will be wage for the purpose of Sec.2(22) of the ESI Act and the contribution are to be recovered on such payments. These submissions are strongly repudiated by Mr. Udgata, learned counsel appearing for the Federation. "The heard of the matter in apprenticeship is therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. The Section 2(9) of ESI Act. 7. 13. HIREN CHHEDA 09821078457 2nd October 2009 From India, Mumbai Attached Files . 1 Board or their union in a representative capacity. 13. Rs.7,87,352-15 Ps and for this amount, the Company had calculated the covering amount for contribution at the rate of 5.50% which comes to Rs.1,33,924/- and Company had paid the said contribution on 23.2.1996 and the proof is the xerox copy of the challan. 8. Directions given by this Court from time to time to implement the two laws have been flouted with impunity. The employees were not covered under definition of Section 2(9) of the ESI Act. Acts/Rules/Orders: Employees State Insurance Act, 1948 - Sections 45A, 45B, 46, 75, 75(1) and 82 Cases Referred: Fertilizer & Chemicals Tranvancore Ltd. v. Regional Director, ESIC and Ors. 2 The appellant has challenged order dated 24/12/2008 passed by ESI Court, Rajkot in ESI Application No.6 of 1991, Exh.-41. Apprentices Act and not covered by the EPF & MP Act. Even the Andhra Pradesh High Court had also thereafter observed that the apprentices employed as trainees, under agreement with management and paid stipend only, are not employees under Section 2(9) in the case of ESIC Vs. Andhra Prabha Pvt. • Conviction under ESI Act of the accused purporting to be owner of a hotel will be set aside when the complainant (ESI Inspector) has failed to ascertain despite his three visits to the hotel as to who is the owner particularly when he himself stated that on his second and third visit, son of the accused was present and attending the work. The said Section-2(9) is quoted as under: "2(9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this act applies and - (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or, (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or. If reliance is made on the rational laid down by the High Court in the abovesaid decisions it is very clear that the identities of the employees should be an essential factor for bringing under coverage employees and paying contribution in respect of them. The Inspector has not obtained statement of these three persons whether they were engaged by employer or not. So, in short, apprentice either engaged under Apprenticeship Act or under the Standing Orders of the establishment, in both are excluded by Legislature making it clear in Section 2(9) of Act by way of Amendment dated 20.10.1989. Madras high court expects amendment to ESI Act. (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or lent on hire has entered into a contract of service. On that occasion three employees were found in the establishment and including these three employees, it was proved that more than ten persons are working in the establishment and therefore, ESI Act is applicable. ESIC Circular_Applic able to Construction Sector.pdf. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. In this appeal, no substantial question of law is involved and therefore, according to my opinion, this appeal is not maintainable and accordingly, present appeal is dismissed.". Hence the principal beneficiary of the Act is the workmen and not the ESI Corporation. ESIC G.S.R-121E Redued contribution rate wef 1-7-19.pdf That aspect has not taken care by Inspector when the visit was taken on 22/5/1990. For the reasons stated above, we set aside the impugned judgment and order of the High Court as well as the order dated 4.2.1993 passed by the Employees Insurance Court and remand the matter to the Insurance Court for deciding the same afresh after impleading some of the workmen, if not all of them, or their trade union in a representative capacity. I. C. 1516. The factory was registered under the Bombay Shops and Establishment Act and only 6 to 7 workmen are working. 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. 15. Interpretation of term ‘basic wages’ of EPF & MP Act, 1952 and Impact of recent judgment of Supreme Court delivered in Surya Roshni Ltd v. EPFO, 2019 LLR 339 (SC) The recent judgment passed on 28.02.2019 by the Hon’ble Supreme Court in the matter of Regional Provident Fund Commissioner Vs. Therefore, ESI Court has considered this being a factual aspect while appreciating the evidence from both the sides and considered written arguments at Exh.37 and 40 and thereafter, the ESI Court has come to the conclusion that number of 10 persons were mentioned in Exh.-26 letter-pad by establishment. Finding n error in the reasonings and conclusions arrived at by the trial Court, this Court feels not inclined to interfere with the impugned order and dismiss both the appeals. #Listed In: stay order supreme court esic act construction workers Country-India City-India-Mumbai Other Similar User Discussions On Cite.Co Pf on all allowances - pfa circular dated 14.3.2019 issued by epfo along with copy of recent supreme court order (Archive) 5 Feb 2019 1:42 PM GMT. 7. My views are fortified by some judgements of Supreme Court and High Courts. The Latest Supreme Court Judgments for January 2021 with complete details of case numbers, parties name, judge names and headnotes 9. It is the submission of the applicant that as regards to Item No.7 of Part A of Category A of the Observation Slip, the said amount of Rs.7,87,352-15 ps. Therefore, according to my opinion, contention raised by learned advocate Mr.Vasavada cannot be accepted. 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 concerned, or whether the employer is liable to pay the employer's contribution towards the said persons' insurance, that is a matter that has to be decided by the Employees Insurance Court. 14.1 In view of discussion made by ESI Court, Section 2(9) and 2(22) is rightly interpreted. The relevant discussion in para 10 to 15 is quoted as under: "10. For example, Section 43(3) of the Income Tax Act defines 'plaint' to include a book. Hence, in our opinion the appellant (petitioner before the Employees Insurance Court) should have impleaded atleast some of the persons concerned, as respondents. Francis and Anupam Mishra, Advs. The Employees' State Insurance Act, 1948 is one of the most important laws that provide social security. 12. This is an exciting prospect from both an employee’s and a legal perspective as the beginning of a formal social security program in India. ESI Act: Company Directors, Who Receive Remuneration, Are Also 'Employees': SC [Read Judgment] Ashok Kini. The Act being a beneficial one contribution cannot be demanded only in respect of employees whose wages are less than the stipulated amount. After hearing learned counsel for the parties and perusing the materials available on record, this Court finds that there is no dispute that under the Act liability to pay contribution arises only when twenty or more persons are employed for wages. The Orissa High Court has also considered same aspect that if the person is found in the establishment that less than 20 employees, then Section2(9) cannot considered to be satisfied which require minimum employees working in the establishment so the employee is to be stipulated that word "employee" shall not include any other person who has not been employed by establishment. TV Sundaram Iyengar & Sons Ltd., Trichy Vs Reg Prov Fund Commr, Trichy 1999-III LLN P. 285 (Madras High Court) • There are prohibiting provisions to appropriate or adjust any amount against the am PF Payable to an employee. The employee to employed having contract of employment but, apprentice is not employed and is not having contract of employment but, only engaged as trainee for stipend. It is necessary that there should be an element of employment and for that purpose, there should be term of employment either direct or implied. 2. paid to the learner apprentices as stipend do not form part of "wages" as defined under Section 2(22) of the Act and these apprentices engaged under the provisions of the standing orders of the establishment are not covered under the definition of the "employee" under the ESI Act. 13. Kwality Spg. Criminal appeal decided by supreme court on 3-12-1957 Therefore, in light of this background, Section-2(9) is relevant. The case of the appellant was that, in fact, none of the concerned persons was its employee and it was difficult to identify them. It appears that the appellant had issued a notice under Section 45A of the Employees State Insurance Act, 1948 (hereinafter for short 'the Act') for making employer's contribution towards the employees state insurance. 14. (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; [and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of , the factory or establishment [or any person engaged as an apprentice, not being an apprentice engaged under the Apprentice Act, 1961 (52 of 1961), or under the standing orders of the establishment; but does not include-]], (a) any member of [the Indian] naval, military or air forces; or, (b) any person so employed whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;]. 12. This article is written by Pradipta Nath, a practicing lawyer. Since, the case pertains to the year 1987, we request the Employees State Insurance Court to decide the same expeditiously. In various enactments, the word 'employee', has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word 'employee' has been extended. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com Abhilash Jewellery, Employees State Insurance Corporation v. Ramanuja Match Industries. ESIC-Contributi on-Transfer-For m.pdf. With the above observation and direction, this application is disposed of. Please log in or sign up for a free trial to access this feature. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com It is mentioned in the letter that these three persons are come for trial. No act, whether labour, EPF or ESI, define the word or position “Trainee”, hence a common understanding is used. After going through the said evidence the trial Court has come to the conclusion that the number of employees engaged in the respondent-Federation was less than ten. 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 legislation made for the benefit of the workmen. Maintain professionalism while posting and replying to topics. In the case at hand, the E.S.I. The ESI Corporation shall work out the modus operandi for bringing these workers under the coverage. In some establishments, the employees themselves opt not to be covered under the ESI Act as they dont get any better benefits compared to the employer-provided benefits. Hon'ble Judges: Markandey Katju and Asok Kumar Ganguly, JJ. ESI Act is a social legislation affecting millions of workman and verdict without their involvement is is required to be regarded as perverse. 7. It appears that neither the workers concerned of the respondent No. Tata Engineering & Loco Co. Ltd : 1976 LIC 1 : 1976 SCC (L&S) 41 that "The concept of apprenticeship is, therefore, fairly known and has now been clearly recognized in the Apprentices Act. 4 I have considered the submissions made by learned advocate Mr. Sachin Vasavada and perused the award passed by ESI Court. Thus, the Applicant Company has rightly raised the point that the amount of Rs.7,87,352-15 Ps. He admitted important facts of corporation that in Exh.-25 note at Sr. Nos. Section 6 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (PF Act) requires the employer to make contributions to the provident fund accounts of each of its employees.An employee under the PF Act is defined to include persons employed through a contractor in or in connection with the work of the establishment. 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