~ ~ ~ ~ ~ ~ ~ ~ ~ Aggrieved by judgment dated 27.12.2012 passed by the Employees' Insurance Court, Alappuzha in I.C.No.106/2011, the Employees State Insurance Corporation (in short, 'ESI Corporation') has come up in appeal.
2. The case before the court below was an application submitted by the applicant under Section 75 read with Section 77 of the Employees State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') seeking a declaration that the claim of the appellant herein for ₹3,900/- and ₹14,300/- by way of contribution on unloading charges paid to the Kerala Head Load Workers Welfare Board by the applicant, is unsustainable.
3. The very same question had earlier come up before this Court in ESI Corporation Vs. Babu Rao [2003 (3) KLT 805], wherein a learned Single Judge of this Court held that the employer in respect of the head load workers attached to the Head Load Workers Welfare Committee is the said Committee, and the individuals who avail their services cannot be treated as the employer. It seems that the court below has incorrectly found that the said finding was confirmed by the Apex Court vide order in Civil Appeal No.5215/2006. Based on the said finding, the court below allowed the application and declared that the claim of the appellant herein by way of contribution on unloading charges paid to the Kerala Head Load Workers Welfare Board, is unsustainable.
4. Heard the learned Standing Counsel for the ESI Corporation, and Advocate Sri.C.S.Ajith Prakash for the respondent. The only question to be decided at present is whether the respondent herein, who was the applicant before the court below, could be considered as the principal employer or not. On going through order dated 24.11.2006 passed by the Apex court in Civil Appeal No.5215/2006, it seems that the judgment passed by this Court in Babu Rao's case (supra) has been set aside by the Apex court. The discussion in the order of the Apex court reveal that a decision has to be taken as to whether the Committee under the Head Load Workers Welfare Board could be treated as the principal employer or not for the purpose of recovery of contribution. On going through the order of the Apex court, it is evident that the question is still left open. After setting aside the judgment of this Court, the Apex court remanded the matter back to the E.I. Court for taking a decision in the matter, after hearing the Committee under the Head Load Workers Welfare Board, the State of Kerala, and also the parties in the said case. By the time the matter reached the court below, the Committee had approached the Government of Kerala and obtained exemption from the provisions of the ESI Act as far as the Committee is concerned. The learned counsel for the appellant has pointed out that the exemption continued to be there till the year 2007 and thereafter, there is no exemption at all. Therefore, the question left open by the Apex court in the order in Civil Appeal No.5215/2006 to be decided by the court below, still remains open.
5. Matters being so, in the present matter also, the Committee under the Kerala Head Load Workers Welfare Board, the State of Kerala and the parties herein are to be heard afresh, in order to decide as to who can be treated as the principal employer from whom contribution can be recovered. It seems that the court below has taken an erroneous view that the Apex court has approved the decision of this Court in Babu Rao's case (supra). In fact, the judgment in the said case has been set aside and the matter was remanded back to the E.I. Court for fresh disposal in accordance with law after hearing all the parties noted above. Therefore, the impugned judgment is liable to be set aside and the matter has to be remanded back to the E.I. Court for fresh disposal in accordance with law.
In the result, this Appeal is allowed and the impugned judgment is set aside. The matter is remanded back to the E.I. Court for fresh disposal after impleading and hearing the Committee under the Kerala State Head Load Workers Welfare Board, and the State of Kerala, and also after giving an opportunity of being heard to both the parties herein. All such parties are entitled to adduce evidence, if any, in the matter. The court below shall decide the said question on the basis of such evidence and hearing, in the light of order dated 24.11.2006 of the Apex court in Civil Appeal No.5215/2006.
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(B.KEMAL PASHA, JUDGE) aks/23/05 // True Copy // PA to Judge