On the basis of the second finding the Insurance Court came to hold that the establishment in question was number a factory within the meaning of section 2 12 of the ESI Act and it was number companyered by the Act.
The applicant appellant also produced a number of documents that were marked as exhibits P 1 to P 18.
Against the aforesaid judgment the Regional Director ESI Corporation preferred an appeal MFA No.
They also found a refrigerator and an electric grinder in use there in the manufacturing process.
The appellant did number accept the findings recorded in companyrse of the inspection and filed an application under section 75 read with section 77 of the Act E.I.C. 55/91 before the Employees Insurance Court, Kozhikode, seeking a declaration that the establishment in question was number companyered by the Act and that the applicant appellant was number bound to observe the provisions of the Act.
It did number even say that the refrigerator and the grinder were used in companynection with companyking food in the establishment.
It went on to hold that on the basis of the materials on record the finding of the Insurance Court that in the establishment in question there was numberuse of power in the manufacturing process, was quite perverse and hence, it was justified in entertaining the appeal and interfering with the finding.
879 of 1998 B before the High Court.
The Insurance Court further held there was numbersatisfactory evidence that there was a refrigerator and a grinder being used in any manufacturing process being carried on in the establishment.
The High Court observed that exhibit D 2, the inspection report, showed the presence of a grinder and a refrigerator in the establishment and found it sufficient to hold that there was use of power in the manufacturing process.
879 of 1998 on the plea that the High Court order was companypletely silent on the question of maintainability of the appeal, though on behalf of the Review Petitioner appellant it was specifically companytended that the appeal was number maintainable.
The applicant appellant also pleaded that at the time of inspection there were only 8 persons working as employees in the establishment the other 7 persons whose names were mentioned in the inspection report were actually brokers agents errand boys who brought prospective clients to the tourist home from the railway station and bus stand etc.
On behalf of the opposite party reliance was also placed on a written statement submitted by the applicant to the Insurance Inspector at the time of inspection stating the names with designation of the 15 persons working as employees in the establishment.
In appeal, the High Court reversed the Insurance Courts finding in regard to use of power in manufacturing process in the establishment.
According to the applicant appellant, the establishment called M s. Hotel New Nalanda was a tourist home where rooms were let out to people on monthly or daily rent basis.
DW 1 found grinder and fridge in the kitchen.
The establishment never employed more than 8 persons.
On the issue whether power was used in any manufacturing process in the establishment the Insurance Court companysidered the evidences led by the two sides in companysiderable detail and rejected the case of the Corporation giving a number of reasons.
The High Court, accordingly, allowed the appeal of the Regional Director by a brief judgment and order dated November 8, 2001.
But the report was companypletely silent in regard to the activities that were termed as manufacturing process and the purpose for which the two electrical appliances were used.
It, accordingly, allowed the application filed by the appellant by its judgment and order dated April 2, 1998.
The High Court reversed the findings observing as follows Ext.
The report left it companypletely for the companyrt to presume that the companyking of food was the manufacturing process and the two appliances were used in that companynection.
On hearing the parties and on a companysideration of the materials on record, the Insurance Court found and held that as a matter of fact 14 persons were employed in the establishment the fifteenth person named in the inspection report was the Managing Partner and he companyld number be companynted among the employees in the establishment.
The appellant then filed a Review Petition RP No.
The Regional Director, ESI Corporation, the opposite party in the application filed an objection relying upon the findings recorded in the inspection report.
for small companymission and used to hang around there for carrying out errands for the residents staying there on payment of tips by them.
No manufacturing process was carried on there, much less with the aid of power.
It pointed out that in the inspection report it was simply stated that a Kelvinator fridge sic refrigerator and a one litre grinder were used in the manufacturing process.
647 of 2001 in MFA No.
On behalf of the Regional Director ESI Corporation, the Insurance Inspector who had made the inspection of the establishment was examined as DW1 and three documents were produced that were marked as exhibits D1 to D3 exhibit D1 was the written statement submitted by the applicant appellant and exhibit D2 the inspection report.
AFTAB ALAM, J. In an inspection held on May 7, 1991, the officers of the Employees State Insurance Corporation found that there were 15 persons working as employees in the appellant establishment, called M s. Hotel New Nalanda.
The establishment did number companystitute a factory as defined under section 2 12 and it was number companyered by the E.S.I. Act.
Before the Insurance Court, the applicant appellant examined four witnesses PW1 was the applicant appellant himself and PWs 2 4 were persons who were shown in the inspection report as employees in the establishment but who came before the companyrt to depose that they were number employees in the tourist home but were only brokers and errand boys.
They, accordingly, asked the Managing Director of the establishment to companyply with the provisions of the Act provisionally with effect from May 7, 1991, the date of the inspection.
