IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 Ins.APP.No. 32 of 2004() ------------------------ EIC.63/1999 of E.I.COURT, KOZHIKODE .................... APPELLANT/APPLICANT: ------------------------------------- M/S. COMMISSION AND GENERAL AGENCY (CALICUT) MERIDIAN MANSION, WYNAD ROAD, CALICUT, REPRESENTED BY ITS PARTNER, SRI.K. MOIDU S/O. AHAMMED HAJEE, RESIDING AT `SHELOM', 5/655, CANAL ROAD, P.O. ERANHIPALAM, CALICUT. BY ADV. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. RESPONDENT: RESPONDENT: ----------------------------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, THRISSUR. BY ADV. SRI.T.V.AJAYAKUMAR THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 23/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2/- ORDER ON I.A.NO.2463/2004 IN INS.APP.NO.32/2004 DISMISSED 23/05/2008 SD/-M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPL. NO. 32 OF 2004 = = = = = = = = = = = = = = = Dated this the 23rd day of May, 2008. J U D G M E N T This appeal is preferred against the order of the E.I. Court, Kozhikode in E.I.C.63/99 whereby the Court held that the appellant is an establishment covered under the E.S.I. Act from 1.2.92 and as a consequential order directed for assessment of contribution from 15.7.94. The E.I. Court arrived at that decision mainly on the basis that the applicant has employed 20 persons for wages in February, 1992 and March, 1992. The learned counsel for the appellant would strongly contend before me that the said finding does not disclose that there was employment of 20 persons in a day and therefore the statutory provisions of the Act is not complied with and therefore the action cannot be continued. On the contra the learned counsel for the Corporation would contend there is definite finding and also there is non production of the attendance register. INS. APPEAL. 32 OF 2004 -:2:- 2. It is true that unless there is a specific question of law the Court cannot entertain an appeal under this enactment. The learned counsel for the Corporation has drawn my attention to a decision reported in E.S.I. Corporation v. Cheerans Auto Agencies (1991 (2) KLT page 22 SN 32) wherein this Court held that, “The question whether the two persons are employed or not is a question which has to be decided on assessment of fact and it is a question of fact. At any rate, it cannot be treated in the circumstances of the case, as a substantial question of law.” 3. On the contra the learned counsel for the appellant would submit before me the question is whether there is a proper consideration in the correct direction as to whether there is any evidence to establish that 20 persons are employed in a day as contemplated under the Act. Shorn of the technical details it is desirable to consider the question. Paragraphs 10 and 11 of the order deal with this question. In paragraph 10 it is stated that Ext.D1 statement INS. APPEAL. 32 OF 2004 -:3:- submitted by the applicant would establish that the applicant had employed 20 persons for wages in February, 1992 and March, 1992. In paragraph 11 also the Court considered a similar question and perused Ext.P4 wage register with specific reference to the month of February, 1992. It is recorded as follows: “It is manifest that the applicant has employed 20 persons through out the month of February and disbursed full wages to all of them for the said month.” Therefore it has to be concluded that the applicant has employed 20 persons for wages through out the month of February, 1992. So a perusal of the wage register in person and on a personal satisfaction of the factum of disbursing wages for 20 persons through out the month of February, 1992 has led the Insurance Court to come to the conclusion that 20 persons were employed through out the month of February, 1992. The Insurance Court also had drawn an adverse inference of non production of attendance register. It is stated that the attendance register relating to the prior INS. APPEAL. 32 OF 2004 -:4:- years are produced. It did not produce the material attendance register and therefore held that if produced it would go against them. This point is met by the learned counsel for the appellant by referring to the report of the Inspector wherein it is stated that there were only 19 persons as per the attendance register. But it has to be held that one Krishnan Nair was employed in January, 1992 and February, 1992 as per the wages register and so there is 20 in January and February, 1992. When a report is accepted the Court cannot reject one portion and only take the other part of it. I think it has to be accepted in toto or rejected. Now, the factum that in the entire month of February, 1992 wages had been disbursed to 20 persons is indicative of the factum that the appellant had engaged 20 persons through out the month and it is a question of fact that has been found by the Court below on materials available before it. The said finding is not vitiated by any illegality or irregularity. When it is so the substantial question of law sought to be raised by the appellant that there is no evidence INS. APPEAL. 32 OF 2004 -:5:- to show that 20 persons or more are engaged on one day is not proved cannot be accepted. Therefore I find that really there is no substantial question of law involved and further there is nothing erroneous in the finding of the Insurance Court. The appeal lacks merit and therefore it is dismissed. M.N. KRISHNAN, JUDGE. ul/-