IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Ins.APP.No. 5 of 2006() ----------------------- IC.16/2002 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT (APPLICANT): ----------------------------------- MANIKANDAN AUTOMOBILES (P) LIMITED, MAMANGALAM, REPRESENTED BY ITS DIRECTOR. BY ADV. SRI.P.RAMAKRISHNAN SRI.T.C.KRISHNA RESPONDENT(S): (OPPOSITE PARTY): ------------------------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR-20. ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.181 OF 2006 IN INS.APPEEAL. NO. 5 OF 2006 DISMISSED 30/9/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 5 OF 2006 = = = = = = = = = = = = = = = Dated this the 30th day of September, 2008. J U D G M E N T This appeal is preferred against the judgment of the Employees Insurance Court, Alappuzha in I.C.16/02. It is relating to the application of the E.S.I. Act to the establishment in question in this matter. It has been concluded by the judgment of this Court that the two units, Manikandan Automotives and Two Stoke Service can be clubbed together. But in order to claim contribution it must satisfy the basic requirements of 10 employees. It is the contention of the establishment that there were only nine employees and at one point of time there was one unpaid apprentice for a month and therefore it may not come under the coverage. A reading of the order of the E.I. Court also would reveal that the whole point centers round the apprentice. It also observed that in order to show that he was really apprentice there was no material. The documents such as muster roll, wages register etc. produced before the INS.APPEAL NO. 5 OF 2006 -:2:- Court and marked as Ext.P1 series would not show the involvement of 10th person in the establishment at all. The basic document relied upon by the Corporation is the report of its officer and when on perusing the attendance register with the said entries there is difference even with respect to the names of the employees mentioned for the year January, 1994 and in Two Stroke Service only names of four persons are shown and the 5th person is not available in that document at all. So the only document available is that of the report in the form of Ext.D1 by the officer of the Corporation. But he himself has affirmed that the document produced before the Court is not the document which he had seen. In order to affix the coverage under the E.S.I. Act the burden of proof is on the Corporation as well. The learned counsel for the appellant contends before me it is very difficult to prove a negative whereas possible to prove a positive. There are circumstances where the negatives can also be proved. So there may be circumstances which may help the Court or authority to arrive at a decision. Now except for the mentioning of a name by the Inspector, the INS.APPEAL NO. 5 OF 2006 -:3:- documents made available before the Court does not show the name of a 10th person and therefore under such circumstances a possible explanation taken by PW1 that a person was unpaid apprentice has to be accepted. It is the preponderance of possibilities that may have to be looked into in such types of cases and there is no case for the Corporation that Ext.P1 to P4 documents are concocted for the purpose of this case. So the positive materials placed before Court does not reflect the availability of a 10th person as an employee. Therefore relying upon the probative theory it has to be held that there is no 10th employee in that establishment. Therefore I disagree with the finding of the Court below set aside he same and hold that the establishment is not liable to be covered under the E.S.I Act. The appeal is allowed and disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-