ESI CORPORATION Vs. VARGHESE
HIGH COURT OF KERALA
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(1.) The parties in these two appeals are one and same. The question involved also is the same. These appeals are filed by the first opposite party in I. G. No. 80 of 1993 and I. C. No. 108 of 1993 respectively of the E. I. Court, Alappuzha. Challenging the order passed by the appellant demanding payment of contribution with interest for the period from 11th March 1991 to 10th March 1992 and from April 1991 to September 1992 respectively, the applicant filed the above said cases. The first respondent herein was conducting a canteen for the benefit of the workers of the Cochin Port Trust, in the Harbour premises. The only contention taken by the first respondent was that the factories belonging to the Cochin Port Trust were exempted from the operation of the provisions of the E.S.I. Act. So, the first respondent who was the Contractor under the Cochin Port Trust is not liable to pay contribution to the appellant. The E.S.I. Court accepted the contention of the first respondent and set aside the impugned orders against which these appeals are filed by the first opposite party, the Regional Director, E. S. I. Corporation, Thrissur.
(2.) The only question to be considered is whether the first respondent is not liable to pay any contribution to the appellant under the E.S.I. Act and whether the first respondent is the employee of the Cochin Port Trust which is an exempted establishment.
(3.) It is submitted by the learned counsel for the appellant that the first respondent is liable to pay contribution to the workers employed by him and he is not entitled to get the benefit of exemption. As per the first respondent, the third respondent is the principal employer and the first respondent is a Contractor under the Cochin Port Trust, the 3rd respondent. So, the canteen employees are the workers of the Cochin Port Trust and it is exempted from the provisions of the E.S.I. Act. The canteen is admittedly a statutory canteen. So, even if they are employed through the first respondent, they are employees of the Cochin Port Trust. Admittedly, there is no dispute in respect of the fact that the canteen in question was being run by the first respondent. It is stated in the petition itself that the canteen is situated in the premises of the Cochin Port Trust and is being run under the supervision of the 2nd respondent herein M/s Cochin Port Trust for the benefit of the Cochin Port Trust employees. It is his further case that at no point of time, there were more than 19 employees in the canteen. All the employees were casual employees. So. the first respondent is not liable to pay contribution under the E.S.I. Act. The principal employer is the 2nd respondent herein who is exempted from the provisions of the E.S.I. Act. As per S.2 (13) of the E.S.I. Act, the first respondent contractor is the immediate employer of the 2nd respondent herein. The immediate employer will be liable to pay employees' contribution, if he has undertaken the execution of any work of the factory or establishment in the premises of which the E.S.I. Act applies. There is no dispute with regard to to the fact that the canteen premises belongs to the Cochin Port Trust. As per the Gazette notification, dated 13th September 1952, factories belong to the Port Administration is exempted from the E.S.I. Act. The canteen is being conducted in the Port Workshop, Willingdon Island. So, as per the notification, Cochin Port Trust is an exempted establishment. The canteen conducted by the first respondent is a statutory canteen is not disputed by the appellant. The first respondent is the immediate employer of the Cochin Port Trust. The canteen is being conducted by him as an agent of the principal employer on the basis of the contractual agreement between them. So, the first respondent is liable to pay contribution only if the factory or establishment in which he is carrying work as the contractor is liable to pay contribution to the E.S.I. Scheme. Admittedly, it is an exempted establishment. In such circumstances, it is to be found that the court below has rightly appreciated the evidence and set aside the orders passed by the appellant. There is no merit in the appeals and. hence the same are dismissed.;
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