- (1.) WHEN recovery certificate, dated april 4, 1969, in Form SC-19 under the Employees' State Insurance act, 1948 (hereinafter called the Act) was issued by the Regional director of the Corporation to the District Collector Amritsar, for the recovery of Rs. 1,909. 77 p. on account of the employer's special contribution under Section 73-D of the Act, the respondents filed an application under Section 75 (2) of the Act disputing their liability to meet the demand on the solitary ground that they were not covered by the Act, inasmuch as the number of employees in their establishment was less than 20. Shri Radha Krishan Batas, Judge, Employees state Insurance Corporation, Amritsar, framed the solitary issue relating to the respondents being or not being covered by the Act and decided that issue against the respondents by his detailed judgment, dated July 26, 1971. Not satisfied with the same, the respondents filed F. A. O. 295 of 1971, in this Court. The learned Single Judge who heard the appeal affirmed the finding of fact recorded by the Insurance Court, but accepted a new argument advanced before him by the learned counsel for the respondents. He held that inasmuch as a liability had been created under Section 45-A of the Act which had been introduced therein by the amending Act 44 of 1966, with effect from June 17, 1967, the liability from December 1, 1966 to June 17, 1967, had been created without jurisdiction, as the provisions of Section 45-A were not retrospective.
(2.) IN this appeal against the judgment of the learned Single Judge, the only question argued by Mr. Kapur is that the relief granted by the learned Single Judge was obviously erroneous in law. We find force in both the submission made by Mr. Kapur. He has firstly argued that the point on which relief has been granted to the respondents had not been raised by the respondents at all in their former petition under Section 75 (2) of the Act and thus could not be allowed to be raised for the first time in appeal. It is admitted that this point had not been raised even in the grounds of the F. A. O. filed by the respondents. Mr. N. K. Sodhi, learned counsel for the respondents submitted that the point in issue being a pure question of law, it was within the discretion of the learned Single Judge to allow it to be urged, and inasmuch as relief was granted by the learned Single judge it should be presumed that he allowed it to be urged particularly when no serious objection was raised thereto by the appellant's counsel. Even if we were to give effect to Mr. Sodhi's argument, the impugned part of the order of the learned Single Judge cannot be sustained. A copy of the original recovery certificate Annexure r-4 which was questioned by the respondents was filed by them with their petition under Section 75 (2) of the Act. In paragraph 4 thereof it is clearly stated that 'assessment has been made after verification by the inspection of wage rolls etc. produced by the said factory'.
(3.) THIS shows that the assessment was not a best judgment assessment under the provisions of Section 45-A. Even the heading of the recovery certificate clearly indicates that the notice was for recovery of employer's 'special' contribution 'under Section 73-D'. The liability to pay the special contribution in Chapter V-A were in force was created by Section 73-A and not by Section 39. No doubt that if the special contribution under Section 73-A is paid, it would be deemed to be in lieu of the employer's contribution under Section 39 by operation of Section 73-A (2 ). These facts clearly show that the liability was created under Section 73-A by the assessment under Section 73-E and the recovery certificate was issued under Section 73-D. No resort was had to Section 45-A of the Act. In the face of this factual situation Mr. Sodhi has not been able to support the order of the learned Single Judge on the point involved in the appeal.;