JUDGMENT : M. Ramachandran, J.—Exhibit P 11 order passed by the 1st respondent, Commissioner for Workmen's Compensation, Kottayam in W.C.C No. 29/2001 dated September 26, 2001 is under challenge, as one passed without jurisdiction, and therefore null and void. Execution of such orders have been attempted by notice dated October 7, 2003 (Exhibit P15) and this also is subjected to attack. According to the petitioner, if at all anybody was liable, it should have been the Employees' State Insurance Corporation, the 5th respondent herein for the accidental death of one Madhavan, whose legal representatives are the 2nd and 3rd respondents herein. 2. The 4th respondent is an establishment engaged in the business of textiles in Kottayam and petitioner refers to him as the principal employer. He had been awarded a contract for construction, for them. It is not disputed that Madhavan had sustained an accident on February 6, 2001 by a fall from the lift in the course of his employment. In the counter affidavit filed by the E. S. I. Corporation, it has been stated that only on a single day, that is the date of accident, he was so employed by the petitioners. That may be so. An application for compensation has been submitted under the Workmen's Compensation Act by the legal representatives. Written objections had been filed by the petitioner herein, who was the sole respondent to the proceedings. Parties had let evidence. The matter was taken up for orders after trial. Exhibit P 11 indicates that the orders had been passed on September 26, 2001. 3. However, it seems that an Original Petition had been filed by the petitioner thereafter, pointing out that an application filed by him before the Commissioner for reopening the matter for impleading the principals employer and also for rendering a decision on the preliminary point about the maintainability of the application had not been taken notice of. Such petitions supported by affidavits are produced before this Court as Exhibit P4, P5, P6 etc. At the admission stage, this Court had dismissed the Original Petition and it may be necessary to extract paragraph (5) of the judgment hereunder. Paragraph (5) of judgment in O-P. No. 4397/2002: "As far as respondent Nos. 2 and 3 are concerned, they are poor dependents of a deceased employee. None of the contentions raised in Exhibits P5 and P7 were raised in Exhibit P3 written statement. Paragraph (5) of judgment in O-P. No. 4397/2002: "As far as respondent Nos. 2 and 3 are concerned, they are poor dependents of a deceased employee. None of the contentions raised in Exhibits P5 and P7 were raised in Exhibit P3 written statement. No question was asked in this regard to the applicant and witness. After evidence was over, case was taken for judgment on September 26, 2001. Perhaps getting a smell that orders have, been passed against him, he filed Exhibits P5 and P7 in 2002 as a preclude to file this writ petition to protract and prolong the agony of the dependents of the deceased workman. I am not sure whether Exhibits P5 and P7 were filed on the dates shown in the petition and whether final orders are already passed by the Commissioner. In any event, after the arguments were over and when the case was taken up for orders months ago, I am of the opinion, that no discretionary orders need be passed by this Court or admit the Original Petition exercising the extra-ordinary powers of this Court under Article 226 or 227 of the Constitution of India compelling the dependents of the deceased employee to appear before this Court or engage an advocate practising in this Court. Petitioner will be free to contest the case if his contentions are not accepted by the Commissioner by filing statutory appeal against the final order." 4. It had not been brought to the notice of the Court at the time that final orders have already been passed but the Court had an inkling as to the possibility of the above. Exhibit P10 has been produced by the petitioner to show that further notices have been issued by the Commissioner on April 22, 2002 about a petition for review of the decision dated November 23, 2001, but it is not clear as to what was the nature of the petition or how it came to be disposed of. In any case, enquiries to its origin or relevance do not appear to be necessary. 5. The petitioner had in due course filed this writ petition, challenging the order of the Court as one passed without jurisdiction. In the meanwhile, it appears that the 5th respondent had addressed him about certain details and the petitioner had made remittance of Rs. In any case, enquiries to its origin or relevance do not appear to be necessary. 5. The petitioner had in due course filed this writ petition, challenging the order of the Court as one passed without jurisdiction. In the meanwhile, it appears that the 5th respondent had addressed him about certain details and the petitioner had made remittance of Rs. 1,125/- alleged to be the contribution towards the E. S. I in respect of certain workman. It is in this document (Exhibit PI3) that the employment of deceased Madhavan is shown as for one day. However, the 4th respondent was not prepared to accept any such contribution and returned it. These also might not be relevant or matters to be adverted to. 6. Sri Ashok Shenoy appearing for the petitioner has formulated the arguments on the basis of certain observations passed by this Court as also the Hon'ble Supreme Court, which according to him sufficiently indicates the maintainability of his contention. In view of Section 53 of the Employees' State Insurance Act, the application under the Workmen's Compensation Act according to him was totally unsustainable and the legal representatives, if at all had only remedy under the Employees' State Insurance Act, Rules and Regulations. 7. The fact remains that this is a case where in spite of orders passed on September 26, 2001 awarding compensation, no money has reached the dependents, as the petitioner has been dwelling on the legality of the orders and the justification of the Commissioner for payment of compensation. But it is clear that only after the issue was finally adjudicated by the Workmen's Compensation Commissioner, the petitioner has brightened up. As suggested in the earlier judgment, it is difficult to believe that he was unaware of the orders passed by the Commissioner and came to notice it only in October 2002. His applications there do indicate that he wanted "the case, which has now been taken for orders should kindly be reopened by allowing the 1st opposite party to implead the employer." When it is found that the order is passed as early as in September, 2001, I have to observe that all that the petitioner wanted was to avoid the claims to which he became liable. 8. The preliminary objection raised by the respondents that the Original Petition is not maintainable has force. 8. The preliminary objection raised by the respondents that the Original Petition is not maintainable has force. The petitioner's remedy had been pointed out by this Court, only as an appeal. Therefore, he was bound by that and the writ petition is not entertainable. With reference to decisions in Ashwinkumar K. Patel Vs. Upendra J. Patel and Others, (1999) 3 SCC 161 , the petitioner contends that alternate remedy is not a bar to invoke the powers under Article 226 of the Constitution of India. But he is bound by the direction that the normal and appropriate remedy is to prefer an appeal. 9. Going into the merits of the contentions Mr. Shenoy very strenuously contended that order of the Workmen's Compensation Commissioner was thoroughly without jurisdiction. According to him a legal contention so taken up could be taken notice of by this Court, and it has ample jurisdiction to set right the mistake. 10. The argument is on the basis that the 4th respondent was a covered establishment under the Employees' State Insurance Act and in respect of such employer, when the petitioner was appointed in the role of a contractor, even though he was the immediate employer in respect of the deceased workman the statute required that the person who was engaged by him also should be a person who was to be deemed as a person, who ought to have been brought under the coverage of the Employees' State Insurance Act. For this purpose, the counsel had invited my attention to the definition clause viz. Section 2(9) and 2(14) of the Act. It is stated that an employee, is not only a person, who is directly employed, but includes one who is employed through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment, or which is preliminary to the work carried on in, or incidental to, the purpose of the factory or establishment. It is therefore submitted that so long as the 4th respondent was a covered establishment, it was therefore, their duty to ensure that only a covered employee was permitted to work there. 11. It is therefore submitted that so long as the 4th respondent was a covered establishment, it was therefore, their duty to ensure that only a covered employee was permitted to work there. 11. Referring to the definition of Insured person' it is stated that" a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act" could be so named. Learned counsel had made reference to a judgment passed by this Court in E.S.I. Corporation Vs. Standard Pottery Works, (2001) 2 LLJ 1208 . The Division Bench had held that persons who are employed on casual basis in an establishment, required to be covered, then their employment was in or in connection with the working of the factory. Learned Judges had held that casual employees can come within the ambit of Employees' State Insurance Act. Repair and maintenance of the establishment are the works incidental to the performance of the establishment. An employer therefore was liable to the contribution to the extent of the repairs and maintenance of the building required payment of wages. The counsel also referred to the decision reported in Saraswath Films Vs. Regional Director, E.S.I. Corporation, Trichur, (2010) 11 SCC 553 . The facts of the cases according to him were almost similar to that have been urged in this writ petition. With reference to the definition of 'Employee' u/s 2(9), there it had been held that a person employed by the immediate employer as authorised by Section 2(17) also could have been taken notice of as a person, who was entitled to be registered and considered as a workman under the Employees' State Insurance Act. 12. The next decision relied on by the learned counsel is Bharagath Engineering Vs. R. Ranganayaki and Another, (2003) 2 SCC 138 . The facts of the case might be relevant. The deceased employee was employed by the appellant therein and he had' met with an accident arising in the course of employment. An application for compensation under the Workmen's' Compensation Act was preferred. There was a challenge as to the maintainability of the application. However, this objection have been over ruled since at no time, the employee had been brought under the coverage of Employees' State Insurance Scheme during his life time. An application for compensation under the Workmen's' Compensation Act was preferred. There was a challenge as to the maintainability of the application. However, this objection have been over ruled since at no time, the employee had been brought under the coverage of Employees' State Insurance Scheme during his life time. It was a case where subsequent to the death of the employee, his name had been registered as a person, who has come under the Employees' State Insurance Act. The Court held that the payment or non-payment of contributions and action or inaction prior to or subsequent to the date of accident was really inconsequential. The deceased employee was an insured employee within the meaning of Section 2(14). Therefore, irrespective of the fact that whether or not contributions had been paid to the E. S. I. Corporation, the presumption was that he was a person, who ought to have been covered by the provisions of the Employees' State Insurance Act. 13. Referring to the Division Bench Judgment of this Court in E, Section 1. Corporation v. Standard Pottery Works (supra), and the definition of 'employee' u/s 2(9) of the Act, an employee, according to counsel, has to be considered as such who is employed through an immediate employer on premises of the factory or establishment, is a work which ordinarily comes under the work of the establishment or which is preliminary to the work carried on in or incidental to the purpose of the establishment. 14. But the facts in the decided cases, have to be appreciated with the present facts. There is nothing to indicate that the petitioner who was a contractor by himself and who had engaged the deceased workman were engaged in a work, which is ordinarily part of the work of the establishment. Mr. Raman Pillai, senior counsel appearing on behalf of 4th respondent submits that in the matter of demand for contribution in respect of employees, who are engaged in repair work of a factory, perhaps the Division Bench had held that such extension work might be ancillary to the work of the factory. But the analogy ends there. The 4th respondent is a textile dealer. But the analogy ends there. The 4th respondent is a textile dealer. The interpretation of the term 'employer' u/s 2(9), according to him has to be strictly construed since here is a case where there was at no time any claim coming from any person that such a person was to be considered as a workman. The claim has arisen from a third party, who wanted to avoid liability and who had pointed out possibility of such a stand after an adverse order was passed against him. The work of 4th respondent is dealership of textiles and fabrics. Construction cannot be treated as work of the establishment. When such work was given in contract, the execution of the work was his responsibility. It is difficult to accept his plea that an extended meaning has to be given to the term, and an innocent person has to be mulcted with liability, and if possible, by the Employees' State Insurance Corporation. There is nothing to indicate that the deceased person was engaged in an activity, which is ordinarily part of the work of the establishment, or occupation incidental to the business of the establishment. 15. The senior counsel has clearly brought in the real issue involved. The plea of the petitioner can only be considered as experimental, and cannot be accepted as a circumstance for facilitating him to avoid a liability. In the aforesaid view, I am of the opinion that the deceased workman did not satisfy the definition of an employee under the Employees' State Insurance Act and its coverage. The conduct of the petitioner of payment of the contributions after he suffered an order, and attempting to get coverage after the death cannot be used as a shield. The contention is artificial from top to bottom. After the final order, attempt to reopen the issue only betrays sinister motives. 16. Definitions are incorporated in the statutes with a definite understanding that the meanings are there unless it is repugnant to subject or context. What the petitioner has been attempting is to see that the liability, drifts away by making nominal payment, and pushing it over to the E.S.I Corporation, who were innocent of the issue. For a moment, we may comprehend the position if we accept his argument. The deceased Madhavan was employed only on one day. What the petitioner has been attempting is to see that the liability, drifts away by making nominal payment, and pushing it over to the E.S.I Corporation, who were innocent of the issue. For a moment, we may comprehend the position if we accept his argument. The deceased Madhavan was employed only on one day. It is not suggested as to how his name could be sent up as eligible for coverage. It is not shown how his contributions could be remitted. He had perhaps not received the wages for the day. Posthumously it would not have been possible for giving him a registration card. And after all these exercises, the Employees' State Insurance Corporation was to be made liable, who were unaware that in a covered establishment, one building contractor had employed a construction worker for his work, as chosen by him. The results would have been in the area of absurdities. 17. This Court cannot permit misuse of provisions so as to help a person who is unsympathetic to the loss of dependents of a workman who had been in his employment. He should have himself got for warned about such contingency. The writ petition is a misuse of the process of law and I hereby dismiss the same. The Workmen's Compensation Commissioner was justified in his stand. 18. The petitioner's normal remedy is an appeal, with a pre-condition for deposit of compensation. But the payment is avoided till now. Principles of notional coverage has to be adopted only in extreme cases where there were undisputable circumstances for adopting that course. 19. I therefore direct the Commissioner to expedite the steps to recover and pay the compensation, which is awarded by Exhibit P 11 order. No costs.