THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 4305 OF 2003 JUDGMENT: 1. This Civil Miscellaneous Appeal is preferred aggrieved by the order dated 11.10.1999 in Original Petition No.53 of 1993 on the file of the Principal Senior Civil Judge, Rajahmundry. 2. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed before the court below. 3. The petitioner filed a petition under Sections 75, 76 and 77 of the Employees’ State Insurance Act, 1948 (for short, ‘the Act, 1948’), before the court below for declaration that notices dated 2.12.1992 and 7.12.1992 issued by the respondents as illegal, invalid and ultra vires of their powers, stating that the petitioner is a sweat meat shop selling the same on small scale and it always employs employees less than ten. It maintains various registers as required under law. The first respondent issued proceedings dated 2.12.1992 stating that the petitioner establishment is covered by the provisions of the Act, 1948 with effect from 31.10.1992 and advised it to submit for its jurisdiction under the Act. The petitioner submitted a letter to the first respondent requesting to forward a copy of the Inspector’s report dated 31.10.1992 to enable it to file its objections for the same. The first respondent refused to forward the copy as per his letter dated 30.12.1992. The second respondent, in furtherance of the orders of first respondent, issued proceedings dated 7.12.1992 calling upon the petitioner to submit for the jurisdiction of the second respondent with effect from 31.10.1992. The provisions of the Act, 1948 have no application to the petitioner’s establishment as the petitioner can never be termed as an ‘establishment’ as defined under Section 2(12) of the Act. The number of employees in petitioner establishment never exceeded 10 as contemplated under the provisions of the Act. The number of employees was six during the relevant period. The relevant registers show the same. The first respondent ought to have given an opportunity to the petitioner before ordering implementation of the provisions of the Act, 1948. Hence, the petition. 4. The first respondent filed his counter denying the averments in the petition and stating that on 31.12.1992, the Inspector of respondent corporation visited the petitioner and found 11 employees working in the hotel and 2 Frigidaire with the aid of electricity were being used by the employer in the hotel. The petitioner was using one fridge for storing ice cream and another for eatables. M.Jayaram, in-charge of the petitioner’s hotel gave a list of 11 employees working then in the hotel on 30.10.1992 and also stated that 2 fridges were being used in the hotel. Using the fridge amounts to manufacturing process with power. Hence, the petitioner satisfied the conditions that it employed 10 or more persons for wages and manufacturing process is being carried on with the aid of power. Hence, the petitioner comes within the meaning of Section 2(12) of the Act, 1948 and is attracted by the provisions of the Act, 1948. For that reason, the employer was asked to comply with the provisions of the Act, 1948,. Hence, it is prayed to dismiss the O.P. 5. The second respondent adopted the counter filed by the first respondent. 6. During enquiry, P.W.1 was examined and Exs.A1 to A8 were marked, on behalf of the petitioner, and R.W.1 was examined and Exs.B1 to B3 were marked, on behalf of the respondents. 7. The court below, upon considering the material on record, allowed the O.P. holding that the provisions of the Act, 1948 are not applicable to the premises of the petitioner by the date of inspection. Challenging the same, the present appeal is preferred by the E.S.I. Corporation. 8. Now, the point for consideration is whether the findings of the trial Court are perverse ? 9. The learned counsel for the appellant contended that when the Inspector of E.S.I. Corporation visited the premises of the respondent herein, he found 11 employees working there and that the said fact was also admitted by the Manager of the establishment; that keeping ice creams in refrigerator is a manufacturing process and the same is the substantial question of law, and hence, he prays to set aside the impugned order. 10. On the other hand, the learned counsel for the respondent contended that the provisions of the Act, 1948 are not applicable to the respondent herein and that keeping ice creams in a refrigerator is not a manufacturing process and that, the court below, upon proper appreciation of the evidence on record, rightly held the same and there are no grounds to interfere with the same. 11. Ordinarily, an appeal is not maintainable unless the appellant established a substantial question of law. The case of the E.S.I. Corporation is that its Inspector inspected the premises of the respondent herein and found 11 employees working and some ice creams were stored in two refrigerators. There is no pleading or evidence with regard to processing or manufacturing of ice creams in the premises in question. Therefore, by simply keeping some ice creams in the refrigerator, it cannot be said that it would come within the meaning of ‘manufacturing process’. 12. With regard to number of employees working, according to the E.S.I. Inspector, number of employees that were found working at the time of inspection was ‘11’, whereas Exs.A5 to A8, which are attendance and wage registers, would clearly go to show that less than 10 employees were working with the respondent herein. The Inspector, who prepared Ex.B1-report is not examined to speak about its contents. Admittedly, R.W.1 was not present when Ex.B1-report is prepared. In the absence of any evidence on this aspect, Exs.A5 to A.8 coupled with the evidence of P.W.1, was rightly accepted by the trial Court. So, on factual aspects, the trial Court has decided the matter and allowed the Original Petition. There is no substantial question of law involved in this appeal to be decided by this Court. The findings of the court below are upon proper appreciation of the evidence on record. None of the findings is shown to be perverse. The appeal is devoid of merit and is liable to be dismissed. 13. The Civil Miscellaneous Appeal is, accordingly, dismissed. No costs. ---------------- 06.09.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 4305 OF 2003 Date: 06.09.2010 Between: Employees’ State Insurance Corporation rep. by its Deputy Regional Director. …appellant And M/s. Karachi Sweet Meats rep. by its Proprietor …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 4305 OF 2003 06.09.2010