Salil Kumar Datta, J.
1. This is an appeal by Messrs. Birati Weaving Factory and its partners against the judgment and decree of the Employees' Insurance Court, West Bengal decreeing a sum of Rs. 936.15 with interest at the rate of 6 per cent per annum as employees' contribution. The Employees' State Insurance Corporation (hereinafter referred to as the Corporation) filed an application under Section 75(2)(a) of, the Employees' State Insurance Act, 1948 (hereinafter referred to as the said Act) for recovery of an amount assessed on ad hoc basis at Rs. 936.15 as the employees' contribution for the period from 2nd April, 1960 to 27th January, 1962. The allegations were that the Birati Weaving Factory was a factory under the said Act and the appellants as the principal employers were liable to pay to the Corporation employees' contribution for the said period as required under Section 40(1) at rates provided in Section 39 read with schedule 1 of the Act. The Corporation prayed for a decree for such amount as may be found due after scrutiny of the records in respect of the employees' contribution for the said period. The application was contested by the appellants whose case was that their factory was an only weaving factory without use of power and that the total number of workmen was less than twenty. It was accordingly contended that they are not liable to pay the amount as claimed by the Corporation and further the application for a decree on ad hoc basis was arbitrary and illegal.
2. The application registered as Case No, 133 of 1962 was tried on evidence before the Employees' Insurance Court which on a consideration of the evidence adduced held that the three units Birati Weaving Factory, Vijay Fabrics and Piru Winding Enterprises were not separate concerns but parts of the same concern, viz.., Birati Weaving Factory. It was also held that the power was used for manufacture of threads, used for weaving cloths of the factory in a portion of the factory premises and the number of the workers working in the factory premises was 20 or more. Accordingly the appellants were held liable to pay the employees' contribution to the Corporation as claimed. As to the amount payable as employees' contribution during the period mentioned above the Court found that as the appellants did not maintain records regularly, it was not possible for the Corporation to make an accurate assessment of the employees' contribution. Accordingly it had no other alternative than to claim on ad hoc basis. The Court also found that the ac hoc basis in absence of any other records had a foundation in the Inspection Report, Ext. 3(b) which calculated the wages for second and third quarters of 1961 by referring to the attendance-cum-wage sheets of Birati Weaving Factory. The employees' special contribution amounted to Rs. 115 for two quarters and employees' contribution was calculated at double the said amount so that for two quarters such contribution would be Rs. 230. The Corporation claimed contribution for 7 quarters and its total claim was laid at Rs. 936.15. The Court was of opinion that the assessment made was not unfounded as it was made after taking into consideration the amount of employees' contribution for two quarters from the available records nor was it unreasonable. The Court further observed if the appellants had any grievance on this score they should have produced all the relevant records for inspection and scrutiny of the same which was not done and accordingly they were liable for the claim. The Court in the circumstances granted a decree for the said amount as claimed by the Corporation. The present appeal is against the said decision.
3. Mr. Rabindra Kumar Datta Gupta, the learned advocate appearing for the appellants, has challenged firstly the ad hoc basis of the claim and secondly he also challenged the manner of calculation of the amount of the claim made by the Court in decreeing the claim. He also contended that the Court was in error in holding that power was used in any manufacture process within the factory premises and also that there were 20 or more persons employed by the appellants in their factory premises. As to the findings on use of power and number of employees in the factory, as they are purely findings of facts, we did not allow Mr. Datta Gupta to agitate these issues before us in view of the provisions of Section 82(2) of the said Act which provides that an appeal shall lie if it involves substantial questions of law.
4. Mr. Datta Gupta argued with great force that there can be no assessment on ad hoc basis in absence of proper consideration of the relevant records. His contention was that all the relevant records were produced by the appellants but the Court proceeded to rely on an ad hoc assessment made by the Corporation which had no basis and the decree was ultimately passed on such ad hoc assessment. In support of his contention Mr. Datta Gupta relied on the decision of Universal Refrigeration Corporation Private Ltd. v. State Insurance Corporation, 74 C.W.N. 674, where this Court set aside the assessment made by the Insurance Court relying on the ad hoc assessment by the Corporation which again had no legal basis. In the above case the basis of the Corporation's assessment being defective, the Insurance Court's assessment on Corporation figures was also without basis and was accordingly set aside. The case was remanded to the Court below for a fresh assessment on evidence to be produced by the parties on the points.
5. Mr. Prasanta Kumar Ghose, the learned advocate for the Corporation, has contended that the assessment under appeal was based on the evidence adduced by the Corporation and not merely on ad hoc assessment without any evidence. He contended that in the instant case the appellants did not file the relevant documents and papers of their three units and in the absence of any such evidence by the employers-appellants, the Court relied on the assessment made by the Inspector of the Corporation on the materials which were filed by the appellants. The decision cited, Mr. Ghosh contended, would, therefore, have no application as it is not a case where the Court's assessment was without any basis. On the contrary in the present case the assessment was based on Ext. 3(b), the report of the Inspector of the Corporation.
6. On a consideration of the submissions of the learned advocates it appears to us that pay sheets only of Birati Weaving Factory were filed before the Insurance Court and no papers relating to two other units were produced either before the Corporation Inspector or at hearing of the application. Mr. Datta Gupta has stated that the appellants had no other papers except those filed being Exts. (A) and (Al). It is obvious, therefore, that no accounts papers relating to the two other units of the weaving factory were produced before the Court at the time of hearing. If, therefore, the appellants did not care to produce their documents which they had in their custody or power they cannot put any blame on the Court when it arrives at its findings on the existing materials on record. The observations of the Court that the records were not regularly kept, vehemently objected to by Mr. Datta Gupta, seemed to be justified when we find that no papers relating to the two units were produced. We find that the Court in absence of any other material from the appellants' side took into consideration Ext. 3(b) which was inspection report by the Corporation's Inspector and they were based on the documents-attendance-cum-wage-sheets-filed by the appellants. The Inspector calculated the amount of employees' contribution from the said documents and it, therefore, cannot be said that there was no evidence before the Court in coming to its decision in decreeing the application in the manner done. The ruling cited by Mr. Datta Gupta related to a case where an assessment was made without any evidence on either side which is not the case here. We, therefore, find no substance in the contention of Mr. Datta Gupta that the assessment was on ad hoc basis; on the contrary we hold that the assessment was made by the Court on evidence adduced by the Corporation in absence of any other evidence on the part of the appellants.
7. Mr. Datta Gupta next drew our attention to Section 39(1) of the said Act which provided that contribution for an employee both for employer's and employee's share will have to be paid by the employer. In Sub-section (2) it is provided that the contribution will be paid at rates as specified in the first schedule. In Clause I of the first schedule it was provided that the contribution payable for an employee shall be made with reference to his average daily wages. The calculation of the daily wages has to be made as provided in Sub-clause (a) and (b) of Clause 2. It is also provided in Clause 3 that for the purpose of fixing that amount of weekly contribution the employees would be divided in eight groups (as the laws stood at that time) on the basis of their average daily wages ascertained as sated above. Mr. Datta Gupta contended that the calculation of the employees' contribution in the present case was done in violation of the provisions mentioned above and, therefore, the decree passed on the basis thereof was not sustainable. In fact there was no basis of calculation by the Inspector of the Corporation and accordingly the decree which is again based on such calculation and not calculated on the above basis is wholly untenable in law.
8. Mr. Ghosh disputed the above submissions and contended that in view of the fact that the appellants did not file the necessary books of accounts in their custody or power except some sheets showing attendance and amount paid as wages of some employees, the appellants could not make any grievance of it unless they can show that the assessment arrived at on the materials adduced by the Corporation was perverse or against the provision of law. Mr. Ghosh contended that the assessment made was based on the weekly wages of Birati Weaving Factory as appearing from the documents filed by the appellants and thereafter a calculation was made which was rather too liberal in favour of the appellants. He, therefore, submitted that in the said state of affairs the Court had no other alternative than to pass a decree on the basis of the evidence as adduced by the Corporation.
9. It is true that the assessment should have been made on the average daily wages to be determined in the manner indicated in the first schedule of the Act. In the report of the Inspector which is Ext. 3(b) he proceeded in the following manner:
II/61 Rs. 3909.11 wagesRs. 255.00 for one staffRs. 4164. 11P.Esc. @ 1 1/4-Rs. 521-III/61 Rs. 4803.12Rs. 225.00 as aboveRs. 5058.12 Esc.-Rs. 63Rs. 115.
10. The above figures were taken as employers' contribution. Mr. Ghosh submitted that employees' contribution was taken as double of that amount that is at 2J% on the basis of certain executive instructions issued by the Corporation. As these instructions were not statutory we are unable to take the same into consideration as supporting the assessment. In the table to the schedule I of the said Act, the rates of contribution have been specified in respect of both the employers and the employees. If we total up the average daily wages of the different groups of employees of column 1 of the table and also add up the contribution recoverable from the employees at rates given in column 2 we find that employees' contribution works out approximately at about 12% of the average daily wages. In the calculation made by the Inspector in the present case, we have the figures of the employees' wages for second and third quarter of 1961 of Birati Weaving Factory and employees contribution has been worked out as 2|% of such wages. On this basis the employees' contribution for 7 quarters come to the figure of about Rs. 936.15, which has been claimed. This calculation takes a very liberal percentage of employees' contribution at 2 1/2% in place of about 12% as in the schedule and there can be no doubt that such calculation is extremely: favourable to the appellants. In addition the wages for the two other units have not been taken into consideration at all. We agree with the Insurance Court that the calculation of employees' contribution in the manner indicated above is not at all unreasonable, Mr. Datta Gupta is undoubtedly correct when ha contends that this calculation is not in accordance with the provision of the Section 39 read with the schedule of the Act, but in the circumstances of the case when all documentary evidence in the power and custody of the appellants have not been produced, while according to the appellants no other account books are there except those already filed in the case, the assessment as stated above, in our opinion, is a substantial compliance of the provisions of the Act in the circumstances. The appellants cannot be heard to say that because the necessary documents are not produced by them or are not available, there could be no assessment at all. We, therefore, are of opinion that the assessment decreed by the Court is proper and in accordance with the law in the circumstances.
11. There was another contention raised by Mr. Datta Gupta that as the Corporation has only elected to file the application in respect of employees' contribution only without taking any steps for employer's contribution, the instant application is not maintainable in law. Our attention has been drawn to Section 73-D of the Public Demands Recovery Act by Mr. Ghose. The section provides that the employer's contribution could be recovered as if it was an arrear of land revenue. We are told that steps have been taken by the Corporation for the purpose. We do not also find any bar on the part of the Corporation to take steps only for recovery of the employee's contribution under the provision of the said Act. This contention, therefore, also does not prevail with us.
12. The appeal thus fails and is dismissed without, however, any order as to costs.
B. Banerjee, J.
13. I agree.