The evidence adduced by the Federation also reveals that M/s. The ESI The ESI Corporation shall work out the modus operandi for bringing these workers under the coverage. The Protection of Women from Domestic Violence Act, 2005 came into force on 26 October 2006. ESI Corporation. Thus if a determination is given by the Employees Insurance Court that the concerned persons are not the 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. 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. It is the submission of the applicant that the Deputy Director of the opponent has passed an order under Section 45A of the Act directing the applicant company to pay Rs.11,31,026/- as contribution on the amount ascertained by the Inspector at Rs.2,99,087,124/- at the rate of 5.5.0% plus Rs.5,56,133/- being the amount of the interest at the rate of 18% upto 15.8.1998. In this case, the question for determination before the Supreme Court was as to what was the interpretation of section 11 A of the Industrial Disputes Act, 1947. The E.S.I. However, the Income Tax Act deems a book to be a plant for the purpose of depreciation. EMPLOYEES’ STATE INSURANCE ACT, 1948 [Act No. The Employees State Insurance Court decided in favour of the appellant and against the respondent No. In the present case, since the word 'employee' has not been defined in the contract of insurance, we have to give it the meaning which it has in common parlance. Even if he is given a stipend, that does not mean that there is a relationship of master and servant between the firm and the apprentice. No order as to the costs. Please log in or sign up for a free trial to access this feature. Needless to say, the Employees Insurance Court will grant an opportunity to all the parties, including the alleged workmen, to lead documentary evidence or oral evidence and thereafter proceed in accordance with law. After the visit of Inspector, these three employees were not employed by establishment. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com 9. In the case at hand, the E.S.I. 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. 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. 1 1 Heard learned advocate Mr. Sachin Vasavada on behalf of the appellant. Therefore, Inspector who has visited has not taken proper care to find out from these three persons while obtaining statement from them whether they have appointed by employer establishment or not or they are on trial or not. They were enter into premises on the date of visit itself i.e. Sharma Roll no.-88 Para H2 G.S.V.M. Therefore, according to my opinion, contention raised by learned advocate Mr.Vasavada cannot be accepted. 1 Board is not liable to make any contribution towards the Employees State Insurance in respect of the impugned demand. 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. No doubt some observations have been made that some labourers come on one day but they may not come on the next day. 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. After sending of report to the head office, notice was served to establishment. That, however, does not mean that in common parlance an apprentice is an employee. Please login to post replies The Section 2(9) of ESI Act considered by this Court. Therefore, substantial question of law is not raised and involved in present appeal. 7. Court after discussing the materials arrived at a conclusion that the basic number of twenty had not reached, and thus no liability under the Act had accrued. 9. 13. Esi applicability for construction workers in india (Archive) About epf.esic caluculation and actual contribution (Archive) Related Files & Downloads Shared By Members. This appeal has been filed against the judgment and order dated 14.11.2002 of the High Court of Delhi at New Delhi whereby the appeal filed by the respondent No. We are of the opinion that the view taken by the National Commission is not correct. Vide order dated 26/6/1990, ESI Corporation directed establishment to pay contribution to the corporation in respect to all the employees those who are working in the establishment. 16. The inspection was carried out by Inspector in present of witness Ashwin Mansukhlal Hoda but inspection note was not prepared in presence of witness on 22/5/1990. In those cases, the employees could come forward and say No to coverage in support of the employer, Your are not logged in . For the reasons stated in order passed in Civil Appeal No. I would say its a fair judgment. 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. April, 1948] An Act to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto Since the determination by the Insurance Court is a quasi-judicial 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. At the same time considering that in the meanwhile sixteen years have passed, this Court grants liberty to the Corporation to conduct a fresh inspection, if it is so advised, and proceed in accordance with law. 13. on 22/5/1990 on trial base who were subsequently not appointed and factory is already closed in the year 2000. 9 In view of the above, there is no substance in the appeal. Interact directly with CaseMine users looking for advocates in your area of specialization. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. 8336/2004 9. 8 to 10, which has been made by establishment that these three persons are on trial and no statement of these three persons were obtained by Inspector and there was no dispute or objection raised by Inspector in respect to contents mentioned by establishment at Exh.-25. Service) Act, 1996 (the BOCW Act) and the Building and Other Construction Workers‘ Welfare Cess Act, 1996 (the Cess Act). 2 [the whole of India . If there is requirement, a group of headload workers will come and they do the work collectively and payments are received on tonnage basis. 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. 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. No order as to the costs. 2009 (11) SCALE 766 as under: 5. ‘B’ – Barred provision/s under the ESIC for availing benefit/s under other provision/s of other enactment/s. Click here to Login / Register. Corporation will not be in any way affected if the demand notice sent by it under Section 45A/45B is quashed. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com My views are fortified by some judgements of Supreme Court and High Courts. Hence the principal beneficiary of the Act is the workmen and not the ESI Corporation. 11. 9.7 It is established in this case that the trainees or apprentices are not regular employees and are not covered under the definition and this judgment is being followed till the date. The term 'employee' has been defined under sub-section (9) of Section 2 of the Act to mean "any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies and his employment may be covered by any of the alternatives of clauses (i), (ii) or (iii) of the said sub-section. Key Update: From 15th Feb., 2020, new Companies registered through MCA Portal, www.mca.gov.in need not comply with provisions of ESI Act till they reach threshold limit of ESI coverage or initial 6 months whichever is earlier. 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. 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. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com Accordingly, the appeal stands dismissed. The factory was registered under the Bombay Shops and Establishment Act and only 6 to 7 workmen are working. Accordingly Exh.-2 application is also disposed of. 8. CAN NOT READ IT CAN YOU SEND ME my  email  ID adinathadv@gmail.com. Since the determination by the Insurance Court is a quasi- judicial 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. The respondent No. 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. 34 of Year 1948, dated 19th. That is because of this peculiar nature of arrangement among workers on the basis of understanding or agreement reached between trade unions. Basically difference is found out by Legislature is that the employee is required to be employed and apprentice is not required to be employed but, has to be engaged. 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. (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;]. 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. 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. 12. CIT Vs Orchid Pharma Ltd. (Madras High Court) Employee’s contribution towards Provident Fund (PF) and Employees’ State Insurance (ESI) should be paid within the due date as provided in the related statutes to be allowed as deduction under Section 36(1)(va) of the Income Tax Act, 1961. 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. On such registration of the headload workers under the scheme, the applicant will pay contribution from the date of passing of the order passed under Section 45A of the ESI Act … 5 Feb 2019 1:42 PM GMT. 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. Nayak and D. Prashar, Advs For Respondents/Defendant: G. Prakash B. Anand, V.J. 10. Mills Pvt. ESI Act: Company Directors, Who Receive Remuneration, Are Also 'Employees': SC [Read Judgment] Ashok Kini. Hence, the appellant is before us by way of the present appeal by special leave. The employees were not covered under definition of Section 2(9) of the ESI Act. It contains six kinds of ESI benefits that injured employees can avail. (1) This Act may be called the Employees’ State Insurance Act, 1948. 15. 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. The Inspector has not obtained statement of these three persons whether they were engaged by employer or not. 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. The rules of natural justice require that if any adverse order is made against any party, he/she must be heard. Legal fictions are well-known in law. CAN NOT READ IT CAN YOU SEND ME my  email  ID sandy_1136@rediffmail.com, CAN NOT BE DOWNLOADED , PLESE SEND ME  THE JUDGEMENT TO my  email  ID niranjanraoassociates@gmail.com. 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. 146 of 1984 which was filed under section 75 of the Employees' State … It is pertinent to note that it is on record that these apprentices learners are kept in training by the applicant company as per the provisions of standing orders. The Employees’ State Insurance Act incorporates a number of sections, these sections provide for medical benefits and insurance for any employees working under factories registered under the ESI Corporation. Rule 50 of the Employees' state Insurance (Central) Rules, 1950. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com Therefore, unless there is term of contract of employment, one can not be covered under the definition of "employee" and unless some amount is paid to employee, any amount paid to other persons can not be covered under the definition of "wages" because the term "wages" is connected with employee. Act (Employees State Insurance) passed in 1948 (amended in 1975, 1984, 1989 and 2010) is an important measure of social security and health insurance in this country. 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. Thus only those persons who are paid wages in consonance with Section 2(9) of the Act are to be considered as employees for the purpose of contribution. Ashok Dhamija, an author of the book on Prevention of Corruption Act 1988. Review of various important judgements on regarding sanction for prosecution under Prevention of corruption Act 1988. Criminal appeal decided by supreme court on 3-12-1957 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. 12. Attached Supreme Court Judgement under ESI Act is short of new dispute which requires in-depth discussion and I humbly request Respected Members to write article on it in the present thread. 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. This Court has no doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own, there is no reason for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to the organizations which are not covered by the scheme. It is only the workmen who have to lose if a decision is given in favour of the employer. 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. Equivalent Citation: 2009(11)SCALE766 IN THE SUPREME COURT OF INDIA Civil Appeal Nos. Bonus Act is not applicable to the establishment as well as Gratuity and PF Act is also not applicable to the establishment. After all, the real concerned parties in labour matters are the employer and the workers. No order as to the costs. Directions given by this Court from time to time to implement the two laws have been flouted with impunity. The appellant challenged the said demand notice by filing a petition under Section 75 of the Act before the Employees Insurance Court, Alleppey. FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT We have heard Mrs. R. Hemalatha, learned … It is a duty of Inspector to check it properly by obtaining statements from each person that whether they are employees of the establishment or not. Madras high court expects amendment to ESI Act. 1 Board challenged that notice before the Employees State Insurance Court, Delhi. Hence this appeal by special leave. The employees were not covered under definition of Section 2(9) of the ESI Act. LATEST JUDGEMENTS BY COURTS OF LAW IN INDIA ... Sunday, May 16, 2010. 921 of 1993 (C) Disposition: Appeal allowed ORDER 1. Section 28 of the Income-tax Act enumerates categories of income chargeable to Income-tax under the head "Profits and gains of business or profession". Such submission of learned advocate Mr.Vadavada cannot be accepted. This fact is not denied by the opponent ESI Corporation and it is in evidence also that these learners are there as per the provisions of the standing orders settled by award of industrial Court. The rules of natural justice require that if any adverse order is made against any party, he/she must be heard. Ordinarily a plant means a factory, and by; no stretch of imagination can we call a factory a book. [ ] ).push ( { } ) ; Join LAWyersclubindia.com and Share your Knowledge allowed! Tranvancore ltd. v. Regional Director, ESI Inspector was examined at Exh.-24 and he has report! 15 of the workmen Vasavada on behalf of the Act being a beneficial contribution. Trade unions 2 points on providing a valid sentiment to this Citation, are! 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