JUDGMENT : AJIT BORTHAKUR, J. 1. This appeal u/s. 82 of the Employees' State Insurance Act, 1948 (For Short 'E.S.I. Act') is directed against the Judgment & Order dated 20.11.2010, passed by the learned Judge, E.S.I. Court, Guwahati, in ESI Case No. 2 of 2009 dismissing the petition of the petitioner-appellants. 2. The case of the petitioner/appellant, in short, is that he filed E.S.I. Case No. 02/2009, on 11.02.2009 u/s. 75 of the ESI Act praying for quashing and setting aside the notices, dated 27.10.08, 20.11.08 and 12.12.08, issued by the respondent No. 2, the Recovery Officer, E.S.I. Corporation, Guwahati and to declare that his establishment is not covered under the E.S.I. Act and also to declare the impugned notices as illegal, void and inoperative and without jurisdiction. The petitioner/plaintiff also filed petition No. 37/09 u/s. 75 (2-B) of the ESI Act for waiving the money to be deposited with the Court for filing the application u/s. 75 of the E.S.I. Act. The learned Court below vide order, dated 12.05.2009, directed the petitioner/appellant to deposit 25% of the demanded amount as pre-condition. Accordingly, the petitioner/appellant deposited 25% of the aforesaid amount i.e. Rs. 4,711/- through cheque, on 22.05.2009 and the petition filed u/s. 75 of the E.S.I. Act was admitted on 24.06.2009. 3. The respondents/E.S.I. Corporation contested the case filing a written statement, dated 23.02.2010, on the grounds, inter alia, that the petitioner/appellant has not disclosed the name of the proprietor of the firm; that Kanakpur PT-1 and PT-2, where the petitioner-appellant's business establishment is located is within the notified implemented area under the E.S.I. Act; that the ESI Inspector found appropriate number of employees working in the said establishment/factory for wages; that as per amendment of the E.S.I. Act in 1989, separate notification for implementation u/s. 1(5) is not required, where the provision u/s. 1(3) is in force and that the petition is barred by limitation u/s. 77(1-A) of the E.S.I. Act. Hence, prayed to dismiss the petition. 4. On behalf of the petitioner/appellant's firm its proprietor Rajendra Kumar Jindal (PW-1) examined himself. The respondents/ESI Corporation declined to cross-examine him and also to examine any witness on their behalf. The petitioner/appellant exhibited 8 (eight) documents. 5. Heard Mr. L.P. Sharma, learned counsel for the petitioner/appellant and Mr. K.K. Nandi, learned counsel for the respondents/ESI Corporation. 6. Mr. 4. On behalf of the petitioner/appellant's firm its proprietor Rajendra Kumar Jindal (PW-1) examined himself. The respondents/ESI Corporation declined to cross-examine him and also to examine any witness on their behalf. The petitioner/appellant exhibited 8 (eight) documents. 5. Heard Mr. L.P. Sharma, learned counsel for the petitioner/appellant and Mr. K.K. Nandi, learned counsel for the respondents/ESI Corporation. 6. Mr. L.P. Sharma, learned counsel for the petitioner/appellant has submitted that the learned Trial Court committed illegality in dismissing the case of the petitioner/appellant inspite of holding the opinion that the petitioner/appellant's establishment is not covered under the provisions of the E.S.I. Act as the establishment has only 4 (four) workers and in such case, workers are not necessary party in the petition u/s. 75 of the E.S.I. Act. Mr. Sharma has submitted that the respondent/ESI Corporation's claim of statutory dues from the firm is barred by limitation and that the learned Trial Court erroneously dismissed the petitioner/appellant's case despite its finding that mandatory notice u/s. 39, 40 and 45-A of the E.S.I. Act was not issued to the petitioner/appellant's firm. According to Mr. Sharma, the learned counsel, the petitioner/appellant's firm does not fall within the definition of factory' provided in Section 2(12) of the E.S.I. Act. Therefore, Mr. Sharma has further submitted to remand the case to the learned Trial Court for retrial. 7. Controverting the above argument of the learned counsel for the petitioner/appellant, Mr. K.K. Nandi, learned counsel appearing on behalf of the respondent/ESI Corporation has submitted that the petitioner/appellant's business establishment is covered by the provisions of the E.S.I. Act and that he has failed to exhibit any documentary evidence to show that there are only 4 (four) employees engaged on wages basis and that the case is barred by limitation u/s. 77(I-A) of the E.S.I. Act. 8. On perusal of the pleadings and evidence of the petitioner/appellant herein, it transpires that the petitioner/appellant's father late Ramniwas Jindal was the proprietor of M/s. Hanuman Automobiles Engineering Works, Sonai Road, Silchar, Cachar and accordingly, his name was registered with the registering authority under the Assam Shops and Establishments Act, vide Ext. 1, the certificate of registration, dated 23.2.2007 and after his death on 4.7.2007, the petitioner/appellant has been looking after the said business establishment as its proprietor. 1, the certificate of registration, dated 23.2.2007 and after his death on 4.7.2007, the petitioner/appellant has been looking after the said business establishment as its proprietor. The petitioner/appellant has contended that the said business establishment is located within the jurisdiction of Kanakpur Gaon Panchayat and to this effect, the President of the said Gaon Panchayat issued a certificate, dated 10.1.2009 vide Ext. 2 and therefore, does not fall within the implemented area under the Gazette of India Notification, dated 21.7.1999 and Revenue Demarcation of the factory/establishment of Silchar area received from the Assistant Settlement Officer, Sadar Circle vide his letter No. SCSM.51/92/pt/2042, dated 11.4.1996, the petitioner/appellant's said business establishment, located in Revenue village Kanakpur PT-1, under Barakpur Monza of Silchar Revenue Circle is located in the implemented area. However, no amount of evidence, oral and documentary, has been produced in the case by the respondents authority to prove their aforesaid claim and on the other hand, the learned Trial Court also appears to have omitted to look into this relevant aspect of foundation of the case, which is one of the statutory criteria to bring the said business establishment within the provisions of the ESI Act having consequence on the validity of the notice, dated 27.10.2008, vide Ext. 3 issued by the respondent No. 2 demanding payment of Rs. 18,845/-, on account of ESI statutory dues addressed to the deceased father of the petitioner/appellant, who was the proprietor of the said firm. It is further notice that on receipt of the aforesaid notice, dated 27.10.2008, vide Ext. 3 addressed to his deceased father R.N. Jindal, the petitioner/appellant issued a letter dated 12.11.2008, addressed to the respondent No. 2 intimating that his father, who was the proprietor of the said firm, expired on 04.07.2007 and requested to provide the details of their firm's liability, under-the E.S.I. Act, if any vide Ext. 4. In the meantime, the respondent No. 2 issued another Notice, dated 20.11.2008, again addressed to his deceased father and the petitioner/appellant by letter dated 04.12.2008, vide Ext. 5 requested him to supply the details of the liability enabling him to attend hearing. The respondent No. 2 in response to the aforesaid letter vide Ext. 5 replied to the petitioner/appellant informing that the outstanding liability period was August, 1999 to March, 2000 for Rs. 18,845/- vide Ext. 5 requested him to supply the details of the liability enabling him to attend hearing. The respondent No. 2 in response to the aforesaid letter vide Ext. 5 replied to the petitioner/appellant informing that the outstanding liability period was August, 1999 to March, 2000 for Rs. 18,845/- vide Ext. 6, the Notice, fixing 13.1.09 at 11:30 am for personal hearing without further extension of time for hearing. It is seen that on receipt of the said Notice vide Ext. 7, the petitioner/appellant by a letter, dated 13.01.2009, vide Ext. 7 informed the respondent No. 2 in clear terms that at no point of time, they received any notice from the ESI Corporation authority as per requirement of Sections 39 and 40, covering their establishment under the provisions of the said Act and that an application under Section 75 of the Act was filed. 9. The petitioners/appellant's contentions are that the impugned notices, dated 27.10.2008, 20.11.2008 and 12.12.2008 are void and without authority as his business establishment is not covered under the provisions of the E.S.I. Act and no notice u/s. 39 and 40 of the said Act was also issued. The respondent/authority, however, counter-contended that the pre-implementation survey of the Unit was conducted during the period from 18.05.1999 to 24.05.1999 and 10 or more persons were found employed for wages and accordingly, the Unit was covered u/s. 2(12) of the said Act. The respondent E.S.I. authority further counter contended that as per amendment of the E.S.I. Act, in 1989, no separate notification is required, where Section 1(3) of the Act is in force. However, the respondent authority has not led any evidence in this regard and on the other hand, the impugned judgment and order do not show that the learned Trial Court has effectively dealt with on the aforesaid issues. 10. Coming to the point of Limitation to demand the alleged statutory dues made by the respondent E.S.I. authority, the petitioner/appellant has contended that the demand for the period from August 1999 to March 2000 is barred by Limitation u/s. 77(IA)(b) of the E.S.I. Act, 1948. The respondent E.S.I. authority, however, without giving a specific reply to it, contended that the petitioner/appellant, cannot challenge the coverage of dues after 10 (ten) years as per Section 77(IA) of the E.S.I. Act as the case has been filed beyond the period of Limitation. 11. The respondent E.S.I. authority, however, without giving a specific reply to it, contended that the petitioner/appellant, cannot challenge the coverage of dues after 10 (ten) years as per Section 77(IA) of the E.S.I. Act as the case has been filed beyond the period of Limitation. 11. It is seen from the impugned judgment and order that the learned Trial Court has rightly held that no notice for hearing u/s. 39, 40 and 45A of the E.S.I. Act was issued to the petitioner/appellant and that the respondents authority failed to discharge their burden of prove that the petitioner/appellant's firm engaged ten employees for wages instead of four employees as found during inspection so as to bring the firm within the definition of 'factory' provided in Section 2(12) of the E.S.I. Act. The respondent-E.S.I. authority neither cross-examined the petitioner/appellant (P.W. 1) nor produced any oral or documentary evidence including the so called inspection report in respect of the petitioner/appellant's firm. 12. It is noticed that the learned Trial Court relying on the decisions of the Apex Court rendered in Fertilizer & Chemicals Travancore Ltd. Vs. E.S.I. Corporation, reported in (2009) 9 SCC 485 and Employees State Insurance Corporation Vs. Bhakra Beas Management Board & Anr.; reported in (2009) 10 SCC 671 , wherein it was held that the employees of the petitioner employer are necessary parties in a petition u/s. 75 of E.S.I. Act, dismissed the application of the petitioner/appellant filed u/s. 75 of the said Act, whereas held in course of the impugned judgment that the petitioner/appellant's firm has not engaged the required 10 (ten) employees for wages, instead engaged only 4 (four) employees for wages, meaning thereby that the firm does not attract the definition of 'factory' defined in Section 2 (12) of the Employees Insurance Act so as to bring the Unit within the provisions of the E.S.I. Act. 13. In view of the above reasons, the case is remanded back to the learned Trial Court to decide afresh on the points, observed in course of this judgment and accordingly, the appeal stands partly allowed. 14. The impugned Judgment & Order is set aside. 15. Be it mentioned that the learned Trial Court shall not be influenced by any of the observations made in course of this judgment while deciding the case afresh. 16. Send back the LCR along with a copy of this Judgment and Order.