IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MFA.No. 87 of 2002() ---------------------------- IC.24/1998 of EMPLOYEES' INSURANCE COURT, PALAKKAD .................... APPELLANT(S): APPLICANT IN IC ------------------------------------------------ M/S.NOVA COLLECTIONS,V/355-A, CHOONDAL P.O.,THRISSUR DISTRICT,REPRESENTED BY ITS PARTNER P.M.NAZEER BY ADV. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR RESPONDENT(S): OPPOSITE PARTIES IN IC ------------------------------------- 1. EMPLOYEES' STATE INSURANCE CORPORATION, REPRESENTED BY ITS REGIONAL DIRECTOR (KERALA), PANCHADEEP BHAVAN, ROUND NORTH,THRISSUR-20 2. THE RECOVERY OFFICER,REGIONAL OFFICE EMPLOYEES' STATE INSURANCE CORPORATION,THRISSUR-20 BY ADV. SRI.TPM.IBRAHIM KHAN FOR R1, R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 87 OF 2002 = = = = = = = = = = = = = = = Dated this the 25th day of November, 2008. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Palakkad in I.C.24/98. The E.S.I. Corporation issued a notice assessing an amount of Rs.15,337/- as contribution for the period from 1.12.95 to 31.12.96. According to the establishment it is incorrect and so it is liable to be set aside. On appreciation of the materials the E.I. Court held that the establishment is liable to be covered from 10.1.96 and passed an order accordingly. It is against that decision the establishment has come up in appeal. The following question of law is formulated. “Whether the Employees' Insurance Court is competent to determine the coverage of the establishment from a date posterior to proposed by the Corporation, without affording an opportunity of being heard, with respect to such a date.” M.F.A. No. 87 OF 2002 -2- 2. The Insurance Inspector had proceeded on the basis that the establishment is liable to be covered from 1.12.95. He has stated, as per the attendance register there were 13 employees out of which two were partners. The E.S.I Corporation itself makes it very clear that the inspector had not verified whether 10 or more persons were employed at a time on a particular date. The inspector extracted 27 names but there were no materials to show that more than 10 were engaged in a particular day. The E.I. Court referred to the entry on 10.1.96 in Ext.A8 which is the register of wages wherein names of 12 persons are shown out of which two were partners. The E.I. Court comes to the conclusion that other 10 are there on the particular date and so the establishment is liable to be covered for the reason that manufacturing process is carried on by using power. 3. The learned counsel for the appellant submits before me that the E.S.I. Corporation has initiated action on the basis of the factual matrix that more number of persons are there in December, 1995 and no opportunity has been M.F.A. No. 87 OF 2002 -3- given to the establishment to explain whether these 10 persons will constitute the definition of employees so as to attract the provisions of the Act. According to the learned counsel some of them will not come within the definition of the employee by virtue of the definition and the ceiling limit of income and therefore the matter requires reconsideration. There is some force in the said contention. The prayer to start with was to incorporate this establishment for the period of 1995 December and only on a perusal of some of the records without any additional opportunity the E.I. Court comes to the conclusion that it has to be covered from 10.1.96. If the E.I. Court had such a doubt it should have reopened the matter pointed out to the establishment and directed them to explain why it shall not be done in that fashion. It has not been done and therefore I feel an opportunity is to be given and I do so. In the result the order passed by the E.I. Court is set aside and the matter is remitted back with a direction to the E.I. Court to give an opportunity to the establishment to adduce evidence with respect to Ext.A8 wages register and the point M.F.A. No. 87 OF 2002 -4- whether those 10 persons mentioned in the register will come under the purview so as to attract the coverage under the E.S.I. Act. For that purpose if additional evidence or additional documents are necessary both sides shall produce the same and the matter be disposed of in accordance with law. The E.I. Court is directed to issue notice to the parties fixing the date of appearance. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- M.F.A. No. 87 OF 2002 -5- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 87 OF 2002 = = = = = = = = = = = J U D G M E N T 25th November, 2008.