M/S Natraj Cinema,Thr.Its ... vs The Dy.Regional ...
2017 Latest Caselaw 2535 Bom

                                                   1               fa630.05.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                           FIRST APPEAL NO. 630 OF 2005


            M/s. Natraj Cinema,
            Zenda Chowk, Mahal, Nagpur,
            through its Partner,
            Shri Sudhir S/o Narendra Bhiwapurkar,
            aged about 46 years, Occ. Business,
            R/o. Dhantoli, Nagpur. ......                                   APPELLANT


                                 ...VERSUS...


         The Deputy Regional Director,
         Employees State Insurance Corporation,
         Ganeshpeth, Nagpur............                                       RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri S.N.Bhattad, counsel for appellant
 None for respondent
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

th DATE : 15 MAY, 2017 .

ORAL JUDGMENT

1] The challenge in this appeal is to the order dated

21.09.2005 passed in Insurance Case No. 7 of 1994 under

Section 75 of the Employees State Insurance Act, 1948, by

the Industrial Court at Nagpur. The application filed by the

appellant-establishment under Section 75 of the said Act

2 fa630.05.odt

challenging the order dated 11.07.1994 passed under

Section 45A of the said Act making the provision applicable

to the establishment of the appellant has been rejected.

2] It is not in dispute that if it is established that the

appellant-establishment had engaged more than 20

employees during 01.04.1991 to 29.09.1993, then provisions

of the said Act would become applicable with effect from

01.04.1991. According to the respondent authority, 21

employees were found to be working on the establishment of

the appellant on 29.09.2003, when the inspection was done.

Out of these 21 employees, 10 were regular employees, 5

were the temporary employees (including 2 persons

employed for pasting hand-bills or posters), 2 employees

employed by Canteen contractor and 4 employees employed

on the cycle-stand. The report has been accepted by the

Industrial Court and the claim for setting aside the order

dated 11.07.1994 has been rejected.

3] The appellant was running Natraj Cinema

Theatre, which was subsequently closed on 30.09.2006. The

present case is concerned with the period from 01.04.1991 to

3 fa630.05.odt

29.09.1993. It is not in dispute that on the establishment of

the appellant, there were 10 permanent employees and 3

temporary employees. The dispute is regarding employment

of 2 persons as hand-bill boys, 2 persons employed by the

canteen contractor and 4 persons employed on the cycle-

stand. It is not in dispute that the canteen and cycle-stand

were within the premises of the establishment of the

appellant. It is also not in dispute that if the strength of the

employees on the establishment of the appellant is 20 or

less, then applicability of provisions of Employees State

Insurance Act is excluded.

4] In the backdrop of the undisputed factual

position narrated in the aforesaid para, the question is

whether 2 persons, namely Raj Delikar and Gulab Dhobale

shown as hand-bill boys were working as employees on the

establishment of the appellant. The report of the Inspector

dated 29.09.1993 indicate the names of these 2 persons as

temporary employees getting salary of Rs.500/- and Rs.400/-

per month respectively. In the oral evidence of the Inspector,

who submitted the report on 29.09.1993, there is no

reference to these 2 employees shown as hand-bill boys. It

4 fa630.05.odt

is not the finding in the report that the hand-bills were pasted

in the premises of the establishment of the appellant. The

evidence of the Inspector Vishwanathprasad Pande does not

make reference to these 2 employees in his examination-in-

chief, except to state that there were 5 temporary employees.

In the cross-examination, the Inspector admits that in para 7

of his Inspection Report at Exh. 53, he has mentioned

10+2+4 employees and he has not recorded the statement of

all 21 employees. He specifically states that he has not

recorded the statement of 5 employees said to be working on

temporary basis.

5] In view of this, the employment of 2 persons as

hand-bill boys on the establishment of the appellant has not

been proved. There is no basis in the report which states

that these 2 employees were paid monthly wages of Rs.500/-

and Rs.400/- respectively. If the employment of these 2

persons is excluded from the establishment of the appellant,

then the total strength of the employees would be 19, which

would obviously below 20, which is the requirement for

applicability of the provisions of the said Act. The Industrial

Court has committed an error in holding that the burden in

5 fa630.05.odt

respect of employment of these 2 persons was on the

appellant-establishment. Such a negative burden was

unwarranted. The evidence brought on record in the form of

report dated 29.09.1993 coupled with the evidence of the

Inspector, who prepared this report, is completely deficient in

establishing employment of these 2 persons on the

establishment of the appellant.

6] In view of above, the appeal succeeds. The

judgment and order dated 21.09.2005 passed in Insurance

Case No. 7 of 1994 by the Employees State Insurance Court

at Nagpur, is hereby quashed and set aside.

Rule is made absolute in these terms. No order

as to costs.

JUDGE

Rvjalit