IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Crl.Rev.Pet.No. 3049 of 2008() ------------------------------ CRA.143/2007 of THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACT (ADHOC-II), KOZHIKODE. ST.1477/2004 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... REVN. PETITIONER: REVISION PETITIONER ---------------------------------------- P.SHERIEF, S/O. ASSAN KOYA AGED 42 YEARS, PROPRIETOR, M/S. MAGMA STEEL INDUSTRIES, KAKKODI, KOZHIKODE BY ADV. SRI.SUNNY MATHEW RESPONDENTS: --------------- 1. E.S.I. CORPORATION REPRESENTED BY THE MANAGER LOCAL OFFICE, ESI CORPORATION, WEST HILL, KOZHIKODE 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON 09/11/2009 PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------- Crl.R.P. No.3049 of 2008-A ------------------------------ Dated this the 9th day of November, 2009. O R D E R The Revision Petitioner was prosecuted by the Manager, Local Office, ESI Corporation, West Hill, Kozhikode, alleging offence under Section 85(e) and (g) of the Employees' State Insurance Act, 1948 (hereinafter referred to as the 'Act'). The prosecution case is that on 29.10.2002, PW2, an inspector appointed by virtue of Ext.P1 notification, inspected M/s.Magma Steel Industries, Kakkodi, Kozhikode, of which the revision petitioner is the proprietor and as such he is the principal employer. PW2 noticed that 12 employees were working and power was used for the manufacturing of the steel furniture. It was noticed that the factory was not registered under the Act. Exts.P2 and P2(a) are the inspection report and list of employees working in the factory. Ext.P3 notice dated 13.11.2002 was served upon the revision petitioner asking him to take immediate steps for registration of the employees by filling the declaration forms and payment of contributions, maintenance of records etc. under the Act and Rules thereunder. It was also informed that the establishment run by the revision petitioner falls within purview of Section 2(12) of the Act with effect from 1.11.2002. Following that, PW2 reported the matter to the Regional Office at Trissur and got allotted Crl.R.P. No.3049 of 2008-A 2 code No.54A-13629-92 to the establishment. The revision petitioner failed to comply with the directions contained in Ext.P3 notice. Hence alleging violation of the Regulation 14 of the Employees State Insurance (General) Regulations, 1950 r/w Section 38 and 44 of the Act, the complaint was filed by PW1, the then Manger. 2. When the particulars of offence was read over and explained, the revision petitioner pleaded not guilty. He was sent for trial. Pws 1 to 3 were examined and Exts.P1 to P12 were marked. The revision petitioner in his statement under Section 313 of the Code of Criminal Procedure denied the allegation that 12 employees were working in the establishment on 29.12.2002 and contended that the entries in Exts.P2 and P2(a) are not correct and that the establishment was started in the address shown in Exts.P7 and P8 only with effect from 7.9.2002 and that the establishment would not come within the purview of the factory as defined under Section 2(12) of the Act. On his side, he was examined as DW1 and Exts.D1 to D8 were marked. The trial Court on appraisal of the evidence arrived a conclusion that the establishment run by the revision petitioner would come within the purview of the Section 2(12) of the Act and he is bound to submit the declaration forms with the return of declaration in duplicate in Form No.III and to submit return of contribution in Form No.1 and thus the offences alleged were established Crl.R.P. No.3049 of 2008-A 3 by the prosecution. Consequently, the revision petitioner was convicted and sentenced to pay a fine of Rs.3,000/- each for the offences under Section 85(e) and (g) of the Act. In default of payment of fine it was ordered to undergo simple imprisonment for one month each. In Crl.A.No.143 of 2007 the Additional Sessions Judge, Kozhikode confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is filed. 3. Either side was heard and perused the records. The fact that the revision petitioner is running the establishment named M/s.Magma Steel Industries is admitted. It is not in dispute that the above unit is established within the notified area. The only dispute is that whether it would come within the definition of the factory as defined under Section 2(12) of the Act or not. According to the learned counsel for the revision petitioner only seven persons were employed and that to come within the purview of the Act ten persons would have been working. It was also argued by the learned counsel for the revision petitioner that any day of the preceding 12 months mentioned in Section 2(12), is not specified. Hence according to the learned counsel the reported inspection on 29.10.2002 and member of employees working as on that date cannot be Crl.R.P. No.3049 of 2008-A 4 taken as evidence to cover the establishment run by the revision petitioner under the definition of the factory. It was further argued that on 1.7.2003, when the second inspection was conducted, only seven persons were working. So according to the learned counsel, the number of employees is to be determined on the basis of the inspection conducted on 1.7.2003. Section 2 (12) of the Act reads as follows: “(12) “factory” means any premises including the precincts thereof: a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on,” 4. The case of the prosecution is that the revision petitioner had not registered the said factory under the Act and that it was brought to the notice of the authorities only on 29.12.2002, when PW2 inspected the premises and it is thereafter the appointed date was given as 1.11.2002 and that any day preceding 12 months has to be calculated with reference to 1.11.2002 and if calculated so the number of employees working as on 29.12.2002 had to be counted to decide whether the Crl.R.P. No.3049 of 2008-A 5 establishment run by the revision petitioner would come within the purview of Section 2 (12) or not. 5. The courts below had concurrently found that to determine whether the establishment run by the revision petitioner would come within the definition of the factory, the number of employees working on any day preceding 12 months of the notified date had to be counted. I find that the conclusion arrived by the courts below is in tune with the provisions of the Act and the Regulations made thereunder. The conclusion arrived by the courts below is also in tune with the dictum laid down in Srinivasa Rice Mills and others V. ESI Corporation (2007(1) SCC 705); Para 17 reads as follows: “Admittedly, the rice mills are situated within the Narsimhapuram area. The appointed day therefor was 1.8.2000. The factories of the appellants were inspected prior to that date. Prior to that date, therefore, the appellants were not bound to comply with the provisions of the Act. They could appoint employees at their own sweet will. But the period wherefore the provisions of the Act would be applicable is 12 months preceding the said date viz. from 1.8.1999 to 31.7.2000. Compliance with the requirements of the statutes on the part of the employer, however, would begin from the appointed day viz. 1.8.2000.” 6. I find that the dictum laid down in the decision supra is squarely applicable to the case on hand. The contention raised by the revision petitioner that the employees found working on 29.10.2002 were causal workers employed for fitting machineries which were shifted from Crl.R.P. No.3049 of 2008-A 6 another premises could not be established. Though the revision petitioner entered the witness box and had adduced evidence as DW1, he could not point out that any of the workers listed in Ext.P2(a) were not his regular workers. In the above circumstances, due reliance had to be given to Exts.P2(a) list. I find no merit in the revision petition. The conclusion arrived by the courts below regarding the guilt and conviction thereunder are perfectly sustainable. The sentence awarded is only a fine. It is not very onerous. Hence I find no reason to interfere in the sentence also. In the result the revision petition is dismissed. Sd/- P.S.GOPINATHAN JUDGE //True Copy// P.A TO JUDGE ab Crl.R.P. No.3049 of 2008-A 7