ORDER : 1. This appeal under Section 82 of the Employees’ State Insurance Act, 1948 (herein after referred to as ‘the ESI Act’) has been preferred by the M/s Samabai Mudran Kendra, a unit of Tezpur Wholesale Co-Operative Stores Ltd., challenged the judgment and order dated 31.03.2006 passed by the Employees Insurance Court (herein after referred to as ‘the EI Court’), Tezpur in ESI Case No. 9 of 2001. 2. The appellant herein as petitioner has filed a petition under Section 75 of the Act before the EI Court leading to registration of ESI Case No. 6 of 1994. By that application the petitioner challenged demand of contribution from it by respondent corporation and claimed that it is not covered by the provisions of Act as it never employed 10 or more persons in any point of time. It is stated in the application that the respondent served a notice on 23.04.1991 holding that it is liable to make payment of Rs. 4,661/- for the period commencing from January, 1990 to February, 1991. The aforesaid demand notice was made on the basis of the previous letter dated 25.10.1990 addressed to the petitioner thereby applying the provisions of the Act to the case of the petitioner’s printing press. In respect to the letter dated 25.10.1990 the petitioner by the application dated 03.11.1990 informed that the Act was not applicable to it inasmuch as it was run by only 3 employees at a time. An officer of the respondent corporation thereafter visited the petitioner’s establishment on 14.03.1991 and then, notice dated 23.04.1991 was issued demanding contribution to the tune of Rs. 4,661/- as aforesaid. According to the petitioner, it is not a factory within the meaning of Section 2(12) of the Act in view of the above fact and so prayed for appropriate direction from the EI Court. 3. Upon receipt of summons the respondent corporation appeared and submitted written statement denying the case of the petitioner. It was stated in Paragraph-4 of the application that the petitioner firm was run by aid of power in manufacturing process and there were 10 or more than 10 employees working in the firm. This is why on the basis of the report dated 15.03.1991 demand was made for payment of contribution as petitioner’s firm comes under the purview of Section 2(12) of the Act. This is why on the basis of the report dated 15.03.1991 demand was made for payment of contribution as petitioner’s firm comes under the purview of Section 2(12) of the Act. The respondent corporation, therefore, prayed that the application be rejected with cost. 4. The EI Court thereafter asked the parties to lead their respective evidence and thereafter, by his judgment and order dated 24.01.1995 dismissed the ESI Case No. 6 of 1994. The petitioner examined one Suren Sarma, it’s Secretary as P.W.1 and respondent Corporation examined one Hashan Ali as D.W.1. Aggrieved, the petitioner firm had approached this Court and thereupon, this Court allowed the appeal and remanded the matter to the learned trial court for judgment afresh. Upon such remand the case was renumbered as ESI Case No. 9 of 1991. After the remand was made, petitioner examined one Arun Choudhury as P.W.2, but respondent Corporation did not examine any other witness. However, respondent corporation cross examined the P.W.2 at length. After considering the evidence adduced by the witnesses, the ESI Court passed its judgment and order on 31.03.2006 thereby, rejecting the application of the present appellant and holding that it is covered by the provisions of the Act. It is this judgment which has been brought under challenge in the present appeal. 5. This Court while admitting the appeal on 04.08.2006 did not frame any substantial question of law as required under Section 82(2) of the Act. The learned counsel for the parties, therefore, are heard and thereupon, the following substantial question of law is framed today: “Whether the learned EI Court committed error in applying the provision of Employee’s State Insurance Act, 1948 to the case of the present appellant on the basis of the materials available on record?” 6. I have heard Mr. S. Biswas, learned counsel for the appellant and Mr. K.K. Nandi, learned Standing Counsel for ESI Corporation, the sole respondent. 7. Mr. S. Biswas would argue that the appellant produced the wage register before the learned trial court and it was shown that those wage registers were duly signed by the ESI Inspector. None of these registers indicate that in any point of time petitioner’s establishment had engaged 10 or more employees. 7. Mr. S. Biswas would argue that the appellant produced the wage register before the learned trial court and it was shown that those wage registers were duly signed by the ESI Inspector. None of these registers indicate that in any point of time petitioner’s establishment had engaged 10 or more employees. Exhibit-1 is this register whereas, Exhibits- 1/(26) and 1/(32) are the signatures of the ESI Inspector and so, it is established that register is maintained in the regular course of business. Besides, the sole witness of the respondent Corporation did not say a word as to whether the petitioner’s company had engaged 10 or more employee in any point of time. The EI Court has not arrived at any finding as to whether the petitioner had engaged 10 or more than 10 employees in any point of time but without recording satisfaction as to such jurisdictional fact the EI Court has arrived at the finding that the Act in question is applicable to the present petitioner. This, according to Mr. Biswas itself is demonstrative of the fact that the learned EI Court committed error in applying the provision of the Act. Mr. K.K. Nandi, learned Standing Counsel for the respondent on the other side submits that the sole witness, D.W.1 visited the establishment and thereupon, he found that there was as many as 12 employees working in the firm and so it was sufficient to show that the establishment was manned by more than 10 employees. It is a matter of common experience that printing press is run by aid of power and so in view of the provision of Section 2(12), as it stood at that time, the petitioner establishment was very much a factory within the meaning of the Act. Respondent, therefore, has not committed error in making demand of contribution and learned trial court also did not commit error in applying the provisions of the Act to the petitioner establishment. 8. Since Exhibit-1, the wage register contains signatures of Insurance Inspector it is established that this register was maintained in regular course of business and it is not prepared for the purpose of litigation. This register does not show that there are 10 or more employees working in the establishment at any point of time. 8. Since Exhibit-1, the wage register contains signatures of Insurance Inspector it is established that this register was maintained in regular course of business and it is not prepared for the purpose of litigation. This register does not show that there are 10 or more employees working in the establishment at any point of time. D.W.1 who is the sole witness of the respondent corporation stated only 6 or 7 lines in course of his examination-in-chief and he stated that he had visited the establishment and found 12 employees working in the firm physically. He has proved Exhibit-A, B & C in this regard but he has not said a word as to whether the petitioner establishment was run with the aid of power or not. This is because at the relevant time the definition of factory under Section 2(12) was entirely different and the same remained in force till 01.06.2010 when the Act was amended by Act 18 of 2010. The definition of factory under Section 2 (12) at the relevant time was as follows: “2(12) ‘factory’ means any premises including the precincts thereof- a) Whereon ten or more persons are employed or were employed for wages on any day of the proceeding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or b) Whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so cairred on but does not include a mind subject to the operatin of the Mines Act, 1952 (35 of 1952) or a railway running shed.” 9. It would appear from the above definition that unlike the present one, the definition of factory prior to 01.06.2010 had two parts. Those factories which were run by aid of power were considered to be factories within the meaning of Section 2(12) provided there were at least 10 or more number of employees at any date within the preceding 12 months. Those factories which were run by aid of power were considered to be factories within the meaning of Section 2(12) provided there were at least 10 or more number of employees at any date within the preceding 12 months. On the other hand, if such factory was not run by the aid of power in that event they would come within the purview of the definition of factory under Section 2(12) only where they have engaged 20 or more employees at any time during the preceding 12 months. Since unammended definition was in force at the relevant time, either the respondent corporation was duty bound to prove that there were 20 number of employees during the preceding 12 months of demand or that the establishment was run by the aid of power and that it had 10 or more employees engaged within the preceding 12 months. On perusal of Exhibits-A,B,C as well as the oral evidence of D.W.1, it does not appear that D.W.1 made any attempt to prove or to show that the petitioner establishment was run by the aid of power and so, that there were at least 10 or more number of employees during the preceding 12 months. 10. The petitioner establishment after remand of the case on previous occasion examined one Arun Choudhury as P.W.2 who came forward and claimed that he was a regular employee of one Janata Press and he used to work in that press during period of 9 A.M. to 5 P.M. Beyond this work period, whenever he was free, he used to work as contract employee of the petitioner’s establishment for the purpose of doing the binding works. If he is also considered to be one of the employees in that event the roll of employees maintained by the petitioner establishment can at best go to 5 but there is nothing on record to come to a finding that there were 8 contractual employees. P.W.1 has admitted in course of cross-examination that he had only met Arun Choudhury P.W.2 and so, it is apparent that no amount of enquiry was made to find out the case relating to alleged contractual engagement in the petitioner’s establishment. P.W.1 has admitted in course of cross-examination that he had only met Arun Choudhury P.W.2 and so, it is apparent that no amount of enquiry was made to find out the case relating to alleged contractual engagement in the petitioner’s establishment. On perusal of the evidence led by the parties it is apparent that there is no material whatsoever on record to come to a finding that there were 8 contractual employees engaged in the petitioner establishment and so it cannot be said that during the relevant period petitioner establishment had engaged 12 employees as alleged by the D.W.1 in his examination-in-chief. Once it is found that the respondent corporation does not have any materials with it to bring the petitioner establishment within the definition of factory under section 2(12) at the relevant time, the finding of the learned trial court that the ESI Act is applicable to the petitioner establishment becomes untenable. There is no finding in the impugned judgment that the establishment had 10 or more employees at any point of time during the relevant period. When there is no such finding, the condition precedent for application of the Act cannot be said to have been satisfied. Accordingly, impugned judgment and order appears to be unsustainable. The sole substantial question of law is accordingly decided in affirmative and infavour of the appellant and the impugned judgment and award is hereby set aside. 11. No order as to costs.