- (1.) The Employees' State Insurance Corporation has brought in challenge the order passed by the Employees' Insurance court, Alleppey and as confirmed by the High court in appeal under the Employees' Insurance Act, 1948.
(2.) The respondent is a public limited construction company engaged in the business and the work of undertaking construction work at various places in the State of Kerala. During the period 1971 to 1982 it had undertaken construction work for building factory premises of M/s Mcdowell Company at Ghertallei. During the relevant time the Employees' State Insurance Act,1948 (hereinafter referred to as "the Act") was applicable in the State of Kerala. The appellant-corporation raised the demand against the respondent- Company in connection with the contribution which should have been remitted to the Corporation both consisting of employees' contribution as well as employer's contribution amounting to Rs 2 lakhs and odd for the period from 1971 to 1982. This demand by the Corporation resulted in an application by the respondent-Company before the Employees' Insurance court, Alleppey being IA No. 62 of 1988. The Insurance court after hearing the parties took the view that as the claim pertains to an earlier period i. e. from 1971 to 1982 and there was no clear evidence to show whether the workmen concerned, who were said to be employed by the respondent- Company during the relevant time, were available on the payroll of the Company and as the appellant-corporation had not taken steps in time to activise the respondent in this connection, the claim put forward by the Corporation against the respondent for that period could not be effectively entertained. However, the Insurance court noted that there was some evidence regarding continuity of employees at least from 1983 onwards till the coverage was effected in 1986. The appellant-corporation was held entitled to collect contribution in respect of those employees who are employed by the respondent during 1983 and who continued under employment thereafter till they were brought under coverage w. e. f. 1/12/1986. In the result the respondent's application was allowed to the aforesaid extent. The appellant-corporation being aggrieved by the said decision of the Employees' State Insurance court carried the matter in appeal before the High court of Kerala under Section 82 of the Act. The High court by the impugned judgment agreed with the decision rendered by the Insurance court and dismissed the appeal. The High court observed that the Insurance court was justified in arriving at the finding that the Corporation could not insist for payment of contribution from the respondent in respect of employees whose particulars were not available. Moreover, the request for contribution was made after several years and there was nothing on record to show that inspection had been conducted at any time prior to 1982. In the result, the High court dismissed the appeal of the Corporation.
(3.) In support of the present appeal learned counsel for the Corporation submitted that the view of the High court that only because details were not furnished by the respondent about the exact number of employees employed by it during the relevant time even though it was under a statutory obligation to furnish such data as per Regulations 12 to 14 of the Employees' State Insurance Regulations, 1990 (sic) framed under the Act, the Corporation could not claim contribution for the said period was clearly unsustainable. It was contended that the Corporation could not be found fault with for the said absence of data especially when the aforesaid data was within the personal knowledge of the respondent-Company which engaged those employees during the relevant time. Consequently, the absence of data about the availability of the employees concerned or their whereabouts could notfurnish a relevant ground for the respondent to oppose the claim of the appellant-corporation. In support of this contention two decisions of this court were pressed into service by learned counsel for the appellant. In the case of ESI Corpn. v. Harrison Malayalam (P) Ltd. wherein incidentally the respondent before this court was the very same respondent who is before us in the present appeal, an identical contention canvassed by the respondent before the High court and which had appealed to the High court was repelled by this court. In the light of the scheme of the Act considered in that judgment it was observed in para 3, p. 362 of the report that: "On the admitted fact that the respondent-Company had engaged the contractor to execute the work, it was also the duty of the respondent- Company to get the temporary identity certificates issued to the workmen as per the provisions of Regulations 12, 14 and 15 of the Employees' State Insurance (General) Regulations, 1950 and to pay the contribution as required by Section 40 of the Act. Since the respondent- Company failed in its obligation, it cannot be heard to say that the workers are unidentifiable. It was within the exclusive knowledge of the respondent-Company as to how many workers were employed by its contractor. If the respondent-Company failed to get the details of the workmen employed by the contractor, it has only itself to thank for its default. Since the workmen in fact were engaged by the contractor to execute the work in question and the respondent-Company had failed to pay the contribution, the appellant-corporation was entitled to demand the contribution although both the contribution period and the corresponding benefit period had expired. ";