IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 RP.No. 1270 of 2007() --------------------- (M.F.A. NO.1226/2001 OF THIS HONOURABLE COURT) (IC 17/1998 OF EMPLOYEES INSURANCE COURT, ALAPPUZHA) REVIEW PETITIONER/APPELLANT/APPLICANT -------------------------------------------------- M/S.VINAYAKA TIMBERS & WOOD CRAFTS REPRESENTED BY ITS MANAGING PARTNER ANANADAPPALLY P.O., ADOOR, PATHANAMTHITTA. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT/RESPONDENT/RESPONDENT: ------------- THE REGIONAL DIRECTOR, ESI CORPORATION, REGIONAL OFFICE PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, TRICHUR. BY ADV.SRI.T.V.AJAYA KUMAR THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P.1270/2007 in M.F.A.1226/2001-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of June, 2008. O R D E R 1.Heard the learned counsel for the review petitioner and the learned counsel for the respondent. 2.The short issue raised in this review petition is as to whether there are any grounds to review the judgment dated 11-9-2006, whereby the appeal of the petitioner against the order of the Employees' Insurance Court was dismissed. 3.Without confining to the parameters of consideration of a review petition, the necessary short facts can be adverted to. Going by the order of the E.I.Court, the establishment, which uses power, employs workers. According to the petitioner, the number of workers was nine. He RP1270/2007 -: 2 :- gave evidence before the E.I.Court. The E.I.Court noticed his testimony that he had engaged an accountant and even according to the version of the applicant as P.W.1, he had engaged a part-time accountant during June, July and August every year and salary and allowance were paid to him. 4.Based on such materials and after appreciating the scope of the definition of the term “employee” in Section 2(9) of the Employees' State Insurance Act, the E.I.Court held that the said person was also an employee for the purpose of the Act and therefore, the establishment had 10 employees bringing it under the cover of the Act. 5.In an appeal under Section 82 of the Employees' State Insurance Act, 1948, an issue as to whether the finding that a person is an employee or not cannot be re-agitated. This is simply because, that is a question of fact answered on the basis of assessment of evidence and facts. Except in exceptional situations where the RP1270/2007 -: 3 :- appreciation of evidence is capricious and the findings were perverse, unreasonable and unavailable on materials, a Court dealing with an appeal resting on a substantial question of law would not step in, to interfere with the order of the subordinate authority. Any support, by way of precedent, if necessary, can be found in the decision of the Division Bench of this Court in E.S.I.Corporation v. Cheerans Auto Agencies [1991 (2) KLT Short Notes 22 Case No.32]. 6.In the aforesaid view of the matter, the issue raised in this review petition has necessarily to be answered only against the petitioner. In the result, the review petition fails. The same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/0406008