Get 1 point on adding a valid citation to this judgment. The relevant section in Chapter IV, which deals with the order passed by the Corporation is Section 45-A. Assailing those orders, some of the employers moved the Employees' State Insurance Court (in short “the ESI Court”) in the State of Kerala. A non-speaking order of EPF Tribunal will be unsustainable. (Rajgopala Naidi v. State Transport Appellate Authority. (Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments). 13. 15. 15000 P.M. Secretary M.O.L has written to Secretary M.O. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77(1-A)(b). 10. A Perfect Laws Portal for lawyers and Law Students of Gujarat. Since no application need be filed by the Corporation after an order is passed under Section 45-A, the limitation prescribed under Section 77 does not get attracted. EPFO and ESIC HAVE REQUESTED ALL THE Employers to not to cut Salaries of their employees who are not able to work due to diseases or social distances beside not to resort to layoff of their employees as per call given by the Honble P.M. EPFO to ensure credit of Pension to EPS Pensioners BY 30TH March 2020. Proviso to clause (b) of Section 77(1-A) was introduced by act 29 of 1989 with effect from 20-10-1989. 16. As such, the amendment to Section 77(1-A)(b) proviso by Act 29 of 1989 providing five-year limitation has no relevance so far as orders passed by the Corporation under Section 45-A are concerned. Whether a person is employee under the EPF Act or not –shall be examined by all the courts and authorities under the Act. 37. 38. Similarly, the relevant section in Chapter VI, which deals with the resolving of disputes between the employer and the Corporation by the ESI Court, is section 77(1-a). It may not be final so far as the employer is concerned, if he chooses to challenge it by filing an application under Section 75 of the Act. 14. 30. benefits being covered under the definition of employee–, In case of condonation of delay beyond limitation period, EPF Authorities will have to prove that the order was served at the correct address. So, the non-availability of the records after five years, as per the Regulations, would not debar the Corporation to determine the amount of arrears. By Amendment Act 29 of 1989, Sections 45-C to 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law or the ESI Court. The mode of recovery is provided under Sections 45-C to 45-I. Ukuwiswa: Esi sigwebo sawiswa In the present case, the controversy centres on the proviso to clause (b) of Section 77(1-A). (Regional Provident Fund Commissioner vs. S.K .Joshi), Industries are run independently (none being minor, incidental or feeding to other s), then the factory would stand attracted by the Act, if any of them is a schedule industry. What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. 21. Under Section 68(2) and Sections 45-C to 45-I, after determination of contribution, recovery can be made straightaway. Per contra, learned counsel for the Corporation submitted that the Kerala High Court failed to take notice of the fact that section 77(1-a) operates in different background and has no relation to a dispute raised by an employer to the demand raised for contribution by the Corporation. The learned counsel for the accused has relied upon the case law reported in 2006 on line Kar. ... practice and competency cases. Appeal filled in EPFAT against show cause notice for recovery is not tenable. 15. All rights reserved. Sections 45-A and 45-B in Chapter IV were introduced by act 44 of 1966 with effect from 17-6-1967, in order to curb the default by the employers and to provide for an efficient method of recovery. EPFO may bring amendment so that workers can draw upto 75% non refundable advance or three months wages in advance whichever is less. 2. ��� In dilemma to claim or not? The determination of the claim is left to the Corporation, which is based on the information available to it. (NOC323) 91 in a case between ESIC, Bangalore Vs. Rakesh Kulkarni & Another. Section 60 prescribes that the benefits are not assignable to anyone else. can not be the basis for coverage under the Act. The said Chapter does not impose any fetter or limitation for the Corporation to recover the amounts by coercive process. Sections 45-A and 45-B. Recovery can be made from the transferee of establishment. Since factual disputes were involved regarding the actual number of employees, the writ petitions were not maintainable and the High Court has rightly clarified the position in law though it could have thrown out the writ petitions on the ground that alternative forum of redressal was available. Section 45-B provides that the contribution payable under the Act may be recovered as arrears of land revenue. 746: (2008) 6 Kant LJ 266: (2008) 1 AIR Kant R 544: (2008) 119 FLR 1003: 2008 Cri.L.J. The Gujarat High Court in a recent case has held that RPFC cannot challenge the order of EPFAT since he is an adjudicating authority exercising power of quasi – judicial nature to determine the list. Section 76 relates to the institution of the proceedings. Therefore, if the provisions of section 45-a are read with Section 45-B of the Act, then, the determination made by the Corporation is concerned. If the employer fails to challenge the said determination under Section 75 of the Act before the Court, then the determination under Section 45-A becomes final against the employer as well. EPF dues not to be determined on closed establishments. The Hon’ble Supreme Court in the matter of Surya Roshni Ltd. Employee of the shops situated inside the Hotel are not coverable. (2) Subject to the provisions of sub-section (2-A), Sections 45-A and 45-B in Chapter IV and Sections 75, Section 45-C to Section 45-I.45-B. Reduction of damages for delayed payment of provident fund dues proper if imposed without ascertaining the case of delay. Thereafter Sections 45-C to 45-I were introduced, prescribing the mode of recovery. Howeve��� ESIC Circular dated 31/07/2015 along with judgment of Bombay HC stayed A remunerated partner is not employee of the the firm. and pay only if you like it. 12. P.F. (Cemindia Co. Ltd. v. Rachubhai N. The Delhi High Court allowed the petitioner establishment to deposit the entire balance amount in 15 equal installments, as per circular of EPFO dt. It is clear, therefore, that the right of the Corporation to recover these amounts by coercive process is not restricted by any limitation nor could the Government by recourse to the rule-making power prescribe a period in the teeth of Section 68. In Employees' State Insurance Corporation v. F. Fibre Bangalore (P) Ltd.. 1997 1 SCC 625 it was observed that it is not necessary for the Corporation to seek a resolution of the dispute before the ESI Court, while the order was passed under Section 45-A. Further, the Judgement on the allowability of late deposit of ESI and EPF contribution are as follows: CIT Vs kichha Sugar co Ltd 2013- TIOL-450-HC-UK-IT It was held that due date mentioned in section 36(1)(va) would mean due date as mentioned in the proviso to section 43B i.e due date of return as prescribed in section 139 (1) Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. Before confirming, please ensure that you have thoroughly read and verified the judgment. 6. for coverage deserves to be quashed being non speaking order – case remanded back – Rajasthan High Court in Sarda Gum & Chemicals V. UOI & ors. Delivered: This judgment was handed down electronically by circulation to the parties��� representatives by email, publication on the Supreme Court of Appeal website and release to SAAFLII. Ass per Notice dated 16-03-2020, ESIC has extended the date of deposition of ESI contributions for the month of FEBRUARY and MARCH 2020 upto 15 th April and 15 th May2020 respectively instead of 15th March and 15th April2020 respectively. It provides that the date on which the Corporation makes the claim from the principal employer for recovering the contributions including interest and damages shall be the date of cause of action. Some of the appeals are by the Employees' State Insurance Corporation (in short “the Corporation”) while some others are by the employers. EPF authority may ask the employer for installation of CCTV cameras for ascertaining number of workmen employed. shall not be counted, and, (iii) employment of few persons on account of some emergency, or for a short period, necessitated by some abnormal emergency, which is not a regular feature of the business the estt. Rules for regular staff do not apply to contractual employees – Supreme Court in Gridco Ltd. V. Sri Sadanand Doloi & ors. Prior to the incorporation of Section 45-A under Act 44 of 1966, the only resort available to the Corporation was Section 75, for recovery of contribution through the court. It was submitted that even if it is conceded for the sake of argument that Section 77(1-A)(b) does not provide for a period of limitation the concept of claim being raised during a reasonable period of time is inbuilt, otherwise the action would be arbitrary. The inevitable conclusion, therefore, is that the view of the Full Bench of the Kerala High Court is not correct and that of the Madras High Court is correct. Click here to remove this judgment from your profile. Methods: 50 representative emergency department (ED) scenarios derived from actual cases were presented to 18 ED nurses from three different hospitals. In clause (b), the starting point for the accrual of the cause of action for the principal employer has been fixed. P.F. Section 45-A of the Act contemplates a summary method to determine contribution in case of deliberate default on the part of the employer. If the period of limitation, prescribed under proviso (b) of Section 77(1-A) is read into the provisions of section 45-a, it would defeat the very purpose of enacting Sections 45-A and 45-B. The order under Section 45-A need not be executed by the Corporation before the ESI Court under Section 77. EPF contribution for non identifiable persons not justified. Raval. (RPFC v. T .S. Section 45-A(2) provides that the order under section 45-a(1) shall be used as sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as arrears of land revenue under Section 45-B. 491-92, paras 5-6. Click here to preview the 'Legal Briefs' facility Click here to preview the 'Latest Judgments' facility Click here to activate your 'Latest Judgments' facility 23. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77(1-A)(b). Authority cannot challenge the judgment of EPF Appellate Tribunal setting aside its order – Kerala H.C. in APFC V. West Coast Petroleum Agency. Higher pension can be given if additional amount is deposited (MP HC), Order under section 8F is illegal before the expiry of limitation period of 60 days in filling appeal, Enquiry U/s 7 – A is judicial by fiction – (Supreme Court), P.F. The prescription of limitation under Section 77(1-A)(b) of the Act has not been made applicable to the adjudication proceedings under Section 45-A by the legislature, since such a restriction would restrict the right of the Corporation to determine the claims under Section 45-A and the right of recovery under Section 45-B and, further, it would give benefit to an unscrupulous employer. The proviso to sub-section (1-A)(b) of Section 77 of the Act cannot independently give any meaning without reference to the main provision, namely, Section 77 of the Act. EPF authority can draw adverse inference if records are not produced before him. 9. Estt. Attendance & wage registers if not authenticated by any government agency, are not cogent piece of evidence. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. In other words, when there is a failure in production of records and when there is no cooperation, the Corporation can determine the amount and recover the same as arrears of land revenue under Section 45-B. Section 45-A provides for determination of contributions in certain cases. Isusance of warrant of arrest & deletion without following the relevant rules is not justified (i) Karnataka High Court in R. Vijayendra Babu V. R. Narayana & Ors (ii) Bombay High Court in Navnit Motors (P) Ltd. V. UOI & another. If the employer disputes the correctness of the order under Section 45-A, he could challenge the same under Section 75 of the Act before the ESI Court. A combined reading of the provisions indicates that no claim shall be made by the Corporation beyond five years, to which the claim relates. Writ appeals filed before the High Court did not bring any result. No appeal lies against the orders of Recovery Officer for recovering assessed dues. ESI asserts that each untimely reversal is a breach of the agreement. Sub-section (2-B), Sections 74 to 83. When the records are not produced by the establishment before the Corporation and when there is no cooperation, the Corporation has got the power to make assessment and determine the amount under Section 45-A and recover the said amount as arrears of land revenue under Section 45-B of the Act. It consists of sections from 84 to 86-A. 5. Similar questions have arisen in several other statutes. Recovery, Section 77(1-A)(b) proviso by Act 29 of 1989, Employees' Insurance Court. When units are in different parts of India – Equal pay for equal work “will not apply – Jharkhand High Court in Workmen of Hyderabad Asbestos Cement Products Ltd. V. management of Hyderabad Industries Ltd. An employee not respecting his superiors can not be retained. ), In the relationship of ‘master and servant, — the element of “supervision and control – is elastive in modern thinking. © 2008 www.ashokchandok.com. In order to avoid dispute relating to number of employees employed by the employer, if employer is not cooperating, EPFO can insist for installation of CCTV cameras in and around of premises of a factory. 31. It was submitted that any other view would make the provisions confiscatory; it would also lead to an absurd result that the Corporation can theoretically make a claim even after a decade, thereby causing prejudice to the employers. Thus, the legislature, in its wisdom, did not want to impose any fetter or limitation on the Corporation to recover the amounts by coercive process under Chapter V. 20. Tribunal allows arrears to be paid in installments. Similarly Assaulting on Superior will stand proved when endorsed by several people – Allahabad High Court in UP State Road Transport Corp. V. Rajendra Singh & ors. Hariharan). (RPFC v. Shree Krishna Metal Mfg. The Madras High Court on the other hand held that the language of Section 77(1-A)(b) is very clear and it did not provide for any period of limitation for raising the demand or making the assessment. That being so it was submitted that the view expressed by the Kerala High Court should be accepted and not that of the Madras High Court. Principal Employer will pay EPF contribution if contractor fails to deposit. 6295, 6297-98 of 2004, 4810-11 of 2005, 6299-6301 of 2004, 7366 of 2005, 1798-1800 and 2453 of 2006, decided on November 21, 2006. esi wage ceiling: esi wage ceiling enhanced from rs. Coverage under EPF Act on E.O’s report is not valid. It was pointed out that the employers in the State of Tamil Nadu instead of moving the ESI Court directly filed writ petitions without availing the alternative remedy available. —. In the above judgment this Court has clearly held that Section 68 of the Act empowers the Corporation to resort to coercive process, to recover the contribution from the employer as if it were an arrear of land revenue and the said right is not restricted by any limitation. The recovery officer, on receipt of such certificate, is entitled to attach the property, arrest the employer and appoint a receiver for the management of the movable and immovable properties of the factory or establishment. Appeal before EPF Tribunal even in rejection f review. All previous judgments handed down prior to this can be found on our Decided cases section. The application has to be filed within a period of three years from the date on which the cause of action arises. Before arresting a defaulter, he must be given a hearing & may be arrested only if he neglects to pay dues. Such an order can be passed only after giving reasonable opportunity of hearing to the employer or the person in charge of the factory or establishment. It relates to the adjudication of disputes and claims. The next set of relevant provisions quoted above is contained in Chapter VI. Court cases relating to grant of one Notional Increment to employees retiring on 30th June and revision in Basic Pension and Pensionary benefit: Department of Posts | Central Govt Employees - 7th Pay Commission - Staff News: Court cases relating to grant of one Notional Increment to employees retiring on 30th June and revision in Basic Pension and Pensionary benefit: Department ofý The non-payment of contribution is a continuing cause, which is clear from the fact that the employer is enjoined to pay the interest under section 39(5)(a), which was introduced by act 29 of 1989, until the date of its actual payment. This means, even if the employees were those of the contractors, it is the principal employer who has to pay. 27. With regard to the decision reached by the ESI Court in the application under Section 75, the said decision is enforced, as envisaged in sub-section (4) of Section 75 as if it is a civil court. The Corporation claimed ESI contributions as arrears from various employers. Therefore, the proviso to clause (b) of Section 77(1-A) of the Act, fixing the period of five years for the claim made by the Corporation, will apply only in respect of claim made by the Corporation before the ESI Court and to no other proceedings. They are as follows: 6. Judgments are also available in HTML format on the BAILII website. 1971 2 SCC 860 It was inter alia observed as follows: (SCC p. 870, para 14). 11. 11.02.2014 in r/o installment facilities. Basic question before the two High Courts was as follows: Proviso to Section 77(1-A)(b) of the Employees' State Insurance Act, 1948 (in short “the Act”) provided limitation of 5 years for claiming contribution and restricts the Corporation's right from recovering the arrears of contribution as arrears of land revenue under Section 45-B in pursuance of an order under Section 45-A of the Act. By reason of incorporation of Section 45-A with effect from 17-6-1967, it became possible for the Corporation to have determination of the question, binding on the principal employer, without resorting to the ESI Court. 26. Disallowance of Employee Contribution to PF- Analysis of Case ��� 10000 to rs. An employee, sacked following disciplinary proceedings, cannot seek reinstatement as a ���matter of right��� after acquittal from a criminal court on the same charges ��� SC It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. Get 2 points on providing a valid reason for the above "SEASONS GREETINGS” – WEAR MASK – DEFEAT CORONA. Section 77 of the Act relates to commencement of proceedings before the ESI Court. Recovery order issued prior to expiry of prescribed limitation period would defeat the purpose of filing of appeal & is liable to be set aside. Basis for coverage under the Act Chief inspector of shops and establishments.!: ESI sigwebo sawiswa it is for him to move the ESI Court under section (. Recovery Officer for recovering assessed dues clause ( b ) of section (! Esi contributions as arrears of land revenue ’ s report is not valid the. 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