Contractors working on the premises of a factory are not considered employees of the factory and cannot be included in the count of persons working in the factory for the purpose of determining whether the premises constitute a factory under the Employees' State Insurance Act, 1948.

( 1 ) THE inspector of the Employees State Insurance Corporation Shri D. K. Sethi visited the premises of the Durga Metal Works on January 27, 1967 found 5 contractors and 16 other regular workers working in the factory. One Shri K. K. Pathak the supervisor was present in the premises of the factory. The inspector demanded inspection of the attendance register, wages register, cash book and ledger from December 1963 to July 1964. It appears that the record was not produced then nor later and the Corporation raised a demand of contributions as follows : 1. Rs. 1252. 64 on account of employees contribution for the period October 1, 1966 to August 21, 1968; 2. Rs. 1479. 76 on account of employer s contribution w. e. f. October 1, 1966 to January 27, 1968.

( 2 ) SINCE this amount was not paid, the Corporation requested the Collector of Delhi to effect recoveries by an application of November 20, 1968. Apprehending coercive process to issue for the recovery, Hardev Singh proprietor of the Durga Metal Works filed an application in the Employees Insurance Court on November 1 1, 1969 praying for an injunction against the Corporation and the Collector restraining them from recovering the aforesaid amounts. The court by its order dated November 26, 1970, refused to grant injunction for recovery of the principal amount but directed the respondents not to recover any interest thereon.

( 3 ) THE petitioner Hardev Singh has filed this appeal under Section 82 (2) of the Employees State Insurance Act, 1948, (herein the Act), on the ground that a substantial question of law arises in the appeal.

( 4 ) THE very first contention is whether the Durga Metal Work is a factory covered by the definition given in the Act. Clause (12) of Section 2 of the Act as it stood at the relevant time defines factory as follows :

"sec. 2 (12 ). "factory" means any premises including the precincts thereof whereon twenty or more persons are working, or were working 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 Indian Mines Act, 1923 or a railway running shed. "it is not clear from which date the preceding twelve months shall reckon back. The learned counsel for the Corporation pointed to Reg. 5 and I OB, and Form 01 of the Employees State Insurance (General) Regulations 1950 and urged that the twelve months mentioned in the definition of factory will be reckoned from the appointed day i. e. the date on which Chapters IV and V of the Act come into force or from the date of which the employer makes a declaration in Form 01 or from. the date on which the premises are inspected. I am unable to uphold this contention firstly, because there is nothing in the Regulations to support it and secondly, because the omission in the Act cannot be supplied by subordinate legislation and that too in such an alternative manner. This is a substantial difficulty in construction of the Act but I will leave it to be decided in some other case. In this case the Corporation s case is that it is the date of the inspection of the premises which is the material relevant date. It is not disputed that on January 2 7, 1967 power was being used for the manufacturing processes carried on in the premises of the Durga Metal Works but the contention is that 20 or more persons were not working on that date or any day of the twelve months preceding January 27, 1967. The controversy centres round the four contractors mentioned in the inspection report of Shri Sethi. The appellants contend that contractors cannot be included for purposes of convering the precincts in the definition of a factory. If the contractors are excluded, then the premises are not a factory. The learned counsel for the Corporation cited The Ustia Prints v. The Employees State Insurance Corporation and another (A. I. R. 1964 Bombay-94 ). T