1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. FIRST APPEAL NO.815 OF 2008. Deputy Director, Employees' State Insurance Corporation. .vs.. M/s Hotel Paradise -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C.L.PANGARKAR, J. Dated : 30th September, 2008. 1. Heard Mrs. B.P.Maldhure, Advocate for the appellant and Shri S.S.Ghate, Advocate for the respondent. 2. This is an appeal against the order passed by E.S.I. Court Judge on 29th February, 2008. The application was preferred before the E.S.I. court by the present respondent under Section 77 of the Employees' State Insurance Act, 1948. The application came to be filed because the present appellant wanted to charge the present respondent for use of Air Conditioners in the Lodge and Hotel 2 run by the respondent. It was the contention of the appellant that since the respondent has fixed the Air Conditioners in some of the rooms in the Hotel, the respondent was carrying on manufacturing process and, therefore, liable to be charged under Section 2(12) of the Employees' State Insurance Act. The learned judge of the ESI Court found that mere fixation of Air Conditioners in the Lodging room does not amount to any manufacturing process. Holding so, he allowed the application and set aside the order passed by the present appellant. Being aggrieved by that order, this appeal is preferred. 3. The learned counsel for the appellant contended before me that the learned judge of the trial court did not properly appreciate the facts and also the decision that was cited before him. She contended that the learned judge has failed to see that air was treated or adapted with the aid of power and made into cool air and such a process is certainly manufacturing process. The learned counsel for the appellant relied on the decision 3 reported in 1995(II) CLA Pg.70 (Employees' State Insurance Corporation ..vs.. Tiecicon Private Ltd., Bombay). This court in the said decision has held that where cool air is given to the customer on payment of charges by treating it and adapting it with the aid of the power, such process involves the manufacturing process and therefore, it falls within the meaning of section 2 of the Factories Act as well as ESI Act. 4. The counsel for the respondent on the other hand relied on the recent decision of this court reported in 2007(6) Mh.L.J.363 (Hotel Shreej Vaibhav ..vs.. Employees State Insurance Corporation). 5. This court in Hotel Shree Vaibhav case, which is almost identical on facts, held that mere use of Air Conditioners in the lodging rooms for the comfort of the customers would not be sufficient to hold that the employer Hotel was carrying on the manufacturing process. It was contended that the court while deciding the case in Hotel Shree 4 Vaibhav did not not properly consider the ratio laid down in 1995(II) CLR 70. The submission is not correct. The court has certainly dealt with the said decision reported in 1995(II) CLR 70 and has found that on facts the said decision is not applicable. It may be mentioned that the facts of the case at hand are almost identical with the case in Hotel Shree Vaibhav. This court has already held that mere fixation of Air Conditions to the rooms in the hotel does not involve any manufacturing process. There is no reason for me to take different view. Further more, the said decision in Hotel Vaibhav case has been approved by this court in L.P.A. No.284 of 2007 (Employees State Insurance Coprporation ..vs.. M/s Hotel Shree Vaibhav) decided on 18/1/2008. In view of this, there is no substance in the appeal. It is dismissed in limine. JUDGE. pzc 5