2025:JHHC:10063 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 351 of 2023 1. M/s Oriental Enterprises, a proprietorship concern, having its address' as House No.25, Ashok Vihar Extension (West), P.O. & P.S.-Argora, District-Ranchi, Jharkhand- 834002, having its Proprietor as Smt. Tanuja Kumar, aged about 61 years, wife of Late Krishna Kumar, resident of House No.25, Ashok Vihar Extension (West), P.O. & P.S.-Argora, District- Ranchi, Jharkhand- 834002, through the duly authorized representative/signatory Sri. Manoj Sinha, aged about 58 years, son of Late N. Sinha, resident of Janki Apartment, Inner Circle Road, Contractors Area, Bistupur, Jamshedpur, P.O. & P.S.-Bistupur, District-East Singhbhum, Jharkhand-831001, constituted vide Power of Attorney dated 4.3.2017 enclosed as Annexure-10 to this Appeal; 2. Tanuja Kumar, aged about 61 years, wife of Late Krishna Kumar, proprietor of M/s Oriental Enterprises, resident of House No.25, Ashok Vihar Extension (West), P.O. & P.S.-Argora, District-Ranchi, Jharkhand- 834002, through the duly authorized representative/signatory Sri. Manoj Sinha, aged about 58 years, son of Late N. Sinha, resident of Janki Apartment, Inner Circle Road, Contractors Area, Bistupur, Jamshedpur, P.O. & P.S.-Bistupur, District-East Singhbhum, Jharkhand- 831001, constituted vide Power of Attorney dated 4.3.2017 enclosed as Annexure-10 to this Appeal; 3. Manoj Sinha, aged about 58 years, son of Late N. Sinha, authorized representative/signatory of the proprietor-Smt. Tanuja Kumar, resident of Janki Apartment, Inner Circle Road, Contractors Area, Bistupur, Jamshedpur, P.O. & P.S.-Bistupur, District-East Singhbhum, Jharkhand- 831001, constituted vide Power of Attorney dated 4.3.2017 enclosed as Annexure-10 to this Appeal. ……………./Appellants Versus 1. Union of India, the Director, Employees State Insurance Corporation, having its regional office at Namkum, ESI Hospital Campus, P.O. & P.S- Namkum, District-Ranchi, Jharkhand; 2. Appellate Authority, Regional Director, Employees State Insurance Corporation, having its regional office at Namkum, ESI Hospital Campus, P.O. & P.S- Namkum, District-Ranchi, Jharkhand; 3. Deputy Director, Employees State Insurance Corporation, having its regional office at Namkum, ESI Hospital Campus, P.O. & P.S- Namkum, District-Ranchi, Jharkhand. .…… Respondents CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Appellants : Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate Mr. Ankit Khandelwal, Advocate For the Respondents : Mr. Ashutosh Anand, Advocate ………. 2025:JHHC:10063 2 08/Dated: 09/04/2025 Heard Mr. Pandey Neeraj Rai assisted by Mr. Ankit Khandelwal, learned counsel for the appellants and Mr. Ashutosh Anand, learned counsel for the respondents. 2. This appeal has been preferred under section 82 of the Employees State Insurance Act, 1948 challenging the validity and legality of the judgment dated 11.08.2023 passed in ESI Case No. 03/2017 by the learned Presiding Officer, Employees’ Insurance Court-cum-Labour Court, Ranchi dismissing the said case filed under Section 74 (1) (a) & (g) of the Employees’ State Insurance Act, 1948. 3. Mr. Pandey Neeraj Rai, learned counsel for the appellants submits that the appellant’s establishment was falling under the regime of Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and it obtained Employees’ Provident Funds registration under the said Act and it was consequently given EPF ID after creation of the State of Jharkhand. He further submits that pursuant to ESI regime an inspection was made by the Insurance Inspector, ESIC, Ranchi and a preliminary report was submitted to the effect that the factory of the appellant Oriental Enterprises was covered under the ESI Act with effect from 01.02.2001. He submits that thereafter contribution was being paid. He submits that the appellant is having two units, one at Ranchi and another at Jamshedpur. According to him Unit of Ranchi is not operative and the learned court has erred in passing the said order of contribution with regard to ESI for the unit at Ranchi which is not functioning. He submits that Exhibit-I was heavily relied by the corporation and that is not in accordance with Section 65-B of Indian Evidence Act and there was no inspection. He submits that once the unit in question was closed there is no question of contribution in the head of ESI. On the point of Section 65-B, he relied in the case of “Ravinder Singh @ Kaku Vs. State of Punjab reported in (2022) 7 SCC 581. He refers to para 21 of the 2025:JHHC:10063 3 said judgment which is quoted hereinbelow:- “ 21. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under section 65A and 65B of the Indian Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. vs P.K. Basheer & Ors [ (2014) 10 SCC 473] occupies the filed in this area of law or whether Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1] wherein the court has held that: “61.We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.. 73.1. Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled. 73.2 The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).” 4. On the same line he further relied in the case of “ Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others” reported in (2020) 7 SCC 1. He refers to para 60 and 61 of the said judgment which is quoted hereinbelow:- “ 60. It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device, as also the person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief” (Obviously, the word “and” between knowledge and belief in Section 65B(4) must be read as “or”, as a person cannot testify to the best of his knowledge and belief at the same time). 2025:JHHC:10063 4 61. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.” 5. Relying on the above two judgments he submits that certificate under 65-B is not correct one in view of that learned court has further erred in relying Exhibit-I. On these grounds, he submits that substantial question of law is there in view of that this appeal may kindly be admitted. 6. Per contra, Mr. Ashutosh Anand, learned counsel for the respondents opposes the prayer and submits that learned Labour Court has dealt with minutely about the running of unit at Ranchi. He submits that so far Indian Evidence Act is concerned that is not fully applicable that has been held in the several judgments of the Hon’ble Supreme Court. He relied in the case of “ Bhavnagar Municipal Corporation and others Vs. Jadeja Govubha Chhanubha and Another” reported in (2014) 16 SCC 130. He refers to para 8 of the said judgment which is quoted hereinbelow:=- “ 8. The Labour Court has, in the case at hand, placed reliance upon a xerox copy of a certificate allegedly issued by an officer of the appellant Corporation stating that the respondent was in the employment of the appellant Corporation as a Conductor between 3-10-1987 and 31-3- 1989. While it is true that the xerox copy may not be evidence by itself specially when the respondent had stated that the original was with him, but had chosen not to produce the same yet the fact remains that the document was allowed to be marked at the trial and signature of the officer issuing the certificate by another officer who was examined by the appellant. Strict rules of evidence, it is fairly well-settled, are not applicable to the proceedings before the Labour Court. That being so the admission of the xerox copy of the certificate, without any objection from the appellant Corporation, cannot be faulted at this belated stage. When seen in the light of the assertion of the respondent, the certificate in question clearly supported the respondent's case that he was in the employment of the appellant Corporation for the period mentioned above and had completed 240 days of continuous service. That being so, non-payment of retrenchment compensation was sufficient to render the termination illegal. Inasmuch as the Labour Court declared that to be so it committed no mistake nor was there any room for the High Court to interfere with the said finding especially when the findings could not be described as perverse or without any evidence. The High Court was also justified in directing deletion of the back wages from the award made by the Labour Court 2025:JHHC:10063 5 against which deletion, the respondent did not agitate either before the Division Bench by filing an appeal before us. “ 7. On the same line he further relied in the case of “Amar Chakravarty and others Vs. Maruti Suzuki India Limited” reported in (2010) 14 SCC 471. He refers to para 12 of the said judgment which is quoted hereinbelow:- “12. In our opinion, in the light of the settled legal position on the point, the judgment of the High Court is clearly indefensible. Whilst it is true that d the provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication, it is trite that its general principles do apply in proceedings before the Industrial Tribunal or the Labour Court, as the case may be. (See Municipal Corpn., Faridabad v. Siri Niwas.) In any proceeding, the burden of proving a fact lies on the party that substantially asserts the affirmative of the issue, and not on the party who denies it. (See e Anil Rishi v. Gurbaksh Singh, SCC p. 561, para 9.) Therefore, it follows that where an employer asserts misconduct on the part of the workman and dismisses or discharges him on that ground, it is for him to prove misconduct by the workman before the Industrial Tribunal or the Labour Court, as the case may be, by leading relevant evidence before it and it is open to the workman to adduce evidence contra. In the first instance, a workman cannot f be asked to prove that he has not committed any act tantamounting to misconduct.” 8. Lastly on the issue of Section 65-B and non- applicability of Indian Evidence Act, he relied judgment of the Bombay High Court in the case of “ Umashankar D. Shukla Vs. New Shakti Dye Works Pvt. Ltd.” reported in (2002) SCC Online Bom 273. He refers to para 14 of the said judgment which is quoted hereinbelow:- “ 14. I am fully fortified in my view in respect of interpretation of pleading by the Division Bench of our High Court (B.N. Srikrishna and Radhakrishna, JJ.) that has aptly observed in Appeal No. 293 of 2000 in Writ Petition No. 106 of 1999 between (Welcome Group Searock v. Searock Hotel Employees Union)2, as under (unreported). "The industrial adjudicators either under the B.I.R. Act or under the I.D. Act or under any labour law must remember that without allowing the parties to fly at tangents from the pleadings, a case must be considered broadly as put forward by the parties without being too finicky and pedantic or hyper- technical while reading the application or statement of claim filed by the employees or the union. Neither the employees are legally trained persons nor the union have expertise of solicitor's firm. The Labour Court shall bear in mind and remember that the trial conducted before it is not a sessions trial, nor is it strictly governed by the Evidence Act. Wider latitude is required to be shown in industrial adjudication of all kind and pleadings cannot be read and construed as in a civil suit." 9. Relying on above three judgements he submits that in the light of these judgments, Section 65-B is not applicable. In the strict sense Section 65-B will not apply. However, he submits that Exhibit-I is a document which has been 2025:JHHC:10063 6 downloaded from the website of the Employees Provident Fund and it has been signed by the Social Security Officer of the ESI Corporation. He further draws the attention of the Court to the impugned judgement of the learned Presiding Officer and submits that the learned court has taken care of consideration of Section 101 and 102 of Indian Evidence Act at para 14. By way of drawing the attention of the Court to paras 22 and 23 of the impugned judgement he submits that admission of A.W.1 is there of running the unit at Ranchi. On these grounds he submits that there is no substantial question of law and in view of that this appeal may kindly be dismissed. 10. In view of above submission of the learned counsel for the parties and going through the records, it transpires that appellants herein are running units one at Ranchi and another at Jamshedpur and it is further an admitted position that ESI for the Ranchi unit was also being paid however it was contended that said unit was not operative since 2014 for that a proceeding under section 45A was in which despite providing opportunity to the appellants, the appellants have not participated and it has been found that the appellants herein are liable to pay contribution under the ESI. Section 45AA procedure has also been followed. Thereafter the appellants herein invoked section 75 1(g) by way of disputing the same which has been decided by the learned Presiding Officer, Labour Court. The learned Presiding Officer in para 22 of the judgement appreciated the deposition of A.W.1 and has found that witness has deposed that the applicant no.1 has opened a branch office at Jamshedpur and applied for sub- code and respondents by letter dated 22.09.2014 informed that sub-code number has been allotted. In para 7 of examination-in-chief, this witness has deposed that the applicant used to maintain the details of payment of allowances ESI, Provident Fund and Income Tax etc to its employees. In cross examination in para 29 he has deposed that certificate regarding information of closing Ranchi unit has not been filed in the Court. Thus in view of that it is an admitted position that closure has 2025:JHHC:10063 7 not been informed to the Corporation. The suggestion was made by the ESI to that effect to which he has denied. In para 29 of cross examination this witness has stated that no work is being performed at Ranchi office and only letter etc are being received. He further stated that office is running and in view of that learned court has found that in the light of evidence of A.W.1 itself the functioning of the Ranchi unit has been proved. That aspect has been rightly appreciated by the learned court and to that effect there is no perversity. 11. The Act not having prescribed any specific tests for determining what is "one establishment," for that fall back on such considerations as in the ordinary industrial or business sense determine the unity of an industrial establishment, having regard no doubt to the scheme and object of the Act and other relevant provisions of ESI, Provident Fund as well as the unit in question. In what sense "one establishment" in the ordinary industrial or business is said to be a combined unit. The question of unity or oneness presents difficulties when the industrial establishment consists of parts, units, departments, branches, etc. If it is strictly unitary in the sense of having one location and one unity only, there is little difficulty in saying that it is one establishment. Where, however, the industrial undertaking has parts, branches, departments, units, etc., with different locations, near or distant, the question arises what tests should be applied for determining what constitutes "one establishment”. Several tests are there such as geographical proximity, unity of ownership, management and control, unity of employment and conditions of service, functional integrality, general unity of purpose, etc. 12. In view of that in each and every case, a Strait Jacket Formula cannot be applied for finding out unity of establishment and that depends upon the fact and circumstances of each case. 13. Exhibit-I is a document which suggests that provident is deposited so far the Ranchi Unit. It is further an admitted position that unit in question was paying the contribution upto 2014 which clearly suggests that 2025:JHHC:10063 8 establishment was covered under the said Act and by way of evidence of A.W.1 running of Ranchi unit is already proved which is on record of the learned Presiding Officer. 14. So far the argument on behalf of Mr. Rai with regard to Section 65B of the Evidence Act is concerned, certificate is required in the light of sub section 4 of 65 B of Indian Evidence Act and sub section 4 (C) of Section 65 B stipulates as under:- “4) (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.” 15. In view of above it is crystal clear that the said document is required to be signed by responsible person. Exhibit-I has been signed by Social Security Officer of ESI Corporation and that document has been downloaded from the website of EPFO thus, prima facie it appears that a responsible person has signed the said certificate and further so far Act is concerned the applicability of the Indian Evidence Act is not requirement in the light of three judgments relied by the learned counsel for the respondents in the case of “Amar Chakravarty” (supra), Umashankar D. Shukla (supra) and Bhavnagar Municipal Corporation (supra). 16. The Act in question is a welfare legislation. It is well settled that if two interpretations are there the interpretation nearer to the have-nots should be in their favour. 17. In view of above facts, reasons and analysis the Court finds that the unity and running of unit in question has been proved. There is no illegality in the judgment of the learned Presiding Officer, Labour Court and as such there is no substantial question of law involved in this appeal under section 82 of the Employees State Insurance Act. Accordingly, this appeal is dismissed. Pending I.A, 2025:JHHC:10063 9 if any, stands dismissed. 18. Let Trial Court Record be sent to the concerned court forthwith. ( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R.