Judgment :- (This civil miscellaneous appeal is filed under Section 82 of the Employees State Insurance Act (hereinafter in short referred to as "the Act" for the purpose of convenience) by respondent No.1, the Deputy Director, ESI Corporation in E.I. Case No.41 of 2001 on the file of the Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad.) 2. Respondent No.1 herein, Amrutanjan Limited, a company incorporated under the Companies Act, 1956, filed the said E.I. Case No.41 of 2001 on the file of the Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad (hereinafter in short referred to as "the Tribunal" for the purpose of convenience) praying for refund of an amount of Rs.33,178/- paid by the said Amrutanjan Limited under protest and also Rs.11,301/- paid by the said company erroneously towards conveyance and washing allowances. The Tribunal, after referring to the respective stands taken by the parties, having settled the issues, recorded evidence of P.W.1, R.W.1, R.W.2, marked Exs.P-1 to P-16, R-1 to R-6 and ultimately came to the conclusion that the first respondent Amrutanjan Limited is entitled to the reliefs prayed for and accordingly allowed the E.I. Case No.41 of 2001. Aggrieved by the same, the present civil miscellaneous appeal had been filed under Section 82 of the Act as aforesaid. 3. Contentions of Sri William Burra: Sri William Burra, learned counsel representing appellant had taken this Court through the grounds raised in the civil miscellaneous appeal and also had drawn the attention of this Court to Section 2 (22) of the Act and would maintain that in the light of the facts and circumstances the Tribunal totally erred in allowing the E.I. Case No.41 of 2001. The learned counsel, in all fairness, would submit that specifically no substantial question of law as such had been formulated or raised in the grounds of civil miscellaneous appeal, but however, in view of the fact that the civil miscellaneous appeal was admitted on 01.3.2005, the same to be heard on the merits on the under noted substantial question of law. "Whether conveyance allowance and washing allowance would fall within the expression "wages" defined in Section 2 (22) of the Act? "Whether conveyance allowance and washing allowance would fall within the expression "wages" defined in Section 2 (22) of the Act? The learned counsel also while further elaborating his submissions had pointed out to the oral and documentary evidence available on record and the findings recorded by the Tribunal and further pointed out to the relevant portions of the E.S.I. Scheme of India-Employers' Guide and further had drawn the attention of this Court to Regulation 40 of the Regulations and would maintain that in the facts and circumstances of the case since the order made under Section 45 A of the Act had attained finality and since the demand for refund was not made within time as ordained by the Regulations, the Tribunal totally erred in allowing the E.I. Case No.41 of 2001. The learned counsel also would maintain that the Tribunal was unable to appreciate the fact that 40 employees in respect of whom Amrutanjan Limited did not pay contribution also would fall under the provisions of the Act and the Regulations made thereunder. The counsel also would maintain that the order of the Tribunal below holding that the conveyance allowance and washing allowance or "wages" being erroneous the order under challenge cannot be sustained. The counsel also would maintain that when once the conveyance and washing allowances do not fall within the expression "wages" all the employees would come within the purview of the Act. The learned counsel also pointed out to the relevant portions of the oral evidence and further pointed out to certain documents which had been marked and would maintain that in the light of the facts and circumstances the order under challenge being unsustainable the same is liable to be set aside. The learned counsel also relied on certain decisions to substantiate his submissions. 4. Per contra, Sri C.R. Sridharan, learned counsel representing first respondent, Amrutanjan Limited Company, would maintain that in the grounds of civil miscellaneous appeal no substantial question of law as such had been raised and on this ground alone this civil miscellaneous appeal is liable to be dismissed. The learned counsel also would maintain that inasmuch as the E.S.I. Scheme of India-Employer's Guide is not having statutory force, any definition thereunder cannot be read into the definition specified in the Act. The learned counsel also would maintain that inasmuch as the E.S.I. Scheme of India-Employer's Guide is not having statutory force, any definition thereunder cannot be read into the definition specified in the Act. In other words, the definition as it stands in the Act to be interpreted and the further explanation, if any, given in this regard in E.S.I. Scheme of India-Employer's Guide cannot be taken aid of in this regard. The learned counsel also pointed out to certain admissions made and also had taken this Court through the evidence of R.W.1 and R.W.2 as well, apart from the evidence of P.W.1 and further specifically pointed out to Ex.R-5 and Ex.R-6 in particular and would maintain that in the facts and circumstances since the Tribunal recorded appropriate findings while arriving at a conclusion that Amrutanjan Limited company is entitled for the reliefs prayed for and the said well considered findings recorded by the Tribunal cannot be found fault. The learned counsel also relied on several decisions to substantiate his submissions. 5. Heard the counsel. 6. Before taking up further discussion it may be appropriate to have a glance at the respective stands taken by the parties in E.I.Case No.41 of 2001, the issues, the oral and documentary evidence relied on, the points formulated for determination and the findings recorded by the Tribunal in nut-shell. 7. The first respondent in the civil miscellaneous appeal Amrutanjan Limited company filed E.I. Case No.41 of 2001 with the following averments. It is the case of the first respondent, Amrutanjan Limited company that it is a registered company engaged in manufacturing, marketing, selling drugs/products and the company was covered under the ESI scheme and was paying contribution regularly. It is also averred that the Inspector of the Corporation visited the company and pointed out that 40 employees of the petitioner had not been covered under the scheme drawing more than Rs.6,500/-, including conveyance and washing allowances, and as the said allowances were not wages they were also liable to be covered by excluding the said allowance from their salary and when the Corporation issued a demand notice for Rs.1,01,400/- demanding contribution on ad-hoc basis as against Rs.68,222/-, the actual amount, the petitioner had paid Rs.68,222/- on 10.10.2000 and thereafter Rs.33,178/- in respect of 40 employees. It is also the case of the petitioner that an excess of Rs.33,178/- was paid by them and requested for refund of the same. 8. The stand taken by the appellant herein, the Deputy Director, ESI Corporation, the first respondent in the aforesaid E.I. Case No.41 of 2001 is as hereunder. The company is not entitled for refund of the amount as it is not permissible. Under Regulatiion 40 (1) of ESI Regulations, 1950, the company did not claim it within time limit. Further it is stated that the employees drawing wages less than Rs.6,500/-to be covered under the scheme of the Act. Hence, 40 employees would fall within the purview of the Act and further it is stated that an order was made against the said company giving reasonable opportunity. Hence, the question of making refund of the amount would not arise. 9. Issues settled by the Tribunal: (1) Whether the petitioner is not liable to pay contribution in respect of 40 employees as their salaries are exceeding he ceiling limit of Rs.6,500/- per month? (2) Whether the petitioner is not liable to pay contribution on the conveyance and washing allowances as they do not fall within the definition of wages u/s.2 (22) of the ESI Act? (3) Whether the petitioner is not liable to pay any amount as demanded in the order dated 27.9.2000? (4) Whether the petitioner is entitled to refund of Rs.33,178/-paid under protest and Rs.11,301/- being the contribution erroneously paid? (5) To what relief? 10. Oral and documentary evidence available on record: Witnesses examined for first respondent-petitioner: P.W.1: T. Padbhanabhan Witnesses examined on behalf of appellant-first respondent:R.W.1: M. Ramulu R.W.2: C. Krishnaiah Documents marked on behalf of first respondent-petitioner : Ex.P1: Xerox copy of letter dt.16.5.2000 of ESIC to the petitioner demanding the payment of contribution in respect of 40 employees from 10/99 onwards. Ex.P2: Xerox copy of reply dt.26.6.2000 of the petitioner to the ESIC, to Ex.P1 letter. Ex.P3: Xerox copy of letter dt.6.7.2000 of the ESIC to the petitioner requesting to workout the contributions payable in respect of 40 employees. Ex.P4: Xerox copy of reply dt.22.7.2004 of the petitioner to the ESIC to Ex.P3. Ex.P5: Xerox copy of C-18 notice dt.17.8.2000 for an amount of Rs.1,01,400/-. Ex.P6: Remarks of the Inspector in the Inspection Book given on 15.9.2000. Ex.P7: Xerox copy of Section 45 A order dt.27.9.2000 for Rs.1,01,400/-. Ex.P4: Xerox copy of reply dt.22.7.2004 of the petitioner to the ESIC to Ex.P3. Ex.P5: Xerox copy of C-18 notice dt.17.8.2000 for an amount of Rs.1,01,400/-. Ex.P6: Remarks of the Inspector in the Inspection Book given on 15.9.2000. Ex.P7: Xerox copy of Section 45 A order dt.27.9.2000 for Rs.1,01,400/-. Ex.P8: Xerox copy of letter dt.11.10.2000 submitted by the petitioner to Ex.P7 order. Ex.P9: Statement showing the ESI particulars for the period from 10/99 to 3/2000 Ex.P10: Abstract showing the number of employees total wages and total ESI contributions from the period from 10/99 to 3/2000. Ex.P11: Xerox copy of the acknowledgments for receiving the pay orders by the SBIP 12. Ex.P12: Xerox copy of the letter dt.25.11.2000 submitted by the petitioner to the ESIC about refund of the amount. Ex.P13: Wage sheets for the period from 10/99 to 3/2000 about the wage disbursement. Ex.P14: Xerox copy of the statement showing the ESI contribution paid on conveyance and washing allowance for the period from 10/99 to 9/2000. Ex.P15: Letter dt.22.1.2001 of the ESIC intimating the petitioner that the excess payment as opened is on conveyance charges which was erroneously paid by the petitioner. Ex.P16: Wage sheets for the period from 4/2000 to 9/2000. Documents marked on behalf of appellant-first respondent: Ex.R1: Xerox copy of the visit note of R.W.1 Ex.R2: Xerox copy of HRO 325-ownership particulars. Ex.R3: Xerox copy of inspection report submitted by RW.1. Ex.R4: Original inspection report of R.W.1. Ex.R5: Letter dt.22.8.2000 of the petitioner to ESIC Ex.R6: Copy of the letter dt.17.1.2001 of the ESIC to the petitioner. 11. Points for determination formulated by the Tribunal: (1) Whether the conveyance and washing allowances are to be treated as wages? (2) Whether the petitioner is liable to pay contribution in respect of those 40 employees? (3) Whether the petitioner is entitled for refund of any amount? 12. 11. Points for determination formulated by the Tribunal: (1) Whether the conveyance and washing allowances are to be treated as wages? (2) Whether the petitioner is liable to pay contribution in respect of those 40 employees? (3) Whether the petitioner is entitled for refund of any amount? 12. Findings recorded by the Tribunal in nut-shell: The learned Tribunal, on appreciation of evidence available on record P.W.1, R.W.1, R.W.2; Exs.P-1 to P-16, Exs.R-1 to R-6, recorded findings in detail, dealt with the definition of wages, referred to the decision in Harihar Polyfibres v. Regional Director, ESI Corporation ( (1984) 4 SCC 324 ) and came to the conclusion that the conveyance allowance and washing allowance must be treated and included as wages and further dealt with Regulation No.40 and further came to the conclusion that the payment of contribution in respect of 40 employees had been paid due to pressure and when the amount of contribution was paid under such circumstances Amrutanjan Limited company is entitled for refund and accordingly allowed the E.I. Case No.41 of 2001. 13. In the light of the elaborate submissions made by the counsel on record, the following points arise for consideration in this civil miscellaneous appeal. (1)Whether the findings recorded by the Tribunal on appreciation of oral and documentary evidence available on record are liable to be disturbed or to be confirmed in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled? 14. Point No.1: The respective stands taken by the parties, the issues settled by the Tribunal, witnesses examined, documents relied on, the points for determination formulated by the Tribunal and the findings recorded by the Tribunal already had been specified above and several of the details in this regard need not be dealt with in elaboration. 15. The substantial question of law, which had been pointed out by Sri William Burra is as hereunder: "Whether conveyance allowance and washing allowance would fall within the expression "wages" defined in Section 2 (22) of the Act? 16. Amrutanjan Limited company had taken a specific stand to the effect that the action of the Assistant Director, E.S.I. Corporation in excluding the conveyance and washing allowances from the purview of wages and collecting contribution is illegal. 16. Amrutanjan Limited company had taken a specific stand to the effect that the action of the Assistant Director, E.S.I. Corporation in excluding the conveyance and washing allowances from the purview of wages and collecting contribution is illegal. Section 2 (22) of the Act reads as hereunder: "Wages" means all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes (any payment to an employee in respect of any period of authorized leave, lockout, strike which is not illegal or layoff and) other additional remuneration, if any, paid at intervals not exceeding two months. But does not include (a) any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowance or the value of any travelling concession; (c) any sum paid to the person employed to defray special expenses entailed on him by he nature of his employment; or (d) any gratuity payable on discharge" 17. It is needless to say that this definition "wages" as defined in Section 2 (22) of the Act may have to be interpreted as it stands. No doubt, Sri William Burra placed strong reliance on the definition of "wages" shown under No.13 of the E.S.I. Scheme of India-Employer's Guide and the same reads as hereunder. "13. 'WAGES' DEFINED "Wages" means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorized leave, lock out, strike which is not illegal or layoff and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include:- (a) any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowance or the value of any travelling concession; (c) any sum paid to the person employed to defray special, expenses entailed on him by the nature of his employment; or (d) any gratuity payable on discharge. 1. All remuneration paid or payable in cash to an employee flowing from the term of employment (including agreement) express or implied. The periodicity of payment is not relevant in this case. 2. 1. All remuneration paid or payable in cash to an employee flowing from the term of employment (including agreement) express or implied. The periodicity of payment is not relevant in this case. 2. Any additional remuneration even if not flowing from any agreement or settlement but paid at intervals not exceeding two months. 3. The exceptions as provided in Clause (a) to (d) above. Any remuneration paid or payable under para 1 and 2 is wages and chargeable to contribution whereas any amount paid towards items mentioned in Clause (a) to (d) are not wages and therefore no contribution is chargeable on that amount. The following table will make the position clear in respect of 'wages' for determining deductions on account of ESI contributions: The table is illustrative and not exhaustive. Table It is not in serious controversy that this Guide has no statutory force. 18. In Harihar Polyfibres v. Regional Director, ESI Corporation at para 2 the Apex Court observed as hereunder. "The Employees' State Insurance Act is a welfare legislation and the definition of 'wages' is designedly wide. Any ambiguous expression is, of course, bound to receive a beneficent construction at our hands too. Now, under the definition,first, whatever remuneration is paid or payable to an employee under the terms of the contract of the employment, express or implied is wages; thus if remuneration is paid in terms of the original contract of employment or in terms of a settlement arrived at between the employer and the employees which by necessary implication becomes part of the contract of employment it is wages; second, whatever payment is made to an employee in respect. of any period of authorised leave, lock-out, strike which is not illegal or lay-off is wages; and third, other additional remuneration, if any, paid at intervals not exceeding two months b also wages; this is unqualified by any requirement that it should. be pursuant to any term of the contract of employment, express or implied. of any period of authorised leave, lock-out, strike which is not illegal or lay-off is wages; and third, other additional remuneration, if any, paid at intervals not exceeding two months b also wages; this is unqualified by any requirement that it should. be pursuant to any term of the contract of employment, express or implied. However, 'wages' does not include any contribution paid by the employer to any pension fund or provident fund, of under the Act, any travelling allowance or the value of any travelling concession, any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment and any gratuity payable on discharge, Therefore wages as defined includes remuneration paid or payable under the terms of the contract of employment, express or implied but further extends to other additional remuneration. if any, paid at intervals not exceeding two months, though outside the terms of employment, Thus remuneration paid under the term; of the contract of the employment (express or implied) or otherwise if paid at intervals not exceeding two months is wages. The interposition of the clause 'and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or layoff' between the first clause, 'all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, was fulfilled' and. the third clause, 'other additional remuneration, if any, paid at intervals not exceeding two months', makes it abundantly clear that while 'remuneration' under the first clause has to be under a contract of employment, express, or implied, 'remuneration' under the third clause need not be under the contract of employment but may be any 'additional remuneration' outside the contract of employment. So, there appears to our mind no reason to exclude 'house Rent Allowance', 'night Shift Allowance', Incentive Allowance and 'heat, Gas and Dust Allowance' from the definition of 'wages'. A Full Bench of the Karnataka High Court in N. G. E. F. Ltd. v. Dy. Regional Director, E.S.I.C, Bangalore, 1980 Lab IC 431 considering the question at some length held that the amount paid by way of incentive under the scheme of settlement entered into between the Management and its workmen was wages within. the meaning of Section 2 (22) of Employees' State Insurance Act. Regional Director, E.S.I.C, Bangalore, 1980 Lab IC 431 considering the question at some length held that the amount paid by way of incentive under the scheme of settlement entered into between the Management and its workmen was wages within. the meaning of Section 2 (22) of Employees' State Insurance Act. It was observed by the Full Bench of the Karnataka High Court as follows :- "it is true that the word 'remuneration' is found both in the first and second parts of the definition. But the condition attached to such payment in the first part cannot legitimately be extended to the second part. The other 'additional remuneration' referred to in the second part of the definition is only qualified by the condition attached thereto (that is, paid at intervals not exceeding two months). That was also the view taken by a Full Bench of the Andhra Pradesh High Court in Employees' State Insurance Corpn., Hyderabad v. Andhra Pradesh Paper Mills Ltd. (AIR 1978 Andh Pra 18) and also the Bombay High Court in M/s. Mahalaxmi Glass Works Pvt. Ltd. v. Employees? State Insurance Corpn. (1976 Lab IC 514). But this aspect of the matter has been completely overlooked by this Court in Kirloskar's case. " 19. In E.S.I. Corporation, Hyderabad v. A.P. Paper Mills Ltd. a Full Bench of this Court held at para 3 as hereunder. "The word 'other' appearing at the commencement of the third part of the definition of wages under Section 2 (22) indicates that it must be remuneration or additional remuneration other than the remuneration which is referred to in the earlier part of the definition viz., all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and incentive bonus in the present scheme is certainly additional remuneration. It must be emphasized at this stage that under the third part of the definition of 'wages' it is actual factum of payment which counts because the word used is 'paid' as distinguished from 'paid' or payable. The moment you get any additional remuneration other than the remuneration payable under the contract of employment and if this additional remuneration is paid at intervals not exceeding two months, it becomes wages by virtue of the third part of the definition of 'wages'." 20. The moment you get any additional remuneration other than the remuneration payable under the contract of employment and if this additional remuneration is paid at intervals not exceeding two months, it becomes wages by virtue of the third part of the definition of 'wages'." 20. Whatever the remuneration is paid or payable to an employee under the terms of contract of employment express or implied would fall under 'wages' and thus remuneration is paid in terms of original contract of employment or in terms of a settlement arrived at between the employer and the employees and the employees which by necessary implication would become part of the contract of employment it would fall under wages and whatever payment is made to an employee in respect of any period of authorized leave, lockout, strike which is not illegal or layoff would fall under wages and other additional remuneration, if any, paid at intervals not exceeding two months would fall under 'wages' and this is unqualified by any requirement that it should be pursuant to any term of the contract of employment, express or implied. However, 'wages' would not include any contribution paid by the employer to any pension fund or provident fund, or under the Act, any travelling allowance or the value of any traveling concession, any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment and any gratuity payable on discharge. Gas and dust allowances are included in the expression 'wages'. Likewise, incentive allowance also is included in the expression 'wages'. In the light of the same the conveyance allowance and washing allowance also to be included and to be taken as fall within the meaning of 'wages' and hence this view expressed by the Tribunal cannot be found fault. 21. William Burra, no doubt, placed strong reliance on the decision in Management of Oriental Hotels Ltd., Chennai v. Employees State Insurance Corporation, Chennai wherein the learned Division Bench of the Madras High Court observed at para 8 as hereunder. 21. William Burra, no doubt, placed strong reliance on the decision in Management of Oriental Hotels Ltd., Chennai v. Employees State Insurance Corporation, Chennai wherein the learned Division Bench of the Madras High Court observed at para 8 as hereunder. "In so far as the conveyance allowance is concerned, even though it forms part of the wages being the amount payable in terms of the contract of employment, having regard to the settlement and even de hors the settlement, the payment of the amount would fall within the ambit of "additional remuneration." Nevertheless, that amount, will have to be excluded having regard to the specific exclusion provided in the definition itself for travelling allowance or the value of any travelling concession. The conveyance allowance paid is in the nature of travelling allowance as the object of that payment is to enable the employee to reach his place of work and to defray a part of the cost incurred on the travel from his place of residence to the place of work. If instead of paying the conveyance allowance, the employer had provided free transport to the employees, the monetary value of that benefit of free travel from his residence to the place of work would not have been capable of being regarded as forming part of the wages. The conveyance allowance paid in cash for the purpose of being utilized on the travel from place of residence to the place of work, is of the same character and there is no reason why it should not be regarded as travelling allowance for the purpose of Section 2 (22) (b), of the Employees'State Insurance Act." 22. Further strong reliance was placed on the decision in Rajashree Cement v. Deputy Director (I), Bangalore wherein it was observed at para 5 as hereunder. "Regulation 40 of the Regulations framed under the Act envisages refund of contributions erroneously paid. It iner alia provides that any contribution paid by a person under the erroneous belief that the contributions were payable by that person under that Act may be refunded without interest by the corporation to the person, if an application to that effect is made in writing before the commencement of the benefit period corresponding to the contribution period in which the contribution was paid. It further provides that where any contribution has been paid by a person at a rate higher than that at which it was payable the excess of the amount so paid over the amount payable may be refunded without interest by the corporation to that person, if an application to that effect is made before the commencement of the benefit period corresponding to the contribution period in which such contribution was paid. In terms of sub-section (3) of Regulation 40 while calculating the amount of refund to be made, the amount if any paid to any person by way of benefit on the basis of the contribution erroneously paid and for the refund of which the application is made may be deducted. Regulation 4 of the Regulations deals with the contribution and benefit periods and reads as under: "4. Contribution and benefit periods-contribution periods and the corresponding benefit periods shall be as under: contribution period corresponding benefit period April 1 to September 30 October 1 to March 31 of the year following January 1 of the year following to June 30 July 1 to December 31 provided that in the case of a person who becomes an employee within the meaning of the act for the first time, the contribution period shall commence from the date of such employment in the contribution period current on that day and the corresponding benefit period for him shall commence on the expiry of the period of nine months from the date of such employment." It is not a conjoint reading of the above Regulation and Regulation 40 manifest that a request for refund of contribution erroneously paid can be made only in terms of an application submitted in the prescribed form and supported by the documents prescribed for that purpose before the commencement of the benefit period corresponding to which the contribution was erroneously paid. It is not in the instant case disputed that no application as envisaged by Regulation 40 supra was made to the authority competent within the time prescribed for that purpose. The prayer for refund made before the EI Court after the period prescribed for making such applications was therefore meaningless. It is not in the instant case disputed that no application as envisaged by Regulation 40 supra was made to the authority competent within the time prescribed for that purpose. The prayer for refund made before the EI Court after the period prescribed for making such applications was therefore meaningless. It is well settled that there a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. See Ramchandra Keshav Adke v. Govind Joti Chavare AIR 1975 SC 915 : (1975) 1 SCC 559 ." 23. Further strong reliance was placed on the decision in E.S.I.C. v. C.C. Santhakumar wherein the Apex Court at paras 25 and 31 observed as hereunder. "Section 45a of the Act contemplates a summary method to determine contribution in case of deliberate default on the part of the employer. By amendment Act 29 of 1989, Sections 45-C to 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law or E. S. I Court. Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to either a suit, appeal or application in the Court. Under Section 68 (2) and Sections 45-C to 45-I, after determination of contribution, recovery can be made straightaway. If the employer disputes the correctness of the order under Section 45a, he could challenge the same under Section 75 of the Act before the E. S. I. Court. In Employees' State Insurance Corporation v. F. Fibre Bangalore (P) Ltd. ( 1997 (1) SCC 625 ) it was observed that it is not necessary for the Corporation to seek a resolution of the dispute before the E. S. I. Court, while the order was passed under Section 45a. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim, it is for him to move the E. S. I. Court for relief. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim, it is for him to move the E. S. I. Court for relief. In other cases, other than cases where determination of the amount of contributions under Section 45a is made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the E. S. I. Court, before enforcing recovery." 24. If the conveyance allowance and washing allowance to be taken as forming part and parcel of the definition of 'wages' excluding the same and demanding contribution of such 40 employees also by adopting that method is not in accordance with law. Regulation 40 of ESI Act 1950 reads as hereunder. "1. Any contribution paid by a person under the erroneous belief that the contributions were payable by that person under that Act may be refunded without interest by the Corporation to that person, if application to that effect is made in writing before the commencement of the benefit period corresponding to the contribution period in which such contribution was paid. 2. Where any contribution has been paid by a person at a rate higher than that at which it was payable the excess of the amount so paid over the amount payable may be refunded without interest by the corporation to that person, if application to that effect is made before the commencement of the benefit period corresponding to the contribution period in which such contribution was paid. 3. In calculating the amount of any refund to be made under this regulation there may be deducted the amount, if any, paid to any person by way of benefit on the basis of the contribution erroneously paid and for the refund of which the application is made." A plain reading of the same would disclose that any contribution paid under erroneous belief, can be refunded without interest by the corporation if application to that effect is made in writing before the commencement of the benefit period corresponding to the contribution period in which such contribution was paid. 25. Ex.R-5 is the letter dated 22.8.2000 wherein the Amrutanjan Ltd., addressed to the Assistant Director, ESIC Regional office as hereunder. "The Asst. Director, ESIC Regional Office, 5-9-23, Hill Fort Road, Hyderabad-500063. 25. Ex.R-5 is the letter dated 22.8.2000 wherein the Amrutanjan Ltd., addressed to the Assistant Director, ESIC Regional office as hereunder. "The Asst. Director, ESIC Regional Office, 5-9-23, Hill Fort Road, Hyderabad-500063. Dear Sir, Sub: Payment of contributions in respect of 40 employees as per inspection report dt.11.4.2000. Ref: Your letter No.52-1640-32/INS.I dt.6.7.2000, our letter dated 22.7.2000. With reference to our letter cited above, we wish to inform you that we have learnt that our corporate office is prepared to pay the amount vide inspection report dated 11.4.2000. Your insurance inspector has come to factory and taken the figures from the pay roll. Please let us know the amount to be paid. We will also prepare a statement of excess contributions paid by including conveyance and washing allowances of other employees who were already covered under this Act for refund/adjustment of the contributions. As soon as we receive reply from your office we shall arrange to pay the required amount as per the Act. Yours faithfully For Amrutanjan Limited." Emphasis had been laid on "We will also prepare a statement of excess contributions paid by including conveyance and washing allowances of other employees who were already covered under this Act for refund/adjustment of the contributions." 26. Ex.R-6 is dated 17.1.2001 and the same reads as hereunder. "M/s. Amrutanjan Ltd., Plot No.14, Industrial Development Area, Uppal, Hyderabad-500039. Sir, Sub: Coverage and compliance - Reg. Ref: Your letter dt.25.11.2000. With reference to you letter cited above it is informed that your request for refund of excess paid contribution may not be considered at this stage as the time limit for refund for adjustment has been expired by 30.6.2000/31.3.2000 respectively i.e., a day before the commencement of relevant benefit period and completion of relevant CPE. Further it is also intimated to you that the excess payment as opined by you is on conveyance charges which has been erroneously paid by you. Yours faithfully, Sd/- xx xx xx (K.S.Murthy) Asst. Director. Emphasis had been laid down on "Further it is also intimated to you that the excess payment as opined by you is on conveyance charges which has been erroneously paid by you." 27. Yours faithfully, Sd/- xx xx xx (K.S.Murthy) Asst. Director. Emphasis had been laid down on "Further it is also intimated to you that the excess payment as opined by you is on conveyance charges which has been erroneously paid by you." 27. No doubt, certain submissions were made in relation to Ex.R-1, Xerox copy of the visit note of R.W.1, Ex.R-2 the Xerox copy of HRO 325-ownership particulars, Ex.R-3 the Xerox copy of inspection report submitted by R.W.1, Ex.R-4 the original inspection report of R.W.1 as well. 28. Certain portions of the evidence of P.W.1, R.W.1 and R.W.2 also had been pointed out apart from Exs.P-1 to P-16. Ex.P-16 is the wage sheets, Ex.P15 is the letter dated 22.1.2001, Ex.P-13 also wage sheets. The Xerox copy of the letters and correspondence also had been marked as Exs.P-1, P-2, P-3, P-4, P-8, P-12 etc. Ex.P-5 is the Xerox copy of C-18 notice, Ex.P-6 is the remarks of the Inspector, Ex.P-7 is the Xerox copy of the order under Section 45-A, Ex.P-9 is the statement showing the ESI particulars, Ex.P-10 is the abstract showing the number of employees, total wages and total ESI contributions for the relevant period, Ex.P-11 is the copy of the acknowledgements, Ex.P-14 is the Xerox copy of the statement. 29. The evidence of R.W.1 and R.W.2 and certain admissions made had been pointed out by the counsel representing the parties. R.W.1, no doubt, admitted that as per rules the petitioner is entitled for refund of contribution amount paid by it on washing and conveyance allowances. R.W.2 in cross-examination, no doubt, deposed that the petitioner might have paid contributions on the washing and conveyance allowances of the employees from October 1999 to March 2000. This witness also deposed that it is true that if any contribution is paid on conveyance and washing allowance that is liable to be refunded by the corporation in accordance with the provisions of the Act. The evidence of P.W.1 is clear, categorical and also elaborate and this witness deposed about Exs.P-1 and P-16. 30. Sri C.R. Sridharan also made certain submissions that inasmuch as no substantial question of law as such is involved, on that ground itself the civil miscellaneous appeal is bound to fail. 31. In Employees State Insurance Corporation v. Ameer Hasan (1980 (Supp.) Supreme Court Cases 334) the Apex Court at paras 3 and 5 observed as hereunder. 30. Sri C.R. Sridharan also made certain submissions that inasmuch as no substantial question of law as such is involved, on that ground itself the civil miscellaneous appeal is bound to fail. 31. In Employees State Insurance Corporation v. Ameer Hasan (1980 (Supp.) Supreme Court Cases 334) the Apex Court at paras 3 and 5 observed as hereunder. "An obviously correct decision was challenged by the Corporation by way of an appeal to the High court. It may be recalled here that the decision of the court set up under the Act can be challenged by way of an appeal to the High court as provided by Ss. (2) of S. 82 of the Act if the appeal involves a substantial question of law. Even with the aid of a magnifying glass and a powerful microscope I could not find any substantial point of law involved in this appeal which the Corporation carried to the High court. The High court by an elaborate judgment held that the decision of the court was correct on all points and affirmed the decision. An attempt was made to urge that there was some conflict of decisions in the view taken by the Calcutta High court and the view taken by the Allahabad High court. The judgment under appeal has considered the Calcutta judgment which is unfavourable to the workman. Such minor conflicts need not provide a fruitful ground to the Corporation to rush to this court. One cannot appreciate this too legalistic approach in the name of some conflict in decisions to force a workman whose misfortune was that he was governed by the Act and a beneficiary of the beneficent provisions of the Act to be dragged to this court to fight for a meagre compensation with his own funds against a powerful Corporation trying to thwart his claim with the funds obtained from the very workman. The glaring paradox is that the workman suffers deduction from his wages so that the Corporation can fight him with his own money. This has led to mounting disaffection amongst industrial workmen against the Corporation. What faith the workman will have in the Corporation set up to ameliorate his misery multiplying it by appeal to court after court compelling the workman to follow in the footsteps of the Corporation to save his meagre benefit? This has led to mounting disaffection amongst industrial workmen against the Corporation. What faith the workman will have in the Corporation set up to ameliorate his misery multiplying it by appeal to court after court compelling the workman to follow in the footsteps of the Corporation to save his meagre benefit? A time has come to cry a halt to this litigious mentality on the part of public corporations set up to achieve the goals enumerated in the Constitution. This approach is destructive of the purpose for which Corporation was set up. What then is the difference between a private employer who was liable for compensation under Workmen's Compensation Act and a public sector Corporation set up to replace the private employer for providing the much needed medical relief? In fact such an approach needs to be disapproved and that is why a speaking order." 32. In Employees' State Insurance Corporation, Hyderabad v. Model Weaving Centre, Hyderabad (Factories Journal Reports (59) 148) the Division Bench of the Andhra Pradesh High Court held that the High Court will not interfere under Section 82 of the Act with the finding of the E.S.I. Court on a question of fact. Whether persons working in an establishment are trainees or "employees" is essentially a question of fact and in view of the fact that an appeal from the finding of the E.S.I. Court does not involve any substantial question of law within the meaning of Section 82 of the Act, the same cannot be interfered with. 33. In the light of the legal position referred to supra and also in the light of the factual matrix and the clear findings recorded by the Tribunal in elaboration on appreciation of the oral and documentary evidence, this Court is satisfied that the findings recorded by the Tribunal cannot be found fault while allowing the E.I. case of the Amrutanjan Limited. Hence, the said findings are hereby confirmed. 34. Point No.2: In the result, the civil miscellaneous appeal being devoid of merit, the same is liable to be dismissed and accordingly the same is hereby dismissed, however, in the peculiar facts and circumstances, this Court makes no order as to costs.