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Judgment
V. Jagannathan, J.—The appellant before the Court was the applicant before the E.S.I. Court in E.S.I. Application No. 187/88 and the challenge to the show cause notice issued by the respondents. E.S.I. Corporation dated 17.3.1988 claiming contribution from the appellant in a sum of Rs. 7,656/- for the wage period from 1.4.1987 to 30.9.1987, was turned down by the E.S.I. Court by dismissing the application filed u/s 75(1)(g) of the E.S.I. Act.
Sri D.R. Ravi Shankar, the learned Counsel appearing for M/s. Lex Nexus for the appellant argued that the impugned order of the E.S.I. Court cannot be sustained in law because, as on the date of issuance of the ratification covering the appellant''s establishment, i.e., on 1.4.1987, there were less than 20 employees employed by the appellant and therefore the E.S.I. Court could not have dismissed the application filed. Secondly, it is argued that the clubbing of the appellant''s establishment, viz., M/s. Ashu Products with M/s. Ashu Fibres was with effect from 1.4.1987 and therefore, prior to the said date, the question of there being more than 20 employees engaged, does not arise. Further, the very notification itself was issued on 27.3.1987 extending the provisions of the E.S.I. Act to the area in which the appellant is situated, the E.S.I. Court, therefore committed an error in arriving at the conclusion that the E.S.I. Act is applicable to the appellant''s establishment.
Elaborating the above submission, it is argued by the learned Counsel for the appellant that in order to come within the definition of "factory" as denned in Section 2(12) of the E.S.I. Act, 1948, it was incumbent on the part of the Corporation to have placed the material to show that there were 20 persons employed and the persons employed satisfied the definition of "employee" as contained in Section 2(9) of the Act and further the wages drawn by the said employees will have to be the "wages" as defined in Section 2(22) of the E.S.I. Act Therefore, relying on the aforesaid provisions, it is contended by the learned Counsel that, as required number of employees were not there as on the date of issuance of the notification and as the clubbing was effected only from 1.4.1987, the question of covering the appellant under the E.S.I. Act therefore does not arks. As there was no clubbing of the two units prior to 3.4.1987 the number of employees also fell short of the required number and even for this reason also the E.S.I. Court could not have dismissed the application filed by the appellant. It is further contended that RW1 examined on behalf of the Corporation was not cross-examined by the appellant and as for as the number of employees employed even prior to 1.4.1987 is concerned, the appellant had no opportunity to question the E.S.I. Inspector in respect of the report given by him and more over the report of the E.S.I. Inspector lacks the details as to the names of the employees, age, occupation, wages drawn, etc. and in the absence of all these particulars which are not forthcoming from the report of the E.S.I. Inspector, it cannot be construed that there were 20 employees employed by the appellant.
Learned Counsel also submitted that the appellant had also no opportunity to question the finding on the two units being held to be one unit because the appellant did not contest the matter before this Court on an earlier occasion when the matter was remanded by this Court w the E.S.I. Court for fresh consideration. Secondly, even before the E.S.I. Court, at the appellant did not cross-examine RW1, the Court was also of the considered view and remanded the matter so that the appellant gets one more opportunity to place its material on record. As far as the number of employees employed by the appellant is concerned, in this connection, it is submitted that even the documents produced by the appellant which were taken note of by the E.S.I. Court, viz., Exhibits R5 and R6 would not give a clear picture as to whether the piecemeal workers were engaged commonly by two units or only by one unit. Insofar as the granting of the opportunity to the appellant to clarify all these aspects before the E.S.I. Court is concerned, the reliance is placed on the decisions reported in 1979 LAB.I.C. 844 E.S.I. Corporation Vs. Subbaraya Adiga, (E.S.I. Corporation v. Subbaraya Adiga) as well as AIR 1999 SC 803 (Employees State Insurance Corporation v. M.M. Suri & Associates (P) Ltd.) to support the aforesaid submission made.
Per contra, Smt. M.P. Geethadevi, the learned Counsel appearing for the respondent-Corporation argued that insofar as the two units, viz., M/s. Ashu Products and M/s. Ashu Fibres being held as one unit in concerned, the said issue has been decided against the appellant by the E.S.I. Court in E.S.I. Application No. 187/1988 by its order dated 20.5.1993 and further, the said order of the E.S.I. Court was also confirmed by this Court in M.F.A. No. 1357/1993 while remanding the matter to the E.S.I. Court for fresh consideration. As such, it does not require any further clarification and the contention of the appellant''s counsel that �he clubbing was effected only from 1.4.1987 is concerned, no such finding was recorded either by the E.S.I. Court or by this Court in the aforementioned M.F.A, but it is only from 1.4.1987 that the Act was made applicable to the appellant''s establishment and that therefore the question of clubbing as on the date on which the clubbing of the two unite was considered cannot arise.
As far as the number of employees is concerned, referring to the appellant''s documents produced before the E.S.I. Court, viz., R5 and R6 it is contended that during December 1986 there were 20 employees and in January 1987 there were 23 employees and therefore the Act becomes applicable to the appellant''s establishment in view of the definition of "factory" as defined u/s 2(12) of the E.S.I. Act. Contending that even if the number of employees employed were 20 or more on any day preceding 12 months, the said establishment gets covered under the definition of "factory" and in the instant case on hand, as there were 20 or more employees in December 1966 and 23 employee in January 1987, the definition of "factory" therefore is satisfied and as such, the very document produced by the appellant itself has confirmed the number of employees working in the two units put together and therefore the order of the E.S.I. Court does not require any interference.
As far as the remand of the matter to the E.S.I. Court is concerned, the submission made by the learned Counsel is that the appellant did not seriously content the matter even on an earlier occasion when this Court disposed of M.F.A. No. 1357/1993 and even alter the remand, the appellant did not cross-examine KW1 and therefore it is too late in the day for the appellant to once again seek remand of the matter and more over, the documents which were relied upon by the E.S.I Court were furnished by the appellant only. As far as the details of the number of employees are concerned, the learned Counsel for the Corporation placed reliance on the Apex Court''s decision in the case of Srinivasa Rice Mills and Ors. v. ESI Corporation reported in (2007) 1 SCC 705, to contend that when the particulars are furnished by the employer, the question of Inspector providing all other details like the length of service, emolument, designation of each employee, etc., does not arise. Therefore, the dismissal of the application Sled by the appellant is just and proper and more over, as the finding recorded by the E.S.I. Court as far as the number of employees is purely a finding on fact, the appeal also does not carry any merit as no substantial question of law is involved.
Having thus heard both aides, insofar as the applicability of the E.S.I. Act to the appellant is concerned, first of all, this Court in M.F.A. No. 1357/1993 disposed of on 15.4.1998 has held that the two units, viz., M/s. Ashu Products and M/s. Ashu Fibres constitute a single factory and they were found to have been used for one continuous manufacturing process. This finding has attained the finality. The remand was only to consider the other issues. Therefore, it is not open to the? appellant to now contend that the appellant unit is different from the other unit. As far as the date en which the coverage was effected is concerned, it is from 1.4.1987, but the material placed before the E.S.I. Court does not give room to hold that the clubbing was also deemed to have taken place from 1.4.1987. As regards the number of employees issue is concerned, it has come in the evidence before the E.S.I. Court, both oral and documentary, that in December 1986 there were 20 employees and in January 1987 there were 23 employees and the details of the employees were also furnished by the appellant itself. When such is the situation, it is not open for the appellant to now contend that the number of persons employed is less than 20. Apart from this, a plain reading of Section 2(12) of the Act makes it clear that in order to constitute a factory, it will have to be shown that 20 or more persons are employed or were employed for wages on any day of the preceding twelve months. In the instant case though the coverage was effected from 1,4,1987, in December 1966 there were 20 persons employed and in January 1987 there were 23 persons employed and therefore the requirement of Section 2(12)(b) of the E.S.I. Act is fully satisfied. Further, the Apex Court in the case of Srinwasa Rice Mills (supra), has also held that the provisions of the E.S.I. Act would be applicable twelve months preceding the appointed date. In the instant case, the appointed date was 1.4.1987, but after considering the preceding twelve months, it is clear that in December 1986 there were 20 employees and in January 1987 there were 23 employees and therefore the E.S.I. Act squarely becomes applicable to the appellant''s establishment. I therefore see no error being committed by the E.S.I. Court in rejecting the contentions put forward by the appellant as regards the number of employees are concerned.
As far as the details of the employees not forthcoming in the report is concerned it is relevant to refer to paragraph 30 of the Apex Court''s decision in the case of Srinivasa Rice Mills (supra), which reads as under:
Indisputably, it is the statutory obligation of the employers to furnish the name, father''s name, place from which the employee hails, the designation, the length of service, emoluments, and the signature or thumb impression of the employee, as the case may be, but the same would not mean that while issuing a notice, the authorities of the Act am bound to disclose the same. They in fact without the names and other details of the employees furnished by the employer would not know thereabout. However, Section 45 of the Act empowers the Inspector to take down the details of such employees, presumably, only in a case when discrepancy arises between the information furnished by the employer and the report that the Inspector may make pursuant to or in furtherance of these inspections and in such cams such details may tern to be furnished.
As far as the prayer for remand is concerned, it is not the case which requires remand because the matter was remanded once by this Court while disposing of MFA No. 1357/1993 on 15.4.1998, Though this Court had clearly indicated in the order itself that both the parties are to be given the opportunity, the appellant did not avail of the opportunity given to it and the evidence of RW1 therefore stood unchallenged because the appellant did not cross-examine the said witness. Evan when the matter was heard by this Court in the aforementioned M.F.A., the appellant did not contest it. All these only go to show that the appellant is not very serious enough in questioning the order of the E.S.I. Court.
For the aforementioned reasons, I see no substantial question of law involved in this appeal and the appeal therefore stands dismissed.