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Judgment
Jagadisan, J.—The petitioners pray for issue of a writ of mandamus or any other appropriate writ, direction or order to forbear the
respondent, the Employees'' State Insurance Corporation, represented by its Regional Director, from recovering the contribution of Rs. 1054
under the provisions of S. 73 (d) of the Employees State Insurance Act, hereinafter referred to as the Act. The petitioners, a partnership firm, had
a factory for the fabrication of tin containers. The factory was closed down on 24th September, 1958. The entire staff was disbanded and of
course the petitioners ceased to run the factory. Under the Government of India Notification, dated 16th February, 1952, issued under S. 73 (E)
of the Act, all the principal employers in the Madras State were required to furnish information to the Regional Director, Employees State
Insurance Corporation (hereinafter referred to as the Corporation) so that the requisite action for coverage of the employees for the amenities
provided under the Act may be taken. The petitioners furnished the particulars in Form S.C. 1 only on 5th January, 1959. The petitioners were
informed by the Regional Director of the Corporation that their factory was covered by the Act on and from 1st July, 1958. The factory was
inspected by the Insurance Inspector on Several dates, 29th May, 1959, 10th September, 1959 and 11th September, 1959 and he reported that
it fell within the provision of the Act on and from 1st May, 1957. The petitioners were asked to produce certain records by the Director but they
failed to do so. In spite of the best efforts taken by the Director the petitioners persistently defaulted in not producing any of the records called for.
Even a threat of prosecution did not persuade the petitioners to comply with the directions of the Director. It however appears that the petitioners
made payments of Rs. 22 and Rs. 44 on 15th April, 1959 towards the Employers'' Special Contribution and Employees'' Contribution
respectively. But the payment was not made as a result of any determination by the authority regarding the quantum of contribution payable by the
petitioners.
The petitioners did not at any time deny that the factory was within the Act on and from 1st May, 1957. The petitioners made a statement in
their return dated 5th January, 1959, that was only on and from 1st July, 1958, twenty persons or more worked in the factory premises. It must be
mentioned that if a factory employed less than 20 persons, it would not be within the ambit of the Act. It was on the basis of this information that
the petitioners'' factory was provisionally treated as being under the Act only from 1st July, 1958. The Director came to know subsequently that
the petitioners'' factory was within the Act for a long period even prior to 1st July, 1958. The Inspector found that the factory licence of the
petitioners dated 1st July, 1957, had authorised them to employ fifty men. The petitioners were called upon to substantiate their statement that 20
persons or more were entertained in the staff only from 1st July, 1958, but they failed to do so. The report of the Inspector of Factories, I Circle,
Madras-2, showed that according to the records available in his office 29 persons were found working on 16th May, 1956, 23 persons on 19th
December, 1957, in the petitioners'' factory. The Director therefore concluded quite properly that the petitioners'' factory became covered by the
Act from 1st May, 1957. Indeed the conduct of the petitioners in withholding all relevant documents from the Director on the pretext that they
were not available would indicate that their version of employment of 20 and more persons only from 1st July, 1958, could not be true.
By notice dated 20th January, 1960, from the Director the petitioners were requested to produce the records of their factory within 15 days of
the receipt of the notice. It was specifically mentioned in that notice that action would be taken under S. 73 (d) of the Act for recovery of the dues
calculated on ad hoc basis, without any further notice if the petitioners failed to produce their records. The Director had jurisdiction to make an ad
hoc levy in view of the notification in S.R.O. 224, dated 19th January, 1957. It is under these circumstances that the petitioners have been called
upon to pay the sum of Rs. 1054. The petitioners having failed to pay the contribution, action under the Rent Recovery Act as prescribed by the
Act has been resorted to by the statutory authorities.
Learned Counsel for the petitioners contends that the factory itself having been closed down, the jurisdiction of the authorities under the Act is
not any longer exercisable. But the point to be noted is that the claim is in regard to the past when the petitioners'' factory was working and was
within the terms of the Act. The liability to pay contribution to the fund as prescribed under the Act arose during the time when the factory was
working and that cannot be effaced or nullified by reason of the subsequent closing down of the factory. There is no substance in this contention.
The main ground urged on behalf of the petitioners is that the claim for recovery of the amount levied is barred by limitation, and that therefore
the amount cannot be collected by merely resorting to the provisions of the Rent Recovery Act. I have now to refer to the relevant provisions of
the Act and the rules framed thereunder. The present claim of the Director is one under Ch. V-A which provides for payment by the employer of
special contribution. The special contribution is payable in lieu of the employer''s contribution under Ch. IV. Vide S. 73-A (2). Now S. 73-A
reads:
For so long as the provisions of this Chapter are in force, every principal employer shall, notwithstanding anything contained in this Act, pay to
the Corporation a special contribution hereinafter referred to as the employer''s special contribution at the rate specified under Sub-S. (3).
Sub-S. (3) provides that the Central Government may, by notification in the Official Gazette specify from time to time such percentage not
exceeding 5 per cent of the total wage bill of the employer as they may fix in this behalf. If any question or dispute arises in respect of the
employer''s special contribution payable or recoverable under Ch. V-A and there is no Employees Insurance Court having jurisdiction to try such
question or dispute, it shall be decided by such authority as the Central Government may specify (S. 73-B). S. 73-D enacts that the Employer''s
special contribution payable under Ch. V-A may be recovered as if it were an arrear of land revenue. The plea of limitation raised by the
petitioners rests upon R. 17 of the Madras Employees Insurance Court Rules, 1951. That reads:
Every application to the Court shall be brought within twelve months from the date on which the cause of action arose or as the case may be the
claim become due: provided that the Court may entertain an application after the said period of 12 months if it is satisfied that the applicant has
Sufficient reasons for not making the application within the said period.
Subject as aforesaid the provisions of Part II and III of the Indian Limitation Act, 1908 (Central Act IX of 1908) shall, so far as may be,
applied to every such application.
The time limit of one year prescribed under the rules has been subsequently amended to three years. Assuming however that this case is
governed only by the one year rule, and assuming also that the special contribution became payable as and when wages accrued due to the
employees, the question that arises is whether there is any bar against recovery of the special contribution levied by invoking the machinery of S.
73-D of the Act. R. 17 cited above governs application to the Court which means the Employees Insurance Court. The constitution of this Court is
prescribed under S. 74 of the Act. S. 74 (1) is as follows:
The State Government shall by notification in the Official Gazette, constitute an employees'' Insurance Court for such local area as may be
specified in the notification.
The claims which are cognisable by the Special Court are enumerated and specified in S. 75 of the Act. Reference need be made only to S. 75
(1) (g) which reads:-
Any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate
employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any
contribution or benefit or other dues payable or recoverable under this Act.
No civil Court shall have jurisdiction to decide or deal with any question or dispute falling within S. 75 or to adjudicate on any liability which by
or under the Act is to be decided by the Employees'' Insurance Court. There is no specific provision, under S. 75 which would enable the
Corporation to obtain a decree against the employer for recovery of amounts due by way of contribution, employer''s contribution, employees''
contribution or special contribution. S. 75 (1) (g) read with S. 73-B provides for the adjudication of any dispute between the employer and the
Corporation. No doubt, the dispute may relate to contribution. But if the Corporation does not entertain any doubt regarding the liability of the
employer to pay the contribution and makes an order assessing the amount of contribution, it is open to it to proceed to recover the amount. The
recovery can be made as if the amount was an arrear of land revenue. This is specially provided for under S. 73-D. It is only in a case where an
application is preferred to the Special Court that the period of limitation prescribed under Rule 17 would operate. It is impossible to hold that the
Corporation should, in every case of non-payment of contribution, resort to the State Insurance Court and obtain an order for recovery of the
amount. It is only to avoid a proceeding like a claim for recovery so as to facilitate the speedy recovery of the amount due that S. 73-D has been
enacted. R. 17 does not say that the Corporation is obliged to file an application before the Special Insurance Court within the period of one year
or three years under peril of the claim becoming barred at the end of the period. In my opinion, it is open to the Corporation to resort to the
provisions of S. 73-D of the Act, even without a claim having been made or preferred in the Special Court, and that such proceedings under S.
73-D, if taken, cannot be resisted by the employer on any plea of limitation, much less one prescribed under R. 17. The petitioners have failed to
make out a case for the issue of a writ of mandamus. The points that were raised before me have already been dealt with, and in my opinion the
contentions urged are not tenable. The writ petition fails and is dismissed with costs. The rule nisi is discharged. Counsel''s fee Rs. 100.