Delhi High Court
Employees State Insurance ... vs M/S. Pahalwan Hotel on 14 December, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO. No.217/2002
% Judgment reserved on: 4th December, 2009
Judgment delivered on: 14th December, 2009
Employees State Insurance Corporation
Through its Regional Director,
Rajendra Bhawan, Rajendra Place,
New Delhi ....Appellant
Through: Mr. K.P. Mavi, Adv.
Versus
M/s. Pahalwan Hotel
22, Amrit Kaur Market,
Opposite New Delhi Railway Statiion,
New Delhi ...Respondent.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
In this appeal there is a challenge to judgment dated 15th February, 2002
passed by Employees State Insurance Court.
2. Brief facts of this case are that respondent‟s firm is engaged in supply of
food to its customers and never employed more than nine persons. Moreover, it
does not prepare food, as the same is brought in cooked form from outside.
Neither it is using electricity nor any gas cylinder for carrying out its work. It has
been claimed by respondent that it has been wrongly covered under the provisions
of the Act.
3. Vide impugned judgment, petition under Section 75 of Employees State
Insurance Act, 1948 (for short as „Act‟) filed by respondent was allowed.
4. Notice of this appeal was duly served upon the respondent, but none
appeared on its behalf.
5. It is contended by learned counsel for appellant that on 16th May, 1995,
appellant carried survey of respondent‟s hotel and found more than twelve
employees working there. The factum of working of 12 employees was duly
verified by respondent and survey report was duly signed by respondent.
Accordingly, the impugned judgment is liable to be set aside.
6. Appellant has solely based its case on survey report Mark „A‟. However,
said survey report has not been proved at all in accordance with law. The
executant of this document, has not been examined by the appellant. It is also not
clear as to who has signed this survey report, on behalf of respondent.
7. Appellant‟s witness T.K. Ghosal (RW1), in his statement has stated that on
the basis of survey report Mark „A‟, dated 16th May, 1995, submitted by Mr. K.L.
Malhotra (the Area Inspector), he issued coverage letter Ex.RW1/1.
8. In cross-examination this witness stated that report Mark „A‟ was not
prepared in his presence and he has not visited the spot where the respondent‟s
firm is situated.
9. As per survey report Mark „A‟, 12 persons were working there. However,
this survey report has not been proved at all since Sh. K.L. Malhotra, Area
Inspector, who visited the spot and prepared the survey report, has not been
examined.
10. On the other hand, respondent in his cross-examination categorically stated
that on 16th May, 1995, no inspector from the appellant had inspected/surveyed
his firm in his presence or in the presence of his partner. He also stated that the
survey report mark „A‟ does not bear his signatures at point A.
11. The onus was upon appellant to prove survey report Mark „A‟. However,
appellant has miserably failed to discharge that onus. Appellant cannot rely upon
a document, which has not been proved at all, in accordance with law.
12. Trial court in this regard also observed;
"However, the respondents have not examined
their Inspector who conducted the survey. As
such, the survey report has not been proved in
the witness box nor it has come on record in the
testimony that the Inspector has counted or seen
the employees working with the petitioner and
have noted their names, designations or
addresses.
The petitioner has deposed in the witness box
that he had employed at the maximum nine
employees and has produced copies of his
attendance register. There is no suggestion to
this witness in the witness box that he was
employing 12 persons. Furthermore, PW1 Sh.
Kimiti Lal has further deposed that he does not
use gas or electricity in the cooking of food and
brings cooked food from outside for serving to
its customers. In the cross examination, this has
also gone unchallenged. As such, the evidence
of the petitioner regarding the number of
employees, preparation of food and use of power
has gone unchallenged as the respondents have
neither examined their Inspector nor have
brought any other documentary or oral evidence
on the record".
13. In Malay kumar Ganguly v. Dr. Sukumar Mukherjee and Ors.2009 (10)
SCALE 675, Supreme Court observed;
"It is true that ordinarily if a party to an action
does not object to a document being taken on
record and the same is marked as an exhibit, he
is estopped and precluded from questioning the
admissibility thereof at a later stage. It is,
however, trite that a document becomes
inadmissible in evidence unless author thereof is
examined; the contents thereof cannot be held to
have been proved unless he is examined and
subjected to cross-examination in a court of
law."
14. Since, appellant has neither proved the survey report nor the same has
been admitted by respondent, under these circumstances there is no reason to
disagree with the findings of the trial court. The present appeal is thus not
maintainable.
15. Time and again, this Court and Supreme Court have made observations
that Government Undertaking/Statutory Bodies should not pursue fruitless
litigation in the appellate courts, when they know at the outset that there is no
legal force in their appeal. These bodies should not squander public exchequer
and waste their as well as courts‟ time. Here, in the trial court itself, when
appellant miserably failed to prove its case as it did not produce the basic
document, that is, the survey report, nor it examined the executant of this
document, there was no ground for appellant to have filed the present appeal.
16. Under these circumstances, present appeal is dismissed with costs of
Rs.10,000/-.
17. Appellant is directed to deposit the costs with Registrar General of this
Court within four weeks from today failing which the same shall be recovered in
accordance with law.
18 List for compliance on 20th January, 2010.
14th December, 2009 V.B. GUPTA, J.
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