(i) APPLICABILITY OF THE ACT
• Factory - Hotel-Kitchen manufacturing process - Whether hotel falls within the purview of definition of factory?
Yes.
G.L. Hotels Ltd. v. T.E. Sarin, (1993) 4 SCC 363: 1994 SCC (L&S) 3: 1993 LLR 945 (SC).
• Applicability of provisions of the Act - Non-applicability of the provisions of the Act to an establishment in the cities of Calcutta and Bombay - Whether it can be contended that provisions of the Act cannot be made applicable to similar establishment in Madras? No. Such a contention has no legal foundation.
Employees' State Insurance Corporation v. Oxford University Press, 1993 LLR 450 (Mad HC).
• A club having kitchen will be treated as a factory and its employees will be covered under ESI Act.
Cricket Club of India v. Employees' State Insurance Corporation, (1994) 69 FLR 19: (1994) 1 LLN 644: 1994 LLR 333: 1993-1 LLJ 642 (Bom HC).
• A company providing air-cooling facilities to the tenants of a building by engaging more than 10 employees will attract applicability of ESI Act.
Employees' State Insurance Corporation v. Tiecicon Pvt. Ltd, Bombay, (1996) 1 LL) 504: 1995 LLR 768 (Bom HC).
• ESI Act will be applicable to a co-operative society having more than 20 employees.
Sindhi Sehiti M.P. Transport Coop. Society Ltd., Bhopal v. Regional Director, Employees' State Insurance Corporation, Indore, 1997 LLR 543 (MP HC).
• A godown away from the factory will come within the expression 'premises of the factory' for applicability and coverage under the ESI Act. .
Narashimha Mills Ltd., Coimbatore v. Regional Director, Employees' State Insurance Corporation, Madras, 2000 LLR 784 (Mad HC).
• A notification issued by a State Government under the ESI Act will extend to all branches of the said establishment situated even outside the State.
Transport Corporation of India v. Employees' State Insurance Corporation, 2000 LIC 203: AIR 2000 SC 238: (2000) 1 SCC 332: (2000) 1 LLJ 1: 2000 LLR 113 (SC).
• Three concerns will be clubbed together for ESI purposes when there is geographical unity and functional integrity.
Madona Textiles v. Employees' State Insurance Corporation. (2000) 1 SCC 332: 2000 SCC (L&S) 121: AIR 2000 SC 238: 2000 LIC 203: (2000) 1 LLN 70: 2000 LLR 1036 (Ker HC).
• Use of LPG for manufacture of sweets will be treated as power for applicability of ESI Act.
Employees' State Insurance Corporation, Bangalore v. Bhagatram & Sons, Bangalore, (2001) 4 Kant LJ 384: (2001) 11 LLJ 973: (2001) 111 CLR 189: 2001 LLR 1131 (Karn HC).
• ESI Act will apply on all branches of an establishment when total number exceeds 20.
Duvent Fans (Pvt.) Ltd. v. Regional Director, Employees' State Insurance Corporation, Bangalore, (2001) 3 LLN 1084: (2001) 11 LLJ 581: 2001 LLR 783 (Karn HC).
• Different sales and service outlets will be clubbed for applicability of ESI Act even when none employed 10 or more employees.
Southern Agencies v. Andhra Pradesh Employees' State Insurance Corporation, (2001) 1 LLN 633: (2001) 1 sec 411: AIR 2000 SC 3718: 2000 LIC 387: 2001 LLR 191 (SC).
• ESI Act will be applicable upon the employees working in sales depots and offices of Bata India since its factory is covered the Act.
Bata India Ltd., Calcutta v. Employees' State Insurance Corporation, 2003 LLR 1018: 2003-111 LLN 1069: 2003-III LLJ 716 (Cal HC).
• When there was no employer and employee relation between the steamer agent association and steamer watchman, the full bench of the High Court has set aside the order of the Employees' Insurance Court holding that the association was liable to get itself covered and registered under the ESI Act.
Eachin Steamer Agents Association v. Employees' State Insurance Corporation, 2004 (I) LL] 617 (Ker HC).
• A hotel, engaging more than 10 workers during the relevant period, will be covered under the ESI Act and as such the High Court has upheld the findings of the Employees' Insurance Court.
Udipi Sri Anand Bhavan v. Regional Director, Employees' State Insurance Corporation, 2004 (I) LLJ 647 (AP HC).
• Storing milk in the cold storage, collected by a cooperative society, will be the 'manufacturing process' for coverage under the ESI Act.
Vellipalaym Co-operative Milk Supply Society v. Regional Director, Employees' State Insurance Corporation, Madras, (2004) 2 CTC 494: (2004) 3 Mah LJ 315: (2004) II LLJ 885: 2004 LLR 887 (Mad HC).
• When a person provided with some space was running the canteen not under the Factories Act, there will be no liability for making payment of ESI contributions for such person(s).
Employees' State Insurance Corporation v. Chirala Cooperative Spinning Mills Ltd., 2005 LLR 591 (AP HC).
• A pathological tests carried on by a laboratory, attached to a hospital, would not come within the purview of 'manufacturing process' to attract its coverage under ESI Act.
Employees' State Insurance Corporation v. Duncan Gleneagles Hospital Ltd., (2005) 3 CHN 116: 2005 LLR (SN) 1071 (Cal HC).
• When ESI Act is not applicable to the Head Office, it could not be made applicable to branch offices.
H. Fillunger & Company Pvt. Ltd. Pune v. Employees' State Insurance Corporation, Pune, 2005 LLR 1165 (Bom HC).
• A petrol pump will be a factory to be covered under the Employees' State Insurance Act if ten or more persons are employed.
Choisons v. Employees' State Insurance Corporation, 2005 LLR 1119 (Ker HC).
• The coverage of a cinema theatre under the ESI Act was not justified when there was no evidence that 20 or more were employed therein.
Sitamahalakshmi Enterprises v. Regional Director, Employees State Insurance Corporation, Hyderabad, 2006 LLR 304 (AP HC).
• A restaurant, employing over 10 employees and using LPG cylinders, will be covered under the ESI Act.
Employees' State Insurance Corporation v. M/s. Volga Restaurant, 2006 LLR 476 (MP HC).
• ESI Act will not be applicable upon canteen worker of recreation club of employees.
Regional Director, Employees' State Insurance Corporation, Madras v. Godrej Soaps (Pvt.) Ltd. Madras, 2006 LLR 1191 (Mad HC).
• A hotel, with 11 employees, will be covered under the ESI Act when a fridge and water pump is used with power.
Hotel Chandra Mahal v. The Regional Director, ESI Corporation, 2007 LLR 877 (Raj HC).
• In the absence of functional integrality, two hotels cannot be clubbed for coverage under ESI Act.
Deputy Regional Director, Employees State Insurance Corporation, Bangalore v. Hotel Vijay, Mysore, 2007 LLR 895 (SN) (Karn HC).
• Non deposit of ESI contributions since Code Number was not allotted will not be justified.
Employees' State Insurance Corporation v. M/s. Jaiswal Rolling Mill, 2008 LLR 606 (Cal HC).
• ESI Act when extended by the State Government can be extended upon educational institutions even having minority status.
Maharishi Shiksha Sansthan v. State of U.P., 2009 LLR 98 (All HC).
(ii) COVERAGE OF EMPLOYEES ENGAGED THROUGH A CONTRACTOR
• Employees engaged by the contractor in an establishment are liable to be covered under ESI Act.
Employees' State Insurance Corporation v. Vijayamohini Mills, (1990) II LLJ 464: 1990 LLR 305: 1990 (1) LLN 902 (Ker HC).
• The employees engaged through a contractor for expansion of a factory covered under ESI Act will be liable to be covered under ESI Act and the principal employer will be responsible for payment of ESI's contributions.
Employees' State Insurance Corporation v. Vijayamohini Mills, (1990) II LL) 464: 1990 LLR 305: 1990 (1) LLN 902 (Ker HC).
• The employees engaged through the contractor for expansion of factory's building will be liable to be covered under ESI Act.
Regional Director, Employees' State Insurance Corporation v. Vijaymohini Mills, (1990) II LLJ 464: 1991 LLR 109 (Ker HC).
• The principal employer will be liable to pay the ESI's contributions of the employees employed through contractor.
Standard Fabricators (India) (Pvt.) Ltd. v. Regional Director, Employees' State Insurance Corporation, Bombay, (1994) 69 FLR 785: 1994 LLR 869 (Bom HC).
• Employer engaging 18 regular employees in addition to seven casuals through catering contractors to serve food - It has been held that such casuals would fall within definition of 'employees' and contributions will be made in respect of such employees also.
Udipi Hotel Sudha v. Employees' State Insurance Corporation, (1997) II LLJ 219: 1998 LLR55: 1997 (3) LLN 559 (Mad HC).
• Workers employed by contractor for the work of the principal employer connected with the business of the factory are liable to be included for the purpose of contribution under the Act, even if such workers were casual.
Siddeshwar and Company v. Employees' State Insurance Corporation, 1998 LIC 157: (1997) 3 LLN 589: (1997) 77 FLR 558: 1997 (3) LLN 589 (Kar HC).
• Employees engaged through the contractor to do ancillary job for the principal employer will be covered under the ESI Act.
Regional Director, Employees' State Insurance Corporation v. Saraspur Mills Ltd., 1998 LLR 686 (Guj HC).
• Primary liability to pay ESI's contribution is of the principal employer and not the contractor.
Employees' State Insurance Corporation, Bangalore v. Dharwad Cooperation Milk Producers Societies Union Ltd., Dharwad, 2000 LLR 348 (Karn HC).
• Loaders and unloaders engaged by the employer will be covered by ESI Act.
Soft Beverage (Pvt.) Ltd. v. Employees' State Insurance Corporation, (2001) 90 FLR 370: (2001) II CLR 826: (2001) 3 LLN 264: 2001 LLR 916 (Mad HC) (DB).
• A Cinema/Theatre will be covered under ESI Act when there are 20 employees inclusive of contractor's employees.
Saraswath Films v. Regional Director, Employees' State Insurance Corporation, Triuchi, (2002) 3 LLJ 169: 2002 LLR 930 (SC).
• A Club may not be a 'shop', but for the coverage of ESI it would certainly be so.
Bangalore Turf Club Ltd, v. Regional Director, Employees' State Insurance Corporation, (2002) 95 FLR 1149: (2003) 1 LLN 272: (2003) I LLJ 73: 2003 LLR 178: 2003-1 LLJ 73 (Karn HC).
• Merely because the loaders and unloaders have not been able to get the benefit, it will not be a ground for non-coverage under ESI Act.
E.K. Haj Mohammadmeera Sahib and Sons v. Regional Director, Employees' State Insurance Corporation, (2003) 102 FJR 288: (2001) 1 MLJ 497: (2003) I CLR 741: (2003) 2 LLN 31: 2003 LLR 308 (Mad HC).
• The establishment FACT, being covered under the ESI Act, will be liable to pay the contributions of the employees engaged through the contractor who were working at Warehousing Corporation at the instance of and for the FACT.
Employees' State Insurance Corporation v. Fertilizers & Chemicals Travancore Ltd., 2003 LLR 846: 2003 (98) FLR 553 (Ker HC).
• The Officers of the ESI Corporation having admitted in the reports that the respondent entrusted the work to a paid contractor and as such, they could have inferred that the respondent firm was the principal employer and it entrusted the job of binding to various binders on piece rate basis but when there was no evidence to establish the fact that the workers employed by the binders worked in the premises of the principal employer, their coverage under the ESI Act was not justified.
Employees' State Insurance Corporation v. Prakash Paper Mart, 2003 LLR 1126: 2003 (1II) LLJ 1117 (AP HC).
• Coverage of an establishment engaged in printing and dying of clothes under the ESI Act has been rightly made and upheld by EI Court when more than 10 employees were found working with the aid of power used for lifting the water from the well to over head tank which had direct nexus with the manufacturing activities of the establishment
Ganesh Textiles v. Regional Director, Employees' State Insurance Corporation, Jaipur, (2004) 100 FLR 398: (2004) II LLJ 136: 2004 LLR 213 (Raj HC).
• An establishment has been rightly covered under the ESI when there were more than 20 employees in the Head Office and the construction sites,
Gauri Mohan Pohoomul v. Regional Director, Employees' State Insurance Corporation, (2004) 4 Mah LJ 1027: 2005 LLR 52 (Bom HC).
• Merely because a 'factory' is covered under the ESI Act, it does not mean that every contractor's employees would necessarily fall within the definition of 'employee'.
Abu Marble Mining Pvt. Ltd. v. Regional Directors, Employees' State Insurance Corporation, Mumbai, 2005 LLR 184 (Bom HC).
• When the principal employer was not supervising the workers of the contractor, no liability for ESI contributions can be fastened.
Abu Marble Mining Pvt. Ltd. v. Regional Directors, Employees' State Insurance Corporation, Mumbai, 2005 LLR 184 (Bom HC).
• The principles for determination of functional integrality for coverage and clubbing of more than one establishment under the ESI Act are different than those under civil or taxation laws.
Regional Director, EBI Corporation, Madras v. Aruna Stores, Proprietor,J Shantha, 2005 LLR 500 (Mad HC).
• A Halwai shop, manufacturing sweet-meat, would attract provisions of the ESI Act if 20 or more persons are employed without use of electric power.
Kanwarji Bhagirathmal (M/s) v. The Employees' State Insurance Corporation, 2005 LLR 537 (Del HC).
• Assigning washing of empty bottles to one contractor and the packing to another by the principal employer, the whole amount will be treated as wages for ESI contributions.
Malum Meakin Ltd. v. Employees' State Insurance Corporation, 2006 LLR 195 (HP HC).
• An establishment, covered under the ESI Act, will be under obligation to pay contributions on wages paid to employees of contractor.
Bajaj Tampo Ltd. Akurdi, Pune v. Employees' State Insurance Corporation, Pune, 2006 LLR 1007 (SN) (Bom HC).
• An employer will be liable for ESI contribution on payment made to contractor for constructing new building.
Bajaj Tempo Ltd. v. Employees' State Insurance Corporation, 2006 LLR 982 (Bom HC).
• An establishment will be liable to pay ESI contributions pertaining to workers of the contractor.
Employees' Stale Insurance Corporation v. M/s. New Taj Mahal Cafe (Pvt.! Ltd., 2007 LLR (SN) 320 (Kam HC)
• Security guards through Agency will be included for coverage under ESI Act.
Deputy Director, Employees State Insurance Corporation, Bangalore v. Proprietor, M/s. Summer Palace Restaurant, Ullal, Mangalore, 2007 LLR 896 (SN) (Karn HC).
• For cutting and polishing of rubber item by the contractor's employee, no liability is of principal employer for ESI contributions.
National India Rubber Works Ltd" through its Factory Manager, Katni v. Employees' State Insurance Corporation, through its Regional Director, Indore, 2007 LLR 993 (MP HC).
• Assigned work to outside parties for supply of material will not attract ESI contributions.
E.S.I Corporation (Rep. by its Regional Director) v. Bethall Engineering Company (rep. by Mrs. S.V. Umayal (Full Bench), 2007 LLR 1054 (Mad HC).
• Co•operative societies rendering domestic services to its members like operating lifts, cleaning, etc. are not coverable by ESI Act.
Regional Director, Employees' State Insurance Corporation v. TuIsiani Chambers Premises Cooperative Society, 2008 LLR 362 (Bom HC).
• Coverage under ESI by adding two persons, neither working directly no through the contractor, is to be set aside.
Employees State Insurance Corporation v. Baby Francis, 2008 LLR 462 (Ker HC).
• Two Firms functioning separately having own sales tax number and electricity connections not to be clubbed for coverage under ESI Act.
Employees' State Insurance Corporation, Kanpur v. M/s. Tops Food Products, 2008 LLR 42 (Uttr HC).
• When father allows his son to use the premises for different type of business, their establishments cannot be clubbed for coverage under ESI Act.
ESIC v. Ved Parkash Gupta, 2008 LLR 881 (Del HC).
• Employees of two establishments can be clubbed for coverage under ESI when there is functional integrality.
M/s Sumangali v. Regional Director, ESI Corporation, 2008 LLR 941 (SC).
(iii) COVERAGE OF ESTABLISHMENTS UNDER THE ACT
• A branch of covered establishment will be liable to be covered under the ESI Act even if the numbers of employees are less than twenty.
Employees' State Insurance Corporation, Gauhati v, Management of Rajshri Pictures (Pvt.) Ltd., Rehabari, Gauhati, (1991) 1 LLJ 109: 1990 LLR 195 (Gau HC).
• In case the inspection report of an ESI Inspector does not contain the specific details of the employees as found working at the time of his inspection, the coverage of establishment on the basis of report will not be justified.
Employees' State Insurance Corporation v. Karnataka Asbestos Cement Products, 1991 LLR 775 (Kar HC).
• Process of dry cleaning - Would fall within the definition of 'manufacturing process' - Such an establishment where dry cleaning is carried on - It would be covered by provisions of the Act.
Employees' State Insurance Corporation v. Amar Drycleaners, (1992) 1 Punj LR 583: 1992 LLR 655: 1992 (65) FLR 126 (P&H HC).
• Factory - Test for determination of 'manufacturing process' meaning of - In respect of a club registered under the Societies Registration Act - Having a kitchen - Preparing food items - Rendering catering service to its members - Whether an establishment! factory within the meaning of section 2(k) of the Factories Act?
Yes.
Yes.
Employees' State Insurance Corporation v. Jalandhar Gymkhana Club, (1993) 1 CLR 220: 1992 LLR 733: 1992 (65) FLR 948 (P&H HC).
• ESI Act applies to a club since there is no distinction between a hotel and a club.
Cricket Club of India Ltd., Bombay v. Employees' State Insurance Corporation, (1992) 1 Mah LJ 483: 1992 LLR 729: 1992 (65) FLR 941 (Bom HC).
• Applicability of ESI Act - 40 Employees engaged in the commercial establishment of Delhi selling the product of principal factory at jamshedpur are not liable to be covered under the ESI Act.
Indian Cables Company Ltd, v, Union of India, 1992 LLR 573 (Del HC).
• Covering of an establishment under ESI Act employing 16 tailors will not be justified,
Employees' State Insurance Corporation v. Shri Tariq Butt, 1994 LLR 331:1994-II LLN 141 (Del HC).
• Mere control of employer over employees will be sufficient to cover such employees under the Employees' State Insurance Act.
Kirloskar Brothers Ltd. v. Employees' State Insurance Corporation, AIR 1996 SC 3261: 1996 LIC 1718, (1996) 88 FJR 602, (1996) I LLJ 1156, 1996 LLR 436 (SC),
• Municipal Corporation employees are not to be covered by the Act.
Managing Director, Orissa Textile Mills Ltd. v. Mandardlulr Naik, 1996 LLR 215 (SC).
• Merely that the employees will lose certain benefits on their coverage under ESI Act will not justify to exclude an establishment from coverage under ESI Act.
M. Gopikrishnan v, Employees' State Insurance Corporation, (1997) 2 MLJ 205, 1997 (2) LLN 924, 1997-II LLN 924 (Mad HC),
• Members of a co-operative society preparing finished products on profit sharing basis will not be covered by ESI Act.
Employees' State Insurance Corporation v. Vattiyoorkavu H. W. Cooperative Society, (1997) 1 Ker LT 342, 1997 LLR 347,1997-1 CLR 689 (Ker HC),
• ESI Act will apply to a 'shop' or an establishment only when there are 20 eligible employees,
Employees' State Insurance Corporation v, M/s. M.M. Suri & Associates (Pvt.) Ltd., (1998) 8 SCC 111, AIR 1999 SC 803,1998 LLR 1105, 1998 (80) FLR 839 (SC),
• A manager will be counted as an employee for coverage under ESI Act.
Employees' State Insurance Corporation v. M/s. Comer House Fun Food Cafe, 1998 LLR 797: 1998 (80) FLR 768 (Karn HC),
• A co-operative society of Government servants engaged in giving loans to its members will be a 'shop' to be covered by ESI Act
Madras Government Servants Co-operative Society Ltd. v. Employees' State Insurance Corporation, (1996) 2 MLJ 447: (1996) 2 LLN 1216, 1998 LLR 178 (Mad HC),
• ESI Act will be applicable when the total strength of employees exceeds 20 in different shops which are under the control of the head office.
Southern Agencies, Rajamundry v. Andhra Pradesh Employees' State Insurance Corporation, Hyderabad, 1998 LLR 900 (AP HC),
• A petrol pump and service station with the aid of power employing less than 20 workers will be covered under ESI Act.
Kanchamba Service Station v. The Union of India, 1999 LLR 450 (Karn HC).
• Mere enlisting of names of the employees by the ESI inspector will not be sufficient for coverage under the ESI Act.
Employees' State Insurance Corporation v. Super Tailors, 2000 LIC 631, 1999 LLR 1116,1999 (83) FLR 940 (Karn HC),
• The employer and not the ESI Corporation has to prove that 20 persons were not employed with the establishment.
Employees' Stale Insurance Corporation v, Rasu Tools Ltd" 1999 LIC 3407: 2000 LLR 350 (AP HC),
• Coverage of an establishment ,under ESI for use of power for grinder will be justified since the grinder was being used with the aid of power for manufacturing pickles, Chattrag dhals etc.
Employees' State Insurance Corporation, Hyderabad v. M/s. Garden Cafe, Tikke, Nandyal, (2000) 86 FLR 96: 2000 LLR 526 (AP HC),
• Coverage under ESI Act will not be set aside when the employer fails to produce vouchers and wage registers.
Rainbow Industries v. Regional Director, Employees' State Insurance Corporation, (2001) 89 FLR 412: (2001) 1 LLN 1193: 2001 LLR 420 (Bom HC).
• Manufacturing process will include 'packing' for coverage under ESI Act.
Employees' State Insurance Corporation v, Dave Griha Udyog, 2000 LLR 1201 (MP HC).
• Bangalore Amateur Horse Riders' Institute will be covered under ESI Act.
Bangalore Amateur Institute v. Regional Director, Employees' State Insurance Corporation, (2001) II LLJ 746: 2001 LLR 862 (Karn HC).
• Equipment maintenance staff of a hospital will be covered under the ESI Act.
Christian Medical College v. Employees' State Insurance Corporation, (2001) 1 sec 256: 2001 SCC (L&S) 220: AIR 2001 SC 373: 2001 LTC 93: (2001) 1 LLN 762: 2001 LLR 60 (SC).
• Exclusion of coverage of an establishment by EI Court when prescribed number of workers were found working is erroneous.
Regional Director, Employees' State Insurance Corporation, Bangalore v. Malekopmath Metal Forms Put. Ltd., 2002 LLR 118 (Karn HC),
• ESI Act will not be applicable upon a Canteen being rnn by a Contractor since the Port Trust has been exempted from the Act.
Employees' State Insurance Corporation v. Cochin Port Workshop Canteen, 2003 LLR 371: 2003 (97) FLR 676 (Ker He).
• ESI Act will not be applicable upon a sub-station of power Company which is not a factory under the Factories Act and also the head office as well as the power generating plants are not covered under the ESI Act.
Bhakra Beas Management Board v. Employees' State Insurance Corporation, (2003) 2 LLN 537: (2003) II LLJ 637: 2003 LLR 450: 2003 (97) FLR 376 (Del HC).
• The term 'manufacturing process' is not restricted to an activity which may result into outcome of processed product or manufacturing any item hence a petrol pump will be covered under the ESI Act.
Qazi Noorul Hasan Hamid Hussain Petrol Pump v. Dy. Director, Employees' State Insurance Corporation, Kanpur, 2003 AJI LJ 1367: (2003) II LLJ341: 2003 LLR 476 (AJI HC).
• Coverage of a hotel under ESI Act, employing 2 to 3 persons only as stated by the ESI Inspector will not be legal since it cannot be termed as a 'factory' to be covered under the Act.
Moinoddin, son of Khodboddin v. State of Maharashtra, (2003) 98 FLR 634:.2003 LLR 741: 2003 (II) LLJ 1040: 2003 (II) LLN 479 (Bom HC).
• Storing of milk, as procured by the Society from its members, in cold storage will come within the purview of manufacturing process for the purpose of its coverage under the ESI Act.
Kumbakonam Milk Supply Coop. Society (rep. by its Secretary) v. Regional Director, Employees' State Insurance Corporation, Madras, 2003 LLR 844: 2003 (98) ER 1108 (Mad HC).
• Toddy shops run by the contractors in the State of Kerala were covered under the provisions of the Employees State Insurance Act.
K.R. Anitha v. Regional Director, Employees' State Insurance Corporation, (2003) 10 sec 303: AIR 2003 SC 3393, (2003) 3 LLJ 855, (2003) 3 KLT 813, 2003 LLR 1075, 2003 (99) FLR 341 (SC).
• A club will be covered under the ESI Act in view of its being an establishment.
Employees' State Insurance Corporation v. Hyderabad Race Club, (2004) 6 SCC 191, AIR 2004 SC 3972: (2004) 102 FLR 1036: (2004) 3 LLN 1226, (2004) 3 LLJ 547, 2004 LLR 769 (SC).
• Two units will be clubbed together for coverage under the ESI Act when there is inter-dependability between the two units.
Jamuna Stores v. Regional Director, Employees' State Insurance Corporation, 2004 LLR 1163 (AP HC).
• Five units of one family having functional integrality will be clubbed together for coverage under ESI Act.
Munshaw Industries v. Employees' State Insurance Corporation, 2005 LLR 299 (Bom HC).
• Clubbing of the restaurant, as owned by the lessee, will not be justified for coverage under the ESI Scheme because both are independent.
Vrindavan Hotels (Pvt.) Ltd. v. Employees' State Insurance Corporation, 2005 LLR 991 (Ker HC).
• Merely that two independent establishments in the same premises were owned by the father and the son these cannot be clubbed for ESI.
Regional Director, Employees' State Insurance Corporation v. Ram Kumar Suresh Kumar Timer Merchant, 2006 LLR 308 (MP HC).
• Use of LPG for preparing food in a restaurant will be treated as power for applicability of ESI Act.
Employees' State Insurance Corporation v. M/s. Volga Restaurant, 2006 LLR 476 (MP HC).
• A printing press, employing nine employees, cannot be covered under the ESI Act.
Lakshmii Press v. Regional Director, £.S.I. Corporation, 2008 LLR 469 (Cal HC).
• An establishment, employing only eight persons, will not be covered under the ESI Act.
Regional Director, E.S.I.C. v. Baby Francis, 2008 LLR 534 (Ker HC).
• Employees' Insurance Court erred in de-coverage of an establishment when the owner's father admitted employing more than 10 workers.
Employees' State Insurance Corporation v. Om Shiv Die and Leaf Printers, 2008 LLR 1044 (Del HC).
(iv) COVERAGE OF SHOPS UNDER THE ACT
• 'Shop' - Meaning of - Establishment carrying on business of clearing and forwarding by processing the documents at customs house falls within the purview of 'shop' for purpose of applicability of ESI Act.
Cochin Shipping Company v. Employees' State Insurance Corporation, (1992) 4 sec 245: AIR 1993 SC 252, 1992 SCC (L&S) 986: 1992 LLR 801: 1992 (65) FLR 676 (SC).
• Notification under ESI Act issued by the Appropriate Government - Extending the provision of the Act to 'shops' - Appellant carrying on business of undertaking electrical work contracts/job work at the factories or places belonging to the customers - Whether a shop is an establishment for purpose of the Notification? Yes, as held by the Supreme Court.
Reunion Engineering Company Pvt. Ltd. v. Employees' State Insurance Corporation, (1993) 1 LLJ 31: (1992) 2 LLN 265: 1992 LLR 609: 1992 (65) FLR 192 (Kar HC).
International Ore & Fertilizers (India) (Pvt.) Ltd. v. Employees' State Insurance Corporation, (1987) 4 SCC 203: AIR 1988 SC 79: (1987) 2 LLN 911: 1987 (71) FJR 360 (SC).
• 'Shop' coverage under the Act• - Oxford University Press - Sale of university publication in the premises of the press if a 'shop' and is covered under the provisions of the Act, held, where goods are sold or services rendered is a 'shop' for the purposes of notification No. 1088 issued under section 1(5) of the Act.
Employees' State Insurance Corporation v. Oxford University Press, 1993 LLR 450: 1993 (1) CLR 1035 (Mad HC).
• Premises of an advertising agency is a 'shop' for the purpose of its coverage under the ESI Act.
Employees' State Insurance Corporation v. R.K. Swamy, (1994) 1 sec 445: AIR lY94 SC 1154: (1994) 1 LLJ 636: 1994 LLR 51 (SC).
• Selling services will be deemed as 'shop' 10 attracts the applicability of the Act.
Employees' State Insurance Corporation v. The Peerless General Finance & Investment Company Ltd., (1996) 4 FLR 2253: (1996) 2 LLN 617: 1996 LLR 1101 (Cal HC).
• ESI Act will extend to a commercial establishment engaging employees as clerks, typists, stenos, chaprasis and chowkidars established for attending work connected with company's products since it will be deemed as a 'shop' notwithstanding that it is a commercial establishment under the Tamil Nadu Shops & Establishments Act, 1947.
M. Gopikrishnan v. Employees' State Insurance Corporation, (1997) 2 MLJ 205: 1997 (77) FLR 36 (Mad HC).
• A co-operative society of Government servants engaged in giving loans to its members will be a 'shop' to be covered by ESI Act.
Madras Government Servants Cooperative Society Ltd, v. Employees' State Insurance Corporation, (1996) 2 LLN 1216: (1997) 1 MLJ 606: 1998 LLR 178 (Mad HC).
• An establishment providing consultancy services will be deemed as a 'shop' for coverage under the ESI Act.
Kirloskar Consultants Ltd. v. Employees' State Insurance Corporutiol1, (2001) 1 sec 57: AIR 2000 SC 3720: 2001 LIC 389: (2000) 1 LLN 55: 2001 LLR 57 (SC).
• When an establishment is registered as a 'shop', the ESI will be applicable.
Duuent Fans (Pvt.) Ltd. v. The Regional Director, Employees' State Insurance Corporation, Bangalore, 2001 LLR 783 (Karn HC).
• Metallurgical testing establishment having 20 employees will be a 'shop' to be covered under ESI Act.
Bat Chandra Agarwal v. Union of India, (2002) 94 FLR 1204: (2002) 2 CLR 985: 2002' LLR 828 (Cal HC).
• A Club may not be a 'shop', but for the coverage of ESI it would certainly be so.
Bangalore Turf Club Ltd. v. Regional Director, Employees' State Insurance Corporation, 2003 LLR 178: 2003-1 LLJ 73 (Karn HC).
• A Federation registered as a Society engaged in buying fertilizers and pesticides from the manufactures and selling them to the farmers will be treated as 'shop' to be covered under the ESI Act since it is carrying on its activities on systematic basis and employing over 450 employees.
Karnataka State Cooperative Mkt. Federation v. Regional Director, Employees' State Insurance Corporation, (2004) 1 LLJ 880: 2004 LLR 50 (Karn HC).
• A Company employing more than 20 employees engaged for the liaison work relating to export and import will be a 'shop' to be covered under the ESI Act.
Mitsui & Company Ltd. v. Employees' State Insurance, 2005 LLR 22 (Del HC).
• Failure of a workman to establish his unemployment during the pendency of the proceedings in the higher court, will not entitle him to any relief.
Management of National Institute of Port Management, Chennai v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai, 2005 LLR 586 (Mad HC).
• Even though the shop is to be covered under the ESI Act its scope cannot be stretched to cover all different contractors working for the Management.
Regional Director, Employees State Insurance Corporation v. Reliance Corporation, 2005 LLR 708: 2005 11 CLR 471 (Bom HC).
• An establishment, providing consultancy services, is a 'shop' under ESI Act.
Tata Projects Ltd. v. Employees' State Insurance Corporation, Hyderabad, 2006 LLR 235 (AP HC).
• Security guards working to safeguard the property located elsewhere are not to be treated as employees under the ES1 Act.
Regional Director (Tamil Nadu), Employees' State Insurance Corporation, Madras v. Mercury Travels Ltd., Rep. by its Regional Manager, Madras, 2007 LLR 953 (Mad HC).
• Toddy shop is liable to be covered under the purview of 'shop' for coverage under the ESI Act.
Bhaskaran v. Asstt. Director, Employees' State Insurance Corporation! 2007 LLR 1061 (Ker HC).
• A cooperative bank, covered under Shops Act, would also be covered under Gratuity Act.
Member Secretary, Cooperative Bank Centralized Services v. Appellate Auth01;ity, under Payment of Gratuity Act, Kanpar, 2007 LLR 1227 (SN) (All HC).
• A Co-operative Housing Society providing services to its employees cannot be construed as a 'shop' for coverage under the ESI Act.
Regional Director, Employees' State Insurance Corporation v. Tulsiani Chambers Premises Cooperative Society, 2008 LLR 362 (Bom HC).
(v) DAMAGES INTEREST FOR LATE OR NON-DEPOSIT OF CONTRIBUTIONS
• While levying damages for late payment of ESI's contributions, the authority must act in a judicious manner.
Beama Manufacturers (Pvt.) Ltd. v. The Regional Director, Employees' State Insurance Corporation, Madras, 1990 LLR 364: 1991 (2) LLJ 29 (Mad HC).
• While imposing damages for the late payment of ESl's contributions, authorities must consider the explanation of the defaulter.
Employees' State Insurance Corporation Rep. by its Regional Director v, Venkatachalam Condiments Rep. by Partner P. V. Sivasubramanian, 1995 LLR 691 (Mad HC).
• Recession in market, labour trouble and non-availability of forms will be good cause for late deposit of ESI's contribution.
Hindustan Monark (Pvt.) Ltd. v. Employees' State Insurance Corporation, (1997) 76 FLR 837: (1997) 1 LLJ 846: 1997 LLR 774 (All HC).
• Levy of damages for late deposit of ESI's contribution will be valid.
National Textile Corporation (Madhya Pradesh) Ltd. v. Employees' State Insurance Corporation, Indore, (1998) 111 LLJ (Supp) 975: 1997 LLR 215 (MP HC).
• ESI's contributions will be payable on the suspension allowance.
Regional Director, Employees' State Insurance Corporation v. Popular Automobiles, (1997) 7 SCC 665: AIR 1997 SC 3956: 1997 LLR 1146 (SC).
• Construction of an office building or maintenance of existence building is a work incidental to the purposes of establishment and as such ESl's contributions will be payable.
Regional Director, Employees' State Insurance Corporation v. Kerala Wheat Flour Roller Mill. 1997 11 LLJ 839 (Ker HC).
• Non explanation of delay in recovery proceeding by ESI Corporation will be reduced to 50% of the damages.
Guindy Machine Tools Pvt. Ltd., PaLlikaranai, Madras v, Employees' State Insurance Corporation, Madras, (2000) 1 LLN 450: (2000) 1 LLJ 287: 2000 LLR 290 (Mad HC).
• Once the installment facility has been given by ESIC, no interest or damages can be claimed.
Employees' Stale Insurance Corporation v. Naduvattam C.M. V,S. Sangham Ltd., 2000 LLR 859 (Ker HC).
• An order for levying damages for late payment, of ESI's contributions cannot be passed mechanically.
Regional Director, Employees' State Insurance Corporation, Chennai v, N. Dasarathy and Sons, 2001 LLR 1156 (Mad HC).
• Levy of damages for late submission of contribution and ESI cards will be justified.
Bihar State Electricity Board, Patna v. The Presiding Officer, Labour Court, Patna, (2002) 95 FLR 812: (2003) 1 CLR 644: 2002 LLR 1179 (Pat HC).
• When a Company has become sick and the scheme of rehabilitation has been sanctioned by BIFR, the ESI Corporation can reduce/waive the levy of damages for late payment of contributions but cannot exonerate the company from payment of contributions.
Employees' State Insurance Corporation, Sub-Regional Office, Hubli v. A.P.S. Star Industries Ltd., Dharwad, 2003 LLR 972: 2003 (1lI) LLJ 411: 2003 (98) FLR 1207 (Karn HC).
• Levy of damages for delayed (Payment cannot be challenged by employer when delay in depositing ESI contribution admitted by him.
Swastik Pharmaceuticals v. Joint Regional Director, Uttar Pradesh Region of ESIC (2004) 102 FLR 862: (2004) III LLJ 951: 2004 LLR 989 (All HC).
• The departmental and criminal proceedings can go on simultaneously against an employee for receiving illegal gratification. .
Narender Kumar v. North Delhi Power Ltd., 2005 LLR 347 (Del HC).
• The damages for delayed payment of ESI contributions can be recovered from the transferor or the transferee employer either severally or jointly.
Regional Director, Employees' State Insurance Corporation v, Pradeep Kumar, 2006 LLR 130 (Ker HC).
• Levy of damages for delayed or non-deposit of ESI contributions will be by a speaking order by the appropriate authority.
Regional Director, Employees' State Insurance Corporation v. Pradeep Kumar, 2006 LLR 130 (Ker HC).
• Imposition of damages for delaying ESI contributions is penalty, hence financial difficulties of the employer are to be considered.
Employees' State Insurance Corporation v. K.N, Premanandan, 2007 LLR 527 (Ker HC).
• Interest on delayed payment of dues of ESI contributions cannot be waived.
Cannanore Durg Lines v. E.S.I. Corporation, 2007 LLR (SN) 554 (Ker HC).
• Levy of 100% damages for late deposit of ESI contributions would not be justified when interest has already been deposited by the employer.
M/s. Vijai Cold Storage & Katha Industries, Najibabad v. E.S.I. Corporation, Kanpur, 2007 LLR 1268 (All HC).
• Interest on late payment of ESI contribution cannot be waived in absence of any such provision in the Act.
M/s Goetze (India) Ltd. v. Employees' State Insurance Corporation, 2008 LLR 897 (SC).
• Interest on delayed payment of ESI contributions, unlike damages, cannot be legally waived.
ESI Corporation v. Bharat Hotel, 200S LLR 1001 (Ker HC).
• Penal damages for delayed payment of ESI contributions can be waived on justifiable grounds.
ESI Corporation v. Bharat Hotel, 2008 LLR 1001 (Ker HC).
(vi) 'EMPLOYEE' UNDER THE ACT
• The employees of the head office of the factory covered under the Act will be liable to be covered under the ESI Act.
Bombay Ammonia Pvt. Ltd. v. Employees' State Insurance Corporation, 1991 LIC 1893: (1991) 2 CLR 399: 1991 LLR 584: 1991 (63) FLR 866: 1991 (2) LLN 646 (Del HC).
• Workers engaged for weaving of cloth and taking raw material to their homes will be liable to be covered under the Act.
Regional Director, Employees' State Insurance Corporation, Trichur v. Ram Lal Textiles, Cannanore, 1991 LIC 17: (1990) 1 LLN 703: 1991 LLR 294 (Ker HC).
• Temporary employees will be liable to be covered under the Act from the date of their joining the service.
Regional Director, Employees' State Insurance Corporation v. Fashion Fabrics, (1990) 2 CLR 842: (1991) 1 LLN 256: 1991 LLR 324 (Ker HC).
• 'Employee' - Whether the employees engaged by the immediate employer (contractor). are liable to be covered under the Act? No, since the element of supervision is missing.
C.E.S.C. Ltd., v. Subhash Chandra Bose, 1992 LLR 81: 1992 (64) FLR 24S: 1992 CLR 932: 1992-1 LLN 353.
• Employees' State Insurance (General) Regulations, 1950 - Provisions of Regulations 12, 14 and 15 - Obligation of principal employer to pay contributions of casual employees engaged by contractor - Is absolute.
Employees' State Insurance Corporation v. M/s. Harrison Malayalam (Pvt.) Ltd., (1993) 4 sec 361: 1994 SCC (L&S) 1: AIR 1993 SC 2655: 1993 LLR 846: 1994 I LLR 15: 1993 (83) FJR 572 (SC).
• Demand for payment of ESI's contributions for left out employees, without issuing show cause notice to employer, will be illegal.
Fenner Garments v. Deputy Regional Director, Employees' State Insurance Corporation, Madras, (1994) 2 LLN 171: (1994) 11 LLI 754: 1994 LLR 825 (Mad HC).
• Only such employees of a club will be covered under the Act who work in catering and related sections.
Bangalore Club v. Employees' State Insurance Corporation, (1994) 68 FLR 60S: 1994 LLR 593 (Karn HC).
• An insured person under ESI means, who is or was employed in respect of whom contributions are and/or were payable.
Associated Electrical Agencies v. Commissioner for Workmen's Compensation & Judge, (1994) 69 FLR 749: (1994) 2 LLN 533: (1994) 1 LLJ 368: 1994 LLR 860 (Bom HC).
• Drivers of trucks engaged on trip basis by a Transport Company will be covered under the Act.
Employees' State Insurance Corporation, Hyderabad v, Raj Kamal Transport, Hyderabad, 1995 LLR 20: 1994-II CLR 667: 1994 (85) FJR 454 (AP HC).
• The persons working in workshop, laboratory or god own will be considered 'employees' under the Act.
Cemendi" Company Ltd. v. Employees' State Insurance Corporation, (1995) 71 FLR 160: (1995) 2 LLJ 519: 1995 LLR 4]0 (Bom HC).
• Apprentices/trainees other than those engaged under the Apprentices Act, 1961 are not liable to be covered under the Act.
Andhra Prabha Pvt. Ltd., Hyderabad v. SSIC, Hyderabad, (]996) 1 LLN 672: (1996) II LLJ 389: ]996 LLR 827 (AP HC).
• Wireman, car cleaner and sweeper working in multi-storeyed buildings and being paid a small amount of under services will not be covered under the Act.
Employees' State Insurance Corporation/ Bombay v. Western India Theatre Ltd. Bombay, 1996 LLR 51 (Bom HC).
• Consultancy services will attract the applicability of the Act.
Employees' State Insurance Corporation, Pune v. Kirloskar Consultants Ltd., (1995) 2 Mah LJ 420: 1996 LLR 34, 1995-I CLR 733 (Bom HC).
• Managing Director of a Company will be covered under the Act.
Employees' State Insurance Corporation v. Apex Engineering (Put.) Ltd., (1998) 1 sec 86: (1998) I LLJ 274: (1998) 1 Mah LJ 22: (1998) 2 MLJ 33: ]997 LLR 1097 (SC).
• A partner will not be covered under the Act.
Employees' State Insurance Corporation v. Apex Engineering (Put.) Ltd., (1998) 1 sec 86: (1998) I LLJ 274: (1998) 1 Mah LJ 212: (]998) 2 MLJ 33: ]997 LLR 1097 (SC).
• Casual employees engaged in a hotel through contractor would be covered under the ESI Act.
Udipi Hotel Sudha v. Employees' State Insurance Corporation, (1997) 3 LLN 559: 1998 LLR 55 (Mad HC).
• Employees engaged for loading and unloading for sending its consignment will not be deemed as casual workers since not connected with the work of the establishment hence not to be covered under ESI Act.
Employees' State Insurance Corporation v. Surya Printmac Industries, Faridabad, (2000) 1 LLJ 387: 2000 LLR 110 (P&H HC).
• Members of a Co-operative Society during probation will not be 'employees' under ESI Act. When there is no relationship of employer and employee.
Regional Director, Employees' State Insurance Corporation v. Capital Co-operative Industries Society Ltd., 200] LLR 506 (Del HC).
• ESI benefits will be available to an employee having crossed the salary ceiling during the contribution period.
Employees' State Insurance Corporation (Rep. by Regional Director), Madras v. M. Ganesan, (2001) 1 LLJ 1662: 2001 LLR (Sum) 847 (Mad HC).
• Marketing representatives and casual employees will be counted for coverage under ESI Act.
Ideal Trading Corporation v, Employees' State Insurance Corporation, (2001) II LLJ 498: 2001 LLR 1055 (Gau HC).
• Even unpaid trainees provided with boarding and lodging will be covered under the ESI.
Employees' State Insurance Corporation, Mumbai v. Golden Gate Restaurant, (2002) 1 CLR 500: 2002 LLR 341: 2002 LIC 1570: 2002 (92) FLR 1078: 2002 (I) LLJ 972: 2002 (I) LLN 957 (Bom HC).
• Hamalies engaged for loading and unloading but also working for others will not be employees under ESI Act.
E.I.D. Parry (India) Ltd., Vijaywada v. Employees' State Insurance Corporation, (20U2) 11 CCR 349: (2002) 3 LLN 164: (2002) III LLJ145: 2002 LLR 753 (AP HC).
• The workers engaged through the transporter for loading and unloading of raw material will be covered under the EST Act.
E.K. Haj Mohammadmeera Sahib and Sons v. Regional Director, Employees' State Insurance Corporation, (2003) 102 FJR 228: (2003) 1 MLJ 497: (2003) 2 LLN 31: (2003) 1 LLJ 1041: 2003 LLR 308 (Mad HC).
• When there was no proof that the respondent-employer had only control over the binder or his employees, to come within the meaning of section 2(9) defining an 'employee' to be covered under the Act, their coverage under the ESI Act will be set aside.
Employees' State Insurance Corporation v. Prakash Paper Mart, 2003 LLR 1126: 2003 (III) LLJ 1117 (AP HC).
• While interpreting section 2(9) of the Act defining employee the Employees' Insurance Court had only given a finding of fact that the persons employed by the binder could not be termed as employees within the meaning of section 2(9) of the Act hence no substantial question of law has arisen in order to entertain against it by the High Court.
Employees' State Insurance Corporation v. Prakash Paper Mart, 2003 LLR 1126: 2003 (III) LLJ 1117 (AP HC).
• For determination of an employee under ESI Act, the persons concerned must be employed in connection with work of an establishment and not with work of the establishment.
J.D. Electronics, Hyderabad v. Employees' State Insurance Corporation, Hyderabad, (2004),II LLJ 653: 2004 LLR 477 (SN) (AP HC).
• Directors of a Company not drawing amount over and above director's remuneration are not to be covered under the ESI Act.
Employees' State insurance Corporation v. Navchetan Press, (2004) 113 DLT 249: (2004) 103 FLR 465: (2004) III LLJ 998: 2004 LLR 1047 (Del HC).
• When persons are not engaged in the activity of transport of cylinders within the premises of the factory, their coverage as 'employees' under the ESI will not be proper.
BOC India Ltd., Calcutta v. Assistant Regional Director, Employees' State Insurance Corporation, Hyderabad, 2005 LLR 4 (AP HC).
• The persons, sent by Polytechnic Institute as trainees in a spinning mill, will not be treated as employees to be covered under the ESI Act, more particularly when it was not stated that they were being paid any wages except traveling allowance which could not be treated as wages.
Employees' State Insurance Corporation, Hyderabad v. Chirala Cooperative Spinning Mills Ltd., Chirala, Prakasam, 2005 (I) LLJ 910 (AP HC).
• ITI students, being given training for a limited period under the self-¬employment scheme of Ministry of HR, will not be treated as employees for ESI purposes.
Employees' State Insurance Corporation v. Chirala Cooperative Spinning Mills Ltd., 2005 LLR 591 (AP HC).
• The casual employees and the apprentices are also covered under the ESI Act when no evidence to the contrary has been produced.
Mohan Meakin Ltd. v. Employees' State Insurance Corporation, 2006 LLR 195 (HP HC).
• Employees engaged for changing electrical wiring will not be covered under ESI Act.
Employees' State Insurance Corporation v. R.K. Furnaces, 2007 LLR 14 (Bom HC).
• An employee, though working outside but his work being connected with the establishment, will be covered under ESl.
Employees' State Insurance Corporation v. Krishnaveni Hatmag Vinkar Sahakari Society Ltd., 2007 LLR 288 (Bom HC).
• Petroleum Corporation is not to pay ESI contributions for loaders & un-loaders by transporters.
Hindustan Petroleum Corporation Ltd. v. Employees' State Insurance Corporation (represented by its Regional Director), 2008 LLR 490 (AP HC).
• Definition of 'employee' under section 2(9) of ESI Act does not intend to cover every person.
Indian Oil Corporation Ltd. v. Employees' State Insurance Corporation, 2008 LLR 1070 (Del HC).
• A person engaged casually would not make him a coverable 'employee' under ESI Act.
Indian Oil Corporation Ltd. v. Employees' State Insurance Corporation, 2008 LLR 1070 (Del HC).
• ESIC not empowered to direct employer to deposit amount, oniy then to hear his objections.
Naresh Chandra Bhargava v. Chairman, Employees' State Insurance Corporation, Kanpur, LLR 1262 (All HC).
(vii) EMPLOYEES’ INSURANCE COURT
• Jurisdiction - EI court - When gets jurisdiction to decide the disputed questions and also the disputes. The use of the expression "which may be decided" is not to be misunderstood as vesting such inherent power or jurisdiction, in the EI court as to defeat any express or implied statutory prohibition such as contemplated under Regulation 40(1).
Employees' State Insurance Corporation (Indore) v. Swadeshi Daily Newspaper, Gwalior, (1992) 1 LLN 261: (1992) 1 CLR 206: 1992 LLR 141 (MP HC).
• EI court - Whether a civil court? Section 78 of the Act stipulates that for specified purposes it is deemed to be a 'Civil Court' and it has been vested with only specified powers of civil court for specified purposes.
Employees' State Insurance Corporation (Indore) v, Swadeshi Daily Newspaper, Gwalior, 1992 LLR 141 (MP HC).
• Employer's contribution - Determination of - Duty of Insurance court ¬Corporation issuing notice along with a draft order - Calling upon the appellant to show cause why the said proposed order be not made final under section 45A - Replied - No final order passed - Initiation of recovery proceedings under section 45B - Challenged under section 75 - Insurance court without independent determination of amount of contribution dismissed the application confirming the draft order of Corporation - Appeal against - Whether the order of the EI court is sustainable? No.
Sri Krishna Spinning and Weaving Mills (Pvt.) Ltd. v. Employees' State Insurance Corporation, (1993) LIC 1889: (1992) 2 CLR 52: (1993) 1 LLJ 1072: 1993 LLR 36: 1993-1 LJ 1072 (Kar HC).
• The order by the Employees' Insurance court for the clubbing staff of two establishments, due to functional integrality, will not be interfered by the High Court.
Baijoo Sales, jaipur v. Regional Director, Employees' State Insurance Corporation, jaipur, (1994) 84 FJR 169: (1994) 2 LLN 292: 1994 LLR 263 (Raj HC).
• ESI Corporation cannot approach EI court for resolving any difference or dispute with an employee.
Employees' State Insurance Corporation v. F. Fibre Bangalore (Pvt.) Ltd., (1997) 1 sec 625:
AIR 1997 SC 244: (1997) 2 LLJ739: (1997) 1 CLR 403: 1997 LLR 225: 1997-1 CLR 403 (SC).
• A employer challenging applicability of ESI Act has to lead evidence before EI Court to this effect.
Employees' State Insurance Corporation v. Hotel Amred, 1998 LLR 658: 1998 (79) FLR 961 (Ker HC).
• A dispute for coverage of an establishment under ESI Act can be resolved only by ESI Court.
Employees' State Insurance Corporation v. Sidram Narayan Mathur, (2000) 85 FLR 346: (2000) 1 LLJ 1300: 2000 LLR 569 (Bom HC).
• Employees' Insurance Court cannot issue direction to ESI Corporation for refunding the amount already recovered from the employer.
Employees' State Insurance Corporation v. Mackintosh Bum Ltd., (2000) 1 LLJ 155: 2000 LLR 287 (Cal HC).
• ESI Corporation and EI Court will consider the waiver of damages for sick industry. .
Employees' State Insurance Corporation, Bangalore v. Goge Textiles Ltd., Belgaum, 2000 LLR 336 (Kar HC).
• EI Court and not High Court can determine the dispute about applicability of ESI Act.
Ashok Leyland Ltd. v. Deputy Tahsildar (Recovery Celt) Collectorate, Hyderabad, 2001 LLR 1087 (AP HC).
• If the EI Court relegated its enquiry to the lrnportant disputed question, the High Court can exercise its powers under section 82 of the Act to consider and decide the disputed questions.
Employees' State Insurance Corporation v. Bhaskara Motors, Hanamakonda, 2001 LLR (Sum) (AP HC).
• Deposit of 50% ESI dues can be waived by EI Court only after giving reasons.
Bharal Steel Industries v. Regional Director, Employees' State Insurance Corporation, Kanpur Nagar, (2001) 90 FLR 556, 2001 All LJ 2019, (2001) 3 LLN 874, 2001 LLR 1003 (All HC).
• An employer cannot challenge before Employees' Insurance Court the demand by ESIC beyond three years.
Employees' State Insurance Corporation, Bangalore v. Nutan Ayurvedic Karyalaya (Pvt.) Ltd., Bijapur, 2001 LIC 3010, (2002) 1 LLN 29J, (2001) 91 FLR 873: 2002 LLR 121 (Karn HC).
• Under Employees' State Insurance Act, 1948, no power has been given to Employees Insurance Court to review its, own earlier passed order.
Nagarjuna Grameena Bank v. Mandulla Beerappa, 2003 LLR 522 (AP HC).
• Directing an employer to deposit Rs. 2,18,000 by the Employees' Insurance Court in a disputed amount of Rs. 14 lakhs, will be untenable when the reasons for waiver of mandatory conditions for deposit of at least 50% disputed amount are to be given, hence, the High Court set aside the impugned order.
Employees' State Insurance Corporation, Regional Office, Kolkata v. Hooghly Mills Company Ltd., Regional Office, Kolkata, (2004) 1 LLJ 5, 2003 LLR 1160, 2003 (99) FLR 601 (Cal HC).
• Employees' Insurance Court has erred in not appreciating the provisions of law which raise a presumption that in the case of a death of an employee 'arising in the course of employment' it must be presumed that it also la rose out of the employment' when there is no evidence to the contrary.
Saraswathi Bai v. Regional Director, Employees' State Insurance Corporation, Bangalore, (2004) 1 LLJ 623: 2004 LLR 35 (Karn HC).
• The ESI Court is empowered to waive or reduce the demanded amount of contribution to be deposited.
Allied Resins and Chemical Ltd. v. Employees' State Insurance Corporation, Kolkata, (2004) II CLR 658: (2004) III LLJ 302: 2004 LLR 719 (Cal HC).
• Employees' Insurance Court can waive or reduce the amount to be deposited by an employer only by recording reasons.
Employees' State Insurance Corporation, Calcutta v. Steel Authority of India Ltd., Durgapur Steel Plant, Durgapur, 2005 LLR 196 (Cal HC).
• When an appropriate remedy is available for appeal under section 75 of the Employees' State Insurance Act, the employer cannot file a writ petition.
Tuticorin Thermal Power Station Industrial Cooperative Society Ltd., Tuticorin v. Dy. Regional Director, ESI Corporation, Madurai, 2005 LLR 963 (Mad HC).
• The Employees' Insurance Court has grossly erred in setting aside the demand pertaining to contributions for building repair.
Employees' State Insurance Corporation v. New Taj Maha! Cafe (Pvt.) Ltd., 2007 LLR 214 (Karn HC).
• Employees' Insurance Court is empowered to waive or reduce the damages for late remittance of ESI contributions.
Employees' State Insurance Corporation v. K.N. Premanandan, 2007 LLR 527 (Ker HC).
• Claiming damages for negligence of doctors in the ESI dispensary cannot be before the Employees' Insurance Court.
Kishore Lal v. Chairman, Employees' State Insurance Corporation, 2007 LLR 740 (SC).
• Employees' Insurance Court is empowered to remand back the matter for re¬consideration by the ESI Corporation.
K. Mohan and Co. v. Assistant/Deputy Director ESJ Corporation, Hyderabad, 2008 LLR 107 (SN) (AP HC).
• Employees' Insurance Court can set aside clubbing of two establishments even located in the same premises.
ESIC v. Ved Parkash Gupta, 2008 LLR 881 (Del HC).
(viii) APPEAL-EMPLOYEES' INSURANCE COURT
• Notice of demand - Challenged by appellant - Employees' Insurance court found that appellant was employing 14 person using power so covered under notification under section 1(5) of the Act - Demand upheld on the material available - Appeal under section 82 - Whether finding of EI court is based on evidence? Yes - Can it be re-appreciated in appeal? No.
Prominent Tailors and Drapers v. Employees' State Insurance Corporation, (1992) 3 CLR 133: (1994) III LLI (Supp) 709: 1992 LLR 571: 1992 (65) FLR 90 (Del HC).
• Appeal by Corporation under - Substantial question of law - The question, whether, 21 persons employed by respondent two persons are employees or not is a question which has to be decided on assessment of facts - And it is a question of fact - Cannot be treated as substantial question of law - Appeal dismissed.
Employees' State Insurance Corporation v. Cheeran's Auto Agencies, (1992) 1 LLl 704: 1992 LLR 295 (Ker He).
• Appeal - Medical Board determined employee's permanent partial disablement as 20% - Employer not in a position to give suitable lighter work to the employee - Taking the fact into consideration - EI court held that employee's capacity was reduced to nil - Such an approach of the appellant court - If justified? No.
Employees' State Insurance Corporation v. Pushkaran, 1993 LLR 997 (II) LLR: 1993 (83) FIR 89 (Ker HC).
• An appeal against the order of Employees' Insurance court will lie only when there is substantial question of law.
Employees' State Insurance Corporation v. Radhas Printers, 1996 LlC 2388: (1996) 2 CLR 261: (1997) 90 FJR 271: (1996) 1 KLT 781: 1996 LLR 718 (Ker HC).
• An appeal will not lie when Employees' Insurance court discards opinion of Medical Board recommending partial disablement of a workman in holding 100 per cent. disability.
Regional Director, Employees' State Insurance Corporation v, Prabhakar V. Vibhandik, (1998) III LLI (Supp) 1124: 1997 LLR 114 (Bom HC).
• A new plea raised in the appeal against Employees' Insurance Court will not be entertained by High Court.
Padmini Products, Bangalore v. Regional Directors, Employees' State Insurance Corporation, Bangalore, (2000) 97 FJR 423: (2000) 2 CLR 361: (2000) II LLI 86: 2000 LLR 846 (Karn HC).
• The High Court will not interfere with the interlocutory order of the Employees' Insurance Court since such powers are exercised only in jurisdictional error.
Allied Resins and Chemical Ltd. v. Employees' State Insurance Corporation, Kolkata, (2004) 101 FLR 1216: 2004 LLR 719 (Cal HC).
• Merely that the services of some of the coolies in the local market Committee are sometimes required by the establishment, they will not be employees under the ESI Act.
Employees' State Insurance Corporation v. Chirala Cooperative Spinning Mills Ltd., 2005 LLR 591 (AP HC).
• An appeal, under ESI Act, lies only when the matter involves substantial question of law.
Nizam Club rep. by its Secretary v. Employees' State Insurance Corporation, 2005 LLR 1038 (AP HC).
• An appeal will not lie against the order of the EI Court when ESIC failed to show substantial question of law.
Employees' State Insurance Corporation v. Dhiren Chaudhunj, 2006 LLR 528 (Gau HC).
• Transfer under section 93A of the ESI Act is different from 'transfer' under the Transfer of Property Act, hence purchaser of property cannot be liable to pay ESI contributions.
A.N.K. Seals, Nagpur v. Employees' State Insurance Corporation, Nagpur, (2006) 4 Mah LJ 796: 2006 LLR (SN) 1277 (Bom HC).
• Interest on delayed payment of ESI contributions accrues from 21"' of following month.
Employees' State Insurance Corporation v. M/s. 4 Aces Restaurant, 2007 LLR 670 (SN) (Ker HC).
• High Court, in appeals under ESI Act, has to analyze the factual position.
Hyderabad Industries Ltd. v. ESI Corporation, 2007 LLR 1263 (SC).
(ix) PROSECUTION UNDER THE ACT
• Prosecution of chartered accountant under section 85(e) for non-submission of returns of contribution - Complaint describing him as the principal employer ¬Prosecution, if liable to be quashed? Yes, because the petitioner is merely an accounts consultant and cannot be termed as the principal employer.
Vinay Mehra, son of Shri J.M. Mehra v. Insurance Inspector, Employees' State Insurance Corporation, Sonerat, (1993) 1 LLI 488: 1992 LLR 446 (P&H HC).
• Regulation 2(g) - Factories Act, 1948 - Section 2(n) - Criminal Procedure Code, 1973 - Section 482 - Compliance under section 85(A)(G) against the Managing Director and other Directors - For presentation or non-submission of contribution cards under regulation 26 - Prescribe all of them as the principal employer ¬Magistrate taking cognizance against all- Revision petition by one of the Directors that proceeding against her not maintainable as she is not the principal employer as defined under section 2(17).
Gouri Adhikari v. Employees' State Insurance Corporation, West Bengal, "(1992) 1 LLN 777: 1992 LLR 252 (Cal HC).
• Principal Employer - Prosecution of Managing Director under section 85 for non-submission of contribution cards as required under section 44 of the Act without specifying the capacity in the complaint - Capacity of character filled in by the accused - Establishment having already appointed Manager as its occupier under the Factories Act, 1948 - And had submitted return after the due date - It is necessary to specify the capacity of the accused in a complaint - Orders of acquittal upheld.
Employees' State Insurance Corporation v. B.S. Narayana Rao, (1993) 111 LLJ (Supp) 133: 1993 LLR 81: 1993 (66) FLR 416: 1993 (1) LLN 41 (Kar HC).
• Offences and prosecution - Offences by Company Director - Cannot be made personally liable ipso facto in absence of material to show who is principal employer.
Employees' State Insurance Corporation v. Alagusundaram Chettiar, (1996) 89 FLR 802: (1997) 75 FLR 404: 1997 LLR 176 (Mad HC).
• Prosecution of partners of a firm for late submissions of returns and ESl's contributions will be quashed when the principal employer of the factory was manager and he was not being prosecuted and also the partners were not actively involved in the business of the factory.
K.K.A. Nambiar v. Employees' State Insurance Corporation, Bangalore (Karn HC).
• The Managing Director and a Director of a company can be prosecuted for failure to pay ESl's contributions.
Employees' State Insurance Corporation v. Vijayan, (1999) 4 LLN 348: 1999 LLR 1232: 1999 (83) FLR 898 (Ker HC).
• Failure to submit return of contributions within time amounts to continuing offence under section 85(e) (i) of the Act.
Employees' State Insurance Corporation v. M.P. Mohammed Ali, Proprietor, M/s. Grand National Hotel, (1999) 4 LLN 1047: (1999) II LLJ 911: 1999(83) FLR 808: 1999 LLR 921 (Karn HC).
• Chairman and Director of a company being employer cannot escape prosecution for non-payment of ESI contributions.
Rama Kant Sharma v. Union of India through RECIO, (2002) 3 BLJR 2064: (2003) 96 FLR IS: (2003) 2 LLN 105: 2003 LLR 166: 2003 (I) LLJ 689 (Pat HC).
• Conviction under ESI Act of the accused purporting to be owner of a hotel will be set aside when the complainant (ESI Inspector) has failed to ascertain despite his three visits to the hotel as to who is the owner particularly when he himself stated that on his second and third visit, son of the accused was present and attending the work.
Moinoddin, son of Khodboddin v. State of Maharashtra, (2003) 98 FLR 634: 2003 LLR 741: 2003 (II) LLJ 1040: 2003 (II) LLN 479 (Bom HC).
• While making a criminal complaint which has penal consequences, the complainant has to ascertain the ownership of a hotel which is required to be registered and licensed under various provisions of the Act.
Moinoddin, son of Khodboddin v. State of Maharashtra, (2003) 98 FLR 634: 2003 LLR 741: 2003-11 LLJ 1040: 2003-11 LLN 479 (Bom HC).
• When an accused in the capacity of the Director of a Company was not overall in charge, his prosecution for failure to pay EPF contributions will be quashed.
R. Dhandayuthapani v. C.R. Knleel, (2004) I LLJ 491: 2004 LLR 369 (Mad HC)
• A complaint under sections 6, 14(1A) and 14A of the Employees' Provident Funds and Miscellaneous Provisions Act read with section 468 of the Criminal Procedure Code will be quashed when it has been filed after three years from the period for which the default for non-payment of EPF contributions was made.
R. Dhandayuthapani v. C.R. Knleel, (2004) I LLJ 491: 2004 LLR 369 (Mad HC)
• An employer is under an obligation to maintain and produce the record for the purposes of ESI Act failing which, prosecution will follow.
State through the Manager, Employees' State Insurance Corporation, Gulbarga v. Kranthi Kumar, 2005 LLR 376 (Karn HC).
• Belated deposit of ESI contribution will not absolve the defaulting employer from prosecution.
Sub-Regional Office, ESI Corporation v. Sri Krishchand Shetty, 2005 LLR 853 (Karn HC).
• Late deposit of ESI contributions by the employer, that too when the ESI Authorities have launched prosecution will not wipe off the offence.
Sub-Regional Office, Employees' State Insurance Corporation, Hubli v. Krishchand Shetty, 2006 LLR 42 (Karn HC).
• The ESI Authorities cannot proceed with the prosecution of the employer in non-payment of contributions without assessing first and communicating to the employer.
Sawarmal Agarwalla v, State of Assam, 2006 LLR (SN) 539 (Gau HC).
• Directors of a Company cannot be prosecuted for non-payment of ESI dues without making the Company liable.
S.L. Saraf@S.L. Shroff v. State of Bihar, 2008 LLR 373 (Pat HC).
(x) RECOVERY OF CONTRIBUTIONS
• Liability of Employer - Establishment closed down - Initiation of recovery proceedings after closure of establishment for recovery of dues in respect of period prior to closure. Contention that employees having settled their claims had gone away and as such there is no liability of the employer to contribute, Held, such a plea is untenable since the very object of establishing a fund under section 26 of the Act is for the benefit of all the employee and cannot be thwarted if such contention is put.
Employees' State Insurance Corporation v. M/s. Hotel Kalpaka International (1993) 2 sec 9:
AIR 1993 SC 1530: (1993) 1 LLJ 939: 1993 LIC 416: (1993) 1 CLR 332: 1993 LLR 177 (SC).
• Amended provisions for recovery of ESI contributions will have retrospective effect.
Vishaka v. State of Rajasthan, (1997) 6 SCC 241: 1997 SCC (Cri) 932: AIR 1997 SC 3011: 1997 LLR 991 (SC).
• The ESI's contribution would become due within the period prescribed under Regulation 31 and not when demand notice under section 45A was issued by the Corporation as held by the El court:
Regional Director, Employees' State Insurance Corporation, Trichur v. T.K. Bhaskaran 1997 (77) FLR 156 (Ker HC),
• Since there was no contumacious conduct on the part of the respondent herein in not paying the contributions but he was agitating the question of coverage itself, hence no damages under section 85B is liable to be imposed.
Regional Director, EmpLoyees' State Insurance Corporation, Trichur v. T.K. Bhaskaran, 1997(77) FLR 156 (Ker HC). .
• On transfer of establishment the transferee will not be liable for arrears of ESI's contributions.
Employees' State Insurance Corporation v. Balaraman, (2001) 1 LLJ 777: 2001 LLR 249 (Ker HC).
• Limitation Act will not be applicable for recovery of ESI's contributions.
Jayant Vitamins Ltd., & Ratlam v. Employees' State Insurance Corporation, 2001 LLR 271 (MP HC),
• While making recovery of dues, the ESI Authorities are under obligation to serve a notice before proceeding with recovery.
Parmeshwar Singh v. State of Jharkhand, (2004) II LLJ 675: 2004 LLR 456 (Jhar HC).
• ES1 contributions shall not be recovered either from an establishment or the employees for the period of interim stay and also when none of the employees got any facility.
Distilleries and Chemical Mazdoor Union, Meerut v. State of Uttar Pradesh, 2005 LLR 46 (All HC).
• A director cannot escape liability for payment of ESI contributions on the ground that his son was responsible.
M.R. Khanna v. Union of India, 2006 LLR 1249 (Del HC).
• No limitation for recovery of ESI dues would be applicable.
Employee's State Insurance Corporation v. c.c. Santhakumar, 2007 LLR (SN) 328 (SC).
• Recovery of ESI contributions, without show cause notice and inspection report, is not tenable.
Regional Director, ESI Corporation v. Managing Director, M/s. Qetcos Ltd., 2008 LLR 1117 (SN) (Ker HC).
• Insurance Court is empowered to order refund of ESI contribution if wrongfully taken by ESI authorities.
Regional Director, ESI Corporation, Bangalore v. Management of Shagil Precision India, 2009 LLR 72 (Karn HC).
• An appeal against Single Judge before the Division Bench for ESI dispute will not lie.
Employees' State Insurance Corporation v. H. Fillunger and Co. Pvt. Ltd., 2009 LLR 109 (SN) (Bom HC).
(xi) 'WAGES' FOR ESI'S CONTRIBUTION
• Meals allowance paid to employees will, however, not come within the purview of 'wages' under the Act.
Malabar Fruit Products Company v. Employees' State Insurance Corporation, 1991 LLR 810: 1992 (64) FLR 149, 1992 II LLJ 786, 1991 (1) LLN 198 (Ker HC).
• Payment of 'incentive bonus' to the employees under 'incentive bonus scheme' will come within the purview of wages as defined by the Act.
Madhya Pradesh State Road Transport Corporation v. Employees' State Insurance Corporation, 1991 LLR 17 (MP HC).
• The term 'wages' under the Act will include 'incentive bonus' within its definition.
Madhya Pradesh State Road Transport Corporation v. Employees' State Insurance Corporation, 1991 LLR 311: 1991 (62) FLR 369: 1991 CLR 924 (MP HC).
• Payment of daily 'Bhatta' or allowance to bus conductors will not amount to 'wages' under the Act.
Regional Director, Employees' State Insurance Corporation v. Vinod, 1991 LLR 610 (Kar HC).
• 'Wages' - Meaning of - Employer introduced voluntary scheme for payment of production bonus to its employees - Subject to a ceiling of Rs. 100 per month ¬Management also entitled to withdraw the scheme at any time - Whether payment of production bonus to the employees under the Production Bonus Scheme fell within the definition of wages under section 2(22) of the ESI Act? Yes. Reliance placed on the judgment of the Supreme Court.'
1. Shourie Duplicators (Pvt.) Ltd. v. Employees' State Insurance Corporation, 1992 LIC 104: 1992 LLR 70: 1991 (63) FLR 8730 1992 (1) LLN 170, 1992 (2) LLI443 (Del HC).
2. Harihar Poly fibres v. Employees' State Insurance Corporation, (1984) 4 SCC 324: AIR 1984 SC 1680: (1984) 2 LLN 747: 1984 LIC 1570: 1984 (65) FJR 199 (SC).
• Payment of attendance bonus to employees after a settlement will come within the first part of wages for payment of ESI's contributions.
Wellman (Ind",) Pvt. Ltd. v. Employees' State Insurance Corporation, (1994) 1 SCC 219: AIR 1994 SC 1037: (1994) 84 FJR 38: 1994 LLR 1: 1993 CLR 11661: 1993 (2) LLN 645: 1993 (67) FLR 1208 (SC).
• Amount paid towards incentive or production bonus will constitute wages for ESI purposes.
All India Glass Works Pvt. Ltd. v. Regional Director, Employees' State Insurance Corporation, (1994) 69 FLR 1142: (1994) 2 UN 814: 1995 LLR 28 (Bom HC).
• A payment made to workers in lieu of milk, tea and egg allowance will not be deemed as wages for ESI's contributions.
Employees' State Insurance Corporation v. Enfield India Ltd., 1994 LIC 250: 1995 LLR 81 (Mad HC).
• Expenses incurred by an employer for maintenance of office and incentive to dealers will not be 'wages' under EST Act.
Employees' State Insurance Corporation through Regional Director (Indore) v. Central India Sales Corporation, 1996 LLR 1150: 1997-11 LLN 256 (MP HC).
• Overtime wages for extra work done by the insured employees will be liable for deduction of ESI's contributions.
Indian Drugs & Pharmaceuticals Ltd. v. Employees' State Insurance Corporation, (1997) 9 sec 71: (1997) 1 CLR 193: (1997) 1 LLN 48: 1997 LLR 1: 1997-1 CLR 193 (SC).
• The computation of monthly wages of the piece-rated employees for ESI's contributions will be on the basis of total earning during a period of 30 days from the beginning of the contribution period.
Regional Director, Employees' State Insurance Corporation v. P.P. Thomas, 1997 (2) LLJ 139: 1997-11 LLN 966 (Ker HC).
• 'Inam' or incentive given to contractual labour by the principal employer will not amount to 'wages'.
Eagle Flask Industries Ltd. v. Employees' State Insurance Corporation, (1997) 76 FLR 43: (1997) 1 LLN 599: 1997 LLR 235: 1997-1 CLR 624 (Bom HC).
• A suspended employee and his employer are liable to remit under the Act, the requisite ESI's contributions in connection with the subsistence allowance amounts received by the suspended employee during the period of his suspension pending domestic enquiry.
Regional Director, Employees' State Insurance Corporation v. Popular Automobiles, (1997) 7 SCC 665: AIR 1997 SC 3956: 1997 LLR 1146: 1997 (8) Supreme 504 (SC).
• Mere ex-gratia payments or gifts or inams paid at the will of the employer as a gesture of goodwill will not come within the ambit of 'wages' under section 2(22) of the Act.
Kuttukaran Engine Rebuilders v. Employees' State Insurance Corporation, 1999 III LLJ (Supp) 31: 1997 (2) KLT 550: 1997 (3) LLN 624 (Ker HC).
• Payment made for construction of office building through contractor will be deemed as wages to attract the levy of EST's contributions.
Regional Director, Employees' State Insurance Corporation v. Kerala Wheat Flour Roller Mill, 1998 LLR 280 (Ker HC).
• Enhancing wage ceiling upto Rs. 6500 for ESI coverage will be constitutional
Carbon & Chemicals L.E. Association v. Union of India, (1998) 92 FJR 608, (1998) 1 KLT 505, 1998 LLR 404, 1998 (79) FLR 20 (Karn HC).
• Mere ex-gratia, gift or inam will not be wages for ESI contributions.
Kuttukaran Engine Rebuilders v. Employees' State Insurance Corporation, 1997 III LLJ (Supp) 31: 1997 III LLJ (Supp) 31, 1997 (2) KLT 550, 1997 (3) LLN 624 (Ker HC).
• Amount paid under production incentive scheme in each succeeding month is "wages" under the Employees State Insurance Act and contributions will be payable.
Employees' State Insurance Corporation, Chandigarh v. Kelvinator of India Ltd., (1997) 2 Punj LR 499, 1998 II LLJ 438 (P&H HC).
• No period of limitation is prescribed for recovery of ESI's contribution.
Transport Corporation of India Ltd, v. Employees' State Insurance Corporation, 1999 LLR 949: 1999 (83) FLR 970 (AP HC).
• Wages paid to the labour for loading and unloading will attract ESl's contributions.
Transport Corporation of India Ltd. v. Employees' State Insurance Corporation, (1999) 3 ALT 194, 1999 LIC 2043, (1999) 2 CLR 1067: 1999 LLR 949, 1999 (83) FLR 970 (AP HC).
• Production incentives paid to the employees under Production Incentive Scheme in addition to normal wages when being paid quarterly i.e. exceeding two months will not be treated as 'wages' to attract the applicability of the ESI Act.
Whirlpool of India Ltd. v. Employees' State Insurance Corporation, (2000) 3 SCC 185, AIR 2000 SC 1190, (2000) 2 LLN 72, 2000 LIC 1023, 2000 LLR 431 (SC).
Employees' State Insurance Corporation, Hyderabad v. AP. Electrical Equipment Corporation a Unit of ECE Industries Ltd., Visakhapatnam, 2005 LLR 466 (AP HC).
• HRA cannot be excluded for ESI's contributions even when employer and employees have made a settlement for its exclusion.
.Management of Oriental Hotels Ltd., Chennai v. Employees' State Insurance Corporation (represented by Regional Director), Chennai, (2001) 1 LLN 943, (2002) 1 LLJ 14, 2001 LLR 489 (Mad HC).
• Conveyance allowance will not attract ESI's contributions.
Management of Oriental Hotels Ltd., Chennai v. Employees' State Insurance Corporation (represented by Regional Director), Chennai, (2001) 1 LLN 943, (2002) 1 LLJ 14, 2001 LLR 489 (Mad HC).
• Attendance bonus scheme as announced, voluntarily by the employer will not be 'wages' to attract ESI contributions.
Regional Director, Regional Office, Employees' State Insurance Corporation, Ahmedabad v. Accumax Ltd., 2001 LLR (Sum) 411 (Guj HC).
• One time payment of ex-gratia will not be 'wages' under ESI Act to attract contributions.
Employees' State Insurance Corporation v. Mukund Iron and Steel Works Ltd., (2000) 87 FLR 984, 2001 LLR 52 (Bom HC).
• When the employer fails to give break up of the amount spent, an construction repair etc., 25% of it will be treated as 'wages' for ESI's contribution purposes.
Shree Sivakami Mills Ltd" Madurai (represented through Managing Director) v. Employees' State Insurance Corporation, Madras (through its Regional Director) Madras, 2001 LLR 370 (Mad HC)
• Interim relief paid under the Government order as ex-gratia and not wages will not attract ESI's contributions.
Shree Sivakami Mills Ltd., Madurai (represented through Managing Director) v. Employees' State Insurance Corporation, Madras (through its Regional Director) Madras, 2001 LLR 370 (Mad HC).
• HRA cannot be excluded for ESI's contributions even when employer and employees have made a settlement for its exclusion.
Management of Oriental Hotels Ltd., Chennai v. Employees' State Insurance Corporation (represented by Regional Director), Chennai, (2001) 1 LLN 943, (2002) 1 LLI 14, 2001 LLR 489 (Mad HC).
• Payment of service charge in lieu of tips are not wages for ESI's contributions.
Singanallur Co-operative Housing Society (represented by its Secretary), Coimbatore v, T. Sathyamoorthy (Deceased), 2002 LLR 591 (Mad HC).
• Overtime payment will attract ESI's contributions.
Employees' State Insurance Corporation v. F.B. Gupta, 2002 LLR 687: 2002 LIC 1014, 2002 (93) FLR 1147: 2002-1 LLI 1143: 2002 (2) LLN 649 (Ori HC).
• Grant of canteen subsidies to the employees will not be wages for the purpose of ESI's contributions.
Employees' Stale Insurance Corporation v. Aluminium Industries Ltd., 2003 LLR 23 (Ker HC).
• Overtime wages paid for loading and unloading to the employees will attract the ESI's contributions.
Employees' State Insurance Corporation v. Aluminium Industries Ltd., 2003 LLR 23 (Ker HC).
• Incentive bonus paid to employees as per settlement will be 'wages' for ESI contributions and the periodicity of such payment will be immaterial.
United Brewaries Ltd. v. Employees' State Insurance Corporation, (2003) 1 KLT 158: (2003) 1 LLN 694: (2003) 97 FLR 358: 2003 LLR 272 (Ker HC).
• Payment of Bata made to running staff in a settlement will constitute 'wages' for ESI contributions when there is no evidence that such payment was to meet incidental expenditure.
Damodaran v. Employees' State Insurance Corporation, (2003) 1 KLT 395: (2003) 1 LLN 690: (2003) 1 CLR 911: (2003) II LLI 55: 2003 LLR 373: 2003 (97) FLR 451 (Ker HC)
• Ex-gratia payment made to the employees pursuit to a settlement under the Industrial Disputes Act will attract ESl's contributions.
Employees' State Insurance Corporation, Rep. by its Deputy Director, Hubli. v. Sree Chandrodaya Mills Ltd., Rep. by its Managing Director, Davangere, 2003 LLR 842 (Karn HC).
• Payment made to employees for working on holidays will attract ESI contributions as it will come within the purview of 'wages'.
Employees' State Insurance Corporation, Sub-Regional, Hubli v. Belgaum Milk Union, Belgaum, 2003 LLR 1106 (Karn HC).
• Good work wages being additional remuneration for extra work under the contract of employment would be wages to attract ESI contributions and the High Court has rightly confirmed the findings of the Employees' Insurance Court.
Modern Threads (I) Ltd. v. Employees' State Insurance Corporation, 2003 LIC 2216: (2003) 3 LLN 1171: 2003 LLR 861: 2003 (98) FLR 390 (Raj HC).
• Interim relief paid under the Government order as ex-gratia and not wages will not attract ESI's contributions.
Shree Sivakami Mills Ltd., Madurai (represented through Managing Director) v. Employees' State Insurance Corporation, Madras (through its Regional Director) Madras, 2001 LLR 370 (Mad HC).
• HRA cannot be excluded for ESI's contributions even when employer and employees have made a settlement for its exclusion.
Management of Oriental Hotels Ltd., Chennai v. Employees' Stale Insurance Corporation (represented by Regional Director), Chennai, (2001) 1 LLN 943: (2002) 1 LLJ 14: 2001 LLR 489 (Mad HC).
• Payment of service charge in lieu of tips are not wages for ESI's contributions.
Singanallur Co-operative Housing Society (represented by its Secretary), Coimbatore v. T. Sathyamoorthy (Deceased), 2002 LLR 591 (Mad HC).
• Overtime payment will attract ESI's contributions.
Employees' State Insurance Corporation v. P.B. Gupta, 2002 LLR 687: 2002 LIC 1014: 2002 (93) FLR 1147: 2002-1 LLJ 1143: 2002 (2) LLN 649 (Ori HC).
• Grant of canteen subsidies to the employees will not be wages for the purpose of ESI's contributions.
Employees' Stat~ Insurance Corporation v. Aluminium Industries Ltd., 2003 LLR 23 (Ker He).
• Overtime wages paid for loading and unloading to the employees will attract the ESI's contributions.
• Overtime wages paid for loading and unloading to the employees will attract the ESI's contributions.
EmpLoyees' State Insurance Corporation v. Aluminium Industries Ltd., 2003 LLR 23 (Ker He).
• Incentive bonus paid to employees as per settlement will be 'wages' for ESI contributions and the periodicity of such payment will be immaterial.
• Incentive bonus paid to employees as per settlement will be 'wages' for ESI contributions and the periodicity of such payment will be immaterial.
United Brewaries Ltd. v. Employees' State Insurance Corporation, (2003) 1 KLT 158: (2003) 1 LLN 694: (2003) 97 FLR 358: 2003 LLR 272 (Ker He).
• Payment of Bata made to running staff in a settlement will constitute 'wages' for ESI contributions when there is no evidence that such payment was to meet incidental expenditure.
Damodaran v. Employees' State Insurance Corporation, (2003) 1 KLT 395: (2003) 1 LLN 690: (2003) 1 CLR 911: (2003) II LLj 55: 2003 LLR 373: 2003 (97) FLR 451 (Ker HC)
• Ex-gratia payment made to the employees pursuit to a settlement under the Industrial Disputes Act will attract ESI's contributions.
Employees' State Insurance Corporation, Rep. by its Deputy Director, Hlibli v.' Sree Chandrodaya Mills Ltd., Rep, by its Managing Director, Davangere, 2003 LLR 842 (Karn HC).
• Payment made to employees for working on holidays will attract ESI contributions as it will come within the purview of 'wages'.
Employees' State Insurance Corporation, Sub-Regional, Hubli v. Belgaum Milk Union, Belgaum, 2003 LLR 1106 (Karn HC).
• Good work wages being additional remuneration for extra work under the contract of employment would be wages to attract ESI contributions and the High Court has rightly confirmed the findings of the Employees' Insurance Court.
Modern Threads (I) Ltd. v. Employees' State Insurance Corporation, 2003 LIC 2216: (2003) 3 LLN 1171: 2003 LLR 861: 2003 (98) FLR 390 (Raj HC).
• The payment of Inam, as voluntarily introduced by the employer to be paid to the employees to boost the production over a certain limit, will not be treated as 'wages' for ESI contributions.
Vijayawada Bottling Company Ltd. v. Employees' Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad, (2004) 3ALD 742: (2004) III LLJ 245: 2004 LLR 805 (AP HC).
• The expenditure incurred for building repair through contractor, will not attract the ESI contributions when the work was not connected with the work of the establishment.
Employees' State Insurance Corporation, Hyderabad v. A.P. Electrical Equipment Corporation a Unit of ECE Industries Ltd., Visakhapatnam, 2005 LLR 466 (AP HC).
• The payment, as made by the directions of the government as interim relief while referring the dispute for adjudication, will be treated as 'wages' to attract ESI contribution.
Employees' State Insurance Corporation v. Gnanambigai Mills Ltd., (2005) 6 SCC 67: (2005) 106 FLR 819: (2005) 5 SLR 361: (2005) 3 LLN 735: 2005 LLR 905 (SC).
• The efficiency award, being paid to the employees every week, will be treated as wages to attract ESI contributions.
Mohan Meakin Ltd. v. Employees' State Insurance Corporation, 2006 LLR 195 (HP HC).
• Medical services in ESI hospital/ dispensary to an insured employee fall within ambit of Consumer Protection Act.
Kishore LAI v. Chairman, Employees' State Insurance Corporation, 2007 LLR 740 (SC).
• Washing allowance would not be 'wages' for ESI contributions.
Regional Director (Tamil Nadu), Employees' State Insurance Corporation, Madras v. Mercury Travels Ltd., Rep. by its Regional Manager, Madras, 2007 LLR 953 (Mad HC).
• A company outsourcing jobs to other units for court will not be liable for ESI contributions in the absence of control over the employees of units.
Bihar Rubber Company Ltd. v. Employees' State Insurance Corporation, Patna, 2008 LLR 64 (Jhar HC).
• Additional remuneration in the nature of incentive will attract ESI contributions.
Regional Director, E.S.I. Corporation v. Hotel Alukkas, 2008 LLR 329 (Ker HC).
• ESI contribution on amount spent for repairs/maintenance not justified since the work was carried on by skilled and technical workers.
Regional Director, E.S.I.Corporation v. Hotel Alukkas, 2008 LLR 329 (Ker HC).
• Service charges distributed among hotel employees not to be 'wages' for ESI's contributions.
M/s. Quality Inn Southern Star v. The Regional Director, Employees State Insurance Corporation, 2008 LLR 119 (SC).
• Employer-employee relationship under ESI Act arises when a new factory commences the work.
E.S.I.C. v. Hotel Corporation of Delhi, 2008 LLR 640 (Del HC).
• No provident funds contribution on the back-wages if employee was not on duty.
Swastik Textile Engineers Pvt. Ltd. v, Virjibhai Mavjibhai Rathod, 2008 LLR 472 (Guj HC).
• ESI contributions not payable on freight, coolie, ironing, labour and conveyance expenses.
Regional Director, Employees' State Insurance Corporation v. Madhavi Enterprises, Madras, 2009 LLR 17 (Mad HC).
• Payment made to contractor to construct building does not amount to 'wages' under ESI Act.
Regional Director, ESI Corporation, Bangalore v. Managementt of Shagil Precision India, 2009 LLR 72 (Karn HC).
• A dharamshala, providing free accommodation to pilgrims will be an 'industry'.
Shree Marwari Seva Sangh, Varanasi v. State of U.P., 2009 LLR 41 (All HC).
• ESI contributions payable on wages to temporary packers and machinery maintainer.
Regional Director, Employees' State Insurance Corporation v. Madhavi Enterprises, Madras, 2009 LLR 17 (Mad HC).
(xii) MISCELLANEOUS
• Whether ESI Corporation is a contractual insurer or statutory insurer? Liability to pay contribution contemplated under sections 30 and 40, evidently, is statutory and on discharging the employer and/or the employee becomes entitled to enforce statutory rights in respect of benefits contemplated under the Act. Evidently, the Corporation is not a contractual insurer; but is a statutory insurer.
Employees' Slate Insurance Corporation (Indore) v. Swadeshi Daily Newspaper, Gwalior, (1992) 1 LLN 26L (1992) 1 CLR 406: 1992 LLR 141 (MP HC).
• Revenue Recovery Act, 1890 - Section 5 - Consistent default in making payment of ESI's contribution by the employer - Initiation of proceedings under sections 45-A & 85-B for determination of contribution as also quantifying the damages respectively various orders passed determining the quantum of contribution and damages - Order so passed not challenged by the employer under section 75 ¬Initiation of execution proceedings for recovery of amounts due - Employer challenged the recovery proceedings - Held, orders passed under sections 45A & 85B of the Act having not been challenged because final - Their execution cannot be challenged.
P.S. Ambikanathan v. Employees' State Insurance Corporation, 1992 LIC 67: 1992 LLR 645 (Mad HC).
• Contribution deposited with the ESI Corporation by the employer, both the shares (employee & employer) - Employer - If can claim refund unilaterally? No.
Employees' State Insurance Corporation (Indore) v. Swadeshi Daily Newspaper, Gwalior, (1992) 1 LLN 261: (1992) 1 CLR 406: 1992 LLR 141 (MP HC).
• ESI's contributions - Liability of employer - Establishment closed on 31.3.1,988 ¬Corporation calling upon the respondent/establishment on 23.6.1988 to pay the contribution - Effect of delayed action on the recovery proceedings? Not to be quashed since the notice for payment by the employer was simply a reminder to discharge his statutory obligations.
Employees' State Insurance Corporation v. M/s. Hotel Kalpaka International, (1993) 2 SCC 9:AIR 1993 SC 1530: 1993 LIC 416: (1993) 1 CLR 332: 1993 LLR 177 (SC).
• ESI's contributions due for the period prior to closure of an establishment covered under the Act - Whether recovery for realization of the said dues after the closure of the establishment - Justified? Yes.
Employees' State Insurance Corporation v. M/s. Hotel Kalpaka International, (1993) 2 sec 9:AIR 1993 SC 1530: (1993) 1 CLR 332: 1993 LLR 177: 1993 LIC 416: 1993 (1) LL1939: 1993 (82) FJR 204 (SC).
• Medical Board determining insured employee's disablement as 20% - Scope of interference in appeal by Employees' Insurance Court. There is very little scope for the court which is not technically equipped to assess the quantum of disablement or to interfere with the finding of the Medical Board on grounds which are not established before it or on compassionate grounds which cannot be tested by superior court.
Employees' State Insurance Corporation v. Pushkaran, 1993 LLR 997 (Ker HC).
• Permanent partial disablement - Defined and distinguished.
Employees' State Insurance Corporation v. Pushrakan, 1993 LLR 997 (Ker HC).
• Dependent benefit - Entitlement of widowed mother - Whether Insurance Court has correctly awarded the dependent benefits to the widowed mother of the deceased employee at full rate? No.
Employees' State Insurance Corporation, Hyderabad, through its Regional Director v. Amina Bee, 1993 LLR 672 (AP HC).
• Default in deposit of ESI's contribution by an employer on the ground that Code Number was not assigned cannot be justified.
Thirunelveli Cooperative Milk Supply Society Ltd. v. joint Regional Director, Employees' State Insurance Corporation, Madras, 1995 LLR 157; 1994-11 CLR 871; 1994 (69) FLR 744 (Mad HC).
• Deposit of ESI's contribution is a condition precedent for submission of returns.
Employees' State Insurance Corporation v. D.P. Sharma, (1995) 1 LLJ 872; 1995 LLR 147; 1994 (69) FLR 1082 (Kar HC).
• A resignation of an employee will not amount to penalty to attract the prohibitions of pertaining to dismissal of an employee as provided under section
73 of the Act. .
Ramakrishna v. Management of Bharat Electronics Ltd., 1995 LLR 538 (Kar HC).
• An insured employee meeting with an accident can claim compensation only under ESI Act and not under Motor Vehicles Act.
A. Trehan v. Associated Electrical Agencies, (j996) 4 SCC 255; AIR 1996 SC 1990; 1996 SCC (L&S) 928; 1996 LLR 674 (SC).
• Date of birth recorded in adult workers register and ESI identity card will not be conclusive proof.
Managing Director, Orissa Textile Mills Ltd. v. Mandardhar Naik, 1995 Supp (3) SCC 442; 1995 sec (L&S) 1921; 1996 LLR 215 (SC).
• Extension of the Act at selective places will not be violative of Constitution of India.
Khemchand Motial CCJ. Patel Tobacco and Kalr-Khan Mohd. Hanifv. Union of India, 1996 LLR 162: 1995-11 eLR 360; 1995-1 LLN 1002 (MP HC).
• The workman gets more compensation under ESI Act than under the Workmen's Compensation Act.
A. Trehan v. Associated Electrical Agencies, (j996) 4 SCC 255; AIR 1996 SC 1990; 1996 sec (L&S) 928: 1996 LLR 674 (SC).
• ESI Corporation will not pay compensation to an injured employee in an accident of a distance of one km. from the premises of the establishment.
Regional Director, Employees' State Insurance Corporation v. Francis De Costa, (1996) 6 sec 1: AIR 1997 SC 432, 1996 LLR 953 (SC).
• There will be no prohibition of section 73 of the Act when the termination of an employee is automatic.
Rajveer Singh v. Judge, Labour Court, (1996) 1 CLR 724: 1996 LLR 61 (Raj HC).
• An insured person for employment injury receives compensation or damages in a statute other than ESI Act since there is bar by section 53 of the Act.
Western India Plywood Ltd. v. Shri P. Ashokan, (1997) 7 sec 638: AIR 1997 SC 3883: 1997 (8) Supreme 260 (SC).
• Since the Act is a social and welfare legislation, the jurisdictional question and other issues should be tried together to avoid delay.
Vasunathi v. Employees' State Insurance Corporation, 1997 KLT 415 (Ker HC).
• On leasing out of a factory covered under the Act. the principal employer! Transferor will not be liable for the dues payable to ESI by the transferee! employer.
K.C. Thomas and Sons v. Regional Director, Employees' State Insurance Corporation, (1997) 1 KLJ 321: (1997) 3 LLN 640: 1997 LIC 2208 (Ker HC).
• The starting point for commencement of proceedings under section 77(lA) will not be from the date of medical certificate but the date of denial of benefits on the part of ESI corporation for an application to approach the EI Court.
Vasunathi v. Employees' State Insurance Corporation, 1997 KLT 415 (Ker HC).
• ESI cards not only should be dilly stamped but must show due compliance of deposit of contribution.
Sovrin Knit Works, v. Employees' State Insurance Corporation, (1996) 11 sec 758: AIR 1997 se 1771: 1997 LLR 197: 1997-11 LLN 12 (SC).
• While seeking exemption under section 88 of the Act application will be moved before the State Government.
New Victoria Mills Staff Association, Kanpur v. Nagpar, 1997 LLR 642 (All HC).
• Having exercised their option by filing application under the Act, dependents were not entitled to file application under Motor Vehicles Act because of bar created by section 53 of the ESI Act.
United India Insurance Company Ltd., Coimbatore v. Saraswathi, (1997) 2 CLR 684: (1997) 77 FLR 273: 1997 11 LLR 684 (Mad HC).
• Members of the cooperative society though working but being paid honorarium which varied as per profits earned by the Society will not be covered under the Act.
Armed Forces Ex.-officers Multi-Service Coop. Society Ltd. v. Employees' State Insurance Corporation, (1998) 78 FLR 307: 199711 CLR 1104 (Bom HC).
• An employee covered under ESI Act is debarred to claim compensation or damages under any other law.
Pandu d/o Shri Uma Charan Mishra v. Divisional Manager of Mndhya Pradesh State Road Transport Corporation, (1999) 111 LLJ (Supp) 28: 1998 LLR 135: 1998 (78) FLR 405 (MP HC).
• Medical allowance being given to employees cannot be discontinued merely because the employees come within the ESI Act. Also, the High Court can issue writ of mandamus instead of directing the petitioners to resort to the forum under section 75 of the Act.
Seshasayee Paper Mills v. Seshasayee Paper and Boards Ltd., (2000) 111 LLJ (Supp) 617: 1998 (92) FJR 148: 1998 LLR 251: 1998 (79) FLR 10 (Mad HC).
• For coverage under the ESI Act, the burden of proof lies upon the employer about number of employees as employed.
Garage Kamat, v. Regional Director, Employees' State Insurance Court, Bombay, (1998) 3 LLN 665: 1998 LLR 979: 1998 (80) FLR 360 (Bom HC).
• High Court will not interfere in the Order of Employees' Insurance Court directing employer to pay contribution on building repair amount.
Ralson (India) Ltd. v. Employees' State Insurance Corporation, Chandigarh, (1998) 2 PLR 822: 1998 LLR 1020: 1999 (81) FLR 897 (P&H HC).
• An employee covered under ESI Act is debarred to claim compensation or damages under any other law.
Pandu d/o. Shri Uma Charan Mishra v. Divisional Manager of Madhya Pradesh State Road Transport Corporation, (1999) III LL) (Supp) 28: 1998 LLR 135: 1998 (78) FLR405 (MP HC).
• Even delay of 12 years claiming compensation will be entertained against ESI's Corporation.
Puttathayamma v. Regional Director, Employees' State Insurance Corporation, 2000 LIC 2177: (2000) 86 FLR 101: (2000) II LL) 97: 1998 LLR 1159 (Kam HC).
• The Directors of a company will not be prosecuted for default in deposit of ESI's contributions.
Employees' State Insurance Corporation v. SK Aggarwal, (1998) 6 SCC 288: AIR 1998 SC 2676: (1998) 3 LLN 920: (1998) 2 LL) 794: 1998 LLR 806: 1998 (80) FLR 199 (SC).
• Mere submission of the employer to make arrangement for payment of arrears of ESI's contributions will not amount to criminal breach of trust.
Employees' State Insurance Corporation v. N. Arumugham, 1998 LLR 269 (Mad HC).
• An employee must have been member of ESI for 5 years before his superannuation to avail medical benefit after retirement.
Common Cause v. Union of India, (1998) 2 CLR 350: (1998) 3 LLN 1013: 1998 LLR 577: 1998 (79) FLR 954 (Del HC).
• Withdrawal of medical benefits on coverage of employees under the ESI Act after enhancement of salary ceiling, the appropriate remedy to the employees will be to raise an industrial dispute.
Indian Oxygen Employees' Union v. B.O.C India Ltd. (Formerly Indian Oxygen Ltd.), (1999) 95 FJR 443: (2000) 2 LLN 720: 1998-II LLJ 1248 (Mad HC).
• An employer can withdraw the medical facilities/benefits extended to the employees on their coverage under the ESI Act.
Indian Oxygen Employees' Union v. B.O.C Indian Ltd. (Formerly Indian Oxygen Ltd.), 1999 LLR 65 (Mad HC).
• Dry-cleaning process simply cleans clothes and does not come within the manufacturing process for ESI coverage.
Employees' State Insurance Corporation v. Triplex Dry Cleaners, (1998) 1 sec 196: (1998) 2 CLR 357: (1998) 3 LLN 574: 1998 II LLJ 106: 1999 (82) FLR 585 (SC).
• If the medical and other benefits provided by the employer are better then what they would get under ESI Scheme, it is for such employer to claim exemption under sections 87 to 91 of the ESI Act.
All Escorts Employees Union (Regd.) Faridabad v. Union of India, (1997) 77 FLR 832: 1998 II LLJ 1040 (P&H HC).
• E.S.I. Court cannot set aside the order levying penalty for default in contributions.
Employees' State Insurance Corporation v. Gogte Textiles Ltd., 1999 LLR 1043: 1999 (83) FLR 641 (Karn HC).
• Employees' Insurance Court can entertain a petition challenging levy of penalty by ESI Corporation.
Employees' State Insurance Corporation v. Hindustan Tile Works, 1999 LLR 1204: 1999 (83) FLR 290 (Ker HC).
• Employees Insurance Court cannot order for refund of money unless the proceeding is disposed of.
Employees' State Insurance Corporation v. Mackintosh Burn Ltd., (2000) 1 LLJ 155: 1999 (83) FLR 805 (Cal HC).
• Principal employer will be liable to pay ESI contributions of the employees if he has control to reject end products.
Padmini Products, Bangalore v. Regional Directors, Employees' State Insurance Corporation, Bangalore, (2000) 97 FJR 423: (2000) 2 CLR 361: 2000 LIC 1749: 2000 LLR 846 (Karn HC).
• In the absence of control of principal employer, no ESl's contribution will be payable.
Tata Tea Ltd. v. Employees' State Insurance Corporation, (2000) 96 FJR 603: (2000) 1 LLN 616: (2000) 86 FLR 248: 2000 LLR 1038 (Karn HC).
• When the injured workman continues to do same work without difficulty and gets same salary, it will not be 'loss of earning capacity.'
Prasanta Kumar Majhi v. Managing Director, Orissa Mining Corporation, Bhubaneswar, 2001 LLR 695 (Ori HC).
• Neither the employer nor the employees have option to withhold ESI's contributions.
Management of Oriental Hotels Ltd., Chennai v. Employees' State Insurance Corporation (represented by Regional Director), Chennai, (2001) 1 LLN 943: (2002) 1 LLJ 14: 2001 LLR 489 (Mad HC).
• ESI benefit will be available for disability for an extended period.
Employees' State Insurance Corporation v. M.P. Ranganayakalu Naidu, 2001 LLR 513 (Karn HC).
• Determination of ESI's contributions without affording opportunity to the employer will not be legal.
Employees' State Insurance Corporation, Jaipur v. Bharat Motors, Sri Ganganagar, 2001 LLR 49 (Raj HC).
• Persons engaged on commission basis for delivery of gas cylinders will not be covered by ESI Act.
Employees' State Insurance Corporation, Regional Office v. Technico, (2001) 1 LLJ 365: 2001 LLR 358 (Gau HC).
• Regional Director and not ESI Inspector can determine ESl's contributions.
Employees' State Insurance Corporation, Jaipur v. Bharat Motors, Sri Ganganagar, 2001 LLR 49 (Raj HC).
• Expenditure for construction of compound wall will not attract ESI's contributions.
Employees' State Insurance Corporation v. Standard Pottery Works, (2001) 3 KLT 55: (2001) 2 KLT 258: 2001 LLR 1246 (Ker HC).
• Employees' State Insurance authorities are empowered to make comprehensive record inspection to determine the liability for contributions.
Regal Steel Works v. Employees' State Insurance Corporation, (2002) 2 LLJ 45: (2002) 92 FLR 606: 2002 LLR 326 (Cal HC).
• Incentive as paid quarterly by the employer will not attract ESI's contributions.
Employees' State Insurance Corporation, Bangalore v. Lamina Suspension Products Pvt. Ltd., New Mangalore, 2002 LLR 558 (Karn HC).
• Accidental fall of a workman before joining his duty will not make him eligible for compensation.
Employees' State Insurance Corporation, Calcutta v. Abdus Salam, (2003) 96 FLR 129: (2003) 2 CLR 51: (2003) 1 LLJ 765: 2003 LLR 216 (Cal HC).
• Non-payment of contributions will not affect the availing of ESI benefits by an employee.
Bharaqgath Engineering v. R. Ranganayaki, (2003) 2 SCC 138: (2003) I LLJ 558: (2003) 1 LLN 819: 2003 LLR 227 (SC),
• When the employer fails to file the return and prevents the ESI inspector from discharging his duties, he cannot challenge the determination of contributions made by the ESI Corporation,
Sambunath Sen, Proprietor, East India Glass Industries v. Employees' State Insurance Corporation, (2002) 95 FLR 810: 2003 LLR 361: 2003•1 LLJ 347 (Cal HC).
• Demanding ESI contributions without making determination by giving show cause notice to the employer as prescribed by section 45A of the ESI Act will not be justified and the High Court rightly rejected the appeal by ESIC against EI Court since no substantial question of law was involved.
Employees' State Insurance Corporation v. Depot of Manager, Uttar Pradesh SNTC Indore, Labour Court (ES)), Indore, 2003 LLR 379 (MP HC).
• Employees and not the employer will be liable for payment of interest on late payment of ESI contributions since the employees have obtained the stay of the notification dated 16-12-1996 whereby the salary ceiling of coverage of employees was enhanced from Rs. 3000 to Rs. 6500 per month.
Fenner India Ltd. v. Joint Regional Director, Employees' State Insurance Corporation, (2003) 98 FLR 188: (2003) II CLR 251: (2003) 11 LLJ 477: 2003 LLR 526: 2003-11 LLN 48 (Mad HC).
• The dependants of the deceased employee will not be entitled to benefits under the ESI Act since the deceased has died due to electrocution in bore well situated near the quarter on that relevant date and there was no connection between the cause of death and the employment.
Mummidipalli Syamaladevi v. Regional Director, Employees' State Insurance Corporation, 2003 LLR 538: 2003 (97) FLR 372 (AP HC).
• Power to exempt from coverage of an establishment under the ESI Act vests with the Government hence ESI Corporation cannot merely by a letter express the opinion that the employees engaged through the contractor would not come under the provisions of the Act.
Employees' State Insurance Corporation v. FACT Engineering Works, (2002) 3 KLT 467: 2002 LIC 3909: (2603) 1 CLR 578: 2003 LLR 619: 2003 (97) FLR 308 (Ker HC),
• An occupier of the factory under the Factories Act need not necessarily be the principal employer under the ESI Act; he can even be an officer or manager of the factory.
Employees' State Insurance Corporation v. FACT Engineering Works, (2002) 3 KLT 467: 2002 LIC 3909: (2003) 1 CLR 578: 2003 LLR 619: 2003 (97) FLR 308 (Ker HC).
• The ESI contribution can be recovered from the principal employer despite the fact that the contractor is employer for his workers.
Employees' State Insurance Corporation v. FACT Engineering Works, (2002) 3 KLT 467: 2002 LIC 3909: (2003) 1 CLR 578: 2003 LLR 619: 2003 (97) FLR 308 (Ker HC).
• Compensation to the dependants of the deceased who died in an accident while driving a scooter owned by the employer cannot be denied merely on the ground that he was not permanently employed, hence High Court will not interfere in the award of the Compensation Commissioner.
National Insurance Company Ltd. v. Nimmy, 2003 LLR 620: 2003-1I LLN 674 (Ker HC).
• Benefit of disablement under ESI Act will not be available to an employee who has crossed the wage ceiling at the time of injury even though contributions for that period have been paid.
Employees' State Insurance Corporation (represented by Regional Director), Chennai v. M. Ganesan, 2003 LLR 781: 2003-11 LLN 646: 2003-1I LLJ 895 (Mad HC).
• Employees' State Insurance Act, being a welfare legislation, the Courts should give liberal interpretation to its provisions which are beneficial to the employees.
Kumbakonam Milk Supply Coop. Society (rep. by its Secretary) v. Regional Director, Employees' State Insurance Corporation, Madras, (2003) 2 CLR 738: (2003) 3 LLN 303: (2003) III LLJ 416: 2003 LLR 844: 2003 (98) FLR 1108 (Mad HC).
• The dependants of the deceased, who died of heart attack while engaged in distribution of milk on a bicycle, will be entitled to get dependant benefits from the ESIC when the employee was covered under the Employees' State Insurance Act.
Chandramathi v. Employees' State Insurance Corporation, 2003 LLR 950: 2003-111 LLJ 1122 (Ker HC).
• Timely payment of ESI's contributions is the responsibility of the employer and does not depend upon actual disbursement of wages and, as such, an employer cannot escape its obligation by taking the plea that the Company has become sick and the scheme for its rehabilitation has been sanctioned by BIFR.
Employees' State Insurance Corporation, Sub-Regional Office, Hubli v, AP.S. Star Industries Ltd., Dharwad, (2003) 4 Kant LJ 297: (2003) 3 LLN 594: 2003 LLR 972: 2003-III LLJ 411: 2003 (98) FLR 1207 (Karn HC).
• The ESI Corporation will be debarred from making any claim after 5 years from the date on which it has arisen by virtue of section 77(1a) (b) proviso. Hence, the Full Bench set aside the judgment of Division Bench in holding that by a legal fiction contained in proviso (b), the cause of action in respect of claim by the Corporation from the principal employer arises on the date on which the Corporation makes the claim for the first time.
Employees' State Insurance Corporation v. Excel Glasses Ltd., 2003 LLR 987: 2003-III LLN 1142 (Ker HC).
• The dependants of a deceased employee will be entitled to ESI benefits even when on the date of death he had ceased to be a member due to crossing the wage ceiling but the contribution for that corresponding period was paid.
Employees' State Insurance Corporation, Chennai v, (1) S. Savithri (2) Binny Ltd., Engineering Division, Chennai, (2003) 2 MLJ 521: (2003) 2 CLR 945: 2003 LLR 1085: 2003-III LLJ 250: 2003-II1 LLN 1073 (Mad HC).
• When the employee had died in the course of his employment, i.e., during the period of his employment in the factory, it must be presumed that accident leading to his death had arisen out of his employment when there is no evidence to the contrary.
Saraswathi Bai v. Regional Director, Employees' State Insurance Corporation, Bangalore, (2004) 1 LLJ 623: 2004 LLR 35 (Karn HC).
• High Court in a revision petition will not interfere with the orders of Criminal Court imposing sentence less than the minimum as prescribed under the ESI Act for non-payment of contribution since the proviso to section 85 empowers to impose sentence less than the minimum as prescribed more particularly when the accused has paid the contributions during the pendency of the criminal trial.
Employees' State Insurance Corporation, Bangalore v. A.K. Abdul Samad, (2004) 1 LLJ 643: 2004 LLR 145 (Karn HC).
• When the Employees' Insurance Court has ignored the law as laid down by the Apex Court for applicability of the ESI Act, for including the employees working at Head Office situated at Dewas, the matter will be remanded back for fresh decision in the light of the law, as laid down.
Employees' State Insurance Corporation, Indore v. Hind Syntax Ltd., 2004 LLR 260: 2004 (100) FLR 586 (MP-HC).
• The Employees Insurance Court has committed an error in law in not examining the definition of 'wages' as stated in section 2(22) of the Act in holding that the payment towards encashment of leave will not attract contributions, hence the impugned order was passed ignoring the relevant provision of law.
Employees' State Insurance Corporation, Bangalore v. Mizar Govind Annappa Pai & Sons, Mangalore, 2004 LLR 286 (Karn HC).
• When the construction of buildings is carried out by the contractor along with material, the labour• cost for ESI contribution will be 25% of the total amount.
Regional Director, Employees' State Insurance Corporation, Madras v. Sundaram Clayton Ltd., Moppet Divn. (Regd.Office Madras, (2004) 1 LLN 630: (2004) II LLJ 30: 2004 LLR 621 (Mad HC).
• The order of Employees' Insurance Court fixing 17% instead of 25% labour charges will not be tenable when the employer has failed to produce evidence/ record showing the break-up.
Regional Director, Employees' State Insurance Corporation, Madras v. Sundaram Clayton Ltd., Moppet Divn. (Regd.Office Madras, 2004 LLR 621 (Mad HC).
• Mere coverage of a contractor's employee in ESI by the principal employer cannot be a factor to establish the relationship of employer and employee particularly when he is to ensure the same.
Deccan Chronicle (Rep. by its Managing Partner T. Venkatram Reddy) v. G. Pedda Reddy, (2004) 4 ALD 382: (2004) 103 FLR 359: 2004 LLR 809 (AP HC).
• When ESI Corporation has received contribution under section 2(9)(b) of the Act from 'employee' on the date of accident, it cannot escape its liability.
Regional Director, Employees' State Insurance Corporation Bhubaneswar v. Prafulla Kumar Padhee, 2004 LLR 917 (Ori HC).
• ESI Act, being a social welfare legislation, has to be interpreted liberally in extending benefits to the concerned workers.
Vellipalaym Co-operative Milk Supply Society v. Regional Director, Employees' State Insurance Corporation, Madras, (2004) 2 CTC 494: (2004) 3 MLJ 315: 2004 LLR 887 (Mad HC).
• A plea of the ESI Corporation that the workers engaged in transport of cylinders were under supervision of the Company will not be tenable when reliance has been made on the trip sheets.
BOC India Ltd., Calcutta v. Assistant Regional Director, ESI Corporation, Hyderabad, 2005 LLR 4 (AP HC).
• Despite provision for an appeal against the order of Employees' Insurance Court, there is no bar to file petition under Article 227 of the Constitution of India.
Employees' State Insurance Corporation, Calcutta v. Steel Authority of India Ltd" Durgapur Steel Plant, Durgapur, 2005 LLR 196 (Cal HC).
• Once the establishment is covered under the ESI Act, it becomes liable to pay the contributions.
State through the Manager, Employees' State Insurance Corporation, Gulbarga v. Kranthi Kumar, 2005 LLR 376 (Karn HC).
• Two units, though owned differently - one being wholesale and the other retail section, will be integrated and not independent.
Regional Director, EST Corporation, Madras Y. Aruna Stores, Proprietor .J Shantha, 2005 LLR 500 (Mad HC).
• The list of seasonal factories, as enumerated under section 2(19-A) of the EST Act is only illustrative and not exhaustive.
Employees' State Insurance Corporation, Hyderabad v. Chirala Cooperative Spinning Mills Ltd., Chirala, Prakasam District, 2005-1 LLJ 1016 (AP HC).
• For recovery of dues, ESI Authorities are empowered to attach the bank accounts of the defaulting employer.
Ranchi Refractories v. Regional Director, Employees' State Insurance, Patna, 2005 LLR 620 (lhar HC).
• An employer will have to pay last drawn wages to a workman when he chooses to challenge an award granting reinstatement to the workman.
Management of National Institute of Port Management, Chennai v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Chennai, 2005 LLR 586 (Mad HC).
• Business of interior decorations, furnishers or designers by different workers and different contractors has no nexus nor functional integrality or inter¬changeability.
Regional Director, Employees State Insurance Corporation v. Reliance Corporation, 2005 LLR 70S: 2005 II CLR 471 (Bom HC).
• Employees' Insurance Court and not the High Court will be the appropriate forum for challenging the notification about coverage of a hotel under ESI Act.
All India Trade Union Congress, Unit Hotel Agra v. Director General, ESIC New Delhi, 2005 LLR S06 (All HC).
• Failure of the complainant from ESIC to prove that the accused was having control over the affairs of the Company will justify rejection of the complaint.
Employees' State insurance Corporation v. M/s. Cortalim Shipyard and Engineers (Pvt.) Ltd., Goa, 2005 LLR 913 (Bom HC).
• Clubbing of the restaurant, as owned by the lessee, will not be justified for coverage under the ESI Scheme because both are independent.
Vrindavan Hotels (Pvt.) Ltd. v. Employees' State Insurance Corporation, 2005 LLR 991 (Ker HC).
• Principal employer cannot thwart the liability for payment of ESI contributions on the ground that the contractor has sufficient strength of the employees to cover them independently.
Regional Director, Employees' State Insurance Corporation v, Hindustan Lever Ltd., 2005 LLR 989 (Ker, HC).
• Waiver of deposit of 50% of the amount, as demanded by the ESI Corporation, will not be tenable.
Nizam Club rep. by its Secretary v. Employees' State Insurance Corporation, 2005 LLR 1038 (AP HC).
• Payment of statutory interest on delayed deposit of ESI contributions cannot be waived even when the EI Court has granted payment by installments.
Employees' State Insurance Corporation v. Bagsvig, 2005 LLR 983 (Ker HC).
• If an employee dies of natural disease, his dependents will not be entitled to ESI benefits.
ESI Corporation v. Sainaba, 2005 LLR 1214 (Ker HC).
• No ESI contributions will be paid on the salaries paid to the School employees since the School is a different entity.
Mohan Meakin Ltd. v. Employees' State Insurance Corporation, 2006 LLR 195 (HP HC).
• An employee, even though standing at the bus stand, will be entitled to the compensation on motor accident under the ESI Act.
United India Insurance Company Ltd., Bombay v. Vijaya R. Baait, (2005) 4 Mah LJ 1018: 2006 LLR 255 (Bom HC).
• Even when the Code Number is not allotted by the ESI Authorities, it will not justify the action of not depositing the ESI contributions.
Sawarmal Agarwalla v. State of Assam, 2006 LLR (SN) 539 (Gau HC).
• A complaint made by the ESI Inspector will not be quashed when it discloses the commission of offence by the employer.
Sawarmal Agarwalla v. State of Assam, 2006 LLR (SN) 539 (Gau HC).
• Report of Private Medical Practitioner is not admissible under ESI Act.
Employees' State Insurance Corporation, Kanpur v. Lallan, 2006 LLR 898 (All HC).
• Exempting persons or class of persons from coverage under ESI Act should not be in a mechanical manner hence an employer, seeking exemption under ESI Act, has to prove that medical facilities and other benefits as extended to employees are better than those under the ESI Act.
Lark Laboratories (India) Ltd. v. Government of National Capital Territory of Delhi, 2006 LLR 1093 (Del HC).
• Fastening liability for ESI contribution, without affording an opportunity, will not be tenable.
DU Power Ltd. v. Employees' State Insurance Corporation, 2006 LLR 1110 (P&H HC).
• When father and son are living in the same house, recovery of ESI contributions will not be stalled on ground that father does not know whereabouts of his son.
M.R. Khanna v. Union of India, 2006 LLR 1249 (Del HC).
• An employee, even covered under ESI scheme, can take treatment from a private doctor.
Advance Engineering Corporation v, Presiding Officer, Labour Court No.II, 2007 LLR 198 (Del HC).
• The principal employer will be liable to pay ESI contributions pertaining to the workers engaged for repair of building.
Employees' State Insurance Corporation v. New Taj Mahal Cafe (Pvt.) Ltd., 2007 LLR 214 (Karn HC).
• For coverage under ESI, the establishment has to get details of the contractor's employees at the commencement of their employment.
Employees' State Insurance Corporation v. New Taj Mahal Cafe (Pvt.) Ltd., 2007 LLR 214 (Karn HC).
• Members of the Society, taking yarn beams, preparing and supplying back the finished goods, will be covered under ESI.
Employees' State Insurance Corporation v. Krishnaveni Hatmag Vinkar Sahakari Society Ltd., 2007 LLR 288 (Bom HC).
• Principal employer can't insist that ESI Authorities should summon the contractors for determination of contributions.
Bharat Heavy Electricals Ltd., Trichy v. Employees' State Insurance Corporation Rep. by its Regional Director, Chennai, 2007 LLR (SN) 319 (Mad HC).
• High Court will not interfere with the order of Employees' Insurance Court reducing the damages for delayed payment of contributions.
Employees' State Insurance Corporation v. K.N. Premanandan, 2007 LLR 527 (Ker HC).
• Director of a Company cannot be personally held liable for payment of ESI dues since it is the liability of the Company.
Shiv Prakash Sheth v. State of Maharashtra High Court, Bombay, 2007 LLR 643 (Bom HC).
• Cessation of employment is no ground to deny ESI disablement benefits when conditions are complied with.
Regional Director, Employees' State Insurance Corporation v. Prakashan, 2007 LLR 615 (Ker HC).
• ESI contributions cannot be claimed from an employer when an application for grant of exemption is pending.
H.N. Pareek & Co., Jamshedpur v. State of Jharkhand, 2007 LLR 635 (Jhar HC).
• Stating reasons for waiver or reduction of 50% of the demanded amount before Employees' Insurance Court is not obligatory.
Sharifuddin @ Banwari v. Labour Court, Agra, 2007 LLR 753 (All HC).
• An employer, not supervising work of contractor's employees, will not be liable for their ESI contributions.
National India Rubber Works Ltd. v. Employees' State Insurance Corporation, through its Regional Director M.P., 2007 LLR 838 (MP HC).
• Even after cessation of ESI membership, disablement benefit will remain for certain period.
ESI Corporation v. Suresh Babu, 2007 LLR 1053 (Ker HC).
• Authorities can make recoveries of ESI contributions without approaching the EI Court.
Bhaslmran v. Asstt. Director, Employees' State Insurance Corporation, 2007 LLR 1061 (Ker HC).
• Demand for ESI contributions is liable to be stayed when application of the employer for seeking exemption pending.
M/s. Bharat Caterers, Jamshedpur v. State of Jharkhand, 2008 LLR 110 (SN) (Jhar HC).
• Employees' Insurance Court erred in holding that the appellant ought to have deposited contribution on its own when there was no coverage.
Rayalaseema Concrete Sleepers Pvt. Ltd. v. Employees' State Insurance Corporation, 2008 LLR 316 (AP HC).
• -Levy of ESI contributions without affording opportunity for personal hearing to the employer is liable to be quashed.
Employees' State Insurance Corporation v. R.P.M. Engineers, 2008 LLR 219 (SN) (Mad HC).
• On denial by employer, employing 10 or more persons, burden will be upon the ESIC.
Employees State Insurance Corporation v. Baby Francis, 2008 LLR 462 (Ker HC).
• Two petrol pumps at different locations, having functional integrality, will be treated as single entity for coverage under ESI Act.
Assistant Regional Director, Employees' State Insurance Corporation v. Kolhapur Motor Malak Sangh Ltd., 2007 LLR 1242 (Bom HC).
• Principal employer being ultimately liable to pay ESI contributions has to be heard for default by the
contractor.
Bharat Heavy Electricals Ltd. v. ESI Corporation, 2008 LLR 562 (SC).
• ESIC will not be liable to pay compensation for injuries suffered by the employee, having crossed salary ceiling.
P.B. Krishnankutty Nair v. Regional Director, Employees' State Insurance Corporation, 2008 LLR 768 (SC).
• Rejection the renewal of exemption by the ESI Authorities was not proper when the existing facilities to the employees were not reduced.
Tata Yodogawa Ltd. v. State of Bihar, 2008 LLR 781 (SN) (Jhar HC).
• When father allows his son to use the premises for different type of business, their establishments cannot be clubbed for coverage under ESI Act.
ESIC v. Ved Prakash Gupta, 2008 LLR 881 (Del HC).
• Coverage prior to 1984 will not be justified when ESIC did not prove that the establishment was employing more than ten employees.
Regional Director, Employees' State Insurance Corporation, Madras v. Bapuji Press (represented by its Manager), Madras, 2008 LLR 812 (Mad HC).
• For clubbing of more than one establishment, unity of ownership, functional integration and interchangeability of employees have to be viewed cumulatively and not in isolation.
ESIC v. Ved Parkash Gupta, 2008 LLR 881 (Del HC).
• No appeal will lie in High Court against the Employees' Insurance Court interlocutory order.
Employees' State Insurance Corporation, Pune v. Force Motors Ltd., (formerly known as Bajaj Tempo Ltd.), Pune, 2008 LLR 977 (Bom HC).
• ESI Corporation must furnish relevant information to concerned employer before recovery of dues.
D.C.M. Shriram Consolidated Ltd. v. Employees' Insurance Court, Delhi, 2008 LLR 1018 (Del HC).
• High Court will not interfere in the factual finding of Insurance Court.
Regional Director, Employees' State Insurance Corporation v. Anandha Silks Paradise, 2008 LLR 1243 (Mad HC).
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