IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ins.APP.No. 58 of 2006()
1. M/S. SHAFEEQ CONCRETE PRODUCTS,
... Petitioner
Vs
1. THE ASST.DIRECTOR,
... Respondent
For Petitioner :SRI.ANTONY DOMINIC
For Respondent :SRI.T.V.AJAYAKUMAR, SC, ESI CORPN.
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :29/05/2009
O R D E R
K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.
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Insurance Appeal No. 58 OF 2006 A
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Dated this the 29th day of May, 2009
J U D G M E N T
Joseph, J.
Appellant is the applicant in an application filed under
section 75 of the Employees State Insurance Act, 1948(hereinafter
referred to as ‘the Act’). The appellant sought declaration that its
establishment is not liable to be covered under the Act. The
request is rejected and it is declared that it constitutes a factory as
per the first part of section 2(12) of the Act and liable to be
covered and bound to comply with the Act from 1.8.1997 onwards.
However, the assessment order is set aside and direction is
issued to initiate fresh proceedings.
2. We heard learned counsel for the appellant. According
to the appellant, the appellant is a firm and the strength of its
workers never exceeded 6. On an inspection conducted on
25.3.1998, it is stated that when the inspection team came, the
partners were not present and only the husband of a partner was
present and he made a statement and the report is essentially
Ins. Appeal.58/06
: 2 :
based on the same. The appellant examined PWs1 to 4 and
marked Exts.P1 to P8 while the respondent examined DW1 and
marked Exts.D1 to D6. The Insurance Court, after elaborate
consideration of the matter, took the view that the case of the
appellant does not inspire confidence and that it fulfill the criteria
of employment strength for its coverage under the Act. Appeal
under the Employees State Insurance Act before the High Court is
permissible only if substantive question of law arises. Of course, it
is contended that it is a perverse finding. Learned counsel for the
appellant also referred to us paragraph 16 of the judgment. It
reads as follows.
“16. It has been argued by counsel for
applicant that Ext.P1 is the muster roll for the
period from May 1997 to September 1997.
There is signature of Sri.P.K.Krishnankutty DW1
on 7.3.2002. Likewise, Ext.P2 is wage register
for the period May 1997 to September 1997 and
there is also signature of DW1 dated 7.3.2002 in
it. Relying on the above, it has been argued by
the counsel for the applicant that there were
only 5 persons employed for wages as on
August 1997. It is true that as per Exts.P1 and
P2 the persons employed are only 5 persons.
Ins. Appeal.58/06
: 3 :
These documents are manifestly written up at a
stretch and they are brand new documents and
it is manifest that they are not contemporaneous
documents relating to 1997. At the time of
examination of DW1, the applicant did not
confront him with Exts.P1 and P2 and elicit his
version in the matter. It has been specifically
stated in Ext.D2 report that the inspection team
has verified attendance register from 8/97 to
3/98 and wages register from 9/97 to 12/97 and
they have put their signature on the pages of
wage register for September 1997, October 97
and December 97 and attendance register at
August 1997, December 1997 and March 1998.
Apparently Exts.P1 and P2 cannot be the same
documents presented before the team of
insurance inspectors on 25.3.1998. Therefore
above line of the argument of the applicant’s
counsel is not accepted by me.”
He would, therefore, contend that once the signature in the
document and attendance register is admitted, it means that the
inspection as evidenced took place and number of employees is
as stated. However, we note that in the very same paragraph,
reasoning is assigned by the court to not rely on the attendance
register as canvassed by the appellant. When the Inspector was
Ins. Appeal.58/06
: 4 :
examined these documents were not put to him. Other material
available was also relied on to come to the conclusion that
reliance cannot be placed on Exts.P1 and P2. If that be so, we
find it difficult to hold that the finding impugned is perverse. If so,
the findings made by the court are immune to judicial scrutiny in
the appeal constituted under section 82 of the Act. The appellant
has not made a case for interference with the judgment. The
appeal fails and it is dismissed.
(K.M.JOSEPH, JUDGE)
(M.L. JOSEPH FRANCIS, JUDGE)
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