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2013 DIGILAW 329 (KER)

K. M. P. TEXTILES v. Regional Director, The Deputy Regional Director And The Manager, Esi Corporation

2013-04-02

BABU MATHEW P.JOSEPH, S.SIRI JAGAN

body2013
JUDGMENT : S. Siri Jagan, J. The applicant in I.C. No. 6 of 2005 (Old No. 57 of 1993) before the Employees Insurance Court, Alappuzha is the appellant herein. This is the second round of litigation before this court on the same cause of action. The respondents sought to cover the appellant's establishment under the Employees State Insurance Act, based on a report submitted by their inspector on the basis of an inspection conducted on 24.08.1992 in the establishment of the appellant. On the date of inspection, Mr. Salim, Manager of the establishment, was present there. The Insurance Inspector filed a report stating that Mr. Salim produced the muster roll containing names of 9 employees and also an attendance book wherein the names of 28 workers over and above the 9 persons employed for wages included in the muster roll were also included, for his verification. He verified the same and put his signature thereon. Based on the report of the Insurance Inspector, the respondents demanded contributions from the appellant in respect of the employees employed by the appellant. According to the appellant, the appellant contended before the insurance court that there was no inspection at all on 24.08.1992 and the muster roll and rough attendance book stated to have been inspected by the inspector of the corporation was non-existent and it was a concocted story. According to the appellant, the appellant did not employ the required number of employees for coverage under the ESI Act and therefore they are not liable to pay contributions under the Employees State Insurance Act. The E.I. Court originally dismissed the application, against which the appellant filed M.F.A. No. 1216 of 1996 before this court, in which the judgment of the E.I. Court was set aside and the matter was remanded for fresh consideration in accordance with the observations contained in that judgment. After remand, additional evidence was adduced even thereafter by the impugned judgment, the insurance court found that the appellant had employed the required number of workers for coverage under the Act and again held that the applicant is liable to be covered under the Act. But the respondent was directed to re-assess the contributions payable as per the directions in the judgment of the E.I. Court. The said judgment of the E.I. Court is under challenge in this appeal raising the following questions of law: 1. But the respondent was directed to re-assess the contributions payable as per the directions in the judgment of the E.I. Court. The said judgment of the E.I. Court is under challenge in this appeal raising the following questions of law: 1. Whether in the facts and circumstances of the case the E.I. Court, Alappuzha is right in law in holding that the appellant establishment is liable to be covered under the ESI Act with effect from 24.08.1992 and is bound to comply with the provisions of the ESI Act, when this Hon'ble court as per judgment dated 12.07.2004 in M.F.A. No. 1216 of 1996 set aside the judgment of the E.I. Court in I.C. No. 57 of 1993, allowed the appeal and remanded the case to the E.I. Court, Alappuzha for fresh decision in the light of the observations made in the judgment of this Hon'ble Court? 2. Whether the E.I. Court, Alappuzha, in the facts and circumstance of the case is, right in law in declaring that the establishment of the appellant is liable to be covered under the ESI Act with effect from 24.08.1992, when as per Exts. P1 to P7 muster roll, wages register and service record, the appellant employed only 8 persons on 24.08.1992 and never employed 20 or more persons in the establishment for wages? 3. Whether the E.I. Court, Alappuzha is right in law in accepting the report of the Insurance Inspector and covering letter evidenced by Exts. D1 & D1 (a) respectively dated 31.08.1992 and for assuming that the appellant employed 37 persons on 24.08.1992 when this Hon'ble Court doubted the report of the Insurance Inspector and remanded the case for fresh consideration in the light of the observations made in the judgment in M.F.A. No. 1216 of 1996? 4. Whether the E.I. Court, Alappuzha is right in law in discarding the oral and documentary evidence adduced by the appellant and accepting the report of the Insurance Inspector, when the report of inspection dated 24.08.1992 was admittedly prepared on 31.08.1992 sitting in his office, details of the persons allegedly employed were not stated in the report, report was not witnessed by anyone, signature of the employees or the in-charge of the establishment was not obtained by the Insurance Inspector and no one witnessed the inspection and there is no corroboration of the report? 5. 5. Whether in the facts and circumstances of the case, the E.I. Court was justified in shifting the burden of proof to the appellant, when the legality of the coverage has to be established by the ESI Authorities? Whether in the facts and circumstances of the case, the E.I. Court was right in law in sustaining the coverage with effect from 24.08.1992 when the Establishment has been permanently closed with effect from 31.03.2005 and no employee will be benefited by the coverage at this distance of time? According to the appellant, there is no evidence to show that the appellant had employed 20 or more persons in the appellant's establishment on any day for being covered under the Act. It is submitted that the appellant had produced muster rolls and other documents maintained by the appellant in proof of their contention, which have been wrongly disbelieved by the E.I. Court. According to the appellant, the Insurance Inspector has not prepared the report in accordance with law and the details of the workers whose names have been found in the muster roll and rough attendance register have not been disclosed also. It is submitted that the report was not prepared in accordance with the decision of the Karnataka High Court in Regional Director, E.S.I. Corporation Vs. Karnataka Asbestos Cement Products and Another, (1991) 63 FLR 638 . The contention of the appellants is that the findings of fact entered by the Tribunal, E.I. Court are perverse and un-sustained. 2. This is opposed by the counsel for the Employees State Insurance Corporation. The counsel would submit that none of the questions of law raised by the appellant arise from the facts of this case. What have been decided by the Employees Insurance Court are pure questions of fact and no questions of law are arise from the same. It is submitted that the Inspector who conducted the inspection on 24.08.1992 had submitted the report on the basis of the documents shown to him by Sri. Salim, the Manager of the establishment, based on which the applicant's establishment was ordered to be covered under the Act. In so far as the appellants do not have any allegation of mala fides against the inspector, there is absolutely no reason to disbelieve the evidence of DW 1- Insurance Inspector and therefore the findings of facts are not at all perverse. In so far as the appellants do not have any allegation of mala fides against the inspector, there is absolutely no reason to disbelieve the evidence of DW 1- Insurance Inspector and therefore the findings of facts are not at all perverse. It is further submitted that, it is pertinent to note that the appellant did not choose to examine Sri. Salim, who has been specifically named in the report of the inspector as the person who produced the muster roll and rough attendance register, which itself would strike at the root of the appellant's case. As far as the findings of fact entered by the E.I. Court are not perverse, this court should not interfere with the judgment of the E.I. Court in the absence of any questions of law arising from the findings, is the contention raised. 3. We have considered the rival contentions in detail. 4. At the outset, we note that the judgment of the E.I. Court is based purely on findings of fact, none of the questions of law framed by the appellant in the appeal memorandum arise from the facts of the case. The only question to be decided is whether the appellant had, in fact, at the relevant time, employed the required number of employees for coverage under the Act. The Insurance Inspector who inspected the appellant's establishment on 24.08.1992 filed a report stating that Sri. Salim, the Manager of the establishment had shown him two registers, one a muster roll containing names of 9 employees and the other a rough attendance register showing the names of 37 employees working in the establishment which included the 9 employees in the muster roll. As rightly pointed out by the counsel for the Employees State Insurance Corporation, the appellant does not have a case regarding mala fides against the Insurance Inspector. It is also pertinent to note that the appellant's witness had admitted that Sri. Salim was still in service. Despite the same, the appellant did not choose to examine Sri. Salim to controvert the evidence PWI, the Inspector, who made the inspection and stated in his report that Sri. Salim himself showed the muster roll and the rough attendance register. It is also pertinent to note that the appellant's witness had admitted that Sri. Salim was still in service. Despite the same, the appellant did not choose to examine Sri. Salim to controvert the evidence PWI, the Inspector, who made the inspection and stated in his report that Sri. Salim himself showed the muster roll and the rough attendance register. The appellant had produced muster rolls alleged to be prepared for the period in question and the E.I. Court has given elaborate reasons as to why they cannot be relied upon, since, according to the E.I. Court the same are concocted documents prepared after the event in support the case of the appellant. As such only purely questions of fact arise in this case. Therefore, unless the appellant proves before us that the findings of fact entered by the E.I. Court are perverse, this court cannot interfere with the findings of fact. The E.I. Court has in his judgment, given elaborate reasons as to why he believed the evidence of the Corporation and why he disbelieved the evidence of the appellant. We do not find any perversity whatsoever in the findings of fact entered by the E.I. Court holding that the appellant had, in fact, employed 20 or more persons in their establishment and therefore the appellant's establishment is liable to be covered under the E.S.I. Act. Therefore, we do not find any merit in this appeal and accordingly the same is dismissed.