Full Judgment Text
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PETITIONER:
GASKET RADIATORS PVT. LTD.
Vs.
RESPONDENT:
EMPLOYEES STATE INSURANCE CORPN. & ANR.
DATE OF JUDGMENT28/02/1985
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)
MISRA, R.B. (J)
CITATION:
1985 AIR 790 1985 SCR (2)1085
1985 SCC (2) 68 1985 SCALE (1)337
ACT:
Constitution of India, Articles 41, 42 and 43 and
Entries 23 and 24, List 111, Schedule. Vll-Campetency of
legislature to make laws.
Employees’ State Insurance Act, 1948-Chapter V-A
(Prior to its deletion w. e. f. July 1, 1973 by notification
issued up under s. 73-1)-Whether contemplates rendering of
any service or conferment of benefit-Employer’s special
contribution-Whethernecessary to label constitution as a tax
or fee-Whether quid pro guo exists between contribution and
benefit-Whether quid pro quo need be simultaneous or
deferred.
Interpretation: Whether observation Judgment to be
construed as provision of statute.
HEADNOTE:
The Employee’ State Insurance Act 1948, a social
welfare legislation in tune with the Directive Principles of
State Policy contained in Articles 41, 42 and 43 OF the
Constitution, was enacted to provide for certain benefits to
employees in the case of sickness, maternity and employment
injury and to make provisions for certain other matters in
relation thereto. the Act directly falls under Entries 23
and 24 of List III of the Vllth Schedule of the
Constitution, which are, social security and social
insurance, employment and unemployment", and "welfare of
labour including coDditioDs of work, provident funds,
employers liability, workmen’s compensation, invalidity and
old age pensions and maternity benefits".
The Act applies to all factories including factories
belonging to the Government other tban seasonal factorics-
Chapter Il provides for the establishment of the Employees’
State Insurance Corporation, to bo a body corporate, for
administering the scbeme of Employees’ State Insurance.
Section 26 provides for the establishment of a Fund called
the Employees’ State Insurance Flmd. Section 28 lists the
purposes for which the Fund may be expended. Chapter IV
provides for the manner of insurance of ull the employGes in
factories or ostablishments to which tho Act applios
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and the payment of contribution for that purpose. The
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contribution payable in rcspect of an employce shall
comprise contributioll payable by the employer called
employer’s contribution aad contribution payble by the
employee called employee’s contribution. The contribution
has to be paid at tbe rates specified in the first schcdule.
SeCtiOD 46 specifies the benefits to which the iosured
persons,their dependats and others shall be entitled. The
scheme under tbe Act could only be implemonled by stagos,
and, thelefore, ’ trnnsitory provisioDs" were made by
introduction of Chapter V-A by s. 20 of Act No. 53 of 1951,
which provided for tbe payment by the principal employer of
a special contribution which shall be in lieu of the
employer’s contribution payable under Chapser IV in the case
of factories or establishments situate in areas iD which the
provisions of both Cbapters IV and V are in force. The
provisioas or Chapter V-A, however, ceased to have effect on
and from July 1, 1973.
The appellant compaoy wa9 foemed in 1964 and started
production Ihe same year. The appellant company was exemptcd
from Ihe provisiona of Chapter V-A until the provisions of
Chapter V of the Act were enforced in the area where the
appellaDt’s factory was situaled. This exemption was
withdrawn with effect from May 31, 1969. The appellant
company ques tioned its liability to pay special
contribution under Cbapter V-A of the Act under Article 2’6
of the Constitution. The High Court disrDissed the Detition
.
In the appeal to this Court it was contended that Ihe
contribution payable under Chapter V-A is a fee and its levy
is illegal as the Act does not contemplate the rendering of
any service or the conferment of any benefit to the
appellant company or its employees as quJd pro quo for the
pay mcnt. and the DrOVisionS of Chapter V-A are, therefore,
ultra vires
Dismissing the appeal.
^
HELD: 1. The payment of contribution by an
employer towards the premium of an employee’s compulsory
insurance under the Employee’ State Insurance Act falls
directly within Entrics 23 and 24 of List III of the VIIth
Schedulo and it is wholly unnecessary to seek justification
fot it by recourso to Entry 91 of List 1 or Entry 47 of List
III in aDg circumlocutous fashioD. [1094A-B]
2. These contributions or for example coDtribulions to
Provident Funds or payment of other benefits to worlcers
cannot be labelled as taxes or fees. They are neither taxes
nor fees. They donot require to be labelled as taxes or fees
to recoive ligitimation. [1093E’]
3. ( Even if tho charge is to be con-trucd as a fee it
is justifiable on that basis also as there was sufflcient
quid pro quo. [1096A]
3. (ii) Services and bonefits are indeed meant to
be and are bound to be conferrcd oo the employees and
throngh them on the employer, in due course. when tbe scheme
becomes fully operative in all areas. For a start the scheme
is confined to a few aroas and though special contribution
is
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levied from all employers wherever they be, in the case of
employers who A straightaway receive the beoefits of the
insurance scheme, their rate of contribution is bigher while
in the case of employ-rs, who do not yet receive the
benets of the scheme, their rate of contribution is lower.
For the latter the scheme is analogous to a deferred
insurance policy. Morely because the benefits to be receive
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are postponed, it cannot be said that there is no quid pro
quo Ordinarily a return in presenti is generally present
when fee is levied, but simultaeity or contemporaneity of
payment is not the most vital or crucial test to determine
whether a levy is a fee or not. In fact, it may often happen
that the rendering of a service or the conferment of a
benefit may only follow after the consolidation of a fund
from the fee levied. It is only after a sufficient nucleus
is available that one may reasonably except a compensating
re(urn. The question of how soon a return may be expected or
ought to be given must necessarily depend on the nature of
the services required to be performed and benefits required
to be conferred [1094D-H]
Basant Kumar vs. Eagle Rolling Mills, AIR 1964 SC
1260=[1964] 6 SCR 913, referred lo.
K. C. Sarma vs. Regional Director, E. S. I
Corporation, AIR 1962 ASSAM 120, followed. D
4. The observations in the case of Kewal Krishan that
the benefit should not be indirect and remote was not made
in connection with any delayed benefit from the point of
view of time, but with reference to the very benefit itself
and its connection with the levy. The judgments of Courts
are not to be construed as Acts of Parliament. Nor can a
Judgment on a particular aspect of a question be read as a
Holy Book covering all aspects of every question whether
such questions arose for consideration of not in that case.
[1096B-C]
Kewal Krishan vs. State of Punjab, AIR 1980 SC 1008
destinguished.
Amar Nath Om Parkash VS. State of Punjab, AIR 1985 SC
218, relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 764 of
1972.
From the Judgment and order dated the 6th/7th
September, 1971 of the Gujarat High Court at Ahmedabad in
Special Civil Application No. 1489 of 1969.
G.B. Pai, D.N. Misra, A.N. Ditia and Miss Meera
Mothur, for the Appellant.
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Abdul Khader, S.T. Desai, Girish Chandra, N.L. Kekar,
V. Subba Rao, R.N. Poddar for the Respondents.
The judgment of the Court was delivered by
CHINNAPPA REDDY, J. The question raised in this appeal
concerns the vires of Chapter V-A of the Employees’ State
Insurance Act, 1948. The principal Act was enacted in 1948.
Chapter V-A was inserted by s. 20 of Act No. 53 of 1951. The
provisions of the Chapter, however, have ceased to have
effect on and from July l, 1973. That is the sequel to a
notification issued under s. 73-I of the Act. Chapter V-A is
headed "Transitory Provisions" and provides for the payment
by the principal employer of a special contribution which
shall be in lieu of the employer’s contribution payable
under Chapter IV- in the case of factories or establishments
situated in areas in which the provisions of both Chapters
IV and V are in force. The special contribution is required
to be such percentage, not exceeding five per cent of the
total wage bill of the employer, as the Central Government
may specify. It is also provided that the employer’s special
contribution in the case of factories or establishments in
areas in which the provisions of both Chapters IV and V are
in force shall be fixed at a rate higher than that in the
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case of factories or establishments situate in areas in
which the provisions of the said Chapters are not in force.
The employees’ State Insurance Act, 1948 was enacted
to provide for certain benefits to employees in the case of
sickness, maternity and employment injury and to make
provisions for certain other matters in relation thereto. It
is an obvious social welfare legislation in tune with the
Directive Principles of State Policy contained in Articles
41, 42 and 43 of the Constitution. It is a legislation which
comes directly under entries 23 and 24 of list III of the
Vllth schedule of the Constitution, which are, "social
security and social insurance; employment and unemployment",
and "welfare of labour including conditions of work,
provident funds, employers’ liability, workmen’s
compensation, invalidity and old age pensions and maternity
benefits". The Act extends to the whole of India and comes
into force on such date or dates as the Central Government
may appoint, different dates being permissible for different
provisions of the Act and or different States or for
different parts thereof. It applies to all factories
including factories belonging to the Government other than
seasonal factories. Chapter
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II provides for the establishment of the Employees’
State Insurance A Corporation for administering tho scheme
of Employees’ State Insurance in accordance with the
provisions of the Act. The Corporation is to be a body
corporate HAVING perpetual succession and a common seal.
There are detailed provisions for the Constitution of a
Standing Committee and a Medical Benefit Council. Chapter
III provides for Finance and Audit. Section 26, in
particular, provides for the establishment of a Fund called
the Employers’ State Insurance Fund into which all
contributions paid under the Act and all other money
received on behalf of the Corporation shall be paid. The
Corporation is authorised also to accept grants, donations
and gifts from the Central or any State Government, local
authority or any individual or body whether incorporated or
not, for all or any of the purposes of the Act. Section 28
lists the purposes for which the Fund may be expended and it
includes among other items,
(i) payment of benefits and provision of
medical treatment and attendance to insured persons
and, where the medical benefit is extended to their
families. the provision of such medical benefit to
their families, in accordance with the provisions of
this Act and defraying the charges and costs in
connection therewith; and E
(ii) ...........................
(iii) ......... .
(IV) establishment and maintenance of
hospitals, dispensaries and other institutions and the
provisions of medical and other ancillary services for
the benefit of insured per sons and, where the medical
benefit is extended to their families;"
ChapterlV provides for the manner of insurance of all
the employees in factories or ESTABLISHMENT to which the Act
applies and the payment of contribution for that purpose.
The contribution payable in respect of an employee shall
comprise contribution payable by the employer called
employees contribution and contribution payable by the
employee called employee’s contribution. The contribution
has to be paid at the rates specified in the first schedule.
Detailed provision is made for the method and payment
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of contribution. Chapter V deals with benefits Section 46
specifies the benefits to which the insured persons, their
dependants and others shall be entitled. There are other
detailed provisions indicating the manner of working out the
various benefits.
Quite obviously the scheme could not be implemented
straight away throught out the country but could only be
implemented by stages. It, therefore, became necessary for
the Parliament to make certain transitory provisions, which
it did by the introduction of Chapter V-A by Act 53 of 1951.
The Statement of objects and reasons of Act 53 of 1951 may
be usefully extracted here. The Statement is as follows:-
"The Employees’ State Insurance Act, 1948, was
passed by the Dominion Legislature in April 1948. It
provides for certain benefits to industrial employees
in case of sickness maternity and employment injury The
Act permits tho implementation of the scheme by stages.
It was intended that the scheme should be
implemented in the first instance in Delhi and Kanpur,
but regional implementation of such schemes is always
attended with certain practical difficulties. The
principal difficulties are the rise in the cost of
production and the diminution of the competitive
capacity of industries located in those regions. The
main objections of the employers centred round the
former difficulty and those of the Uttar Pradesh
Government emphasised the latter. The Central
Government have considered those objections and are
anxious to avoid any competitive handicap to any
region. This may be best achieved by an equitable
distribution of the employer’s contribution, even where
implementation is affected only in certain areas, among
the employers in the whole country employers in regions
where the scheme is implemented paying slightly higher
contributions. This will minimise the contribution
leviable from the employers and spread the incidence of
the cost of the scheme equitably. This Bill is
primarily intended to achieve this object."
The notes on Clause )0 of the Bill which provided for
the introduction of Chapter V-A was to the following effect,
1091
"Clause 20-A new self-contained chapter is
proposed A providing for the collection of employer’s
special contribution throughout the Union. The rate of
the contribution which may be varied from time to time
is to be fixed by the Central Government after two
months’ notice by notification. The rate of the
contribution shall be higher m areas where the scheme
applied than in other areas. The manner of and time
within which the special contribution is to be paid
would be notified by the Central Government.
Consequential provisions fitting the employer’s special
contribution into the existing scheme of the Act and
other necessary provisions have been made in this
Chapter. The Central Government is empowered to give
directions or provide for such matters as may be
necessary for the removal of any difficulty. The
Chapter can be withdrawn from operation by the Central
Government after giving three months’ notice."
The desirability and the necessity for the
implementation of the scheme by stages has been brought out
by a Constitution Bench of this court in Basant Kumar v.
Eagle Rolling Mil/s(l) where it was stated.
"..... In the vary nature of things, it would
have been impossible for the legislature to decide in
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what areas and in respect of which factories the
Employees’ State Insurance Corporation should be
established. It is obvious that a scheme of this kind,
though very beneficent, could not be introduced in the
whole of the country all at once. Such beneficial
measures which need careful experimentation have some
times to be adopted by stages and in different phases,
and so, inevitably, the question of extending the
statutory benefits contemplated by the Act has to be
left to the discretion of the appropriate Government.
"Appropriate Government" under S. 2(1) means in respect
of establishments under the control of the Central
Government or a Railway administration or a major port
or a mine or oil field(i, the Central Government, and
in all other cases, the State Government. Thus, it is
clear that when extending the Act to different
establishments, the relevant
(1) AIR 1964 SC 1260=[1964] 6 SCR 913
1092
Government is given the power to constitute a
Corporation for the administration of the scheme of
Employees’ State Insurance. The course adopted by
modern legislatures in dealing with welfare scheme has
uniformly conformed to the same pattern. The
legislature evolves a scheme of socioeconomic welfare,
makes elaborate provisions in respect of it and leaves
it to the Government concerned to decide when, how and
in what manner the scheme should be introduced."
In the present case the appellant company which was
formed in 1965 and went into production the same year, was
exempted from the provisions of Chapter V-A of the Act until
the provisions of Chapter V of the Act were enforced in the
area where the appellant ’s factory was situated. However
this exemption was withdrawn with effect from May 31, 1969
by a notification of the Government. The appellant company
questioned its liability to pay special contribution under
Chapter V-A of the Employees’ State Insurance Act by filing
a writ petition in the High Court of Gujarat under Art. 226
of the Constitution. The writ petition was dismissed by the
High Court on September 7, 1971 and the present appeal has
been filed pursuant to a certificate granted by the High
Court under Art. 132(1) and 133(1) (c) of the Constitution.
Meanwhile Chapter V-A has ceased to have effect on and from
July 1, 1973. We are, therefore, concerned in this appeal
with the question of the payment of special contribution
under Chapter V-A by the appellant company for the period,
May 31, 1969 to March 26, 1973. The main ground on which the
appellant canvasses the correctness of the judgment of the
High Court is that the contribution payable under Chapter V-
A is a fee and its levy is illegal as the Act does not
contemplate the rendering of any service or the conferment
of any benefit to the appellant company or its employees as
quid pro quo for the payment. The provisions of Chapter V-A,
therefore, according to the learned counsel, are ultra
vires.
We are afraid that the very approach of the appellant
to the problem at issue suffers from a basic defect. The
appellant’s argument proceeds on the fundamental
misconception that the payment of contribution directed to
be made by the employer under the Employees’ State Insurance
Act or other similar payment or benefit under various other
social welfare legislations must either be labelled as a tax
or a fee in order to attain legitimacy or not at all. The
idea that such payment, contribution or whatever name
1093
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is given to it should be so pigeon-hold and fitted in stems
from a misunderstanding of the scheme of our Constitution
in regard to social welfare legislation. Apart from the
preamble which promises to secure to all its citizens,
"justice, social, economic and political", the State is
enjoined by the Directive Principles of State Policy to
secure a social order for the promotion of the welfare of
the people. In particular Arts. 41, 42 and 43 enjoin the
State to make effective provision for securing the right to
work, to education and public assistance in cases of
unemployment, old age, sickness and disablement, and in
other cases of any undeserved want, to make provision for
securing just and humane conditions of work and maternity
relief and to secure by suitable legislation or economic
organisation or in any other way, to all workers,
agricultural, Industrial or otherwise, work, a living wage,
conditions of work ensuring a decent standard of life and
full enjoyment of leisure and social and cultural
opportunities. It is in pursuance of these Directive
Principles that we find entries 23 and 24 in list III of the
VlIth Schedule of the Constitution. Both Parliament and the
Legislature of any State, subject to conditions with which
we are not concerned, have power to make laws with respect
to any of the matters enumerated in List llI It is pursuant
to the power entrusted in respect of entries 23 and 24 of
List III that Parliament has enacted the Employees’ State
Insurance Act. In our understanding, entries 23 and 24 of
List III, of their own force, empower-Parliament or the
legislature of a State to direct the payment by an employer
of contributions of the nature of those contemplated by the
Employees’ State Insurance Act for the benefit of the
employees. These contributions or for example contributions
to provident funds or payments of other benefits to workers
are not required to be and cannot be labelled as taxes or
fees for the sole and simple reason that they are neither
taxes nor fees. List I and List lI contain several entries
in respect of which taxes may be levied by the Parliament,
by the Legislature of any State and by both. Entry 97 is a
residuary clause which enables Parliament to legislate in
respect of any other matter not enumerated in List lI or
List III including any tax not mentioned in either of those
lists. Entry 96 of List I enables Parliament to levy fee in
respect of any of the matters in that list, but not
including fee taken in any court. Similarly entry 66 of List
II enables the legislature of a State of levy fee in respect
of the matters in that list, but not including fees taken in
any court. Again entry 47 of List III enables Parliament and
the Legislature of a State to levy fees in respect of any of
the matters in that list but not including fees in
1094
any court. The payment of contribution by an employer
towards the premium (what else is it ?) of an employee’s
compulsory insurance under the Employees’ State Insurance
Act falls directly within entries 23 and 24 of List IIl and
it is wholly unnecessary to seek justification for it by
recourse to Entry 97 of List I or Entry 47 of List III in
any circumlocutous fashion. We see no reason to brand or
stamp the contribution as a tax or fee in order to seek to
legitimise it. Legitimation need not be sought fictionally
from Entry 97 of List I or Entry 47 of List III when
legitimation is directly derived for the charge from Entries
23 and 24 of List III.
Even if the charge is to be construed as a fee as the
High Court has done, it appears to us to be justifiable on
that basis too. It is not disputed and indeed it is not
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capable of any controversy that services and benefits are
indeed meant to be and are bound to be conferred on the
employees and through them on the employer, in due course,
when the scheme becomes fully operative in all areas. For a
start the scheme is confined to a few areas and though
special contribution is levied from all employers wherever
they be, in the case of employers who straightaway receive
the benefits of the insurance scheme, their rate of
contribution is higher while in the case of employers, who
do not yet receive the benefits of the scheme, their rate of
contribution is lower. So far as the latter are concerned,
the scheme is analogous to a deferred insurance policy which
parents often take out on the lives of their children, but
which are to be effective only from a future date after the
children attain a certain age, though premium is liable to
be paid right from the start. Merely because the benefits to
be received are postponed, it cannot be said that there is
no quid pro quo. It is true that ordinarily a return in proe
senti is generally present when fee is levied, but
simultaneity or contemporaneity of payment and benefit is
not the most vital or crucial test to determine whether a
levy is a fee or not. In fact, it may often happen that the
rendering of a service or the conferment of a benefit may
only follow after the consolidation of a fund from the fee
levied. Hospitals, for instance, cannot be built in a day
nor medical facilities provided right from the day of the
commencement of the scheme. It is only after a sufficient
nucleus is available that one may reasonably expect a
compensating return. The question of how soon a return may
be expected or ought to be given must necessarily depend on
the nature of the services required to be performed and
benefits required to be
1095
conferred. In K C Sarma v. Regional Director, E S 1.
Corporation(1) it was observed:
".. It appears that the employed special
contribution is not a tax but a fee. This contribution
goes to a fund known as the Employees’ State Insurance
Fund which is to be utilised for the benefits to be
given to the employees under the Act. the cost of these
benefits will‘ not be met from the general revenues of
the state, but will be borne entirely from the
aforesaid fund only.. the employers’ contribution under
the Act constitutes only a fee and not a tax The
Government cannot go on levying employers’ contribution
under sec. 73A of the Act without giving a service in
return. But from this it does not follow that the
service must be given as soon as the contribution is
made. The object of the Act is that the benefits which
it provides should become available to the employees in
all factories through out India as soon as
circumstances make it practicable. Statutory bodies
have to be set up, various officers have to be
appointed and arrangements have to be made for
providing medical help. All these required time and
money and in some areas the time required may be more
than in other areas. Chapter VA is for meeting the
needs of the transitory period. When the whole Act is
brought into force in the whole of India, it would not
be necessary to retain this Chapter. Then all
contributions will be made under Chapter IV. It may be
noted that Chapter VA was inserted, as pointed out
above, by an amending Act only in 1951. The object of
the amendment was to make an equitable distribution of
contributions by all employers. It was not considered
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fair that only employers of these 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
employers of regions to which the benefit clauses are
not extended must also make their contributions though
at a lesser rate."
As anticipated by the Assam High Court, Chapter VA has
now ceased to have effect from July l, 1973, as already
mentioned
AIR 1962 Assam 120.
1096
by us earlier. If the charge was to be levied as a fee, we
are satisfied that there was sufficient quid pro quo. The
learned counsel for the respondent attempted to argue that
simultaneity or contemperancity of levy and service were of
the essence of a fee and that it had been so laid down in
Kewal Krishan Vs. Stale of Punjab(l). Inspiration for the
argument was drawn from the statement in Cheval Christians
(supra) case that the benefit should not be indirect and
remote The reference, there, to indirectness and remoteness
was not made in connection with any delayed benefit from the
point of view of time, but with reference to the very
benefit itself and its connection with the levy. We once
again have to reiterate what we were forced to point out in
Amar Nath Om Parkash vs. State of Punjab(2) that judgments
of courts are not to be construed as Acts of Parliament. Nor
can we read a judgment on a particular aspect of a question
as a Holy Book covering all aspects of every question
whether such questions and facets of such questions arose
for consideration or not in that case. We must however,
hasten to notice that the Madras High Court in Shakti Pipe
Limited vs E. S I. Corporation(3) and the Kerala High Court
in Gwalior Rayon Silk Manufacturing Company v,. S. 1.
Corporation(4) have upheld the levy of special contribution
as a tax. Therefore, whether the special contribution is, to
be viewed as a tax, fee or neither it has sufficient
constitutional protection. The appeal is, therefore,
dismissed with costs.
A.P.J. Appeal dismissed.
(1) AIR 1980 SC 1008
(2) AIR 1985 SC 218
(3) 1978 LABOUR & Ind. Cases 410 11
(4) 1975 LABOUR & Ind. Cases 1395.
1