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Judgment
F. M. Reis, J
Heard Mrs. A. Agni, learned Counsel appearing for the appellants. None for the respondent though served. The above appeal challenges the judgment dated 27.04.2006 passed by the Employees'' Insurance Court at Margao, in ESI Case No.6 of 2003 whereby the application filed by the respondent was allowed and the impugned notices dated 01.08.2002 and 12.11.2002 were quashed and set aside. The above appeal came to be admitted on the following substantial questions of law by order dated 20.11.2006.
Whether hotels/bar and restaurants can be covered in terms of the notification dated 21.7.77 if they answer the description in column no.1 of the notification dated 21.7.77 wherein any establishment having 10 or more than 10 employees and using power in manufacturing process is covered under the E.S.I.C. Act ?
Whether the finding of E.I. Court that coverage in respect of hotels and restaurants is attached only if the number of employees is 20 or more is vitiated in law ?
Mrs. A. Agni, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the learned ESI Court has failed to consider that the premises where the respondent was carrying out his business was of bar and restaurant and not a hotel to ascertain that the respondent was employing more than 20 employees. The learned Counsel further pointed out that the burden to establish that the requisite employees were not working at the establishment at the relevant time has been erroneously placed on the appellants. The learned Counsel further pointed out that the business carried out by the respondent was of a bar and restaurant and the minimum number to attract the provisions of law are 10 employees and as such, the learned Judge has erroneously considered that the number of employees to be considered were more than 20. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has misconstrued the well settled principles of law in placing the burden on the appellants and as such submitted that the impugned judgment deserves to be quashed and set aside.
The respondent though served failed to remain present at the time of the hearing of the above appeal.
I have carefully considered the submissions of the learned Counsel appearing for the appellants and perused the records for the purpose of deciding the above substantial questions of law framed by this Court. The relevant aspect is to find out whether the evidence discloses that the respondent was engaging more than 10 employees at the relevant time. On perusal of the impugned judgment, the learned Judge has come to the conclusion that the appellants have failed to establish that there were more than 10 employees at the relevant time. In fact on perusal of the evidence on record, AW1 in his affidavit has categorically stated that he had employed one or two persons in his bar and restaurant and other persons who were working with him were mostly of his family members. Apart from that, RW1 was examined by the appellants and he has not produced the visit note. As no such visit note has been produced, the question of the appellants establishing that there were more than 10 employees at the relevant time cannot be said to have been proved. No doubt, the burden was on the respondent to establish the number of the employees who were working at the relevant time nevertheless the initial burden was definitely on the appellants. In the present case, as the appellants have failed to produce the visit note, nor the visit note is made part of the record, the learned Judge was justified to come to the conclusion that the requisite number of the employees were not found working at the relevant time in the business carried out by the respondent. In any event, it is well settled law that such questions of fact are not matters which can be re-appreciated by this Court in the present appeal.
Considering that there is no material on record to establish that more than 10 employees were employed at the relevant time, I find that the learned judge has not committed any error whilst passing the impugned judgment. As the material does not disclose that the respondent has employed more than 10 employees, the question of proceeding to consider the substantial questions of law referred to herein above does not arise. The substantial questions of law are answered accordingly. In view of the above, the appeal sands dismissed.