Judgment H.K. Rathod, J.—Heard learned Advocate Mr. Sachin Vasavada on behalf of the appellant. 2. The appellant has challenged order dated 24/12/2008 passed by ESI Court, Rajkot in ESI Application No. 6 of 1991, Exhibit 41. By said order, ESI Court, Rajkot has allowed application filed by respondent herein and set aside order dated 26/6/1990 made under Form-C-11. Accordingly Exhibit 2 application is also disposed of. 3. Learned Advocate Mr. Sachin Vasavada submitted that on 20/5/1990, ESI Inspector has visited the establishment. On that occasion three employees were found in the establishment and including these three employees, it was proved that more than ten persons are working in the establishment and therefore, ESI Act is applicable. Accordingly, order was passed by ESI Corporation on 26/6/1990 but it was objected by the establishment with a prayer to reverify the facts but that application has been ignored and rejected by ESI Corporation. Vide order dated 26/6/1990, ESI Corporation directed establishment to pay contribution to the corporation in respect to all the employees those who are working in the establishment. He submitted that burden is upon the establishment to prove the facts before ESI Court that all these three persons were not regular employees and appointed only for trial bases. He submitted that establishment has given in writing in their letter-pad on 22/5/1990 while giving name of employees bearing signature of the establishment owner and according to that under Section-1(5) of the ESI Act more than 10 workmen are working on the date on which the ESI Inspector visited the premises. Therefore, learned Advocate Mr. Sachin Vasavada submitted that ESI Court has committed gross error in appreciating the facts which has been placed before ESI Court by appellant. 4. I have considered the submissions made by learned Advocate Mr. Sachin Vasavada and perused the award passed by ESI Court. Before the ESI Court, one Ashwin Mansukhlal Hoda was examined at Exhibit 15 and he submitted that the factory is manufacturing the oil engine valve and he was doing job work there. The factory was registered under the Bombay Shops and Establishment Act and only 6 to 7 workmen are working. Bonus Act is not applicable to the establishment as well as Gratuity and PF Act is also not applicable to the establishment. The factory was registered under the Bombay Shops and Establishment Act and only 6 to 7 workmen are working. Bonus Act is not applicable to the establishment as well as Gratuity and PF Act is also not applicable to the establishment. According to witness, on 22/5/1990 when Inspector visited the establishment at about 6:00 to 6:15 p.m., on that day 7 employees were working in the establishment. Three persons were not employed by establishment but they are coming for search of work and for that they were taken on trial without payment of wages. After the visit of Inspector, these three employees were not employed by establishment. The Inspector has not obtained statement of these three persons whether they were engaged by employer or not. The establishment has been closed since year of 2000. In cross examination, it was observed that bank account was also closed on 20/7/2003 and in electricity bill, only 38 unit has been shown as consumption and there is no complaint has been filed by ESI Inspector in respect to the visit of establishment on 22/5/1990. The inspection was carried out by Inspector in present of witness Ashwin Mansukhlal Hoda but inspection note was not prepared in presence of witness on 22/5/1990. In the letter-pad of establishment, name of 10 persons (7+3=10) were mentioned i.e. seven persons and three persons who are coming for trial were mentioned. It is mentioned in the letter that these three persons are come for trial. Facts also admitted by witness that these three persons were not appointed by establishment and even after allotment of ESI number, it is not informed to ESI Corporation that these three persons were came on date of visit for trial. On behalf of ESI Corporation, one Narendrabhai Chandrashekhar Purani, ESI Inspector was examined at Exhibit 24 and he has visited establishment on 22/5/1990. He submitted report, Exhibit 7 for the period from 1/1/1988 to 30/11/1988. On the letter-pad of the establishment number of 10 persons have been mentioned. After sending of report to the head office, notice was served to establishment. Muster roll and pay register was not produced before him and he has filed report on the basis of physical verification. He admitted important facts of corporation that in Exhibit 25 note at Sr. Nos. After sending of report to the head office, notice was served to establishment. Muster roll and pay register was not produced before him and he has filed report on the basis of physical verification. He admitted important facts of corporation that in Exhibit 25 note at Sr. Nos. 8 to 10, which has been made by establishment that these three persons are on trial and no statement of these three persons were obtained by Inspector and there was no dispute or objection raised by Inspector in respect to contents mentioned by establishment at Exhibit 25. Therefore, ESI Court has considered this being a factual aspect while appreciating the evidence from both the sides and considered written arguments at Exhibit 37 and 40 and thereafter, the ESI Court has come to the conclusion that number of 10 persons were mentioned in Exhibit 26 letter-pad by establishment. Against name at Sr. Nos. 8 to 10, it was specifically mentioned that these three persons are on trial meaning thereby that these three persons were came on 22/5/1990 on trial therefore these three persons are working regularly is not proved before ESI Court and even the Inspector was not able to prove this fact before ESI Court that 10 persons were working there. The employees were not covered under definition of Section 2(9) of the ESI Act. That aspect has not taken care by Inspector when the visit was taken on 22/5/1990. For applying ESI Act, it is necessary to establish by Inspector after visit that on the date of visit, 10 employees were working not 10 persons. Merely 10 persons were found in the premises of factory that does not mean that these all 10 persons are employees of establishment. Therefore, it is a duty of the Inspector to find out a correct fact from each person whether he was employed by the establishment or not. But no such efforts have been made by Inspector for obtaining statement from each person whether they were employee of establishment or not. Therefore, in light of this background, Section-2(9) is relevant. Therefore, it is a duty of the Inspector to find out a correct fact from each person whether he was employed by the establishment or not. But no such efforts have been made by Inspector for obtaining statement from each person whether they were employee of establishment or not. Therefore, in light of this background, Section-2(9) is relevant. The said Section-2(9) is quoted as under: 2(9) “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this act applies and— (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or (ii) who is employed by or 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; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; [and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment [or any person engaged as an apprentice, not being an apprentice engaged under the Apprentice Act, 1961 (52 of 1961), or under the standing orders of the establishment; but does not include—]] (a) any member of [the Indian] naval, military or air forces; or (b) any person so employed whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed [such wages as may be prescribed by the Central Government] a month at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period;] 5. This Court had occasion to consider definition of “employee” under Section 2(9) of the ESI Act, 1948 which excludes apprentices engaged under Apprentices Act as also apprentices under standing orders in case of Employees State Insurance Corporation vs. Arvind Mills Ltd., reported in 2009 (1) GLR 834. Para-14, 14.1 and 15 of the said decision are quoted as under: “14. In this appeal, ESI Court has considered submissions of both Advocates in Paras. 9.6 and 9.7 of the order. The relevant Paras. 9.6 and 9.7 are quoted as under : “9.6. In view of the above submissions, on perusal of the record, pleadings and documents of the case, it is found that the opponent claimed some amount from the applicant as omitted wages and as per the applicant, he has already paid the amount and even made excess payment which should be refunded. It should be understood in two parts, one if the amount paid as “wages” and the second is the amount of bills paid to the alleged contractors. It is the submission of the applicant that the Deputy Director of the opponent has passed an order under Section 45A of the Act directing the applicant company to pay Rs. 11,31,026/- as contribution on the amount ascertained by the Inspector at Rs. 2,99,087,124/- at the rate of 5.5.0% plus Rs. 5,56,133/- being the amount of the interest at the rate of 18% upto 15.8.1998. It is the submission of the applicant that as regards to Item No. 7 of Part A of Category A of the Observation Slip, the said amount of Rs. 7,87,352-15 ps. is the amount paid to the learner apprentice as a stipend and the learner apprentice is not included in the definition of the “employee” and the stipend paid to the apprentice is not covered under the definition of “Wages” under Section 2(2) of the Act and therefore, this amount should not be considered for the purpose of recovery of any contribution. In view of this contention of the applicant, it is necessary to note Section 2(9) and 2(22) of the Act defining term “Employee” and “Wages” as under : “2(9). In view of this contention of the applicant, it is necessary to note Section 2(9) and 2(22) of the Act defining term “Employee” and “Wages” as under : “2(9). “employee” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and— (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere, or (ii) who is employed by or through an immediate employer on the premises 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; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or lent on hire has entered into a contract of service. and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of the factory or establishment or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (Act No. 52 of 1961), or under the standing orders of the establishment.” “Section 2(22) “wages” means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes [any payment to an employee in respect of any period of authorized leave, lock-out, strike which is not illegal or lay-off and] other additional remuneration, if any [paid at intervals nor exceeding two months] but does not include— (a) any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowances or the value of any travelling concession; (c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (d) any gratuity payable on discharge. It is pertinent to note that it is on record that these apprentices learners are kept in training by the applicant company as per the provisions of standing orders. This fact is not denied by the opponent ESI Corporation and it is in evidence also that these learners are there as per the provisions of the standing orders settled by award of industrial Court. As per the submissions of Mr. Amarnani, the apprentices engaged under the Apprentices Act, 1961 are only excluded in the definition of “employee” but after the definition is looked into, it is very clear in the inclusion proviso that “any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act 1961, or under the standing orders of the establishment”, is included in the definition of “employee”. This is necessary thing that “persons engaged under the Apprentices Act, 1961 or under the standing orders of the establishment” are not included in the definition of “employee” and therefore, the stand taken by the Applicant is correct, even otherwise, in the very first sentence of the definition of “employee”, the word “employed” is used. It is necessary that there should be an element of employment and for that purpose, there should be term of employment either direct or implied. Even in the definition of “wages”, it is mentioned that there should be terms of the contract of employment express or implied. Therefore, unless there is term of contract of employment, one can not be covered under the definition of “employee” and unless some amount is paid to employee, any amount paid to other persons can not be covered under the definition of “wages” because the term “wages” is connected with employee. If the person to whom the payment is made is not employee, the amount to him would not be “wages”. In view of this situation, it is very clear that a trainee engaged under the provisions of the standing orders is not “employee” and the stipend for payment of any amount to him is not “wages” being not paid to employee. My views are fortified by some judgements of Supreme Court and High Courts. (1) It is observed by Madras High Court in the case of ESIC vs. Kwality Spg. Mills Pvt. Ltd., 1976 LIC 324 that “ . . . . . . . . . My views are fortified by some judgements of Supreme Court and High Courts. (1) It is observed by Madras High Court in the case of ESIC vs. Kwality Spg. Mills Pvt. Ltd., 1976 LIC 324 that “ . . . . . . . . . the terms of contract under which the apprentices were working, go to show that there was no contract of service between the mills and the apprentices. The primary object of the apprentices joining the mills is one of learning . . . . . . . . . . . .” (2) It is observed in the case of ESIC vs. Tata Engineering & Loco Co. Ltd., 1976 LIC 1 : 1976 SCC (L&S) 41 that “The concept of apprenticeship is, therefore, fairly known and has now been clearly recognized in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged do not give any scope for holding that they are employed in the work of the company or in connection with it for wages within the meaning of Section 2(9) of the Act,” (Page 392, Line 3). “The heard of the matter in apprenticeship is therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of the discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee....” “From the terms of the agreement it is clear that apprentices are mere trainees for a particular period for a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company.” 9.7 It is established in this case that the trainees or apprentices are not regular employees and are not covered under the definition and this judgment is being followed till the date. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company.” 9.7 It is established in this case that the trainees or apprentices are not regular employees and are not covered under the definition and this judgment is being followed till the date. Even the Andhra Pradesh High Court had also thereafter observed that the apprentices employed as trainees, under agreement with management and paid stipend only, are not employees under Section 2(9) in the case of ESIC vs. Andhra Prabha Pvt. Ltd., 2000 II CLR 726 (AP). Thus, the Applicant Company has rightly raised the point that the amount of Rs. 7,87,352-15 Ps. paid to the learner apprentices as stipend do not form part of “wages” as defined under Section 2(22) of the Act and these apprentices engaged under the provisions of the standing orders of the establishment are not covered under the definition of the “employee” under the ESI Act. It should be noted that in Annexure-A with Observation Slip of ESI Inspector Part A containing Sr. No. 1 to 9 showing amount Rs. 24,34,968-55 Ps. excluding Sr.no.7, the amount paid to the trainees i.e. Rs. 7,87,352-15 Ps and for this amount, the Company had calculated the covering amount for contribution at the rate of 5.50% which comes to Rs. 1,33,924/- and Company had paid the said contribution on 23.2.1996 and the proof is the xerox copy of the challan. Now, for another part, this should be noted that in observation slip, the total amount paid to some alleged contractors as per the bills is shown as omitted wages without any verification or bifurcation for the actual amount paid as “wages” and the amount not paid as “wages” but paid towards other heads.” 14.1 In view of discussion made by ESI Court, Section 2(9) and 2(22) is rightly interpreted. The respondent company has not engaged both kind of apprentices but, engaged only one kind of apprentices under certified or settled standing order under provision of BIR Act, 1946. Therefore, respondent company has not engaged apprentices under provision of Apprenticeship Act, 1961. Now looking to Section 2(9) employee, it is made clear that both kind of apprentices are excluded from definition of employee under Section 2(9) of ESI Act, one under Apprentice Act or under Standing Order of establishment. Therefore, respondent company has not engaged apprentices under provision of Apprenticeship Act, 1961. Now looking to Section 2(9) employee, it is made clear that both kind of apprentices are excluded from definition of employee under Section 2(9) of ESI Act, one under Apprentice Act or under Standing Order of establishment. The facts of this case are related to only apprentices engaged under Standing Orders of establishment. Therefore, submission made by learned Advocate Mr. Vasavada not to read “or” as “and” have not meaning because in facts of this case, apprentices engaged only under Standing Orders, not under Apprentices Act, 1961. So question of interpretation of Section 2(9) in respect to apprentices does not arise at all. But it clear from Section 2(9) is that either of apprentice engaged under Apprentice Act, 1961 or Apprentices engaged under Standing Orders of establishment are both excluded from definition of employee under Section 2(9) of ESI Act. Similarly, payments of stipend paid to apprentice is also not considered by wages under 2(22) of ESI Act. The employee to employed having contract of employment but, apprentice is not employed and is not having contract of employment but, only engaged as trainee for stipend. That amount or payment cannot considered to be wages within meaning of 2(22) of ESI Act. Therefore, substantial question of law is not raised and involved in present appeal. Therefore, appeal shall not lie under Section 82 of ESI Act. 15. The Section 2(9) of ESI Act considered by this Court. That both the categories of apprentice are excluded from definition of Section 2(9), otherwise there is no purpose to mention second category of apprentice which is covered under standing orders of establishment. Therefore, according to my opinion, the Legislature thought it fit to exclude apprentice under Apprenticeship Act or under standing order of the establishment and for this purpose, these two parts made it clear that does not mean that “or” is not included. Such submission of learned Advocate Mr. Vadavada cannot be accepted. Basically difference is found out by Legislature is that the employee is required to be employed and apprentice is not required to be employed but, has to be engaged. This is a basic difference between employee and apprentice, otherwise question of exclusion of apprentice under Apprenticeship Act or under Standing Order of the establishment does not arise. Basically difference is found out by Legislature is that the employee is required to be employed and apprentice is not required to be employed but, has to be engaged. This is a basic difference between employee and apprentice, otherwise question of exclusion of apprentice under Apprenticeship Act or under Standing Order of the establishment does not arise. So, in short, apprentice either engaged under Apprenticeship Act or under the Standing Orders of the establishment, in both are excluded by Legislature making it clear in Section 2(9) of Act by way of Amendment dated 20.10.1989. Therefore, according to my opinion, contention raised by learned Advocate Mr. Vasavada cannot be accepted. In this appeal, no substantial question of law is involved and therefore, according to my opinion, this appeal is not maintainable and accordingly, present appeal is dismissed.” 6. Recently the Hon’ble Apex Court also considered the scope of apprentice under Contract of Insurance while interpreting definition of “employee” under Section 2(6) of the Kerala Shops and Commercial Establishment Act and Employees State Insurance Act and some other enactments and held that apprentice is not an employee in case of New India Assurance Company Ltd. vs. M/s. Abhilash Jewellery, reported in 2009 (2) Scale 1 . Para Nos. 6 to 10 of the said decision are quoted as under: “6. We are of the opinion that the view taken by the National Commission is not correct. The present case is covered solely by the contract of insurance. That contract of insurance no doubt uses the word ‘employee’, but it does not say that the work ‘employee’ in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishment Act or the Employees State Insurance Act or any other enactment. 7. In various enactments, the word ‘employee’, has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the meaning of the word ‘employee’ has been extended. 8. Legal fictions are well-known in law. For example, Section 43(3) of the Income Tax Act defines ‘plaint’ to include a book. Ordinarily a plant means a factory, and by; no stretch of imagination can we call a factory a book. However, the Income Tax Act deems a book to be a plant for the purpose of depreciation. 9. 8. Legal fictions are well-known in law. For example, Section 43(3) of the Income Tax Act defines ‘plaint’ to include a book. Ordinarily a plant means a factory, and by; no stretch of imagination can we call a factory a book. However, the Income Tax Act deems a book to be a plant for the purpose of depreciation. 9. Many such illustrations of deeming clauses or legal fictions can be given. The definition of employee in various enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. That, however, does not mean that in common parlance an apprentice is an employee. 10. In the present case, since the word ‘employee’ has not been defined in the contract of insurance, we have to give it the meaning which it has in common parlance. In common parlance, an apprentice is a trainee and not an employee. Even if he is given a stipend, that does not mean that there is a relationship of master and servant between the firm and the apprentice. Hence, we cannot agree with the view taken by the National Commission. In view, the claim before the National Commission was not maintainable.” 7. Section-2(9) suggests that in definition of employee apprentices either under the Apprentices Act or standing orders or rules of the establishment is not covered. So the person who has been called for trial on the date of visit and subsequently not engaged that cannot be included in number of employees as it has been done by Inspector which has been rightly rejected by ESI Court. For that according to my opinion, it cannot consider that ESI Court has committed gross error in deciding issue which was raised by ESI Corporation. This aspect has been examined recently by Orissa High Court in the case of Employees State Insurance Corporation, Orissa Region vs. Gujarat Co-operative Milk Marketing Federation Ltd., reported in 2009 LAB. I. C. 1516. The Orissa High Court has decided same question whether on the date of visit by Inspector, more than 10 persons were working in the establishment or not. I. C. 1516. The Orissa High Court has decided same question whether on the date of visit by Inspector, more than 10 persons were working in the establishment or not. The Orissa High Court has also considered same aspect that if the person is found in the establishment that less than 20 employees, then Section 2(9) cannot considered to be satisfied which require minimum employees working in the establishment so the employee is to be stipulated that word “employee” shall not include any other person who has not been employed by establishment. The relevant discussion in Paras 10 to 15 is quoted as under: “10. After hearing learned Counsel for the parties and perusing the materials available on record, this Court finds that there is no dispute that under the Act liability to pay contribution arises only when twenty or more persons are employed for wages. In the case at hand, the E.S.I. Court after discussing the materials arrived at a conclusion that the basic number of twenty had not reached, and thus no liability under the Act had accrued. The term ‘employee’ has been defined under Sub-section (9) of Section 2 of the Act to mean “any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies and his employment may be covered by any of the alternatives of Clauses (i), (ii) or (iii) of the said sub-section. The word ‘Wages’ is defined in Sub-section (22) of Section 2 of the Act as “all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled....”. 11. It is thus clear that in order that someone may be an employee within the meaning of the Act, he has to be employed for wages. The concept of wages would bring in the contract of employment. In common parlance the concept of employee would take with it the correlation of the employer. Thus only those persons who are paid wages in consonance with Section 2(9) of the Act are to be considered as employees for the purpose of contribution. The argument advanced by Mr. Ray, on the other hand, is that the total number of persons employed becomes more than twenty the establishment in question would come within the purview of the Act. The argument advanced by Mr. Ray, on the other hand, is that the total number of persons employed becomes more than twenty the establishment in question would come within the purview of the Act. The Act being a beneficial one contribution cannot be demanded only in respect of employees whose wages are less than the stipulated amount. Mr. Ray, emphasized that the statute being a beneficial one this Court should not interpret a provision occurring therein in such a way that the benefit would be withheld from employees. 12. These submissions are strongly repudiated by Mr. Udgata, learned Counsel appearing for the Federation. According to him the Court should not travel beyond the scope of the scheme under the Act and the interpretation of the provisions should be made in a harmonious manner. 13. This Court has no doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own, there is no reason for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to the organizations which are not covered by the scheme. The Act applies to all factories or establishments with twenty or more persons and the benefit is intended to be given to organizations with more than such number of employees. It is not the contention of the Counsel that because the legislation is beneficial it should not apply to the factories or establishments with less than twenty employees. If that be so, persons who do not satisfy the definition of “employee” as per Section 2(9) of the Act cannot be taken into account for the purpose of fixing the statutory minimum (see AIR 1985 SC 278 : (1985 Lab IC 544), (Regional Director, Employees State Insurance Corporation vs. Ramanuja Match Industries.) 14. Under Section 2(9) of the Act while defining the word “employee” it is stipulated that the work “employee” shall not include any person employed for wages exceeding such wages as may be prescribed by the Central Government. IN the case at hand, the Inspector of E.S.I. Who was examined as OPW. 1 clearly deposed that in the respondent-Federation he found four employees including the Manager besides six labourers and two security guards. IN the case at hand, the Inspector of E.S.I. Who was examined as OPW. 1 clearly deposed that in the respondent-Federation he found four employees including the Manager besides six labourers and two security guards. In cross-examination he had admitted that out of four employees three were paid not more than Rs. 1,600/- per month. The evidence adduced by the Federation also reveals that M/s. Lakshmi Agency had engaged only four persons and one of them was paid wages more than the wage limit prescribed under Rule 50 of the Employees’ State Insurance (Central) Rules, 1950. 15. After going through the said evidence the trial Court has come to the conclusion that the number of employees engaged in the respondent-Federation was less than ten. Finding n error in the reasonings and conclusions arrived at by the trial Court, this Court feels not inclined to interfere with the impugned order and dismiss both the appeals. At the same time considering that in the meanwhile sixteen years have passed, this Court grants liberty to the Corporation to conduct a fresh inspection, if it is so advised, and proceed in accordance with law. Both the appeals are disposed of. Appeal dismissed.” 8. In light of observations made by Orissa High Court where an important facts have been taken into account that at the time of visit made by Inspector number of persons are found in the establishment that does not mean that they are working as employees. It is a duty of Inspector to check it properly by obtaining statements from each person that whether they are employees of the establishment or not. Without checking it, presumption may not be made by Inspector that all are employees working with establishment at the time of visit of the establishment. Therefore, Inspector who has visited has not taken proper care to find out from these three persons while obtaining statement from them whether they have appointed by employer establishment or not or they are on trial or not. This lapse remained as it is not proved by ESI Corporation before ESI Court while leading the proper evidence. The facts have been proved by establishment while leading proper evidence that these three persons were found on the date of visit. This lapse remained as it is not proved by ESI Corporation before ESI Court while leading the proper evidence. The facts have been proved by establishment while leading proper evidence that these three persons were found on the date of visit. They were enter into premises on the date of visit itself i.e. on 22/5/1990 on trial base who were subsequently not appointed and factory is already closed in the year 2000. Therefore, this being a subsequent event, according to my opinion, the contention raised by learned Advocate Mr. Sachin Vasavada cannot be accepted. Hence, rejected. 9. In view of the above, there is no substance in the appeal. Accordingly, the appeal stands dismissed.