Karnataka High Court
The Regional Director, Esi … vs Deccan Studios, Bangalore And Anr. on 16 February, 2001
Equivalent citations: [2002(95)FLR168], 2002(3)KARLJ257, 2001 AIR – KANT. H. C. R. 1190, (2002) 95 FACLR 168, (2002) 2 LABLJ 943, (2002) 4 LAB LN 279
JUDGMENT
Chidananda Ullal, J.
1. This appeal is filed by the ESI Corporation to challenge the order dated 3-3-1997 in ESI Application No. 23 of 1988 filed by the respondent-applicant.
2. The appellant-Corporation is represented by the learned Counsel Smt. Geethadevi, whereas, the contesting respondent is represented by the learned Counsel Sri N. Raghupathy. The respondent 2, the Deputy Commissioner, Bangalore, having been served with the notice had remained absent before Court. Therefore, I feel that it is appropriate for me to direct the learned Additional Government Advocate Sri Ashok Mensinakai who is present before Court to take notice for the said respondent and he had since done that before Court.
3. The learned Counsel for the appellant Smt. Geethadevi had taken me through the facts of the case and further the impugned order under challenge. She had argued that the respondent-employer did not adduce acceptable evidence before the ESI Court to dislodge the presumption available in favour of the Corporation under Section 45-A(2) that the ESI contribution what was decided by it under Section 45-A of the Act was legal. She had also pointed out that the respondent-employer did not enter into the witness-box even to dislodge the statutory presumption available in favour of the Corporation under the above provision of law. Therefore, she submitted that the impugned order passed by the ESI Court is liable to be set aside in its entirety, firstly, by allowing the instant appeal before this Court and secondly, by dismissing the cross-objection filed by the respondent-employer.
4. The learned Counsel appearing for the respondent-employer Sri Raghupathy on the other side submitted that the ESI Court was totally in error even in allowing the application filed by his party in part. According to him, the ESI Court would have allowed the application in its entirety to the benefit of his party. He had also submitted that, having been aggrieved by the partial allowance of the application, his party had also filed cross-objection as against the appeal herein preferred insofar as the same related to rejected part of the application is concerned.
5. In the light of the above submissions made, I have carefully gone through the impugned order as well as the records of the ESI Court. As I see, in support of the application filed by the respondent-employer, all that he did before the ESI Court was only to examine A.W. 1, one K.R. Narayan, an income-tax practitioner and no other. From the evidence of A.W. 1, it is clear that he is an independent tax practitioner and that he is only an Auditor of the three units of the respondent-employer. If that is so, I do not think the income-tax practitioner as that of A.W. 1 could enter into the witness-box to adduce evidence for and on behalf of his clients in the respondent-employer. It was also pointed out by the learned Counsel for the respondent-employer Sri Raghupathy that he was an employee employed for the purpose of auditing the accounts of the respondent-employer. That appears to be incorrect, for in the cross-examination, A.W. 1 had clearly deposed before the ESI Court that he was not an employee of any of the three units and that he was only an Auditor of the three units. Auditor he was, I do not think A.W. 1 had any authority in law to tender evidence for and on behalf of his party, the respondent-employer; of course, for the purpose of giving evidence on behalf of the respondent-employer, he did produce Ex. A. 1 whereunder, the respondent-employer had authorised A.W. 1 to produce the books of accounts and to adduce evidence. Nevertheless, I do not think that A.W. 1 in any way could tender evidence for and on behalf of the respondent-employer.
6. The learned Counsel for the respondent-employer did not produce any authority to show that the income-tax practitioner can give evidence for and on behalf of its client. Therefore, it is obvious that the letter of authority issued by the respondent-employer, copy as at Annexure-A is no authority in law to tender evidence for and on behalf of his client. I feel it appropriate to place on record the letter of authorisation, Ex. A. 1 herein. To do the same, the same reads as hereunder:
“Letter of Authorisation We authorise Mr. K.R. Narayana Rao, M.Com., Income-tax and Sales Tax Practitioner, Bangalore, to represent on our behalf in all matters relating to ESI and to produce the Books of Account and evidence. For Dakshina Musical Industries sd/-
Partner”
7. If in law A.W. 1 had no authority to tender evidence for and on behalf of his client, the entire evidence on record, both oral and documentary adduced by the respondent-employer through A.W. 1 had to be shut out. If that be done, I do not find legal evidence produced by the respondent-employer in support of his application as against the appellant-Corporation before the ESI Court.
8. In my considered view, the ESI Court had not appreciated that legal position and thus allowed the application of the respondent-employer in part and that being so, it is obvious that the application filed by the respondent-applicant has to be treated as the one filed before the ESI Court for want of evidence from the side of the applicant-employer.
9. It is relevant to observe here that under Section 45-A(2) of the ESI Act, there arises a statutory presumption in favour of the ESI Court that the order it had passed under Section 45-A(1) of the Act was sufficient proof as to the claim of the ESI contribution. If there is a statutory presumption available in favour of the Corporation in respect of the order passed under Section 45-A, the one that was under challenge before the ESI Court in the hands of the respondent-employer, it is obvious that it has to be held that the respondent-applicant before the ESI Court had not produced any worth rebuttal evidence to dislodge the statutory presumption available in favour of the Corporation as observed as above.
10. In that view of the matter, I feel that the instant appeal filed by the ESI Corporation has to be allowed to restore the original order passed by it under Section 45-A of the Act holding that the respondent-employer was liable to pay ESI contribution of Rs. 51,678/- as claimed therein, whereas, the accompanying cross-objection filed by the respondent-employer has to be dismissed; I order accordingly.
11. The respondent-employer is directed to deposit the ESI contribution in its entirety within a period of 8 weeks from this date.
12. The learned Additional Government Advocate Sri Ashok Mensinakai is permitted to file memo of appearance on behalf of the respondent 2-Deputy Commissioner within 4 weeks from this date.
