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Employees' State Insurance Corporation Vs. Spangles and Glue Manufacturers and Anr. (02.02.1967 - PHHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(1968)ILLJ66P& H
AppellantEmployees' State Insurance Corporation
RespondentSpangles and Glue Manufacturers and Anr.
Cases ReferredIn Mr. Khadim Bibi v. Bure Khan A.I.R.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....a.n. graver, j.1. seven appeals under clause 10 of the letters patent (letters patent appeals nos. 250, 251, 252, 253, 254, 255 and 256 of 1963) shall stand disposed of by this judgment.2. a preliminary objection has been raised by counsel for respondents that all these appeals are barred by limitation. the period of limitation prescribed for filing such appeals is thirty days from the date of the judgment appealed from under rule 4 contained in chap. 1a of vol. v of the rules and orders of this court. that rule, however, provides that section 12 of the indian limitation act governs an appeal under the letters patent and the appellant in such a case is entitled to exclude the 'time requisite' for obtaining a copy of the judgment appealed against (whether such copy is filed or not) even.....
Judgment:

A.N. Graver, J.

1. Seven appeals under Clause 10 of the Letters Patent (Letters Patent Appeals Nos. 250, 251, 252, 253, 254, 255 and 256 of 1963) shall stand disposed of by this judgment.

2. A preliminary objection has been raised by counsel for respondents that all these appeals are barred by limitation. The period of limitation prescribed for filing such appeals is thirty days from the date of the judgment appealed from under Rule 4 contained in Chap. 1A of Vol. V of the Rules and Orders of this Court. That rule, however, provides that Section 12 of the Indian Limitation Act governs an appeal under the Letters Patent and the appellant in such a case is entitled to exclude the 'time requisite' for obtaining a copy of the judgment appealed against (whether such copy is filed or not) even though under the rules of the Court no copy of the judgment is required to be filed with the memorandum of appeal. On he half Of the appellant, it has been claimed that the copies were applied for, by means of a letter, dated 23 February 1963, by post of the Judgment in each case which had been delivered on 20 February 1963. The copies were despatched on 15 May 1963. The appeals were filed on 14 June 1963. If the copies, which mean certified copies, were applied for on 23 February 1963 and if they were despatched on 15 May 1963 and if that period is excluded as the time requisite, there can be no dispute that the appeals would be within time.

3. Learned counsel for the respondents maintains that the copy for obtaining which the time requisite can be excluded under Rule 4 in Chap, 1A must be a copy which is obtained for the purpose of filing an appeal in accordance with the rules contained in Chap. 5B of Vol. V of the Rules aad Orders. Rule 4 in that chapter provides that every application for a copy shall contaln the particulars given thereunder, one of which, namely, (f), is whether the copy is required for private or general use. The next Rule 5 lays down that upon the presentation or receipt of the application for a copy, the proper officer shall do the various Acts mentioned in the rule and after examining the application if it is found in proper form under the rules and practice of the Court, an order will be recorded directing the copy to be delivered. If the application is not in a proper form and is one which may not properly be granted, an order will be recorded specifying the requirements to be compiled with and directing its return to the applicant. Rule 6 gives the kinds of copies and scale of fees and court-fees. It divides copies into three kinds. The first are attested copies for private use which do not require a court-fee stamp but cannot be used officially until the prescribed court-fee has been affixed. The second are attested copies for general use on which the court-fee prescribed by various articles of the Court-fees Act must be affixed before delivery. The third kind consists of unattested copies of plaints, exhibits and depositions prepared by court stenographers under the orders of the presiding Judge. Rule 11 provides that copies of records required for public purposes by public off icers as defined in Section 2(17) of the Code of Civil Procedure of the Central or State Government in India shall be supplied free of charge provided the application for copy is endorsed by the head of the department concerned. There was a note which appeared below this in the following terms:

For the purposes of this rule the District Magistrate will be deemed to be the head of department when copies of orders passed by civil and criminal Courts are required by prosecuting agency for the purpose of appeals and revisions.

This note has been substituted by Correction slip No. 29, dated 30 May 1963, but that correction slip would not be relevant for the purposes of the present appeals because the copies were despatched on 15 May 1963, before the substitution of the old note by the new note.

4. Sri K.L. Kapur, learned Counsel for the appellant, has not denied, and indeed cannot deny, that the application which was filed for copies was made with reference to Rule 11 and not In accordance with Rules 4, 5 and 6, in Chap. VB. It would further appear that ordinarily when a certified copy is required for the purposes of filing an appeal, it has to be Applied for and obtained on payment of proper legal feed, the relevant rules being 4 to 6 and that copies which are sought to be obtained under Rule 11 free of charge are meant for the purposes mentioned in that rule, i.e., public purposes obtainable by public officers an defined in Section 2(17) of the Code of Civil Procedure. The letter, which was written for copies on 33 February 1963, was addressed to the Deputy Registrar by Sri R.K. Luthra, Regional Director of the Employees' State Insurance Corporation. This Corporation was created by the Employees' State Insurance Act, 1948 (hereinafter called the Act). The Regional Director of the Corporation cannot possibly be regarded as a public officer within the meaning of Section 2(17) of the Code; The copies, therefore, as applied for under Rule 11 could have been refused by the registry of this Court. That was not done and copies in fact ware supplied by post as stated above.

5. The double-barrelled objection on behalf of the respondents is that the copies which were obtained under Rule 11 could not be regarded as certified copies which would entitle the appellant-Corporation to exclusion of time under Rule 4 contained in Chap. 1A and that these copies did not contain the usual endorsement about the presentation of the epplloation and the date when they were ready or despatched from which alone the time requisite could be calculated. It is pointed out that if the copies had been applied for and obtained in accordance with the provisions of Rules 4 to 6 in Chap 5B, proper endorsements would have appeared on them and the appellant would have been entitled to exclude the time requisite in accordance with those endorsements. Sri Kapar has shown us the copies which were sent to the Corporation by post and although they are certified to be true copies by the proper official of this Court under seal, they do not appear to have any endorsement of the date of the application and the time when they were ready or despatched by post. Sri Kapur has placed on record a certificate of the Superintendent, Judicial, of this Court that the copies in question were despatched on 14 May 1963. Sri Kapur has referred to the letter which the Regional Director wrote on 23 February 1963, asking for the copies and it has been verified from the records kept in the office of this Court that this letter was received on 25 February 1961. From this material, it is satisfactorily established that an application was made for the copies by post by means of the letter dated 23 February 1963 and they were actually despatched on 14 May 1963. It would further appear that these copies were applied for and presumably supplied under Rule 11 although strictly speaking their supply free of charge under that rule could have been refused for the reasons already stated. The copies do not bear the endorsements which are found on certified copies obtained for the purpose of filing appeals to higher Courts which have to be applied for and obtained under Rules 4, 5 and 6 in Chap. 5B. The question still remains whether the copies in question which were obtained by the appellant can or cannot be regarded as certified copies.

6. Section 12 of the Limitation Act mentions the word 'copy' and so does Rule 4 in Chap. 1A of the Rules and Orders. Order XLI, Rule 36 of the Code makes it obligatory that certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the appellate Court and at their expense. What has, therefore, to be seen is the meaning of the word 'certified copy.' According to Section 76 of the Indian Evidence Act, every public officer having the custody of a public document, which any person has a right to inspect is bound to give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate has to be dated and subscribed by such officer with his name and his official title and has to be sealed, whenever such officer is authorized by law to make use of a seal, and such copies be certified are called certified copies. In Reasat Ali Khan v. Mahfuz Ali Khan A.I.R 1929 Lab. 771, a Division Bench held that the word 'copy' as used in Order XLI and also Order XLII of the Code of Civil Procedure clearly meant copies duly certified under the provisions of the Evidence Act and thus rendered capable of production before a Court of law for examination. In my opinion, the certificate, which appears in the copies which were supplied to the Corporation, does contain a certificate and a seal of the nature required by Section 76 and, therefore, these copies must be deemed to be certified copies within the meaning of that provision. If that be so, it is not possible to see how the appellant can be deprived if the benefit of the provision in Rule 4 in Chap. 1A by which time requisite can be excluded. If that is done, all the appeals will indisputably be within time and it would be wholly immaterial whether the copies were applied for and obtained under Rule 11 in Chap 58 or whether the registry of this Court should have refused to send the copies since Rule 11 was not applicable. No party can be made to suffer for any mistakes made by the Court or its official and even if the copies which were despatched should not have been despatched, the appellant cannot be made to suffer for any such lapes. The fact remains that the copies which must be held to be certified copies within the meaning of Section 76 of one the Evidence Act were obtained by the appellant and thus the requirement of Rule 4 In Chap. 1A is fulfilled.

7. For the purposes of deciding other points that arise is these appeals it will be convenient to divide the appeals into two groups, the first consisting of Letters Patent Appeals Nos. 250, 251, 252 and 253 of 1963 and the Second of Letters Patent Appeals Nos. 254, 255 and 256 of 1963. The facts is Letters Patent Appeal No. 250 of 1963 may be shortly stated. The Ragional Director, Employees' State Insurance Corporation, filed a petition before the Employees' Insurance Court under Section 75(2) of tae Employees' State Insurance Act, 1948, for recovery of Rs. 2046.62 in respect of employees' contribution for the period from 1 May 1955 to 30 September 1959, against Ganeshbir Singh, manager and partner of Spangles aud Giue Manufacturers and the concern itself. On the pleadings four issues were framed out of which reference may be made to the following two issues:

(2) Whether there are sufficient reasons for not making the application within the period of limitation ?

(4) Whether the petitioner is entitled to recover the employees' contribution as prayed for? If as, what amount and for what period ?

8. Under Rule 17 of the Employees' Insurance Court Rules, 1949, every application has to be brought within twelve months from the date on which the cause of motion arose or the claim bacame due. Since the claim was time-barred, the Corporation asked for extension of time under the provisions of Rule 17; the Court declined to extend the time on the ground that it was the duty of the employees of the Corporation to have given information about the time when twenty persons came to be employed in the respondent concerns. On issue (4), it was found that the amount which had been claimed by the Corporation would have been payable by the respondents if the claim had been within limitation. At appeal was preferred to this Court which came up before a learned single Judge before whom the question of the vires of Rule 17 was canvassed. He referred the appeal together with other appeals which also included the appeals which have given rise to Letters Patent Appeals Nos. 251, 252 and 253 of 1963 to a Division Bench. The Division Bench consisting of Falasnaw, C.J., and Haroans Singh, J., decided to dispose of only certain points of law leaving the learned single Judge to decide the appeals in the light of the views expressed by the Bench. The Bench decision is reported as Chanan Singh v. Employees' State Insurance Corporation, Amritsar 1964-I L.L.J 3l4. The first question was whether Rule 17 was ultra vires the powers of the State Government. This rule was hold to be intra vires by the Bench. The next point related to the definition of the term 'factory' in Section 2(12) of the Act. By Section 1(4) the Act had been made applicable to all factroies including factories belonging to the Government other than the seasonal factories. Now, a factory has been defined in the Act to mean

any premises including the problems thereof whereon twenty or more persons are working or were working on any day of the preceding twelve months....

The question which arose in the appeals before the Bench was whether the proprietor or the maneger of the concern could be included in the number of twenty intentioned in the definition for the purpose of determining whether the business fell within the definition of 'factory.' The view of the learned Chief Justice may be stated in his own words (at p 319):.In my opinion, whether the employer is to be included in the twenty persons necessary to make a premises a factory or not must depend on the facts of each particular case, and where, as must be the case in many small businesses which are on the border line of being factories within the meaning of the Act, the principal employer is a person who Actively works on the premises in connexion with the business, he must be included in the figure of twenty, but if he is the principal employer merely by being the owner or occupier of the factory and does not take any personal active part in running the business on the spot, leaving this to a manager, he should be excluded.

The learned single Judge then held in the Appeal in question that no sufficient reason had been advanced, much less proved, to enable the Court to expend the period of limitation prescribed by Rule 17. He found that the claim for the period from 25 to 31 December 1958 was within time and be made an order awarding a decree for that amount. An appeal under Clause 10 of the Letters Patent was filed against that judgment and during the pendency of the appeal, a Full Bench of this Court has held in United India Timber Works v. Employees' State insurance Corporation 1967-II L L.J. 668 that Rule 37 is ultra vires the Act and has overruled the view expressed by the Division Bench in Chanan Singh case 1964-I L.L.J. 314 (vide supra).

9. In the above situation the learned Counsel for the appellant-Corporation has claimed that the appeals should be allowed on the short ground that the Full Bench has declared Rule 17 to be ultra vires with the result that so period of limitation could be said to have been prescribed for marking a claim for the employees' contribution and since the amounts which have been determined by the insurance Court have been found to be correct, the Corporation is entitled, to a decree in each of the above four appeals. On behalf of the respondents, however, it has been contended that the decision of the Division Bench delivered in these appeals at an earlier stage has the force of res judicata and it is not open to the appellant to canvass or agitate the vires of Rule 17. In Satyadhyan Ghosal v. Smt. Deorajin Debi : [1960]3SCR590 , the landlords had obtained a decree for ejectment against tenants. Soon after the decree had been made the Calcutta Thika Tenancy Act, 1949, came in to force. The tenants made an application under Order IX, Rule 13, of the Code of Civil Procedure, for having that decree set aside. That application was dismissed. Thereafter, an appllication was made by the tenants under Section 28 of the aforesaid Act alleging that they were Thika tenants and praying that the decree made against them be rescinded. This application was resisted by the landlords. The Munsif held that the applicants were not Thika tenants and the decree was not liable to be rescinded. The tenants moved the High Court of Calcutta under Section 115 of the Code, By the time the revision application was taken up, the Calcutta Thika Tenancy Ordinance, 1952, had come in to force followed by an amendment Act. The amendment Act inter alia omitted Section 23 of the original Act. The High Court had to consider the effect of Section 1(2) of the amendment Act and it was held that the paid Act did not affect the operation of Section 28 of the original Act. The order of the Munsif was set aside and after remand the Munsif rescinded the decree. The landlords' application under Section 115 of the Code against the Munsif's order was rejected by the High Court. The attempt of the landlords to raise before the High Court again the question of the applicability of Section 28 was unsuccessful on the ground that the matter was res judicata, An appeal was then preferred by the landlords to the Supreme Court. The main argument taken before their lordships was that Section 28 of the original Act could not, after the enforcement of the amending Act, be applied to any proceedings pending on the date of the commencement, of the Ordinance. This question had been decided in another case, Mihadeolal Kanodia v. Administrator-General of West Bengal : [1960]3SCR578 in which it had been held that Section 28 of the original Act wa not applicable. It was observed by their lordships that when a matter whether on a question of fact or a question of law had been decided between two parties in one suit, or proceeding and the decision was final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lay, neither party would be allowed in a future suit or proceedings between the same parties to canvass the matter again. The principle of res judicata applied also as between two stages in the same litigation to the extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way would not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. Next the question that was posed was-

Does this however mean that because at an earlier stage of the litigation a Court had decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a big tier Court cannot at a later stage of the same litigation consider the matter again ?

This question was answered in the negative and it was held that an intereceptor order could be challenged in an appeal to a higher Court from the Goal decree or order.

10. Now, it is quite clear that the question Whether Rule 17 was intra vires had been decided by a Division Bench of this Court at an earlier stage of the same litigation and the observations of the Supreme Court would apply appositely to the extent that the parties cannot be allowed to reagitate the matter again at a subsequent stage of the same proceedings. It is equally clear that there would be no bar to a higher Court which in the present case would be the Supreme Court considering the matter again if an appeal is taken to it, but it is not possible to see how this Bench can allow the parties to reagitate the question of the vires of Rule 17 which has been decided by a Division Bench at a previous stage of these proceedings. In Balkishan Dass v. Parmeshrl Dass A.I.R. 1983 Punj. 387, a decision had been given by the High Court at an inter-locutory stage that the suit could not have been brought under the provisions of Section 92 of the Code of Civil Procedure. It was held that the same question could not be agitated again in appeal against the decree in the suit by virtue of the applicability of the rule or principle of res judicata. The decision in Satyadhyan Ghosal case : [1960]3SCR590 (vide supra) was followed and a Full Bench decision in Laxminarayan v. Sultan Jehan Begum A.I.R. 1951 Hyd. 132, was also relied upon. In the Hyderabad case, it was laid down that a final decision by a Division Bench of the High Court; against an inter-locutory order of the lower Court passed in a revision could not be agitated in an appeal against the decree is the same suit to another Division Bench of the High Court. Siddiqi, J., while discussing Section 115 of the Code, said:

But, in my opinion, that section does not authorize the appellate Court to re-consider or interfere in the judgment of a Court whose orders are not liable to be treated in an appeal as orders of a subordinate Court provided these orders are within the competence of that Court and have the character of being final and conclusive as between the parties.

11. In Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chattri A.I.R. 1984 M.P. 288, a similar view was expressed and it was laid down that the order passed by the High Court in revision was final as regards that Court and its correctness could not be challenged in appeal before the High Court and could only be challenged before the Supreme Court in an appeal from the final decree. The Madhya Pradesh Court also followed the ratio of the decision is Satyadhyan Ghosal case : [1960]3SCR590 (vida supra). The Hyderabad and the Madhya Pradesh Courts did not agree with the contrary opinion expressed in Pichu Ayyangar v. Rammanuja I.L.R. 1940 Mad. 901. It is obvious that the Madras view cannot be regarded, with respect, as correct after the decision of their lordships is Satyadhyan Ghosal case A.I.R. 1980 SC. 941 (vida supra).

12. The argument of Sri Kapur for the appellant is that since the present Bench is sitting as an appeal Court under Clause 10 of the Letters Patents, the final decision being of the learned single Judge after the appeals had been remanded to him by the Division Bench at the previous stage the decision given about the vires of Rule 17 can be reagitated and reexamined. He has invited us to reexamine it and to follow the law laid down by the Full Bench and hold that since Rule 17 is ultra vires the Act no period of limitation has been provided for the claims which were made by the appellant. He has sought to rely on certain observations in Saryadhyan Ghosal case : [1960]3SCR590 (vide supra) and says that the ratio of the decision is that an order made at an interiocutory stage can be rengitated in appeal. According to Sri Kapur, a Division Bench when hearing an appeal under Clause 10 of the Letters Patent is a higher Court and is fully competent to reexamine and even overrule the decision of this Court given at an earlier stage in the same proceedings. I find it very difficult to accede to Sri Kapur's contention either on principle or authority. It seems to me that the analogy of a remand cannot hold good in the present case. The entire appeal had been referred to the Division Bench and whatever points the Bench decided, were conclusive. Only certain points were left for decision by the learned single Judge which were referred back to him but this could not detract from the conclusiveness of the decision of the Bench on the vires of Rule 17. Moreover, on the principles laid by the Supreme Court in Satyadhvan Ghosal case : [1960]3SCR590 (vide supra), the previous order of the Division Bench with regard to the vires of Rule 17 would not be open to challenge before us whatever the position may be in an appeal to the Supreme Court against our judgment. It may be somewhat anomalous that the pro-nouncement of the Full Bench in United India Timber Works v. Employees' State Insurance Corporation 1967-II L.L.J. 568 (vide supra), cannot be followed in these cases, but, for the reasons which have been stated, it must be held that for the purposes of the first group of appeals Rule 17 is intra vires the Act.

13. Sri Kapur has next invoked the principle a enunciated in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhri A.I.R. 1941 F.C 5 and Gummalapura Taggina Matoda Kotturuswami v. Setra Veeravva A.I.R. 1959 SC 677. In the first case, it was said that the hearing of an appeal was in the nature of rehearing and in moulding the relief to be granted the appellate Court was entitled to take into account even facts and events which had come into existence after the decree. Consequently, the appellate Court was competent to take into account legislative changes since the decision in appeal was given and its powers were not confined only to seeing whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given. In the second case, Gummalapura Toggina Matada Kotturuswami A.I.R. 1959 S.C. 677 (vide supra), the decision of the Federal Court was relied on and it was reiterated that an appellate Court could take into account any change in the law. A perusal of the aforesaid two decisions shows that the facts there were entirely different and distinguishable and that there is no parallel between them and the present case. There has been no legislative change and although the law declared by the Full Bench is quite different from the one laid down by the Division Bench In these cases, it is not possible, for the reasons which have been stated, particularly owing to the applicability of the rule or principle of res judicata, to apply the law declared by the Full Bench to the first group of appeals.

14. Sri Kapur has, in the alternative, sought to argue that even if Rule 17 is intra vires, three claims were at least within time by virtue of the provisions contained in Section 18 of the Indian Limitation Act of 1908 which would be applicable. He agrees that he cannot invoke on the facts the benefit conferred by Section 18 at least in one appeal, namely, Letters Patent Appeal No. 251 of 1963, but in the other three appeals (Letters Patent Appeals Nos. 250, 252 and 253 of 1963) he maintains that Section 18 was fully attracted. That section relates to the effect of fraud and provides inter alia that where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title en which it is founded, the time limited for instituting a suit against the person guilty of the fraud or accessory there-to or against any person claiming through him otherwise in good faith and for a valuable consideration shall be computed from the time when the fraud first became known to the person injuriously affected thereby. The, submission of Sri Kapur may be stated thus. According to Section 44 of the Act every principal and immediate employer shall submit to the Corporation or such officer of the Corporation as It may direct such returns in such form and containing such particulars relating to persons employed by him or to any factory or establishment in respect of which be is the principal or immediate employer as may be specified is regulations made in this behalf. Section 85 of the Act gives the penalties for failure to pay contribution etc. And Clause (e) relates to failure or refusal to submit any return required by the regulations or making of a false return. For the above defaults the punishment is imprisonment which may extend to three months or with fine which may extend to Rs. 500 or which both. The Act would not become applicable unless twenty persons were employed in the concern. As a duty had been cast on the persons mentioned in Section 44 to make proper returns, there was deliberate failure on the part of these persons to submit the returns and give requisite information about the number of persons employed. Thus limitation would run only from the date the corporation learnt of the fraudulent with holding of information which was required to be supplied under Section 44 of the Act.

15. Sri Kapur has called attention to the facts alleged by him in the various petitions but, for our proposes, the facts in Letters Patent Appeal No. 250 of 1963 need only be mentioned. In the application dated 25 December 1959, which was filed on behalf of the Corporation under Section 76(2) of the Act for recovery of the employees' contribution. It was stated in Para 2 that Spangles and Glue Manufacturers had been a factory since 1 May 1955, and Ganeshbir Singh by virtue of his being the manager and partner of the factory was the principal employer as defined in Sub-section (17) of Section 2 of the Act. Paragraph 5 which related to the cause of action may be reproduced to the extent necessary:

5(a)(i) That the cause of action [details explained in 5(b)] arose on 8 March 1959, when the SC. 1 form indicating the employees' position, was submitted by the employer to this office.

(b) That respondent 1-vide his letter dated 22 January 1959-asked the-applicant office about the coverage of his factory.

(II) That the applicant there upon- Vide his letter dated 7 February 1959- requested the respondent to furnish the employment position of his factory month wise with a view to deciding its coverage.

(III) That the respondent, in reply, submitted the monthwise employment position of his factory in the SC. 1 form since 1 January 1955,

(iv) That the applicant, deciding the coverage of the factory, allotted code No. 12-2567 to the factory and requested the respondents to pay the arrears of employers' special contribution and employees' contribution since the date they had employed twenty or more persons for the first time, as their factory was deemed to be covered since such date.

(v) That the respondents, despite repeated requests and reminders, have been evading the production of the records for assessment of the contributions due and thus their payments.

(vi) That the provisions of the Employees' State Insurance Act, 1948, being mandatory, respondent 1 was required to get his factory covered under the Act immediately, Just after he had employed twenty or more persons for the first time. But, in spite of his employing twenty persons including the manager since 1 May 1955, respondent 1 did not intimate the applicant about the coverage of his factory before 22 Jannary 1959.

16. In Para. 6. It was stated that if the application was barred by time, limitation might be relaxed in accordance with Rule 17 on the ground of sufficiency of the reasons given above. Sri Kapur says that in Para. 5 all the necessary facts had been stated for proving fraud and invoking the applicability of Section 18 of the limitation Act. He admits that in Para 6 a prayer was made for extension of time in accordance with Rule 17 but that situation would only arise If Section 18 was not applicable and did not cover the case. He agrees that it was not specifically stated anywhere in the application either in Para. 5 or 6 that the Corporation had been kept from the knowledge of the right to claim the contribution by means of fraud on the part of the respondents but as all the necessary particulars had been stated on Which fraud can be found, he has invited us to go into the questions of fraud and determine its effect in accordance with the provision of Section 38 Order VI, Rule 4, of the Code of Civil Prooedure provides that in all cases in which the party pleading relies on any misrepresentation, fraud, etc., particulars shall be stated in the pleading. It is contended by Sri Kapur that these essential particulars had all been stated and are to be found in Para 5 and it is wholly immaterial that an express plea of fraud was not taken. But the cases of action arose on 3 March 1959, because of the applicability of Section 18 of the Limitation Act. Says Sri Kapur and rightly, that facts have to be pleaded and not the law. The extension asked for in Para. 6 was sought only in the event of the application being barred by time which could not be if the facts which had been Stated in Para. 5 stood established and Sri Kapur claims that they remained uncon-troverced and unchallenged. Order VII, Rule 6, of the Code of Civil Prooedure provides that where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. According to Sri Kapur, all the necessary facts are stated in Para. 5 for claiming such exemption. Our attention has been invited by him to two Lahore decisions in connexion with the applicability of Section 18 of the Limitation Act. In Ganesha v. Sadiq A.I.R. 1937 Lah. 97 it was held that when a transaction of sale was frauduently described as one conferring occupancy rights on the purchaser in order to defeat the rights of preexamption, the limitation for pre-exemption would begin to run from the date on which the pre-examptor came to know of the fraud. In Mr. Khadim Bibi v. Bure Khan A.I.R. 1943 Lah. 216, a Mahomedan husband was found to have deliberately and fraudulently withheld from his wife the knowledge of divorce. It was held that since the wife did not know of her right to claim dower by reason of the fraud, time to institute suit for her dower debt would run from the date the fraud became known to her. According to Sri Kapur, it was the duty of the respondents to comply with the provisions of the statute and give the requisite information as provided by Section 44 of the Act. When that had not been done and the necessary facts which would show that the concerns in question fell within the category of a factory within the meaning of the Act had been withheld, the time to file an application for recovery of the employees' contribution under the Act would run only from the time when the fraudulent withholding of Information became known to the Corporation. For instance, in the case of Spargles and Glue Manufacturers twenty persons including the manager had been employed since 1 May 1955, but no intimation was sent to the Corporation in this behalf before 3 March 1959. This would attract the applicability of Section 18 and limitation would run from 3 March 1959, when the cause of action is stated to have arisen.

17. Now, so far as reliance on Section 18 of the Limitation Act is concerned, it does not appear that before the insurance Court any attempt was made to obtain the benifit of the said provision. As stated before, the Corporation asked for extension of time under the provisions of Rule 17. This is so with regard to the case of Spargles and Glue Manufacturers, the facts of which have been mostly kept in view while dealing with the various points raised in these appeals, As regards Letters Petition Appeal No. 252 of 1963, the Insurance Court was of the view that if Rule 17 was Intra vires, then, in the circumstances of the case, the Corporation was entitled to the benefit of extension of the period of limitation under Rule 17. It however, held that the rule was ultra vires. The same view was expressed by the Insurance Court in Letters Patent Appeal No. 253 of 1963. The learned single Judge in these appeals after the Division Bench had held that Rule 17 was ultra vires merely addressed himself to the question whether there was sufficient ground for extension of the period of limitation under that rule in each of these cases. He did not examine the applicability of Section 18 of the Limitation Act or the argument which has now been addressed to as in respect of it. Ordinarily, if there is no mention or discussion in the Judgment of a learned single Judge of a particular question or point, it has to be assumed that the same was not agitated or pressed before him. Sri Kapur, however, made a categorical statement at the bar that he had argued the question of the applicability of Section 18 of the Limitation Act fully and had even cited the two Lahore decisions before the learned single Judge. In these circumstances, we do not consider that Sri Kapur should be debarred from raising the question of limitation which even otherwise can be raised at any stage of the proceedings. There are, however, a few hurdles in the way of the appellant-Corporation obtaining a decision from us on the question of limitation. It cannot be denied that in each one of the cases in which Section 18 had been relied upon, it would be necessary to go into questions of fact-

(a) with regard to the fraud by which the Corporation was kept from the knowledge of making an application before the Employees' Insurance Court under Section 72(2) of the Act, and

(b) the point of time when the Corporation came to know of its rights to make an application.

Another ancillary but material question which will arise and which will have to be determined will be whether the proprietor or the manager of the concern could be included in the number of twenty mentioned in the definition of factory. This, as laid down by the Division Bench in the passage extracted before, would depend on the facts of each particular case. The determination of this question will have a good deal of bearing on the decision relating to the applicability of Section 18 of the Limitation Act. The only appropriate Court for determination of all these matters would naturally be the Court of first instance because, under Section 82 of the Act, an appeal lies to this Court from an order of the Employees' Insurance Court only if it involves a substantial question of law. The matters that will be decided with reference to Section 18 of the Limitation Act would be mixed questions of law and fact and, therefore, the decision of the Employees' Insurance Court would be final unless its decision involves a substantial question of law. Accordingly, Letters Patent Appeals Nos. 250, 252 and 253 of 1963 are allowed and the orders of the learned single Judge are set aside. These matters shall go back to the Employees' Insurance Court for fresh decision in accordance with law and in the light of the observations made in this judgment. Parties to appear there on 6 March 1967. As regards Letters Patent Appeal No. 251 of 1963, the same is dismissed. There will be no order as to costs in all these four appeals.

18. In the second group of appeals, namely, Letters Patent Appeals Nos. 254, 255 and 256 of 1963, it is common ground that they stand concluded by the decision of the Full Bench in Chanan Singh case 1964-I L.L.J. 314 (vide supra). There is no previous decision in these appeals of this Court of the same nature as was delivered by the Division Bench in 1964-I L.L.J. 314 (vide supra). The only point which Sri B.R. Tuli agitated on behalf of the respondents was the preliminary objection that the appeals under Clause 10 of the Letters Patent were barred. That point has been discussed fully when dealing with the preliminary objection raised in all the seven appeals. These appeals are consequently allowed and the order of the learned single Judge is set aside and that of the Employees' Insurance Court restored. In the circumstances, there will be no order as to costs.

Mehar Singh, C.J.

19. I agree.


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