V.S. Kokje, J.
1. This is an appeal under Section 18 of the Rajasthan High Court Ordinance against the Judgment dated 18th Sept. 1991 of the learned Single Judge in an appeal under Section 82 of the Employees State Insurance Act, 1948. The respondent Company moved an application under Section 75 of the Employees' State Insurancce Act, 1948 in the Employees' Insurance Court, Pali complaining that the ESI Corporation was illegally demanding contributions under the Act on an amount said to have been paid as salary to the employees. According to the respondent Company the amount was not due as neither the concerned persons were employees within the definition of the Act nor any salary, was being paid to them. In reply to the application it was stated on behalf of the ESI Corporation that their Inspector on examining the reocrd of the emloyer had found that certain labourers were employed in loading and unloading the goods from the vehicles. It was also contended that loading and unloading was a part of the business of the employer who are engaged in the transport business. It was further contended that persons engaged in loading and unloaiding the trucks fell within the definition of employee under Section 2(9) of the Act. The E.I Court found a point of determination as to whether contribution was payable under the Act on the sum of Rs. 8062 said to have been paid between July 1979 to March, 1984 by the owners of the goods through the respondents to the laboures. Ultimately the E.I. Court vide its order dated 28.7.90 held that loading and unloading of trucks was a part of the business of the respondents and, therefore, contribution was also payable in respect of labourers engaged in that work. Against this decision, and appeal under Section 82 of the Act was filed before this Court which was allowed by the learned Single Judge and it was held that the contribution in respect of the persons engaged in loading and unloading the trucks was not payable. The ESI Corporation has now come up in appeal against that Judgment before us..
2. The learned Single Judge after surveying the case law on the point as to whether casual labourer fell within the definition of employee within the meaning of Section 2(9) of the Act has held that the persons engaged in loading and unloading of the trucks by the respondents did not fall within the definition of 'employee' under the Act. The learned Counsel for the appellant submits that the appeal Undr Section 82 of the Act could only lie on a substantial quesiton of law and the learned Single Judge has entered into the facts of the case and has upset the finding of facts reached by E.I. Court. He submitted that there is no foundation in evidence for the conclusion drawn by the learned Single judge about the nature of the work in the respondent's undertaking and nature of work and the conditions of service of the persons engaged for loading and unloading the goods. It is also submitted that the learned Single Judge has assumed everything in favour of the employer and has not based his conclusions on the record of the case before the E.I. Court. The learned Counsel for the respondents supported the decision of the learned Single Judge.
3. Before the E.I. Court the Manager of the respondent was examined. He stated that the respondent engages temporary labour for loading and unloading goods. The payment of the charges of such labour is made by the owners of the goods and truck drivers, but that is done through the respondent company. He also stated that the temporary labour does not work under the control or supervision of the respondent. No time or working hours are fixed in respect of such temporary labour. They are called whenever necessary. The persons who are engaged are not the same but go on changing and no record of their engagement is maintained. In cross-examination of this witness it has come that usually one truck arrives and one departs from the respondent's office at Pali and one or two trucks come in a week. He further stated that who so ever is available is called for loading and unloading and there is no fixed set of labourers. He also deposed that the Manager and two other staff members is the only staff, the respondent maintains at its Pali Branch. He also deposed that unloading charges are debited to the account of the respondent and ultimately these charges are recovered from the owners of the goods. The Statement of Yadram Gupta, the ESI Inspector has also been recorded by the E.I. Court. He deposed that on carrying out inspection of the Pali Branch of the respondent, he found from the account books that the responednt had for the years 1983-84, 84-85, 85-86 paid labour charges, house rent allowance, over-time allowance etc. totalling to 17752.50 paisa on which contribution was not paid. In his cross-examination he has specified that under the head of labour charges loadings and unloading charges are included. In the notice dated 24th May, 1987 an amount of Rs. 7264f/- for the period from July, 1979 to March 1986 has been demanded on account of labour charges and Rs. 798/- as interest. The total amount demanded is 8062/-. A revenue recovery certlticate was sent for this amount of Rs. 8062/-. The E.I. Court also in its Judgment examined the case from the angle as to whether the amount of Rs. 8062/- could be treated as wages to employees and whther contribution could be deducted from it. There is nothing on record to show as to who were bge workers, how they were engaged on what remuneration. It is purely a case which has been built on an inspection report wherein the Inspector has inferred from the entries in the account books of payment of labour charges that those labour charges are salaries paid to the employees. There is no further evidence on record as to the nature of the work of the labour enganged for loading and unloading the trucks or their contitions of engagement.
4. In our opinion, it cannot be decided by an inference from, entries in the account books alone that certain employees were engaged and paid salaries and contribution was due in their respect. Before the ESI Corporation demanded contribution in respect of certain employees it has to come to a definite conclusion that such workers fell within the definition of employees. There is no foundation for the inference drawn by the ESI corporation that certain persons were engaged as employee and were paid salaries or wages. The material on record shows that an amount of Rs. 7264/- was claimed from the owners of the goods by the respondent as labour charges for the period from July 1979 to March 1986. Thus, roughly the amount comes to Rs. 1000/- per year. This gives an idea about the business of the respondent. It cannot be inferred from this that certain labourers were engaged on a total salary of Rs. 1000/-pcr year. It lends support to the explanation given by the respondent that casual labourers were engaged for the purpose of loading and unloading the trucks and whenever it was necessary such labourers were called. This is exactly what the learned Single Judge has inferred, though he has dealt with the question generally. When the E.I. Court had totally misdirected itself into framing a question about whether contribution was payable on a sum of Rs. 8062/-, this Court had Jurisdiction to intertere under Section 82 of the Act. The real question was whether any persons were employed as employees for the purpose of loading and unloading by the respondent and it so, contribution was payable in respect of such employees. The learned Single Judge has rightly held that in the facts and circumstances of the case could not be said that the person engaged in loading and unloading fell within the definition of 'employee' under Section 2(9) of the ESI Act. This appeal has therefore, no force, it is dismissed. There shall be no order as to costs.