IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Ins.APP.No. 30 of 2007(F) --------------------------------- IC.32/2004 of EMPLOYEES INSURANCE COURT, PALAKKAD. .................... APPELLANT/APPLICANT: --------------------------------- M/S.M.KUTTY HASSAN KUTTY & COMPANY, BHARAT PETROLEUM DEALERS, KAVOOR, CALICUT. BY ADV. SRI.A.M.SHAFFIQUE (SR.) SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS RESPONDENTS: RESPONDENT: ------------------------------------ REGIONAL DIRECTOR, E.S.I., CORPORATION, NORTH SWARAJ ROUND, TRICHUR-20. BY ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 30 OF 2007 = = = = = = = = = = = = = = = Dated this the 31st day of July, 2008. J U D G M E N T This appeal is preferred against the judgment of the Employees Insurance Court, Palakkad in I.C.32/04. The appellant was the applicant before the E.I. Court, who challenged the notice issued by the Corporation holding that the establishment is covered under the provisions of the E.I. Act. The applicant's establishment is a petrol bank and the Court below held that selling of petrol with the aid of power amounts to manufacturing process under Section 2(k) of the Factories Act and since the said manufacturing process is adopted under Section 2(14-AA) of ESI Act and as S.2(12) envisages manufacturing process, the Tribunal held hat the contention of the appellant that it is not covered cannot be accepted. It also found on facts that there were more than 10 employees and it has been using power and therefore held that the establishment is covered by the Act. Ins. Appeal 30 OF 2007 -:2:- 2. Learned counsel for the appellant very strongly contends before me that usage of a small motor for pumping out oil in a petrol bunk does not amount to manufacturing process and therefore the decision of the Court below is erroneous. But it has to be sated that a Division Bench of this Court on examining the provisions of S.2(k) in MFA 796/00 held that pumping of petroleum products from the storage for supply thereof to the vehicles comes under the ambit of manufacturing process. It is also seen that Allahabad High Court has also taken the same view in the decision reported in Qazi Noorul Hasan Hamid Hussain Petrol Pump v. Deputy Director E.S.I. Corporation, Kanpur (2003 LLR 476) to the effect that petrol is supplied by usage of power and more than 10 persons are employed it is sufficient to prove it within the definition of manufacturing process under the Factories Act. The Punjab and Haryana high Court also had taken the same view in the decision reported in Employees' State Insurance Corporation v. Bhag Singh (AIR 1989 Punjab and Ins. Appeal 30 OF 2007 -:3:- Haryana 1). Since the Division Bench of this Court has taken a view and there are other decisions of various other High Courts it may not be correct for me to again dwell deep into the averment for the reason this Court is bound by the decision of the Division Bench unless it is varied. Therefore though the argument of the learned counsel appears to be very persuasive I am not in a position to consider it in the light of a binding precedent on me. Therefore the said point is answered against. 3. The next question is regarding the number of employees. Learned counsel wanted to contend before before me that it is an erroneous finding on fact. It is very clear that unless there is a substantial question of law an appeal cannot be entertained. While dealing with the cases on second appeals regarding the scope of substantial question of law the Apex Court held in Gurdev Kaur v. Kaki (AIR 2006 (SC) 1975) that even if a different view is possible to be taken the appellate court is not expected to substitute its view with the finding on facts and further Ins. Appeal 30 OF 2007 -:4:- cautioned that it shall not be a dice for another trial. So, unless there is absolute perversity or illegality this Court cannot substitute the view of a fact finding Court by its own view. Therefore I do not find any substantial question of law on the number of persons. So from these discussions it is correct to hold that manufacturing process is involved and more than 10 persons are employed and power is used and so the provisions of E.S.I. Act is applicable to the appellant's establishment. The appeal is devoid of merits and therefore it is dismissed. M.N. KRISHNAN, JUDGE. ul/-