1. There is an appeal under section 82 of the Employees' State Insurance Act, 1948( herein after referred to as Act) challenging the judgment and order dated 31.12.2004 passed by the learned E.S.I. Court , Upper Assam, Dibrugarh . By the impugned judgment and order the learned E.S.I. court dismissed the application filed by the present appellant under Section 75 of the Act. 2. The present appellant as petitioner filed E.S.I Case No. 1 of 2001 in the Court of E.S.I Court on 1.2.2001 stating that he is the sole proprietor of M/S Saligram Automobiles situated at Mancotta Road of Dibrugarh town. He started the business in the year 1997. He has only 8 employees at a time in the establishment and so it is not covered by the provision of the Act and the rules framed thereunder. But although no Inspector of the ESI had ever visited his business place, yet a notice dated 8.1.2001 was served on him alleging that he failed to pay the amount of arrear specified in the certificate forwarded by Recovery Officer under Section- 45 (D) (2) of the Act for the purpose of recovery of the arrear. By filing this application, therefore, petitioner stated that the show cause notice itself is illegal, inoperative as his business having started since 1997 such a huge amount of Rs. 1,65,268/- could not have been accrued as arrear. Moreover, he having never appointed more than 8 employees at a time there was no question of his making contribution to the ESI Corporation. Petitioner, therefore, prayed that a declaration be made holding him not liable to pay arrear of Rs.1,65,268/- vide impugned notice dated 8.1.2001 and that the same notice is illegal and inoperative. 3. ESI Corporation submitted written statement stating that the petition is false, vexatious and misleading and that it is barred by limitation , estoppel etc. The statements made in para 1 to 7 were denied by objector saying that the petitioner's factory is covered under the ESI with effect from April, 1970 and it had been complying since then under the ESI Act. During the course of inspection it was found that the petitioner engaged 35 employees for whom contributions were paid by employer vide challan dated 13.1.1971.The place where Saligram & Co. During the course of inspection it was found that the petitioner engaged 35 employees for whom contributions were paid by employer vide challan dated 13.1.1971.The place where Saligram & Co. was doing its business is the same place from where Saligram Automobilies has been doing the business and so it is clear that both the establishments are one and the same under different names carrying on same business activities continuously under the same roof. Petitioner refused to accept notice for compliance under the ESI Act since May, 1999 and has filed the petition on false plea. Petitioner's letter dated 12.1.1971 alongwith respective return and challan were annexed as Annexure- A, B and C to the written statement. With these statements of facts, the objector prayed that the petition be dismissed with compensatory cost of Rs.25,000/- . Upon such rival contention of the parties, the learned court framed as many as nine issues which are quoted below: (i)Whether the petitioner has started the business of M/S Saligram Automobile in 1997? (ii) Whether the petitioner employed at any point of time more than 9 employees in the establishment?. (iii) Whether the petitioner is liable to pay contribution under E.S.I Act? (iv) Whether the certificate No.43-1411 dated -NIL- is maintainable? (v) Whether any inspection was made by any Inspector in the establishment? (vi) Whether any notice was served before serving notice dated 8.1.2001? (vii) Whether the show cause notice dated 8.1.2001 is operative in the eye of law? (viii) Whether M/S Saligram & Co. and M/S Saligram Automobile are the same and one unit? (ix) What relief are entitled by the parties? 4. Petitioner examined two witnesses including himself and his Manager , Swapan Dutta, whereas, the opposite party examined one witness. PW-1 Swapan Dutta claimed to be the Manager of Saligram Automobiles. He deposed on oath that he has been working in the establishment since February, 1997. Madhukar Karwa is the owner of this concern. It has Yamaha dealership and does not have any other dealership. It has servicing and repairing works also. The number of employees working in the establishment is 7 to 8 and the same was always under 10. He proved Exhibit-1 as the attendance register to show that only 8 persons have been working therein since 1997. It has Yamaha dealership and does not have any other dealership. It has servicing and repairing works also. The number of employees working in the establishment is 7 to 8 and the same was always under 10. He proved Exhibit-1 as the attendance register to show that only 8 persons have been working therein since 1997. Exhibit-2 is the attendance register since January, 2001 and it also shows there were less than ten employees at a given point of time. Exhibit- 3 is the acquaintance register and it also shows that there were less than ten workers in the establishment at that time. Same is the conclusion from Exhbit-4 pay register. PW-1 claimed that no Inspector from ESI had occasion to visit the establishment at any point of time. He specifically asserted that M/S Saligram & Company has no connection whatsoever with M/S Saligram Automobiles. Madhukar Karwa is not the managing partner of M/S Saligram Automobiles. Notice dated 8.1.2001 is exhibited as Exhibit-5. It does not show the date of the certificate but only discloses number. Before issuance of Exhibit-5 no notice was given to M/S Saligram Automobiles by ESI . In course of cross-examination, he denied the suggestion that he has no knowledge about relationship between the M/S Saligram Automobiles and M/S Saligram & Company. But he stated that Dharam Chand Karwa was the father of Madhukar Karwa and that M/S Saligram & Company and M/S Saligram Automobiles are situated in the same place. He denied to have any knowledge about service of notice on M/S Saligram & Company and he denied suggestion that he is the employee of M/S Saligram & Company. Petitioner Madhukar Karwa examined himself as PW-2. He claimed to be owner of M/S Saligram Automobiles. According to him, he started business in the year 1997 only. He does the business of servicing and repairing apart from Yamaha dealership. He stated that there are only 7/8 employees in the establishment. Exhbit-1, attendance register , Exhibit -3 and 4 pay registers contain the details. He received a notice from E.S.I. vide Exhibit-5. But according to him he is the owner of M/S Saligram Automobiles and there is no partner of this establishment. He said that he did not change the name of M/S Saligram & Company to M/S Saligram Automobiles. They are separate units. He received a notice from E.S.I. vide Exhibit-5. But according to him he is the owner of M/S Saligram Automobiles and there is no partner of this establishment. He said that he did not change the name of M/S Saligram & Company to M/S Saligram Automobiles. They are separate units. He said that M/S Saligram & Company cannot be made responsible for discharging the liability of M/S Saligram Automobiles . So exhibit-5 does not apply to him. In course of cross -examination, he stated that the building in which his business is going on is about 100 years old. Exhibit-A contains the name of his father Dharam Chand Karwa and now he is dead. He could not show any paper for dissolution M/S Saligram & Company and he denied he is the heir of the company. Exhibit-B and C letters were shown to him but he denied that he is managing partner of M/S Saligram & Company . No letter was ever given to M/S Saligram Automobiles . After such evidence was led by petitioner, respondents examined one Abdul Hoque as DW-1. He stated on oath that on 21.3.1972 there was inspection of M/S Saligram & Company. He submitted report Exhibit-A upon such inspection. It was covered by ESI Act and Exhibit-D is the letter by M/S Saligram & Company. They deposited contribution till July, 1996 and thereafter did not deposit the contribution for which Exhibit- B and C notice were sent to M/S Saligram & Company but the notices were delivered unserved. Owner of M/S Saligram & Company was Dharam Chand Karwa and in the same place two signboards are present , one for M/S Saligram Automobiles and the other for M/S Saligram & Company. Owner of M/S Saligram Automobiles Madhukar Karwa is the son of Dharam Chand Karwa and he has been continuing the business in the name of M/S Saligram Automobiles . On being cross-examined, he admitted that he has no paper to show that since 1972 there were contribution by M/S Saligram & Company. He denied any knowledge in this regard. He admitted however, that, Exhibit-5 does not disclose any period for which default has been made. He could not recollect whether in 1996 contribution were given by M/S Saligram & Company. But to a specific question posed to him, his reply was of there is no claim against M/S Saligram Automobiles. He denied any knowledge in this regard. He admitted however, that, Exhibit-5 does not disclose any period for which default has been made. He could not recollect whether in 1996 contribution were given by M/S Saligram & Company. But to a specific question posed to him, his reply was of there is no claim against M/S Saligram Automobiles. There is decree against M/S Saligram & Company . He denied suggestion that M/S Saligram & Company had long since been would up, that Dharam Chand Karwa was shown managing partner of the company and that there is relationship between M/S Saligram Automobiles and M/S Saligram & Company. After consideration of the evidence of all three witnesses referred to above and the exhibits adduced by the parties, the learned trial court held that M/S Saligram Automobiles and M/S Saligram & Company are one and the same unit and so merely by changing of names M/S Saligram Automobiles cannot deny its liability. 5. This judgment dated 31.12.2004 has been brought under challenge in the present appeal and this court at the time of admission of the appeal framed two substantial question of law by order dated 30.5.2005 which are as below: (i) Whether the findings recorded by the ESI Court on Issue No.8 i.e. whether M/S Saligram & Company and M/S Saligram Automobiles are the same and one unit, is vitiated by errors of law occasioned by a misreading of trhe evidence on record? (ii) If M/S Saligram & Company and M/S Saligram Automobiles are not the one and same unit, whether the preitiotner representing Saligram Automobiles can be made liable to pay the dues of Saligram & Company? 6. I have heard Mr. GP Bhowmik, learned senior counsel assisted by Mr. SS Roy, learned counsel for the appellant and Mr. KK Nandi, learned counsel for the repsndents. I have perused the lower court records including the application under Section 75, written statement , the deposition of the parties and the exhibits adduced by them. 7. The only question to be decided in this case is as to whether finding of the learned trial court that M/S Saligram Automobiles and M/S Saligram & Company are one and the same establishments is perverse. PW-1 appeared as Manager of M/S Saligram Automobiles and said that M/S Saligram Automobiles has only 7/8 employees at a time. 7. The only question to be decided in this case is as to whether finding of the learned trial court that M/S Saligram Automobiles and M/S Saligram & Company are one and the same establishments is perverse. PW-1 appeared as Manager of M/S Saligram Automobiles and said that M/S Saligram Automobiles has only 7/8 employees at a time. It runs business of Yamaha dealership alongwith servicing and repairing of those vehicles. He claimed that M/S Saligram & Company did not have any relationship with it. As against the question put to him that he was originally working in M/S Saligram & Company he specifically denied the same and claimed he has been in service since February, 1997 in M/S Saligram Automobiles. Petitioner Madhukar Karwa was examined as PW-2. He also claimed that he has started business only from February, 1997 for dealer ship of Yamaha and repairing and servicing of vehicles. He denied to have any connection with M/S Saligram & Company. Since it is the case of the opposite party that M/S Saligram & Company was inspected in the year 1972 and exhibit-A report was submitted in regard there to and that the same M/S Saligram & Company has been doing business in the name of M/S Saligram Automobiles, it was the burden of the opposite party to produce the list of employees of M/S Saligram & Company to show that the employee of M/S Saligram & Company and the employees of M/S Saligram Automobiles are one and the same. Names of workers of M/S Saligram Automobiles are available in Exhibit 1 to 4. They have been duly exhibited without any objection. Since it is the case of the respondents that there was an inspection report as Exhibit-A with request to Saligram & Company, no effort has been made by respondents to show that the employees of M/S Saligram & Company continued in the service of M/S Saligram Automobiles. Such inaction on the part of the respondents along with specific admission made by DW-1 in course of cross-examination that ESI corporation has no claim against M/S Saligram Automobiles and it has claim only against M/S Saligram & Company assume importance. Such inaction on the part of the respondents along with specific admission made by DW-1 in course of cross-examination that ESI corporation has no claim against M/S Saligram Automobiles and it has claim only against M/S Saligram & Company assume importance. Unless the identities of the two establishments are proved to be one and the same it does not appear valid to impose the liability of one business establishment on the shoulder of the another merely because of similarity of names. The two establishments would have been same if the employees working in the two establishments are one and the same, they are doing same business and there is continuity of business between them. DW-1 has miserably failed to bring such material on record. The learned trial court came to a finding that M/S Saligram Automobiles and M/S Saligram & Company are one and the same establishments without being satisfied as to aforesaid conditions. Question would unnecessarily arise as on what basis the conclusion has been drawn. The only point urged by respondents is that in the same place of establishment there are two signboards and that the owner of M/S Saligram Automobiles is none other than the son of managing partner of M/S Saligram & Company. Even two members of a family may have two different business establishments. The identities of two establishments as one can be established by showing their commonness of fund, commonness of employees and commonness of management. Unless and until the ESI corporation comes forward with such specific evidence to show that the two establishment have common fund, they have common management and they are run by same set of employees, in that event merely because of similarity of names, they cannot be equated with each other. The finding of the learned trial court, therefore, is not supported by material available on record. Having so found, both the substantial questions of law are decided in favour of the appellant. 8. Consequently, the impugned judgment and order is hereby set aside. 9. The appeal stands allowed. 10. No order as to cost.