M. P. CHINNAPPA, J. ( 1 ) THIS appeal is preferred by the ESI Corporation against the judgment and order dated 20-2-1995 in ESI Application No. 32 of 1991 allowing the application of the 1st respondent under section 75 of the Employees' State Insurance Act, 1948 setting aside the order dated 18-1-1991 of the ESI Corporation holding that the respondent is not coverable under the provisions of the esi Act for the period stated therein and not liable to pay contribution of Rs. 4,5087/ claimed under the show cause notice dated 18-1-1991 and thereby set aside the show cause notice issued by the appellant. ( 2 ) HEARD the learned Counsel appearing for the respective parties. ( 3 ) THE short point that arises for consideration is as to whether a manager who is drawing a salary exceeding Rs. 3,000/- per mensem can be taken into account for computing the strength of an establishment or a factory. ( 4 ) FROM the inspection report which is further supported by the evidence of R. W. 1, it is the case that during the relevant period, the respondent had engaged 10 persons for wages including the security guard who is drawing a salary of Rs. 500/- p. M. and one Krishna who was working as a manager and receiving a salary of Rs. 3,260/ -. Therefore the learned ESI Court has held that Krishna who was drawing a salary of Rs. 3,260/- does not come within the definition 'employee' under Section 2 (9) of the Act and the appellant had failed to establish that it is a factory as provided under Section 2 (12) of the ESI Act. ( 5 ) THE learned Counsel for the respondent submitted that according to Section 2 (9) and 2 (12) a person getting more wages than the limit prescribed by the Central Government under section 2 (9) (b) would not be an employee within the meaning of section 2 (9 ). Therefore, where out of 10 persons one person is getting more wages than the prescribed limit the company would not be a factory within the meaning of Section 2 (12) and the Act would not be applicable to the Company. In support of this argument, he placed reliance on a decision in MM. Suri and associates Private Limited v E. S. I. Corporation. In support of this argument, he placed reliance on a decision in MM. Suri and associates Private Limited v E. S. I. Corporation. ( 6 ) HOWEVER, repelling this argument, the learned Counsel for the appellant produced a xerox copy of the letter of one R. K. Patnaik, Section Officer, dated 23-1-1998 to show that as against this Judgment, the Corporation has preferred a S. L. P. before the hon'ble Supreme Court and the matter is pending before that court. Therefore, he submitted that this decision cannot be looked into for the disposal of this case. On the other hand, he submitted that the Division Bench of this Court has held that even though the person does not come within the definition of the word 'employee' under Section 2 (9) of the Act, on the ground that he is drawing more salary than the prescribed sum, he can be taken as an employee for the numerical strength, but however, the said person may not be entitled for the facilities provided under the Act and in support of this argument, he placed reliance on a decision in the case of Mysore Paints and waterproof Limited v Regional Director, Employees' State insurance Corporation. In that judgment, their Lordships have held after reproducing Section 2 (12) of the Act:"a plain reading of this section makes it manifest that it is necessary to satisfy two ingredients before an establishment is characterized as a 'factory'. Those ingredients are: (1) that 20 or more persons work in an establishment for wages; (2) a manufacturing process is being carried on in any part of it with the aid of power or is ordinarily so carried on but does not include a mine subject to the operation of the Indian Mines Act. We do not see any reason to incorporate 'employees' properly so called in the act within the definition mentioned above. All the 20 or more persons or any of them who are employed for wages may or may not be employees within the meaning of the definition found in Section 2 (12) of the Act If any of them happen to be employees within the meaning of Section 2 (12) of the Act they would be entitled to certain benefits provided by the other provisions of the Act. Those workers who are employed for wages by the establishment and do not fall within the definition of an 'employee' as provided in section 2 (9) of the Act do not get any such benefits provided by the Act for an employee. Therefore, in order to compute the 20 persons mentioned in Section 2 (12) of the act, it is not necessary that all those 20 persons should be 'employees' properly so called by the Act". From this it is abundantly clear that those persons who are working in the factory though receiving wages more than the prescribed limit, still can be taken for computing the number of persons mentioned under Section 2 (12) of the Act. ( 7 ) THE learned Counsel for the appellant placed reliance on a decision in Andhra Pradesh State Electricity Board v Employees' state Insurance Corporation, Hyderabad, wherein the Division bench of the Andhra Pradesh High Court has held that the persons employed for wages need not be employees within the meaning of Section 2 (9) of the Act. It is further held that the Act is intended to confer benefits on employees of a particular establishment but there is nothing preventing the Legislature from defining the factory with reference to persons other than employees. By doing so, no benefit is conferred on persons other than the employees. The missing of any word need not be always construed according to its interpretation clause. ( 8 ) WHILE repelling this argument, he has drawn my attention to the Ruling of the Supreme Court in Regional Director, employees' State Insurance Corporation, Trichur v Ramanuja match Industries, wherein it is held by their Lordships :"the Act covers all factories or establishment with 20 or more employees and the benefit is intended to be given to institutions with more than that number. It is not the contention of Counsel that because the legislation is beneficial it should also apply to factories. or establishments with less than 20 employees. If that be not so, in finding out whether a partner would be an employee a liberal construction is not warranted. A person who would not answer the definition cannot be taken into account for the purpose of fixing the statutory minimum. We are, therefore, not inclined to accept the contention of counsel that on the basis of the statute being beneficial, a partner should also count as an employee". A person who would not answer the definition cannot be taken into account for the purpose of fixing the statutory minimum. We are, therefore, not inclined to accept the contention of counsel that on the basis of the statute being beneficial, a partner should also count as an employee". The question before their Lordships was whether a partner of a firm who was also working for remuneration would be an employee to compute the number of employees to cover the factory under the ESI Act. While answering that question, it was observed that the partnership business belongs to the partner and each one of them is an owner thereof. In common parlance the status of a partner qua the firm is thus different from employees working under the firm, it may be that a partner is being paid some remuneration for any special attention which he devotes but that would not involve any change of status and bring him within the definition of employee. From this it is abundantly clear that notwithstanding the fact that a partner is being paid some remuneration, still he being an employer cannot be construed as an employee just because he receives some remuneration. Therefore, on facts, this decision is not applicable to this case as the manager cannot be construed as an employee just because he is receiving more salary than the prescribed rate of an employee as defined under the Act. Therefore, as observed by the Division Bench of this High Court, referred to above, the manager can be construed as an employee for the purpose of determining the number of employees though he is not entitled for the benefits as provided under the Act. The benefits available to the insured persons are as provided under Section 46 of the act viz. , sickness, maternity, disablement, injury, medical treatment for an attendance on insured persons. These benefits will be available to the employees as defined under Section 2 (9) of the Act. ( 9 ) THEIR Lordships of the Supreme Court in Employees' State Insurance Corporation v M/s. Hotel Kalpaka International, held:"the Act is thus a beneficial piece of social security legislation in the interest of labour in factories at the first instance and with power to extend to other establishments. Provisions of the Act will have to be construed with that end in view to promote the scheme and avoid the mischief. Provisions of the Act will have to be construed with that end in view to promote the scheme and avoid the mischief. It is an undisputed fact that this factory was covered under the provisions of the ESI Act. Needless to say that the respondent was paying the contribution from 1-11-1987 till July, 1989. However, it had gone out of coverage from 9-9-1988 to 10-6-1989 due to temporary closure. Subsequently, it had started paying the contribution. As admitted by the respondent, it has employed 10 persons for wages on 20-10-1989 and was using power to prepare and vend fast foods. Thereafter, it was paying the contribution. The dispute is only in respect of the wages paid to the employees during the period 9-9-1988 to 10-6-1989. It may be mentioned here that the Amended Act 1989 came into force, w. e. f. 20-10-1989 wherein Section 1 (6) was amended which reads:"a factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power". Therefore, as far as the year 1989 is concerned, the employer is bound to pay its contribution though this Act came into force w. e. f. 20-10-1989. Therefore, the balance contribution will have to be paid only from 9-9-1988 onwards in view of the amended act. Therefore, notwithstanding the fact that the manager was drawing a salary much more than the prescribed amount, for the sake of computing the number of employees, he should be taken to add numerically, though he is not entitled for the benefits provided under the Act. ( 10 ) THE learned Counsel for the respondent however, submitted that the Judgment of the Karnataka High Court and also Andhra Pradesh High Court referred to above came to be rendered prior to the amendment Act of 1989. Prior to the amendment Act, the definition as stood on that date and subsequent to the amendment Act has been elaborately discussed by the Delhi High Court and came to the conclusion that the wages received by the employee is a deciding factor. Therefore, the manager who is drawing more than the prescribed amount is not an employee under the Act. Therefore, the manager who is drawing more than the prescribed amount is not an employee under the Act. It is no doubt true that this particular question was dealt by the Delhi high Court in the case of M. M. Suri, supra, at para 13 wherein it is held :"to the discerning eye the distinction between the definition of "factory" as it stood before the amendment of section 2 (12) and as it stands now (since its amendment in 1975), would be obvious. Before the amendment the definition of the term "factory" included "persons working" and not "persons employed". The significance of this change cannot be lost sight of. Rather, if I may say so, it makes all the difference. Even the Punjab High Court in chanan Singh's case, accepted it. Let us have yet another look at what the said Court said. I have already quoted the relevant passage yet another look is needed and it necessitates its repetition. Here it is again:"if it was intended that the twenty were only to include employees, the wording could quite easily have been "whereon twenty or more employees are working" or "whereon twenty or more persons are employed" and it must be assumed that the choice of words has been deliberate" ". The appellant Corporation has questioned this Judgment and the matter is still pending before the Hon'ble Supreme Court. Under those circumstances, this cannot be relied on at this stage. On the other hand, the Division Bench of this Court has held otherwise and also taking into consideration the object, purpose and intention of this Act, I hold that the appeal deserves to be allowed. ( 11 ) IN the result therefore, I proceed to pass the following: order the appeal is allowed. The impugned order is set aside directing the respondent to pay the contribution of Rs. 4,508/- as claimed under the show cause notice dated 18-1-1991 with interest accrued thereon. The respondent is at liberty to revive this order depending on the decision of the case pending in the supreme Court referred to above. --- *** --- .