1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 382 of 2001. Reserved on: 7.8.2008. Date of Decision: 14. 08.2008. ____________________________________________________________ Employees State Insurance Corporation. Appellant. Versus Sanjay Anand and another. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. S.R. Sharma, Advocate. For the respondents : Mr. Ramakant Sharma, Advocate. ______________________________________________________________ Surinder Singh, J. The instant appeal has been filed by the Employees State Insurance Corporation feeling aggrieved and dis-satisfied by the acquittal of the respondents under Section 85 (e) of the Employees State Insurance Act, 1948, in short ‘the E.S.I.Act’, which has been assailed in this appeal on the ground that the learned trial Court did not appreciate the evidence on record in the proper manner and the evidence of the appellant was wrongly discarded. In short, the case of the appellant is that respondent No.2 “M/s Santosh Rubber Products Private Limited”, Baddi is covered under the ESI Act and Shri Sanjay Anand being its Managing Director was responsible to the establishment or supervision and control of its business. It is alleged that the respondents did not filed the returns of the contributions required under Section 39, 40 (1), 43 and 44 of the Act for the period ending September, 1997. The sanction to prosecute was accorded and the prosecution was Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 launched under Section 85 (e) of ESI Act. The respondents were summoned. Notice of accusation was framed and put under the aforesaid Section. They pleaded not guilty and claimed trial. To prove its case, only Rakesh Bhargav Manager of the appellant was examined. Respondent Sanjay Anand was also examined under Section 313 of the Code of Criminal Procedure. He admitted himself to be the Managing Director of the respondent concern. However, he denied the receipt of the show cause notice and other circumstances put to him and alleged a false case against the respondents. At the end of the trial, the respondents were acquitted which has been assailed in this appeal as stated herein above. I have heard the learned counsel for the parties and have examined the record. PW1 Rakesh Kumar Bhargav is the Manager of the Corporation with effect from 17.5.1999. The case pertains to the period prior to his posting at the said place. The show cause notice was dated 14.5.1998 alleged to have been sent by his predecessor-in-office Shri O.P. Awan. Rakesh Kumar aforesaid had filed the complaint who was examined in this case to support the version of his predecessor. O.P. Awam was not examined. In cross- examination PW1 has admitted that with effect from 1.2.1999, the respondents started depositing the contribution, however, he denied that with effect from April, 1997 to September, 1997, the factory was not covered under this Act, therefore, the respondents were not liable to pay the contribution but there is no evidence on record to show that the Act was applicable to the respondent in the year 1997. In fact, the act aforesaid applies to all the factories other than the seasonal factories and section 2 (12) of the Act defines “factory” as any premises whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which manufacturing process is being carried out with the aid of power or 3 where on twenty or more persons are employed for wages in any part of which a manufacturing process is being carried on without aid or power. Thus it was incumbent upon the complainant to prove on record that the respondents were ever subjected to this Act or for that matter, they had been filing their returns prior to the disputed period. The best evidence has been with-held by the complainant, without any reasonable cause. The Officer examined has not proved on record the applicability of this Act to the respondents. According to the learned counsel for the appellant, the Corporation had also issued the Code number to the respondents with effect from 1991, but there is no legal evidence to that effect. Further, the prosecution sanction accorded on 8.9.1998 also does not disclose as to what papers were seen and examined by the Regional Director and whether that prima facie had disclosed the commission of any offence. Therefore, in view of these facts, it cannot be said beyond doubt that the respondents have committed any breach of the provisions of the Act. Therefore the view taken by the learned trial Court is reasonable which cannot be interfered with. Accordingly, the appeal is dismissed. (Surinder Singh) Judge. August 14 , 2008. (bm)