IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 65 of 2008()
1. THE REGIONAL DIRECTOR,
... Petitioner
Vs
1. V.T.PADMANABHAN, PROPRIETOR,
... Respondent
For Petitioner :SRI.P.SANKARANKUTTY NAIR
For Respondent :SRI.R.AZAD BABU
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/01/2010
O R D E R
M.N. KRISHNAN, J.
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INS.APPEAL NO. 65 OF 2008
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Dated this the 5th day of January, 2010.
J U D G M E N T
This appeal is preferred against the order of the
Employees Insurance Court, Alappuzha in I.C.17/06. The
establishment moved an application before the E.I.Court for
setting aside the order of coverage passed by the
Corporation. The corporation strongly opposed it and after
evidence the trial court held that there is no coverage and
therefore allowed the case of the applicant. It is against that
decision the Corporation has come up in appeal. The
following questions are formulated as the substantial
questions of law.
(i) Is not all the findings of the
E.I.Court are contrary to Section 2(9) and
2(12) of the ESI Act as stated in the
grounds of appeal and it amount to
arbitrary and perverse decision to attract
interference?
(ii) Is not the entire appreciation of
evidence is improper in this case?
INS.APPEAL NO. 65 OF 2008
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(iii) The evidentiary value of the
admission of the employment strength as
per Ext.D2 is properly appreciated in this
case?
Points 1 to 3:
2. Learned counsel for the Corporation and the
establishment were heard. The establishment is a garage by
name M/s Bindu Garage of which one V.T. Padmanabhan is a
proprietor. The Employees Insurance Corporation’s
employees inspected the premises and found 9 persons as
workers and two persons as contractors-piece rate. It is
proved by a list attached along with the report and it is
signed by Mr.Padmanabhan as the proprietor of M/s Bindu
Garage. Of these Baiju V.P. and Biju V.P. are the children of
Padmanabhan. Now it is contended that they were in the
premises only for the purpose of learning work. But I find
that some amount is shown against their name and if they
are in receipt of remunerations then the question of
employer-employee relationship may arise. It is a matter
which requires consideration at the hands of the court below.
INS.APPEAL NO. 65 OF 2008
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When the establishment is a proprietary concern the
conclusion of the Insurance Court that they are partners of
the firm cannot be accepted by any stretch of imagination.
Similarly, two contractors-piece rate are indicated and when
DW1 was examined he had stated before court that they are
independent contractors. Whatever it may be, these two
persons were found in the premises and it is for the owner to
explain at least what they were doing and why their presence
was found there at the time of inspection by the Employees
of the Insurance Corporation. That is also a matter which
has not been properly considered by the E.I.Court.
Admittedly the concern is a workshop or garage. Generally
when patch work is being done welding has to be done for
completion of the work and that also is a matter which
requires serious consideration for the reason that if no power
is used even if there are 11 employees it will not be covered
under the Act. So that is also a matter which requires
detailed consideration. Therefore the order under challenge
is set aside and the matter is remitted back to the Court
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below for fresh consideration and for the said purpose both
the parties are permitted to adduce both documentary as
well as oral evidence in support of their respective
contentions and then the matter be disposed of in
accordance with law. The E.I.Court is directed to issue notice
to the parties fixing the date of appearance.
M.N. KRISHNAN, JUDGE.
ul/-