KAN SINGH, J. - (1.) THIS is an appeal under sec. 82 (2) of the Employees' Insurance Act, 1948, hereinafter to be referred as the "act", lodged by the Regional Director on behalf of the Employees State Insurance Corporation, hereinafter to be referred as the "corporation", and is directed against the order of the Employees Insurance Court (Civil Judge), Ganganagar, dismissing an application made by the Corporation under sec. 75 (2) of the Act for the recovery of employees' contribution from the respondents in respect of the employees of the Water Works maintained by the Municipal Council of Ganganagar at Ganganagar.
(2.) THE Corporation averred that the Water Works maintained by the Municipal Council, Sri Ganganagar, was a factory as defined in sub-sec. 12 of sec. 2 of the Act and consequently the Municipal Council as employer was liable to pay contribution as required by sec. 40 (1) of the Act at the rates provided under sec. 39 read with Schedule I of the Act to the Corporation. THE period for which such contribution was not paid was from 1-4-60 to 30-9-65 and actual amount of wages paid to the employees covered by the Act for the aforesaid period as intimated by the Municipal Council came to Rs. 2,64,779. 29 paise. It was further alleged by the Corporation that no return showing the actual contribution week-wise had been furnished and consequently the rates of employees contribution had been fixed on the basis of an average of contribution payable in respect of all the wage groups of Schedule I prescribed under sec. 89 of the Act. THE Corporation proceeded to say that according to this formula the employees' contribution on the aforesaid wages came to Rs. 6619 48 paise as per schedule attached with the application. THE application was presented on 27-7-66. The respondents denied their liability to pay employees' contribution to the Corporation. The stand taken by them was that the Water Works were not a factory within the meaning of the Act, as 20 or more than 20 workers had never worked in the Water Works at any time and further the storing and supply of water did not involve any manufacturing process so as to constitute the water works a factory within the meaning of the Act. Further, the respondents raised the plea of limitation. In the first place, it was contended that in accordance with rule 17 of the Rules framed by the State of Rajasthan under the Act, the claim could have been preferred only within a period of 3 years. Then it was further contended that in accordance with sec. 271 of the Rajasthan Municipalities Act, 1959, hereinafter to be referred as the "municipal Act", a suit could be filed against the Municipal Council only after giving it the requisite notice of two months. Then further no action except one for the recovery of immoveable property, or for a declaration of a title thereto could be commenced otherwise than within six months next after the accrual of the cause of action. The learned Civil Judge set down the following issues for trial : (1) Whether Municipal Water Works is not a factory under Employees State Insurance Corporation Act ? (2) Whether non-petitioner No. 1 is the principal employer of the Municipal Water Works and as such is a necessary party ? (3) Whether the application is within limitation ? (4) Whether the Municipal Council Water Works can be sued as such ? (5) Whether the amount of Rs. 264779. 29 was paid as wages and employees' contribution is payable on this amount ? (6i Whether the defendant is estopped from pleading against the Municipal Council water works being a factory and the non-petitioner No, 1 being a principal employer under the Employees State Insurance Act ? (7) Whether Shri Surjit Singh Regional Director is competent to file this petition ? (8) Relief? On the side of the Corporation only one witness Shri S. C. Jain was examined. Besides this a number of documents were placed on record. On the side of the respondents two witnesses D. W. 1 Kashmirilal and D. W. 2 Harcharan Das were examined. The learned Judge considered the definition of the term 'factory' as given in the Act as also one given under the Factories Act, 1948. He observed that both the definitions were almost the same. The learned Judge then took into consideration the evidence led by the parties. In particular he referred to the statement of D. W. 2 Harcharandas who was an Overseer under the Municipal Council. He held that according to this witness there were 3 shifts run at the Water Works and they were of 8 hours each. There were 6 workers employed at a time in a shift with one Chowkidar. Further he referred to the schedule of workers furnished by the Municipal Commissioner namely, Schedules B and C with the written statement. He noticed that 6, 7 and 6 persons worked respectively in the 1st, 2nd and 3rd shifts with two persons relieving and 3 persons employed as Filters in addition. The learned Judge, therefore, came to the conclusion that the requisite number of employees or workers were there for holding the establishment a factory. The learned Judge further held that maintenance of Water Works involved a manufacturing process. The learned Judge also took notice of the fact that some 'beldars' and other employees were working at the Rest House attached to the Water Works and they have also to be included in counting the strengh of the establishment. In the result, he held that Water Works was a factory within the meaning of the Act and consequently he decided issue No. 1 in favour of the Corporation. As regards issue No. 2, the learned Judge reached the conclusion that the Assistant Engineer, Water Works was the Incharge of the Water Works Section and was consequently its Manager. He was, therefore, a principal employer within the meaning of the Act. Consequently this issue was also decided in favour of the Corporation and against the respondents. Regarding issue No. 3, the learned Judge held that in accordance with rule 17 of the Rules the claim for contribution could be preferred to the Employees' Insurance Court only within a period of 3 years. As regards the applicability of sub-sec. (2) of sec. 271 of the Municipal Act, the learned Judge held that as the cause of action had arisen on 30-9-69, the application brought on 27-7-66 was time barred. As regards issue No. 4, the learned Judge held that the Municipal Council was a proper party and could be sued as such. As the respondents could not show how the Municipal Council could not be sued in respect of its employees, the learned Civil Judge, decided the issue in favour of the petitioner and against the respondents As regards issue No 5, the learned Civil Judge took into consideration the documents Ex. 4 to Ex. 25 which were the documents admitted by the respondents as also the statement of their witness D. W. 1 Kashmirilal. The documents were prepared on the basis of the muster rolls and the salary bills. The learned Judge, therefore, held that the amount of Rs. 2,64,779. 29 paise was paid to the employees of the Water Works during the relevant period. He further observed that it was for the respondents to show as to what portion related to leave or holiday salary and the respondents had completely failed to prove this. Issue No. 6 was also decided against the respondents. Issue No. 7 had not been proved by the respondents and consequently that issue too was decided against the respondents. In the result, however, the learned Civil Judge dismissed the application as it was, according to him, barred by limitation. In assailing the order of the court below learned counsel for the Corporation contends that rule 17 of the Rules made under the Act was ultra vires and consequently no bar of limitation would confront the Corporation in presenting its application for employees' contribution by the employer. As regards the provisions of sec. 271 of the Municipal Act or regarding the rule of limitation contained therein learned counsel argues, that this application under the Act cannot be characterised as a suit within the meaning of sec. 271 of the Municipal Act and, therefore, that section was out of his way. Learned counsel for the respondents contests this position. He has also challenged the conclusions reached by the learned Civil Judge regarding the other issues decided against the respondents. So far as the rule of limitation embodied in rule 17 of the Rules is concer-ned, the position has been authoritatively determined by a recent judgment of the Supreme Court in Bharat Barrel & Drum Mfg Go. vs. E. S. I. Corporation (l ). In that case rule 17 of the Bombay Employees' Insurance Court Rules, made under the Act by the Bombay State, as it then was, came up for consideration. A limitation of 12 months was laid down under the Rule. Rule 17 of the Bombay Employees' Insurance Court Rules was word for word similar to rule 17 of the Rules framed by the Rajasthan State under the Act except for the period. Their Lordships had held rule 17 of the Bombay Employees* Insurance Court Rules to be ultra vires the powers of the State Government and it was consequently held to be invalid. Their Lordships observed that such a rule will have the effect of extinguishing the rights of parties if a claim is not made within the prescribed period and the Legislature does not part with the powers to prescribe limitation which it retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment.
(3.) THERE is, therefore, no escape from the conclusion that rule 17 of the Rules made by the Rajasthan State under the Act was ultra vires the powers of the State Government and was consequently invalid. THEREfore, the application moved by the Corporation cannot be said to be barred by the rule of limitation embodied in rule 17 of the Rules made by the State Government. I may now turn to the provisions of sec. 271 of the Municipal Act which reads as under : "sec. 271. Suit, against Board or its officers - (1) No suit shall be instituted against a Board, are against the Chairman,vice-Chairman. member, officer or servant of the Board or against any person acting under the direction of any of them in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice thereof in writing has been in the case of a Board, left at its office and, in the case of the Chairman, Vice-Chairman, member, officer servant or person, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. (2) No action such as is described in sub-sec. (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. (3) Nothing in sub-sec. (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding. " According to its plain language this section relates to suits instituted against the Municipal Board or against the Chairman, vice-chairman, member, officer or any of its servants or against any person acting under the direction of any of them, in respect of the act done or purporting to have been done in its or his official capacity. Two subordinate questions fall for consideration here ; the first one is whether an application under sec. 75 of the Act before an Insurance Court created under the Act is a suit within the meaning of sec. 271 of the Municipal Act, and the second question is whether failure to pay contribution in accordance with the provisions of the Act to the Corporation can be said to be an act done or purporting to have been done in official capacity as contemplated by the aforesaid section. I may turn to the definition of the term "act" as given in the General Clauses Act. Sub-sec. (2) of sec. 3 lays down : "act" used With reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omission. " Failure to pay contribution as provided under the Act cannot, in my view, amount to an 'act' within the meaning of sec. 271 of the Municipal Act. It is only in respect of an office or a civil wrong that the term 'act' shall include a series of acts and words which refer to acts done extend also to illegal omissions. The application that is made by the Corporation is to enforce a right created by the statute. The relief is not claimed in respect of any act done by the Municipal Council or its servants, but it is for enforcing a right of the Corporation on account of the employer namely, the Municipal Council failing to comply with the provisions of the Act. Apart from this an application under a special provision like the one under sec. 75 of the Act cannot be characterised as a suit within the meaning of the Act. Sec 40 of the Act casts the obligation on the principal employer in respect of every employee's contribution in respect of the employees in a factory. Then there are several provisions regarding the method of payments of contributions and the mode of their realisation. The Act provides that every employee shall be insured (vide sec. 38 ). Sec. 46 and other related sections make provision for certain benefits like periodical payments to an insured person in case of his sickness, periodical payments to an insured woman in case of confinement or miscarriage or sickness arising out of pregnancy, periodical payments to an insured person suffering from disablement, periodical payments to such dependents of an insured person who dies as a result of an employment injury and so on. The Ace is thus a beneficent piece of legislation. The rights created by it are special rights and so are the liabilities imposed by it. Where certain rights are created by a statute and the machinery is also set up there under for the enforcement of such rights then normally resort can be had only to such machinery provided by the Act. The Act also makes provision for adjudication of disputes and claims S. 74 provides for constitution of Employees' Insurance Court It lays down that the State Govt. shall by notification in the official gazette constitute an Employees' Insurance Court of such local area as may be specified in the notification. The Court shall consist of such number of Judges as the State Government may think fit. As regards the qualification of the persons to be appointed, it is laid down that any person who is or has been a judicial officer or is a legal practitioner of five years' standing shall be qualified to be a Judge of the Employees' Insurance Court. The matters to be dealt with by such Employees' Insurance Court are laid down in sec 75 of the Act. The question of employees' contribution is one such matter. Sub-sec. (3) of this section lays down that no Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court. Sec. 76 provides for institution of proceedings. It lays down that subject to the provisions of this Act and any rules made by the State Government, all proceedings before the Employees' Insurance Court shall be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose. Sec. 77 lays down that the proceedings before an Employees' Insurance Court shall be commenced by application and every such application shall be in such from and shall contain such particulars and shall be accompanied by such fee, if any, as may be prescribed by rules made by the State Government in consultation with the Corporation. The powers of the Employees' Insurance Court are laid down in sec. 78 and I may read that section : "sec 78. Powers of Employees' Insurance Court - (1) The Employees' Insurance Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such Court shall be deemed to be a Civil Court within the meaning of sec. 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898 ). (2) The Employees' Insurance Court shall follow such procedure as may be prescribed by rules made by the State Government. (3) All costs incidental to any proceeding before an Employees' Insurance Court shall, subject to such rules as may be made in this behalf by the State Government, be in the discretion of the Court. (4) An order of the Employees' Insurance Court shall be enforceable as if it were a decree passed in a suit by a Civil Court. " Then there are provisions for appeal. Under sec. 82 an appeal lies to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law. A review of these provisions discloses- (1) that for matters arising under the Act and as are laid down in sec. 75 of the Act, an Employees' Insurance Court alone has jurisdiction and the jurisdiction of a Civil Court is barred; (2) the proceedings before the Employees' Insurance Court could be commenced by an application, (3) According to sec. 78, only some of the powers under the Civil Procedure Code like summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence, have been conferred on an Employees' Insurance Court, otherwise such Court is required to follow such procedure as may be prescribed by rules made by the State Government. Thus, the Employees' Insurance Court, to my mind, is not a Court as such, but only an administrative tribunal having some of the trappings of a Court. Its jurisdiction is exclusive in matters to be dealt with by it. The proceedings before such a Court commenced by an application under sec. 77 of the Act cannot be assimilated to a suit as contemplated by sec. 271 of the Municipal Act. That being so, there is no good reason to hold that any notice is required to be given to the Municipal Council before filing an application under sec. 77 of the Act, nor would the rule of limitation embodied in sec. 271 of the Municipal Act be attracted. The Employees' Insurance Court (Civil Judge) was, therefore, in error in holding that the application was barred by time. ;