HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.464 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Section 82 of the Employees’ State Insurance Act 1948 (for short “ESI Act”), is directed against the order made in EIC No.104 of 2001 dated 11-02-2005 on the file of the learned Employees Insurance Court – cum – Chairman, Industrial Tribunal – I, Hyderabad, whereunder the appeal filed by the petitioner therein - New Sri Anjaneya Swamy Saw Mills, being aggrieved of the Coverage Notice dated 26-04-1990 stating that petitioner has employed more than ten (10) persons, as such, it is liable to pay contribution, was allowed. 2. Appellant herein is respondent No.1 and respondent No.1 herein is petitioner. 3. For the sake of convenience, the parties are referred to as they arrayed in the EIC before the Employees Insurance Court. 4. It was the case of the petitioner that respondent No.1 issued coverage notice from 26-04-1990 stating that the petitioner has employed more than ten (10) persons and also issued a show cause notice, for which it has submitted an explanation stating that it has not employed more than ten (10) persons, therefore it does not come under the purview of the ESI Act, but without considering the same, respondent No.1 determined the assessment order. Further, the ESI Inspector checked the Saw Mill on 27-09-1989, 27-12-1989, 27-09-1990 and 27-10-1990 and at all those times, records revealed that number of workers were less than ten and therefore it is not a coverable unit under the ESI Act. 5. On behalf of respondent No.1, written statement was filed and it has taken a plea that the ESI Insurance Inspector visited the petitioner Saw Mill on 27-10-1990 and found ten persons working in it, and therefore, he seized photostat copies of the attendance and wages registers and submitted a report and basing on that report, contribution was determined with effect from 26-10-1990, therefore the petitioner is liable to pay the contribution. 6. On the basis of the above pleadings, the following issues were framed by the Employees Insurance Court for consideration: 1. Whether the petitioner is not liable to be covered under the ESI Act with retrospective effect from July, 1990 ? 2. Whether the petition is barred by limitation as contended by the ESI Corporation ? 3. Whether the petitioner is not liable to pay interest for delay in payment of contribution for the period from July, 1998 to July, 2001 ? 7. On behalf of the petitioner, PWs.1 and 2 were examined and Exs.P-1 to P-5 were marked. On behalf of respondent No.1, RWs.1 to 5 were examined and Exs.R-1 to R-49 were marked. 8. After detailed consideration of the entire evidence on record, the Employees Insurance Court came to the conclusion that at no point of time, there were more than ten persons working in the petitioner Saw Mill. A close perusal of the enquiry report - Ex.R-11 by RW.2, disclosed that strength of the employees from 01-09-1987 to 1996 was “4, 5, 6, 7 and never it was 10,” but strangely it was noticed that strength of the employment originally written as “6” in October 1990 was corrected as “10.” Therefore, it has come to the conclusion that petitioner never engaged more than ten (10) persons in the month of October 1990 and, as such, the petitioner Saw Mill is not covered by the ESI Act, and therefore, the petitioner is not liable to pay any contribution. Aggrieved thereby, this appeal is filed under Section 82 of the ESI Act. 9. Section 82 of the ESI Act reads as under: “ Section 82: Appeal, (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees’ Insurance Court (2) An appeal shall lie to the High Court from an order of an Employees’ Insurance Court if it involves substantial question of law. (3) The period of limitation for an appeal under this section shall be sixty days. (4) The provisions of sections 5 and 12 of the Limitation Act, 1963 shall apply to appeals under this section.” 10. Thus, as per Section 82(2) of the ESI Act, only if a substantial question of law arises for consideration, the appeal shall be entertained. 11. According to the learned counsel for the appellant – respondent No.1, the substantial question of law that arises for consideration in this appeal is, “when the EI Court itself has observed that according to EX.R-11 enquiry report, the strength of employment in October 1990 was 10, thereby attracting Sec.2(12)(a) of the ESI Act, could it subsequently allow the petition by contradicting its own statement by holding that the strength of employment is less than 10 persons, thereby not attracting the provisions of the ESI Act ?” 12. In view of the above, there is no necessity of going into all the details of the case. 13. The findings recorded by the Employees Insurance Court at paragraph Nos.14.00 to 16.00 are sufficient, which read as under: “I have minutely gone through Ex-R2 and the names of 1 to 6 are tallying with the names of 1 to 6 of the attendance register of 9/1990. In Ex-R2 the names of six more employees are written as 91) Dastagiri (2) K.P. Shareef Khan (3) Narayan Reddy (4) Silarsab (5) Habeeb and (6) Laxmana. All the above names are written by the same person. Hence I am of the opinion names are written by some one subsequently. The other crucial document is wage register for 10/1990 and it is also marked as Ex.R2. The names of 6 employees is written and their wages were paid on 31.10.1990 thus the wage register is establishing that on 31.10.1990 only 6 employees have received wages and the names of those 6 employees are mentioned in Ex.R1. Ex.P3 is clearly establishing that he has appointed less than 6 persons in his establishment through out the year and the same strength continued in the month of 10/1990 also. In Ex-R11the enquiry report by RW2 discloses strength of employment from 1.9.87 to 1996. Close perusal of it discloses that the strength of employment is 4, 5, 6, 7 and never it was 10 but strangely it was noticed for October, 1990 the strength of employment was originally written as 6 and it was corrected to 10. The respondent did not produce any other document to show that the petitioner has appointed more than 10 persons in the month of 10/1990. In the above circumstances I hold that the strength of employment of the petitioner is less than 10 and it is not coverable under the provisions of Act and accordingly the petitioner is not liable to pay contribution and the respondent is not entitled to claim the contribution. 14. From the above, it is clear that the fact that in the month of October 1990, more than ten persons were employed in the petitioner Saw Mill is not correct, on the other hand, strangely the number “ 6 ” has been corrected as “ 10 ”, which was found to be incorrect by the appellate authority. This is a pure question of fact on the basis of the record. Under those circumstances, I am of the opinion that no substantial question of law arises for consideration in this appeal and, as such, the appeal is liable to be dismissed. 15. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _____________________ C.V. RAMULU, J August 5, 2010. PV