REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION THRISSUR Vs. BABY FRANCIS PROPRIETOR PALAKKAD

JUDGEMENT

(1.) This appeal is filed by the Employees State Insurance Corporation. The appellant insisted that the respondent should insure its employee under the ESI Act and issued notice demanding contribution. The respondent applicant approached the El Court contending that it is not a covered establishment and only 8 persons are employed in the establishment. If 10 or more persons are employed, coverage is necessary. It is contended by the ESI Corporation that the two persons by name Manoj and Muhammed Ali are manufacturing and supplying part of de-freezing machineries manufactured by the respondent and since they are doing the work in connection with the factory, they also should be 1 counted for purpose of fixing employment strength in the factory.

(2.) As per the definition, any person employed for wages for work in the establishment on any work connected with the administration of the factory or for the distribution or sale of the products of the factory or establishment, are covered under the definition and they need not be working inside the establishment. But, they should be employed for wages. If the persons are working inside the factory premises in a contract, they are liable to be counted as employees, if their work is supervised by the establishment. Employees employed by or through a contract is also covered if they are employed inside the factory premises or working outside the premises, but under the contract or supervision of the principal employer. Here, these two persons are not direct employees or employed by or through a contractor. They are not employed for wages. No wages are paid to them. They are free to make articles for others also. The said persons, Manoj and Mohammed, also were examined. They stated that they are' not employees of the establishment. They have not received any wages from the establishment. Their work is not supervised by the respondent or any of the employees of the first respondent. Respondent has no disciplinary control over them. Another question referred to us is regarding the burden of proof. Here, the El Court considered the evidence adduced by both parties and held that establishment of the respondent was not a covered establishment because only 8 persons were employed. Applicant establishment adduced evidence and examined PWs 1 to 4 and filed documents to establish their contentions. ESI Corporation adduced evidence by examining RW 1 and produced inspection reports etc. Both evidence were considered and EI Court came to the conclusion that applicant establishment is not a covered establishment as they are employing only 8 employees. It is a finding of fact. It is true that when the respondent approached the E1 Court with the contention that demand for Employees Insurance Corporation is not correct and they are not a covered establishment, it is for the applicant establishment to prima facie prove that they are not employing 10 or more persons for attracting coverage of ESI Scheme. When it was proved that they are employing only 8 persons, it is for the corporation to prove that two persons as alleged by them are employees of the company even though they are not working in the premises of the establishment. Therefore, they cannot be added to counter the strength of the establishment. When both sides adduced evidence, it is for the Court to consider evidence and arrive at a conclusion.

(3.) We are of the opinion that the finding of the EI Court that the respondent-applicant's establishment is only employing 8 persons and it is not a covered establishment is a finding of fact based on evidence and no substantial question of law arises for consideration in the appeal. The appeal is dismissed.