Decided on November 20,1970



- (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 percent 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 adhoc 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 adhoc 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 adhoc basis. The court also found that the adhoc basis in absence of any other records had a foundation in the Inspection Report exhibit 3 (b) which calculated the wages for second and third quarter 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. 15p. 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 adhoc 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 manufacturing 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.;

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