9911796707
TMI Blog2000 (7) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturing and distributing soft drinks under the trade name of Torino. The petitioner's concern was covered under the Factories Act and they have been remitting the Employees' State Insurance contribution to their regular employees. But sometimes for the purpose of loading and unloading sugar, new bottles from the manufacturers, the petitioner engaged some outside loadmen who are independent and self employed. A show-cause notice was issued by the E. S. I. Corporation claiming contribution to the tune of ₹ 17,019 for the period from January 1985 to December, 1987 for the amount paid towards the loading and unloading charges. A reply was submitted by the appellant. However, without considering the issues raised, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held that the workers concerned were discharging the work relating to the employer and such of those persons were employees of the appellant/company. Therefore, the demand raised by the E. S. I. Corporation was sustained. Hence, the present appeal. Learned counsel for the appellant very strenuously contends that the workmen in question come along with the lorries engaged by the suppliers of raw materials and that they have no other work except to load or unload the materials brought through such vehicles. It is further stated that they have no control over the employment of such persons. Therefore, the appellant cannot be made liable to pay contribution. 6. Learned counsel relies on a judgment of the Supreme Court in C.E.S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kamal Transport and another v. The E.S.I.C. Hyderabad where it was held that in dealing with Hamalis engaged as carriers of goods for loading and unloading purposes and wages were also paid by the institution, it was held that the test of payment of salary alone was not relevant consideration. 9. In S.I.S Co. v. Regional Director, E.S.I.C., 1997-II-LLJ-396 a Division Bench of this Court held that where employees were employed through independent contractor were held to be not workmen of the appellant. In E.S.I.C. v. Surya Printmac Industries, 2000-I-LLJ-387 (P H), a learned single Judge of Punjab and Haryana High Court held that if workers were engaged for a specific and limited job, they would not be employees for the purpose of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s involved in construction work of the additional building for expansion of the factory would be employees under Section 2(9) of the E.S.I. Act. 14. In Royal Talkies v. E.S.I. Corporation, , the Supreme Court held that persons employed in the canteens and cycle stand of Cinema theatre have to be construed as employees of Cinema owner. 15. In E.S.I.C. v. Harrisons Malayalam Ltd. (supra), it was held that where the management pleaded that it was not possible to identify the workmen employed by the construction company during the relevant time, it was held that failure on the part of the company in discharging its obligation could not entitle the company to say that workers were unidentifiable and no data was available with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraph No. 5 of the petition before the E.S.I. Court, it has been specifically stated that sometimes for the purpose of loading and unloading sugar, new bottles from the manufacturers, the petitioner engages some outside loadmen. Again in paragraph No. 7, it is stated that the appellant concern occasionally engaged self-employed loadmen for the purpose of loading and unloading new bottles. Therefore, on facts, it is clear that the concerned employees were employed only by the appellant company itself and not either by independent contractor or employed by the owners of the lorry or suppliers. Therefore, on the said fact alone, the judgments cited by learned counsel for the appellant are rendered inapplicable. 21. The fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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