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IN THE HON’BLE 4TH LABOUR COURT, MUMBAI

REFERENCE (IND) NO. 54 of 2011

M/s Shree Datta Gas Agency ….First Party

V/s.

Mr. Ajeenath T. Shinde …..Second Party

AFFIDAVIT IN LIEU OF EXAMINATION IN CHIEF

I, Jitendra P. Hedulkar, adult Indian inhabitant aged years, residing

at _________________________________________________ do hereby on

solemn affirmation state as under:

1) I deny that the services of the Second Party were terminated either on

23.07.2009 as alleged or at all, much less illegally. I say that the Second

Party has himself not been attending to his duties since the said date

and that since the services of the Second Party have never been

terminated and despite instructions to report on duty, has deliberately

and with malafide intentions not reported for duty. I say that the Second

Party has never completed 240 days in any year of his employment with

the First Party.

2) I deny that the Second party had any ailment of pain in the knee joint

since the year 2008. I deny that the Second party had submitted any

Doctors Certificates or that he came to join duty on 23.07.2009 with

fitness certificate or that he was not allowed to join duty. I say that the

said allegations are totally false and fabricated.

3) I say that the Union has not written any alleged dated 23.07.2009. I say

that the letter dated 18.08.2009 and the alleged demand letter dated

31.08.2009 are replete with falsehood and fabrication and I deny the

contents of the same.

4) I say that the alleged sickness of the Second Party is bogus and

fabricated. I deny that the second party was sick and puts the second

party to the very strictest proof thereof.

5) I humbly prays that this Hon’ble Court may be pleased to reject the

reference itself with punitive cost.

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6) I say that the contents of the above paras are true and correct and are

from my personal knowledge and records of the First Party and I believe

the same to be true and correct.

DEPONENT

SOLEMNLY AFFIRMED AT MUMBAI ON

THIS 25th DAY OF SEPTEMBER 2018.

IDENTIFIED BY ME

IN THE HON’BLE EMPLOYEES’ INSURANCE COURT, MUMBAI

BEFORE THE HON’BLE SHRI D.H. DESHMUKH, HON’BLE MEMBER

APPLICATION (ESI) NO. 28 of 2001

M/s Dani Wooltex Corporation …Applicant

V/s

The ESI Corporation and Anr. …Opponent

MAY IT PLEASE THIS HON’BLE COURT:

The Applicant above-named begs to file herewith the following Authorities

referred to and relied upon by their Advocate in the course of his arguments

in support of their contentions. The same may kindly be taken on record.

1) 1973 II LLJ page 584 (Madras H.C.)

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Free India (P.) Ltd. And The Regional Director, Employees’ State

Insurance Corporation, Madras.

2) 1989 II LLJ page 285 (Kerala H.C.)

S.T. Rediar and Regional Director.

MUMBAI

DATED: 02.07.2010

FOR THE APPLICANT

IN THE HON’BLE EMPLOYEES’ INSURANCE COURT, MUMBAI

BEFORE THE HON’BLE SHRI D.H. DESHMUKH, HON’BLE MEMBER

APPLICATION (ESI) NO. 28 of 2001

M/s Dani Wooltex Corporation …Applicant

V/s

The ESI Corporation and Anr. …Opponent

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AFFIDAVIT OF MR.

SHAIKH ABDUL HAMID IN

LIEU OF EXAMINATION-

IN-CHIEF.

I, Shaikh Abdul Hamid, adult Indian Inhabitant aged about 78

years residing at Mumbai do hereby state on solemn affirmation as

under:

1) I say that I was the Personnel Officer of the Applicant at the

relevant time. I say that the present Application is filed by the

Applicant on 15.06.1999 and the same has been signed and

verified by Mr. B.H. Dani, the then Partner of the Applicant. I

identify his signature on page no. 12 of the Application. I say that

the contents of the said Application are true and correct. I say that

I am in know-how of the facts involved in the present Application

filed by the Applicant and I am therefore in a position to depose

thereto. I say that I am deposing the present Affidavit in lieu of my

examination-in-chief.

2) I say that the Applicant was engaged in the business of

manufacturing woolen blankets and allied products. I say that the

Applicant was at the relevant time located at the address shown in

the cause title and currently, the Applicant is defunct and not

functioning at all since March 1991.

3) I say that the Applicant was regularly paying its contributions

pertaining to the ESI liabilities from time to time at the relevant

time.
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4) I say that the Applicant was issued a show-cause notice dated

27.05.1991 by the Opponent in form C-18 proposing thereby to

determine contribution on an ad-hoc basis for the period from

March 1989 to September 1990.

5) I say that the said Notice called upon the Applicant for a personal

hearing. I say that during the period in dispute, the Applicant was

running through a very poor financial condition and incurred huge

losses and it was declared a sick unit by the Bankers, viz. UCO

Bank vide their Certificate dated 02.05.1988. I say that the said

certificate was forwarded by the Applicant to the Opponent. I say

that the Applicant had closed its manufacturing activities

temporarily from 01.10.1990 and thereafter permanently and

irrevocably w.e.f. 05.04.1991. I say that the services of all

employees were terminated by the Applicant w.e.f. 05.04.1991.

6) I say that after the receipt of the show-cause Notice dated

27.05.1991, the Applicant vide its letter dated 04.07.1991

requested for an adjournment since Mr. B.H. Dani, the partner,

who was looking after the affairs of the Applicant was seriously ill

and was advised medical bed-rest. I say that the said letter was

hand delivered by the Applicant to the opponent on 05.07.1991.

7) I say that the Opponent did not reply to the said letter dated

04.07.1991 and after a long gap vide its letter dated 16.08.1993

informed the Applicant that a date for personal hearing was fixed

on 30.09.1993. I say that in the meantime, the Applicant calculated

on actual basis its contribution in respect of eligible employees vis-

à-vis the actual wages drawn by them and total contribution of an

amount of Rs. 1,57,516/- was paid between the period 28.03.1989

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to 01.02.1992. I say that the Applicant has thus cleared all its

liability of arrears of contribution on actual basis for the period

concerned, i.e. March 1989 to September 1990. I say that nothing

further was therefore due or payable by the Applicant towards

employer’s contribution and employee’s contribution in respect of

the said period.

8) I say that the representative of the Applicant attended the hearing

on 30.09.1993 and informed the Officer concerned about having

paid the contribution for the relevant period on actual basis and

also showed the necessary documents. I say that the said Officer

concerned then assured the Applicant that the matter would be

closed.

9) I say that the Applicant received from the Opponent a letter dated

08.02.1999 after about 5 years with reference to the said show-

cause notice dated 27.05.1991 calling upon the Applicant to appear

before the Deputy Director on 23.02.1999. I say that no reasons

were at all given in the said letter as to why after more than 5 years

the issue was being reopened. I say that the Applicant addressed a

letter dated 19.02.1999 to the Opponent bringing to their notice

that the Applicant had already paid the contribution for the

relevant period, i.e., from March 1989 to September 1990 and that

the Applicant was not liable to pay any further contribution.

10) I say that it was also informed to the Opponent vide the said letter

that the Applicant Factory was closed w.e.f. 01.10.1990 and

therefore, after such a long period, it was not possible for the

Applicant to trace out the necessary and relevant documents. I say

that all the employees had already left the employment of the
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Applicant pursuant to the Closure and therefore, there was nobody

to help the Applicant to trace records after such a long period. I say

that two of the partners of the Applicant viz. Mr. Bharat H. Dani

and Mr. Jitendra H. Dani had already expired on 26.07.1993 and

23.09.1996 respectively. I say that no records therefore could be

produced on 23.02.1999 and the Applicant requested for longer

time to see if it could trace out any documents. I say that no such

time was granted and the matter was fixed on 03.03.1999. I say

that a representation was made before the Officer concerned on

03.03.1999 and he was informed about the contributions being

paid.

11) I say that the Opponent, however, proceeded to pass an Order

dated 07.04.1999 under Section 45-A of the Act determining the

contribution amount to Rs. 3, 13, 960/- for the relevant period on

ad hoc basis and interest amount of Rs. 3,28, 874/- upto

31.03.1999. I say that the said Order did not mention any reasons

as to on what basis the said Order was passed. I say that the Order

did not disclose as to how the Officer concerned concluded that all

259 employees were covered for levying contribution. I say that the

very fact that the officer concerned has assumed wages of all the

employees at Rs. 880/- per month itself shows that the said Order

is arbitrary. I say that there were at the relevant time more than

60% employees to my knowledge who were above the coverable

limit under the Act of Rs. 1600/- during the relevant period and

therefore, outside the pale of coverage under the Act. I say that the

Applicant already paid the contribution of an amount of Rs.

1,57,516/- on actual basis and therefore, nothing further remained

to be paid to the Opponent. I say that no reasons were assigned as

to how the contribution amount of Rs. 3,13, 960/- was worked out.
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I further say that no calculations whatsoever were given for levying

interest upon the Applicant amounting to Rs. 3,28,874/-. I say that

the entire matter was handled by the officers concerned purely on

assumptions and conjecture. I say that the said action is totally

arbitrary.

12) I say that the Applicant has filed the receipts issued by the

Opponent at page nos. 6-14 in respect of the contribution amount

paid by the Applicant to the Opponent for the relevant period, i.e.,

from March 1989 to September 1990 as shown on page 3 of the

Application filed by the Applicant. I say that the said documents

are true and correct. I pray that the same may be exhibited.

13) I further say that the Applicant has filed at page no. 3 to the

Application letter dated 04.07.1991 addressed to the Opponent

which is duly signed by the then Partner, Mr. Bankin Chandra

Dani. I identify his signature. I say that the contents therein are

true and correct. I pray that the same may be exhibited. I say that

the letter of the Applicant dated 19.02.1999 is filed at page no. 16

to the Application and the same is signed by Mr. Bankim Chandra

Dani. I identify his signature. I say that the contents therein are

true and correct. I pray that the same may be exhibited. I say that

the Opponent has totally ignored the factual aspect that the

Applicant has already paid the contribution of the amount of Rs.

1,57, 516/- for the relevant period.

14) I say that the Applicant has been defunct from 01.10.1990 and

permanently and irrevocable closed from 05.04.1991 and since

then no manufacturing or any other activities are going on. I say

that pursuant to the closure of the Applicant, the services of all the

employees were terminated and their legal dues were paid. I say
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that the workmen employed then with the Applicant were the

members of the union viz. Woolen Kamgar Sangathana. I say that

at the relevant time the said union had filed several cases before

the Industrial Court and Labour Court at Mumbai on behalf of the

workmen of the Applicant in the years 1991 and 1992. I say that

pursuant to the closure of the Applicant vide notice dated

31.03.1991, the said union signed settlement dated 8 th November,

1993 with the Applicant which was duly signed by the President of

the said union on behalf of the workmen and thereafter all the

cases filed by the said union were withdrawn from the respective

court as mentioned in the said settlement. I annex herewith the

copy of the said settlement dated 8 th November, 1993 and mark the

same as annexure ‘A’.

15) I say that the claim of the Opponent is arbitrary and untenable and

therefore, the same may be rejected.

16) I therefore pray that the present Application may be allowed and

the prayers made by the Applicant in the Application in para 12, (i)-

(vi) may please be granted.

17) I say that the contents of the above paragraphs are true and correct

and the same are from my personal knowledge and from the

records of the Applicant.

SOLEMNLY AFFIRMED AT MUMBAI

ON THIS 12th DAY OF JANUARY 2010

DEPONENT

IDENTIFIED BY ME

ADVOCATE
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BEFORE ME