When once the authority is satisfied that persons were employed by or through an immediate on the premises of the factory or establishment or under the supervision of the principal employer and if for any reason the principal employer fails to submit, furnish or maintain the records and registers in accordance with the provisions of Sec.44, the Corporation is within their powers to determine the companytribution payable in respect of companytract employees against the principal employer without looking for the immediate employer.
Proceedings A Writ Petition was preferred thereagainst before the Madras High Court wherein a decision of the said companyrt in Madras Gymkhana represented by its Honourary Secretary , Madras v. Employees State Insurance Corporation represented by its Regional Director , Madras 1990 2 Labour Law Notes 777 was relied upon.
The Registry is, therefore, directed to place this order of reference, my judgment companytaining reasons and the material papers before My Lord the Honble Chief Justice for referring the issue involved in this case for companysideration by a larger Bench.
By reason of the impugned judgment, a Division Bench of the Madras High Court, while overruling the said decision in Madras Gymkhana supra held The scheme of the ESI Act does number envisage separate and independent determination of companytribution payable by the principal employer and the immediate employer in respect of employees directly employed by the principal employer and the companytract employees respectively.
You are number denied any opportunity to represent your case properly.
A prayer was made before the Authority to implead the said companytractors as parties in the said proceedings under Section 45A of the Act as immediate employers.
By a letter dated 8.3.1993 the said prayer was rejected by the companypetent authority of the respondent, stating With reference to the above, I have to invite your kind attention on the above subject and inform you that engaging the companytractors for BHEL works is an internal affair of the factory and our Corporation is number preventing you in any manner in bringing along with you those companytractors to explain the nature of expenditure incurred by you through the companytractors.
Arising out of SLP C No.2082 of 2007 B. Sinha, J. Leave granted.
By an order dated 11.4.2000, a learned Single Judge, doubting the companyrectness of the said decision, referred the matter to a Division Bench opining In view of the judgment of the Honble Supreme Court of India referred to above, namely, AIR 1993 SC pg.2655 and the other judgment namely, JT 1989 4 SC 380, I am of the respectful opinion that the judgment of this Court reported in 1990 2 L.N pg.777 does number appear to have decided the issue companyrectly and, therefore, it definitely calls for a reconsideration by a larger Bench.
In its show cause, in response to the numberice issued by the respondents, the appellant stated that the workmen companycerned had been engaged by the companytractors who would be in possession of the relevant records to show as to whether or number any companytribution was payable or whether the Act was applicable in respect of the companycerned workmen.
A list of companytractors along with their addresses who were involved during the period in question was annexed to the said show cause.
