Rajasthan High Court - Jodhpur

M/S Maruti Taxtilels vs Karmcharia Rajya Beema And Anr on 28 January, 2021

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 629/2002

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For Appellant(s)           :     Mr. Himanshu Maheshwari
For Respondent(s)          :     Mr. Sanjay Mathur



         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                  Judgment

28/01/2021

The present appeal has been preferred against the judgment

and order dated 30/04/2002 passed by Employees' State

Insurance Court(hereinafter referred to as 'the Court below'),

whereby the application filed by the appellant against the demand

raised by Employees' State Insurance Corporation has been

rejected.

(2 of 5) [CMA-629/2002]

Brief facts giving rise to the present appeal are that on the

inspection being conducted at the factory of the appellant, it was

found that more than ten persons were working in the factory of

the appellant and they were involved in colouring and dyeing of

the cloths. At the time of inspection, it was also found that an

electric motor was fitted for pumping the water. In the

circumstances, the appellant was served a notice for depositing

the Employees' State Insurance Amount on the count that the

premises of the appellant would fall in the category of 'factory'

having more than 10 employees in terms of Section 2(12) of the

Employees' State Insurance Act, 1948. At the same time, the

Competent Officer of the Department prepared an inspection

report.

While assailing the validity of the notice and the order

passed by the Employees' State Insurance Officers, the appellant

preferred an application before the Court below. After appreciating

the evidence and material available on record, learned Court

below framed three issues. After hearing learned counsel for the

parties and perusing the material available on record, learned

Court below passed the impugned order rejecting the application

preferred by the appellant. Hence, this appeal has been preferred

by the appellant.

Heard learned counsel for the parties.

Learned counsel for the appellant vehemently submitted that

the findings recorded by Court below are perverse. As per the

cross-examination of the inspector Suresh Chand Kaushik who

prepared the report, it is not clear whether more than 10 persons

were working in the factory. He further submits that the names of

the persons concerned who were allegedly working in the factory

(3 of 5) [CMA-629/2002]

have been mentioned without there being any details of their

fathers' name and the addresses. He further submits that even in

the impugned order, there is no discussion with respect to the

certainty of the fact that ten or more persons were working in the

factory of the appellant on the date of inspection. He further

submits that the order impugned is non-speaking and lacunic on

the face of record.

Per contra, learned counsel for the respondent submits that

learned Court below has evaluated the evidence, which has been

brought on record, in the correct perspective and after

appreciation of the same, a finding of fact has been recorded in

the present case which does not suffer from any infirmity on the

face of record.

I have considered the submissions made at the bar and

perused the material available on record.

For brevity, Section 2(12) of the Employees' State Insurance

Act, 1948 is reproduced as under :-

"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"

The Court below, while rejecting the application preferred by

the appellant has recorded the finding on the issue No.1 which

reads as under:-

"bl fcUnw ij nksuksa i{kksa dh vksj ls tks lk{; dh xbZ gS] mlds foLr`r foospu ds i"pkr~ nksuksa i{kksa dh vksj ls tks rdZ is"k fd;s x;s gS] mudk euu fd;k x;kA eSa- ek:fr VsDlVkby dk tks fujh{k.k fd;k x;k] ml fujh{k.k fjiksVZ dk Hkh v/;;u fd;k x;kA bl fjiksVZ eSa 11 etnwjksa ds uke dk mYys[k fd;k x;k gS vkSj ;g Hkh mYys[k

(4 of 5) [CMA-629/2002]

fd;k x;k gS fd ogka ikuh dks fy¶V djus ds fy;s fctyh dh eksVj dk mi;ksx fd;k tk jgk FkkA gkykafd oknh dh vksj ls ;g crk;k x;k gS fd eS- ek:fr VsDlVkbZy esa dksbZ fctyh dk dusD"ku ugha FkkA fctyh dk dusD"ku ckn esa ysuk crk;k x;k gSA bl laca/k esa dksbZ nLrkost is"k ugha fd;k x;k gS fd eS- ek:fr VsDlVkbZVy esa fctyh dk dusD"ku dc fy;k x;kA ekSds ij eksVj dk feyuk] ml eksVj ls ikuh dks fy¶V djuk ,oa ml ikuh dk mi;ksx diM+ksa dh jaxkbZ ds fy;s gksuk crk;k x;k gSA bl laca/k esa izfroknh dh vksj lss bZ-,l-vkbZ- cuke xksih fizUVl ,y-,y-ts- 1989 ist 569 uthj Hkh is"k dh gS] ftldk v/;;u fd;k x;kA eSa- ek:fr VsDlVkby deZpkjh jkT; chek vf/kfu;e ds rgr vkrh gS ;k ugha] bl laca/k esa tks fjiksVZ fujh{kd us rS;kj dh gS] og egRoiw.kZ gSA bl fjiksVZ esa bl QeZ ds Hkkxhnkj dk vlg;ksx ;g n"kkZrk gS fd os fujh{kd dks vko";d dk;Z djus ls jksduk pkgrs FksA mUgksaus gLrk{kj ls Hkh badkj fd;k gSA fujh{kd dks vko";d nLrkost miyC/k ugha djk;s x;sA fujh{k.k fjiksVZ esa ftu etnwjksa dks uketn fd;k gS rFkk fctyh dh eksVj ls ikuh fy¶V djuk fy[kk gS] mls ugha ekuus dk dksbZ dkj.k ugha gSA vksoknh dh vksj ls ,slk dksbZ dkj.k ugha crk;k x;k gS] ftlls ;g fjiksVZ ekuus ;ksX; ugha gksA ftu xokgksa dks oknh us is"k fd;k gS] mUgksaus ekSds ij 5&6 etnwjksa dk gksuk crk;k gS ysfdu mUgksaus ,slk Hkh ugha crk;k gS fd fujh{kd us fujh{k.k fjiksVZ esa tks uke fy[ks gS] os QthZ fy[ks gksA deZpkjh jkT; chek vf/kfu;e dh /kkjk 2 ¼12½ esa QSDVªh dks ifjHkkf'kr fd;k x;k gS] mlesa 10 ;k blls vf/kd O;fDr;ksa dks fu;ksftr fd;k x;k gks rFkk mRiknu dk dk;Z ;k ogka tks dk;Z fd;k tk jgk gS] mleas ikoj dk mi;ksx fd;k tk jgk gS] ekuk x;k gSA bl ekeys esa tks fjiksVZ is"k dh xbZ gS] mlesa fctyh dh eksVj dk ikuh fy¶V djus ds fy;s mi;ksx djuk ik;k gSA blds vk/kkj ij eS- ek:fr VsDlVkby] dkj[kkuk dh ifjHkk'kk esa vkrk gS vkSj deZpkjh jkT; chek vf/kfu;e ds izko/kku bl ij ykxw gksuk ekuk tkrk gSA bl izdkj ;g fook|d oknh ds f[kykQ r; fd;k tkrk gSA "

A bare look of the findings of fact recorded on issue No.1, it

is clear that learned Court below has taken into consideration the

statements of the Inspector and those persons who were working

at the time of inspection and has correctly come to the conclusion

that there is no infirmity in the report of the Inspector on the date

of inspection. Merely because the fathers' name and addresses of

those persons were absent on the date of inspection would not

make the report unbelievable. More particularly, in view of

statements of two persons i.e. Moola Ram and Magaram who have

stated in their statements that on the date of inspection, the

persons named therein were not working, show that the report

(5 of 5) [CMA-629/2002]