S.B.CIVILMISC. APPEAL NO. 2567/2007 (Regional Director ESI Vs. Futex Steel Ind. (P) Ltd.) Order dt: 23/2/2010 1/4 S.B.CIVILMISC. APPEAL NO. 2567/2007 (Regional Director ESI Vs. Futex Steel Ind. (P) Ltd.) DATE OF ORDER : 23/2/2010 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Raj Kamal Soni, for the appellant. Mr.Sandeep Shah, for the respondent. 1. This appeal by the ESI Corporation is directed against the order dated 22/7/2004 passed by the ESI Court in case no. 1/2000, whereby, the ESI Court under Section 75 of the ESI Act, 1948 held that the applicant's-respondent herein Industrial Unit situated in revenue village of Falna in agricultural land no. 91/1293 measuring 1.70 hectares was not covered by the provisions of the ESI Act and, therefore, the applicant was neither liable to take contribution of ESI from the employees nor the company is required to deposit the same along with company's own contribution to the ESI Corporation. 2. Learned counsel for the ESI Corporation, Mr. R.K.Soni argued that the Notification No. 860 (E) dated 22/12/1979, which is reproduced below, covers the industrial unit of the applicant- respondent herein and, therefore, the ESI Court below had erred in holding contrary and, therefore, the present appeal deserves to be allowed. 3. The Notification No. 860(E) dated 22/12/1979 reads as under: S.B.CIVILMISC. APPEAL NO. 2567/2007 (Regional Director ESI Vs. Futex Steel Ind. (P) Ltd.) Order dt: 23/2/2010 2/4 “Employees' State Insurance Act, 1948 (Central): Applicability to Rajasthan Notification No.SO 860(E), dated December 22, 1979 In exercise of the powers conferred by sub-section (3) of Section1 of the Employees' State Insurance Act, 1948 (34 of 1948), the Central Government hereby appoints the 23rd December, 1979 as the date on which the provisions of Chapter IV (except sections 44 and 45 which have already been brought into force) and Chapter V and VI (except sub-section (1) of section 76 and sections 77, 78, 79 and 81 which have already been brought into force) of the said Acta shall come into force in the following areas in the State of Rajasthan namely:- Falna Industrial area bounded by the following areas in the District of Pali. North : Revenue villages of Devtara, Lomel, Ghano Kangri, Chhabderi and Kairapur; East : Revenue villages of Kot Baliyan; South: Revenue villages of Sesli and Boya; West: Revenue villages of Pairva, Baibal, Gabri and Saderao.” 4. Mr. Sandeep Shah, learned counsel appearing for the respondent contended that appeal itself is not maintainable under Section 82 of the Act, which permits filing of the appeal against the findings of ESI Court when substantial question of law arises in the matter and since the findings of the ESI Court based on the cogent evidence and cannot be said to be perverse and since no substantial question of law arises in the present appeal filed by the ESI Corporation, the same is not maintainable and deserves to be dismissed. S.B.CIVILMISC. APPEAL NO. 2567/2007 (Regional Director ESI Vs. Futex Steel Ind. (P) Ltd.) Order dt: 23/2/2010 3/4 5. In rejoinder, learned counsel for the ESI Corporation Mr. Soni tried to rely upon the letter dated 2/7/1998 written by the Deputy Director of ESI Corporation, Jaipur to the Industrial Unit in question informing that it was covered by the provisions of the ESI Act. However, the said letter was neither produced nor proved before the learned court below. The documents which were on record before the learned court below vide Ex.3 and 4 indicate that ESI Corporation itself was not sure of the coverage of the respondent Industrial Unit under the provisions of the Act. It would be evident from the letter dated 12/9/1994 – Ex.4 written by the Assistant Regional Director of ESI Corporation, Jaipur, who directed the applicant unit to contact one Rajendra Prasad Sharma, ESI Inspector to ascertain whether the Industrial Unit situated in khasra no. 91/1293 of Khudala village was covered by the provisions of the Act or not. In pursuance of the said letter, the applicant company wrote a letter dated 2/6/1998 vide Ex.5 to the ESI Inspector that as per the information and understanding of the Company, its factory was not covered by the ESI Act and they were not expected to apply for registration in Form 01 as supplied to them. Nothing seems to happen thereafter from the side of ESI Corporation and no other document showing the coverage of Industrial Unit by the provisions of the ESI Act was produced before the learned court below. 6. From the findings of court below in the impugned order dated 22/7/2004, it appears that even the map produced with the S.B.CIVILMISC. APPEAL NO. 2567/2007 (Regional Director ESI Vs. Futex Steel Ind. (P) Ltd.) Order dt: 23/2/2010 4/4 Notification dated 22/12/1979, the neighbourhood of the village of said map did not tally with the neighbourhood in the map produced by the ESI Corporation and non-applicant no.1 Mr. Ramesh Kumar Chotiya could not state before the court clearly that Industrial Unit in question was covered by the said Notification and that the Industrial Unit was not situated outside the municipal limits. P.W.4 and 5 – Patwaris of the Revenue Department stated before the court below that the Industrial Unit of the applicant was not situated in the industrial area of Falna. Similarly the Chairman of the Udyog Mandal, Falna also stated before the court below that the applicant's Industrial Unit was situated outside the municipal area. 7. Consequently, on the basis of these evidence available before it, the learned court below held that the applicant's Industrial Unit was not covered by the provisions of the ESI Act. The said finding of the court below, in the opinion of this Court, cannot be said to be bereft of evidence or perverse. 8. In the opinion of this court, no substantial question of law arises in the present appeal under Section 82 of the Act for determination by this Court. 9. The appeal of the ESI Corporation being devoid of merit is accordingly dismissed. (DR.VINEET KOTHARI), J. item no.9 baweja/-