Patna High Court
The Employees State Insurance ... vs Shri Krishna Goshala on 24 August, 2018
Equivalent citations: AIRONLINE 2018 PAT 1151
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.617 of 2012
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1. The Employees State Insurance Corporation, Regional Office, Panchdeep
Bhawan, Jawaharlal Nehru Marg, Patna through its Regional Director.
2. The Deputy Director, Regional O ffice, Employees State Insurance
Corporation, Panchdeep Bhawan, Jawahar Lal Nehru Marg, Patna-800001.
.... .... Appellants.
Versus
Shri Krishna Goshala, Quila Road, Police Station Chowk, Patna City, through
its Secretary Ishwarlal Agarwal, son of Late Jayasi Ram Agarwal.
.... .... Respondent.
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Appearance :
For the Appellants : Mr. Triloki Nath Maitin, Senior Advocate.
Mr. Sudhir Kumar Bijpuria, Advocate.
For the Respondent/s : Mr. Alok Kumar Sinha, Advocate.
Mr. Indrajeet Bhushan, Advocate.
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
Date: 24-08-2018
Heard learned counsel for the appellants and learned counsel
for the respondent on this miscellaneous appeal.
2. This appeal has been preferred under Section 82(2) of
the Employees State Insurance Act-1948 against the judgment dated
28.06.2012passed by the Presiding Officer, Labour Court and Employee‟s State Insurance Court, Patna (hereinafter in short referred to as the „E.S.I. Court‟) in E.S.I. Case No.02 of 2011 by Patna High Court MA No.617 of 2012 dt.24-08-2018
- 2- which the learned Labour Court set aside the interim coverage order passed vide letter no.P/42-11666-101/182 dated 15/17.04.2002 and show cause notice dated 29.04.2003 issued by the Deputy Director, Regional Office, Employee State Insurance Corporation, Patna.
3. The factual matrix of the case is that Shri Krishna Goshala (respondent) filed an application under Section 75 (1) (g) of the Employees State Insurance Act, 1948 (hereinafter in short referred to as the „Act‟) for setting aside the provisional coverage order, passed vide letter no. P/42-11666-101/182 dated 15/17.04.2002 issued by the Deputy Director, Regional Office, Employee State Insurance Corporation, Patna (appellant no.2 herein) by which Shri Krishna Goshala (hereinafter in short referred to as the „Goshala‟) was provisionally covered in purported exercise of power under Section 1 (5) of the Act and to set aside the show cause notice dated 29.04.2003 issued by the opposite party no.2/appellant no.2 and declaring that the Goshala is not covered under any notification issued under the Act.
4. Opposite parties put their appearance in the case and filed a written statement. Both the parties adduced their ocular as well as documentary evidence in buttress of their respective case.
5. After hearing the parties and perusing the record, the learned E.S.I. Court passed the aforesaid judgment as detailed in Patna High Court MA No.617 of 2012 dt.24-08-2018
- 3- earlier paragraph.
6. Being aggrieved and dissatisfied with the impugned judgment the opposite parties have preferred this appeal.
7. It is submitted by learned counsel for the appellants that the learned E.S.I. Court has wrongly shifted the onus to establish that the Goshala has engaged 20 or more employees in his establishment for the purpose of the Act upon the appellants while vide Ext.D respondent has admitted working of 27 employees in its establishment but the learned E.S.I. Court did not consider the aforesaid aspect of the case. The finding of the learned E.S.I. Court that the Goshala never engaged 20 or more employees is not supported with any documentary evidence and the same is perverse. Ext.D candidly indicates that 27 employees were employed on wages by the Goshala on the material time on 10.04.2000, it has not denied the issuance of the said letter on its letter pad rather A.W.1 has deposed that Goshala has never employed 20 or more employees. A.W.1 has deposed that he has prepared the register for the month of April, 2000 and may file the same, if available but has not purposely filed the same. Hence an adverse inference ought to have been drawn against the respondent but the learned E.S.I. Court has wrongly ignored the same and illegally held that the Goshala has never employed 20 or more employees. The learned E.S.I. Court Patna High Court MA No.617 of 2012 dt.24-08-2018
- 4- has wrongly held that the said Goshala cannot be covered in view of the notification dated 20.08.1975 as it is not an establishment rather it is a charitable institution and the predominant purpose of the said Goshala is to maintain and provide service to the infirm cows and calves as per the Hindu religion. Admittedly, the said Goshala is engaged in selling milk to its own members, hence, the economic activity is being carried on in the said establishment and the said establishment will be treated as a shop for all purpose. It has wrongly observed that letter dated 18.04.2000 (Ext.C) is not supported with any evidence either oral or the documentary. So far as the oral evidence is concerned OP.W2 has deposed that the then B.M.E.S.I.C., Patna City who had sent the aforesaid letter dated 18.04.2000 has already died so no oral evidence is possible and regarding the documentary evidence to support Ext. C, there is notice dated 15/17.04.2000 (Ext.10) adumbrating that on the basis of the survey conducted by the local office on 18.04.2000, the establishment has been provisionally covered under Section 1 (5) of the Act with effect from 18.04.2000. It is further submitted that the said Goshala is engaged in selling of milk and its products and is also maintaining dairy farm but purposely the respondent did not file the bye-laws of the Goshala which adumbrate one of its object as to maintain dairy farm or to help in maintaining dairy farm. Patna High Court MA No.617 of 2012 dt.24-08-2018
- 5- Though the application was filed on behalf of the appellants to direct the respondent to produce the bye-laws of the Goshala but no direction or any order was passed by the E.S.I. Court on the said application. There is sufficient evidence to show that the Goshala is engaged in commercial activity, hence it is the establishment for the purpose of the Act and is rightly covered under Section 1(5) of the Act under the notification dated 20.08.1975 but the learned E.S.I. Court has wrongly held otherwise. The learned E.S.I. Court has not correctly appreciated the evidence of A.W.1 regarding selling of the milk to its members on subsidized rate. As a matter of fact, the milk is sold by the respondent Goshala to its members on receiving money but the respondent has not purposely filed any account or audit report which would have established the aforesaid activity of the respondent and due to not filing of the aforesaid documents by the respondent adverse inference ought to have been drawn against it but the learned E.S.I. Court ignored the aforesaid important aspect of the case. As per the case of the respondent the milk is sold to the members of the Goshala on subsidised rate that itself indicates that at least service is being rendered to its members by the Goshala, hence the Goshala is covered under the commercial activities and is a shop but the learned E.S.I. Court has not considered this aspect. It is further submitted that Ratan Kumar Jha, the then Manager of the Patna High Court MA No.617 of 2012 dt.24-08-2018
- 6- respondent has sent a letter to the E.S.I.C. for coverage of the Goshala under the Act on the letter pad of the Goshala which has not been denied by the respondent. The respondent has also not adduced any evidence in rebuttal of the said letter. Hence there is presumption that the respondent is engaged in work of maintaining dairy farm and is also engaged in selling of milk etc. and selling of milk even to the members of the Goshala on subsidised rate involves earning of the profit. Hence, the E.S.I.C. Act is applicable on the Goshala but the learned E.S.I. Court has failed to consider the aforesaid aspect of the case in its right perspective. It is further submitted that Balram Prasad the then Honorary Secretary vide letter dated 08.08.2003 (Ext.A) and 10.09.2003 (Ext.14) has accepted the applicability of the E.S.I.C. Act and offered to comply the provisions of the Act with effect from the current financial year. But the learned E.S.I. Court failed to consider those documents of the respondent itself. It is also submitted that once it is found that the Goshala is engaged in business then it comes under the definition of shop and is rightly covered under the E.S.I.C. Act and there is no necessity to issue a separate notification for the coverage of Goshala. As vide Ext.D respondent has admitted that 27 employees were engaged in the Goshala on wages at the relevant time and has also volunteered for coverage of the Goshala under the Patna High Court MA No.617 of 2012 dt.24-08-2018
- 7- Act it is stopped from challenging the coverage of the Goshala under the Act. The issue is as to whether the Goshala is a shop, whether respondent is stopped to challenge the coverage of Goshala under the Act once it has volunteered for its coverage under the Act and whether there were 27 employees engaged on wages by respondent at the relevant time involve substantial question of law, hence this appeal preferred by the appellants against the aforesaid judgment is quite maintainable. In buttress of its case, learned counsel for the appellants relied upon the various judgments of the Hon‟ble Supreme Court, namely, in the case of Smt. Indira Sohan Lal (dead) by L.Rs. Vs. Union of India reported in AIR 1997 SC 1907, Vishnu Prakash and others Vs. Smt. Sheela Devi reported in AIR 2001 SC 1862, Ramlal and another Vs. Fagha and others reported in 2006 (1) PLJR 4 (SC), Awadh Kishore Das Vs. Ram Gopal Das and others reported in AIR 1979 SC 861, Delhi Jimkhana Club Limited Vs. Employees State Insurance reported in (2015) 1 SCC 242.
8. On the other hand, learned counsel for the respondent advocating the correctness and validity of the impugned judgment has submitted that the learned E.S.I. Court, after correctly appreciating the facts, evidence and materials available on record, has rightly passed the impugned judgment, which is liable to be Patna High Court MA No.617 of 2012 dt.24-08-2018
- 8- upheld. It is further submitted that vide Ext.10 the appellant has covered the Goshala under the E.S.I.C. Act under Section 1 (5) of the Employees‟ State Insurance Act. For coverage of Goshala under Section 1(5) of the E.S.I. Act, there must be a notification issued by the State Government covering the Goshala under the Act but admittedly there is no such notification of the State Government to cover the Goshala under the Act. Hence, the Goshala cannot be covered under Section 1 (5) of the Act. It is further submitted that as per the appellants it has covered the Goshala vide Ext.10 on the admission of the appellants and volunteering coverage of it under the Act but in quite contradiction to the aforesaid the case of the appellants Vide Ext. D Goshala is covered under the Act on the basis of the survey made by the local Manager of the E.S.I. dated 08.04.2000. Moreover, Ext.10 does not indicate the coverage of the Goshala under the E.S.I. Act on the basis of Ext.D i.e. voluntary coverage. It is further submitted that as per the appellants a letter was written by Ratan Kumar Jha volunteering coverage of the Goshala under the Act but the said letter has not been brought on record instead Ext. D has been filed in this regard. But, said letter has not been written by the said Ratan Kumar Jha rather by one Satya Narain Malpuri and the said Ratan Kumar Jha has not been examined by summoning by the appellants by filing any application Patna High Court MA No.617 of 2012 dt.24-08-2018
- 9- before the learned lower court. It is further submitted that moreover the aforesaid letter of Satya Narain Malpuri has not been got exhibited by the appellants rather receiving of the said letter on 12.04.2000 by one K. Lal has simply been exhibited as Ext.D and as the said document has not been exhibited, it cannot be taken into consideration and relied upon. The contents of the said letter volunteering coverage of the Goshala under the Act and informing working of the 27 employees in the Goshala on wages at the relevant time cannot be taken into account. It is further submitted that Ext.10 has been issued on the basis of the survey of the Goshala by local Branch Office of the E.S.I. but no such survey has been made as per the provision of the Act and no Officer of the E.S.I. ever visited the said establishment, grilled the persons working in it, inspected the documents etc. Moreover, no such survey report has been brought on record. More so, the aforesaid letter indicates that only Ratan Kumar Jha was grilled and on the basis of grilling of the said Ratan Kumar Jha the said letter was issued. Moreover the said Ratan Kumar Jha has not been examined by summoning by the appellants in substantiation of the aforesaid case. It is further submitted that as admitted by OP.W-1 that the establishment cannot be covered under the Act only on the basis of volunteering the coverage unless there is notification under the Act for coverage of Patna High Court MA No.617 of 2012 dt.24-08-2018
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the said establishment under the Act but there is no such notification issued under the Act to cover the Goshala under Section 1 (5) of the Act. It is also submitted that merely by writing letter for coverage of the Goshala under the Act by its employees by itself does not cover it under the Act unless it is coverable under the said Act but as there was no notification under Section 1 (5) of the Act to cover the Goshala under the Act on the basis of the aforesaid letter of volunteering coverage, the Goshala cannot be covered under the Act. It is further submitted that the said Goshala is a charitable institution meant for keeping, caring, treating, rearing and maintaining etc. of cows/cattle or for the purpose of reception, protection and treatment of the infirm, aged and deceased cattle and includes pinjrapole where such cattles are kept. The predominant purpose of Goshala is to maintain, rear and treat etc. the cattle. As the Goshala produces about 550 liters of milk including both times per day and there are 800 members of the Goshala, hence, in order to avoid wastage of the milk, the aforesaid milk is provided to its members on subsidised rate without making any profit and moreover the sale proceed of the milk is used in maintaining the cattle and Goshala. The aforesaid activity of according milk to its members on subsidised rate is not predominant purpose of Goshala rather fringe and ancillary purpose. The Goshala is not selling milk Patna High Court MA No.617 of 2012 dt.24-08-2018
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to general public either in retail or wholesale and the appellants have also failed to adduce any evidence in this regard. It is further submitted that even if the Goshala is presumed to be a shop, but there is no evidence that 20 or more persons are engaged in Goshala on wages to cover the Goshala under the shop as per notification no.SO 1019 dated 18.08.1975. The burden to prove that the Goshala has engaged 20 or more persons on wages squarely lies on the shoulder of the appellants but the appellants have utterly and miserably failed to discharge the aforesaid burden. It is further submitted that the Goshala is not covered under the Factory. Moreover the aforesaid coverage letter has not been issued under Section 2 (12) of the Act rather under Section 1 (5) of the Act. It is further submitted that under Section 82(2) of the Act the appeal cannot be filed against the judgment of the learned E.S.I. Court in the High Court unless there is substantial question of law involved in the case. But finding of the learned E.S.I. Court about not covering of the Goshala under the Shop, not engaging of 20 or more employees by it on wages, not coverage of the Goshala under the Act on the basis of alleged volunteering coverage sought by the so called employee of the Goshala is based on the appreciation of the evidence adduced by the parties and any finding given by the learned E.S.I. Court on appreciation of the evidence does not Patna High Court MA No.617 of 2012 dt.24-08-2018
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involve substantial questions of law entitling the appellant to prefer the appeal before the High Court. Hence, the aforesaid appeal is not maintainable and is liable to be dismissed. In buttress of his submissions the learned counsel for the respondent has relied on judgment of the Hon‟ble Supreme Court, namely, Roop Singh (dead) through L.Rs. Vs. Ram Singh (dead) through LRS reported in (2000) 3 SCC 708, judgment of Bombay High Court in Daninik Deshdoot and others Vs. Employees State Insurance Corporation and others reported in 1995 II LLJ 145, judgment of the Karnataka High Court in Employees State Insurance Corporation Vs. Super Tailors reported in 2000-I-LLJ and the judgment of this Court in the case of Motijhari Devi Vs. Bindeshwari Prasad Chaurasia reported in 1987 BBCJ 585 and in Regional Director, Employees State Insurance Corporation and another Vs. M/s Kiran Cinema in M.A. No. 285 of 2009.
9. This appeal has been filed under Section 82(2) of the Employees‟ State Insurance Act, 1948. As per Section 82(2) of the Act no appeal shall lie to the High Court from an order of an Employees‟ Insurance Court unless it involves a substantial question of law. The provisions of the aforesaid Section eloquently indicates that the appeal against the order of the E.S.I. Court cannot be filed as a matter of right rather it can be filed and entertained by the High Patna High Court MA No.617 of 2012 dt.24-08-2018
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Court only if it involves a substantial question of law.
10. To find out as to whether there is any substantial question of law involved in the case, I hereby formulate the following points for consideration:
I. Whether Shri Krishna Goshala, Quila Road, Police Station Chowk, Patna City, Patna is a shop?
II. Whether the said Goshala can be covered under the Employees‟ State Insurance Act on the basis of voluntary coverage allegedly offered by an employee of the Goshala?
III. Whether Sri Krishna Goshala is stopped from challenging its coverage under the aforesaid Act?
IV. Whether the finding of the learned E.S.I. Court to the effect that the Shri Krishna Goshala is not covered under the E.S.I. Act appreciating the facts and evidence adduced by the parties involves substantial question of law?
Point No. I
11. As per the case of the appellants the letter dated Patna High Court MA No.617 of 2012 dt.24-08-2018
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10.04.2000 was written by the the Assistant Manager of the Goshala, namely, Ratan Kumar Jha volunteering coverage of the Goshala under the Act mentioning that there was 27 employees engaged by the Goshala on wages at the relevant time. He has also given the names of the aforesaid employees in the said letter which candidly indicates that the said Goshala is a shop as per notification No.S.O.1019 dated 18.09.1975. The further case of the appellants is that the predominant purpose of the Goshala is selling milk per day to its members on subsidised rate. The aforesaid activity of the Goshala itself indicates that the said Goshala is engaged in selling milk and is fully covered under the definition of the shop. While as per the case respondent only 15-16 persons were engaged by it while as per S.O. 1019 dated 18.09.1975 issued by the Government of Bihar in exercise of powers conferred by Section 1 (5) of the Act 20 or more persons must be employed on any day of proceeding 12 months in an establishment to cover it under shop. The further case of the respondent is that the Goshala is a charitable institution meant for keeping, treating, rearing, maintaining cattle/cow or for the purpose of reception, protection and treatment of the infirm, aged and deceased cattle and includes pinjrapole where such cattle are kept. The said Goshala is not engaged in sale and purchase of the cow etc. Even some milky cows are donated to the Goshala by the Patna High Court MA No.617 of 2012 dt.24-08-2018
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people and from the said milky cows about 550 liters of milk including both times per day is extracted. There are 800 members of the Goshala. In order to avoid wastage of the milk, the Goshala is under compulsion to accord milk to its members on subsidized rate without making any profit and moreover the sale proceeds of the milk is used in maintenance of cattle and Goshala. Goshala does not produce or manufacture or sale any milk products. The aforesaid activity of according milk to its members on subsidised rate is not predominant purpose of the Goshala rather fringe and ancillary purpose. It is not selling milk to general public either in retail or wholesale. The further case of the respondent is that even if the Goshala is presumed to be a shop then for coverage of the Goshala under the purview of the shop 20 or more persons are required to be engaged on wages as per the notification S.O. 1019 dated 18.08.1975.
12. For better appreciation, the relevant part of S.O.1019 dated 18.09.1975 is reproduced here-in-below:
S.O., 1019, dated the 18th August, 1975, Published in Bihar Gazette, Part II, dated 20th August, 1975 at page 1005:-
In exercise of the powers conferred by Sub- section (5) of Section 1 of the Employees‟ State Insurance Act, 1948 (34 of 1948), the Governor of Bihar having already given six months notice as required thereunder (vide notification no. S.O. 129, dated the 30th Patna High Court MA No.617 of 2012 dt.24-08-2018
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January 1975), hereby appoints the midnight of Saturday, the 26th /27th July, 1975 as the date on which all provisions of the said Act shall extend to the classes of establishments and in areas as specified in the Schedule I and II respectively annexed hereto.
SCHEDULE-1 Description of Establishments.
1. Any premises including the precincts thereof whereon ten or more persons but in any case less than twenty persons, are employed or were employed for wages on any day of the proceeding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, but excluding a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a railway running shed or an establishment which is exclusively engaged in any of the manufacturing processes specified in clause (12) of Section 2 of the Employees‟ State Insurance Act, 1948 (34 of 1948).
2. Any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but excluding a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a railway running shed or an establishment which is exclusively engaged in any of the manufacturing processes specified in clause (12) of Section 2 of the Employees‟ State Insurance, 1948 (34 of 1948).
The following establishments wherein twenty or more persons are Patna High Court MA No.617 of 2012 dt.24-08-2018
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employed for wages on any day of the preceding twelve months, namely,:-
(i) Hotels,
(ii) Restaurants,
(iii) Shops,
(iv) Road Motor Transport establishments,
(v) Cinema including preview theatres,
(vi) News paper establishments as defined in
section 2 (d) of the Working Journalists
(Conditions of Service) and Miscellaneous
Provisions Act 1955 (45 of 1955).
13. The aforesaid notification candidly indicates that to cover any establishments under the shop there must be 20 or more employees engaged by it on wages on any day of the preceding 12 months. Appellant has laid much emphasis on the aforesaid letter written by the alleged employee of the respondent in substantiation of its case. But, from perusal of the aforesaid letter it appears that the said letter has not been written by the said Ratan Kumar Jha rather by one Satya Narain Malpuri. The alleged letter written by the said Ratan Kumar Jha has not been brought on record by the appellants and moreover the said Ratan Kumar Jha has not been examined by summoning by the appellants by filing any petition in the learned E.S.I. Court in substantiation of its case. Moreover, from perusal of the aforesaid document, it appears that the aforesaid document was received by some K. Lal on 12.04.2000 and only receiving of the aforesaid document by the aforesaid person has Patna High Court MA No.617 of 2012 dt.24-08-2018
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been marked as Ext. D. The aforesaid letter has not been got exhibited by the appellants. Hence mere exhibiting the receiving of the aforesaid letter, by no stretch of imagination, amounts to exhibiting of the entire document and without exhibiting the aforesaid document (letter), the contents of said letter cannot be considered by the Court. The burden to prove the aforesaid aspect of the case squarely lies on the shoulder of the appellants as the appellants had asserted the said fact. The respondent is not supposed to give negative evidence to disprove the aforesaid case taken by the appellants. The appellants appear to have utterly and miserably failed to discharge the aforesaid burden by filing alleged letter of Ratan Kumar Jha and by examining him by summoning in the learned lower court and by summoning the attendance register and wages register of Goshala and by making inspection of Goshala.
14. As per the case of the respondent, the Goshala is a charitable institution meant for keeping, treating, rearing, maintaining cattle/cow or for the purpose of reception, protection and treatment of the infirm, aged and deceased cattle and includes pinjrapole where such cattle are kept. The said Goshala is not engaged in sale and purchase of the cow etc. Even some milky cows are donated to the Goshala by the people and from the said milky cows about 550 liters of milk including both times per day is Patna High Court MA No.617 of 2012 dt.24-08-2018
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extracted. There are 800 members of the Goshala. In order to avoid wastage of the milk, the Goshala is under compulsion to accord milk to its members on subsidized rate without making any profit and moreover the sale proceeds of the milk is used in maintenance of cattle and Goshala. It does not produce or manufacture or sale any milk products. The aforesaid activity of according milk to its members on subsidised rate is not predominant purpose of the Goshala rather fringe and ancillary purpose. It is not selling milk to general public either in retail or wholesale. The further case of the respondent is that even if the Goshala is presumed to be a shop then for coverage of the Goshala under the purview of the shop 20 or more persons are required to be engaged on wages as per the notification S.O. 1019 dated 18.08.1975. On the other hand, appellants have taken the case that the pre-dominant purpose of Goshala is selling milk and admittedly the said Goshala is vending around 550 liters of milk per day to its members on subsidized rate. The aforesaid activity of the Goshala itself indicates that the said Goshala is engaged in selling milk and is fully covered under the definition of the shop.
15. It is not disputed that even milky cows are donated to the Goshala by the public. It is also not disputed that there are several members of the Goshala. As the milk is given by the cows Patna High Court MA No.617 of 2012 dt.24-08-2018
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kept and maintained in the Goshala it becomes compulsion for the Goshala to dispose it off to avoid its wastage and in order to dispose of the aforesaid milk if the Goshala accords the aforesaid milk to its members even on subsidized rate it does not amount vending of the milk by the Goshala. The appellants have not brought on record any iota of evidence to indicate that the aforesaid milk is sold by the Goshala to the public at large. It has also not brought on record any evidence to the effect that the Goshala is also engaged in producing and manufacturing milk products and vending the same to the public. In view of the aforesaid facts, providing milk by Goshala to its members on subsidized rate does not appear to be predominant activity of Goshala rather a fringe and ancillary activity carried out by it in order to avoid wastage of the milk.
16. Even if the Goshala is covered under the purview of the shop then as per the aforesaid notification there must be 20 or more persons engaged by it on wages to cover it under the purview of the shop. But the appellants have utterly and miserably failed to substantiate the working of 20 or more persons on wages in the said Goshala at the relevant time by summoning attendance register and wages register of the Goshala and by making inspection of Goshala. Hence, for want of aforesaid evidence, the said Goshala, even in case of according milk to its members on subsidised rate by it, is not Patna High Court MA No.617 of 2012 dt.24-08-2018
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covered under the purview of the shop. In the aforesaid facts and circumstances of the case, I find that Shri Kirshna Goshala is not a shop.
Point No. II & III
17. As these two points are co-related, hence, they are taken together for consideration.
18. From perusal of the coverage order dated 15/17.04.2002 issued by the Employees‟ State Insurance Corporation (hereinafter in short referred to as the „ESIC‟) marked as Ext. 10, it appears that the aforesaid coverage of Goshala has been made under Section 1 (5) of the said Act. But, for coverage of any establishment under the said Section, there must be notification issued by the State Government in the official gazette but no such notification has been brought on record. Moreover, O.P.W.1- Laliteshwar Prasad Rai, who happens to be Branch Manager of the ESIC, Patna Branch, Patna has stated in para-11 of his cross- examination that there is no such notification under the Act to cover the Goshala under the said Act. As there is no such notification under Section 1 (5) of the Act to cover the aforesaid Goshala under the said Act it cannot be covered by the said Act.
19. Though appellants have laid much stress on the alleged letter of Ratan Kumar Jha, Assistant Manager for volunteer Patna High Court MA No.617 of 2012 dt.24-08-2018
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coverage of the Goshala under the Act but, as discussed by me earlier, neither any such letter of Ratan Kumar Jha has been brought on record nor the said Ratan Kumar Jha has been summoned by the appellants in substantiation of their aforesaid case instead they have filed Ext. D, which is said to be written by one Satya Narain Malpuri. But the said letter has not been got exhibited by the appellants rather its receiving has been exhibited as Ext. D. The appellants have also invited the attention of this Court towards letter dated 08.08.2003 written by one Balram Prasad, Secretary of Shri Krishna Goshala, Patna City, Patna to the Regional Director, ESIC by which the aforesaid Secretary has offered to register the Goshala under the Act from the current financial year. But from perusal of Ext.14 which is the letter dated 10.09.2003 executed by the said Secretary of the Goshala to the Regional Director, ESIC, it appears that by the said letter the Secretary has agreed to comply the provision of the Act, if the Goshala is covered under the Act. The aforesaid letter of the said Balram Prasad eloquently indicates that Goshala has volunteered its coverage under the Act provided it is covered under the said Act. But, as discussed by me hereinabove, the said Goshala is not a shop engaging 20 or more persons on wages and as per the aforesaid notification it is not covered under the said Act. Moreover, mere volunteering the coverage of Goshala Patna High Court MA No.617 of 2012 dt.24-08-2018
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under the Act is not sufficient to cover it under the said Act until and unless it comes under the purview of the provisions of the Act. More so, O.P.W.1, who happens to be witness of the appellants, has stated in para-12 of his cross-examination that if any establishment does not fulfill the criteria for its coverage under the Act it cannot be covered under the said Act merely on volunteering by its employee or employer.
20. From perusal of Ext.10, it appears that the Goshala was covered under Section 1 (5) of the Act not on the basis of volunteering its coverage by the said Ratan Kumar Jha or any authority of the Goshala rather on the basis of the inspection report given by the local Manager dated 18.04.2000. The aforesaid coverage letter also stands in quite contradiction to the case of the appellants. As as per the case of the appellants the Goshala was covered under the Act on the basis of the offer made by its employee while as per the aforesaid coverage letter it was covered on the basis of the inspection report submitted by the local Manager of the ESIC.
21. Appellants have not brought on record any inspection report dated 18.04.2000 rather letter written by local Branch Manager, ESIC marked as Ext. C. From the perusal of aforesaid document, it appears that it is not the inspection report of the Patna High Court MA No.617 of 2012 dt.24-08-2018
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Goshala rather the letter written by the aforesaid incumbent to the Regional Director of ESIC, Patna. Moreover, the aforesaid letter indicates that it was written on the basis of mere grilling said Ratan Kumar Jha who divulged that apart from taking care of the cows of the said Goshala it does the business of milk and fodder of the cows is thrashed by the machine which is operated by two electric motors of 3 HP and 5 HP. The aforesaid document further indicates that the said letter was not written by making any physical inspection of the Goshala under Section 45 of the Act rather on mere grilling the aforesaid Ratan Kumar Jha. Hence, in view of the aforesaid facts and circumstances, the said letter, by no stretch of imagination, can be considered as the inspection report. Thus, there is no inspection report on the basis of the inspection made by the authority of the ESIC which is said to be the basis of the aforesaid coverage letter (Ext.10) and the said coverage letter has been issued by the appellants without any basis and it has no leg to stand upon.
22. As per the appellants, Goshala is covered under the Act on the basis of volunteer coverage letter written by Sri Ratan Kumar Jha but neither the aforesaid letter has been brought on record nor the said Ratan Kumar Jha was summoned by the appellants in the learned E.S.I. Court instead letter dated 10.04.2000 written by the Sataya Narain Malpuri has been brought on record by the appellants Patna High Court MA No.617 of 2012 dt.24-08-2018
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and moreover the said letter has not been got exhibited by the appellants. Hence, in view of the aforesaid facts, I find that the said Goshala has not offered its coverage on the basis of the alleged letter written by Ratan Kumar Jha. Moreso vide letter dated 10.02.2003, marked as Ext.14, Incharge Secretary of the Goshala, namely, Balram Prasad has written a letter to the ESIC venting his agreement to follow the provisions of the Act provided the aforesaid Goshala is covered under the provisions of the Act. As discussed by me hereinabove, the aforesaid Goshala is not covered under the Act for want of any notification under Section 1 (5) of the Act to cover it under the said Act and not coming of the aforesaid Goshala under the purview of the shop for want of enegagement of 20 or more employees on wages at the relevant time as per the aforesaid notification no.1090 dated 18.08.1975. Moreso, admittedly, any establishment cannot be covered under the Act merely on volunteering by the employer or employee of the said establishment if it does not fulfill the criteria for its coverage under the said Act.
23. In view of the aforesaid facts and circumstances of the case, firstly, there is no such offer by the Ratan Kumar Jha, an employee of the Goshala to cover the Goshala under the Act and secondly, even if there is such offer to cover the said Goshala under the Act, the said Goshala cannot be covered under the Act for want Patna High Court MA No.617 of 2012 dt.24-08-2018
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of fulfillment of the criteria required to cover it under the said Act. Hence, no question of estoppel of the respondent from challenging the coverage of the Goshala under the Act arises.
Point No. IV
24. From perusal of the impugned judgment of the learned E.S.I. Court, it appears that the aforesaid judgment is based on appreciation of facts of the case and evidence by the learned E.S.I. court adduced by both the parties to the case. It is settled principle of law that finding given by the Court on the basis of appreciation of the facts and evidence on record does not involve substantial question of law. This Court in (Most.) Motijhari Devi Vs. Bindeshwari Prasad Chaurasia reported in 1987 BBCJ 585 (SB) has held that an appeal under Section 30(1) proviso of Workmen‟s Compensation Act would lie where substantial question of law is involved. No appeal would lie from pure question of fact. Provision of Section 30(1) proviso of Workmen‟s Compensation Act does not empower the appellate Court to reappraise a pure finding of fact. The Hon‟ble Apex Court in Roop Singh (dead) through LRs. Vs. Ram Singh (dead) through LRs reported in (2000) 3 Supreme Court Cases 708 has been pleased to rule that under Section 100 CPC the jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial Patna High Court MA No.617 of 2012 dt.24-08-2018
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question of law and it does not confer any jurisdiction on the High Court to interfere with pure question of fact while exercising its jurisdiction under Section 100 CPC. Findings recorded by the two Courts below were based on proper appreciation of evidence and the material on record and there was no perversity, illegality or irregularity in those findings. Hence the High Court ought not to have interfered with findings of fact recorded by both the Courts below. This Court in Regional Director, Employees' State Insurance Corporation and another Vs. M/s Kiran Cinema vide judgment dated 27.03.2012 passed in M.A. No.285 of 2009 has held that the order under appeal has been passed by the Insurance Court on appraisal of the evidence and the documents brought on the record. The question as to whether how many persons were working is purely a question of fact and that could not be a substantial question of law. Further this Court in Employees' State Insurance Corporation and others Vs. Dilip Kumar Roy and another in Misc. Appeal No.395 of 2008 vide judgment dated 29.11.2013 has held that in fact there is a clear contest 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 was never proved with support of the attendance Patna High Court MA No.617 of 2012 dt.24-08-2018
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register or the wage register. 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. Karnataka High Court in the case of Employees' State Insurance Corporation Vs. Super Tailor reported in 2000-I-LLJ 451 has held that number of persons working in the factory and use or power etc. being purely question of facts and it does not involve any substantial question of law. Therefore, viewed from any angle, appeal has no merit and is not maintainable. Full Bench of the Allahabad High Court in the case of Stanpac Industries Pvt. Ltd. Vs. S.A. Patil, Presiding Officer and another, FLR 1984 (48) 368 has held that the High Court under Section 82 of the ESI Act as appellate Court cannot interfere with the findings of fact recorded by the Employees‟ Insurance Corporation. The High Court of Bombay in Dainik Deshdoot & Ors. And Employees' State Insurance Corporation & Ors. reported in 1995-II-LLJ 145 has held that the provisions of Section 103 of the CPC or any provision analogous thereto were not available to the learned Single Judge while considering an appeal under Section 82 (2) of the Act which very clearly provided that an appeal would lie from the order of the ESI Court only when "it involves a substantial question of law" as Section 82 (2) categorically provides that no appeal shall lie from an order of the Patna High Court MA No.617 of 2012 dt.24-08-2018
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ESI Court "save as expressly provided in this section".
25. Learned counsel for the appellants has placed reliance on the case of Delhi Gymkhana Club Limited Vs. Employees' State Insurance Corporation reported in (2015) 1 Supreme Court Cases 142 in buttress of their case but the said case law is not applicable in the case under hand as in the aforesaid case the Hon‟ble Apex Court has held that the Delhi Gymkhana is a factory as more than 20 persons were employed in the preparation of the foodstuffs and serving in the catering division of the said club to provide catering services to its members and their guests on payment. Preparation of food items in the kitchen of the said Club amounts to manufacturing process and all the persons employed for purpose of supply and distribution of food prepared in the kitchen and for doing other incidental duties in connection with the kitchen and catering are to be regarded as employees of "factory" under Section 2 (12) of ESI Act. But, in the case under hand no such kitchen is run by the Goshala to provide the foodstuffs and catering services to its members and their guests rather the milk extracted from the cows of the Goshala is provided to its members on subsidised rate under compulsion in order to avoid wastage of the milk and the sale proceeds of the milk is used in maintenance of the cattle and Goshala. Moreover, in the case under hand as found by Patna High Court MA No.617 of 2012 dt.24-08-2018
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me hereinabove, the appellants have utterly and miserably failed to substantiate the engagement of 20 or more persons on wages in the Goshala at the relevant time and more so the said Goshala has been covered under Section 1 (5) of the ESI Act and not under Section 2 (12) of the said Act. Another case law cited by learned counsel for the appellants, namely, Bangalore Turf Club Limited Vs. Regional Director, Employees State Insurance Corporation and other analogous cases reported in AIR 2015 SC 221 is also not applicable in the case under hand as in the aforesaid case the Hon‟ble Apex Court has been pleased to rule that the literal rule of construction may be the primary approach to be utilized for interpretation of a statute and that word in the statute should in the first instance be given their meaning as understood in common parlance. However, the ESI Act is a beneficial legislation. It seeks to provide social security to those workers as it encompasses. Thus, the traditional approach can be substituted. A dictionary meaning may be attached to words in a statute in preference over the traditional meaning. However, for this purpose as well, the scheme, context and objects of the legislature must be taken into consideration. Taking into due consideration the nature and purpose of the ESI Act, the dictionary meaning as understood in the said Act, would be preferable to achieve the objects of the legislature. In the absence of Patna High Court MA No.617 of 2012 dt.24-08-2018
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any definition as provided in the ESI Act, the Court may look into its dictionary meaning for guidance or as an aid of construction of term „establishment‟. Dictionaries do define the meaning of a word as understood in common parlance. But in the case under hand Goshala is purported to be covered under Section 1 (5) of the Act as shop. As per S.O.1019 dated 18.09.1975 in a shop 20 or more persons must be employed for wages on any day of preceding 12 months. Hence, there appears to be no ambiguity in the word shop. Moreover, the said Goshala does not come under the purview of the shop as neither 20 persons nor more than 20 persons are engaged on wages by the said Goshala at the relevant time. Another case law, namely, Major Singh Vs. Ratan Singh (dead) by L.Rs. and others reported in AIR 1997 SC 1906 cited by the appellants in buttress of their case also does not appears to be applicable in the case under hand because in the aforesaid case the Hon‟ble Apex Court has been pleased to rule that rejection of evidence by the lower court on flimsy grounds involves a substantial question of law and the High Court is right in interfering in the matter in second appeal preferred under Section 100 CPC. But, in the case under hand as discussed by me hereinabove the learned ESI Court has passed the impugned judgment after considering, discussing and correctly appreciating the facts and materials available on record Patna High Court MA No.617 of 2012 dt.24-08-2018
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and evidence adduced by both the parties in buttress of their respective cases and not on the flimsy grounds. The aforesaid finding of the learned E.S.I. Court appreciating the evidence adduced by the parties does not involve the substantial question of law and as per Section 82 (2) of the ESIC Act the appeal filed by the appellants against the impugned judgment of the E.S.I. Court is not maintainable. Another ruling cited by learned counsel for the appellants, namely, Ramlal and another Vs. Phagua and others reported in 2006 (1) PLJR 4 (SC) in which the Hon‟ble Apex Court has been pleased to rule that under Section 100 CPC the High Court can interfere with the concurrent findings of both Courts when both the lower courts have concurrently erred in not appreciating the oral and documentary evidence properly. The High Court is at liberty to re-appreciate the evidence and record its own conclusion for reversing the order passed by the lower court is also not applicable in the case under hand. As in the aforesaid case both the Courts below did not appreciate the oral and documentary evidence adduced by the parties properly but in the case under hand as discussed by me hereinabove, the learned E.S.I. Court has passed the impugned judgment after considering and discussing elaborately and correctly appreciating the ocular and documentary evidence adduced by both the parties in buttress of their case. Another case Patna High Court MA No.617 of 2012 dt.24-08-2018
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law, namely, Avadh Kishore Dass Vs. Ram Gopal and others reported in AIR 1979 SC 861 cited by the appellants in buttress of their argument also does not appear to be applicable in the case under hand. As in the aforesaid case the Hon‟ble Apex Court has been pleased to held that it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppels and shift the burden of proof on to the person making them or his representative- in-interest. Unless shown or explained to be wrong they are an efficacious proof of the facts admitted. But in the case under hand, letter dated 10.04.2000, Ext.D said to be written by Ratan Kumar Jha, the then Assistant Manager of the Goshala volunteering coverage of the Goshala under the ESI Act does no amount to admission of the respondent and it is not stopped from challenging the coverage of the Goshala under the Act because the aforesaid letter has not been written by the aforesaid Ratan Kumar Jha rather by Satya Narain Malpuri and moreover the said Ratan Kumar Jha has not been examined by the appellants by summoning in the learned Court below and more so vide Ext.10, which is a coverage letter issued by the appellants, Goshala has been covered under Section 1 (5) of the Act not on the basis of the alleged volunteer coverage pleaded by said Ratan Kumar Jha rather on the basis of the Patna High Court MA No.617 of 2012 dt.24-08-2018
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alleged survey report dated 18.04.2000 regarding said Goshala but the said survey report has not been brought on record and moreover said letter dated 10.04.2000 has not been got exhibited by the appellants. Likewise case law cited by the appellants, namely, Vishnu Prakash and another Vs. Smt. Sheela Devi and others reported in AIR 2001 SC 1862 in which the Hon‟ble Apex Court has been pleased to rule that where there is concurrent finding by trial and first appellate Court that plaintiff was not legally wedded wife of owner of suit properties reached by ignoring admissions made by parties in earlier proceedings and judgments passed upholding plaintiff‟s status as legally wedded wife of owner of suit properties, the High Court was justified in holding that the plaintiff was legally wedded wife of the owner of the suit property and decreeing the suit under Section 100 CPC, is not applicable in the case under hand as in the case under hand, as discussed by me hereinabove there is no admission of any sort of the respondent in the case under hand or in any earlier proceedings, hence there is no question of ignoring any admission made by the respondent in the case by the said E.S.I. Court.
26. In view of the facts and circumstances of the case and the discussions made by me hereinabove, I find and hold that the finding given by the learned ESI Court appreciating the facts and Patna High Court MA No.617 of 2012 dt.24-08-2018
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evidence on record does not involve any substantial question of law and hence the appeal filed by the appellants under Section 82 (2) ESIC Act is not maintainable.
27. Accordingly, this appeal is dismissed as not maintainable.
(Prakash Chandra Jaiswal, J.) Trivedi/-
AFR/NAFR AFR CAV DATE 06.08.2018 Uploading Date 25.08.2018 Transmission Date 25.08.2018