MAF 102/1998 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal under Section 82 of the Employees’ State Insurance Act, 1948 (in sho rt, the Act ) is directed against the order dated 19th March, 1998 passed by th e learned Presiding Officer, ESI Court, Dibrugarh allowing the application filed by the respondent under Section 75 of the Act by setting aside the demand notic es issued by the appellant being demand notices dated 20th January, 1992; 10th J uly, 1992; 19th January, 1993 and 14th July, 1993 demanding contribution under t he provisions of the Act. The respondent herein filed an application under Section 75 of the Act before th e ESI Court challenging the aforesaid demand notices and also consequent crimina l proceeding contending inter-alia that the respondent being a Printing Press is not covered under the provisions of the Act and in any case, they never at any point of time having employed 10(ten) or more employees, they are not coverable under the Act, in view of Section 2(12) of the Act. The said contention was res isted by the appellant by filing written objection contending inter-alia that th e Printing Press being an establishment within the meaning of the Act, the provi sions of the Act is applicable and the respondent/establishment having employed more than 10(ten) or more persons, they continued to be covered, in view of Sub- Section (6) of Section 1 of the Act, even if the number of employee engaged by t hem for any subsequent period is less than 10(ten). The learned Presiding Officer on the basis of the pleadings, framed the followin g points for determination:- 1. Whether the present petition of the applicant is time barred and being s o, it is not maintainable? 2. Whether the printing press in question of the applicant falls within the cove rage of provisions of the ESI Act? 3. Whether the applicant is entitled to get the declaration that, the orders mad e under Section 45-A of the ESI Act? On 20-3-91, 16-7-91 and 13-2-92 and recovery certificate dated 3-5-91 and 11-9-9 1 and show cause notice dated 8-10-91 of the certificate officer, to be illegal and valid? 4. Whether the applicant is entitled to get declaration, the Criminal proceeding initiated as a penality for default of payment in respect of the payments made under the provisions of ESI Act to be illegal and void? 5. Whether the parties are entitled to any other relief? While the respondent/applicant examined 1(one) witness and proved a number of do cuments, no witness was examined by the appellant, who, however, cross-examined the lone witness examined by the respondent/applicant. The learned Presiding Officer, upon appreciation of the evidences on record, by order dated 19th March, 1998 allowed the application filed by the present respon dent under Section 75 of the Act by holding that the Printing Press do not fall within the purview of the Act. It has also been held that since in respect of t he relevant period for which the notices were issued, the respondent/applicant e ngaged 8(eight) workmen, it cannot come within the definition of Section 2(12) o f the Act and hence not coverable under the Act. Hence the present appeal. I have heard Mr. BR Dey, learned senior counsel for the appellant and Mr. SN Sar ma, learned senior counsel for the respondent. Mr. Dey, learned senior counsel for the appellant referring to the judgment in T he Employees’ State Insurance Corporation & Ors. Vs. M/s National Printers & Or s. reported in 1996 (1) GLT 269 has submitted that the question as to whether th e Printing Presses are covered under the provisions of the Act has been decided and as such, the finding recorded by the learned Presiding Officer that the Prin ting Presses are not covered under the Act requires to be set aside. Relating to the second question, i.e. the number of employees engaged by the res pondents vis-à-vis their coverage, keeping in view the requirement of Section 2( 12) of the Act, it has been submitted by the learned senior counsel for the appe llant that the most pertinent question as to whether the respondent at any point of time engaged 10(ten) or more persons, after it was brought under the purview of the Act, for determination of its liability to pay the contribution, has not been gone into by the learned Presiding Officer. It has been submitted that i n fact the respondent has led evidence relating to the number of employees engag ed during the periods in question for which notices were issued. The learned co unsel further submits that without determining such question, in view of the pro visions contained in Sub-Section (6) of Section 1 of the Act, the learned Presid ing Officer ought not to have allowed the application filed by the respondent. It has, therefore, been submitted that the impugned order requires interference and the proceeding may be remanded for fresh decision. Mr. Sarma, learned senior counsel, on the other hand, submits that there is no d ispute relating to the coverage of the Printing Presses under the provisions of the Act. However, according to the learned senior counsel, it is evident from t he order passed by the ESI Court that after taking into consideration the eviden ces adduced, it has come to the finding that there was no engagement of 10(ten) or more persons by the respondent/establishment at any point of time. I have considered the submissions of the learned counsel appearing for the parti es and also perused the materials available on record. As noticed above, there is no dispute relating to the coverage of the Printing P resses under the provisions of the Act, in view of the decision rendered by this Court in the Employees State Insurance Corporation (supra). Hence the finding recorded by the learned Presiding Officer that the Printing Presses are not cove red is set aside. Relating to the second question, the most pertinent question, which requires det ermination by the learned Presiding Officer was whether there was engagement of 10(ten) or more persons by the respondent/establishment at any point of time aft er the said establishment was brought under the provisions of the Act. In the o rder passed by the learned Presiding Officer, there was nowhere mentioned about the date when the establishment was brought under the provisions of the Act and on the other hand, it was the finding recorded by the learned Presiding Officer that the Printing Press is not covered under the provisions of the Act. Section 1(6) of the Act provides that a factory or an establishment to which thi s Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried o n with the aid of power. Sub-Section (12) of Section 2 of the Act stipulates th e number of persons required to be engaged in the factory or establishment, wher e any process is carried on with or without power. Hence the determination of the number of persons engaged by the respondent at an y point of time after it was brought under the purview of the Act is required to be made before recording any finding relating to the liability of the responden t to pay the contribution. As noticed above, the date when the establishment wa s brought within the purview of the Act was not taken into consideration by the learned Presiding Officer, which is crucial for the purpose of determining the i ssue, as noticed above. That being the position, the impugned order dated 19th March, 1998 passed by the learned Presiding Officer is set aside. The matter is remitted to the learned Presiding Officer, ESI Court, Dibrugarh for deciding the said proceeding afresh. The parties are directed to appear before the learned Presiding Officer, ESI Cou rt, Dibrugarh on 31st January, 2012. Registry is directed to send down the record.