IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 INSURANCE APPEAL No. 79 of 2007(F) ------------------------ IC.78/2003 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/APPLICANT: -------------------------- K.V.MOHANAN, S/O. VIJAYAN, PROPRIETOR, M/S. KERALA METAL PRODUCTS, OKKAL P.O., PERUMBAVOOR, RESIDING AT KUZHAYANVELI HOUSE, OKKAL P.O., CHELAMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.T.K.SAJEEV RESPONDENT(S)/OPPOSITE PARTY: ----------------------------- E.S.I. CORPORATION, REP. BY ITS REGIONAL DIRECTOR, PRACHADEEP BHAVAN, ROUND NORTH, THRISSUR-20. ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. --------------------------------------------- Insurance Appeal No.79 of 2007 --------------------------------------------- Dated this the 25th day of May, 2010 J U D G M E N T ---------------------- Abdul Rehim,J. This appeal is preferred against judgment in I.C.No.78/2003 of the Employees Insurance Court, Alappuzha. The appellant raised challenge against the assessments on the ground that his establishment is not liable to be covered under the Employees State Insurance Act, 1948 (for short the Act). The establishment is a metal crusher unit (stone crusher) having conveyor system. According to the appellant, he has not employed more than six persons for wages at any time during the relevant period. The assessments are made based on an inspection conducted by DW1 on 13.8.1992. Ext.D1, the report of inspection revealed that 20 employees were engaged at the time of inspection in connection with the work of establishment. Contention of the petitioner is that, construction of the compound wall, which is assigned to a contractor was going on at the time of inspection and the INAP.79/07 2 workers listed in Ext.D1 are mainly casual workers engaged by the contractor. But the Insurance Court found that in the deposition of DW1 it is specifically stated that the workers noted in Ext.D1 are workers pointed out by the Manager of the appellant. Further it is noticed that on the same date itself Ext.D2 notice was issued calling up for production of records. But the appellant has not produced any Registers pertaining to employment, maintained in the establishment. It is specifically found by the Insurance Court that apart from the 'ipse dixit' of PW1, no convincing evidence is produced to discard the inspection report or to fortify the contention that the workers listed out in Ext.D1 were workers engaged for construction of compound wall. Therefore the Insurance Court upheld that on the date of inspection the petitioner was engaging 20 workers. However, the Insurance Court found that the assessment of contributions payable by the petitioner is decided without looking into any of the records. It is not based on any materials such an assessment is made. The wages adopted for such assessment is fixed on an arbitrary manner. Therefore the assessing authority was directed to conduct fresh assessment either by looking into the records INAP.79/07 3 which will be produced by the employer or on the basis of bonafide materials, on a best judgment basis. 2. Learned counsel for the appellant contended that in the impugned judgment the Insurance Court has categorically found that the establishment in question is liable to be covered under the ESI Act and that the applicant is bound to comply with the provisions of the Act with effect from the date of inspection onwards. The said finding is assailed in this Appeal. As stated above, the appellant was not successful in proving that the 20 employees listed in Ext.D1 was not employed in connection with functioning of the establishment. The Insurance Court has also accepted an alternate plea raised by the respondent that, even the workers were engaged for construction of compound wall they are liable to be considered as employees of the establishment since the work in question is intimately connected with business carried on by such establishment. In this regard, reliance was placed on the decision in E.S.I. Corporation Vs. South India Flour Mills (AIR 1986 SC 1086) and also a decision of this court in E.S.I. Corporation Vs. Standard Pottery Works (2001 (3) KLT 55). INAP.79/07 4 3. The appellate jurisdiction vested under Section 82 of the Act provides entertaining of an appeal against the judgment of the Insurance Court, only if it involves a substantial question of law. On the factual evidence adduced before the Insurance Court the appellant was not successful in proving the contention regarding the number of workers engaged. We do not find any substantial question of law raised in order to maintain challenge against the impugned judgment. Further we notice that the appellant is given sufficient opportunity to adduce evidence before the authority with respect to the assessment of contributions liable to be paid. Hence we find no merit in the appeal to interfere with the impugned judgment. The appeal fails and the same is accordingly dismissed. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb