Jharkhand High Court
H.N. Pareek & Company Through One Of Its ... vs The State Of Jharkhand Through The ... on 5 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5509 of 2009
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H.N. Pareek & Company through one of its partner K.K. Pareek, S/o H.N. Pareek, resident of Basant Talkies Building, P.O. & P.S. - Sakchi, Town-Jamshedpur, District-Singhbhum (East) ... ... Petitioner Versus
1.The State of Jharkhand through the Secretary, Department of Labour Employment & Training, Govt. of Jharkhand, Ranchi.
2.Employees' State Insurance Corporation, through the Regional Director, Jharkhand Region, Namkum, Ranchi.
3.Deputy Director, Employees' State Insurance Corporation, Jharkhand Region, Namkum, Ranchi.
4.The Assistant Director, Employees' State Insurance Corporation, Jharkhand Region, Namkum, Ranchi.
... ... Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Vijoy Pratap Singh, Sr. Advocate Mrs. Bandana Kr. Sinhi, Advocate For the Respondents : Mr. Ashutosh Anand, Advocate
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th Order No. 09 : Dated 5 January, 2024
1. The instant writ petition has been filed under Article 226 of the Constitution of India seeking following reliefs:
(A) For issuance of an appropriate writ/writ(s), order/order(s), direction/ direction(s) commanding/ restraining the Respondent No. 2 to 4 from taking any coercive action against the petitioner for alleged non-
compliance of the provisions of the Employees' State Insurance Act, 1948 till such time- (i) their application of exemption under section 87 ESI Act Filed earlier and directed by the Hon'ble Court to be decided vide order dated 11.01.2007 passed in W.P. (C)No. 6970 of 2006 an confirm on 19.06.2008 in L.P.A. No.70 of 2007 is -2- decided by the Government. (ii) The recover/deduct employees contribution from its employees. (B) For issuance of writ of mandamus or in nature there of restraining the respondents from enforcing the order/demand contained in letter dated 17.06.2009 and 15/17.09.2009 till the decision taken by the State Government in pursuance of direction given by this Hon'ble Court.
2. It is evident from the prayer made in the instant writ petition that direction was sought for upon respondent nos. 2 to 4 for not taking any coercive steps against the petitioner for alleged non-compliance of provisions of the Employees' State Insurance Act, 1948, since, till the exemption application was filed under Section 87 of the ESI Act be decided.
3. The contention has been made that once the application has been made under Section 87 of the ESI Act, 1948 claiming therein restrainment of the establishment and as such before any final decision which is to be taken by the competent authority, if any action will be taken considering the establishment in question by bringing it under the purview of Act, 1948 it will amount to miscarriage of justice.
4. Mr. Ashutosh Anand, learned counsel appearing for the respondents-ESI has submitted that the exemption -3- application, pendency of which has been taken as a ground not to take any coercive action is no more available since the said application has been dealt with by refusing to grant exemption vide order dated 26.05.2017.
5. As such since the main issue seeking relief for restraining the respondents not to take any coercive measure which is pendency of the exemption application since has been dismissed, hence, the prayer made in the instant writ petition has become infructuous.
6. Mr. Singh, learned senior counsel for the petitioner has however submitted that one Interlocutory Application being I.A. No. 551 of 2023 has been filed seeking leave of this Court to amend the prayer made in the writ petition by allowing the writ petition challenging order dated 26.05.2017 whereby and whereunder the exemption application has been rejected.
7. Mr. Singh, learned senior counsel has further submitted that in the Interlocutory Application while assailing the decision of the competent authority in refusing to grant exemption in exercise of power conferred under Section 87 of the Act, 1948 the ground has been taken regarding the applicability of the aforesaid provision so far as the establishment in question is concerned.
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8. Mr. Ashutosh Anand, learned counsel for the respondents-ESI has raised objection on the ground that once the prayer sought for in the writ petition has become infructuous, as such if the instant Interlocutory Application will be allowed, as per the prayer made in the writ petition it will not be proper reason being that the main prayer is for restraining the respondents not to take any coercive measure on the ground of pendency of exemption and since the exemption application itself has been rejected it would not be proper to entertain the Interlocutory Application.
9. This Court, having heard learned counsel for the parties and after going through the prayer made in the writ petition along with pleading, is of the view that what has been contended on behalf of respondent-ESI is worth to be considered since the main prayer is for restraining respondent no. 2 to 4 for not taking any coercive action due to pendency of exemption application, which was filed under Section 87 of the Act, 1948.
10. We have also considered the ground basis upon which the instant writ petition has been filed, which pertains to restrainment order passed by respondents- ESI however one Interlocutory Application has been filed praying therein to amend the prayer to extent for quashing the order dated 26.05.2017 whereby and -5- whereunder the exemption application has been rejected. Grounds have also been taken therein questioning the same decision but the question is that when the original prayer made in the writ petition has rendered infructuous after passing order under Section 87 of the Act, this Court is of the view that it will not be proper for this Court to allow the prayer made in the Interlocutory Application for the reason that new ground is to be taken by making the same part of the writ petition.
11. Further reason for coming such conclusion is that if the said application will be allowed the same will change the nature of prayer made in the instant writ petition since the prayer made in the writ petition is quite different to that of prayer made in the Interlocutory Application.
12. Further if the Interlocutory Application will be allowed, the same will amount to seeking a fresh direction in a case where the main prayer has become infructuous.
13. Considering the same, this Court is of the view that the prayer made in the instant Interlocutory Application is not deserve to be allowed. Accordingly the instant Interlocutory Application being I.A. No. 551 of 2023 stands dismissed.
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14. Further the prayer made in the instant writ petition also rendered infructuous in view of the fact that order has already been passed under Section 87 of the Act rejecting the claim for exemption which has been sought for basis of its pendency the leave has been sought for by way of restrainment order not to take any coercive action.
15. However, the petitioner is at liberty to approach the appropriate forum to challenge the said order by raising all the points which are available with him.
16. With the liberty aforesaid, the instant writ petition stands disposed of.
(Sujit Narayan Prasad, J.) Alankar/