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1. This appeal is filed by the Employees State Insurance (ESI) department impugning the judgment of the ESI court dated 4.3.2011. By the impugned judgment the ESI court has allowed the petition under Section 75 of the Employees State Insurance Act, 1948 (ESI Act) filed before the ESI court by the respondent herein. By means of the petition under Section 75 of the Act, the respondent herein had sought the quashing of the order dated 31.12.2007 passed by the appellant under Section 45-A of the ESI Act determining the contribution amount payable by the respondent herein for the period from 23.8.2004 to 28.2.2007 at Rs. 2,05,643/-.

6. So far as the first aspect is concerned, I find that the ESI court has grossly mis-directed itself, to say the least, in ignoring the ratio of the judgment of the Supreme Court in the case of Christian Medical College (supra). ESI court has surprisingly not referred to the relevant paras of the Supreme Court judgment in the case of Christian Medical College (supra) which I have reproduced above and which show that it is not necessary that dominant nature test be applied and it is enough if a department in a hospital is covered in the definition of a factory as per Section 2(12) of the ESI Act. It was not open to the ESI court to simply gloss over the judgment of the Supreme Court in the case of Christian Medical College (supra) without referring to the specific paras containing the ratio of the same. Therefore, the argument urged on behalf of the respondent before the appellant as also before the ESI court that since the respondent-hospital as a whole could not be covered under the ESI Act, and therefore, its maintenance and kitchen departments could also not be covered, was a wrong argument and ought not to have been accepted by the ESI court. This finding of the ESI court is set aside on account of the same being against the direct ratio of the judgment of the Supreme Court in the case of Christian Medical College (supra). In order to appreciate the perversity in the order of the ESI court, I reproduce the only relevant paragraph of the impugned judgment dated 4.3.2011, passed by the ESI court being para 8, which reads as under:-

8. So far as the third aspect requiring determination it is noted, the ESI court has remanded the matter back for decision to the concerned authorities of the appellant, although, the ESI court itself could have, nay ought to have, determined the issue of liability and other aspects as per Section 75 of the ESI Act. The ESI court by the impugned judgment has thus committed a clear cut illegality in remanding the matter, more so because, though the respondent even before the ESI court could have but yet it did not deliberately file any records of employment of employees of the maintenance and kitchen departments. If surely records could have been and had been filed, the merits of the matter as to the liability of the respondent could have been decided by the ESI court. I may note that the effect of unnecessarily remanding the matters before the competent authority of the appellant results illegally prolonging the demand process in a fresh round of litigation, and which must be eschewed because ESI court itself could have and ought to have decided even the merits of the matter in view of Section 75 of the ESI Act.

11. So far as the argument urged on behalf of the respondent that it is only the respondent which led evidence, and which should accordingly be believed is concerned, this argument is clearly fallacious because even if evidence is led only by the respondent, surely the legal position is that ESI court surely can, as per that evidence which comes on record, arrive at on the basis of such evidence, appropriate findings and conclusions. The record of the ESI court shows that the relevant notices of the appellant department were filed and proved by the respondent itself. Replies of the respondent were also filed and proved by the respondent. I have already referred to theses notices and replies while dealing with the first and fifth arguments urged on behalf of the respondent above. Therefore, it is not the law that merely because evidence was given by one party, that evidence automatically should result in accepting the case as set up by that party, inasmuch as, the law is that whatever evidence is on record has to be seen, and thereafter, necessary findings have to be given. Accordingly, I reject the argument that merely because the respondent has led evidence, and the appellant has not led evidence, the petition filed by the respondent under Section 75 of the ESI Act has been rightly allowed by the ESI court. I would also at this stage like to note the fact that after all what was the other evidence which the appellant would have led. In this case, the evidence which would have been led has necessarily to be the record of respondent with respect to the number of employees and their salaries etc, and who were working in the kitchen and maintenance departments of the respondent- hospital. It has already been noted that in spite of repeated notices no record was filed by the respondent with respect to the employees and their salaries and other aspects of employment. Accordingly, the appellant could have led no factual evidence, and evidence which is led is always factual evidence inasmuch as, on a legal argument no factual evidence is required and a legal argument is put forth only by means of an argument and not by leading of evidence. This argument urged on behalf of the respondent that the case of respondent was rightly allowed by the ESI court as only respondent led evidence is misconceived and is accordingly rejected.