The respondent establishment stood covered by the provisions of the ESI Act, 1948. The respondent running a hotel. The hotel is run from two places, one at West Perumal Maistry Street and other at Tamil Sangam Road. On 09.02.2002, one Duraipandi died due to electrocution during the course of his employment. Since the deceased died during his employment, a claim petition was lodged for the payment of requisite benefits to the Legal Representatives of the deceased.
2. Since the Appellant Corporation rejected the said claim, the establishment filed ESI OP.No.61 of 2005 before the ESI Court, Madurai.
3. The appellant filed had filed a counter affidavit, agreeing to disburse the benefit to the dependants of the deceased under the Act. However, in paragraph 12 of the counter, it was submitted that since only a posthumous registration was done by the employer, the appellant sought liberty to proceed under Section 68 of the Act, to recover the capitalized value of the benefit from the employer. But the ESI Court merely allowed the petition by impugned order dated 09.06.2015, without adverting to the implication of Section 68 of the Act. Aggrieved by the same this appeal has been filed by the Corporation.
4. This Court admitted this appeal on 09.11.2016. The substantial questions of law that had arisen for determination in this appeal. Where the ESI Court ought to have permitted the ESI Corporation to proceed under Section 68 of the ESI Act against the employer for recovery of the capitalized value.
5. It is not in dispute that the employer did not register the name of the deceased employee originally. It is beyond dispute that only posthumous registration was made. When the employer had not remitted any contribution under the Act, Section 68 of the Act will automatically come into play. In this case, the Corporation was satisfied that contribution ought to have been paid by the employer for the deceased Duraipandi. The dependants of the deceased Duraipandi cannot be made to suffer for the omission on the part of the employer. In order to deal with such situation, Section 68 of the Act has been incorporated. The ESI Court had remarked that it is for the Corporation to decide and if law permits would be entitled to proceed against the employer.
6. I am of the view that the ESI Corporation ought to have given a specific finding in this regard, by enabling the Corporation to proceed under Section 68 of the Act. Even while confirming the other findings rendered by the ESA Court, this Court answers the substantial questions of law framed in this appeal in the favour of the appellant. Therefore, the order dated 09.06.2015 in ESI O.P No.61 of 2005 on the filed of ESI Court, Madurai is modified. The ESI Corporation is permitted to proceed under Section 68 of the ESI Act, to recover the capitalized value from the employer/respondent herein.
7. This Civil Miscellaneous Appeal is allowed with the aforesaid modification. No costs.
To
1.The ESI Court (I.e.Labour Court), Madurai Copy to : The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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