Judgment 1. Heard Mrs. Agni, learned Counsel appearing for the Appellant and Mr. Palekar, learned Counsel appearing for the Respondent. 2. The above Appeal challenges the Judgment dated 22.07.2005, in Employees Insurance Case no. 2/2000, passed by the learned Presiding Officer, E.S.I. Court, Panaji, whereby the application filed by the Respondent under Section 75 of the E.S.I. Act, was partly allowed and it was held that the Respondent was liable to pay contribution on 25 percent on the amount paid to the Contractor with interest at the rate of 6 percent from the date the contribution became due till 20.10.1989 and, thereafter, at the rate of 12 percent per annum up to the date of payment. 3. Having heard the learned Counsel and on perusal of the record, I find that whilst admitting the above Appeal, no substantial question of Law was framed but, however, with the consent of the learned Counsel appearing for both the parties, the following Substantial Question of Law is framed for consideration in the above Appeal : “Whether the liability of the respondent could have been held to be limited to 25% of the amount paid to the contractors in absence of any plea that it was not possible to bifurcate the amount due towards materials involved in construction and the labour charges and whether the circular dated 07.07.1983 issued by the Corporation could be made applicable by the Trial Court ?” 4. Mrs. Agni, learned Counsel appearing for the Appellant, has assailed the impugned Judgment essentially on the ground that the learned Presiding Officer whilst passing the impugned Judgment, has relied upon the Circular dated 07.07.1983 without considering whether there was any foundation laid by the Respondent to claim that the payments affected to the Contractor were in fact towards the wages of the labourers as well as on account of the materials, etc. Learned Counsel has further taken me through the evidence of the Respondent as well as the Petition filed before the Court below and pointed out that there was no such averment made by the Respondent to that effect. The learned Counsel has pointed out that the learned E.S.I. Court has arbitrarily applied the Circular to the facts of the case and fixed the contribution payable by the Respondent on the basis of 25 percent without any justification. The learned Counsel has pointed out that the learned E.S.I. Court has arbitrarily applied the Circular to the facts of the case and fixed the contribution payable by the Respondent on the basis of 25 percent without any justification. Learned Counsel further pointed out that it is not open to the learned Court to fix such amounts arbitrarily when there was no foundation laid by the Respondent on that count. Learned Counsel as such submits that the impugned Judgment to that extent deserves to be quashed and set aside. 5. On the other hand, Shri Palekar, learned Counsel appearing for the Respondent, initially was trying to submit that it is not necessary for the Respondent to plead any such facts nor it is obligatory for the Respondent to adduce any evidence to that effect. Learned Counsel, however, fairly accepted that in the evidence recorded by the Respondent, there was no contention to that effect stated by the witnesses examined by the Respondent. Learned Counsel further pointed out that according to the Respondent the payments made to the Contractor were also inclusive of the amount paid towards the material, etc., and, as such, the learned Judge has rightly passed the impugned Judgment. Learned Counsel further pointed out that the Respondent has not challenged the findings of the learned Judge with regard to issue nos. 1, 2, 4, 5 and 6. Learned Counsel further pointed out that according to the Respondent, they are entitled to take the benefit of the Circular dated 07.07.1983 as, admittedly, the payments were made to the Contractor. Learned Counsel as such submits that there is no substantial question of law which requires consideration by this Court in the above Appeal. 6. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the impugned Judgment as well as the evidence recorded by the E.S.I. Court. Considering the contention of the learned Counsel appearing for the Respondent, the findings in the impugned Judgment with regard to issue nos. 1, 2, 4, 5 and 6 stand confirmed. Hence, the only aspect to be considered is as to whether the Respondent is entitled to take the benefit of the said Circular dated 07.07.1983. On perusal of the evidence as well as the claim put forward by the Respondent before the E.S.I. Court, I find that Mrs. 1, 2, 4, 5 and 6 stand confirmed. Hence, the only aspect to be considered is as to whether the Respondent is entitled to take the benefit of the said Circular dated 07.07.1983. On perusal of the evidence as well as the claim put forward by the Respondent before the E.S.I. Court, I find that Mrs. Agni, learned Counsel appearing for the Appellant is justified to contend that there are no pleadings to that effect raised by the Respondent to contend that the payments made to the Contractor were inclusive of the costs of material, etc. Shri Palekar, learned Counsel appearing for the Respondent, fairly accepted that in the evidence of the Respondent, nothing to that effect was stated by the witnesses examined by the Respondent. In order to avail of the benefits of the Circular dated 07.07.1983, it cannot be disputed that a foundation to that effect is to be laid in the pleadings by the Respondent. The Respondent could have stated the said fact in his deposition and/or adduced some material in support of such contention. As no such evidence was part of the records, the learned Judge was not justified to give the benefit of the said Circular dated 07.07.1983 to the Respondent. 7. Mrs. Agni, learned Counsel appearing for the Appellants has also raised the grievance with regard to the rate of interest awarded by the E.S.I Court in the impugned Judgment. Shri Palekar, learned Counsel appearing for the Respondent has pointed out that the interest awarded is in accordance with the law laid down by this Court. This aspect, in any event, would have to be decided by the E.S.I. Court at the time of the disposal of the case in the light of the observations made herein above. 8. Considering the facts and circumstances of the case and taking note of the fact that the Circular is otherwise to the benefit of the employers including the Respondent herein, I find it appropriate that, in the interest of justice, an opportunity is to be given to the Respondent to adduce evidence in support of his submissions that the payments made to the Contractor were inclusive of the costs of materials, etc. To that effect, the learned E.S.I. Court would have to decide issue no.3 afresh to that extent after hearing the parties and permitting the parties to lead further evidence if they so desire on that count. This Order is passed in peculiar facts & circumstances of the case taking note of the fact that the Circular relied upon by the Respondent is otherwise for the benefit of the Respondent and merely because of lack of such evidence, it would not be appropriate to disallow such benefit to the Respondent if otherwise they are so entitled in law. 9. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The findings on issue no. 3 are set aside to the extent stated herein above and the learned E.S.I. Court is directed to decide the said issue afresh and consider whether the Respondent is entitled to take benefit of the said Circular dated 07.07.1983 after permitting both the parties to lead further evidence in accordance with law. (iii) Appeal stands disposed of accordingly. (iv)The parties are directed to appear before the E.S.I. Court on 27.06.2012 and abide by its further directions.