JUDGMENT/ORDER 1. This appeal is filed by the Employees State Insurance Corporation (hereinafter referred to as 'the ESI Corporation') under Sec. 82 of the Employees State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') challenging the order dtd. 29/9/2014 passed by the Employees State Insurance Court at Bangalore (hereinafter referred to as 'the ESI Court') in E.S.I. Application No.20/2010, whereby the application has been allowed in part and applicant was held liable to pay the contribution towards the wages and salaries for the year 2006-2007 to the ESI Corporation, but in respect of the years 2004-2005 and 2005-2006, the same has been rejected. 2. For the sake of convenience, the parties are referred to as per their rankings before the E.S.I. Court. 3. The brief facts of the case are that the applicant was carrying on the business in steel trading for which it uses cranes and also engaged the services of loaders and un-loaders and for the services rendered by the loaders and un-loaders the applicant was paying coolie and there is no master and servant relationship between the applicant and the loaders and un-loaders. Hence, they are not the employees as defined under Sec. 2(9) of the ESI Act. Therefore, the applicant is not liable to pay any contribution in respect of the loaders and un-loaders. 4. The ESI Inspector visited the establishment of the applicant on 24/9/2007 and 7/11/2007 and submitted a report to the ESI Corporation that there are more than 20 employees working in the establishment, for the years 2004-2005, 2005-2006 and 2006-2007 the applicant has not paid any contribution to the ESI Corporation in respect of the employees working in the establishment. On the basis of the report submitted by the ESI Inspector, the ESI Corporation has initiated a proceedings under Sec. 45-A of the ESI Act and issued a notice to the applicant on 8/4/2009. After considering the reply submitted by the applicant, the ESI Corporation has passed an order under Sec. 45-A of the ESI Act on 15/1/2010 which is marked as Ex.A13 directing the applicant to pay contribution to the Corporation for the years 2004-2005 to 2006-2007. Being aggrieved by the same, the applicant filed an application before the ESI Court in E.S.I. Application No.20/2010. The ESI Court, by the impugned order dtd. Being aggrieved by the same, the applicant filed an application before the ESI Court in E.S.I. Application No.20/2010. The ESI Court, by the impugned order dtd. 29/9/2014 allowed the application in part and directed the applicant to pay contribution towards wages and salaries for the year 2006-2007 without any interest. In respect of 2004-2005 and 2005-2006 are concerned, the claim of the Corporation has been rejected. Being aggrieved by the rejection of the claim of the ESI Corporation in respect of the years 2004-2005 and 2005- 2006 and also waiver of interest, the ESI Corporation has filed this appeal. 5. Smt. Geethadevi M.P., learned counsel appearing for the appellant has raised the following contentions: Firstly, as per the report of the ESI Inspector who has conducted the inspection, the establishment of the applicant has more than 20 employees. Since the establishment is covered under the ESI Act, they have to pay the contribution towards wages and salaries to the ESI Corporation. Even though the applicant claims that they are only hamalies and they are not regular employees, by looking to the nature of work, payment of salary made for the years 2004-2005 to 2006-2007 it is very clear that they are working as regular employees. Secondly, even though they are hamalies, they are engaged for loading and unloading of the goods, which is a regular activity. Hence they are employees as defined under Sec. 2(9) of the ESI Act. In support of her contention, she has relied on the judgment of the Hon'ble Apex Court in the case of RAJAKAMAL TRANSPORT AND ANOTHER vs. EMPLOYEES STATE INSURANCE CORPORATION, HYDERABAD reported in (1999) 9 SCC 644. Thirdly, if any amount is due from the establishment in respect of contribution, as per Sec. 39(5) of the ESI Act the establishment has to pay the interest for the delayed period. But, contrary to Sec. 39(5) of the Act the ESI Court has exempted the applicant - Establishment from payment of interest in respect of Rs.45, 460.00. In support of her contentions, she has relied on the judgment of the Hon'ble Apex Court in the case of GOETZE (INDIA) LTD. Vs. EMPLOYEES STATE INSURANCE CORPORATION reported in AIR 2008 SC 3122 . Hence, she sought for allowing the appeal. 6. In support of her contentions, she has relied on the judgment of the Hon'ble Apex Court in the case of GOETZE (INDIA) LTD. Vs. EMPLOYEES STATE INSURANCE CORPORATION reported in AIR 2008 SC 3122 . Hence, she sought for allowing the appeal. 6. Per contra, Sri Harikrishna S.Holla, learned counsel appearing for the respondent has raised the following contentions: Firstly, the applicant - Establishment has not engaged more than 20 labourers for the years 2004-2005 and 2005-2006. The workers are working as only hamalies and they are only employed on casual basis and their whereabouts are not known. On the day they work, their wages will be paid and they are not regular employees and there is no master and servant relationship between the hamalies and the applicant. Therefore, their services cannot be counted to hold that the establishment has engaged more than 20 employees. Secondly, considering the evidence of the parties and the materials available on record the ESI Court has rightly held that for the period 2004-2005 and 2005-2006 the establishment has engaged less than 20 employees, therefore, they need not pay any contribution to the ESI Corporation. Thirdly, the order passed by the ESI Court is just and reasonable. Hence, he sought for dismissal of the appeal. 7. Heard the learned counsel for the parties. Perused the impugned order and the original records. 8. It is not in dispute that the applicant - Establishment is carrying on a business in steel trading. It is also not in dispute that they have engaged the services of loader and un-loader. Even though they are coolies, on perusal of the document, it is very clear that the services of hamalies has been taken by the applicant - Establishment for loading and unloading of the goods on a regular basis. Even as per the report submitted by the inspector and also as per the order passed by the ESI Corporation under Sec. 45-A wherein coolies charges from 2004-2005 to 2005-07 is Rs.21, 50, 620.00. Therefore, it cannot be held that the hamalies are working in the establishment and are working on casual basis. The ESI Court has failed to consider this aspect of the matter and has erred in holding that the establishment has not engaged more than 20 employees for the years 2004- 2005 to 2005-2006. Therefore, it cannot be held that the hamalies are working in the establishment and are working on casual basis. The ESI Court has failed to consider this aspect of the matter and has erred in holding that the establishment has not engaged more than 20 employees for the years 2004- 2005 to 2005-2006. Even the Hon'ble Apex Court in the case of RAJKAMAL (supra), in similar circumstances has held as follows: "7. It is seen that the Insurance Court after elaborate consideration, found as a fact, that the appellants have the control over loading and unloading of the goods entrusted to the appellants. The appellants' regular business is transportation of the goods entrusted to it as carrier. When the goods are brought to the warehouse of the appellants, necessarily the appellants have to get the goods loaded or unloaded through the hamalis and they control the activities of loading and unloading. lt is true as found by the Insurance Court that instead of appellants directly paying the charges from their pocket, they collect as a part of the consideration for transportation of the goods from the customers and pay the amount to the hamalis. The test of payment of salary or wages in the facts of this case is not relevant consideration. What is important is that they work in connection with the work of the establishment. The loading and unloading of the work is done at their directions and control." Even Sec. 2(9) of the ESI Act has defined the word 'employee' and the same is extracted below: "A person who is employed by principal employer either incidental or preliminary engaged with the work of establishment, whether such work is done by employee in the factory or establishment or elsewhere". 9. By looking into the above provision, the judgment of the Hon'ble Apex Court referred to above and the evidence available on record, it is clear that the applicant - Establishment has engaged more than 20 labourers for the years 2004-2005 to 2006-2007, they have to pay contribution towards wages of the employees for the years 2004-2005 to 2006-2007. 10. In respect of interest is concerned, as per Sec. 39(5) of the ESI Act, if any contribution payable under this Act is not paid by the principal employer on the day on which the contribution has become due, he shall be liable to pay simple interest. 10. In respect of interest is concerned, as per Sec. 39(5) of the ESI Act, if any contribution payable under this Act is not paid by the principal employer on the day on which the contribution has become due, he shall be liable to pay simple interest. Contrary to the aforesaid provision of the ESI Act, the ESI Court has erred in holding that the applicant - Establishment is not liable to pay interest. 11. In view of the above, the appeal is allowed. The order passed by the ESI Court dtd. 29/9/2014 in ESI Application No.20/2010 is modified to the effect that the applicant - Establishment is also directed to pay contribution towards wages and salaries for the years 2004-2005 and 2005-2006 (amounting to Rs.1, 92, 337.00) with interest and also directed to pay interest for the year 2006-2007 on Rs.45, 416.00 as per Sec. 39(5) of the ESI Act.