IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP No. 609 of 2006(A)
1. M/S.KALLAI SAW MILLS & TIMBER INDUSTRIES
... Petitioner
Vs
1. THE REGIONAL DIRECTOR
... Respondent
For Petitioner :SRI.M.R.NANDAKUMAR
For Respondent :SRI.T.V.AJAYAKUMAR
The Hon'ble MR. Justice J.M.JAMES
Dated :04/12/2006
O R D E R
J.M.JAMES, J.
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R.P. No. 609/2006 in Ins.Appeal 71/2004
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Dated this the 4th day of December, 2006
O R D E R
The respondent in Insurance Appeal No.71/2004 is the
review petitioner. The main contention raised by the learned
counsel for the review petitioner is that four employees, Venugopal
T.V., Sukumaran T.K., Kurian K.E and Unnikrishnan, were covered
under the E.S.I scheme, while they were employed in M/s. Bharat
Kumar Patel and Co., Thripunithura. Hence, it is prayed that the
review petitioner is not bound to pay the share of the E.S.I
contribution of the above employees, as reported by DW.1, in his
inspection report.
2. I have heard in detail, the submissions made by the
counsel for the review petitioner as well as the counsel for the
respondent, appellant. Relying on paragraph ‘3’ of the review
petition, counsel brought to my notice that Unnikrishnan was
covered under the E.S.I Scheme even while he was working under
M/s. Bharat Kumar Patel and Co., Thripunithura. Therefore, there
cannot be any second coverage. However, the learned counsel
R.P. No.609/2006 (A)
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could not place before me any materials to show that the other
employees were covered under the insurance scheme, while they
were working under M/s. Bharat Kumar Patel and Co.,
Thripunithura.
3. In paragraph ‘6’, of my judgment, I have discussed
clearly, relying on E.S.I Corporation vs.Hotel Amred (1998 (1)
KLT 786) that:-
“a person who comes to the Court with a grievance
has a duty to establish his case by leading evidence,
oral and documentary, and substantiate his claim, as
per Section 102 of the Evidence Act. There is
nothing on record to show that P.Rajan has supplied
the four employees mentioned in Ext.D3 report of
DW.1. Therefore, I am not inclined to accept that
the four employees who were doing the work in the
establishment, under the direct supervision of the
applicant, were not their employees, that they were
the workers of Bharat Kumar Patel and Co.,
Tripunithura, and that they were deputed for the
purpose of doing the work of that company in the
premises of the applicant.”
4. It is relying on Hotel Amreds case that I had held
that all the four employees, who were claimed to have been supplied
by P.Rajan, who is an immediate employer, are the employees of the
applicant establishment. Therefore, the establishment was found
squarely fall within the E.S.I coverage, as discussed in paragraph 10
R.P. No.609/2006 (A)
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of my judgment.
5. The matter was remanded to the E.S.I Court. The
learned counsel submits that though there was a time bound
direction, because of the review petition, the matter is even now
pending.
6. Therefore, I direct the E.S.I court to consider
whether Unnikrishnan was covered under the E.S.I scheme, while
he was working with M/s. Bharat Kumar Patel and Co.,
Thripunithura. Even in such situation, as 10 or more employees are
covered under the E.S.I Scheme, I have nothing to review in my
judgment. However, if Unnikrishnan is found, having covered, while
he was working with M/s. Bharat Kumar Patel and Co.,
Thripunithura, the E.S.I court shall specify the same and, in such
event, the review petitioner establishment need not pay the E.S.I
contribution for that employee, for that period.
The review petition is closed as above.
(J.M.JAMES)
Judge
ms