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Employees' State Insurance Corporation, Regional Office, Guwahati & Others v/s Moti Travels Pvt. Ltd., Silchar, Assam

    MFA No. 138 of 2004

    Decided On, 10 September 2015

    At, High Court of Gauhati


    For the Appellant: K.K. Nandi, SC, ESI Corporation. For the Respondent: L.P. Sarma, Advocate.

Judgment Text

1. This appeal under Section 82 of the Employees' State Insurance Act, 1948 has been preferred by the Employees' State Insurance Corporation (herein after referred to as The ESI Corporation), Assam, challenging the judgment dated 15.07.2004 passed by the learned Employees' Insurance Court, Assam in ESI Case No.10 of 2001, thereby allowing an application filed under Section 75 of the Employees' State Insurance Act, 1948 (herein after referred to as 'the ESI Act') by the respondent herein.

2. The respondent which is a travel agency challenged a notice issued by the ESI Corporation and prayed for necessary order adjudging the notice as illegal on the ground that the travel agency is not covered by the provision of the Act and the learned EI Court allowed the application by his impugned judgment and order dated 15.07.2004. Aggrieved the ESI Corporation has preferred this appeal.

3. The sole respondent as petitioner approached the EI Court by filing an application under Section 75 of the ESI Act stating that it is engaged in business of tourist and travel agency, carriers, transport agency and contracts to arrange tours and to carry on all allied business and activities. It was surprised to received a letter dated 30.09.1999 from the respondent corporation, thereby extending the provision of Act to the petitioner's company. It was claimed in this letter that there was a preliminary inspection on the petitioner's company on 21.05.1999 although in fact there was no such inspection at all. Letter dated 30.09.1999 was followed by another letter dated 25.01.2001 whereby the petitioner company was reminded that it did not make payment of its contribution and for such recovery, legal action was threatened. Thereafter, on 12.03.2001 the ESI Corporation demanded Rs.50,621/- as contribution from the petitioner for the period from August, 1999 to January, 2001. According to the petitioner, it did not engage more than 17 workers at any point of time on wages and as such, it was neither a factory nor an establishment within the meaning of Section 2 of the ESI Act and so, there was no question of applicability of the ESI Act in the present case. The company, therefore, made a prayer for issuing notice upon the respondent corporation and to call for records as to why notices dated 30.09.1999, 25.1.2011 and 12.03.2001 should not be set aside and as to why the petitioner company should not be exempted from the purview of operation of the Act. This application was registered as ESI Case No. 10 of 2001 and notices were issued. The respondent corporation appeared and submitted its written statement denying the case of the petitioner on merit as well as on maintainability and prayed for dismissal of the petition with cost of Rs.10,000/-. Be that as it may, the learned trial court after hearing the learned counsel of both sides allowed the parties to lead their respective evidence but did not frame any issue.

4. Appellants Company examined as many as two (2) witnesses, whereas the respondent Corporation also examined two (2) witnesses and both the parties adduced documentary evidences.

5. Upon considerations of all the evidences, both oral and documentary, adduced by the parties, the learned EI Court by his judgment and decree dated 15.07.2004 arrived at the finding that the company had engaged a total of 13 to 17 number of employees in its both the offices at Silchar and Guwahati and that it is not a factory. It does not involve any manufacturing process and it never engaged 20 or more employees at any point of time. With these observations, the learned EI Court held that the petitioner's company was not covered by ESI Act and hance they are not liable to pay contribution under ESI Act as demanded by the ESI Corporation. Consequently, the application filed under Section 75 of the Act was allowed and the opposite party corporation was directed to refund the amount already paid by the petitioner company. This judgment passed on 15.07.2004 has been brought under challenge in the present appeal under Section 82 of the Act.

6. This Court while admitting the appeal on 22.11.2004 framed as many as two (2) substantial questions of law which are quoted below:

"(1) Whether the report of the Inspector of the ESI Corporation is admissible in evidence as per Section 35 and Section 74 of the Indian Evidence Act?

(2) Whether the findings of the learned court below is sustainable in law in view of the provisions of Section 1(6) of the ESI Act, 1948?"

7. I have heard Mr. K.K. Nandi, learned Standing Counsel of ESI Corporation, appearing for the appellants and Mr. L.P.Sarma, learned counsel for the respondent. I have perused the evidence on record as well as the pleadings of the parties.

8. Mr. K.K. Nandi, learned Standing Counsel for the appellants submits that Exhibit-A is an inspection report dated 21.05.1999 and it shows that the respondent company had engaged 51 employees as on the date of inspection. According to him, this report having been submitted by the Inspector of the ESI Corporation, it is admissible in evidence. But what is required for adjudication in the present case is not the admissibility of the document but the poof of its content. Merely because a document is admissible in evidence, it does not mean that the content thereof is to be presumed to be correct. The Inspector gave his personal view that the respondent company had engaged 51 employees on 21.05.1999. The document was admissible in evidence and accordingly, it was allowed to be exhibited as Exhibit-A. However, in the absence of any supporting materials, the learned EI Court did not accept the view. In that view of the matter, the first substantial question of law does not arise in the present case. Had this Exhibit-A been not permitted by the learned court for being admitted into records holding that it is not admissible in evidence in that event framing of first substantial question of law would have arisen. Here in this case Exhibit-A was tendered by the respondent corporation and the same was admitted into evidence. The content of document was not presumed to be correct by the learned trial court in the absence of the supporting materials. Since the learned EI Court exhibited Exhibit-A evidence, the question of admissibility did not arise and consequently, the first substantial question of law does not arise from the fact and circumstances of the case.

9. The second substantial question of law is in regard to Section 1(6) of the ESI Act which provides that a factory or an establishment to which this act applies shall continue to be governed by this Act notwithstanding that number of persons employed therein at any point of time falls below the limit specified by or under this Act or any manufacturing process therein seized to be carried on by aid of power. This point of law is applicable at a given point of time when a factory or an establishment was covered by the ESI Act because of satisfaction of the condition precedent, namely, specified number of employees and aid of power in manufacturing process.

10. Having gone through the evidence on record and the finding of the learned trial court it appears that the ESI Act was found to be not applicable in the present case by the learned trial court. It is not the case that the Act was applicable for a particular period and then the specified number of employees or aid of power for manufacturing process ceased to exist. The appellant corporation has failed to bring on record any evidence, whatsoever, to show that on any given date during the period from 1999 to 2001 the company had engaged specified number of employees i.e. 20 as on that date. Having submitted an inspection report on 21.05.1999 and having exhibited the same report as Exhibit-A the appellants' corporation failed to lead any evidence to show that such number of employees were engaged by the respondent's company herein at any point of time. Rather from perusal of the evidence it appears that on the face of inspection report submitted by the officers of the ESI Corporation, the learned trial court was satisfied that there were 13 to17 numbers of employees engaged by the respondent company throughout the relevant period. Once such finding of fact had been arrived at by the learned trial court and the sam

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e could not be established to be perverse by the appellants herein, there is no scope to interfere with such finding of fact in the present appeal. Consequently, the finding of the learned trial court that respondent company had all along engaged 12 to17 numbers of employees during the relevant period when specified number of employees was 20 so as to enable the application of the ESI Act, 1948, the applicability of the second substantial question of law also does not arise. The second substantial question of law does not arise from the facts and circumstances of the case. 11. Having found that both the substantial questions of law do not arise from the facts and circumstances of the present appeal, there is no scope to allow the appeal and it is accordingly dismissed. The judgment and order passed by the learned trial court is accordingly upheld. 12. No order as to costs. Appeal dismissed.