Nirmala Industries vs The Regional Director, E.S.I. Corpn.

Thottathil B. Radhakrishnan, J.—Review petitioner succeeded before the Employees'' Insurance Court and it was declared that his establishment is not liable to be covered under the Employees'' State Insurance Act, 1948 (hereinafter referred to as ''the Act'') and that he was not bound to pay any amount by way of contribution under the Act. This Court set aside that order in M.F.A. No. 680/1999 as per the judgment sought to be reviewed, holding that the petitioner (the establishment) is liable to be covered under the Act. To hold so, after hearing the learned counsel for the E.S.I. Corporation and the learned counsel for the petitioner (the establishment) and after duly noticing the relevant facts, this Court, relying on the definition of the term "employee" as contained in Section 2(9) of the Act, held that temporary employees as well as casual employees, even those who were employed through contractors, are covered under the Act and the principal employer is liable to pay contribution. Learned counsel for the review petitioner submitted that the judgment sought to be reviewed has been passed in excessive exercise of jurisdiction in as much as this Court had in the appeal, decided the issue by reversing the finding of the Employee''s Insurance Court. According to the learned counsel for the petitioner, having regard to the scope of the appeal that would lie to this Court, reversal of the verdict of the Employee''s Insurance Court on a question of fact was impermissible. It is the further contention that by virtue of the notification issued under the Factories Act, the petitioner (the establishment) cannot be treated to have 10 employees. The learned counsel for the E.S.I. Corporation supporting the judgment sought to be reviewed, contended that no grounds are made out. He also urged that the Employees'' Insurance Court has no power to review, for lack of appropriate enabling provision in the Act and that therefore, this Court, in appeal, would also not have the power to review.

Though the appeal to this Court against the decision of the Employees'' Insurance Court is one u/s 82(2) of the Act, the High Court is a court established otherwise than under the Act. So much so, when an appeal lies to an established court, the procedure followed by that court in relation to appeals will apply, unless express restrictions or guidelines are imposed by the statute that provides for the appeal. The matter involved is essentially a civil matter and therefore the procedure adopted by the High Court in relation to civil appeals would apply in the absence of any contrary provisions in the Act. So much so even if the Employees'' Insurance Court is deprived of the power to review its judgment, the High Court has the power to review a judgment passed by it in an appeal under the Act, provided grounds for review are established, in accordance with law. The objection raised on behalf of the E.S.I. Corporation on this count is overruled. Now, coming to the merits of the matter, the appeal has been allowed on the basis of the facts and referring to the statutory provisions and by deciding the issue that arose for consideration. The grounds of appeal, in terms of the statute, have to be on a substantial question of law, which would also include the challenge against the findings, which are palpably perverse. The impugned judgment has been issued by noticing that by the decisions of the Apex Court and on an interpretation of the relevant definition clause, the employees of the petitioner are entitled to be counted for the purpose of coverage under the Act. The matter in issue was urged for consideration before the learned Judge, while the appeal was taken up for consideration. The issues raised were considered and there is no error apparent on the face of the judgment. So much so, I do not find any ground to review the judgment.

Review Petition fails. It is accordingly dismissed. No costs.