The Pondicherry Co-Operative v. The Regional Director
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 26.02.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI C.M.A.No.490 of 2014 and M.P.No.1 of 2014 The Pondicherry Co-operative Wholesale Stores Ltd., No.P.44, Rep. by its Managing Director, Mr.T.Chanemougam, 288, Mahatma Gandhi Road, Puducherry - 605 001.
(Cause title accepted vide order of Court dated 10.01.2014 made in M.P.No.1 of 2014 in CMA.SR.No.103371 of 2013) .. Appellant/Claimant Vs.
The Regional Director, Employees State Insurance Corporation, ESI Complex, Bouuvankare Street, Mudaliarpet, Pondicherry.
.. Respondent/respondent PRAYER : Civil Miscellaneous Appeal is filed under Section 82
(2) of E.S.I Act, 1948, against the order dated 29.05.2013, in ESIOP.No.12 of 2009, on the file of the Employees Insurance Court, Pondicherry.
For Appellant : Mr.R.Sreedhar(NA) For Respondent : M/s.Jayakumari
J U D G M E N T
The appellant herein is the petitioner, who filed ESIOP.No.12 of 2009, praying to declare the assessment order dated 07.05.2009 and the recovery proceedings initiated by this respondent/Employees State Insurance Corporation as null and void. But ESI Court erroneously dismissed the application. Aggrieved by that, he preferred this Civil Miscellaneous Appeal. The Employees State Insurance Corporation contested the appeal.
2. Point for consideration:
"Whether the order passed by the ESI Court is liable to be set aside as erroneously concluded that he is liable to pay the contribution to the wages paid by the canteen employees , who are not employed by him and
there is no employer-employee relationship between them."
3. The learned counsel appearing for the appellant argued that the appellant is operating a whole sale stores registered under Pondicherry proprietary society and running liquor shops as allotted by the Government. Accordingly, 10 shops are running in Pondicherry by its own employees. The petitioner has leased out part of the premises of each and every liquor shops to individual third parties for running canteen or petty shops dealing in eatables items. All the ten lessees running the canteen by their own employees and there is no employer-employee relationship between the petitioner and the employees of the canteen.
While so, the Insurance Inspector visited the liquor shops and verified the attendance register and treated the employees of the canteen contractors as employees of the petitioner establishment and suggested compliance with the provisions of ESI Act. Based on the above report, the respondent issued Show Cause Notice describing him as a Principal Employer and demanding contribution. Immediately, he challenged that notice before the ESI Court at Pondicherry, but without considering his evidence, the ESI Court, erroneously dismissed the application. Aggrieved by that, he approached this Court and he prays to allow the appeal.
4. By way of reply, the counsel for the ESI Corporation submits that all those canteens are running inside the premises of the liquor shops and there is no evidence of the appellant side to show that those employees were running canteen through its contractor separately. When there is no evidence, with regard to such contract then all those employees in canteen are comes under the principal employer namely this appellant. Even during their inspection, the appellant not produced any registers to show that the canteen employees were appointed through its contractor.
5. Even before the ESI Court, no oral evidence on the side of the appellant was adduced and the documents marked as Exs.P1 to P12. On the side of the respondents Exs.R1 and R5 were marked.
6. The appellant relied the lease agreement said to be entered between himself and those contractors, but those agreements are a self serving document, which is not sufficient to conclude that the canteen employees are appointed through contractors. Inspite of opportunity given to the appellant they have not produced any other relevant tangible material evidence. So, the ESI Court rightly concluded that the canteen employees are also come under the control of the principal
employees/appellant, who is the immediate employer and rightly dismissed the petition. This Civil Miscellaneous Appeal is dismissed as not maintainable in law. Accordingly, the substantial question of law is answered.
7. Accordingly, this Civil Miscellaneous Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
Sd/- Asst.Registrar (CS VI) /true copy/ Sub Asst. Registrar ub To The Presiding Officer Employees Insurance Court, Pondicherry +1 cc to M/s.S.Jayakumari Advocate sr12666 C.M.A.No.490 of 2014 aa19/03/2021