Patna High Court
Employees State Insurance Corp vs Dilip Kumar Roy & Ors on 29 November, 2013
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.395 of 2008
===========================================================
1. The Employees' State Insurance Corporation, Panchdeep Bhawan, Jawahar Lal Nehru
Marg, Patna-800001, through its Deputy Director.
2. The Dputy Regional Director, Employees' State Insurance Corporation, Panchdeep
Bhawan, Jawahar Lal Nehru Marg, Patna-800001.
3. The Deputy Director (Recovery), Office of the Recovery Officer, Employees' State
Insurance Corporation, Panchdeep Bhawan, Jawahar Lal Nehru Marg, Patna-800001.
.... Opposite Parties .... Appellant/s
Versus
1. Dilip Kumar Roy, S/o Sri Giriwar Narain Roy, partner, Hotel Panchvati, 1 Mahatma
Gandhi Marg Road, P.S.- Adampur, Bhagalpur.
2. Bhrmdeo Roy, S/o Sri Giriwar Narain Roy, Partner Hotel Panchvati, 1 Mahatma
Gandhi Marg Road, P.S.- Adampur, Bhagalpur.
3. Hotel Panchvati, 1 Mahatma Gandhi Marg Road, P.S. - Adampur, Bhagalpur its
partner Dilip Kumar Roy.
.... Petitioners .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : Mr. Anshuman
For the Respondent/s : Mr. Alok Kumar Sinha
===========================================================
CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL JUDGMENT
Date: 29-11-2013
Heard Mr. Anshuman, learned counsel for the
appellants and Mr. Alok Kumar Sinha, learned counsel appearing
for the respondents.
This appeal under section 82(2) of the Employees'
State Insurance Act, 1948 (hereinafter referred to as 'the Act'), is
directed against the judgment and order dated 21.5.2008 passed by
the Presiding Officer, Labour Court -cum- Employees State
Insurance Court, Patna (hereinafter referred to as 'the E.S.I. court').
By the order impugned the E.S.I. court has allowed the application
filed by the respondents herein under section 75(1) (g) of the Act,
and the Rules framed thereunder questioning the coverage -cum-
Patna High Court MA No.395 of 2008 dt.29-11-2013 2
assessment order bearing letter No.P-42-4884-112/Ins./1787 dated
17.5.2005raising a demand of Rs.1,55,424/- by way of contributions under the Act.
The applicant-respondents are stated to be engaged in the hotel business having their business and works running in the name of Hotel Panchwati, 1 Mahatma Gandhi Road in the district of Bhagalpur (hereinafter referred to as 'the Establishment'). Following a survey conducted by the surveyor under the Act on 28.4.2001, the establishment was reported to be engaged in a manufacturing process and having 17 persons on the rolls. A coverage order was issued by the appellant-Corporation accompanied with a demand of Rs.1,55,424/- for the period from 28.4.2001 to 31.10.2004. The establishment being aggrieved by the coverage order questioned the same by filing an appropriate application before the E.S.I. court at Patna giving rise to E.S.I. Case No.02 of 2006 and the same having been allowed, the Employees State Insurance Corporation is in appeal before this Court.
I have heard Mr. Anshuman, learned counsel for the appellants and Mr. Alok Kumar Sinha, learned counsel appearing for the establishment.
Mr. Anshuman while questioning the judgment and order has referred to the registration issued to the establishment under the provisions of Shops and Establishment Act to submit that Patna High Court MA No.395 of 2008 dt.29-11-2013 3 there were not less than 10 persons on the rolls of the establishment. It is stated that the survey report specifically mentions that food was being prepared with the aid of cooking gas and that two refrigerators were maintained by the establishment for catering to the services of its clients or the guests and above all, the surveyor found not less than 17 persons on the rolls of the establishment. The registration certificate was led as Exhibit-A and the survey report is Exhibit-B to the lower court proceedings. Mr. Anshuman, learned counsel for the appellants with reference to the statutory provisions underlying section 1 read with section 2(12) of the Act submits that since admittedly there were not less than 10 persons on the rolls of the establishment which was engaged in a hotel business and was carrying on manufacturing process with the aid of power, there was no legal infirmity in the issuance of the coverage order and that the E.S.I. court completely misreading the evidence on record, has committed a serious infirmity and which is a substantial question of law posed before this Court. Mr. Anshuman with reference to the judgment of the Supreme Court reported in (1993) 4 SCC 363 (G.L Hotels Ltd. Vs. T.C. Sarin) has submitted that an establishment engaged in the business of hotel has been held to be carrying on manufacturing process with the aid of power is a factory.
The argument of Mr. Anshuman has been contested by Mr. Sinha to submit that the number mentioned in the Patna High Court MA No.395 of 2008 dt.29-11-2013 4 Registration Certificate simple means that at a given time the maximum number of employees in the establishment would not exceed 10. He submits that the said number in no manner confirms that on the date of survey there were 10 persons working on the rolls of the establishment. It is argued by Mr. Sinha that the specific case of the establishment before the court below was that there were less than 10 persons working in the establishment and thus it fell beyond the purview of the Act. With reference to the survey report it is stated that although it was reported that manufacturing process was going on in the establishment and that there were 17 persons found working on the rolls of establishment but the appellant- Corporation did not lead a single evidence to support the report. It was contested that despite the attendance register being in possession of the Corporation, neither the number was substantiated with reference to the attendance register nor any evidence was led by the Corporation to confirm the number. It is thus submitted that where there is a dispute as regarding the number of employees on the rolls of the establishment and which was never proved by cogent evidence, the finding of the E.S.I. court on this issue being conclusive finding of fact, no substantial question of law arises in the present appeal requiring intervention. Learned counsel in his support has referred to the following decisions:
(a) 2000 (1) LLJ 451 (Employees' State Insurance Patna High Court MA No.395 of 2008 dt.29-11-2013 5 Corporation and Super Tailors.
(b) 2000 (2) LLJ 231 (Mohan Lal Vs. Regional Director, E.S.I. Corporation, Jaipur). (c) 1995 (2) LLJ 145 (Dainik Deshdoot & Ors. vs. Employees' State Insurance Corporation & Ors).
I have heard learned counsel for the parties and have perused the materials on record. The argument advanced by Mr. Anshuman on the strength of the Supreme Court judgment cannot be contested and definitely any establishment engaged in hotel business is presumed to be carrying on manufacturing activity provided, it has a kitchen and there are evidence supporting such presumption. In the present case though there is a report that there is a kitchen in the establishment, a cooking gas and two refrigerators but the question remains whether this single instance is sufficient for issuing a coverage order, The answer is no and until such time that the statutory provisions under section 1 and section 2(12) of the Act stand satisfied and there is positive evidence supporting number of employees and manufacturing process being carried on with or without aid of power, no coverage order can be issued. The evidence on record does not support the coverage order.
In fact there is a clear contest as regarding the number of persons employed by the establishment. Whereas it is the contention of the establishment that it employed less than 10 persons, this statement is contested on the anvil of the survey report but the survey report Patna High Court MA No.395 of 2008 dt.29-11-2013 6 was never proved with support of the attendance register or the wage register.
A power vested in an authority under a statute more particularly where it is a beneficial legislation, has to be exercised with utmost sincerity, caution and in the manner desired under the statute. A coverage is a statutory exercise and should not reflect a formality completed rather a task taken up should reach its logical conclusion. The manner in which the issue has been addressed by the Corporation before the E.S.I. court, leaves much to be desired.
On the discussions made hereinabove it is more than eloquent that the dispute raised in this appeal is entirely relatable to disputed issue of facts and does not raise any substantial question of law.
For the reasons aforementioned this appeal is dismissed.
Let the lower court records received in connection with E.S.I. Case No.02 of 2006 be returned to the court of Presiding Officer, Labour Court-cum- Employees' State Insurance Court, Patna forthwith.
(Jyoti Saran, J) SKPathak/-