The Employees State Insurance Corporation, v. S.Kandasamy,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.01.2024

CORAM:

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY and C.M.P.No.4630 of 2022 The Employees State Insurance Corporation, Represented by its Deputy Director, "Panchdeep Complex"

No.1897, Trichy Road, Ramanathapuram, Coimbatore-641 045.

..

Appellant Vs.

Dr.S.Kandasamy ..

Respondent Prayer: This Civil Miscellaneous Appeal is filed under Section 82 (2) of ESI Act, against the Order dated 05.01.2022 made in ESIOP.No.16 of 2018 on the file of the Employees State Insurance Court, Coimbatore, in allowing the Petition by setting aside the order passed under Section 45A of the ESI Act and remanding back to the authority for redetermination. For Appellant :

Mr.S.P.Srinivasan For Respondent :

Mr.A.Praveen Kumar

J U D G M E N T

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This Civil Miscellaneous Appeal has been filed challenging the order passed by the Employees State Insurance Court, Coimbatore, in allowing the Petition by setting aside the order passed under Section 45A of the Employees State Insurance Act, 1948 (for brevity 'the ESI Act') and remanding the matter back to the authority for redetermination.

2.The main contention of the learned counsel for the Appellant is that totally 11 employees are working in the Respondent-Hospital and the same has been recorded in the Visit Note which has also been signed by the official of the Respondent, but without taking into consideration of the same, the order of the Appellant dated 01.08.2018 was set aside by the Employees State Insurance Court, Coimbatore (in short 'the ESI Court') and remanded back to the Appellant for re-consideration. He further sumitted that the ESI Court supposed to have perused the Visit Note before setting aside the order of the Appellant.

3. On the other hand, the learned counsel for the Respondent submitted that only 9 employees are working in the Respondent-Hospital and in the Visit Note, the name of Mrs.J.Sheeja was entered twice and one Priya, whose 2/6

name was entered in the Visit Note is not at all a regular employee in the hospital and that apart without recording any statement from all these employees, the Appellant passed an order on 01.08.2018, demanding the Respondent to pay the ESI contribution under Section 45A of the ESI Act, as the Respondent -Hosptial was covered under the ESI Act and all these aspects have been well considered by the ESI Court and the order of the Appellant was dated 01.08.2018 was rightly set aside remanded back for reconsideration. He further submitted that though the Attendance Register mentioning the names of 9 employees, was produced at the time of inspection by the Respondent-Hospital, the Appellant without considering the same, has wrongly passed an order dated 01.08.2018, which was rightly set aside by the ESI Court and therefore the same does not warrant any interfernce

4. In reply, the learned counsel for the Appellant contended that even if the name of Ms.Sheeja was mentioned twice in the Visit Note, the number of employees would be 10 and in which case also the Respondent-Hospital is covered under ESI Act.

5. Heard the learned counsel appearing for the Appellant as well as the learned counsel appearing for the Respondent and perused the entire materials 3/6

on record.

6. The main grievance of the Appellant is that in the Visit Note the officer of the Appellant have noted down the names of 11 employees, who are working in the Respondent-Hospital, which was also signed by the official of the Respondent-Hospital without any objection and after issuance of notice dated 24.08.2016, the Respondent came with a plea that only 9 persons are working in the Respondent-Hospital and the said fact was not considered by the ESI Court. However, a perusal of the Visit Note shows that 11 persons are working in the Respondent-Hospital and the name of Mrs.J.Sheeja was entered twice in Sl.Nos.6 and 9. Further no indulgence was given to the submissions of the Respondent that one Priya was not the employee of the Respondent-Hospital.

Though the Attendance Register was produced, the Appellant ought to have recorded the statement of 11 persons whose names were entered in the Visit Note but without doing so, the Appellant has passed an order dated 01.08.2018. That apart in the order passed by the ESI Court dated 05.01.2022, it was observed that though the Appellant-Corporation taken a stand that 11 employees are working in the Respondent-Hospital, the Social Security Officer of the Appellant Corporation has endorsed in Ex-P2Wage Register, wherein only the names of 9 employees are mentioned.

ESI Court on considering all these aspects have rightly set aside the order of the Appellant dated 01.08.2018 and remit the matter back for reconsideration. Therefore, we do not find any infirmity or illegality in the order passed by the ESI Court.

In view of the same, this Civil Miscellaneous Appeal stands dismissed, confirming the order dated 05.01.2022 of the Employees State Insurance Court, Coimbatore. No costs. Consequently, connected Miscellaneous Petition is closed.

05.01.2024 arr Index : Yes / No Internet : Yes / No To

1. The Employees State Insurance Court, Coimbatore. 2.The Section Officer, VR Section, High Court, Madras.

KRISHNAN RAMASAMY, J.

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