IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Ins.APP.No. 49 of 2009(C) ------------------------------------ [IC.NO.19/2006 OF EMPLOYEES INSURANCE COURT, ALAPPUZHA] .................... APPELLANTS/RESPONDENTS: -------------------------------------------- 1. THE REGIONAL DIRECTOR, E.S.I CORPORATION, THRISSUR - 20. 2. THE INSURANCE INSPECTOR, E.S.I CORPORATION, HOLY ANGEL SHOPPING CENTRE, KALAMASSERY - 683 104. BY ADV. SMT.T.D.RAJALAKSHMY, S.C, ESI CORPN., RESPONDENT/APPLICANT: --------------------------------------- M/S.N.M.STORES, A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER, M R HANS, MADIYAMPARAMBIL HOUSE, NADAMA POST, TRIPUNITHURA. BY ADV. SRI.JOSEPH FRANKLIN. THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 28/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN,J ---------------------- Ins.Appeal No.49 OF 2009 ----------------------------------- Dated this the 28th day of June, 2010 J U D G M E N T This is an appeal preferred against the order of Employees Insurance Court, Alapuzha in IC.No.19/2006. The case before the court was challenging the correctness of clubbing of two units and the court below after consideration allowed the petitions and held that two units cannot be clubbed together. It is against this the Employees State Insurance Corporation has come up in appeal. 2. The learned counsel for the appellant vehemently and persuasively had argued before me that the court below had missed the principle to be followed and therefore wanted the indulgence of this court to rectify the mistake committed by the court below. The learned counsel had very strongly contended before me that there are 25 employees working under the same roof and they are the part and parcel of one unit and therefore the Insurance Court should not have allowed the case. On the other hand the learned counsel for the respondent would contend that two units are independent and separate units having separate existence and therefore it cannot be clubbed together. INAP. No.49/09 2 3. The principles to be followed are succinctly laid down in very many decisions and I may refer to one of the decisions where the facts are almost similar. In Evans Food Corporation Vs. Union of India and another reported in 1994 (2) Labour Law Journal 646 the learned judge exhaustively considered the materials. The first principle is whether there are two establishments, branches or units, the true relationship between them must be such that they constitute one integrated whole. The question of unity of the two establishments must therefore be decided on the touchstone of its total functional unity. The broad tests are unity of ownership, management and control, functional integrity, general unit and unit of employment. 4. Now to the facts of this case, NM Stores is a partnership concern and NM Textiles is yet another partnership concern. In NM Stores partners are brothers and in NM Textiles, partners are wives of brothers. NM Stores is dealing with ready made garments where as NM Textiles dealing with textile. So it has to be stated that both of them are dealing with clothes. NM Stores is having a separate account, separate wage register, separate muster roll, separate financial control and separate management. The unity of facts are that both the partnership concerns are INAP. No.49/09 3 situated in one and the same building and there is a common stair case. PW1 had deposed before this court that except these there is absolutely no business connection between the two. 5. The learned counsel for the Corp[oration would contend before me that when the officer inspected the business premises he was able to see 25 persons doing the work. Learned trial judge held that Insurance inspection team proceeded on the assumption that two shops constitute a single establishment. He did not ascertain the status of both the shops. The learned trial judge also held that except the fact that both the units are located in same building, and are engaged in textile items, no other common factors could be collected by the inspection team. The inspection team did not elicit any information. It has not verified the employment records and whether there was any supervision and control over the employees. It has also not collected any information whether there was financial interdependence between two units. So the materials collected which is in favour of ESI Corporation is only some basic facts like building and family relation. But the real aspect is with respect to business. Absolutely no materials are collected to show that the business is in any way interconnected. The learned counsel INAP. No.49/09 4 submitted before me further opportunity may be given to substantiate it. It was the fundamental duty of the Corporation employees and later at the time of trial to produce the evidence to establish the fact. Apex court has cautioned that remand should be avoided to fill up the lacuna in the case which will detrimentally affect the right of the other party. So I am not inclined to grant the request of remand as well. From these discussions I find that there are no materials in the appeal which warrants consideration. Therefore it lacks merit and dismissed but without costs. M.N. KRISHNAN, JUDGE. Sou.