IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Ins.APP.No. 50 of 2005() ------------------------ IC.3/2003 of ESI COURT, PALAKKAD APPELLANT/APPLICANT RENUKA MOHAN DAS, REPRESENTING M/S. HOTEL ZENANA, CHITHRAPPUZHA, IRUMPANAM, ERNAKULAM DISTRICT, RESIDING AT VITHANOVA HOUSE, MUTTATH LANE, ELAMKULAM, KOCHI-20. BY ADVS. SRI.A.V.XAVIER SRI.JOLLY JOHN RESPONDENTS/RESPONDENTS: 1. REGIONAL DIRECTOR, REGIONAL OFFICE, EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, M.G.ROAD, P.B.NO.2, NORTH SWARAJ ROUND, TRICHUR-20. 2. THE DEPUTY DIRECTOR, REGIONAL OFFICE, EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, M.G.ROAD, P.B.NO.2, NORTH SWARAJ ROUND, TRICHUR-20. 3. THE RECOVERY OFFICER, CENTRAL ZONE, REGIONAL OFFICE, EMPLOYEES STATE INSURANCE CORPORATION,PANCHADEEP BHAVAN, M.G.ROAD, P.B.NO.2,NORTH SWARAJ ROUND, TRICHUR-20, (4TH OPPSITE PARTY IN THE I.C.HAS BEEN DELETED AS STATED IN PARA 1OF THE IMPUGNED JUDGMENT). 4. K.P.KARTHIKEYAN, S/O.PURUSHOTHAMAN, KARUVAN PARAMBIL HOUSE, UDAYAMPEROOR, THRIPPUNITHURA, ERNAKULAM DISTRICT. 5. MRS.RAJANI MOHAN, W/O.K.P.MOHAN, KARUVAN PARAMBIL HOUSE, UDAYAMPEROOR, THRIPPUNITHURA, ERNAKULAM DISTRICT. ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN SRI.K.A.HASHIM FOR R4 & 5 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. 2448 OF 2005 IN INS. APPEAL NO. 50 OF 2005 DISMISSED 4.11.2008 Sd/-(C.N.RAMACHANDRAN NAIR, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- INS. APPEAL NO. 50 OF 2005 --------------------------------------------------------- Dated this the 4th day of November, 2008 JUDGMENT Ramachandran Nair, J. Appeal is filed challenging the order of the Employee's Insurance Court, Palakkad in I.C. No.3 of 2003 holding that the bar attached hotel run by the appellant along with respondents 4 and 5 as partners has coverage with effect from 17.1.1997 onwards, the disputed period being 12.1.97 to 30.9.2001. 2. It is the case of the appellant that she has only 10% share in the partnership whereas respondents 4 and 5 have 80% share. The E.I. Court held that recovery has to be made from respondents 4 and 5 and that 4th respondent being the principal employer, recovery against the appellant as partner arises only in the event of failure to recover from the principal employer. Strangely, the principal employer has not challenged the award. However, counsel appearing for the 4th respondent submitted that the 4th Ins. Appeal No. 50/2005 2 respondent is supporting the case of the appellant. 3. We heard counsel appearing for all the parties. It is seen that the E.I. Court has considered the evidence adduced by the Corporation which relies on the inspection report prepared by the Inspector during the inspection conducted on 17.1.1997. The inspector during inspection identified the employees and found that 22 persons were employed at the time of inspection. Counsel for the appellant, however, contended that the names and address of the employees are not in the inspection report, so much so, the said report cannot be accepted. We do not think that want of evidence regarding the names and address of the employees in the inspection report affects the validity of the report because employees of bar attached hotels may not co-operate with the department in an adjudication against the management. We find that the inspector who conducted inspection has given evidence about the identity of the employees at the time of inspection. Besides the evidence given by them, it is conceded that the strength of the employees was increased from 1.4.2005. To our specific question as to whether there is any expansion in the business, counsel on both sides contended that besides increase in the volume of business, there is no change in the establishment pattern. The appellant is not in a position to explain how business was carried on prior to 1.4.2005 with lessor number of employees. Above all, the case of the Ins. Appeal No. 50/2005 3 Corporation is quite believable because a bar attached hotel having a restaurant cannot be managed with nine employees. It needs employees like room boys, people at the sales counter, suppliers, employees for purchases etc. Therefore, the case of the appellant and that of respondents 4 and 5 are without bond fides. Above all, we find no substantial question of law arising from the order of the E.I. Court warranting interference. Consequently, the appeal is dismissed. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ Ins. Appeal No. 50/2005 4 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. INS.APPEAL NO. 50/2005 JUDGMENT 4th November, 2008