Karnataka High Court
M/S. Padmini Products, Bangalore vs The Regional Director, Employees' ... on 11 January, 2000
Equivalent citations: [2000(86)FLR414], ILR2000KAR2370, 2000(2)KARLJ369, (2000)IILLJ58KANT
JUDGMENT
1. This Miscellaneous First Appeal under Section 82(2) of the Employees' State Insurance Act, 1948 arises from the judgment and order dated 25th July, 1998 delivered by the Employees' State Insurance Court, Bangalore, in ESI Application No. 46 of 1989 moved under Section 75(1)(g) of the Employees' State Insurance Act, 1948 (hereinafter referred to as the ESI Act), whereby the ESI Court has modified the order of the Deputy Regional Director, dated 20-12-1988 passed under Section 75-A of the Act and has directed the applicant-appellant to pay contribution of Rs. 1,05,545-61 ps. instead of Rs. 1,10,410-30 ps. as ordered by the Deputy Regional Director with interest as per law and subject to the adjustment of the amount already paid.
2. The appellant-applicant admittedly as per the facts narrated in the memorandum of appeal is engaged in the manufacture of agarbathis and is covered by the ESI Act. According to the appellant-applicant, it has always been regularly paying ESI contribution. The case of the appellant-applicant is and has been that rolling of agarbathis and packing thereof is entrusted to outsiders and independent contractors who take material to their own places and get agarbathis rolled and delivered to the appellant-applicant after rolling and packing them. The ESI Court relying on the earlier decision of this Court in Miscellaneous First Appeal No. 2034 of 1993 decided on 3rd October, 1996 opined that the workers who were engaged in rolling and packing of agarbathis are employees of the appellant-applicant as defined in Section 2(9) of the Employees' State Insurance Act, 1948 and therefore the contribution is payable with reference to those workers who were making and packing of agarbathis and it is chargeable on the amount paid to those workers for making, rolling and packing the agarbathis as their charges. The ESI Court further found that the contribution payable by the appellant-applicant as per the calculation made by the Court in the order comes to Rs. 1,05,545-61 ps. and not Rs. 1,10,410-30 ps. as ordered by the Deputy Regional Director under Ex, A. 1 and therefore the Court modified the order of the Deputy Regional Director and issued orders as quoted above.
3. Feeling aggrieved from the said order of the ESI Court, Bangalore, dated 25-7-1998 in the above case i.e., ESI Application No. 46 of 1989 M/s. Padmini Products, the applicant before the ESI Court has come up in appeal before this Court under Section 82 of the Employees' State Insurance Act, 1948.
4. It may be mentioned here that the jurisdiction of this Court under Section 82 of the Act, is confined to examine if the order in question involves "substantial question of law".
5. On behalf of the appellant, the following contentions have been raised:
It has been contended by Sri S.N. Murthy, learned Counsel for the appellant that the persons engaged or the workers employed through the contractors to whom the materials are given for rolling and packing of agarbathis and they take the same to their own places outside the appellant's factory or to say outside the place of work in the factory and after the completion of work, they return It. Such workers cannot be termed to be the employees under the appellant. Their immediate employer is the contractor and there is no supervision of the principal employer or of the appellant. Therefore, those to whom the materials are given for rolling of agarbathis and of its packing they cannot be treated to be the employees under the appellant and as such the ESI Court committed substantial error of law in treating such persons to be the employees under the appellant. The learned Counsel for the appellant contended that the question as to whether such persons are the employees of the appellant is a question of jurisdictional fact and by erroneous decision of which the Deputy Regional Director, ESI Corporation has usurped the jurisdiction not vested as well as the ESI Court has also acted illegally in not setting aside that finding and had committed substantial error of law by holding that the persons to whom the materials were given for rolling and packing of agarbathis has been given have to be held to be the employees and in not setting aside the order of the Deputy Regional Director, ESI Corporation.
6. The learned Counsel for the appellant further contended that even if they be taken to be the employees as their emoluments exceed Rs. 1,600/-, so ESI Act will not apply and those persons can't be included within the framework of the expression "employee" and therefore the impugned order suffer from jurisdictional error and involves substantial question of law.
7. The above contentions of the learned Counsel for the appellant have been hotly contested by Smt. Geetha Devi, learned Counsel for the first respondent. She submitted that the last contention made by the learned Counsel for the appellant is a new one and it involves the question of fact to be determined. The question of fact or question of mixed facts and law, if not raised before either the authority or ESI Court should not be allowed to be raised at this juncture. Whether these employees were getting wages more than Rs. 1,600/- is a question of fact and who were getting more than Rs. 1,600/- and whether they were really getting Rs. 1,600/- are all question of facts which would have required the production of evidence and determination on the basis of the appreciation of evidence. Such questions not being raised before the KSI Court or before the Deputy Regional Director, this Court should not entertain the said contention and should not permit it to be raised at this appellate stage, as the jurisdiction of this Court is to examine whether on facts and pleadings and material on record can it be said that the impugned order suffers from substantial error of law.
8. Smt. Geetha Devi. learned Counsel for the first respondent further submitted that so far as the persons rolling and packing of agarbathis are concerned, it is well-settled view of this Court that such workers are employees within the framework of Section 2(9) of the Act as opined by this Court in the case of Regional Director, ESI Corporation v M/s. Ananth Agarbathi Company .
9. As regards the first contention and the question as to whether the persons not directly employed by the appellant but by and through the immediate employer for the purpose of rolling and packing of agarbathis and who perform this job outside the appellant's premises i.e., the factory or establishment can be said to be the employees of the appellant. According to the pleadings of the appellant-applicant in the application under Section 75(1)(g) of the Act, rolling and packing of agarbathis is entrusted to the outsiders and independent contractors, who voluntarily approach the appellant-applicant, and they take the required materials to their own places and deliver the products to the appellant-applicant after rolling and packing them. It is further stated that the materials are given to them on weight basis and deliveries are also taken on weight basis. Further, while receiving the products, they are receiving without rejections. The applicant sorts out them to different grades and varieties. Thus, the work is not done in the premises of the applicant's establishment. The said persons are not directly or indirectly employed by the applicant on any terms. Thus, they are not employees as defined under Section 2(9) of ESI Act. The appellant-applicant further averred in his application that the premises on which those persons are working cannot be termed as factory or establishment. In paragraph 9(b) of the application it has been stated that for the manufacture of agarbathis, the applicant-appellant supplies the raw materials like Adhesives, Charcoal Powder, Dust Wood, Bamboo Sticks, etc. These raw materials are supplied by the applicant-appellant to outsiders who are independent contractors and who arc not employees or who are not directly controlled by the applicant-appellant. The nature of work carried out in any ogarbathi factory is such that anybody who approaches the employer is given the raw materials and is made to convert from agarbathis by supplying the raw materials. There is no employer-employee relationship between the Agarbathi Factory and the outside persons. .... Any person who approaches the applicant-factory is given raw materials to convert the same into agarbathis. The applicant further submits that there is no supervision of any sort by the applicant on these outside agencies. The applicant in his application has stated that the manufacture of the agarbathis did not take place in the factory premises of the applicant, but it is carried out in their houses and convenient places and not within the factory premises. It has been further stated that in this case independent contractors engaged for carrying out the job at their own places do not come under Section 2(9) of the Act, as they are not employed directly by the applicant. They do not satisfy the definition of immediate employer or contractor as stipulated in Section 2(9)(ii) of the Act, since these independent agencies do not perform any work on the premises of the applicant.
10. In the written statement filed on behalf of the Regional Director, it has been stated that during the inspection of the records on 11-6-1986 by the Inspector of the Corporation, it was observed that the application had not covered and paid contributions in respect of the following:
(1) Employees of Racks Engineering (Aluminium partition work), (2) Heera Electrical Engineering (Electrical work), (3) Making charges, and (4) Charges.
11. The present first respondent i.e., opposite party denied that rolling of agarbathis and packing was done by the outsiders or independent contractors. Further it is stated that even if it is done by the outsiders or independent contractors they are coverable since the job done by these individuals are incidental to or preliminary to the main activity of the applicant. In the written statement, it is stated that it was not true to say that the applicant had no control over those persons or does not know where they work and how they perform work. It is the case of 1st respondent that the applicant also admits that the raw materials are provided by the applicant and then certain intermediary process is carried out by these persons to whom the material is supplied by the applicant for rolling of agarbathis and packing thereof. According to the first respondent final produce is supplied to the applicant and the applicant i.e., appellant has right to reject if the agarbathis' rolling and packing are not to the applicant's standard of satisfaction. Therefore the applicant has necessary control as contemplated by law. The case of the department has been that Section 2(9) of the Act covers the contract labour or the labour employed through the immediate employer.
12. A.W. 1-Srinivas, in his statement has deposed that we are manufacturing the agarbathis. In regard to the employees working in our establishment, we have covered them under ESI. We have also workers who are engaged in rolling and packing of agarbathis. Those, employees work under our supervision and we pay them the wages. He further states that apart from the work of rolling and packing done by our employees, we give the material for rolling and packing to outsiders. The material is collected by the outside persons from our factory and they do rolling, packing and pasting and return it to our factory. In regard to the rolling, the outsiders will collect basic raw materials from us, they have their own employees, they roll it into agarbathis and then return to us. In regard to the packing we give agarbathi packing materials and Cartons to them and they pack it and return to us. The persons who make and who pack agarbathis do not work in our premises. A.W. 1 admits that though they with reference to the outsiders' work they have maintained vouchers, but they have not produced the same in regard to the work of outsiders. A.W. 1 during the Cross-examination very clearly states that the rolling of agarbathi is part of manufacturing of agarbathi which is the activity of the applicant. Jigit powder, charcoal powder and other material in a paste form is given for making the raw bathi. These materials are purchased by us. There are payment vouchers to show giving of the materials to outsiders. It has been further stated in the cross-examination that it is true that the amounts paid to the outsiders is paid for making the agarbathi to a rolled bathi. He further states that we have got a right to reject the material if the rolling is not done according to the requirement. He admits in the course of cross-examination that similarly, packing is also part of the work of Padmini Products and that also can be done in our premises. There also, we give the material, they pack and return them. We give the packing charges for the work done by them. Both for packing and rolling, the persons in question who are entrusted with the job will submit their bills and then they are paid. Packing is also very important job in the manufacture of agarbathis.
13. From the perusal of the allegations in the application and the statement what comes out is as under:
(1) That the appellant-applicant is carrying on the business of agarbathis.
(2) That rolling and packing of agarbathis forms an important part of job in the manufacture of agarbathis, which is the activity being carried on by the appellant-applicant's factory.
(3) That in the application the case taken was that rolling and packing of agarbathis used to be entrusted to the outsiders and independent contractors. According to the case of the appellant the work was not done in the premises of the appellant and the appellant did not know where the work was done.
14. In the course of examination-in-chief, the Manage! of M/s. Padmini Products states that they have also workers working in establishment of appellant who are engaged in rolling and packing of agarbathis. Those employees work under their supervision and are paid the wages. This evidence per se dismantle the case taken in the application. In the course of evidence, it was stated that rolling and packing of agarbathis was got done by their employees or workers who were engaged in rolling and packing and those employees work under the super-vision of the appellant-applicant and the appellant-applicant paid their wages. No doubt, he further stated that in addition to them, rolling and packing of agarbathis was also got done by the outsiders who were given the material for rolling and packing and those outsiders used to collect the material for rolling as well as for packing. No vouchers have been produced with reference to the work of the outsiders, though the vouchers were maintained.
(4) That the outsiders, who were performing the job of making the bathi and rolling the agarbathis were also paid for their work. The materials were supplied to them by the appellant-applicant.
(5) That the appellant-applicant had a right to reject the material or product, if the rolling and packing was not done in accordance with the requirement specified by the appellant-applicant. He has mentioned that outsiders act as per their say.
15. These facts being on record and there being no specification shown or established that what and how much rolling and packing work was got done by the workers in the premises of the appellant and what by the outsiders, the appellant-applicant had not produced any evidence in the regard before the Court. The contracts have not been produced with the alleged contractors though it was said that the persons to whom the materials were supplied and who were required to furnish the prepared products as per the standards and requirement of the appellant-applicant. The appellant-applicant used to employ the workers for that job of rolling and packing of agarbathis. As mentioned earlier, the stand of the appellant-applicant had changed from what it had been taken in the application. It was earlier that work was done by the outsiders and independent contractors, who used to employ the persons and get rolling and packing of agarbathis by these persons employed by him. Later, it was changed and divided into two i.e., some rolling and packing work was got done by the workers in the premises employed by the appellant and some work was done through the outsiders to whom the material was supplied and who used to get that work done by, the persons employed by those outside persons or workmen. No doubt, it is clear that certain specific requirements were used to be indicated and the right was also reserved to reject the material or the agarbathis packed and supplied, if the work furnished did not stand to the requirement or standard and specification. In this context, it has to be seen whether those workers who used to do rolling and packing of agarbathis which is integral and important part of the activity of the appellant-applicant can be said to be the employees. There can be no doubt about those persons who according to the statement of A.W. 1-Srinivas Le., the Manager of M/s. Padmini Products (appellant's firm) who was employed in the factory and with respect to those about whom the Manager admits that they work under the supervision of the appellant-applicant as per A.W. 1. The appellant-applicant has not furnished any bifurcation of two and their actual numbers and though vouchers were maintained, according to the Manager, in regard to the outside work of rolling and packing of agarbathis. but for the reasons best known the appellant had not produced the vouchers in regard to the outsiders and failure to produce the material documents which could have thrown light on the matter without any reasons definitely may lead to adverse inference being raised about the appellant-applicant's case and it has to be presumed that all those who rolled the agarbathis and packing them were working on the premises.
16. The further question is if they were some outsiders to whom the material for rolling and making of agarbathis and its rolling and its package was supplied substantial specific requirements were also indicated to such outsiders to whom the material was given for the purpose of rolling and packing of agarbathis and they were given contract to do the job keeping in view the specification and requirements and who undertook the execution of that work outside under the direction and control of the principal employer, the said work which admittedly is an important part of the factory or establishment, if they employ certain persons could such persons employed be said to be the employees covered by Section 2(9)(ii) read with Section 2(113) of the Employees' State Insurance Act, 1948.
17. Section 2(9) of the Employees' State Insurance Act, 1948 reads as under:
"In this Act, unless there is anything repugnant in the subject or context: ---
2(9) "Employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and --
(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of the factory or establishment whether such work is done by the employee in the factory or establishment or elsewhere, or
(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment".
It will also be appropriate at this juncture to make reference to Section 2(13) of the Act.
18. Section 2(13) of the Employees' State Insurance Act, 1948 which reads as under:
"Immediate employer" in relation to employees employed by or through him, means a person who has undertaken the execution on the premises of a factory or establishment which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of any such factory or establishment, and includes a person by whom the services of an employer who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer (and includes a contractor)".
19. It may be mentioned here that the expression "and includes a contractor" has been inserted in Section 2(13) of the Act by ESI (Amendment) Act 29 of 1989. This definition per se reveals that immediate employer may also include a contractor. This definition of immediate employer indicates that immediate employer is a person who has undertaken the execution of whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of any such factory or establishment and such a person in relation to the employees employed through him is called immediate employer. It thus indicates that immediate employer is one who undertakes the execution of work either on the premises of the factory or establishment, or who undertakes the execution of work under the supervision of the principal employer or his agent. Any employee employed through such persons, in relation to them i.e., persons employed by them such person is a immediate employer and immediate employer undertakes the execution of work concerned either on the premises of the factory or under the supervision of the principal employer or his agent. Keeping this element as indicated by Section 2(13) of the Act, Section 2(9) of the Act has to be looked as well, which has been quoted earlier.
20. The expression "employee" as per Section 2(9)(ii) of the Employees' State Insurance Act, 1948 means a person who is employed by or through an immediate employer either on the premises of the factory or establishment or under the supervision of the principal employer or his agent. In case where immediate employer undertakes execution of work under the supervision of the principal employer any person employed by the immediate employer such employee i.e., employed by the immediate employer under the supervision of the principal employer can be said to be an employee.
21. In the second case, the ingredients are that the worker must have been employed by the immediate employer and the immediate employer should have undertaken the execution of the work under the supervision of the principal employer or his agent and that the work for which the immediate employer employs a person that work must be by part of work ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment. So, what has to be looked into is whether the persons workers who were employed by the persons, even if they may be contractors, who have undertaken to execute the work or part of the work which is part of the work of the factory that person i.e., immediate employer has undertaken execution of the work under the supervision of the principal employer. If the immediate employer who is said to have engaged other workers under a contract written or otherwise undertaken to perform the job or work forming the part of the work of the factory and who has further undertaken to execute that work either on the factory and if not in the premises of the factory, he undertaken to comply to execute the work under the supervision of the principal employer or his agent, then the employees employed by the immediate employer for getting that work done can be said to be the employees of the principal employer as control and supervision on persons so employed will be of principal employer through immediate employer. This is what comes out from the reading of Section 2(9) along with Section 2(13) of the Act. The expression under the supervision of the principal employer or his agent "on work" here refers to immediate employer undertaking to execute the work concerned. That if immediate employer has undertaken the execution of the work of the factory or part of the work of the factory and has undertaken that execution of the work shall be done or got done under the supervision of the principal employer and may not be on the premises of establishment and such employer employs certain workmen for getting that work done, then those persons employed can't be said to be not the employees under the principal employer. They really come within the framework of the expression employee.
22. In the case referred to by the learned Counsel for the appellant viz., C.E.S.C. Limited v Subhash Chandra Base and Others, the attention of the Hon'ble Court was not invited to the provisions of Section 2(13) which has much relevance in the matter of construction of expression employee under Section 2(13) of the Act. Definition of immediate employer indicates and also the amendment made in Section 2(13) of the Act is to the effect "and includes a contractor". As per the definition of Section 2(13) even a contractor is included within the framework of expression immediate employer, if he has undertaken to execute the work either on the premises of the factory or establishment to which the Act applies, or he has undertaken to execute the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, may be at the place otherwise than the premises in establishment of the principal employer. The expression "under the supervision of the principal employer" really controls the expression immediate employer, and the employment of worker by him of such person for the purpose of the work of the factory or establishment or for the work which is preliminary to the work carried on in, or incidental to the purpose of the factory or establishment. As mentioned earlier, the attention was not invited to Section 2(13) of the Act. It will be very appropriate at this juncture to make reference to the case of Birdhichand Sharma v First Civil Judge, Nagpur and Others, dealing with the question of supervision. Their Lordships observed as under:
"Taking the nature of the work in the present case, it could hardly be said that there must be supervision all the time when bins were being prepared and unless there was such supervision there could be no direction as to the manner of work. In the present case, the operation being a simple one, the control of the manner in which the work was done was exercised at the end of the day, when biris were ready, by the method of rejecting those which did not come up to the proper standard. In such a case, it was the right to supervise and not so much the mode in which it was exercised which was important".
23. Reference may also be made to the decision of the Supreme Court in Lakshminarayan Ram Gopal and Son Limited v Government of Hyderabad through the Commissioner, Excess Profits Tax . Their Lordships after having referred the clause of Agency observed in paragraph 12 of the report as under:
"Considering the position of the appellants in the light of the above principles, it is no doubt true that the appellant were to act as the agents of the Company and carry on the general management of the business of the company, subject to the control and supervision of the Directors. That does not however mean that they acted under the direct control and supervision of the Directors, in regard to the manner or method of their work. The Directors were entitled to lay down the general policy and also to give such directions in regard to the management as may be considered necessary. But the day-to-day management of the business of the Company as detailed in Article 116 of the Articles of Association and Clause 3 of the Agency Agreement above set out was within the discretion of the appellants and apart from directing what work the appellants had to do, as the agents of the Company the Directors had not conferred upon them the further light to direct how that work of the general management was to be done. The control and supervision of the Directors was a general control and supervision and within the limits of their authority, the appellants as the agents of the Company had perfect discretion as to how that work of general management was to be done both in regard to the method and the manner of such work".
24. This decision explains that control and supervision may be limited or may be taken to refer to general control and supervision within the limits of their authority. When the limits of the authority given to the agents or immediate employer and it could be left to the discretion of the agents or immediate employer as to how the work was to be done both in regard to the method and the manner of such work. Keeping this principle in view, if we examine the appellant when handing over the material even to a contractor or immediate employer used to prescribe in delivering the requirements and specification in which the work has got to be done. The standard of work was specified and if the work did not stand up to the mark of the requirement or specification the finished material or goods could be returned and rejected. So this necessarily indicates that the principal employer had control over the immediate employer who even have engaged the outsiders and the outsiders so engaged by such immediate employer could be said to be the employees, looking to the nature of work being part and parcel of the principal work carried in the establishment of the appellant. At this juncture, it will also be appropriate to make reference to the decision in the case of M/s. P.M. Patel and Sons and Others v Union of India and Others, in which after having followed the law laid down in Silver Jubilee Tailoring House and Others v Chief Inspector of Shops and Establishments and Another, their Lordships observed in paragraph 10 of the report as under:
"In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which, as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old men and women with equal facility and it does not require a high order of skill. In the circumstances, the right of rejection can constitute in itself an effective degree of supervision and control. We may point out that there is evidence to show that the rejection takes place in the presence of the home worker. That factor, however, plays a merely supportive role in determining the existence of the relationship of the master and servant. The petitioners point out that there is no element of personal service in beedis rolling and that it is open to a home worker to get the work done by one or the other member of his family at home. The element of personal service, it seems to us, is of little significance, when the test of control and supervision lies in the right of objection".
25. As mentioned earlier, as in the case of C.E.S.C. Limited, supra, attention of their Lordships was not invited to Section 2(13) of the Act, which defines immediate employer and which also provides a contractor is also included within the framework of the expression immediate employer and which used common expression on the premises of the factory' or establishment which Act applies or under the supervision of principal employer or his agent which expression has been used in Section 2(9)(ii) and expression of the same significance used in Section 2(13) to point out as elementary test to determine immediate employer. That immediate employer is one who undertakes the execution of work or part of the work which forms whole or part of the work of the factory either on the premises or under the control of the principal employer. So the expression under the supervision of the principal employer controls the meaning of immediate employer and the work undertaken to be executed by that person. The decision in C.E.S.C. Limited's case, supra, may be said to be suffer from the Doctrine of per incuriam. When it has been opined that the contractor cannot be the agent of principal employer in the matter of control and supervision over the workers or employees employed by him. The view has been expressed as addition in Section 2(13) that immediate employer "includes a contractor" as per amendment of this definition has not been brought to the notice of their Lordships.
26. To attract Section 2(9) of the Act, it is not always necessary that there should be direct relationship of master and servant in rigid sense. We have to derive legislative intent from the expression used in the Act and have to interpret and if two interpretations are possible then by adopting the one beneficial to weaker section and one fulfilling the object of social welfare legislation enacted for the benefit of subject and labour. This Court has also in Regional Director, E.S.L Corporation's case, supra, held that the workers employed in the work of rolling and packing of the agarbathis come within the framework of the expression "employee" even if they after taking necessary material work outside the premises provided they have been employed by his immediate employer or a person coming within the framework of immediate employer as per definition of Section 2(13) of the Act. Once they have been held to be the employees under the principal employer by this Court and that view and decision appears to be correct there does not appear any need to make reference to the Larger Bench and I follow this decision as well.
27. The next contention advanced by the learned Counsel for the appellant is that even if these persons may be taken to be the employees under Section 2(9) of the Act, but in view of the latter part, they are not to be deemed to be included within the framework of the expression employee as their wages or remuneration exceed Rs. 1,600/- and the figure monthly wages prescribes Rs. 1,600/-. No such plea was raised by the appellant learned Counsel for the appellant either before the Regional Director or before the Employees' Insurance Court as pleadings disclose. Such a plea involves a question of fact to be determined and such fact had to be pleaded by the appellant and an issue on that point would have to be framed evidence recorded before it could have been got determined. When such question of fact had not been raised before the Employees' State Insurance Court, nor had been raised before the Regional Director, this plea cannot be permitted to be raised at this stage of appeal under Section 82 of ESI Act. The order whether it raises a substantial question of law has to he determined in the context of the pleas raised before the ESI Court and if the said plea has not been raised, then it cannot be said on the basis of new plea of fact which requires determination on merits on the basis of recording of evidence and its appreciation to be suffering from or to be raising any substantial question of law, nor can it be said on the basis thereof that the impugned order involves a substantial question of law for determination. When I so observe, I find support for my view from the decision of the Privy Council in Mudanna Virayya v Mudanna Adenna and Others, and of the Madhya Pradesh High Court in the case of E.S.I. Corporation, Indore v Dhanni Bai and Another, and from the Division Bench decision of the Assam and Nagaland High Court in the case of M/s. Tara Chand Mohan Lal v E.S.I. Corporation. In this view of the matter, the second contention is not being permitted to be raised and is disallowed to be raised.
28. Thus considered, in my opinion the impugned order passed by the Employees' State Insurance Court in the present case, cannot be said to be suffering from any substantial error of law. The appeal in my opinion, as such, is devoid of merits and deserves to be dismissed.
29. The miscellaneous first appeal, as such, is hereby dismissed with costs.