- (1.) The present misc. appeal is preferred by the appellant Employees State Insurance Corporation Limited under Section 82 of the Employees State Insurance Act, 1948 against the impugned judgment dated 23.07.2008 passed by learned Employees State Insurance Court, Dholpur in Civil Suit No. 33/2008 (Jaipur Vidyut Vitran Nigam Limited vs. Employees State Insurance Corporation) under Section 75 of the ESI Act, 1948 by which learned Court below allowed the suit of respondent- petitioner and declared that the demand of Rs. 20,64,561/- ( twenty lacs sixty four thousand five hundred sixty one) is not recoverable.
(2.) The brief facts of the case are that respondentapplicant filed application u/s 75 of the Employees State Insurance Act, 1948 (herein after referred as the Act of 1948) against the appellant- non-applicant contending therein that notification dated 06.03.1985 issued by the Ministry of Labour, Government of India for implementation of the ESI Scheme was coomunicated by it to its employees on 16.8.1986 with the direction to submit their proposal on or before 25.8.1986 so that respondent may cover them under the ESI Act and deduct contribution from 01.09.1986. It was pleaded that prior to 16.08.1986 the then RSEB had been availing facilities to the employees equivalent to the ESI Act. Said notification/ communication dated 16.8.1996 was challenged in the Court and civil suit was filed wherein the Competent Court granted temporary injunction on 30.10.1986 which remained in existence till final disposal of the suit i.e. 30.03.2000. It was pleaded that in compliance of the said temporary injunction the respondent could not deduct the ESI contribution from the salary of its employees. However, the appellant created a demand of Rs. 20,64,561/- being contribution of both employees and employer for the period from 20.09.1990 to 31.03.2000. Said demand is time barred and appellant has no authority to raise any such demand, the demand is wrong and illegal. Respondent gave a representation along with relevant documents in the office of appellant which was rejected in this regard. It was pleaded that opportunity of hearing was not given. Respondent is not coverable under the ESI Act as it is a not a factory and deserves to be notified under section 1(5) of the ESI Act, it is under the control of the State Government and facilities much better to the ESI Scheme are being provided to the employees and State Government has already exempted it from the provisions of the ESI Act and finally on the basis of these pleadings sought a relief to this effect that the respondentapplicant may be declared as not covered under the provisions of the ESI Act and demand of Rs. 20,64,561/- as created may be quashed and set aside.
(3.) Non-Applicant (Appellant herein) contested the application and denied the averments made therein. It was pleaded that adequate opportunity has been given, demand of contribution is not time barred, the appellant is fully covered under the provisions of the ESI Act as has been admitted by the respondent itself in para no 1 and 2 of the application. If any facility by flouting the mandatory provisions of the Act has been given by the respondent to its employees, it cannot take any exemption under the garb of alleged facilities and prayed for rejection of the application.;