FA/5298/2001 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5298 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== REGIONAL DIRECTOR,E.S.I.CORP. Versus BHAVNAGAR VEGETABLE PRODUCTS UNIT ====================================== Appearance : MR BP BHATT for Appellant. MR GM JOSHI for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant has challenged judgment and order dated 20-7-2001 passed by ESI Court, Bhavnagar in (Old) ESI Application No.15/1991, being (New) ESI Application No.30/1996, FA/5298/2001 2/4 JUDGMENT whereby the application of the respondent herein was allowed and notice dated 27th March 1991 issued by the appellant was quashed and set aside. 2. The facts in brief, as emerging from record, are as under: 3. The respondent herein is working as a union of National Dairy Development Board and as per ESI Act, employees of the respondent are insured and they are depositing their contribution regularly. As per the case of the respondent herein, their unit was closed during the period from 1-11-1975 to 24-12-1975 and no manufacturing activity has taken place during that period. It is the case of the respondent herein that since the unit was closed, it cannot be considered as “factory” within the meaning of Section 2, Sub-Section 22 of the Act and, therefore, it is not necessary to make contribution towards employees insurance. It is also stated that as per order dated 19-12-1977 of the Gujarat High Court, it is held that National Dairy Development Board is not liable to pay any past dues. Inspite of these facts, the appellant herein had issued notice dated 27-3-1991 demanding the amount of contribution from the respondent herein. Therefore, the respondent herein has filed an application before ESI Court, Bhavnagar. 4. After considering the evidence on record and after hearing both the sides, ESI Court has allowed the application filed by the respondent by passing impugned judgment. Being aggrieved by it, the appellant has filed this appeal. 5. Heard learned advocate, Mr.Bhatt for the appellant and learned advocate, Mr.Joshi for the respondent. FA/5298/2001 3/4 JUDGMENT 6. Learned advocate for the appellant has submitted that ESI Court has not considered vital facts of the case and the impugned order is contrary to the provisions of law. He also submitted that the learned Judge has failed to appreciate that the contribution was demanded on omitted wages from the respondent herein. He, therefore, submitted that this appeal may be allowed and impugned order of the ESI Court may be quashed and set aside. 7. On the other hand, learned advocate, Mr.Joshi has supported the judgment of the lower Court. He submitted that possession of respondent unit was taken over pursuant to the order of Gujarat High Court dated 19th December 1977, and that from 1st November 1975 to 24th December 1977, the respondent unit was closed, therefore, there is no question of making any contribution for the said period. He submitted that since the unit was closed during aforesaid period, it cannot be considered as “factory” as per the provisions of the Act for the said period. In view of above submissions, he submitted that this appeal may be rejected without interfering with the impugned order. 8. I have considered the submissions made on behalf of both the sides and also gone through the judgment of the ESI Court and other relevant documents. After considering the evidence on record in paragraph 8 of its judgment, ESI Court found that the Corporation herein is not entitled to recovery of amount as per the notice dated 27-3-1991. In my view, ESI Court has rightly found that since the unit was closed from 1st November 1975 to 24th December 1977, it cannot be considered as “factory” within the meaning of Section 2, Sub-Section 22 of the Act, therefore, there is no question of making any contribution for the said period. I am in complete agreement with the reasonings given and finding arrived at by the ESI Court while passing impugned order. No FA/5298/2001 4/4 JUDGMENT other evidence is shown to me to take a contrary view and this appeal is devoid of any merits. Therefore, I do not find any reason to interfere with the impugned judgment. 9. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. (K.S.Jhaveri, J.) /malek