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A writ petition was filed by a printing press stating that it was not liable to pay any amount under the provisions of the Employees State Insurance Act to the security personnel engaged by it.
The petitioner contended that the security personnel were deputed by an outside agency and at any time, not more than 2 were present and that the security agency itself was having a separate ESI code number. In the absence of the printing press having more than 10 persons, it was not liable to pay any amount as it was not covered by the provisions of the Employees State Insurance Act.
Hall Mark Printers
Hearing the petition from Hall Mark Printers Pvt Ltd., Perungudi, Chennai 600 096, challenging an order dated February 20, 2002 of the respondent ESI Corporation, wherein and by which the petitioner was informed that it had not made contributions for the period October1993 to March 2001 and the petitioner was asked to explain as to why it should not be mulct with the liability to pay the amount, Mr Justice K. Chandru noted that though the respondent had raised the contention that the order passed u/s 45A of the ESI Act had to be challenged only by raising a dispute u/s 75, it must be noted that the respondent also had liability to consider the explanation given by the petitioner.
It was an admitted case of both sides that the service personnel were not directly employed by the petitioner-company and they were outsourced by a security agency called Security Counsel and that agency itself had ESI Code, the Judge observed.
On behalf of the respondent ESI Corporation, it was pointed out that in a judgment of the Supreme Court in Saraswath Films vs Regional Director, ESI Corpn, Trichur [reported in 2002 (III) LLJ 169], it was held that even if the security agency sent guards by rotation, they would also be employees within the meaning of Sec 2(9) of the ESI Act as they were engaged through the agency. The definition of term ‘employee' in Sec 2(9) was very wide to cover persons employed by or though an immediate employer in the premises of the establishment.
In the present case, the Judge said, there was no evidence to show that the security guards were discharging the functions of the printing press.
Besides, in the apex court judgment, there was no evidence to show that the security agency itself was having a separate ESI account with the code number as in the present case.
Pending for 8 years
Though the petitioner could have been driven to decide the said question before the ESI court under Sec 75 as contended by the respondent ESI, in the present case, it was unnecessary to do so.
When the reply of the petitioner had not received due attention and relevant particulars had been omitted before passing the impugned order, it was unnecessary to drive parties to the decision of another forum, the Judge ruled. Further, this matter had been pending for last 8 years before this Court.
In view of the above, it must be held that the impugned order was passed with utter mechanical application of mind.
Hence, the impugned order stood set aside. The writ petition would stand allowed.
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