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The Regional Director, Employees State Insurance Corporation, Goa v/s Agro-Chem Industries Services


Company & Directors' Information:- R K B AGRO INDUSTRIES LIMITED [Active] CIN = L17100KA1979PLC003492

Company & Directors' Information:- S D CHEM PRIVATE LIMITED [Active] CIN = U25209DL1979PTC194030

Company & Directors' Information:- J R AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15342UP1982PTC005792

Company & Directors' Information:- B M AGRO INDUSTRIES LIMITED [Active] CIN = U74899DL1992PLC049988

Company & Directors' Information:- R S AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15319DL1998PTC097025

Company & Directors' Information:- S N T AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U01122DL1997PTC086925

Company & Directors' Information:- D D AGRO INDUSTRIES LIMITED [Active] CIN = U24219PB1999PLC022487

Company & Directors' Information:- S S D AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15100MH1998PTC113744

Company & Directors' Information:- I A AND I C CHEM PRIVATE LIMITED [Amalgamated] CIN = U24211MH1997PTC106812

Company & Directors' Information:- S. A. B. INDIA AGRO INDUSTRIES LIMITED [Active] CIN = U01403UP2009PLC038365

Company & Directors' Information:- U K AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15114UP2003PTC028107

Company & Directors' Information:- R. K. AGRO INDUSTRIES PRIVATE LIMITED [Under Process of Striking Off] CIN = U15410WB2012PTC180269

Company & Directors' Information:- R J AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15311KA2005PTC035485

Company & Directors' Information:- S O I AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15310GJ2010PTC059966

Company & Directors' Information:- A C T AGRO-CHEM PRIVATE LIMITED [Active] CIN = U24129GJ2001PTC039740

Company & Directors' Information:- S I P AGRO INDUSTRIES LIMITED [Strike Off] CIN = U01403WB2012PLC188362

Company & Directors' Information:- A TO Z CHEM PRIVATE LIMITED [Strike Off] CIN = U24110DL1990PTC039983

Company & Directors' Information:- S. S. AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15490PN2013PTC146574

Company & Directors' Information:- J J AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15130MH1980PTC023302

Company & Directors' Information:- A R AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1992PTC050526

Company & Directors' Information:- G S AGRO INDUSTRIES PVT LTD [Active] CIN = U01132WB1990PTC049960

Company & Directors' Information:- R. N. AGRO SERVICES PRIVATE LIMITED [Strike Off] CIN = U01110PN2009PTC134290

Company & Directors' Information:- D V AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1993PTC051892

Company & Directors' Information:- M. CHEM PVT. LTD. [Under Process of Striking Off] CIN = U25209GJ1987PTC009440

Company & Directors' Information:- P AND G AGRO INDUSTRIES P LTD [Strike Off] CIN = U99999UP1985PTC007509

Company & Directors' Information:- R. K. G. S. AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15100UP2017PTC097391

Company & Directors' Information:- M CHEM INDIA PRIVATE LIMITED [Active] CIN = U24222DL1999PTC098527

Company & Directors' Information:- S B P-CHEM PRIVATE LIMITED [Active] CIN = U24117RJ1986PTC003545

Company & Directors' Information:- I C CHEM PRIVATE LIMITED [Strike Off] CIN = U24119MH1997PTC108959

Company & Directors' Information:- V G AGRO INDUSTRIES LIMITED [Strike Off] CIN = U01400DL1993PLC051666

Company & Directors' Information:- S AND S CHEM INDIA PRIVATE LIMITED [Strike Off] CIN = U24299KL1999PTC013099

Company & Directors' Information:- G V CHEM INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U74899DL1994PTC060947

Company & Directors' Information:- V. AGRO SERVICES PVT. LTD. [Strike Off] CIN = U01122WB1992PTC055487

Company & Directors' Information:- INSURANCE SERVICES (INDIA ) PRIVATE LIMITED [Active] CIN = U66030MH2001PTC133437

Company & Directors' Information:- T S AGRO INDUSTRIES PVT LTD [Strike Off] CIN = U15209UP1987PTC008974

Company & Directors' Information:- K D CHEM (INDIA) PVT LTD [Under Process of Striking Off] CIN = U24231GJ1986PTC008977

Company & Directors' Information:- B AND P AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U01110MH1972PTC015574

Company & Directors' Information:- S L S INSURANCE SERVICES INDIA PRIVATE LIMITED [Strike Off] CIN = U67200TZ2007PTC013868

Company & Directors' Information:- D AND S INSURANCE SERVICES PRIVATE LIMITED [Strike Off] CIN = U55101MH2000PTC126342

Company & Directors' Information:- P V R K AGRO INDUSTRIES PVT LTD [Strike Off] CIN = U01119AP1988PTC008395

Company & Directors' Information:- S K E-CHEM PRIVATE LIMITED [Active] CIN = U24100MH2005PTC153676

Company & Directors' Information:- U R C AGRO SERVICES PRIVATE LIMITED [Strike Off] CIN = U01403TG2010PTC066598

Company & Directors' Information:- K R P AGRO INDUSTRIES PVT LTD [Active] CIN = U01110MH1991PTC062304

Company & Directors' Information:- S. P. INSURANCE SERVICES PRIVATE LIMITED [Active] CIN = U74120MH2015PTC265338

Company & Directors' Information:- A S W CHEM PRIVATE LIMITED [Strike Off] CIN = U51496PN2012PTC144951

Company & Directors' Information:- Y. J. CHEM PRIVATE LIMITED [Strike Off] CIN = U24100HR2013PTC048370

Company & Directors' Information:- AGRO SERVICES PRIVATE LIMITED [Strike Off] CIN = U99999KA1975PTC002826

Company & Directors' Information:- M Y CHEM PRIVATE LIMITED [Strike Off] CIN = U24100MH1979PTC021114

    Appeal Under E.S.I. No. 5 of 2007

    Decided On, 08 July 2013

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MR. JUSTICE F.M. REIS

    For the Appellant: A.A. Agni, Advocate. For the Respondent: Gaurish Kamat, Advocate.



Forward Referenced In:-

general :-   2010 AIR (SC) 2109,   The Managing Director, Hassan Co-operative Milk Producer's Society Union Limited Versus The Assistant Regional Director Employees State Insurance Corporation]
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Judgment Text

Oral Judgment:

1. Heard Mrs. Agni, learned Counsel appearing for the Appellant and Shri Kamat, learned Counsel appearing for the Respondent.

2. On perusal of the Order passed by this Court at the time of admitting the above Appeal, I find that no substantial question of law was framed on such occasion. Mrs. Agni, learned Counsel appearing for the Appellant, however points out that at para 3 of the Appeal Memo, substantial questions of law were proposed by the Appellant. Hence, with the consent of learned Counsel appearing for the Respondent, the following substantial question of law was framed for consideration in the above Appeal :

'1. Whether the employees who were admittedly engaged for the work of the respondent through sub contractor would have to be treated as employees of the respondent and the sub contractor as immediate employer and whether onus was on the respondent to demonstrate once they admitted engagement of casual employees for the work that there was no supervision and control exercised by the respondents on the workers ?'

3. Mrs. Agni, learned Counsel appearing for the Appellant, has pointed out that the ESI Court whilst coming to the conclusion that there was no supervision on the part of the Respondent has not at all examined the material on record nor has considered the merit of the material which suggests otherwise. The learned Counsel further submits that it was incumbent upon the Respondent to adduce evidence to establish that no such supervision was exercised by the Respondent upon the casual labourers. Learned Counsel further pointed out that though bills were produced by the Respondent to substantiate their allegations that the payments were affected to the sub-contractor towards the wages of the casual workers, nevertheless, as the said documents were not proved, the ESI Court was not justified to rely upon such documents. Learned Counsel further pointed out that it is the case of the Respondent that they were carrying out work as contractors for M/s. Zuari Agro Chemicals though there is nothing to disclose in the impugned Judgment whereby the ESI Court has considered as to whether the work being done by the Respondent was without their supervision and to their own satisfaction. Learned Counsel further pointed out that the ESI Court has not even considered as to whether the work was being carried out by the Respondent during the course of their engagement by M/s. Zuari Agro Chemicals and, as such, non-consideration of such crucial aspect itself has vitiated the impugned Judgment. Learned Counsel has further taken me through the impugned Judgment and pointed out that the learned Judge has vaguely answered the points for determination without considering the material on record. Learned Counsel further pointed out that non-consideration of such crucial aspects and without drawing inferences on the basis of the material on record itself, has vitiated the impugned Judgment which has led to perversity of the findings of the learned Judge that the work which was being carried out by the Respondent was without their supervision. Learned Counsel has further taken me through the impugned Judgment and pointed out that though the Respondents have not led any evidence, nevertheless, on the basis of the evidence of the Respondent itself, it can be established that the Order passed by the authorities under Section 45-A of the E.S.I. Act, ought to have been upheld. Learned Counsel as such submits that the above substantial question of law is to be answered in favour of the Appellant.

4. On the other hand, Shri Kamat, learned Counsel appearing for the Respondent, has supported the impugned Judgment. Learned Counsel pointed out that the Appellant has not even led any evidence to rebut the evidence led by the Respondent. Learned Counsel has taken me through the evidence of Aw.1 and pointed out that the said witness has elaborately stated the type of work carried out by the Respondent and in the cross examination by the Appellant of the said witness, there is nothing to show that the statements made by Aw.1 have been shaken. Learned Counsel has thereafter taken me through the averments made by the Respondent at para 1 of their application to the effect that they were engaged by M/s. Zuari Agro Chemicals as a licence contractor. Learned Counsel has thereafter taken me through the reply filed by the Appellant to point out that these averments have not been denied. Learned Counsel further pointed out that merely carrying out some remote supervision by itself cannot be considered to be supervision within the meaning of the provisions of the ESI Act. In support of his submission, he has relied upon the Judgment of the Apex Court reported in AIR 2010 SC 2109 in the case of Managing Director, Hassan Co-operative Milk Producer's Society Union Ltd. vs. Assistant Regional Director, Employees State Insurance Corporation. Learned Counsel further pointed out that as the Appellant has not led any evidence nor does the inspection report suggests that any supervision was being carried out by the Respondent with regard to such workers. Learned Counsel has thereafter taken me through the impugned Judgment and pointed out that the learned Judge has on the basis of the appreciation of evidence on record has come to the conclusion that there was no material on record brought forward by the Appellant to the effect that the Respondents were carrying out any supervision of the work of the workers who were engaged in M/s. Zuari Agro Chemicals. Learned Counsel has thereafter pointed out that in the deposition of Aw.1, there was a specific averment to the effect that such casual labourers were in fact carrying out such activities in the establishment of M/s. Zuari Agro Chemicals and not in the establishment of the Respondent. Learned Counsel further pointed out that as the finding of fact rendered by the ESI Court cannot be said to be perverse, the question of interference by this Court in the above Appeal would not arise.

5. In reply to the submissions of the learned Counsel appearing for the Respondents, Mrs. Agni, learned Counsel appearing for the Appellant, has taken me through the Judgment of the Apex Court in the case of Managing Director, Hassan Co-operative Milk Producer's Society Union Ltd. vs. Assistant Regional Director, Employees State Insurance Corporation (supra). Learned Counsel pointed out that in the said Judgment, there was sufficient material on record for the Court to come to the conclusion that there was no supervision carried out by the employer. Learned Counsel has taken me through the material in the said Judgment and pointed out that the agreement with the Union as well as some documentary evidence was adduced which established that no such supervision was done by the employer. Learned Counsel as such submits that the said Judgment has no applicability to the facts and circumstances of the case.

6. I have carefully considered the submissions of the learned Counsel appearing for the parties. I have also gone through the records. In the context of this Appeal, it is now well settled that such Appeal can be considered only in cases in which there is a substantial question of law. In the present case, the only consideration to be ascertained is whether there is any perversity in the finding of the ESI Court whilst coming to the conclusion that the Respondent was not supervising the activities of the casual labourers.

7. The learned ESI Court whilst deciding the application filed by the Respondent, has, on the basis of appreciating the material on record, has held at para 19 that the Appellants herein have not adduced any evidence to controvert the contention of the Respondent herein that the amount which has been claimed is towards the bills of the third parties in respect of the work done by engaging their own labour force and without the supervision of the Respondent. The learned Judge has also held that there is also no evidence on record to show that the work carried out by the third party was incidental to the work carried out by the Respondent herein. On the basis of such findings, the learned ESI Court has held that the employees engaged by the third parties would not be employees of the Respondent herein within the meaning of Section 2(9) of the ESI Act. On perusal of the evidence of Aw.1, it is evident that the said witness has elaborately stated in what circumstances the casual labourer were in fact engaged by the Respondent. The nature of work performed by such workers has also been elaborately stated. It is further stated that the Respondents have no supervision over the work being carried out by such casual workers. It is further pointed out that the work which has been done is of a specialized nature and, as such, the Respondents have no supervision on that count. On perusal of the cross examination, there is no challenge to such statement. Apart from that, as rightly pointed out by the learned ESI Court the Appellants have not brought any evidence to controvert the said evidence. As such I find that the contention of Mrs. Agni, learned Counsel appearing for the Appellant, that there is perversity in the findings of the EST Court on that count, cannot be accepted. Besides from the deposition of Aw.1, there is documentary evidence adduced by the Respondent at exhibit 24 and 36 collectively, inter alia, producing the statement disclosing the amounts which have been paid to such sub-contractors. The Appellants did not raise any objection when the said documents were taken on record and marked as exhibit nor the authenticity of the documents were challenged in the cross examination. In such circumstances, the ESI Court was justified to draw an inference that the Appellant has not brought any evidence to controvert the statement of the Respondent to the effect that there was no supervision carried out by the Respondent with regard to the work of casual labourers engaged in the establishment of M/s. Z

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uari Agro Chemicals. As no perversity can be found in the said findings, I find that there is no case made out for any interference in the impugned Order. 8. Mrs. Agni, learned Counsel appearing for the Appellant, has vehemently argued that the matter is to be remanded for fresh adjudication as the learned Judge has not at all considered the material on record and has drawn irrelevant inferences whilst coming to the conclusion that the Respondents do not have any supervision over the work of such casual labourer. Considering that the dispute is with regard to the work carried out by the Respondents in the year 1982 to 1987 as the records suggests, that the Appellants have not taken any concrete steps to controvert the evidence of the Respondents before the ESI Court, I find that the question of making a remand at this stage would not meet the ends of justice. Hence, the said request of the learned Counsel appearing for the Appellant cannot be accepted. The substantial question of law is answered accordingly. 9. There is no merit in the above Appeal, which stands accordingly rejected.
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