Baijoo Sales Vs. Regl. Dir., Esic and anr. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. k.c. agrawal, c.j.1. this appeal, under section 82 of the employees' state insurance act, 1948, has been filed by m/s. baijoo sales, jaipur against the order of the judge, employees state insurance court, jaipur dated may 12, 1987 rejecting the application filed by the appellant.2. the brief facts of the case are these. the appellant-m/s. baijoo sales, jobner bagh, state road, jaipur was engaged in the work of wood cutting, wood plaining and wood drilling. the factory of the appellant was inspected by the respondent no. 1. he prepared his inspection report dt. august 29, 1982. as per his report, he was of the view that the appellant-establishment came to be covered with effect from august 20, 1982 by the employees' state insurance act, 1948 (hereinafter to be referred as 'the act'). the appellant contested the coverage by the letter dt. august 30, 1984. the respondent no. 1 -the regional director, employees state insurance corporation, jaipur, without taking care of the protest made by the appellant, issued a draft order dated august 31, 1984. it was also contested by the appellant-establishment vide letter dated september 8, 1984. on september 24, 1984, the respondent no.l issued to the appellant- establishment a notice calling upon the appellant establishment to show cause as to why it should not be prosecuted under section 85 of the act with regard to non-payment of contributior for the period from march 31, 1984 to july 31. 1984. thereafter, the appellant filed an applica-,tion under section 75(1)(g) of the act praying that it be declared that the appellant establishment was not covered under the act. the respondent no. 1 be restrained from effecting the recovery of the amount of contribution as determined on ad hoc basis under section 45a of the act as also from launching prosecution against the appellant-establishment. the respondent no. 1 alleged that the inspector visited the factory of the appellant establishment on august 20, 1982 and august 21, 1982. the inspector obtained the employers registration form 01 in the names of m/s. baijoo furnitures and m/s. baijoo sales. it was found at the time of inspection that 9 persons were employed for wages in m/s. baijoo sales and 13 persons in m/s. baijoo furnitures. both these firms carry on their business in one and the same premises which has one main gate. both these firms were controlled by shri bhanwar lal sharma.3. both the parties adduced evidence in support of their respective cases.on the pleadings of the parties, the following three issues were framed by the employees state insurance court:-'(1) whether the applicant-factory is not coverable under the esi act.(2) whether the determination of contributions under section 45a of the act is illegal?(3) relief.'4. after hearing both the parties and scrutinizing the evidence of the parties the learned judge, employees state insurance court, jaipur found that m/s. baijoo sales and m/s. baijoo furnitures were controlled and managed by shri b.l. sharma. there was a complete managerial and functional unity between these two firms. on these findings, the learned judge, e.s.i. court held that the staff of the one was to be clubbed with the staff of the other. the learned judge, e.s.i. court further held that the regional director, employees state insurance corporation, jaipur had the authority, power and jurisdiction to issue the draft order. the application filed by the appellant-establishment was dismissed.5. against the aforesaid order of the employees state insurance court dated may 12, 1987, the present appeal has been filed under section 82 of the act. an appeal under section 82 of the act lies only when it involves substantial question of law. section 82 of the act read as under:-'82. appeal.-(2) an appeal shall lie to the high court from an order of an employees' insurance court if it involves substantial question of law.'looking to the facts and circumstances of the present case, i am unable to hold that the appeal raises any substantial question of law. the questions to be decided were those of facts. on examination of the evidence of the parties, the judge, e.s.i. court rightly found that the application filed by the appellant had no substance and was liable to be rejected.6. having not been able to find as to how the judgment of the judge, e.s.i. court was wrong, i dismiss the appeal with no order as to costs.