IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 Ins.APP.No. 10 of 2009() -------------------------------- IC.32/2006 of EMPLOYEES INSURANCE COURT, PALAKKAD .................... APELLANT(APPLICANT) ------------------------------------- C.K.GOPINATHAN ,DEALER, RELIANCE PETROELUM RETAIL OUTLET, CALICUT ROAD EDAPPAL, MALAPPPURAM DISTRICT. BY ADV. MR.P.RAMAKRISHNAN RESPONDENT(S): ------------------------ THE REGIONAL DIRECTOR, E.S.I.CORPORATION, PANCHDEEP BHAVAN NORTH SWARAJ ROUND, THRISSUR-20. ADV. SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN. THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N.KRISHNAN,J. ====================== INS.APPEAL.No.10 OF 2009 ====================== Dated this the 9th day of March 2010. JUDGMENT This is an appeal preferred against the order of the Employees Insurance Court, Palakkad in I.C.No.32/2006. The applicant, a dealer in Reliance Petroleum retail outlet, moved an application for declaring that it is not covered by the provisions of the Employees State Insurance Act. The contentions raised are being a petrol bunk, it is not covered as no power is used, as contemplated under law. Secondly, the number of employees is less than 10 and even if power is used, the provision will not be attracted and lastly, on the factual material that only less than 10 employees were present. So far as the applicability of the Act with respect to the petrol bunk is concerned,it is a settled position of law that lifting petrol from the tank by virtue of a power will take it, within the ambit of the definition of the factory and suppose there are 10 persons or more, then the Act will be INS.APPEAL.No.10 OF 2009 2 attracted. So, the said contention that it will not attract will depend upon the number of employees . 2. The second question raised is regarding the number of employees. The Accounts Manager of the establishment had given a list relating to the employees and it is seen that names of 14 employees with their designations,age,rate of wages etc. had been handed over to the Employees State Insurance Corporation and now an attempt to wriggle out of that cannot be entertained because it was not a statement given by a layman but by a person who was in charge and helm of affairs in the establishment. So, I am inclined to accept that statement as done by the Insurance Court. 3. Lastly, it is contended that if is obligatory on the part of Employees State Insurance Corporation to have given a notice as contemplated under Rule 10B of the Regulations. A perusal of Rule 10 B(a) and Rule 10B (c) would indicate the difference. The mandate is given on the employer to do certain things and only the discretion is INS.APPEAL.No.10 OF 2009 3 given to the Employees State Insurance Corporation if it feels to give a notice as held correctly by the Insurance Court. It is only a discretionary jurisdiction and not a mandatory obligation. In the light of these discussions I find no substantial question of law arise for determination in the appeal Therefore, the appeal fails and the same is dismissed. M.N.KRISHNAN,JUDGE. mns