CHAPTER VI- ADJUDICATION OF DISPUTES AND CLAIMS


CHAPTER VI- ADJUDICATION OF DISPUTES AND CLAIMS

74. Constitution of Employees' Insurance Court 

(1) The State Government shall, by notification in the Official Gazette, constitute an Employees' Insurance Court for such local area as may be specified in the notification.

(2) The Court shall consist of such number of Judges as the State Government may think fit.

(3) Any person who is or has been a judicial officer or is a legal practitioner of five years' standing shall be qualified to be a Judge of the Employees' Insurance Court.

(4) The State Government may appoint the same Court for two or more local areas or two or more Courts for the same local area.

(5) Where more than one Court has been appointed for the same local area, the State Government may by general or special order regulate the distribution of business between them.

COMMENTS

The power of the State Government to constitute an ESI Court includes the power to reconstitute it. Thus the power of reconstitution of an ESI Court also has to be exercised in the same manner as the power of constitution; namely by notification in the Official Gazette. Neither constitution nor reconstitution of an ESI Court can become effective before the date of the publication of the notification under sub-s. (1) of s. 74 of the Act in the Official Gazette. The material date is the date of publication in the Official Gazette.-- ESI Corporation v. Tilak Dhari 1995 Lab. IC 2403.


75. Matters to be decided by Employees' Insurance Court

(1) If any question or dispute arises as to--

(a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution, or

(b) the rate of wages or average daily wages of an employee for the purposes of this Act, or

(c) the rate of contribution payable by a principal employer in respect of any employee, or

(d) the person who is or was the principal employer in respect of any employee, or

(e) the right of any person to any benefit and as to the amount and duration thereof, or

(ee) any direction issued by the Corporation under section 55A on a review of any payment of dependant's benefits, or

[* * *]

(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act, such question or dispute subject to the provisions of sub-section (2A) shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (2A), the following claims shall be decided by the Employees' Insurance Court, namely:--

(a) claim for the recovery of contributions from the principal employer;

(b) claim by a principal employer to recover contributions from any immediate employer;

[* * * * *];

(d) claim against a principal employer under section 68;

(e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and

(f) any claim for the recovery of any benefit admissible under this Act.(

2A) If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance Court under sub-section (2) of section 54A in which case the Employees' Insurance Court may itself determine all the issues arising before it.

(2B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation:

PROVIDED that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.

(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.

COMMENTS

Where there is the filing of a suit after the payment of court fee, the suit at that stage cannot be dismissed without considering and deciding an issue as regards the sustainability of a statutory bar which the defendant may raise.-- P. Asokan v. Western Indian Plywood Ltd. 1987 (1) LLJ 182.

It is within the power of the tribunal to correct the mistakes or even set aside the ex parte orders. Such inherent powers must be vested in the authority, otherwise it would not be in a position to exercise its judicial or quasi-judicial functions in a proper manner so that the cause of justice is advanced.-- Modi Steel Unit v. ESI Corporation 1989 (59) FLR 176.

It is not for the Corporation to dismiss the claim on the ground of limitation that the claim for benefit was not in accordance with the regulation made in that behalf within a period of 12 months after the claim became due.-- Radhey Shyam Chintamani v. ESI Corporation, 1989 (1) LLN 931.


76. Institution of proceedings, etc. 

(1) Subject to the provisions of this Act and any rules made by the State Government, all proceedings before the Employees' Insurance Court shall be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose.

(2) If the Court is satisfied that any matter arising out of any proceedings, pending before it can be more conveniently dealt with by any other Employees' Insurance Court in the same State, it may, subject to any rules made by the State Government in this behalf, order such matter to be transferred to such other Court for disposal and shall forthwith transmit to such other Court the records connected with that matter.

(3) The State Government may transfer any matter pending before any Employees' Insurance Court in the State to any such Court in another State with the consent of the State Government of that State.

(4) The Court to which any matter is transferred under sub-section (2) or sub-section (3) shall continue the proceedings as if they had been originally instituted in it.


77. Commencement of proceedings 

(1) The proceedings before an Employees' Insurance Court shall be commenced by application.

(1A) Every such application shall be made within a period of three years from the date on which the cause of action arose.

Explanation : For the purpose of this sub-section,--

(a) the cause of action in respect of a claim for benefit shall not be deemed to arise unless the insured person or in the case of dependants' benefit, the dependants of the insured person claims or claim that benefit in accordance with the regulations made in that behalf within a period of twelve months after the claim became due or within such further period as the Employees' Insurance Court may allow on grounds which appear to it to be reasonable;

(b) the cause of action in respect of a claim by the Corporation for recovering contributions (including interest and damages) from the principal employer shall be deemed to have arisen on the date on which such claim is made by the Corporation for the first time:

PROVIDED that no claim shall be made by the Corporation after five years of the period to which the claim relates;

(c) the cause of action in respect of a claim by the principal employer for recovering contributions from an immediate employer shall not be deemed to arise till the date by which the evidence of contributions having been paid is due to be received by the Corporation under the regulations.

(2) Every such application shall be in such form and shall contain such particulars and shall be accompanied by such fee, if any, as may be prescribed by rules made by the State Government in consultation with the Corporation.

COMMENTS

Where after the scrutiny of the claim by the Corporation, the claim is denied by the Corporation, then and only then considering the language of s. 77, cause of action arises to an insured person so as to commence the proceedings before the ESI Court.-- ESI Corporation v. Moti Lal 1995 (71) FLR 82.

Where by an employee a claim is made before the Corporation and the claim is accepted but in part, it would be taken that the Corporation has refused to make payment to the extent the claim of the employee has not been accepted.-- ESI Corporation v. Kailash Narain 1995 (71) FLR 10.


78. Powers of Employees' Insurance Court 

(1) The Employees' Insurance Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such Court shall be deemed to be a Civil Court within the meaning of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

(2) The Employees' Insurance Court shall follow such procedure as may be prescribed by rules made by the State Government.

(3) All costs incidental to any proceeding before an Employees' Insurance Court shall, subject to such rules as may be made in this behalf by the State Government, be in the discretion of the Court.

(4) An order of the Employees' Insurance Court shall be enforceable as if it were a decree passed in a suit by a Civil Court.

COMMENTS

Initiation of proceedings under Article 226 of the Constitution cannot be thrown out on the sole ground of availability of an alternative remedy at the stage of appeal.-- S.C. Bose v. ESI Corporation 1991 (60) FLR 539.

The position of the ESI court is as that of domestic tribunal. The court has to decide the questions in regard to entitlement of disablement benefit and the claim for recovery of benefit and while deciding the court acts in the capacity of exercising original jurisdiction and not as a court of appeal or a civil court reviewing a decision of domestic tribunal-- 1992 (74) LT 280.


79. Appearance by legal practitioners, etc.

Any application, appearance or act required to be made or done by any person to or before an Employees' Insurance Court (other than appearance of a person required for the purpose of his examination as a witness) may be made or done by a legal practitioner or by an officer of a registered trade union authorised in writing by such person or with the permission of the Court, by any other person so authorised.


80. Benefit not admissible unless claimed in time
[Omitted by Act 44 of 1966, section 34, w.e.f. 28-1-1968.] 


81. Reference to High Court 

An Employees' Insurance Court may submit any question of law for the decision of the High Court and if it does so shall decide the question pending before it in accordance with such decision.


82. Appeal 

(1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees' Insurance Court.

(2) An appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves substantial question of law.

(3) The period of limitation for an appeal under this section shall be sixty days.

(4) The provisions of sections 5 and 12 of the Limitation Act, 1963 shall apply to appeals under this section.

COMMENTS

Presentation of an appeal before the High Court from an order of the ESI Court depends upon the involvement of substantial question of law. The question whether a particular person is an employee or not is a question of fact and has to be decided on the assessment of facts.-- ESI Corporation v. Charan Auto Agencies 1991 (63) FLR 562.

Where an application for setting aside the order met with a dismissal on the ground of non-production of evidence, though normal opportunities were given, evidence was denied and the order announced, held as no substantial question of law is involved in appeal, the same cannot be maintained.-- 1990(1) ACC 287.
Sub-s. (2) of s. 82 of the Act states that an appeal shall lie to the High Court from an order of ESI Court if it involves substantial question of law which means that this court while exercising appellate powers under s. 82 of the Act cannot interfere with the finding of fact based on appreciation of evidence recorded by the Insurance Court. The question whether or not certain employee answers the description of "employee" in cl.9 of s. 2 of the Act is a pure question of fact.-- Oriental Paper Mills v. Regional Director, ESI Corporation 1995 Lab. IC 212.


83. Stay of payment pending appeal 

Where the Corporation has presented an appeal against an order of the Employees' Insurance Court, that Court may, and if so directed by the High Court shall, pending the decision of the appeal, withhold the payment of any sum directed to be paid by the order appealed against.





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APPLICABILITY OF THE ACT & SCHEME:

 Is extended in area-wise to factories using power and employing 10 or more persons and to non-power using manufacturing units and establish-ments employing 20 or more person upto Rs.15,000/- per month w.e.f. 01.04.10. It has also been extend-ed upon shops, hotels, restaurants, roads motor transport undertakings, equip-ment maintenance staff in the hospitals.

COVERAGE OF EMPLOYEES:

 Drawing wages Upto Rs.15,000/- per month Engaged either directly or thru’ contractor

RATE OF CONTRIBUTION OF THE WAGES:

 Employers’ 4.75%

 Employees’ 1.75%

MANNER AND TIME LIMIT FOR MAKING PAYMENT OF CONTRIBUTION:

 The total amount of contribution (employee’s share and employer’s share) is to be deposited with the authorized bank through a challan in the prescribed form in quadruplicate on ore before 21st of month following the calendar month in which the wages fall due.

BENEFITS TO THE EMPLOYEES UNDER THE ACT:

 Medical Benefit
 Sickness Benefit(SB)
 Maternity Benefit(MB)
 Disablement Benefit
 Dependants’ Benefit(DB)
 Funeral Expenses

 In addition, the scheme also provides some other need based benefits to insured workers.

WAGES FOR ESI CONTRIBUTIONS:

 Registers/files to be maintained by the employers

CONTRIBUTION PERIOD:

 If the person joined insurance employment for the first time, say on 5th January, his first contribution period will be from 5th January to 31st March and his corresponding first benefit will be from 5th October to 31st December.

TO BE DEEMED AS WAGES:

• Basic pay
• Dearness allowance
• House rent allowance
• City compensatory allowance
• Overtime wages (but not to be taken into account for determining the coverage of an employee)
• Payment for day of rest
• Production incentive
• Bonus other than statutory bonus
• Night shift allowance
• Heat, Gas & Dust allowance
• Payment for unsubstituted holidays
• Meal/food allowance
• Suspension allowance
• Lay off compensation
• Children education allowance (not being reimbursement for actual tuition fee)

NOT TO BE DEEMED AS WAGES:

• Contribution paid by kthe employer to any pension/provident fund or under ESI Act.
• Sum paid to defray special expenses entailed by the nature of employment – Daily allowance paid for the period spent on tour.
• Gratuity payable on discharge.
• Pay in lieu of notice of retrenchment compensation
• Benefits paid under the ESI Scheme.
• Encashment of leave
• Payment of Inam which does not form part of the terms of employment.
• Washing allowance for livery
• Conveyance Amount towards reimbursement for duty related journey

PENALTIES :

 Different punishment have been prescribed for different types of offences in terms of Section 85: (I) (six months imprisonment and fine Rs.5000), (ii) (one year imprisonment and fine), and 85-A: (five years imprisonment and not less to 2 years) and 85-C (2) of the ESI Act, which are self explanatory. Besides these provisions, action also can be taken under section 406 of the IPC in cases where an employer deducts contributions from the wages of his employees but does not pay the same to the corporation which amounts to criminal breach of trust.

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