IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 30 of 2007()
1. M/S.M.KUTTY HASSAN KUTTY & COMPANY,
... Petitioner
Vs
1. REGIONAL DIRECTOR, E.S.I., CORPORATION,
... Respondent
For Petitioner :SRI.A.M.SHAFFIQUE (SR.)
For Respondent :SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :31/07/2008
O R D E R
M.N. KRISHNAN, J.
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INS.APPEAL NO. 30 OF 2007
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Dated this the 31st day of July, 2008.
J U D G M E N T
This appeal is preferred against the judgment of the
Employees Insurance Court, Palakkad in I.C.32/04. The
appellant was the applicant before the E.I. Court, who
challenged the notice issued by the Corporation holding that
the establishment is covered under the provisions of the E.I.
Act. The applicant’s establishment is a petrol bank and the
Court below held that selling of petrol with the aid of power
amounts to manufacturing process under Section 2(k) of the
Factories Act and since the said manufacturing process is
adopted under Section 2(14-AA) of ESI Act and as S.2(12)
envisages manufacturing process, the Tribunal held hat the
contention of the appellant that it is not covered cannot be
accepted. It also found on facts that there were more than
10 employees and it has been using power and therefore
held that the establishment is covered by the Act.
Ins. Appeal 30 OF 2007
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2. Learned counsel for the appellant very strongly
contends before me that usage of a small motor for pumping
out oil in a petrol bunk does not amount to manufacturing
process and therefore the decision of the Court below is
erroneous. But it has to be sated that a Division Bench of
this Court on examining the provisions of S.2(k) in MFA
796/00 held that pumping of petroleum products from the
storage for supply thereof to the vehicles comes under the
ambit of manufacturing process. It is also seen that
Allahabad High Court has also taken the same view in the
decision reported in Qazi Noorul Hasan Hamid Hussain
Petrol Pump v. Deputy Director E.S.I. Corporation,
Kanpur (2003 LLR 476) to the effect that petrol is supplied
by usage of power and more than 10 persons are employed
it is sufficient to prove it within the definition of
manufacturing process under the Factories Act. The Punjab
and Haryana high Court also had taken the same view in the
decision reported in Employees’ State Insurance
Corporation v. Bhag Singh (AIR 1989 Punjab and
Ins. Appeal 30 OF 2007
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Haryana 1). Since the Division Bench of this Court has
taken a view and there are other decisions of various other
High Courts it may not be correct for me to again dwell deep
into the averment for the reason this Court is bound by the
decision of the Division Bench unless it is varied. Therefore
though the argument of the learned counsel appears to be
very persuasive I am not in a position to consider it in the
light of a binding precedent on me. Therefore the said point
is answered against.
3. The next question is regarding the number of
employees. Learned counsel wanted to contend before
before me that it is an erroneous finding on fact. It is very
clear that unless there is a substantial question of law an
appeal cannot be entertained. While dealing with the cases
on second appeals regarding the scope of substantial
question of law the Apex Court held in Gurdev Kaur v. Kaki
(AIR 2006 (SC) 1975) that even if a different view is
possible to be taken the appellate court is not expected to
substitute its view with the finding on facts and further
Ins. Appeal 30 OF 2007
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cautioned that it shall not be a dice for another trial. So,
unless there is absolute perversity or illegality this Court
cannot substitute the view of a fact finding Court by its own
view. Therefore I do not find any substantial question of law
on the number of persons. So from these discussions it is
correct to hold that manufacturing process is involved and
more than 10 persons are employed and power is used and
so the provisions of E.S.I. Act is applicable to the appellant’s
establishment. The appeal is devoid of merits and therefore
it is dismissed.
M.N. KRISHNAN, JUDGE.
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