Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH DAY OF JULY 2013 25TH ASHADHA, 1935 Ins.APP.No. 102 of 2012 () --------------------------- AGAINST THE JUDGMENT IN IC 5/2006 of EMPLOYEES INSURANCE COURT, KOLLAM DATED 22 5.2012 APPELLANT: ---------- B.SURENDRA DAS, AGED 5 YEARS, S/O. BHANU PANICKER PROPRIETOR HOTEL SREE VISAKH, KOVALAM THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENTS: ------------- 1. THE DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, KARUMPELIL AVENUE, POLAYATHODE, KOLLAM.
2. B.PRATHAPACHANDRADAS, REVATHY, PARTUHIKUZHI, AMBALATHARA, POONTHURA P.O. ”
026.
3. ABHILASH, KAMLA SADANAM, NEDIYASALA, ARUMANA P.O. KANYAKUMARI ”
151. R1 BY ADV. SRI.TPM.IBRAHIM KHAN (SR.) R1 BY ADV. SRI.K.M.ABDUL MAJEED RR2 & 3 BY ADV. SRI.SUMAN CHAKRAVARTHY R BY SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN. THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ab THOMAS P.JOSEPH, J.
========================= Insurance Appeal No. 102 of 2012 ============================ Dated this the 16 thday of July, 2013 JUDGMENT
This appeal arises from the judgment dated 22.05.2012 in I.C No. 5 of 2006 of the Employees' Insurance Court, Kollam (for short, "the I.C court").
2. Case is that Inspector of the Employees' State Insurance Corporation (for short, "the Corporation") inspected hotel of the appellant on 24.12.2003 and found 28 persons employed in the hotel and kitchen where power run equipments like refrigerator, LPG, air conditioner etc. were found in use. The appellant refused to provide records relating to the employees in the hotel. The Inspector submitted a report to the Corporation. Based on that a notice was issued to the appellant on 28.02.2005 to show cause why the hotel should not be brought within the purview of the Employees' Insurance Act, 1948 (for short, "the Act") and appropriate orders passed in the matter. To Ins.Appeal No. 102 o”
2. that, the appellant replied on 01.04.2005 claiming that he had employed only 5 persons in the hotel. On account of expected business in the hotel on 25.12.2003 (X'mas day) and since there was a function of the Lions Club scheduled in the hotel on the date of inspection he was constrained to hire services of 23 employees from other hotels. He claimed that his hotel is not liable to be brought within the purview of the Act.
3. The Corporation rejected that explanation and passed order under Sec. 45-A of the Act (Ext.A2). The appellant challenged that order in the IC court in IC No. 5 of 2006 and adduced oral and documentary evidence. The Corporation also adduced oral and documentary evidence. The IC court refused to accept case of the appellant and dismissed I.C. No. 5 of 2006.
4. Learned counsel for the appellant contends that there is no evidence to show that the appellant had employed more than 5 employees. Reliance is placed on Ins.Appeal No. 102 o”
3. Ext.A1, registration certificate issued to the appellant which allowed him to employ a maximum of 6 employees. It is argued that there is no evidence to show that power was actually used at the time the Inspector inspected the premises of the appellant on 24.12.2003. The learned counsel has also invited my attention to the case of the appellant as to the circumstances under which he happened to hire 23 employees to attend the urgent work in the hotel.
5. Learned counsel for the respondents contended that there is no evidence to show that 23 employees were taken by the appellant on hire having regard to the situation as pleaded by the appellant. It is also argued that the appellant has failed to produce relevant records relating to the employees employed under him. In the circumstances no interference is required with the order under challenge, it is argued.
6. Under Sec. 2(12) of the Act, 'factory' means (as per Clause (a)) any premises including the precincts thereof Ins.Appeal No. 102 o”
4. whereon 10 or more persons are employed or were employed for wages on any day of the preceding 12 months. Where power is used and as per clause (b), where 20 or more persons are employed for wages on any day of the preceding 12 months without the aid of power. Hence whether or not power is used, if 20 or more persons are employed on any day preceding the 12 months, it comes within the definition of 'factory'.
4. It is not disputed that on 24.12.2003 when the Inspector of the Corporation inspected the hotel and its precincts, there were 28 employees engaged in work. Though the appellant contended that he had hired services of 23 persons, he was not able to substantiate that by any acceptable evidence. More important is that he has not produced the relevant registers he was expected to maintain concerning the persons employed by him at the time of inspection. Had he employed only 5 persons, he could have produced those records to show that he has Ins.Appeal No. 102 o”
5. employed only 5 persons. It is also relevant to note that though the appellant produced certain documents before the IC court, there also he did not produce the records concerning persons he had actually employed. Therefore, it is clear that the relevant registers relating to the persons employed by him were kept out of notice of the Inspector and the IC court.
5. So far as use of power in the kitchen of the hotel is concerned though that is irrelevant here as stated in paragraph 4 above) evidence of the Inspector as RW1 and his report is to the effect that at the time of inspection on 24.12.2003, refrigerator, LPG and air conditioner unit were in use. Certainly, it was with power. Thus it is shown that the appellant had employed more than 10 persons on any day as stated in sub clause (a) of Sec.2(12) and at any rate more than 20 persons as stated clause (b) of Sec.2(12) of the Act. Hence the hotel of the appellant is a 'factory'.
6. In the above view of the matter, the IC court was Ins.Appeal No. 102 o”
6. correct in dismissing IC No. 5 of 2006 and no interference is called for. The appeal fails. It is dismissed without any order as to costs. Sd/- THOMAS P.JOSEPH, JUDGE //true copy// P.A. To Judge Smv