The Madras High Court on the other hand held that the language of Section 77(1-A)(b) is very clear and it did not provide for any period of limitation for raising the demand or making the assessment. This is in the nature of a best-judgment assessment as is known in taxing statutes. Section 44 does not provide for any limitation and, originally, it did not prescribe any mode of recovery. 5. 38. 746: (2008) 6 Kant LJ 266: (2008) 1 AIR Kant R 544: (2008) 119 FLR 1003: 2008 Cri.L.J. 254-55, para 29). Basic question before the two High Courts was as follows: Proviso to Section 77(1-A)(b) of the Employees' State Insurance Act, 1948 (in short “the Act”) provided limitation of 5 years for claiming contribution and restricts the Corporation's right from recovering the arrears of contribution as arrears of land revenue under Section 45-B in pursuance of an order under Section 45-A of the Act. A Director can not be prosecuted unless the company has not been impleaded as accused. The Supreme Court in a Suo –Moto Writ Petition ( Civil) No. Rule 37(e) applies to the failure to preserve ESI. 13. (ESI Corp. v. Ramanuia Match Industries), Tests of employment of 20 persons in any establishment are; (i) employees employed in the regular course of business of the establishment will alone be considered, (ii) any worker engaged temporarily on a job unconnected to the regular work of the estt. It cannot be said that an efficacious remedy is available. P.F. The relevant Section is 68, which reads as follows: 19. However, in the proviso, a power has been reserved by which the court can waive or reduce the amount of deposit. LATEST IMPORTANT JUDGMENTS Madras HC in a case has directed to refund the amount recovered before the expiry of limitation period for filing of the appeal before the EPFAT. Since this procedure was found to be impracticable and delayed process involved, a special provision was contemplated whereunder adjudication is to be made by the Corporation itself. Walayar Rape-Death Cases : Kerala High Court Sets Aside Trial Court Judgment Acquitting Accused; Orders Re-Trial 6 Jan 2021 5:15 AM GMT Breaking: One Year LL.M. Before arresting a defaulter, he must be given a hearing & may be arrested only if he neglects to pay dues. It is not so done when guilty man is given an opportunity to continue his depredations owing to a technical slip “. 26. 15. It is critical to locate the assets early rather than after a final judgement has been rendered. EPFO and ESIC HAVE REQUESTED ALL THE Employers to not to cut Salaries of their employees who are not able to work due to diseases or social distances beside not to resort to layoff of their employees as per call given by the Honble P.M. EPFO to ensure credit of Pension to EPS Pensioners BY 30TH March 2020. Determination of money based on inspector’s report – not valid. Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience.Free for one month and pay only if you like it. In the matter of ESI, Employer has the option either to file appeal under Section 45 AA of the ESI Act against the orders of ESI Authorities passed Under Section 45 A or to file petition / application directly before the Employees Insurance Court under Section 75 of the Act. In addition, ESI alleges that Prime Aid failed to collect required copayments. The said Chapter does not impose any fetter or limitation for the Corporation to recover the amounts by coercive process. ESI asserts that each untimely reversal is a breach of the agreement. The crucial question is, “Does the proviso to clause (b) of Section 77(1-A) fix the limit of time, in which the Corporation can make a claim from the employer, on the basis of the orders passed under Section 45?”. 24/12/2020: 235/2020: 10: Admission Notice for Academic year 2020-21 (UG) Admission Notice for Academic year 2020-21 (UG) size:(1.59 MB) . Similarly, no limitation is provided in Chapter VII. Writ appeals filed before the High Court did not bring any result. change. Delhi High Court has held that precondition of deposit of damages amount while filing appeal in EPFAT is not covered U/s 7 – O of the Act. The judgment of the Division Bench affirming that of the learned Single Judge is the subject-matter of challenge in some of the appeals. Delivered: This judgment was handed down electronically by circulation to the parties��� representatives by email, publication on the Supreme Court of Appeal website and release to SAAFLII. The date and time for hand-down is deemed to be 15h00 on 9 September 2020. Employees' State Insurance Corporation v. F. Fibre Bangalore (P) Ltd.. Municipal Corpn. When employer sustained losses, the default of PF dues is not intentional. Cases Reported in (2014) 9 SCC Part 3 M anohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516 R enikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445 ; R e nikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 456 ; S t ate of Karnataka v. Associated Management of English Medium Primary & Secondary Schools, (2014) 9 U nion of India v. Nirala Yadav, (2014) 9 SCC 457 Get 1 point on providing a valid sentiment to this The writ petitions were dismissed by the learned Single Judge. On the other hand, Section 75 in Chapter VI relates to the commencement of proceedings before the ESI Court. Sections 45-A and 45-B. and pay only if you like it. 15000 P.M. Secretary M.O.L has written to Secretary M.O. Section 45-B provides that the contribution payable under the Act may be recovered as arrears of land revenue. Assailing those orders, some of the employers moved the Employees' State Insurance Court (in short “the ESI Court”) in the State of Kerala. EPF authority may ask the employer for installation of CCTV cameras for ascertaining number of workmen employed. Section 45-A is a part of Chapter IV. Appeal filled in EPFAT against show cause notice for recovery is not tenable. Co. Ltd. v. ESI Corpn. In such cases also contribution is payable on the amount paid by the Employer if the services are rendered within the premises. Chapter V contains Sections 46 to 73. 22. Labour Court & ors. In such a situation the employer would be left defenceless. 17. There is no limitation prescribed in the language of Section 68. Sub-section (2-B) was added by act 29 of 1989. Since factual disputes were involved regarding the actual number of employees, the writ petitions were not maintainable and the High Court has rightly clarified the position in law though it could have thrown out the writ petitions on the ground that alternative forum of redressal was available. Conveyance Allowance held to be not part of Wages under ESI Act – Madras High Court in ESI V. Cosmopolitan Club Chennai. Citation. 16. Major Penalty can not be imposed without enquiry – Allahabad H.C. in UP Co-op. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77(1-A)(b). Therefore, the proviso to clause (b) of Section 77(1-A) of the Act, fixing the period of five years for the claim made by the Corporation, will apply only in respect of claim made by the Corporation before the ESI Court and to no other proceedings. First Am. By reason of incorporation of Section 45-A with effect from 17-6-1967, it became possible for the Corporation to have determination of the question, binding on the principal employer, without resorting to the ESI Court. 25. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. The Laws Provide the information about Acts,Judgements,Rules,Law News Etc in a Single Portal. Williams, Leininger & Cosby, P.A. A non-speaking order of EPF Tribunal will be unsustainable. The Kerala High Court has held that the only discrepancy in monthly return is no ground for cancellation of exemption of an exempted establishment. EPFO may bring amendment so that workers can draw upto 75% non refundable advance or three months wages in advance whichever is less. In clause (a) of the Explanation, provision for the fixation of the date on which the cause of action for the claimant or his dependants arises has been fixed. EPF authority to prove the date of delivery of the order to the establishment. Counterclaim at ¶ 95. Sections 45-A and 45-B in Chapter IV were introduced by act 44 of 1966 with effect from 17-6-1967, in order to curb the default by the employers and to provide for an efficient method of recovery. 9. On ESI Matters. The proviso to sub-section (1-A)(b) of Section 77 of the Act cannot independently give any meaning without reference to the main provision, namely, Section 77 of the Act. Section 45-A of the Act contemplates a summary method to determine contribution in case of deliberate default on the part of the employer. (Rajgopala Naidi v. State Transport Appellate Authority. When the Act itself does not provide for any limitation on the Corporation's right to claim, the employers cannot rely upon Regulations 32 to 66, dealing with the period for maintenance of registers, to imply any limitation. Arijit Pasayat, J.— All these appeals involve identical questions and are, therefore, taken up together for disposal. Get 2 points on providing a valid reason for the above Thus, the legislature, in its wisdom, did not want to impose any fetter or limitation on the Corporation to recover the amounts by coercive process under Chapter V. 20. Employee of the shops situated inside the Hotel are not coverable. The question is whether there is any connecting link between Chapter IV and Chapter VI. Hon’ble Delhi High Court has observed that the online process should have simpler step for citizens rather than complicating them and no one should suffer on account of non-transfer of amount from one office of EPFO to the other one as a result of bifurcation of offices, being internal administration / management of EPFO. In view of the addition of the words in Section 68 “or under Sections 45-C to 45-I” to sub-section (2) of Section 68 by act 29 of 1989 with effect from 20-10-1989, the said claim could be recovered under Sections 45-C to 45-I of the Act. EPF authority can draw adverse inference if records are not produced before him. Some of the appeals are by the Employees' State Insurance Corporation (in short “the Corporation”) while some others are by the employers. 4. Similarly, the relevant section in Chapter VI, which deals with the resolving of disputes between the employer and the Corporation by the ESI Court, is section 77(1-a). In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77(1-A)(b). 8. 36. Section 77(1-A)(b) proviso is contained in Chapter VI. Please log in or sign up for a free trial to access this feature. Such an order can be passed only after giving reasonable opportunity of hearing to the employer or the person in charge of the factory or establishment. By Amendment Act 29 of 1989, Sections 45-C to 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law or the ESI Court. 31. * Enter a valid Journal (must Ass per Notice dated 16-03-2020, ESIC has extended the date of deposition of ESI contributions for the month of FEBRUARY and MARCH 2020 upto 15 th April and 15 th May2020 respectively instead of 15th March and 15th April2020 respectively. 12. ... completed in accordance with the contents of these two works using the professional judgement of authorized physicians or nurses and staff directed and supervised by them. Objectives: To compare inter and intra-observer agreement of the Manchester Triage System (MTS) and the Emergency Severity Index (ESI). The full details may be browsed from the High Court Website. 10. (RPFC v. Shree Krishna Metal Mfg. (Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments). 1971 2 SCC 860 It was inter alia observed as follows: (SCC p. 870, para 14). Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. Click here to preview the 'Legal Briefs' facility Click here to preview the 'Latest Judgments' facility Click here to activate your 'Latest Judgments' facility The date and time for hand-down is deemed to be 14h00 on 30 October 2020. If the period of limitation, prescribed under proviso (b) of Section 77(1-A) is read into the provisions of section 45-a, it would defeat the very purpose of enacting Sections 45-A and 45-B. No employer should suffer as a result of non-allotment of Code Number. The non-payment of contribution is a continuing cause, which is clear from the fact that the employer is enjoined to pay the interest under section 39(5)(a), which was introduced by act 29 of 1989, until the date of its actual payment. Lorem Ipsum has been the industry’s, Federal Court Eschews Jurisdiction Over State Enforcement Proceeding: Enforcement Section of the Massachusetts Secu… twitter.com/i/web/status/10376…, Coalition of Consumer Protection Advocates Again Urges SEC’s Clayton: No IPO Arbitration or Class Action Waivers www.sacarbitration.com/blog/co…, “There is something to be said for the view that justice should not only be seen to be done to the individual but also that it should be done to the community as a whole. This view was also held by Punjab and Haryana High Court vide its judgement dated 29.3.84 in the case of Modern Equipment Vs. ESIC in Civil Appeal No.3218 of 1989. The mode of recovery is provided under Sections 45-C to 45-I. 24. 33. When units are in different parts of India – Equal pay for equal work “will not apply – Jharkhand High Court in Workmen of Hyderabad Asbestos Cement Products Ltd. V. management of Hyderabad Industries Ltd. An employee not respecting his superiors can not be retained. They are as follows: 6. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. To extend their cooperation by not terminating their employees. Tribunal allows arrears to be paid in installments. The next set of relevant provisions quoted above is contained in Chapter VI. Employer can seek refund of excess deposited amount over & above the 75% of the prescribed pre-deposit by making an application before the Tribunal. It relates to the adjudication of disputes and claims. Therefore, if the provisions of section 45-a are read with Section 45-B of the Act, then, the determination made by the Corporation is concerned. A client will appreciate knowing that every effort is being made to ensure that all assets are fully disclosed and that they receive the proper settlement as ordered by the court. 23. Section 77 of the Act relates to commencement of proceedings before the ESI Court. V. APFC. In case of any confusion, feel free to reach out to us.Leave your message here. If the lost ESI prejudices the other party, curative measures proportional to the conduct are appropriate. C.S Rajan, K.K Venugopal and Vijay Narayana, Senior Advocates (V.J Francis, Anupam Mishra, C.M Jaykumar, Jenis, K.V Viswanathan, B. Raghunath, Ms Uttara Babbar, Balaji, Ms Mahalakshmi Parani, S.V Shyamuganathan, Mahalakshmi Balaji & Co. and S. Hariharan, Advocates, with them) for the Appellant; Pratap Venugopal, Ms Surekha Raman, Ms Ruma Bose, E. Venu Kumar (for K.J John & Co.), Biswanath Agrawalla, Rajiv Mehta, E.M.S Anam, G. Prakash, B.V Deepak, Dilip Pillai (for T.T.K Deepak & Co.), C.N Sreekumar, Ms Deepti and M.T George, Advocates, for the Respondent. As such, there is no hurdle for recovery of the amount determined under Section 45-B of the Act, by invoking the mode of recovery, as contemplated in Sections 45-C to 45-I. 10. It was submitted that any other view would make the provisions confiscatory; it would also lead to an absurd result that the Corporation can theoretically make a claim even after a decade, thereby causing prejudice to the employers. It is clear, therefore, that the right of the Corporation to recover these amounts by coercive process is not restricted by any limitation nor could the Government by recourse to the rule-making power prescribe a period in the teeth of Section 68. 21. Hariharan). The legislature has provided for a special remedy to deal with special cases. (Cemindia Co. Ltd. v. Rachubhai N. Section 45-A provides that in a case where a factory or establishment fails to furnish the returns or maintain or furnish the registers, etc., the Corporation can determine the amount of contributions payable in respect of the employees of that factory or establishment. If the employer fails to challenge the said determination under Section 75 of the Act before the Court, then the determination under Section 45-A becomes final against the employer as well. The appeals are accordingly disposed of but without any order as to costs. Lorem Ipsum is simply dummy text of the printing and typesetting industry. In other cases, other than cases where determination of the amount of contributions under Section 45-A is made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the ESI Court, before enforcing recovery. to first avail statutory remedy of filing appeal in the EPF AT instead of filing writ petition – Jharkhand High Court in Uranium Corporation of India V. RPFC Jamshedpur Similar views also by Madras H.C. in Gudalur Taluk Muslim Orphange Committee V. RPFC & ors. With reference to the proviso to Section 77(1-A)(b) it was held that a period of limitation has to be read into the provision; otherwise the employer would be greatly handicapped and would not be in a position to establish its case as regards the number of employees working under it. The Latest Supreme Court Judgments for January 2021 with complete details of case numbers, parties name, judge names and headnotes But, on the other hand, if the records are produced and if there is cooperation, the assessment has to be made and it can be used as a sufficient proof of the claim of the Corporation under Section 75 before the ESI Court. Section 71 provides that the benefits under the Act are payable to the employee up to the date of his death. A remunerated partner is not employee of the the firm. ��� In a recent judgment, the Madras High Court has held that contractors having separate & independent Code Numbers from EPFO are to be treated as independent employers & Provident Fund dues of such contractors cannot be recovered from Principal Employers. Rules for regular staff do not apply to contractual employees – Supreme Court in Gridco Ltd. V. Sri Sadanand Doloi & ors. in r/o unregistered contractors. This means, even if the employees were those of the contractors, it is the principal employer who has to pay. It was pointed out that the employers in the State of Tamil Nadu instead of moving the ESI Court directly filed writ petitions without availing the alternative remedy available. Section 38 imposes the obligation on the employer to pay contribution and, upon his failure, he is liable to pay interest on a recurring basis until it is paid. That being so it was submitted that the view expressed by the Kerala High Court should be accepted and not that of the Madras High Court. Coolies hired from market for doing sporadic nature of work of loading and unloading –are not even casual employee. Section 45-C entitles the authorised officer to issue a certificate, specifying the amount of arrears. Rejection of review by APFO without any reason is not legal. contains alphabet). Whether a person is employee under the EPF Act or not –shall be examined by all the courts and authorities under the Act. Under section 45-a(1), the Corporation, by an order, can determine the amount of contributions payable in respect of the employees where the employer prevents the Corporation from exercising its functions or discharging its duties under Section 45, on the basis of the material available to it, after giving reasonable opportunity. The recovery officer, on receipt of such certificate, is entitled to attach the property, arrest the employer and appoint a receiver for the management of the movable and immovable properties of the factory or establishment. Aiyar, 3rd Edn., 2005 reasonable time means as follows: 19 amounts by coercive process Vs. Rakesh &! V. West Coast Petroleum agency Civil ) no this Act, 1977 ], Civil appeals no the. Allahabad H.C. in up judgement on esi cases as per orders of recovery taxing statutes mandates. 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