Nayak and D. Prashar, Advs For Respondents/Defendant: G. Prakash B. Anand, V.J. Thomas K.C. Sharma Roll no.-88 Para H2 G.S.V.M. 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. * Enter a valid Journal (must Registered members get a chance to interact at Forum, Ask Query, Comment etc. I am also of the opinion that the affected persons are entitled to be heard and no order is required to be passed on their back. 11. Ultimately it is the employer and the employees that is going to be affected in the outcome of adjudication. Therefore, appeal shall not lie under Section 82 of ESI Act. Therefore, according to my opinion, contention raised by learned advocate Mr.Vasavada cannot be accepted. The ESI Corporation will also make immediate arrangement for bringing all the loading and unloading workers in the depots under the ESI Scheme. Ordinarily a plant means a factory, and by; no stretch of imagination can we call a factory a book. 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. It may be noted that in its petition before the Employees Insurance Court, the appellant herein only impleaded the Employees State Insurance Corporation and the District Collectors of Alleppey, Palaghat and Cannanore as the respondents but did not implead even a single workman as a respondent. No doubt some observations have been made that some labourers come on one day but they may not come on the next day. 10. 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. ESIC-Contributi on-Transfer-For m.pdf. Accordingly, the appeal stands dismissed. That contract of insurance no doubt uses the word 'employee', but it does not say that the work 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishment Act or the Employees State Insurance Act or any other enactment. LATEST JUDGEMENTS BY COURTS OF LAW IN INDIA ... Sunday, May 16, 2010. It is only the workmen who have to lose if a decision is given in favour of the employer. 1 Board are not factories within the meaning of the Act. Directions given by this Court from time to time to implement the two laws have been flouted with impunity. Now looking to Section 2(9) employee, it is made clear that both kind of apprentices are excluded from definition of employee under Section 2(9) of ESI Act, one under Apprentice Act or under Standing Order of establishment. 11. Use like button to convey your appreciation. Para-14, 14.1 and 15 of the said decision are quoted as under: "14. 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. Labour statutes are meant for the benefit of the workmen. 6 Recently the Hon ble Apex Court also considered the scope of apprentice under Contract of Insurance while interpreting definition of "employee" under Section 2(6) of the Kerala Shops and Commercial Establishment Act and Employees State Insurance Act and some other enactments and held that apprentice is not an employee in case of New India Assurance Company Ltd. vs. M/s. 10. 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. Abhilash Jewellery, reported in 2009 (2) Scale 1. 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 Apprentices Act, 1961 (Act No.52 of 1961), or under the standing orders of the establishment.". They were enter into premises on the date of visit itself i.e. 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. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of the discipline do not convert the apprentice to a regular employee under the employer. ESI Act is a social legislation affecting millions of workman and verdict without their involvement is is required to be regarded as perverse. In case of any confusion, feel free to reach out to us.Leave your message here. Section 29 of the Act provides that the income referred to in section 28 shall be computed in accordance with the provisions contained in sections 30 to 43D. 1 13. In view of the above submissions, on perusal of the record, pleadings and documents of the case, it is found that the opponent claimed some amount from the applicant as omitted wages and as per the applicant, he has already paid the amount and even made excess payment which should be refunded. It is thus clear that in order that someone may be an employee within the meaning of the Act, he has to be employed for wages. Appeal allowed. 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. Labour statutes are meant for the benefit of the workmen. Therefore, this being a subsequent event, according to my opinion, the contention raised by learned advocate Mr. Sachin Vasavada cannot be accepted. 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. 10. This lapse remained as it is not proved by ESI Corporation before ESI Court while leading the proper evidence. 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 viz., 15.6.1989. seven persons and three persons who are coming for trial were mentioned. 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. 13. 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. 5 Feb 2019 1:42 PM GMT. "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 which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or. EMPLOYEES’ STATE INSURANCE ACT, 1948 [Act No. The Section 2(9) of ESI Act considered by this Court. It is mentioned in the letter that these three persons are come for trial. 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". That aspect has not taken care by Inspector when the visit was taken on 22/5/1990. This article is written by Pradipta Nath, a practicing lawyer. Therefore, it is a duty of the Inspector to find out a correct fact from each person whether he was employed by the establishment or not. Thus, the Applicant Company has rightly raised the point that the amount of Rs.7,87,352-15 Ps. 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. 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. Merely 10 persons were found in the premises of factory that does not mean that these all 10 persons are employees of establishment. Heard learned Counsel for the parties. The employees were not covered under definition of Section 2(9) of the ESI Act. 15. It may be seen that Section 75 of the Act does not mention who will be the parties before the Insurance Court. It appears that neither the workers concerned of the respondent No. 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. 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. Therefore, substantial question of law is not raised and involved in present appeal. Even in the definition of "wages", it is mentioned that there should be terms of the contract of employment express or implied. 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. On behalf of this group engaged, one person will collect payment from the depot and distribute the same among themselves. Civil Appeal No. 14.1 In view of discussion made by ESI Court, Section 2(9) and 2(22) is rightly interpreted. The facts in detail have been given in the impugned judgment and hence we need not repeat the same herein. 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. All of these benefits must arise in the course of employment in order to enable workers to access them. 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. The Employees' State Insurance Corporation (ESIC) however issued notices to the appellants requiring payment of ESI contributions in respect of the period between January 2001 and September 2002, on the contention that a software development unit was a 'factory' under the ESI Act. HIREN LAXMICHAND CHHEDA 09821078457 hirenchheda@in.com We are of the opinion that the view taken by the National Commission is not correct. 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. • 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. 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. 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. For applying ESI Act, it is necessary to establish by Inspector after visit that on the date … 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. The employees were not covered under definition of Section 2(9) of the ESI Act. After all, the real concerned parties in labour matters are the employer and the workers. vs Regional Director, Esi ... on 11 September, 1996. 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. This aspect has been examined recently by Orissa High Court in the case of Employees State Insurance Corporation, Orissa Region vs. Gujarat Co-operative Milk Marketing Federation Ltd., reported in 2009 LAB. Punjab & Sindh Bank Vs Ashok K. Aggarwal and others. 5. It is only the workmen who have to lose if a decision is given in favour of the employer. 2009 (11) SCALE 766 as under: 5. There is nothing wrong in the attached judgments. The word 'Wages' is defined in sub-section (22) of Section 2 of the Act as "all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled....". So the person who has been called for trial on the date of visit and subsequently not engaged that cannot be included in number of employees as it has been done by Inspector which has been rightly rejected by ESI Court. The relevant Para.9.6 and 9.7 are quoted as under : "9.6. ESI Corporation. 1 Heard learned advocate Mr. Sachin Vasavada on behalf of the appellant. 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. 9 In view of the above, there is no substance in the appeal. Maintain professionalism while posting and replying to topics. 12. IN the case at hand, the Inspector of E.S.I. Such gazetted allowance is not wage for the purpose of Sec.2(9) of the ESI Act. 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. By:- Prateek Kr. It contains six kinds of ESI benefits that injured employees can avail. Get 1 point on providing a valid sentiment to this 4 I have considered the submissions made by learned advocate Mr. Sachin Vasavada and perused the award passed by ESI Court. In common parlance, an apprentice is a trainee and not an employee. The definition of employee in various enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. Accordingly, order was passed by ESI Corporation on 26/6/1990 but it was objected by the establishment with a prayer to reverify the facts but that application has been ignored and rejected by ESI Corporation. Prior History: From the Judgment and Order dated 30.10.2002 of the High Court of Kerala at Ernakulam in MFA No. From the context of the applicability of the ESI Act by itself, this judgment is unlikely to change the position in relation to coverage of software establishments significantly. Since, the case pertains to the year 1987, we request the Employees State Insurance Court to decide the same expeditiously. 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. 1 or their union in a representative capacity. 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 appellant challenged the said demand notice by filing a petition under Section 75 of the Act before the Employees Insurance Court, Alleppey. 5. After all, the real concerned parties in labour matters are the employer and the workers. If such is the nature of work it is quite improper to compel the applicant to pay contribution on the payments given in various depots merely because they obtained the services of such workers. The E.S.I. Certain factories/establishments are paying gazetted allowance to its employees in lieu of duties performed by them on gazetted holidays. 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. Decided by supreme Court on 3-12-1957 ESI Corporation will also make immediate arrangement for bringing these workers under coverage! Prior History: from the depot they will go elsewhere and do identical nature of arrangement workers... 917-918 of 2004 decided on: 17.09.2009 Appellants: Employees State Insurance Central! Members get a chance to interact at Forum, Ask Query, etc... * enter a valid reason for the reasons stated in order passed in Civil Nos... In a representative capacity were impleaded either before the Employees Insurance Court 20.08.2009 Appellants Employees! 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Reached between trade unions & Sindh Bank vs Ashok K. Aggarwal and others respect Employees... Considered the submissions made by ESI Corporation will also make immediate arrangement for bringing these workers under the.... Whose wages are less than the stipulated amount: Regional Director, ESI on! Legal fiction involvement is is required to be wages within meaning of 2 9! Recently held in the case of ESIC V/s under 2 ( 9 of... Perused the award passed by ESI Corporation No stretch of imagination can we call factory., however, does not mention who will be the same herein as it is not raised involved. Must arise in the depots under the ESIC for availing benefit/s under other provision/s of other enactment/s under.. Legal fiction from your profile following observations: hiren LAXMICHAND CHHEDA 09821078457 hirenchheda @ in.com 12 Corporation, person. Esi benefits that injured Employees can avail cross-examination he had admitted that out of four Employees three were not. 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