IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 MFA.No. 819 of 2002(B) --------------------------------- IC.33/2000 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT: RESPONDENT ---------------------------------------- THE REGIONAL DIRECTOR, ESI CORPORATION, REGIONAL OFFICE, PANCHADEEP BHAVA, THRISSUR. BY ADV. SRI.P.SANKARANKUTTY NAIR RESPONDENT/ APPLICANT ----------------------------------------- P.A.YOUSUF, CONTRACTOR, CIVIL STATION CANTEEN, KAKKANADU. BY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 819 OF 2002 = = = = = = = = = = = = = = = Dated this the 9th day of July, 2008. J U D G M E N T This appeal is preferred against the judgment of the Employees' Insurance Court, Alappuzha in I.C.33/00. The applicant before the Court was a contractor. He had taken a right to conduct canteen at the Civil Station, Kakkanad for a period of one year. The E.S.I. Corporation would submit that it was an establishment covering more than 20 employees and from 1.4.92 onwards it has been considered as a covered establishment and therefore the applicant is liable to pay contribution. It was also contended that there was use of eclectic power coupled with employment of about nine persons which also would attract the provisions of the E.S.I. Act. The Court after considering the materials found that it is not a continuing process and there is no evidence to show that it has got more than 20 employees and further the Corporation has not succeeded in proving that there is electricity connection and there was a grinder using electric power is found in use there. It is against that decision the Corporation has come up in appeal. 2. So far as the first point that is regarding the contention that it is a covered establishment and therefore it continues, is to be looked into. It has to be remembered that canteen is conducted in the Civil Station and it is only a contract given to a person and the term of duration of the contract is only for a period of one year. Different persons come and the number of employees deployed by them will be different and there is no stipulation that it must have a particular number of employees for running the canteen. So the contention that it is a continuous establishment covered under the Act cannot be accepted. I agree with the finding of the Insurance Court. 3. The next point is regarding the question whether there had been more than 20 employees. E.I. Court has considered the rival contention and held that there are no materials to prove the said factum. Exts.P7 to P17 are the employment records which according to the Court is maintained in the usual course of business and it evidences that from January, 1993 onwards the employment strength has never reached 20 on any day. Ext.D12 is an inspection report which also evidences that the employees strength is less than 20. So the Court found that there was never employment of 20 or more persons. 4. The Corporation wanted to put the establishment under the coverage on the ground that it has got above 10 employees coupled with using of power for manufacturing process. The applicant before Court submitted that there is no electricity connection and there are no electrical equipments and grinding is done by adopting human help. There had been a contention that the inspector inspected the premises and he was able to find a grinder having a capacity of 5 liters and also there is grinding master in the establishment. The Court below found that there is nothing to show that there was electricity connection available in the premises. The Court also held that the inspector did not even mention the make or type of the grinder and also observed that it is easy to scribble in the report that a grinder was found there. The Tribunal was dissatisfied with the materials available to uphold that factor also. These are all factors that can be decided on the materials available and it is a question of fact. Under the provisions of the Act unless there is a substantial question of law, appeal cannot be entertained. It may be argued that if there is a perverse approach or illegal appreciation of the materials it will amount to a substantial question of law. But on a reading of the entire judgment it can be seen that there is no such perversity or mis-appreciation of the materials placed before the Court. Therefore, I do not find any substantial question of law involved in the appeal and hence the appeal fails and it is dismissed. M.N. KRISHNAN, JUDGE. ul/- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 819 OF 2002 = = = = = = = = = = = J U D G M E N T 9th July, 2008.