FAO No. 4475 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- FAO No. 4475 of 2005 (O&M) Date of decision: November 26, 2009 Employees state Insurance Corporation ........ Appellant Versus M/s Essma Textiles Pvt. Ltd and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Brijeshwar Singh Bhalla, Advocate for the appellant-Corporation Mr. Naveen Batra, Advocate for the respondents -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (oral) This is an appeal against the judgement dated 15.06.2005 passed by the Employees' State Insurance Court, Amritsar. While challenging the aforesaid judgement, the learned counsel for the appellant-corporation submitted that the Court below has failed to appreciate that Shri P K Narula, Deputy Director of E.S.I. who appeared as R.W.1 paid a surprise visit to the respondent concern and observed that the job of Darning and Clipping was being done inside the factory. Another fact FAO No. 4475 of 2005 2 which the Court below ignored was that the respondent did not produce gate- passes to show that the material was sent out side the factory premises for carrying out the process of Darning and Clipping. Further, the respondents neither furnished the addresses of the contractor nor any of the alleged contractor was produced before the Deputy Director to show that the work was actually got done outside the factory premisses. Thus, the respondents are liable for fabrication charges. However, it has been pointed out that Shri P K Narula, RW1 in fact admitted the fact that fabrication means that employer sends his raw material/goods to the parties and after fabrication the same comes back in the factory premises. Attention was brought to the findings recorded by the Employees State Insurance Court, while deciding issue No.1 wherein RW1 has admitted as under:- “He admitted that he visited few parties who are doing fabrication work outside the main factory premises of the petitiner concern and their names were M/s Dev Textiles, Chheharta, M/s Guru Arjan Dass, Ghanpur, Chheharta, M/s Dashmesh Textiles, Vikas Nagar, Amritsar, M/s Parmod Textiles Mills, Joshipura, Khalsa College, Amritsar, M/s Ashwan Textiles, Inside Lal worsted Mills, Amritsatr and Inderjit Textiles which was also inside the Lal worsted Mills, Amritsar. He admitted that he could not collect any evidence to the effect that machinery installed in the premises M/s Dev Textiles belongs to M/s Essma Textiles. He has FAO No. 4475 of 2005 3 calculated the fabrication charges in the discrepancy letter on the ground that machinery provided to these employers were provided by M/s Essma Textiles Pvt. Ltd., but there is no evidence on record to that effect. So in such circumstances, when the fabrication work was got done by the employer outside the factory from independent principal employer and they were not contractors and petitioner was made liable to pay contribution merely on the pretext that machinery of M/.s Essma Textiles, which could not be proved on record by the respondent, was installed, then no ESI contribution can be claimed on fabrication charges. So the recovery order EX R5 is invalid only to the extent of contribution on fabrication charges. This issue is accordingly decided partly in favour of the petitioners and partly against the petitioner.” Learned counsel for the appellant corporation has not been able to dispute the above said admitted position. No law point has been raised. In view of the above, the present appeal is accordingly dismissed being devoid of merit. (Nirmaljit Kaur) Judge November 26, 2009 mohan