D.K.Seth, J. - (1.) on april 27, 1984 an order was passed by foe e.i. court rejecting the petitioner's application opposing the proposal for comprehensive inspection. This order has since been challenged in this writ petition. The said order dated april 27, 1984 passed in case no. 46 of 1982 by the employees' insurance court was not stayed. An interim order was granted in this petition permitting the respondents to make an inspection in terms of the order dated april 27, 1984 but any order that might be passed shall abide by the result of the rule. So far as the outstanding dues are concerned, the petitioners would be at liberty to approach the court for making payment by instalments. However, further proceedings of the criminal case pending before the metropolitan magistrate, 10th court calcutta is stayed till ei court finally determines the issues involved pending before it. Thus there was no interim order restraining the e.i. court from proceeding with the case.
(2.) the learned counsel for the petitioners submits that the case is still pending. According to the counsel for the petitioner there was one inspection held and an order was passed determining the liability. Therefore there cannot be any direction and as such the order dated april 27, 1984 cannot be sustained. According to him, the respondents cannot be permitted to make roving or fishing enquiry. He contends that the question as to whether his employees in the office are connected with the business of the factory or not, that is to be determined. Therefore, there cannot be any further inspection only for that purpose once having held that there are certain materials on the basis of the inspection already made as defined under section 2 (9) of the employees' state insurance act, 1948.
(3.) mr. Subol kr. Moitra, learned counsel for the respondents, on the other hand, contends that this question is a question of fact which can be found out from the materials on the basis whereof such determination could be made. Therefore it is well within the competence of the esi authority to make inspection for the purpose of finding out as to whether the defence of the petitioner can be sustained or not. According to him, such particulars can be availed of only through an inspection as contemplated in section 45 of the esi act. Thus, there cannot be any embargo in making inspection. There is no bar provided in the said act for making a second inspection when some dispute is raised by the parties. Therefore, the order dated april 27, 1984 does not suffer from any infirmity or error of jurisdiction. Relying on the decision in the case of hyderabad asbestos cement products ltd. V. Employees insurance court and another, air 1978 sc 356 : 1978 (1) scc 194 : 1978-i-llj-181. Mr. Moitra contends that an employee may be working within the factory or outside or may be employed for administrative works or for production for the purpose of some finished goods but all such employees are included within the definition of 'employee' under section 39 of the act. Contribution is payable in respect of such employee. Section 38 does not mean that persons employed in the factory would come within the ambit and scope of the said provisions. Therefore, this petition should be dismissed.;