1. Heard learned Advocate Mr. Sachin D. Vasavada for appellant Employees State Insurance Corporation, learned Advocate Mr. Prabhakar Upadhyay for respondent.

2. In this appeal, notice was issued by this Court on 8th August, 2008 in view of production of Exh. 23 on record. In this appeal, appellant corporation has challenged order passed by ESI Court, Ahmedabad in ESI Application No. 35 of 2002 dated 30th May, 2008 wherein ESI Court has allowed application against Corporation while declaring that notice issued by appellant corporation to respondent establishment dated 6.11.2001 is unjust, illegal and contrary to provisions of law and it was also declared that the respondent establishment has made contribution as per law with effect from period on which Act become applicable and for the period prior to that, no contribution is payable by it.

3. Learned Advocate Mr. Vasavada for appellant raised contention that ESI Act is made applicable on 1st March, 2001 while issuing notification supplying Code 37/23123/24 to respondent establishment. Short question raised before this Court is that whether ESI Corporation is empowered to call for certain details about number of employees working on particular date from respondent establishment under the provisions of ESI Act or not. Submission made by learned Advocate Mr. Vasavada is that on the date on which notification was issued by ESI Corporation, ESI Act was made applicable to a particular establishment and, therefore, ESI Corporation is empowered to call upon establishment to produce registers and other relevant record of previous year. Learned Advocate Mr. Vasavada for appellant has relied upon definition of term 'factory' given in ESI Corporation Act section 2(12). Therefore, sec. 2(12) of ESI Corporation Act is quoted as under:

âS2(12) âSfactory' means any premises including the premises thereof -

(a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or

(b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so cared on

but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a railway running shed;]âý

4. While relying on aforesaid definition of term 'factory' as per section 2(12) of ESI Act, 1948, he submitted that if ten or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, then, ESI Corporation is entitled to call for record from establishment of previous year from the date on which notification is applied. According to my opinion, ESI Corporation is not entitled to call for record from such establishment for previous year from the date on which notification is applied. Simple reason is that the question whether particular establishment is covered by the definition of 'factory' or not is required to be decided by Factory Inspector under the provisions of the Factories Act. For that, Factory Inspector is authorized to inquire it and then to find out from record of establishment. Definition of 'factory' given under sec. 2(12) of the ESI Act and definition of 'factory' under sec. 2(m) of the Factories Act are verbatim same and, therefore, sec. 2(m) of Factories Act is quoted as under:

âS2(m) 'factory' means any premises including premises thereof -

(a) whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or

(b) whereon twenty or more persons are employed