IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Ins.APP.No. 61 of 2007(F) ------------------------ IC.49/2004 of ESI COURT, PALAKKAD .................... APPELLANTS/OPPOSITE PARTIES ----------------------------------------------- 1. EMPLOYEES STATE INSURANCE CORPORATION, REP.BY ITS REGIONAL DIRECTOR, ROUND NORTH, THRISSUR. 2. ASSISTANT DIRECTOR (INSPECTIONS), EMPLOYEES' STATE INSURANCE CORPORATION, ROUND NORTH, THRISSUR. BY ADV. SRI.T.V.AJAYAKUMAR RESPONDENT(S): APPLICANT ------------------------ JANAKI RAM ENTERPRISES, KOKKALAI, THRISSUR, REP.BY PROPRIETOR DR.K.K.MOHANDAS. ADV. SRI.M.B.PRAJITH FOR R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 61 OF 2007 = = = = = = = = = = = = = = = Dated this the 5th day of October, 2009. J U D G M E N T This appeal is preferred against the order of the Employees Insurance Court, Palakkad in I.C.49/04. The applicant before the said Court is a petrol pump and the Employees State Insurance Corporation issued a notice and directed them to comply with the provisions under the E.S.I.Act and challenging the same the applicant therein approached the E.I.Court and the Court held that it does not come within the ambit of the E.S.I.Act for the reason that 10 or more persons were not employed in the applicant's petrol pump on 6.11.2003. 2. A reading of the application would reveal that the main contention was, being a petrol pump there is no manufacturing process and therefore the Act cannot be extended as S.2(12) of the Act will have no application to the same. It has been settled by decisions of the Court that the petrol pump will come under the manufacturing process as INS.APPEAL NO. 61 OF 2007 -:2:- diesel or petrol is pumped out using mechanical process. Therefore the said contention may not detain us long. 3. The next question is regarding the factual consideration. Now the E.I.Court had accepted the argument of the learned counsel for the applicant that even if there are 11 employees and as the petrol pump is working day and night two or three employees will be always not available on any day. So it has to be stated that the employees strength is less than 10 and so that argument can be accepted. It appears that the E.I.Court accepted that argument and arrived at a decision. I cannot agree with the said reasoning for the reason that an establishment may have 25 persons out of which 5 persons may be on leave and therefore one cannot hold that the establishment does not have a strength of 25. So it is not the way in which the case has to be approached. It is on such situation learned counsel for the appellant would contend before me that their employees are not coming within the definition of the Employees as contemplated u/s 2(9) of the Employees State Insurance Act INS.APPEAL NO. 61 OF 2007 -:3:- and therefore it requires reconsideration. As the matter requires evidence to substantiate that point I set aside the order of the E.I.Court and remand case to the E.I.Court for consideration of the question whether there are any trainees in the establishment and whether they will come within the purview of Sec.2(9) of the E.S.I.Act. For the said purpose the parties are directed to adduce both documentary as well as oral evidence and the matter be disposed of after perusing the available evidence, if it is adduced. The E.S.I Corporation is directed to issue notice to the parties fixing the date of appearance. M.N. KRISHNAN, JUDGE. ul/-