IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 Ins.APP.No. 6 of 2010(B) ----------------------- IC.96/2005 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT:APPLICANT --------------------------- KIRAN GLOBAL CHEMS LIMITED (FORMERLY KIRAN PONDY CHEMS PRIVATE LTD), IDA, EDAYAR, KOCHI-683 110, REPRESENTED BY ITS REGIONAL MANAGER ANISH K.V. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): (OPPOSITE-PARTY) ------------------------------- THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR-20. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.1408/2010 IN INAP. 6/2010 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 8.7.2010 okb /True copy/ P.A. to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- Insurance Appeal No.6 of 2010 ---------------------------------- Dated this the 8th day of July, 2010 J U D G M E N T ---------------------- Abdul Rehim,J. Challenge in this appeal is against judgment of the Employees Insurance Court, Alappuzha in I.C.No.96/2005. On the basis of inspection conducted by DW1, Inspector attached to Survey Team of Employees State Insurance Corporation, it was found that on 5.5.2005 the appellant establishment had employed 13 persons for wages. Accordingly the appellant requested to comply with the necessary formalities holding that the appellant's establishment is a factory as per Section 2 (12) having coverage under the Employees State Insurance Act. The appellant had assailed the said action before the court below. Contest before the Employees Insurance Court was mainly on the ground that during the relevant time the appellant was INAP.6/10 2 employing only six persons. Ext.P1 Muster Roll alleged to have been kept under the provisions of the Shops and Commercial Establishments Act, pertaining to the period from 4/2005 to 12/2005 was produced in support of the above contention. Further documentary evidence like Ledger, Cash Book, etc: were also produced. Two witnesses were examined on behalf of the appellant including PW2, the Manager of the establishment. From the side of the Employees State Insurance Corporation the Inspector who conducted the inspection was examined as DW1. Ext.D1 to D3 were marked on the side of the respondents. 2. On evaluating the entire evidence on record, the Employees Insurance Court found that DW1 while conducting inspection has prepared Ext.D3 report in which it is categorically found that 13 persons were employed for wages, including PW2 who is the Manager of the establishment. Ext.D3 contained signature of PW2 who signed the report as authorised signatory of the INAP.6/10 3 appellant. Ext.D3 contained details of the employees like, name, designation, salary, year of appointment, etc:. It was the specific case of the appellant that two of the persons found in the establishment at the time of inspection was employed by another establishment, M/s.Moon Chemicals and that they were not employees of the appellant establishment. It was also contended that the security staff found at the time of inspection are not directly employed by the establishment. Eventhough DW1 was cross-examined at length on these aspects, it is categorically deposed that the details in D3 report was prepared after making due enquiry with all the employees concerned. The evidence adduced from the side of the respondents by examination of DW1 as well as production of Ext.D3 report itself inspired confidence on the Employees Insurance Court, to uphold genuineness of the inspection and the report. Inspite of lengthy cross- examination and production of documents from the side of the appellant the trustworthiness of the evidence could INAP.6/10 4 not be shaken and on the factual aspect the Employees Insurance Court arrived at a conclusion that on the crucial date of inspection the establishment had employed more than 10 persons. Therefore it is upheld that establishment is to be covered under the provisions of the Employees State Insurance Act as per Section 2 (12) of the said Act. 3. Under Section 82 of the Employees State Insurance Act, 1948, this court can entertain an appeal only on substantial questions of law. Eventhough various disputes are raised in the appeal challenging findings arrived on factual aspects, we feel that we are not supposed to look into correctness of those conclusion arrived on facts, by venturing on a re-appraisal of the evidence adduced. 4. Learned counsel appearing for the appellant had pointed out that Ext.D3 report is not acceptable in evidence since the Inspector had failed to obtain signature of all the employees listed therein. According INAP.6/10 5 to the counsel it is mandatory on the part of the Inspector conducting an inspection to record the address, parentage, and signature of each and every employee. Since Ext.D3 does not contain any such details, the same is liable to be rejected,is the contention. In support he has pointed out a ruling of the Karnataka High Court in E.S.I.Corporation Vs. Karnataka Asbestos Cement Products [1991 (79) FJR 188]. But the Employees Insurance Court specifically observed that Ext.D3 contains all relevant informations with respect to persons employed in the establishment. The report contained signature of the Manager which will vouch truthfulness of the report. Further there is no rule insisting that recording of address, parentage and signature is mandatory. Therefore we are in perfect agreement with findings of the court below that the rationale behind the ruling of the Karnataka High Court could not be accepted in toto. Hence we are of the considered opinion that rejection of ground urged by the INAP.6/10 6 appellant in this regard was fully justified. 5. A further aspect raised, as question of law, is regarding Muster Roll and other records produced to prove that the appellant was not employing 10 persons during the relevant period. There is no conclusive evidence adduced before the court below to prove genuineness of such records. It has not come out in evidence as to whether such records bear counter signature by any officials of the Labour Department, during the relevant period prior to the date of inspection. Further, it is not clear as to whether all the managerial and other staff has been included in such records. Hence we do not find any serious illegality committed by the court below in discarding such evidence. 6. Under the above mentioned circumstances we do not find any illegality or serious error of law with respect to the judgment impugned. In the result the appeal deserves no merit and the same is hereby dismissed. INAP.6/10 7 7. However, it is made clear that while determining contributions payable by the appellant for different periods, the authority concerned shall provide adequate opportunity to the appellant to establish through proper documents as to the total number of workers employed by them during different periods. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb