The judgment and order dated 20.11.2003 passed by the learned E.S.I. Court in E.S.I. Case No. 7/2000 has been called in question in this appeal under Section 82 of the Employees’ State Insurance Act, 1948 (hereinafter referred to as ‘the ESI Act’).

2. One Ashis Agarwal claiming to be proprietor of M/S Super White Industries, Katahbari, Guwahati-25, filed an application under Section 75 of the ESI Act before the E.S.I. Court stating that two notices were served on him on 05.01.1998 and 07.04.1998 asking for a sum of Rs. 6,435/- as contribution for the period from April, 1997 to September, 1997 and also demanding recovery of the same, were not maintainable and illegal inasmuch as, the ESI Act itself is not applicable to his firm. He stated that he maintained muster rolls, wage register, cash book etc. and on 05.03.1998, an inspector of the E.S.I. Corporation visited his concern. He wrongly described the concern to be a partnership one with one Sajjan Agarwal who has no relation in connection whatsoever, with the business at all. The aforesaid notices dated 05.01.1998 and 07.04.1998 were wrongly issued considering that the firm of the petitioner is a factory within the meaning of Section 2(12) of the ESI Act. He stated that in no point of time he had ten or more than ten employees in his establishment and so there was no question of applying the provisions of the ESI Act in this case. The petitioner also took other objections as to jurisdiction of the inspector and applicability of the Act for lack of notification etc.

3. On being summoned, the E.S.I. Corporation submitted written statement denying the statements made by the petitioner and specifically claimed that on 26.02.1997 when the Inspector conducted preliminary inspection, one Ratan Roy claiming to the manager of the firm had informed him that it was a partnership concern of Sri Ashis Agarwal and Sri Sajjan Agarwal. But subsequently on 04.09.1998 and 05.09.1998 when he paid visit again, he was confronted by another manager named as P.K. Jha and he informed that the firm is a proprietorial one belonging to Ashis Agarwal. In the reply, Inspector claimed that in his visit on 26.02.1997 he found that the factory was being run by using power and that there were ten or more persons working in it since January, 1996. Accordingly, by letter dated 28.02.1997 the ESI Act was provisionally applied to the firm w.e.f. 01.06.1996. The opposite party also claimed that despite giving all opportunities, the petitioner did not furnish necessary documents to the authority.

4. The petitioner as well as opposite party Corporation examined one witness each. Both the parties adduced documentary evidence. Petitioner Ashis Agarwal examined himself as PW 1 and proved three (3) Attendance Registers as Ext. 1, Ext. 2 and Ext. 3. The opposite party, on the other hand, examined 4 documents as Ext. A, B, C and D which are reports of the Inspector on different dates.

5. After hearing the learned counsel for the parties, the E.S.I. Court did not find any reason in favour of the argument made by E.S.I.C but placing reliance on the Attendance Registers, namely, Ext. 1, 2 and 3, the learned trial court came to a finding that in no point of time there were ten or more than ten employees in the establishment. The learned trial court found that Ext. 2 is the Attendance Register for the period from April, 1996 to March, 1997 and it shows that 9 employees were working in the establishment during the relevant period. Similarly, Ext. 3 which is the Attendance Register for the period from April, 1997 to March, 1998 shows that there were less than 10 persons employed in the concern. Ext. 4 is the Attendance Register for the period from April, 1998 to March, 1999 and it shows that there were not more than 8 employees in any month during this whole period. The PW 1 who exhibited these 3 (three) registers were put to cross examination.

6. Having gone through the depositions, the learned trial court did not