IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Ins.APP.No. 64 of 2005() ------------------------------- IC.5/2001 of EI COURT,IDUKKI .................... APPELLANT/ OPPOSITE PARTY : --------------------------------------- THE EMPLOYEES STATE INSURANCE CORPORATION, PUNCHADEEP BHAVAN,NORTH SWARAJ ROUND, THRISSUR, REPRESENTED BY THE REGIONAL DIRECTOR. BY ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. RESPONDENT/APPLICANT : -------------------------------- M/S. HDZ ENGINEERS, M.S. & S HOUSE, K.K. ROAD, KOTTAYAM-4, REPRESENTED BY ITS PROPRIETOR, MR. HARRIS ZAIN. THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- Ins. Appeal No. 64 OF 2005 --------------------- Dated this the 12th day of August, 2008 JUDGMENT This appeal is preferred against the order of the Employees Insurance Court, Idukki, in I.C. 5/01. The ESI Corporation has issued Ext.A6 notice stating that it is to initiate criminal proceedings against the applicant therein for not producing the ledger book etc. The said notice has been challenged before the Employees Insurance Court. The court on consideration of the various rules and provisions held that it is not mandatory to keep a ledger or cash book under the provisions of the Employees State Insurance Act and that a direction cannot be issued to produce such books and ledgers. 2. Learned counsel at the outset argued that the Employees Insurance Court has no jurisdiction to interfere with such an initiation of proceedings. I am afraid that such a contention cannot be accepted for the reason that if a notice had been issued and it has culminated into a criminal proceeding then necessarily the Employees Insurance Court may not be in a position to set aside a proceeding of which cognizance is taken by the criminal court. But in this case we have not reached that stage and only a show cause notice is issued intimating that criminal prosecution will be launched. Ins. Appeal 64/05 2 3. I have perused the order passed by the Insurance Court. It has referred to the various provisions under the ESI Act and Rules and found that the taxable income is 8% of the gross receipt. Even the Income Tax department does not insist for keeping a ledger. So far as Sales Tax is concerned, it is found that they need not get it registered. Specific reference is made to Regulation 32 Sec.44(3) of the ESI Act and its regulations. What is mandatory under regulation 32 is that an employer is bound to maintain a register in Form No.7. Admittedly it has been maintained. There is no provision brought to the notice of the court that there is a mandate under the provisions of the Act, Rules or Regulations to maintain a cash book or a ledger. So when the statute does not prescribe for maintenance of those books, one cannot be prosecuted for non- maintenance of such books. There is no statutory obligation cast on the employer. Therefore, I do not find any ground to interfere with the decision entered into by the Employees Insurance Court. Therefore, the appeal is dismissed. M.N.KRISHNAN, JUDGE vps Ins. Appeal 64/05 3