N. K. JAIN, J. - (1.) BY these special appeals, the Employees' State Insurance Corporation has challenged the order of learned Single Judge dated 8. 08. 1990, whereby the writ petitions filed by the respondents-petitioners were allowed with cost. The appellant non-petitioner was directed to refund the 2/3 of the amount deposited by the respondent petitioner as E. S. I. contribution in respect of the period ending on December 31, 1983 with interest @ 12% per annum from the date of deposit and it was further directed to refund by payee draft in the name of petitioners within six months with interest @ 6% and if an employee of the respondent petitioner requested within one year from 8. 08. 1990 for the refund of the amount deducted from his wage deposited as his contribution in respect of the period ending on 31. 12. 1983, the same would be refunded to him with interest- 12% from the date of deposit.
(2.) SINCE the facts and question of law involved in these special appeals are similar they are-being disposed of by one common judgment. We may state some relevant facts in brief. The respondent petitioners are carrying on business of dying and printing of cloth. The factory and the establishment are situated at the Industrial Area, Pali. The said area has been included within the Municipal limits of Palivide notification dated 18. 6. 1975. They started paying contribution in respect of their various employees and workers to the respondent appellant from 1979. By notification no. 118 dated 24th Dec. 1983 of the Government of India published in Gazette of India Part II dated 14. 1. 1984 w. e. f. 1. 1. 1984 the factory and establishment of the petitioner were brought under Chapters IV, V and VI of the Act w. e. f. 1. 1. 1984 in the extended municipal limits of Pali. The respondents petitioner filed writ petitions alleging that they have wrongly paid the contribution and the collection made by the Corporation prior to 1. 1. 1984 was wholly without jurisdiction, illegal and void. Thus the petitioners are entitled to get back the said amount of the period prior to 1. 1. 1984 with interest. The Corporation has come out with a case that the petitioners' factory and establishment are duly covered by earlier Notification dated 23. 11. 1956 and, therefore, the petitioners had rightly deposited the contribution and they have already obtained benefits under the Act. We have heard Mr. R. K. Soni, learned counsel for the appellant and Mr. Vineet Kothari, learned counsel for the respondents and perused the order of learned Single Judge and the record. Mr. R. K. Soni, learned counsel for the appellant has contended that in view of the Notification dated 23. 11. 1956 Anx. R-l, the E. S. I. Act was made applicable as the factories are situated in limits of Pali and as such the E. S. I. Act was applicable. He has further stated that the State Government has also published Notification dated 21. 10. 1976 u/s 1 (5) of the Act to make the Scheme applicable in the said area, therefore, the parties have rightly contributed their E. S. I. contribution and the said amount could not be said to be authorised collection. He has also submitted that the Notification issued by Govt. of India on 24. 12. 1983 Anx. 2 could be said to be a clarification or corrigendum. The Act was made applicable on the establishment of the factory since 1979. He has further submitted that the learned Single Judge has erred in treating this contribution as tax instead of fees, which is against the very intention of the Act. Learned counsel for the appellant has drawn our attention to M/s. Gasket Radiators Pvt Ltd. Vs. Employees State Insurance Corporation (1) and Gokaraju Rangaraju Vs. State of Andhra Pradesh (2 ).
(3.) MR. Vineet Kothari, learned counsel for the respondent has submitted that the Notification dated 18. 06. 1975 issued by the Government of Rajas-than by which Industrial area of Pali was included within the limits of Pali w. e. f. 18. 06. 1975 and by the notification dated December 24, 1983 of the Government of India, the Act was brought into force in the extended municipal limits w. e. f. 1. 1. 1984. As such any contribution or collection made or deposited prior to January 1, 1984 was unauthorised and the learned Single Judge has rightly ordered for refund of the same with interest. It may be stated that the object of the Act is to provide certain benefits to the employees in the case of sickness, maternity, employment injury to provide disablement benefits, dependant benefits and for all these benefits insured employee has to pay some amount as his share of the contribution which is utilised for the benefits of employees at large. These benefits can be availed of only where this Act is in force and the employees covered by this Act are required to make this contribution and where the provisions of this Act are not applicable the employees are not required to pay anything. Therefore unless and until the Scheme of the Act is made applicable in a particular area, the employees do not get any benefit under this Act, nor they are supposed to contribute. It is true that coverage under the Act cannot be disputed on the ground that the employees have not availed any benefit under the Act and no one can make any grievance that he has not taken any benefit. But the question for consideration is as to when this Act has come into force in this area. In other words what is to be seen is whether the Scheme was made applicable by earlier Notification dated 23. 11. 1956 w. e. f. 2-12-56 or by subsequent Notification dated 18. 6. 1975 issued by Government of Rajasthan or by Notification dated 24th December 1983. In this regard suffice it to say that by mere existence of the earlier notification dated 23. 11. 1956 it could not be said that the Scheme was in existence. Though the industrial area was included in the Municipal limits of Pali but this Act was made applicable to that area by the Notification dated 24. 12. 1983 w. e. f. 1. 1. 1984. It cannot be said that the earlier Notification dated 23. 11. 1956 was purported to be issued u/sec. 1 (3) of the E. S. I. Act. The other point argued by the learned counsel for the appellant that the subsequent notification could be said to be a clarification or corrigendum is also not tenable. In our considered opinion, the notification dated 24. 12. 1983 is the only notification by which the Scheme was made applicable as the Act came into force in the areas comprised within the extended limits of Pali w. e. f. 1. 1. 1984. Hence the argument as to whether the contribution was tax or fees will have no effect. In M/s. Gasket Radiators Pvt. Ltd. Vs. E. S. I. Corpn. (Supra) it has been observed as under: "it was not considered fair that only employers of those regions to which the benefit provisions were extended should alone make contributions and thereby help to set up a corporation. The benefit provisions will sooner or later be extended to all areas. Therefore, the amendment provides that employees of regions to which the benefit clauses are not extended must also make their contributions through at a lesser rate. " ;