IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 Ins.APP.No. 51 of 2007() -------------------------------- IC.147/2002 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENT ------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, PANCHADEEP BHAVAN, THRISSUR-20. BY ADV. MR.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT ------------------------- M/S. WOODMANNS, 39/5004, THOUNDAIL ROAD, NEAR SOUTH OVERBRIDGE, KOCHI-36, REPRESENTED BY ITS MANAGING PARTNER. R1 BY ADVS.MR.A.V.XAVIER , MR.K.JOLLY JOHN. THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 51 OF 2007 = = = = = = = = = = = = = = = Dated this the 6th day of January, 2010. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Alappuzha in I.C.147/02. The establishment namely M/s Woodmanns admittedly is covered after 1-7-2001 under the E.S.I. Act. The dispute between the Corporation and the establishment is whether it is liable to be covered for the period from 1998-1999 to 2001-2002. According to the corporation, the commencement is from 12.1.98 for the reason that 10 or more persons are employed and power is used for manufacture and thereby it will squarely come within the definition of the factory and so the establishment is liable to be covered. On the other hand the establishment would contend it is not liable to be covered for the reason that it has no activities in the factory as alleged by the Corporation on 12.1.98 and therefore the question of it being assessed for the liability under the Act should not be entertained at that time. Now it has to be INS.APPEAL NO. 51 OF 2007 -:2:- understood that it is an establishment which is in existence even prior to that date. But they have started new premises, workshop at Aroor. Whether with the aid of power manufacturing process has commenced in that premises on 12.1.98 is a question that has to be determined. I make it very clear that what is sought to be put into is regarding the manufacturing process at Aroor. The learned E.I.Court held that there is no positive evidence to indicate that with the help of power the manufacturing process is commenced on 12.1.98. Now it is an establishment where manufacturing process is done at least admittedly now. So in order to find out whether a manufacturing process with the aid of power is started innumerable number of documents would be available. The two modalities to prove the same are (i) by production of documents by the establishment and the other is to direct the establishment to produce the documents if available by the Corporation to prove the position. Either way when documents are produced before Court it will give a clear picture regarding the same. It has to be specifically INS.APPEAL NO. 51 OF 2007 -:3:- stated that a manufacturing process with the aid of power cannot go unnoticed for years together. So if really earnest efforts are made the truth can be found out and it is on the basis of the same a decision has to be arrived at. Therefore I set aside the order passed by the court below and remit it to the same court for fresh consideration by permitting both the parties to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. The parties are at liberty to raise all factual and legal points which is in their favour for consideration before court so that the picture will be very clear. The E.I.Court is directed to fix a date of appearance and inform the parties regarding the same. The Ins.Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-