IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Ins.APP.No. 62 of 2007() --------------------------------- IC.50/2004 of EMPLOYEES INSURANCE COURT, PALAKKAD .................... APPELLANT/APPLICANT ------------------------------------ M/S.TRICHUR PETROL SALES AND SERVICE S.T.NAGAR, (SAKTHAN THAMPURAN NAGAR) THRICHUR, REPRESENTED BY ITS MANAGING PARTNER, BABU PAUL. BY ADV. SRI.M.B.PRAJITH RESPONDENTS/OPPOSITE PARTY -------------------------------------------------- 1. ESI CORPORATION, REP.BY ITS REGIONAL DIRECTOR, ROUND NORTH, TRICHUR. 2. ASSISTANT DIRECTOR, (INSPECTIONS), ESI CORPORATION, ROUND NORTH, TRICHUR. ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN FOR R1, R2 THIS INSURANCE APPEALS HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== INAP No.62 OF 2007 ===================== Dated this the 12th day of December 2008 JUDGMENT This appeal is preferred against the order of the Employees' Insurance Court, Palakkad in I.C.No.50 of 2004. An application was filed against Ext.A1 whereby the applicant's establishment was brought under the purview of the ESI Act with effect from 6.11.2003. According to the applicant, the establishment is licensed for the retail sale of the petroleum products of Bharat Petroleum Corporation Ltd. and there is no justification in treating the establishment as a 'factory' under Section 2(12) of the ESI Act. The ESI Corporation would contend that two Insurance Inspectors who inspected the establishment on 6.11.2003 found that the same is a petrol pump having six electric motors of 0.5 H.P. for pumping petrol/diesel and more than ten persons were working in the premises. Learned counsel for the appellant would strongly contend before me that pumping out petrol or diesel by a mechanical process does not come within the ambit of manufacturing activity. This point has been considered by various High Courts and it has been held that petrol pump without service station INAP 62/2007 -:2:- employing more than 10 persons carrying on manufacturing activity, i.e. dispensing the petrol and diesel with the aid of power is covered under the definition of 'factory'. Hence covered by the Act(M/s.Qazi Noorul Hasan Hamid Hussain Petrol Pump and another v. Dy.Director, Employees State Insurance Corporation, Kanpur(2003 LLR 476(All.H.C). Therefore the first contention that it will not come under the definition of 'manufacture' has to be only negatived. The EI Court had referred to the decision of a Division Bench of this Court in MFA No.796 of 2000 which also had taken the view that it will come within the ambit of 'manufacturing process'. 2. So far as the number of employees are concerned, on 6.11.2003, the Inspectors found that there were 19 persons in the petrol pump and all those persons have been paid wages less than Rs.6,500/-. The court also held that the applicant has no case that 4 persons described as trainees were engaged as apprentices as per the Apprentices Act, 1961. So this is a case where the provision of Section 2(9) of the Act will squarely come and therefore I do not find any ground to disturb the finding entered into by the E.I.Court. 3. So far as the quantum, etc. is concerned, the Corporation is directed to issue notice, give reasonable opportunity to file objections, if any, and determine the amount after hearing the appellant and if any time is prayed INAP 62/2007 -:3:- for payment, it may be considered favourably. INAP is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-