JUDGMENT D.S. Sinha, J.
1. Heard Sri Sanjay Kumar Srivastava, holding brief of Sri B.B. Paul, learned counsel appearing for the petitioners.
2. Recovery of employers contribution under Section 45B of the Employees' State Insurance Act, 1948 (hereinafter called the 'Act'), is sought to be impugned by the petitioners in this writ petition under Article 226 of the Constitution of India.
3. The principal ground on which the recovery is assailed is that the factory run by the petitioners is a 'seasonal factory' within the meaning of Section 2(12) of the Act and as such the provisions of the Act shall not apply in view of the provisions contained in Sub-section (4) of Section 1 of the Act.
4. In the counter affidavit filed on behalf of the Regional Director, Employees' State Insurance Corporation, ESIC Bhawan, Sarvodayaganj, Kanpur, the Respondent No. 2, it is asserted that the impugned recovery is in pursuance of the order dated September 1, 1984 passed under Section 45A of the Act determining the quantum of contribution payable by the petitioners. According to the averments in the counter affidavit, the order dated September 1, 1984, aforesaid, has become final inasmuch as neither it was challenged in appropriate proceedings before the Employees' Insurance Court under Section 75 of the Act nor is under challenge in this petition. Thus, the order dated September 1, 1984, in pursuance whereof the impugned recovery proceedings have been initiated, having become final is not open to challenge by the petitioners; and the objection to the amount sought to be recovered cannot be upheld. In the counter affidavit, it is also asserted that the factory run by the petitioner is not a 'seasonal factory' as contemplated by the Act.
5. Expression 'seasonal factory' has been defined in Section 2(12) of the Act to mean a factory which is exclusively engaged in one or more of the following manufacturing processes. namely, cotton ginning, cotton or jute pressing, decortication of groundnuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year......
(a) in any process of blending, packing or repacking of tea or coffee; or
(b) in such other manufacturing process as the Central Government may, by notification in the official Gazette, specify;
The expressions "manufacturing process" and "power" shall have the meaning respectively assigned to them in the Factories Act, 1948.
6. According to the pleadings in the petition, the manufacturing process undertaken by the factory of the petitioners involves manufacturing of machine made phials and bottles of all kinds, blowing glasswares, tumblers, jars, presswares, chimneys and fancy glass tumblers etc. Obviously, it does not include any of the manufacturing processes specified in Sub-section (12) of Section 2 of the Act. The factory run by the petitioners, therefore, cannot be held to be a 'seasonal factory'. It is rather a 'factory' as defined in Sub-section (12) of Section 2 of the Act.
7. The 'factory' defined in Sub-section (12) of Section 2 of the Act means any premises including the precincts thereof where twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Mines Act, 1952 or a railway running shed. It has to be noticed that there is no pleading in the writ petition that the factory run by the petitioners does not employ 20 or more persons and no manu-facturing process is being carried on in the manner stipulated in Sub-section (12) of Section 2 of the Act. Thus, the plea of the petitioners regarding inapplicability of the Act has no force, and is, therefore, rejected.
8. Under Section 75 of the Act any matter 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 the Act or any other matter required to be or which may be decided by the Employees' Insurance Court constituted under Section 74 of the Act is to be decided by the Employees' Insurance Court. The dispute regarding liability of the petitioners for contribution under the Act could, therefore, be adjudicated upon in the proceedings before the Employees' Insurance Court. Indisputably, the petitioners did not initiate the requisite proceedings under Section 75 of the Act. Further, the petitioners have not challenged the order dated September 1, 1984 determining their liability for contribution under Section 45A of the Act in this petition also. Therefore, the petitioners would be deemed to have acquiesced to the order dated September 1, 1984, and are estopped from challenging the same.
9. The impugned recovery proceedings being founded on the order dated September 1, 1984, which has become final, are not open to challenge in this petition. The recovery proceedings are perfectly legal and do not suffer from any such legal infirmity which may justify interference by this Court in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India.
10. For the foregoing reasons the Court is of the opinion that the writ petition is devoid of merits. It is, therefore, dismissed. However, there is no order as to costs.