|
3
|
THE BANGALORE
TURF CLUB LTD
vs
ESI CORPORATION 2002(95) FLR 1149 [HC-KAR-DB]
|
1
2
|
BANGALORE RACE CLUB EMPLOYED ABOUT 300
WILL THE SERVICE
RENDERED TO THE MEMBERS OF THE CLUB AMOUNT
TO SALE AND BRING IT UNDER THE DEFINITION OF ‘SHOP’ AND IN TURN BRING IT UNDER THE PURVIEW OF THE ESI COVERAGE
|
1
|
THOUGH THE CLUB MAY NOT BE ‘SHOP’ IN THE TRADITIONAL SENSE IT WOULD CERTAINLY COME WITHIN THE MEANING OF
SHOP FOR THE PURPOSES OF THE ESI ACT
|
|
4
|
RD ESI
CORPORATION
VS
IT SOLUTIONS LTD
2002(95) FLR 465[HC-KAR-SB]
OR
2002(3) LLJ 757
|
1
2
3
|
WILL CONVEYANCE ALLOWANCE PAID UNDER THE TERMS OF EMPLOYMENT COME UNDER THE DEFINITION OF ‘WAGES’ UNDER SECTION 2(22) NECESSITATINGPAYMENT OF CONTRIBUTIONS
EMPLOYMENT ARGUED THAT THE DEFINITION OF ‘WAGES’ ALSO HAS INDICATED SOME EXCLUSIONS AND ACCORDINGLY AS PERSECTION 2(22) (B) ‘ANYTRAVELLING ALLOWANCE OR VALUE OF TRAVELLING CONCESSIONS’ WILL NOT COME WITHIN THE SCOPE OF THE TERM ‘WAGES’
CAN CONVEYANCEALLOWANCE BE BROUGHTUNDER THIS EXCLUSIONCLAUSE ?
|
1
2
|
CONVEYANCE ALLOWANCE
IS FOR REPORTING TO WORK SPOT WHERE AS TRAVELLING ALLOWANCE IS FOR UNDERTAKING OUT STATION TRIPS
THE TWO ARE DISTINCT AND DIFFERENT AND HENCE CONVEYANCE ALLOWANCE WILL BE PART OF ‘WAGES’ ATTRACTING PAYMENT OF ESI CONTRIBUTIONS
|
|
5
|
ESI
CORPORATION
VS
DEPOT MANAGER
MPSRTC 2003 (96)
FLR 1020[HC-MP-SB]
|
1
2
3
|
ESI AUTHORITIES
ISSUED SHOW-CAUSE NOTICE FOR NOT PAYING CONTRIBUTIONS
ESI AUTHORITIES THEN INITIATED REVENUERECOVERY
PROCEEDINGS UNDER 45 B WITHOUT
PASSING AN ASSESSMENT ORDER UNDERSECTION 45 B
CAN RECOVERY PROCEDURE UNDER 45 B, BE INITIATED, WITHOUT PASSING A DETERMINATION ORDER UNDER 45 A ?
|
1
|
IN THE ABSENCE OF PASSING AN ORDER DETERMINING
THE CONTRIBUTIONS DUE, ANY DIRECT RESPORT TO RECOVERY UNDER SECTION 45 B, WOULD BE IMPROPER.
|
|
6
|
QAZI NOORUL
PETRO LPUMP
VS
ESI CORPORATION
2003 (96) FLR 1090
[HC-ALL-SB]
|
1
2
|
AS PER SECTION 2 (14) OF
THE ESI ACT, THE ACT IS APPLICABLE TO
FACTORIES WHERE ‘MANUFACTURING
PROCESS’ IS CARRIED ON AS
DEFINED IN SECTION 2 (k) OF THE FACTORIES ACT 1948
WILL PUMPING OF PETROL IN A PETROL PUMP COME UNDER THE DEFINITION OF ‘MANUFACTURING PROCESS’ AND BRING IT UNDER ESI ACT, IF THE PUMP IS EMPLOYING MORE THAN 10 PERSONS
|
1
2
|
THE TERM
‘MANUFACTURING PROCESS’ IN SECTION 2 (K) UNDER FACTORIES ACT HAS A VERY EXTENDED MEANING AND WILL INCLUDED PUMPING OF PETROLEUM OR OTHER PRODUCTS.
HENCE PETROL PUMPS EMPLOYING MORE THAN
10 EMPLOYEES WILL COME UNDER ESI COVERAGE
|
|
7
|
JODHPUR VIDYUT
NIGAM
VS
KARMACHARI RAJA BEEMA NIGAM
2003 (I)
LLJ 104[HC-RAJ-DB]
|
1
2
3
|
EMPLOYER CONTENDED THAT EMPLOYEES WORKING IN ELECTRICAL DISTRIBUTION CENTRES OF THE GOVERNMENT ARE NOT WORKING IN FACTORIES AND HENCE SHOULD NOT BE BROUGHT UNDER ESI ACT.
EMPLOYER FURTHER CONTENDED THAT SINCE THEIR EMPLOYEES WERE GETTING BETTER MEDICAL BENEFITS THAN ESI, THEY SHOULD NOT COME UNDER ESI
SINCE ESI HOSPITAL WAS NOT FUNCTIONING FOR THE ENTIRE PAST PERIOD OF ESI CLAIM, NO CONTRIBUTION SHOULD BE INSISTED FOR PERIOD OF NOT PROVIDING HOSPITAL FACILITY
|
1
2
3
|
AS FAR AS THE SECOND & THIRD CONTENTION ARE CONVERNED, SINCE NO FACTUAL FOUNDATIONS WERE PUT UP BEFORE
LABOUR COURTS THEY WERE NOT ALLOWED AT THE WRIT STAGE
AS REGARDS ISSUE ONE IS CONCERNED HELD THAT THE DEFINITION OF ‘EMPLOYEE [IN SECTON 2(9) IS WIDE ENOUGH TO COVER NOT ONLY EMPLOYEES WITHIN THE PREMISES OF THE ESTABLISHMENT, IT WILL ALSO COVER WORKERS ON WORKS INCIDENTAL OR PRELIMINARY TO THE WORK OF THE FACTORY EVEN IF SUCH WORKERS ARE WORKING OUTSIDE THE FACTORY PREMISES.
THE ACT DOES NOT EXCLUDE GOVERNMENT FACTORIES AS COULD BE SEEN FROM SECTION 1(4).
|
|
8
|
R.D. ESI CORPORATION
VS
ALUMINIUM INDUSTRIES LTD
2003(1) LLJ 84 [HC-KER-SB]
|
1
2
3
4
|
THE FACTORY WAS REQUIRED TO RUN A CANTEEN UNDER FACTORIES ACT
IT WAS NOT RUNNING A CANTEEN AND AS PER AN AGREEMENT WAS GIVING A CANTEEN ALLOWANCE IN LIEU OF CANTEEN
ESI CORPORATION DEMANDED CONTRIBUTION ON THE CANTEEN ALLOWANCE
IS DEMAND JUSTIFIED ?
|
1
2
3
4
|
THE ALLOWANCE WILL NOT QUALIFY AS
WAGES EVEN THOUGH PAID UNDER AN AGREEMENT BECAUSE:
THERE IS NO UNDERSTANDING THAT EMPLOYEES WILL GET FREE FOOD
UNDERSTANDING IS ONLY TO GIVE SUBSIDISED FOOD
ALLOWANCE IS TO DEFRAY THE HARDSHIP OF NOT RUNNING A CANTEEN
HENCE WILL NOT ATTRACT EWI CONTRIBUTION AS PER THE EXCLUSION CLAUSE IN DEFINITION OF WAGES IN SECTION 2(22).
|
|
9
|
EID PARRY (I)
LTD
VS
ESI CORPORATION
2002(3) LLJ 145 [HC-AP-SB]
|
1
|
ARE HAMALS [LOADING & UNLOADING WORKERS] ENGAGED, TO BE COVERED UNDER THE ESI ACT BY THE ENGAGER
|
1
2
3
|
INSISTENCE OF COVERAGE BY ESI CORPORATION BASED ON THE RAJ KAMAL TRANSPORT CASE [1996(2) LLJ 435] IS NOT APPLICABLE IN THIS CASE SINCE.
HAMALS IN THIS CASE ARE NOT
EXCLUSIVELY EMPLOYED AND ARE WORKING FOR MORE THAN ONE AGENCY AND
HAMALS ARE NOT APPOINTED BY OR UNDER THE SUPERVISION OF THE EMPLOYER
|
|
10
|
UNITED BREWARIES
LTD
VS
ESI CORPORATION
2003(I) LLJ 900[HC-KER-DB]
|
1
2
3
4
|
AS PER SUB SECTION ONE
OF SECTION 2(22) ANY PAYMENT UNDER TERMS
OF EMPLOYMENT WOULD BE ‘WAGES’
AS PER SUBSECTION THREE OF 2(22) ANY
REMUNERATION PAID AT INTERVALS OF
MORE THAN 2 MONTHS CANNOT BE TREATED AS WAGES
CAN ESI AUTHORITIES INSIST
ON ESI CONTRIBUTION ON
INCENTIVE BONUS PAID AT INTERVALS OF THREE MONTHS ?
QYOTING SUPREME COURT JUDGEMENT IN
WHIRL POOL CASE [2000 (1) LLJ 1190]
THE EMPLOYER HAD CONTENDED THAT INCENTIVE PAYMENTS MADE AT
INTERVALS EXCEEDING 2 MONTHS CANNOT BE TREATED AS WAGES FOR DEMANDING ESI CONTRTIBUTION
|
1
2
3
|
THE SUPREME COURT JUDGEMENT IN WHIRLPOOL CASE IS APPLICABLE ONLY IN CASES WHERE INCENTIVE IS PAID BY EMPLOYER UNDER A VOLUNTARY SCHEME
IN THIS CASE THE INCENTIVE PAYMENT IS UNDER THE TERMS OF EMPLOYMENT AND HENCE WHIRLPOOL CASE IS NOT APPLICABLE
ANY PAYMENT MADE UNDER TERMS OF EMPLOYEMENT WOULD ATTRACT ESI CONTRIBUTION, EVEN IF PAYMENTS ARE MADE AT INTERVALS
EXCEEDING 2 MONTHS
|
|
11
|
R.D. ESI
CORPORATION
VS
CIGIFL LTD
2002 (2) LLJ 635[HC-KAR-SB]
|
1
a
b
2
3
|
ESI CORPORATION HAS TWO OPTIONS FOR RECOVERING CONTRIBUTIONS
TO RECOVER AS ARREARS OF LAND REVENUE UNDER SECTION 45 B, AFTER PASSING A SPEACKING / ORDER UNDER SECTION 45A OR
TO RAISE A DISPUTE BEFORE E.S.I. COURT UNDER SECTION 75
SECTIONS 77 PRESECRIBES A 5 YEAR LIMITATION FOR RAISING
ARREAR CLAIMS
DOES THIS 5 YEAR LIMITATION APPLY TO BOTH MODES OF RECOVERY
|
1
2
|
THE 5 YEAR LIMITATION IF APPLICABLE ONLY WHEN THE ESI CORPORATION INVOKES SECTION 75
THE 5 YEAR LIMITATION IS NOT APPLICABLE TO THE RECOVERY PROCEEDINGS UNDER SECTION 45 A/45 B
|
|
12
|
BHARAGATH
ENGINEERING
VS
R RANGANAYAKI
2003(97) FLR 577 [SC]OR2003 (1) LLJ 558
|
1
2
3
|
AS PER CONTRACT ACT AN INSURER’S
LIABILITY FOR COMPENSATION WOULD ARISE ONLY AFTER THE POLICY IS REGISTERED WITH THE INSURANCE COMPANY, THAT IS AFTER RECEIPT OF FIRST PREMIUM PAYMENT
AN EMPLOYEE WHO WAS REQUIRED TO BE COVERED UNDER ESI ACT 1948 DIED IN EMPLOYMENT ACCIDENT BEFORE HE COULD BE REGISTERED UNDER ESI OR ACTUAL PAYMENT 0F HIS CONTRIBUTIONS.
IS HE DISENTITLED TO ESI ACCIDENT BENEFIT OR SHOULD THE CLAIMANTS DEMAND COMPENSATION UNDER WORKMENS COMPENSATION ACT 1923 ?
|
1
2
3
4
|
SECTION 53 OF THE ESI ACT STIPULATES THAT AN EMPLOYEE REUIRED TO BE COVERED UNDER ESI ACT CANNOT GET ANY BENEFIT UNDER W.C. ACT 1923
REGISTRATION OR ACCEPTANCE OF ENROLLMENT APPLICATION AFTER THE DEATH OF THE EMPLOYEE WILL NOT DISENTITLE THE DEATH BENEFIT UNDER ESI ACT 1948
AS PER SECTION 2(14) DEFINING AN “INSURED PERSON” AN EMPLOYEE BECOMES COVERED UNDER THE ESI ACT IF CONTRIBUTIONS ARE PAID OR PAYABLE UNDER THE ACT
HENCE NON-PAYMENT OF CONTRIBUTION BEFORE DEATH W2ILL NOT DISENTITLE THE EMPLOYEE’S BENEFIT UNDER ESI ACT.
|
|
13
|
THE DIRECTOR
ESI
VS
BHUWALKA STEELS LTD
2003(97) FLR 458[HC-KAR-SB]
|
1
|
DOES SECTION 77(1A) OF
THE
ESI ACT PRESCRIBE A5 YEAR
LIMITATION PREVENTING ESI
AUTHORITIES FROM MAKING
CLAIMS FOR PERIOD MORE THAN 5 YEARS OLD ?
|
1
2
3
4
5
|
THE POSITION IS DIFFERENT FOR CLAIMS MADE BY ESI PRIOR TO 20.10.1989 AND POST 20.10.1989 WHEN THE NEW SECTION 77(1A) PRESCRIBING 5 YEAR LIMITATION WAS INTRODUCED
FOR ESI CLAIMS PERTAINING TO PERIODS PRIOR TO 20.10.1989 THE EMPLOYER CANNOT TAKE SHELTER UNDER NEW SECTION 77(1A)
FOR CLAIMS PERTAINING TO PERIOD AFTER 20.10.1989 THE 5 YEAR LIMITATION CAN BE CLAIMED BY EMPLOYER
HOWEVER IF AN EMPLOYER HAS FAILED TO SUBMIT ANY RETURNS OR PREVENTED THE ESI AUTHORITIES FROM INSPECTING THEIR RECORDSPROTECTION UNDER 77(1A) WILL NOT BE AVAILABLE
IN SUCH CASES ESI AUTHORITIES CAN INITIATE
REVENU RE RECOVERY PROCEEDINGS UNDER SECTION 45A/45B WITHOUT ANY LIMITATION PERIOD [THAT IS FOR PERIODS EVEN OLDER THAN 5 YEARS]
|
|
14
|
ESI
CORPORATION
VS
COCHIN PORT TRUST
2003(2) LLJ 117 [HC-KER-SB]
|
1
2
3
4
5
6
|
COCHIN
PORT TRUST IS AN EXEMPTED ESTABLISHMENT
IT’S STATUTORY CANTEEN WAS RUN BY A CONTRACTOR
ESI CORPORATION INSISTED ON PAYMENT
OF CONTRIBUTION
ON CONTRACT WORKMEN
CONTRACTOR CLAIMED HIS WORKMEN ALSO
STAND EXEMPTED AS THE
CANTEEN IS RUN FOR THE PORT
TRUST ON PORT TRUST PREMIESES
ESI COURT FAVOURED THE CONTRACTORS STAND
CORPORATION CHALLENGED THE ESI COURT ORDER
|
1
2
|
SINCE THE PRINCIPAL EMPLOYER IS AN EXEMPTED ESTABLISHMENT THE CONTRACT WORKMEN IN THE STATUTORY CANTEEN ALSO WOULD STAND EXEMPTED
ESI CORPORATION CANNOT INSIST ON COVERAGE
|
|
15
|
ESI
CORPORATION
VS
M GANESAN
2003(2) LLN 646[HC-MAD-DB]
|
1
2
|
A SINGLE BENCH DECISION OF MADRAS HIGH COURT IN TIRUPUR TEXTILES CASE [1998(1) LLN 688] HAD HELD THAT ESI CORPORATION IS LIABLE TO PAY ACCIDENT COMPENSATION TO AN INSURED PERSON MEETING WITH AN ACCIDENT IN HIS LAST BENEFIT PERIOD WHEN HE WAS NO MORE AN ‘EMPLOYEE’ AS DEFINED IN THE ACT.
ESI CORPORATION CHALLENGED THIS AND HELD THEY ARE NOT LIABLE UNDER THE PROVISIONS OF THE ACT
|
1
2
|
THE DIVISION BENCH OVER RULED THE SINGLE BENCH DECISION AND HELD THAT ESI CORPORATION IS NOT LIABLE
AS THE ACT SPECIFICALLY STIPULATES THAT ACCIDENT COMPENSATION IS AVAILABLE ONLY WHEN AN EMPLOYEE IS MAKING CONTRIBUTION AND NOT ELIGIBLE IF HE IS MERELY IN INSURED PERSON, THERE IS NO SCOPE FOR LIBERAL INTERPRETATION OF THE STATUTE.
|
