- (1.) The present appeal filed under Section 82 of the Employees State Insurance Act, 1948 (hereinafter referred to as "the said Act"), is directed against the order dated 31.07.2000 passed by the Presiding Officer, Employees State Insurance Court, Jaipur (hereinafter referred to as "the Insurance Court") in Case No.ESI-3/94, whereby the Insurance Court has held the establishment of the appellant as covered under the provisions of the said Act and liable for the insurance contribution.
(2.) The short facts giving rise to the present appeal are that the appellant is a commercial establishment duly registered under the Rajasthan Shops & Establishment Act, 1958 and is a partnership firm engaged in the Hotel business. On 29.07.1992, the Insurance Inspector of the Office of the respondents had carried out an inspection at the establishment of the appellant and submitted the report recommending the coverage of the appellant's establishment under the provisions of the said Act. On the basis of the said recommendation made by the Insurance Inspector, the ESI Corporation had forwarded a letter dated 18.09.1992 to the appellant intimating interalia that the establishment of the appellant being a factory within the meaning of Section 2(12) of the said Act was covered under the provisions of the said Act w.e.f. 20.10.1989, and therefore, it was liable to comply with the provisions of the Act at the Code No.15/H-871/111. The respondent No.2, thereafter appears to have issued notice dated 03.05.1994 calling upon the appellant to show cause as to why the amount mentioned in the said notice should not be assessed as the ESI contribution for the period from October 1989 to June 1992. The appellant, thereafter, challenged the said letter dated 18.09.1992 and the notice dated 03.05.1994 before the Insurance Court under Section 75 of the said Act, contending interalia that the number of workmen employed in the hotel were not more than 11 to 12 and that no manufacturing process was being carried out in the hotel with the aid of power for the activities connected with the hotel business, and therefore, the provisions of the said Act were not applicable to the appellant establishment. The Insurance Court, however vide the impugned order dated 31.07.2000 held interalia that the appellant's establishment was covered under the Act, and therefore, was liable for the insurance contribution, and that since no determination under Section 45-A of the Act was made, the matter was required to be remitted to the respondent-corporation. Being aggrieved by the said order, the present appeal has been filed.
(3.) It has been sought to be submitted by the learned counsel Ms. Chandrakala Sahv appearing on behalf of learned counsel Mr. Rinesh Gupta, for the appellant that the findings arrived at by the Insurance Court were perverse and liable to be set-aside, inasmuch as the appellant was neither a "factory" within the meaning of Section 2(12) of the said Act, nor was carrying on any "manufacturing process" as contemplated under Section 2(14AA) of the said Act. She further submitted that merely because one fridge and the water cooler or the motor for pumping water were found at the premises when the Insurance Inspector carried out the inspection, it did not mean that the appellant was carrying on "manufacturing process". Placing heavy reliance on the decision of the Apex Court in case of Hotel New Nalanda Versus Regional Director, Employees State Insurance Corporation, 2009 14 SCC 558, she submitted that the use of power in the manufacturing process should be direct and proximate and mere presence of refrigerator or other appliances would not necessarily lead to the inference that their establishment was a "factory" as defined under Section 2(12) of the said Act.;