Dismissed

Shobhanakumari K.C v. Employees State Insurance Corporation

Kerala HC3 Aug 2017Ins.APP/1/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an insurance appeal challenging an ESI Court order. The court held that the appellant's petrol pump, employing eleven persons including apprentices, is covered under the ESI Scheme. The appellant failed to prove the number of employees while relying on self-serving documents.

What did the court decide?

The insurance appeal was dismissed without costs.

Shobhanakumari K.C Vs Employees State… — Labour and Industrial Disputes | Kerala HC (2017)

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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 K.HARILAL &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939

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Ins.APP.No. 1 of 2016 (A)

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AGAINST THE ORDER DATED 5.10.2015 IN E.I.C.No.7/2013 OF THE EMPLOYEE'S INSURNCE COURT, KOZHIKODE.

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APPELLANT/APPLICANT:

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SHOBHANAKUMARI K.C.

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PROPRIETOR, M/S. KAKKODI GASOLINE AGENCY, 36/864A,THADAMBATTUTHAZHAM, VENGERI (PO), CALICUT-673 010.

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BY ADV. SRI.K.PRAVEEN KUMAR

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RESPONDENTS/RESPONDENTS:

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EMPLOYEES STATE INSURANCE CORPORATION REPRESENTED BY THE REGIONAL DIRECTOR, ESI CORPORATION, PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR -680 020.

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AUTHORIZED RECOVERY OFFICER EMPLOYEES STATE INSURANCE CORPORATION, DIVISIONAL OFFICE, CALUCUT HOUSE FED COMPLEX, IIIRD FLOOR, SASTHRI NAGAR ROAD, ERANHIPALAM, CALICUT-673 006.

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T.KRISHNAN S/O CHANDU, THACHORACHAL, PAYMBRA, KUNNAMANGALAM-673 871.

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DIVAKARAN. N.,S/O KRISHNAN NAIR, "ANUSREE", KANDACHANVEETTIL HOUSE, CHELANNUR-673 616.

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R1 & R2 BY ADV. SRI.K.SANDESH RAJA ADV. SRI.T.V.AJAY KUMAR, SC, ESI CORPORATION ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN

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THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 3.8.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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I.A.NO.1192/2016 IN INS. APP.NO.1/2016

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CLOSED

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SD/- K.HARILAL, JUDGE

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03/08/2017 SD/- P.SOMARAJAN, JUDGE

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//TRUE COPY//

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AHZ/

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K. Harilal & P. Somarajan, JJ.

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---------------------------------------------------Ins. Appeal No.1 of 2016

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---------------------------------------------------Dated this the 3^rd day of August, 2017

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JUDGMENT

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Somarajan, J.

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Challenging the order dated 5.10.2015 in E.I.C.No.7 of 2013 of the Employees' Insurance Court, Kozhikode, the applicant came up with this appeal under Section 82(2) of the Employees' State Insurance Act, 1948.

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The main challenge involved in the appeal is with respect to the status of the appellant's concern and whether it would come under the Employees' State Insurance Scheme, having more than nine employees employed therein. The question was elaborately considered by the ESI Court and found that the firm run by the appellant would come under the ESI Scheme and directed the respondent to initiate fresh assessment proceedings with notice to the applicant based on the materials produced by the applicant and to conclude the assessment and issue fresh demand. The applicant was also

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Ins. Appeal No.1 of 2016

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directed to pay contribution with interest as per law, by the impugned order dated 5.10.2015, which is under challenge in this appeal.

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The appellant/applicant mainly raised the contention

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that only nine employees were employed in the appellant's concern along with two other apprentices. It was also submitted that the apprentices or students engaged shall not be brought under the expression “employee” for the purpose of bringing the firm under the ESI Scheme. They relied on Exts.P1 to P5 documents besides the oral evidence tendered by PW1, one Sri.K.Sivadasan. Admittedly, the appellant/applicant did not mount on the box to testify his case. A total stranger, as far as the firm is concerned, was examined as PW1, who is admittedly a relative of the appellant and is residing 7 kms. away from the firm. While in the box, he had expressed his ignorance with respect to the running of the firm, even the number of employees employed therein. He had also pleaded ignorance of what kind of training was given to the apprentices, the two additional persons found engaged in

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Ins. Appeal No.1 of 2016

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the business place at the time of visit of the inspector and also at the time of visit of the social security officer. The muster roll had been verified by the Inspector and reported that in the muster roll name of only nine employees were included though eleven persons were found engaged in the business place. Ext.P1 is the Register of Wager of the applicant establishment for the period from April 2008 to January 2011 (three in numbers). It is a self serving document and it cannot be accepted in evidence, especially when there are eleven persons found to be engaged in the establishment of the applicant at the time of inspections conducted by the respective officers. A document prepared by the applicant would be a self serving document and it cannot be accepted to discredit the report already submitted by the officials in discharge of their official duty. The non-examination of the applicant is really fatal to the case advanced by the applicant. On the other hand, the documents produced would show that at the time of visit of the respective officials, eleven persons were found employed in the establishment. At this juncture, it

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Ins. Appeal No.1 of 2016

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has to be borne in mind that the proceedings were initiated and inspections were done on receipt of a complaint, exhibited as D4, wherein the names of eleven employees were specified. This would fortify the case advanced by the ESI Corporation. Further, it is not at all permissible either for the applicant or any person to circumvent the provisions of law under the guise of any apprentice or student engaged in the premises. We are at a lost to understand what is the training going to be served to an apprentice or a student in a petrol pump. All these would show the falsity of the case advanced by the appellant/applicant.

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Hence there is no merit in the Insurance Appeal. It deserves only a dismissal and we do so, but without costs.

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K. Harilal

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Judge

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P. Somarajan Judge

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ahz/

Shobhanakumari K.C v. Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

Shobhanakumari K.C v. Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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