- (1.) THIS is an appeal under Section 82 of the employees State Insurance Act, l948 (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, Chopa-sani Road, Sardarpura, Jodhpur (hereinafter referred to as "the Corporation") submitted an application under Sec. 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, Chopasani Road, Jodhpur, non-applicant No. 6 is a factory with effect from 1-6-1962 under Sec. 2 (12) of the Act and the other non-applicants are its principal employers under Sec. 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. 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 Sec. 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. 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. 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. 1) 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 applicants. 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 pendente lite and future interest, was passed. Dissatisfied with the judgment and decree, the non-applicants have filed this appeal. I have heard Shri R. L. Jangid, learned counsel for the appellants and Shri U. R. Tatia, learned counsel for the Corporation.
(3.) 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 Sec. 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 29 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 1957. M/s Bharat Industries, Jodhpur vs. 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 res Integra 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 Sec. 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. 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 appellant-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 Sec. 2 of the Act, so the firm cannot be considered to be a "factory". 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. ;