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Prem Sukh and ors. Vs. Manager, E.S.i. Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc Appeal No. 41 of 1972
Judge
Reported in1981WLN79
AppellantPrem Sukh and ors.
RespondentManager, E.S.i. Corporation and ors.
DispositionAppeal dismissed
Cases ReferredJodhpur v. The Regional Director
Excerpt:
.....in sub-section (2) of section 82 of the act that an appeal lies to this court from an order of an employees' insurance court, if it involves a substantial question of law.;(b) employee state insurance act, 1948 - section 2(5)--definition of 'factory' emended--held, liability arisen under old definition is not extinguished after amendment.;the words 'are employed or were employed for wages' were substituted with effect from 28.1.1968. it would mean that the amended definition came into force on that date and if on that date on any premises if 20 or more persons are employed or were employed for wages on any day of the preceding twelve months, then such premises will be 'factory' within the meaning of the amended definition. the liability, which has arisen under the old definition, has..........referred to as 'the act'), against the judgment and decree dated 24.9.1971, passed by the employees insurance court (civil judge), jodhpur, in insurance case no. 3 of 1965.2. the manager, employees' state insurance corporation, 787, chopasani road, sardarpura, jodhpur (hereinafter referred to as 'the corporation'), submitted an application under section 75(2) of the act for the recovery of employees' contribution amounting to rs. 1,680/- from the non-applicant-appellants. it was alleged that m/s. bharat industries, chopasni road, jodhpur, non-applicant no. 6 is a factory with effect from 1.6.1962 under section 2(12) of the act and the other non-applicants are its principal employers under section 2(17) of the act. the non-applicants are liable to pay to the applicant employees'.....
Judgment:

M.C. Jain, J.

1. This is an appeal under Section 82 of the Employees State Insurance Act, 1948 (hereinafter referred to as 'the Act'), against the judgment and decree dated 24.9.1971, passed by the Employees Insurance Court (Civil Judge), Jodhpur, in Insurance Case No. 3 of 1965.

2. The Manager, Employees' State Insurance Corporation, 787, Chopasani Road, Sardarpura, Jodhpur (hereinafter referred to as 'the Corporation'), submitted an application under Section 75(2) of the Act for the recovery of employees' contribution amounting to Rs. 1,680/- from the non-applicant-appellants. It was alleged that M/s. Bharat Industries, Chopasni Road, Jodhpur, non-applicant No. 6 is a factory with effect from 1.6.1962 under Section 2(12) of the Act and the other non-applicants are its principal employers under Section 2(17) of the Act. The non-applicants are liable to pay to the applicant employees' contribution under Section 40. The contribution was calculated at Rs. 1,680/- and a decree was prayed for in respect of that amount.

3. The non-applicants No. 1, 2 and 6 filed a joint written statement and contested their liability to pay the amount of contribution of the employees. The contest was raised on the ground that M/s. Bharat Industries is not a factory within the meaning of Section 2(12) of the Act since 1.6.62, as such, they are not liable to pay any contribution and they are also not liable to maintain any register and file the periodical returns. The quantum of contribution was also challenged. It was further pleaded that 20 persons never worked in the firm and the partners cannot be counted as workers. The plea of limitation was also raised and in the end it was prayed that the application be rejected with costs.

4. The learned Insurance Court framed the issues. If rendered into English, they are as follows:

(1) Whether the non-petitioner Bharat Industries is a factory within the meaning of the Act and from what date?

(2) Whether the claim of the applicant is within time?

(3) Whether the applicant is entitled to get Rs. 1,680/- from the non-applicants.

(4) Whether the applicant is not entitled to get contribution from 1.6.1962?

(5) Relief.

5. The learned Insurance Court recorded the evidence of the parties. Jagdish Chandra Soyan, Manager, Employees' State insurance Corporation was examined as A.W. 1 and the non-applicants examined Premsukh (N.A.W.I) and Sagarmal (N.A.W. 2). After hearing the arguments the learned Insurance Court recorded the findings on issues. Issues No. 1 and 4 were dealt with together and both were decided in favour of the applicant. It was held that Messrs. Bharat Industries is a factory and further held that since the number of persons has been 20 or more during the period from 1.6.1962 to 31.12.1964, the non-applicants were liable to pay contribution from 1.6.1962. The other issues were also decided in favour of the applicant. Consequently, a decree for a sum of Rs. 1,680/- with costs and pendant lite and future interest, was passed. Dissatisfied with the judgment and decree, the non-applicants have filed this appeal.

6. I have heard Shri R. L. Jangid, learned Counsel for the appellants and Shri U. R. Tatia, learned Counsel for the Corporation.

7. Shri Jangid in the beginning tried to challenge the finding on the question as to whether M/s. Bharat Industries is a factory or not and in that connection he tried to emphasise that if partners are excluded from the total strength of workers, then M/s. Bharat Industries ceases to be a factory. The partners of the firm should not have been considered in the category of workers. If they are excluded, then the firm would not be covered within the definition of the expression 'Factory' as defined under Section 2(12) of the Act, as it stood prior to Amendment Act No. 44 of 1966. In this connection it may be pointed out that whether the partners were workers in the factory or not, is a question of fact and on the evidence of Shri Jagdish Chandra Soyan, Manager, and the admission made by the partner Premsukh, the learned Insurance Court has recorded a finding that the partners of the factory would be regarded as persons working in it, and, the premises, therefore, shall be regarded as a factory within the meaning of the Act. Admittedly, if the partners are included in the total number of persons working in the factory, then the number of workers is 20 or more during the period from 1.6.1962 to 31.12.1964. Shri Jangid does not dispute this aspect of the case that in case the partners are included in the total number of workers, then during the above period the number of workers is 20 or more. So far as the question as to whether the partners can be included in the total number of workers, it may be stated that that has been decided by this Court in D. B. Civil Reference No. 3 of 1967- Bharat Industries, Jodhpur v. The Regional Director, Employees' State Insurance Corporation, Jaipur, decided on 29.8.1969, on a reference made by the Insurance Court in this very case. Thus, that question is now no more resintegra between the parties. On facts, it has been found that the partners were actually working in the factory and on that basis a finding has been rightly reached that the firm M/s. Bharat Industries is a factory. This contention is not available to the appellants in this appeal in view of the provisions contained in Sub-section (2) of Section 82 of the Act that an appeal lies to this Court from an order of an Employees' Insurance Court, if it involves a substantial question of law.

8. It is next argued by Shri Jangid, learned Counsel for the appellants, that the definition of the expression 'Factory' was amended by Act No. 44 of 1966 and for the words 'are working or were working', the words 'are employed or were employed for wages' have been substituted. The amended definition should be given retrospective operation and in case retrospective operation is given, then the appeal ant-firm ceases to be a factory for the period commencing from 1.6.1962 to 31.12.1964. He pointed out that the partners cannot be considered as employed for wages. They are not employees in the firm as defined in clause (9) of Section 2 of the Act, so the firm cannot be considered to be a 'factory.'

9. Shri Tatia, learned Counsel for the respondents, on the other hand, submitted that the Corporation has claimed contribution for the period 1.6.1962 to 31.12.1964 and had submitted an application on 8.10.1965 before coming into force of Act No. 44 of 1966. Act No. 44 of 1966, whereby the definition of word 'Factory', has been amended, will have application from the date it has come into force. Its operation, according to Shri Tatia, is only prospective. The amended definition cannot apply to cases prior to the commencement of the amending Act. The matter has to be examined only in the light of the definition, as it stood prior to the amending Act of 1966. He pointed out that in the Reference, referred to above, one of the questions referred, was as to whether the Employees' State Insurance Act. 1948 is retrospective in operation? This question was answered in the negative and it was held that the Act is not retrospective in operation. Similarly, the amending Act of 1966 is also not retrospective in operation.

10. I have carefully considered the submissions of the learned Counsel for both the parties. The question that emerges for consideration, is as to whether the amended definition of the expression 'Factory' should operate retrospectively. By Section 2 Clause (5), sub-clause (a) (i) for the words 'are working or were working', the words 'are employed or were employed for wages', were substituted. The Legislature has not used the expression that these words shall always be deemed to have been substituted. The mere provision of substitution is indicative of the legislative intent that these words shall be considered within the definition of the expression 'Factory' from the date the amending Act comes into force. Whether a law or a provision of law is prospective or retrospective, is a question, which has to be answered on the basis of the language employed, if the intention to make the law retrospective, is manifest from the language employed, then the law should be given retrospective operation or if that intension can be gathered by necessary intendment, then also the law should be given retrospective operation, but where such an intention cannot be gathered either expressly or by necessary intendment, then the law has to be given prospective operation. The normal rule of interpretation is that the law should be given prospective operation, unless the intention is otherwise reflected, expressly or impliedy, in the language or the statute. If the Legislature intended to apply the amended definition of the expression 'Factory' retrospectively, it would have certainly reflected that intention in the provision of the amending Act. There does not appear to be any reason in the present case to depart from the normal rule of interpretation. I have not been referred to any specific provision of the amending Act whereby it can be said that the amended definition of the expression 'Factory' shall apply to pending matters and old cases. The intention appears to be manifest that from the data of enforcing of the amending Act, such premises where 20 or more persons are employed or were employed for wages on any day preceding twelve months, shall be considered to be a factory. Prior to the enforcement of the amending Act. the only requirement was that 20 or more persons should be found to be working on any day of the precedine twelve months. Shri Tatia concedes that in case the amended definition of the word 'Factory' is applied to the present case, then the premises of the firm ceases to be factory and there would be no liability for payment of employees' contribution, Shri Jangid placed emphasis on the words 'were employed'. He submitted that past tense has been used, which suggests that if persons were employed prior to the coming into force of the Amending Act, then such persons can be considered for the purpose of determining the total strength of workers on any day of the preceeding twelve months and so the intention from these words appears to be that the amended definition of the word 'Factory' should be given retrospective operation. I am unable to agree with this submission of Shri Jangid. The words 'were employed for wages' have to be read along with the words 'on any day of the preceding twelve months'. The words 'are employed or were employed for wages' were substituted with effect from 28.1.1968. It would mean that the amended definition came into force on that date and if on that date on any premises if 20 or more persons are employed or were employed for wages on any day of the preceding twelve months, then such premises will be 'Factory ' within the meaning of the amended definition. The liability, which has arisen under the old definition, has not in any way been abolished or extinguished. If such would have been the intention, in my opinion, the substitution would have been effected by fiction or by a deeming provision. As it has not be done, so the liability under the old definition continued till the amending provision came into force. Thus, I do not find any validity in the contention of Shri Jangid that the amended definition of the word 'Factory' shall apply to the present case.

11. Shri Jangid, learned Counsel for the appellants, next argued that the learned Insurance Court was in error in holding that the appellants' premises were 'factory' with effect from 1.6.1962. The premises were inspected by the Inspector on 2.1.1964. As per the definition of the word 'Factory' at the most it can be found that the appellants' premises were factory within a period of one year prior to 2.1.1964, that is, from 2.1.1963 the appellants' premises could be considered as factory. This argument, to me, appears to be fallacious. In order to designate a particular premises as 'Factory', the date of inspection has no relevance. Whenever on any day if it is to be found as to whether a particular premises is a factory or not, then what is to be seen is, as to whether on any day of the preceding twelve months twenty or more persons are or were working or not. After coming into force of the Act whenever such a question in relation to any premises, arises, then it is to be seen as to whether on any day of the preceding twelve months the total number of workers working or were working, is twenty or more. The application of law is not dependent on inspection. The object of the Act is to provide for certain benefit to employees in the case of sickness, maternity and employment injuries and to make provisions of certain other matters in relation thereto. Chapter IV of the Act deals with Contributions. Section 38 provides that all employees in factories shall be insured in the manner provided by the Act. Section 39 of the Act makes provisions for employer's contributions and employees' contributions to be paid to the Corporation and the contribution is required to be paid at the rate specified in the First Schedule and it further provides that a week shall be the unit in respect of which all contributions shall be payable under the Act. It is further provided that the contributions payable in respect of each week shall ordinarily fall due on the last day of the week, and where an employee is employed for part of the week, or is employed under two or more employers during the same week, the contributions shall fall due on such days as may be specified in the regulations. There is a further provision for deduction employee's contribution by the employer from the employee's wages under Section 40 of the Act. On the commencement of the Act the employer has to see by himself as to whether his case is covered under the Act and if the Act applies to him he has to act under the provisions of the Act of his own. He should start realising contributions of employees every week if the Act is applicable to his factory. The employer would be failing in his duty if he does not make the payment of employee's contribution, as well as, his own contribution to the Corporation. When on facts it has been found that since 1.6.1962, twenty or more persons were working till 31.12.1964, then the appellants' premises were a 'Factory' during this period and there arose a liability for payment of employee's contribution. Thus, this contention as well of Shri Jangid, is devoid of any merit.

12. No other contention has been advanced before me.

13. In the result, this appeal has no force, so it is hereby dismissed with no order as to costs.


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