N.K. Balakrishnan, J.

Petitioners are the accused in C.C. No. 223 of 2006 on the file of the Judicial First Class Magistrate-II, Alappuzha. Complaint was filed by the Manager, Employees' State Insurance Corporation ("the E.S.I." for short), branch office, Alappuzha, Offence alleged is u/s 85(g) of the Employees' State Insurance Act, 1948 ('ESI Act' for short). Accused are stated to be the Managing Director of M/s. Rainbow Cruises, Unit of Green Shore Holidays and Resorts Pvt. Ltd. and also the Company itself. It is contended by the complainant that the accused is a factory as defined under the E.S.I. Act. Since the accused failed to produce the records in respect of the said factory/establishment pertaining to the period from the very inception of the factory, the Insurance Inspector of the E.S.I. Corporation visited the said factory on 29-11-2005, 1-12-2005 and 9-12-2005 for the purpose of conducting inspection of the records. It was contended that prior intimation was given to the accused but they failed to produce the records for inspection. Accordingly, the matter was reported to the Divisional Officer of the E.S.I. Corporation, pursuant whereto, show-cause notice dated 23-12-2005 was issued to the accused. As per reply dated 12-1-2006 they sought three weeks' time to produce the records at the Inspector's Office, Alappuzha. That request was allowed and time was given till 15-2-2006. Still they failed to produce the records. They did not offer any explanation also. Hence, complainant contends that the accused have violated the provisions contained in Sections 44 and 45(2) of the E.S.I. Act which is punishable u/s 85(g) of the Act, The learned Magistrate took cognizance and issued process to the accused. That is being challenged in this petition filed u/s 482 of Cr. P.C. Adv. Smt. Lakshmi B. Shenoi, the learned counsel for the petitioners argued with vehemence that the petitioners are not bound to produce the records. It is also contended that the first petitioner is not the principal employer and so the cognizance taken is bad in law. It is further argued that the second petitioner Company is not a factory and as such the petitioners were not bound to produce any record or to furnish any information to the Insurance Inspector.

2. Section 2(12) of E.S.I. Act, 1948 defines factory as:-

"2(12) "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 respondent contends that when the Insurance Inspector inspected the establishment/factory he could discern that there were 29 employees working there. Their names and addresses have been furnished in the report submitted by him. Therefore, prima facie, it can be seen that it is a factory as defined under Sec. 2(12) because manufacturing process was being carried on in that premises/establishment.

Sec. 2(17) of the Act defines "principal employer":-

"Principal employer" means-

(i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named;

(ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department;

(iii) in any other establishment any person responsible for the supervision and control of the establishment.

"Immediate Employer" is defined under Sec. 2(13):-

13. Immediate employer" in relation to employees employed by or through him, means a person who has undertaken the execution,