IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Ins.APP.No. 52 of 2008() ---------------------------------- IC.NO.9/2005 of EMPLOYEES' INSRUANCE COURT, PALAKKAD .................... APPELLANT/APPLICANT: ------------------------------------- M/S.NANDILATH AGENCIES, KURUPPAM ROAD THRISSUR, REPRESENTED BY ITS MANAGING PARTNER N.G. GOPALAKRISHNAN. BY ADV. SRI.M.B.PRAJITH RESPONDENTS/OPPOSITE PARTY: --------------------------------------------------- ESI CORPORATION, REP. BY ITS REGIONAL DIRECTOR, ROUND NORTH, TRICHUR. BY ADV. SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... Ins.A.NO.52 OF 2008 ............................................. Dated this the 18th day of June, 2010. J U D G M E N T This is an appeal preferred against the order of the Employees Insurance Court, Palakkad in I.C.No.9/2005. The appellant moved an application against the order of clubbing of M/s. Nandilath Agencies, M/s. New Nandilath Agencies and M/s. Nandilath T.V. World. It is contended by the applicant that M/s.Nandilath Agencies and M/s.New Nandilath Agencies have no connection what so ever with respect to the business. They are two separate and independent establishments and therefore, number of employees working in M/s. New Nandilath Agencies cannot be tacked on for the purpose of finding out applicability of the provisions of the Employees Insurance Act. There was an earlier proceedings as I.C.No.41/1996 and ultimately it has come out that at that point of time clubbing of M/s.Nandilath Agencies and M/s. New Nandilath Agencies were not permitted. So unless there is a change of circumstance, one cannot hold that employees of M/s. New Nandilath Agencies can be tacked on for the : 2 : Ins.A.NO.52 OF 2008 purpose of arriving at a decision. The change of circumstance should be correctly proved. Just because they are functioning in one building, that alone shall not be a criteria for clubbing. Similarly just because of their relation, that also cannot be a ground. Even if geographical proximity is there, several relevant circumstances which are really necessary to find out the solution of the case such as regarding interchangeability of the employees, financial control of the institutions, management of the institutions and also nature of business going on in each of the institutions and their interconnectivity are also to be considered. If it is found that there is only one account, interconnectivity can be proved by that account. It may be a very strong circumstance infavour of the Corporation. Suppose there is interchangeability of the employees, that also shall have a definite bearing on the question. The Employees Insurance Corporation moved an application before the court to direct the persons to produce general ledger, day book, vouchers etc for the years 2001-02 to 2003-04 in respect of M/s.Nandilath Agencies and M/s. New Nandilath Agencies. : 3 : Ins.A.NO.52 OF 2008 One can argue for the position that since M/s. Nandilath Agencies does not admit any connection with M/s. New Nandilath Agencies, it may not be possible for it to produce the documents of the other. But it has to be stated that admittedly Sr. N.G. Gopalakrishnan is the present managing parter of both these units. So, it is imperative on their part to produce the documents for the reason that it is the most crucial document that will help the court to take a decision in the matter. 2. The learned counsel for the appellant submits that somehow or other those documents are not produced and therefore, if an opportunity is given, it will be easy to produce those documents. 3. I am conscious of the fact that lacuna cannot be permitted to be filled but it has to be remembered that it is a case where earlier clubbing was not permitted and it is the change of circumstance that is pleaded for clubbing units. Therefore, the evidence subsequent to the decision of that case may be absolutely relevant for arriving at a proper judicial decision. So, I am inclined to grant an opportunity. : 4 : Ins.A.NO.52 OF 2008 4. Therefore, the order under challenge is set aside and the matter is remitted back to the E.S.I. Court for a fresh consideration by permitting parties to produce both documentary as well as oral evidence in support of their respective contentions and it is made further clear that the appellant herein shall take out steps or produce the document called upon to be produced as per I.A.No.116/2007. After considering the question of clubbing, the court may consider about the number of employees and arrive at a decision regarding applicability of the provisions of the Act. The Employees Insurance Court is directed to issue notice to the parties fixing the date of appearance. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 5 : Ins.A.NO.52 OF 2008