- (1.) This appeal at the Instance of the opposite party, The Employees State Insurance Corporation is against the judgment and order dated 26th February, 1971 passed by the Judge, Employees State Insurance Court, West Bengal in case No. 71 of 1968.
(2.) The respondent M/s. Western Plastics Co. filed an application under Sec 75 (1) (g) of the Employees' State Insurance Act 1948 (Act XXXIV of 1948) in the Employees State Insurance Court, West Bengal for a declaration that the -factory of the applicant company was not covered by the provisions of the Employees State Insurance Act prior to January 1, 1964, for a declaration that the letter of the opposite party dated 23-10-1967 claiming contribution prior to 1st January, 1964 was illegal and void and for injunction restraining the opposite party and its subordinates and agents from proceeding with the certificate case No. 821/ECB/67 pending before the Certificate Officer, 24 Parganas for realisation of employer's special contribution and employees contribution for the period prior to 1-1-1964. The case of the respondent company as appeared from the application in short is that the said company which is a partnership firm has been carrying on the business of manufacturing plastic products as a small scale industrial unit at its factory at 9, Gurusadoy Road, Calcutta. The said factory belonged to one Mr. Lubichech from whom Sitaram Kedia alone purchased the same -on or about May 19, 1955 and he had run the said factory as proprietor till May 31, 1963 but as he experienced difficulty in running the said factory due to paucity of fund he formed a partnership with Sri Sawal Ram Kedia on January 1 1964 and since then the said business is being carried on by the opposite party respondent. On August 30, 1965, the respondent company intimated the opposite party that its factory had come under the purview of the Employees State Insurance Act and requested for supply of necessary forms to enable the company to introduce the Employees State Insurance Scheme immediately. The appellant by letter No. C/ESC 41 8770 90 dated March 8, 1966,. allotted to the factory of the company a code number being No. 41 8770 90 and asked it to pay employees contribution with effect from March 29, 1964 when the factory came under the purview of this Employees' State Insurance Act, 1948 to be hereinafter referred to for the sake of brevity as 'the said Act' It has been stated that the applicant has been paying the employer's special contribution as well as the employees' contribution as required under the said Act and it has also submitted the quarterly returns. Subsequently on October 23, 1967, the opposite party appellant by its letter intimated the applicant that the said factory came under the coverage of the Employees State Insurance scheme since 24th February, 1952 and made an arbitrary and illegal claim for Rs. 13,358/- and Rupees 17,481.62 purported to be employer's special contribution in respect of the period from 24-2-52 to 31-12-66 and employees contribution for the period from 14-8-55 to 31-12-66 respectively. The applicant company raised objection against the alleged claim on the ground that the factory of the company had come under the purview of the said Act on the first of January, 1964. Thereafter a certificate case was started at the instance of the opposite party and the said proceeding being case No. 821/ECB/67-68 is pending before the Certificate Officer, 24 Parganas for the aforesaid sums claimed as employer's special contribution and employees' contribution. Hence this application has been filed in the Employees State Insurance Court, West Bengal for a declaration that the factory of the applicant was not covered under the said Act for any period prior to 1-1-64 and for other reliefs as mentioned before. The opposite party appellant filed a written statement stating inter alia that from a letter dated 12-6-1967 the opposite party learnt from the Calcutta Electric Supply Corporation that on 22nd of August, 1949 the then management of the applicant company entered into an agreement with the Calcutta Electric Supply Corporation Ltd. for supply of electricity in the factory premises of the company and as a result, electricity is being supplied to the company ever since for industrial and other purposes. It has also been submitted that from the records of the Director of Factories, West Bengal the opposite party has learnt that the company engaged 77 employees on 6th of March, 1963 but due to suppression of the facts of installation of industrial meter for manufacturing purposes by the then management of the company the company was given licence as a non-power using concern. It has also been stated therein that the then management of the company in their application for renewal of licence under the Factories Act, dated December 31, 1958 mentioned about the existence of the installation of 3.5 H. P. Meter since 1954 although the Calcutta Electric Supply Corporation refers to installation of industrial meter since 1949 as aforesaid. In Paragraph 5 of the said written statement it has been, averred that the Employees State Insurance Corporation tentatively covered the factory of the applicant with effect from 29-3-64 on the basis of the particulars supplied by the company and other statements made in paragraph 5 of the said application are not denied. It has also been stated that the factory of the applicant company came to be covered by the Employees' State Insurance Act from 24th February, 1952 and as such the assessments made as mentioned in the said demands notice dated October, 23, 1967 are quite legal and valid.
(3.) On 26th of February, 1971, the learned Judge, Employees State Insurance Court, West Bengal after considering properly the evidences both oral and documentary adduced by the parties held that the opposite party Corporation had failed to prove that the company used industrial power since 1952. The learned Judge has also held that the evidences clearly warrant a conclusion that the factory used industrial power from January 1, 1964 when the factory came to be covered by the said Act and the applicant company has been paying contribution both in employer's share and in employees share to the opposite party, Corporation since then. The learned Judge has further held that the factory of the applicant is not covered by the said Act before 1-1-64 and as such the company is not liable to pay any contribution prior to that date. The opposite party, therefore, have no right to proceed any further with the certificate proceedings. The case, therefore, was allowed and the opposite party has been restrained from proceeding with the certificate case pending before the Certificate Officer, 24 Parganas.;