Heard learned counsel for the petitioners and Sri Rajesh Tiwari for the respondent.
Cause shown in the affidavit filed in support of the substitution application is sufficient.
Civil Misc. Delay Condonation Application dated 24 July 2019 is allowed.
Delay in filing the substitution application is condoned.
Substitution Application dated 24 July 2019 is allowed.
Let the necessary amendment in the cause title be carried out within 48 hours.
Order on petition The sole issue which arises for consideration in this petition is whether the premises of the petitioners were liable to be viewed as covered under the provisions of the Employees State Insurance Act 1948. A challenge in these proceedings is laid to two orders passed by the respondents holding the petitioners liable to be treated as covered under the provisions of the enactment aforementioned. The proceedings appear to have been initiated pursuant to a show cause notice issued by the Regional Director on 21 May 1987. It called upon the petitioners to explain why the establishment be not treated as falling within the ambit of a factory as defined under the 1948 Act since more than 20 employees were employed at the relevant time. Pursuant to that notice the petitioners submitted a reply contending that they had not employed more than 20 persons and that only 10-14 persons were employed in their establishment. It was further asserted that the entire operations of the establishment were not being carried on with the aid of power and therefore, also the petitioners were not liable to be viewed as subject to the provisions of the 1948 Act.
Although Sri Budhwar learned counsel for the petitioner had initially contended that the entire proceedings rest upon the provisions of Section 1(6) as introduced in the Act in terms of Act No. 29 of 1989 (with effect from 20 October 1989), that issue in the considered view of the Court does not arise. The question of the applicability of Section 1(6) would have arisen if it had been the case of the respondents that the number of persons employed in the establishment in question had fallen below the limits specified by and under the Act during the period under scrutiny. It is however not disputed that during the period in question the expression 'factory' as defined in Section 2(12) brought within its ambit all premises wherein 10 or more persons were employed in the preceding 12 months and in which any part of the manufacturing process was being carried on with the aid of power. Section 2(12) was subsequently amended vide Act No. 18 of 2010 (with effect from 01 June 2010) providing that a factory would mean any premises in which 10 or more persons were employed on any day of the preceding 12 months. The requirement of 20 or more persons working in any premises and such premises consequently falling within the ambit of Section 2(12) was one which existed prior to the amendments as introduced vide Act No. 18 of 2010.
In that view of the matter if the respondents had found that 10 or more persons were employed by the petitioner in the preceding 12 months and the manufacturing process was being carried on with the aid of power, the petitioners would have been liable to be held to be covered under the provisions of the Act. However as is evident from the recitals appearing in the show cause notice, the entire premise on which the respondents proceeded appears to be clearly fallacious. In that view of the matter while this Court finds itself unable to sustain the orders impugned, the ends of justice would merit liberty being reserved to the respondents to revisit the entire matter and pass a fresh order in accordance with law.
Accordingly this petition shall stand allowed. The impugned orders dated 26 March 1996 and 31 January 1997 are hereby quashed. It is however left open to the respondents to re-evaluate the question of coverage of the petitioners under the provisions of the 1948 Act in accordance with law.
Sri Budhwar learned counsel assures the Court that in case the respondents desire any records pertaining to the period in question, the same shall be duly produced and all cooperation extended. It shall be open to the respondents here to carry out the reassessment with due notice to the petitioners here.
Since the matter is being remanded for fresh consideration, all contentions of respective parties on merits are left open.
Order Date :- 30.7.2019 faraz