ORAL JUDGMENT 1. The challenge in this appeal is to the order dated 21.09.2005 passed in Insurance Case No. 7 of 1994 under Section 75 of the Employees State Insurance Act, 1948, by the Industrial Court at Nagpur. The application filed by the appellant establishment under Section 75 of the said Act challenging the order dated 11.07.1994 passed under Section 45A of the said Act making the provision applicable to the establishment of the appellant has been rejected. 2. It is not in dispute that if it is established that the appellant establishment had engaged more than 20 employees during 01.04.1991 to 29.09.1993, then provisions of the said Act would become applicable with effect from 01.04.1991. According to the respondent authority, 21 employees were found to be working on the establishment of the appellant on 29.09.2003, when the inspection was done. Out of these 21 employees, 10 were regular employees, 5 were the temporary employees (including 2 persons employed for pasting handbills or posters), 2 employees employed by Canteen contractor and 4 employees employed on the cyclestand. The report has been accepted by the Industrial Court and the claim for setting aside the order dated 11.07.1994 has been rejected. 3. The appellant was running Natraj Cinema Theatre, which was subsequently closed on 30.09.2006. The present case is concerned with the period from 01.04.1991 to 29.09.1993. It is not in dispute that on the establishment of the appellant, there were 10 permanent employees and 3 temporary employees. The dispute is regarding employment of 2 persons as handbill boys, 2 persons employed by the canteen contractor and 4 persons employed on the cyclestand. It is not in dispute that the canteen and cyclestand were within the premises of the establishment of the appellant. It is also not in dispute that if the strength of the employees on the establishment of the appellant is 20 or less, then applicability of provisions of Employees State Insurance Act is excluded. 4. In the backdrop of the undisputed factual position narrated in the aforesaid para, the question is whether 2 persons, namely Raj Delikar and Gulab Dhobale shown as handbill boys were working as employees on the establishment of the appellant. The report of the Inspector dated 29.09.1993 indicate the names of these 2 persons as temporary employees getting salary of Rs.500/and Rs.400/per month respectively. The report of the Inspector dated 29.09.1993 indicate the names of these 2 persons as temporary employees getting salary of Rs.500/and Rs.400/per month respectively. In the oral evidence of the Inspector, who submitted the report on 29.09.1993, there is no reference to these 2 employees shown as handbill boys. It is not the finding in the report that the handbills were pasted in the premises of the establishment of the appellant. The evidence of the Inspector Vishwanathprasad Pande does not make reference to these 2 employees in his examination-in-chief, except to state that there were 5 temporary employees. In the cross-examination, the Inspector admits that in para 7 of his Inspection Report at Exh. 53, he has mentioned 10+2+4 employees and he has not recorded the statement of all 21 employees. He specifically states that he has not recorded the statement of 5 employees said to be working on temporary basis. 5. In view of this, the employment of 2 persons as handbill boys on the establishment of the appellant has not been proved. There is no basis in the report which states that these 2 employees were paid monthly wages of Rs.500/and Rs.400/respectively. If the employment of these 2 persons is excluded from the establishment of the appellant, then the total strength of the employees would be 19, which would obviously below 20, which is the requirement for applicability of the provisions of the said Act. The Industrial Court has committed an error in holding that the burden in respect of employment of these 2 persons was on the appellant establishment. Such a negative burden was unwarranted. The evidence brought on record in the form of report dated 29.09.1993 coupled with the evidence of the Inspector, who prepared this report, is completely deficient in establishing employment of these 2 persons on the establishment of the appellant. 6. In view of above, the appeal succeeds. The judgment and order dated 21.09.2005 passed in Insurance Case No. 7 of 1994 by the Employees State Insurance Court at Nagpur, is hereby quashed and set aside. Rule is made absolute in these terms. No order as to costs.