Dismissed

P.Muralidharan v. the Regional Director

Kerala HC4 Feb 2016Ins.APP/63/2012

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal filed by a lottery agency managing partner against an order covering his establishment under the Employees State Insurance Act. The court held the appellant failed to disprove the Inspector's report finding 24 employees and dismissed the appeal as it involved a pure question of fact under Section 82(2) of the Act.

What did the court decide?

Curtailed the appeal and closed all interlocutory applications in the appeal.

P.Muralidharan Vs the Regional Director — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937

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Ins.APP.No. 63 of 2012 ()

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AGAINST THE ORDER DT 13/3/2012 IN EIC 1/2011 of E.I.COURT, KOZHIKODE

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APPELLANT/APPLICANT :

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-----------------------------------

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P. MURALIDHARAN MANAGING PARTNER, MANJOO LOTTERY AGENCIES, KANNUR.

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BY ADV. SRI.GEORGE POONTHOTTAM

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RESPONDENTS/RESPONDENTS :

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----------------------------------------------

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1. THE REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION, THRISSUR-20.

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2. THE RECOVERY OFFICER EMPLOYEES STATE INSURANCE CORPORATION, THRISSUR-20.

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R1 & R2 BY ADV. SRI.K.SANDESH RAJA BY SRI.P.SANKARANKUTTY NAIR, SC,

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THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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Ins.Appeal No.63 of 2012.

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Dated this the 4^th day of February, 2016.

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J U D G M E N T

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The decision of the Employees' Insurance Court, Kozhikkode in E.I.C.No.1 of 2011 is under challenge in this appeal.

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The appellant is engaged in the sale of lottery tickets. There was an inspection in the premises of the establishment of the appellant on 12.6.2002 by the Insurance Inspector attached to the Employees' State Insurance Corporation, hereinafter referred to as 'the Corporation' for short. The Inspector who conducted the inspection in the premises of the appellant has reported that at the time of inspection the appellant was found engaging 24 employees in his establishment. Later, another Inspector of the Corporation was deputed to verify the records of the establishment of the appellant. The said Inspector

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Ins.Appeal No.63/2012.

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inspected the premises of the appellant on 28.8.2003. The appellant has not placed the records maintained by him before the Inspector who was deputed to verify the records. Consequently, proceedings have been initiated by the Corporation for covering of the establishment of the appellant under the Employees State Insurance Act, hereinafter referred to as 'the Act' for short. An order determining the contributions payable by the appellant in respect of his employees was also issued by the Corporation under Section 45A of the Act. The appellant, though challenged the aforesaid proceedings of the Corporation in Insurance Case No.18 of 2004, the challenge was repelled by the Insurance Case, the challenge was repelled by the Insurance Court as per its order dated 12.6.2002. The order dated 12.6.2002 was challenged by the appellant before this Court in Insurance Appeal No.36 of 2010 and this Court, as per judgment dated 25.11.2010, set aside the said order and remitted the matter to the Insurance Court for fresh disposal, on the ground that the representatives of the

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Ins.Appeal No.63/2012.

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employees of the appellant were not arrayed as parties in the proceedings. Thereupon, the appellant has impleaded the employees named in the report of the Insurance Inspector as the employees of the appellant in the proceedings. Later, when the matter came up for adjudication, the contention pressed by the appellant was that he had not employed more than ten employees at any point of time in his establishment and that therefore, his establishment is not liable to be covered under the Act. When the case came up for evidence, the appellant gave evidence as PW1. The District Lottery Officer, Kannur was examined on the side of the appellant as PW2. On the side of the defendants, three witnesses were examined as Dws.1 to 3, of which PW1 was the Inspector who inspected the premises of the appellant on 12.6.2002 and PW2 was the Inspector who conducted inspection in the premises of the appellant on 28.8.2003. DW3 was a person found to be employed by the appellant, by the Inspector who conducted inspection of the premises of the appellant on 12.6.2002.

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Ins.Appeal No.63/2012.

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Exts.P1 to P4 are the documents produced on the side of the appellant and Exts.D1 to D7 are the documents produced by the Corporation. On an elaborate consideration of the materials on record, the Insurance Court found that the appellant has not established that he was employing only less than 20 employees in his establishment and consequently dismissed the application filed by him. The appellant who is aggrieved by the said decision of the Insurance Court has thus come up in this appeal.

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Heard the learned counsel for the appellant as also the learned Standing Counsel for the Corporation.

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It is trite that in a case of this nature it is for the appellant to establish that he was not employing the requisite number of employees in his establishment. As such, the short question arising for consideration in this appeal is as to whether the appellant has established that he was not engaging the requisite number of employees in his establishment on 12.6.2002, when the premises of the appellant was inspected by the Inspector attached to the

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Ins.Appeal No.63/2012.

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Corporation. The question as to whether the appellant has succeeded in establishing the said fact is a pure question of fact. As such, the impugned decision rendered on the basis of the said question of fact cannot be challenged in an appeal filed under Section 82(2) of the Act.

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However, since the learned counsel for the appellant has vehemently contended that the appellant has established that he was not engaging the requisite number of employees on the relevant day and that the finding to the contrary rendered by the Insurance Court is perverse, the said contention also needs to be considered. DW1 is the Inspector who conducted the inspection in the premises of the appellant on 12.6.2002. He has categorically deposed in his evidence that he found the appellant employing 24 persons in his establishment on 12.6.2002. He has also stated in his evidence that he interviewed all the 24 employees and collected their particulars such as names, addresses, wages, etc. He has also stated that he has obtained the signatures of all the said 24 persons in the list

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Ins.Appeal No.63/2012.

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prepared by him. He has clarified in his evidence that though the appellant was asked to countersign the list prepared by him, the appellant refused to put his signature in the list of employees prepared by him. The officer, who conducted inspection in the premises of the appellant on 28.8.2003 for verifying the records of the establishment of the appellant, was examined as DW2. She deposed that the records maintained by the appellant were not made available to her at the time of her inspection on 28.8.2003. The Insurance Court found that though DWs.1 and 2 were thoroughly cross examined, nothing was brought out by the appellant to discredit their evidence. The Insurance Court also found that the evidence tendered by Dws.1 and 2 and Ext.D1 report filed by DW1 are reliable. It is seen that the appellant gave evidence as PW1 in the proceedings before the Insurance Court. In the cross examination, he admitted that he was maintaining attendance register, wages register and other statutory records in his establishment and that he is willing to produce those documents before the Insurance

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Ins.Appeal No.63/2012.

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Court. The Insurance Court noticed that though the appellant undertook to produce the statutory records maintained by him in his establishment, he has produced only a few wages registers and nothing else. According to the Insurance Court, it cannot be held from the wages registers produced by the appellant alone that the appellant was not employing the requisite number of employees on 12.6.2002. It is in the aforesaid facts and circumstances, the Insurance Court found that the appellant has not established that he was not employing the requisite number of employees in his establishment as on 12.6.2002.

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The learned counsel for the appellant contended that one of the employees of the appellant named in Ext.D1 report, who has been examined as DW3, has deposed before the court that he is not an employee of the appellant. Merely for the reason that one of the employees of the appellant has stated so, it cannot be said that the appellant was not employing the requisite number of employees in his establishment, as sufficient and more

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Ins.Appeal No.63/2012.

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materials are available on record to hold otherwise.

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In the light of the facts and circumstances stated above, I do not find any merit in the appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.

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Sd/- P.B.SURESH KUMAR, (JUDGE)

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Kvs/-

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// true copy //

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PA TO JUDGE.

P.Muralidharan v. the Regional Director

Case brief

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P.Muralidharan v. the Regional Director

Case brief

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