IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CM No.12652-CII-2009 and FAO No.2604 of 2009 (O&M) DATE OF DECISION: 26.04.2010 **** M/s Kundra Rubber and Plastic Inds. D-111, Focal Point Extn. Jalandhar through its Proprietor Amrik Chander Kundra . . . .Appellant VS. Employees State Insurance Corporation and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Ms. Jatinder Jit Kaur, Advocate for the applicant/appellant. Mr.Vikas Suri, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This is an application under Section 5 read with Section 14 of the Limitation Act, 1963 (for short ‘the Act’) for condonation of delay in filing the appeal. Notice in the application was issued to which reply has been filed. Learned counsel for the respondents has indicated that the delay in filing the appeal is of 530 days and not of 500 days as calculated by the Registry of the High Court because the total days spent in filing of the appeal is 590 days out of which 90 days has been excluded whereas Limitation to file an appeal as per Section 82(2) the Employee’s State Insurance Act, 1948 (for short ‘the Act 1948’) is 60 days. Therefore, Registry should have deducted 60 days out of total 590 days. Be that as it may, the reason assigned in the application is that against the impugned order dated 29.11.2007, an appeal was filed before the District Judge, Jalandhar which was withdrawn on 22.1.2009 and the appeal was filed in this Court on 06.3.2009. It is submitted by the learned counsel for the appellant that if the period, which has been spent in another Court under bonafide mistake is excluded then the appeal would be within limitation. Even if it is presumed that the appeal is within limitation yet after hearing learned counsel for the parties on merits, I have found that the appellant does not have any case because of the finding recorded in para No.9 of the impugned order, which reads as under: - “After going through the record and considering the arguments, I find that there is no force in the petitioner’s case. More than 10 employees have been employed by them. The record has not been produced by them. Whatever has been produced, has not been proved under the law. The premises is fully covered under the definition of factory. The inspection report has been conveyed to them. Letter Ex.R1 was received from the petitioner by the respondent in which ten employees were mentioned and out of them, two were stated to be left the job. What I find that at one time 10 employees were working in the factory. There is nothing in the cross-examination of the respondent. It has been admitted by the petitioner in his cross-examination that he maintains the register of employees, cash book, ledger, wages register on the basis of which the salary is distributed to the employees. But this record has been produced by him. I find that this was the best evidence in possession of the party and the party has intentionally with held the same, so I take adverse inference against the petitioner. The factum of working of employees to the tune of ten has been admitted by the petitioner in his letter to the respondents Ex.R1. So it can be safely held that more than ten employees were working in the premises, so the premises is fully covered under the definition of factory. No other irregularity and illegality has been pointed out by the counsel for the petitioner as far as recovery is concerned. So I find that the premises is fully covered under the definition of factory and impugned order dated 10.10.2001 has been rightly passed and it is not illegal, null and void. So the issue is decided in favour of the respondents and against the petitioner.” Learned counsel for the appellant has failed to give any plausible answer about the admission made by the appellant in his cross-examination that despite the fact that register of employees, cash book, ledger, wages register on the basis of which salary is distributed to the employees was maintained, why the same was not produced before the Court below. Therefore, in my view, the learned Court below has rightly drawn an adverse inference against the appellant for suppressing material facts from the Court like the aforesaid registers which could have thrown some light about the total number of employees of the appellant. Hence, the application filed under Section 5 of the Act which lacks bonafide is dismissed and the present appeal is also dismissed on merits. (RAKESH KUMAR JAIN) 26.04.2010 JUDGE Vivek