IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 Ins.APP.No. 58 of 2006() ------------------------ IC.63/1999 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/APPLICANT: ---------------------------------------- M/S. SHAFEEQ CONCRETE PRODUCTS, 1/273-B, INDUSTRIAL DEVELOPMENT AREA, ERUMATHALA, ALUVA REPRESENTED BY ITS MANAGING PARTNER SRI.C.P.SUBAIRUDEEN. BY MR.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR RESPONDENT(S): --------------- THE ASST.DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, TRICHUR-20. ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. FOR R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON 29/05/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` Insurance Appeal No. 58 OF 2006 A ```````````````````````````````````````````````````` Dated this the 29th day of May, 2009 J U D G M E N T Joseph, J. Appellant is the applicant in an application filed under section 75 of the Employees State Insurance Act, 1948(hereinafter referred to as 'the Act'). The appellant sought declaration that its establishment is not liable to be covered under the Act. The request is rejected and it is declared that it constitutes a factory as per the first part of section 2(12) of the Act and liable to be covered and bound to comply with the Act from 1.8.1997 onwards. However, the assessment order is set aside and direction is issued to initiate fresh proceedings. 2. We heard learned counsel for the appellant. According to the appellant, the appellant is a firm and the strength of its workers never exceeded 6. On an inspection conducted on 25.3.1998, it is stated that when the inspection team came, the partners were not present and only the husband of a partner was present and he made a statement and the report is essentially Ins. Appeal.58/06 : 2 : based on the same. The appellant examined PWs1 to 4 and marked Exts.P1 to P8 while the respondent examined DW1 and marked Exts.D1 to D6. The Insurance Court, after elaborate consideration of the matter, took the view that the case of the appellant does not inspire confidence and that it fulfill the criteria of employment strength for its coverage under the Act. Appeal under the Employees State Insurance Act before the High Court is permissible only if substantive question of law arises. Of course, it is contended that it is a perverse finding. Learned counsel for the appellant also referred to us paragraph 16 of the judgment. It reads as follows. “16. It has been argued by counsel for applicant that Ext.P1 is the muster roll for the period from May 1997 to September 1997. There is signature of Sri.P.K.Krishnankutty DW1 on 7.3.2002. Likewise, Ext.P2 is wage register for the period May 1997 to September 1997 and there is also signature of DW1 dated 7.3.2002 in it. Relying on the above, it has been argued by the counsel for the applicant that there were only 5 persons employed for wages as on August 1997. It is true that as per Exts.P1 and P2 the persons employed are only 5 persons. Ins. Appeal.58/06 : 3 : These documents are manifestly written up at a stretch and they are brand new documents and it is manifest that they are not contemporaneous documents relating to 1997. At the time of examination of DW1, the applicant did not confront him with Exts.P1 and P2 and elicit his version in the matter. It has been specifically stated in Ext.D2 report that the inspection team has verified attendance register from 8/97 to 3/98 and wages register from 9/97 to 12/97 and they have put their signature on the pages of wage register for September 1997, October 97 and December 97 and attendance register at August 1997, December 1997 and March 1998. Apparently Exts.P1 and P2 cannot be the same documents presented before the team of insurance inspectors on 25.3.1998. Therefore above line of the argument of the applicant's counsel is not accepted by me.” He would, therefore, contend that once the signature in the document and attendance register is admitted, it means that the inspection as evidenced took place and number of employees is as stated. However, we note that in the very same paragraph, reasoning is assigned by the court to not rely on the attendance register as canvassed by the appellant. When the Inspector was Ins. Appeal.58/06 : 4 : examined these documents were not put to him. Other material available was also relied on to come to the conclusion that reliance cannot be placed on Exts.P1 and P2. If that be so, we find it difficult to hold that the finding impugned is perverse. If so, the findings made by the court are immune to judicial scrutiny in the appeal constituted under section 82 of the Act. The appellant has not made a case for interference with the judgment. The appeal fails and it is dismissed. (K.M.JOSEPH, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) aks