JUDGMENT 1. - The petitioner is a Private Limited Company incorporated under the Indian Companies Act, 1956, and is a factory within the meaning of Factories Act, 1948. It carries on the business of manufacture of extension of nonferrous semis in the form of rods, pipes, tubes and sections etc. in different alloys. In the year 1968, the petitioner commenced work of construction of another building in the compound of the existing factory in the industrial area, Jodhpur. The petitioner company spent a sum of Rs. 36783.07P as labour charges for the above construction work and repairs in the year 1968 and further spent Rs. 20,305.60P in the year 1969. It has been averred in the petition that the construction work was got done through a contractor who engaged the labour on temporary basis which was of a casual nature and cannot fall under the purview of section 2 (9) of the Employees' State Insurance Act, hereinafter called the Act. It is alleged that the local Inspector respondent No.3 visited the factory and inspected the books and records of the company pertaining to the construction work 1968-69. Despite that the respondent No.3 sent a latter No. 15/4508/57/ESO dated 12.11.69 to the petitioner, wherein he called upon the petitioner to deposit Rs. 4385/- and Rs. 3654.06 as the employees' special contribution and employees contribution respectively, within 15 days from the date of letter failing which legal action for recovery would be taken. The petitioner repudiated its liability by its letter dated 6.12.69 and further asked for time to give out the breakup figures regarding the cost of materials and wages paid to the labourers. On 29th September, 1970, the respondent No. 3 sent another letter Ex.2 wherein he asked for further deposit of the amount of Rs. 304/-, Rs. 253.03, 609/- and Rs. 507.64 for the work done by the labour engaged through the contractor as employees' special contribution and employees' contribution. The petitioner contested this liability also on the ground that the amounts in question relate to casual labour not connected with the work of the factory. The respondent No.3 did not feel satisfied with the reply of the petitioner and on 16.10.1970 he passed an order Ex. P.6 determining the liability of the employer petitioner by Ex.6 and further sent recovery certificates to the Collector Jaipur in forms Nos. 19 and 19A vide Exs. The respondent No.3 did not feel satisfied with the reply of the petitioner and on 16.10.1970 he passed an order Ex. P.6 determining the liability of the employer petitioner by Ex.6 and further sent recovery certificates to the Collector Jaipur in forms Nos. 19 and 19A vide Exs. 7 and 8 for recovery of the amount specified therein from the petitioner. The petitioner seeks to challenge Exs. 6, 7 and 8 and prays for quashing them inter alia on the ground that they are illegal, void and without jurisdiction. 2. The petition has been contested by the respondent No.3. It has been averred in the reply that the recovery certificates had been rightly initiated as the petitioner failed to supply the requisite information as promised in his letter dated 13.3.70. It is further said that the casual workers were directly employed by the petitioner employer for the work connected with its factory and such workmen were employees within the meaning of section 2 (9) of the Act. The summary determination of the liability was sought to be justified on the ground that the petitioner failed to produce the documents despite notice of the respondent No.3. It has been further alleged that the petitioner had submitted an application under the Employees State Insurance Act challenging his liability on the same facts and grounds under section 75 of the Act. The said application was contested by the respondent and ultimately the petitioner withdrew its application before the Employees' Insurance court which was dismissed on 11.7.72. The petitioner having availed the remedy before the Employees' Insurance court is now barred by the principles of res judicata & also estopped from challenging the recovery proceedings. 3. The preliminary question that arises for consideration is whether the petition is barred by the provisions of res judicata or the principle of estoppel operates as a bar against the maintainability of the petition. This writ petition was filed on 24th of March,1971. When the petition was pending, the petitioner also moved an application under section 75 of the Act in the Employees Insurance Court. In the mean time the writ petition was admitted and the stay order was passed by this court. The petitioner, therefore, withdrew its petition. The application of the petitioner under section 75 of the Act was neither decided on merits nor was finally heard. The principle of res judicata has therefore no application. In the mean time the writ petition was admitted and the stay order was passed by this court. The petitioner, therefore, withdrew its petition. The application of the petitioner under section 75 of the Act was neither decided on merits nor was finally heard. The principle of res judicata has therefore no application. So also the plea of estoppel cannot be brought as an obstacle against the petitioner. The essential ingredients of the principle of estoppel are (i) there must be a representation which should have been believed and acted upon by the opposite side and (ii) act and conduct of the representing party should have altered the position of other side who had believed the representation to a disadvantageous position. No such ingredients are present in this case. Therefore, the plea of estoppel also cannot be sustained. Both the preliminary objections grounded on the res judicata and estoppel are, therefore, repelled. 4. Turning to the merits, the first question which arises for consideration is whether the labour engaged by the principal employer himself or through a contractor in connection with new construction work of the factory will come under the purview of section 2 (9) of the Act. Undoubtedly the construction work was in connection with the erection of a new building for the purpose of the factory. The question, however, remains whether the erection of a new building for a factory is a work in connection with the work of an establishment. The Madhya Pradesh High Court has held that erection of a new building for a factory is not a work in connection with the work of a factory. In Jamul Cement Works v. State Industrial Court, (1967) 33 FJR 101 the construction of cement factory was started in 1960-61. The factory went into production in 1965. Even after 1965, construction of 2 kilns continued. With reference to the employees engaged in that construction an industrial dispute was referred to the Industrial Tribunal who held that the construction work was work connected with the work of the Industry as it was essential for the purpose of bringing into existence the necessary factory building. Even after 1965, construction of 2 kilns continued. With reference to the employees engaged in that construction an industrial dispute was referred to the Industrial Tribunal who held that the construction work was work connected with the work of the Industry as it was essential for the purpose of bringing into existence the necessary factory building. The Madhya Pradesh High Court while dealing with this aspect observed that although setting up and construction of a cement factory is no doubt essential before cement can be manufactured but the construction of a factory cannot be in any way linked to any activity or operation in the manufacture of cement or its distribution of sale. The construction work cannot be in any way said to be a work engaged in the manufacture of the cement as construction work could be even entrusted to the contractor. It has been further held that the construction work of a cement factory cannot be said to be an activity or operation incidental to the main industry of cement manufacturing. To the same effect is the view of the Madras High Court in a case reported in South India Flour Mills Pvt. Ltd. v. E S I Corpn., (1970) 37 FJR 101 . Alagiri Swami, J as he then was, in that case has held that workers employed in the construction of the new unit of an existing factory in the compound of its existing factory are not employees as defined in section 2 (9) of the Act and, therefore, the employer is not liable to pay any contribution in respect of such employees under the Act. I am in agreement with the view taken by Madhya Pradesh High Court and also by Alagiri Swami J. and hold that the labour engaged in the new construction work for the factory cannot be taken to be the employees within the meaning of section 2 (9) of the Act. The matter can be viewed from another angle. The construction work is not regular work of the petitioner company but is merely a casual work. The employees engaged in such work can at the best be taken to be casual workers. Can the casual workers be taken to be the employees within the meaning of section 2 (9) of the Act is a question which requires to be answered. The employees engaged in such work can at the best be taken to be casual workers. Can the casual workers be taken to be the employees within the meaning of section 2 (9) of the Act is a question which requires to be answered. It is true that the definition of employee given under section 2 (9) of the Act is couched in very wide terms. But when the definition clause uses words of very wide import a line may have to be drawn so as to exclude categories obviously not intended to be included by the Act. For this one has to see what light is thrown on the true view to be taken of the definition clause by other provision of the Act. (See A I R 1957 S C 121). Wide words used in definition clause may be given limited meaning having regard to the context as a whole. The object of the Employees State Insurance Act is to secure sickness, maternity, disablement and medical benefit to employees of factories and establishments and benefits to their dependents. Section 38 which deals with contribution to insurance lays down that all employees in a factory or establishment to which the Act applies shall be insured in the manner provided by the Act. Section 39 (1) enjoins upon both the employer and employees to contribute to the Corporation for the benefit of the employees Section 46 of the Act enlists various benefits to which the insured or their dependents as the case may be are entitled. Obviously the contribution is intended to cover the risk of the employees in regard to the sickness, maternity, employment, injury and other matters specified in section 46 of the Act. Then there is section 47 which lays down that the sickness benefits be available to the particular category of the employee and not to casual employees employed for a period lesser than specified in the section. The benefit period as it has been called is to be not less than 25 weeks and not exceeding 27 consecutive weeks. From these provisions it appears that in order to make the employee eligible for benefits contribution has to be made for a certain period so as to qualify him to claim benefits. The benefit period as it has been called is to be not less than 25 weeks and not exceeding 27 consecutive weeks. From these provisions it appears that in order to make the employee eligible for benefits contribution has to be made for a certain period so as to qualify him to claim benefits. From the various provisions it appears that the Act never intended to apply to casual labour who may work for a day or two or even more but only on a casual basis. The legislature could not have intended to impose liability of contribution in regard to a casual labour as he might work for a day or two or for a short period without any corresponding gain or benefit to them. I am fortified in this view of mine by a decision of the Madras High Court reported in E.S.I. Corpn. v. Ganambikai Mills, 1974 Lab IC 798 . It will be useful to extract some observations of Veera Swami C.J. from that judgement as follows:- "It seems to us that taking a practical view of the question, it does not appear to be intention of the Act that casual employees should be brought within its purview. The contribution that the employer and the employee made which goes to make up the fund is in the nature of a consideration for the benefits contemplated under the Act and to be derived by those entitled to them. The contribution necessarily has a relation to the benefits derived. It does not appear to be the intention of the Act that however, small the contribution made by a casual employee may be nevertheless the fund should be devoted for extension the benefits to him. If the intention was to being any such casual employee within the purview of the Act, the Act would have clearly mentioned it." I am in agreement with the view taken by Veera Swami C.J. in the above mentioned case. Once it is held that the Act is not applicable to the casual labourers then it can be safely concluded that the respondent No.3 had no jurisdiction to take recovery proceedings for contribution in regard to casual labour. Exs. 7 and 8 the recovery certificates are without jurisdiction and have to be quashed. 5. Before parting with the discussion, I may observe that Ex. 6 is open to serious attack. Exs. 7 and 8 the recovery certificates are without jurisdiction and have to be quashed. 5. Before parting with the discussion, I may observe that Ex. 6 is open to serious attack. It purports to be a determination under section 45 A of the Act which reads as under:- "45 A. Determination of contribution in certain cases:- (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Inspector or other official of the Corporation referred to in sub-section (2) of section 45 is obstructed by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order determine the amount of contributions payable in respect of the employees of that factory or establishment. (2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for recovery of the amount determined by such order as an arrear of land revenue under section 45 B." Section 45 A authorises the official of the Corporation to determine the amount of contribution in a summary manner when the employer of a factory has not filed return, particulars, registers or records in a accordance with the provisions of section 44 or when called by the official of the Corporation to so submit. The power given under Section 45 A of the Act is a power to determine the liability of the employer in a summary manner. It is contended that the respondent No. 3 has not atall applied his judicial mind and has passed an arbitrary order. There appears to be force in this contention. Although the determination under section 45 A is of a summary manner but authority determining the liability must be guided by judicial considerations and rules of justice equity and good conscience. The determining officer should not be induced by a desire to punish the person in default who attracts the operation of section 45 A. The Corporation under the section has to determine the liability on the basis of information available to it. The determination implies consideration of something i.e. the consideration of facts relating to the amount of contribution under the Act. The determination implies consideration of something i.e. the consideration of facts relating to the amount of contribution under the Act. The officer concerned is to act honestly and not vindictively and capriciously. Ex.6 is an order which is not at all a speaking order but is a bare skeleton order giving no reasons or facts which induced the officer of the Corporation to determine the liability in a particular manner. It may be reproduced here for ready reference; "Whereas the Principal Employer of factory Messrs. Alcobex Metals (P) Ltd., Jodhpur. Code No. 25/4508/57 failed to submit, furnish or maintain returns, particulars, registers or records for the period from 1.1.68 to 31.12.69 (arrears) in accordance with section 44 of the Employers State Insurance Act and or Shri........ an Inspector/official of the Corporation has been obstructed by the Principal or immediate employer or by Shri........ of the said factory on........ in exercising his functions or discharging his duties under section 45 of the said Act. Now, therefore, in exercise of the powers vested in me under sub section 45 A of the Employees State Insurance Act, I, hereby, determine, on the basis of information available the amount of contributions payable in respect of the employees of the above factory as follows:- Period Amount of contribution payable From To 1. Employees Contribution 1.1.68 31.12.69 4584.13 + Interest 2. Employers's special contribution - - - Sd/- Regional Director Employee's State Insurance Corporation, Jaipur."Undoubtedly the order is of a quasi judicial nature and objective approach has to be taken for determining the amount when it foists the liability against the person. Even orders which foist liability which are not strictly quasi judicial must be speaking ones. The order is not a speaking one and has to be quashed. The view of mine finds support from Bhagat Raja v. Union of India, AIR 1967 SC 1606 , State of Gujarat v. Patel Raghav Nath, AIR 1969 SC 1297 , M/s. Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1970 SC 1302 , M/s. Travencore Rayons Ltds. v. Union of India, AIR 1971 SC 862 and the State of Punjab v. Bakhtawar Singh, AIR 1972 SC 2083 . 6. Mr. Tatia has, however, contended that the employer having failed to file returns or furnish information, the Corpn. had a right to treat the entire amount spent upon construction as wages paid to the employees. v. Union of India, AIR 1971 SC 862 and the State of Punjab v. Bakhtawar Singh, AIR 1972 SC 2083 . 6. Mr. Tatia has, however, contended that the employer having failed to file returns or furnish information, the Corpn. had a right to treat the entire amount spent upon construction as wages paid to the employees. He invited my attention to two decisions of the Punjab and Haryana High Court (i) F.A.O No. 92 of 1970 decided on 31st October 1972 (Messers Steel Crafts G.T. Road, Panipat and Others v. Employees State Insurance Corporation) and (ii) FAO No. 38 of 1970 decided on 10th August 1972 (B.D. Singhla v. Employees' State Insurance Corporation) and has argued on the basis of these authorities that it was the statutory duty cast on the petitioner to have furnished information as to the details of the expenditure which was incurred in respect of the materials and the labour and he having failed to do so the Corporation was within its bounds to have taken the entire amount spent on the erection of the building for the purpose of employees and employers contribution. In both the above cases it has of course been held that it is the statutory duty of the principal employer to make the contribution of its own. On its failure to do so the corporation is authorised to call for the returns and then to determine the amount payable by the employer. It has further been held that presumption could be drawn against the employer in case he fails to give the particulars of the employees and their wages, and if the employer fails to disclose this fact to the authority then the authority will be competent to raise a presumption against the employer and hold the entire amount spent by the employer constituted wages. I have perused the judgements carefully. It is true that the statutory duty is cast upon the principal employer to furnish the particulars of the employees and their wages and if he fails to do so presumption may be drawn against the employer. But the presumption to be drawn should be in keeping with contents of section 45 A of the Act. Section 45A of the Act requires a quasi judicial determination on the basis of information available to it. But the presumption to be drawn should be in keeping with contents of section 45 A of the Act. Section 45A of the Act requires a quasi judicial determination on the basis of information available to it. The information may be taken to be correct in view of the adverse presumption to be raised against the employer. But that has to be specified. The Corporation has to take an objective approach on the material available before it and has to give reasons in its order to be drawn under section 45A of the Act. Once the reasons are given which are in consonance with principles of justice, equity good conscience also are in keeping with the objective approach then of course no exception could be taken against the determination by the corporation of the liability of the employer under section 45A of the Act. But to accede to the contention that in case of failure to file returns by the employer it will be open to the Corporation to take an arbitrary view without turning out a speaking orders is in my opinion an extreme view which it is very difficult for me to subscribe. It is true that order embodies a finding of fact based on no materials or capricious and arbitrary cannot be allowed to stand Ex.6 is therefore bad in law. In the instant case as stated earlier Ex.6 is not at all a speaking order based on any information available with the Corporation and therefore cannot be sustained. The above decisions therefore can be of no assistance to the learned counsel for the respondent. 7. Before parting with the case I may notice other cases cited by Mr. U.R. Tatia. Mr. Tatia referred me Gammona India v. Union of India, AIR 1974 SC 960 , K.C.S. Dhanshukodi Nadar & Sons v. ESI Crop., 1964 (1)LLJ , P.F. Inspector Guntur v. T.S. Hariharan, AIR 1971 SC 1519 & Nagpur Electric Light & Power Co. v. ESI Corp., 1967 (2) LLJ 40 . Gammons India case (1) is a case under the Contract Labour Regulation and the ratio laid down in that case is not at all applicable in the present case. That case, therefore, cannot be availed by the learned counsel for the respondent. P.F. Inspector Guntur v. TS Hariharan, AIR 1971 SC 1519 does not at all help the learned counsel for the respondent. That case, therefore, cannot be availed by the learned counsel for the respondent. P.F. Inspector Guntur v. TS Hariharan, AIR 1971 SC 1519 does not at all help the learned counsel for the respondent. On the other hand it supports the stand taken by the petitioner. That was a case under the Employees Provident Fund Act. In that case the Provident Fund Inspector, Guntur raised the question that the causal labour also fell in the ambit of the Provident Fund Act for determining the numeral strength of 20 in order to take the establishment to come under the purview of that Act. The contention was repelled by their Lordships of the Supreme Court and it was held that the employment must be constructed in the regular course of business of the establishment. Such establishment according to their Lordships would not include employment of a few persons for a short period an account of some pressing necessity or some temporary emergency. Their Lordships observed that the number of persons considered to be employed by an establishment for the purpose of that Act has to be determined by taking into account the general requirements of the establishment for its regular work which also have a commercial nexus with its financial capacity and stability. Obviously it appears from the above decision that casual labour which is not a regular feature of the establishment and is only of casual labour which is not a regular feature of the establishment and is only of a casual character cannot be considered to be employee within the meaning of the Act. K.C.S. Dhanshukodi Nadar and sons case (10) has no applicability to the case before me. In that case it has been held that when an employer failed to produce the record, the concerned authority can determine the liability under section 45 A of the Act and need not go to the Employees Insurance court for determination of the liability of the employer in regard to the contribution to be made by him. The case is, therefore, distinguishable. The last case is, Nagpur Electric Light and Power Co. v. E.S.I.C., 1967 (2) LLJ 40 . The case is of course under the Employees' Insurance Insurance Act. But the point decided there has no relevance in the case before me. The case is, therefore, distinguishable. The last case is, Nagpur Electric Light and Power Co. v. E.S.I.C., 1967 (2) LLJ 40 . The case is of course under the Employees' Insurance Insurance Act. But the point decided there has no relevance in the case before me. In that case it has been held that the definition of employee in section 2 (9) (i) of the Act is wider in its ambit and scope than the worker in section 2(1) of the Factories Act. There the question was whether the workmen including the clerical staff, accountant, administrative office clerks, sub-station Assistant, meter testing clerk, line Inspectors whether working inside the factory premises or outside the factory premises were the employees as defined in section 2 (9) (i) of the Act. Their Lordships answered the question in the affirmative and held that all categories of the workmen including those working outside the premises of the factory are doing the work connected with the factory and are, therefore, employees within the meaning of section 2(9) (i) of the Act. That case does not deal with the point as to whether casual labour is employee within the meaning of 2 (9) (i) of the Act and, therefore, is of no assistance in the present case. 8. In the result, the petition is accepted, the order Ex.6 determining the liability & so also the recovery certificate Exs. 7 & 8 are hereby quashed and the respondents are restrained from taking recovery proceeding in pursuance thereof. In the facts and circumstances of the case the parties are left to bear their own costs. *******