JOSE MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the accused in C.C. No. 223 of 2006 on the file of the Judicial First Class Magistrate-II, Alappuzha. Complaint was filed by the Manager, Employees' State Insurance Corporation ("the E.S.I." for short), branch office, Alappuzha, Offence alleged is under Section 85(g) of the Employees' State Insurance Act, 1948 ('ESI Act' for short). Accused are stated to be the Managing Director of M/s. Rainbow Cruises, Unit of Green Shore Holidays and Resorts Pvt. Ltd. and also the Company itself. It is contended by the complainant that the accused is a factory as defined under the E.S.I. Act. Since the accused failed to produce the records in respect of the said factory/establishment pertaining to the period from the very inception of the factory, the Insurance Inspector of the E.S.I. Corporation visited the said factory on 29-11-2005, 1-12-2005 and 9-12-2005 for the purpose of conducting inspection of the records. It was contended that prior intimation was given to the accused but they failed to produce the records for inspection. Accordingly, the matter was reported to the Divisional Officer of the E.S.I. Corporation, pursuant whereto, show-cause notice dated 23-12-2005 was issued to the accused. As per reply dated 12-1-2006 they sought three weeks' time to produce the records at the Inspector's Office, Alappuzha. That request was allowed and time was given till 15-2-2006. Still they failed to produce the records. They did not offer any explanation also. Hence, complainant contends that the accused have violated the provisions contained in Sections 44 and 45(2) of the E.S.I. Act which is punishable under Section 85(g) of the Act, The learned Magistrate took cognizance and issued process to the accused. That is being challenged in this petition filed under Section 482 of Cr. P.C. Adv. Smt. Lakshmi B. Shenoi, the learned counsel for the petitioners argued with vehemence that the petitioners are not bound to produce the records. It is also contended that the first petitioner is not the principal employer and so the cognizance taken is bad in law. It is further argued that the second petitioner Company is not a factory and as such the petitioners were not bound to produce any record or to furnish any information to the Insurance Inspector.

(2.) Section 2(12) of E.S.I. Act, 1948 defines factory as:-- "2(12) "factory" means any premises including the precincts thereof whereon ten or more persons are employed or were employed on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed".

(3.) The decision of the Karnataka High Court in Sri. Krishna Spinning and Weaving Mills Ltd. v. E.S.I. Corporation, 1993 1 LLJ 1072 cited by the learned counsel for the petitioners has no application to the facts of this case. That was a case where the E.S.I. Corporation issued show-cause notice to the employer calling upon it to show-cause why order should not be made under Section 45A to which a reply was sent by the employer. Without passing an order under Section 45A, the Corporation took action for recovery of amounts due as mentioned in the draft order. In that context, it was held that no recovery can be made unless order under Section 45A is passed. Section 45A reads:--