Calcutta High Court
Employees' State Insurance ... vs Steel Authority Of India Ltd., Durgapur ... on 1 April, 2004
Equivalent citations: (2005)ILLJ944CAL
JUDGMENT Alok Kumar Basu, J.
1. Both sides are present. The opposite party has filed its opposition. Let it be kept with the record. Heard both sides over this application filed by Employees' State Insurance Corporation (herein to be referred as the Corporation), under Article 227 of the Constitution of India challenging the order dated July 19, 2002, passed by the Judge, presiding over Employees' Insurance Court, West Bengal in connection with Case No. 58 of 2002. The allegation of the Corporation as it appears from the instant application, is that the opposite party challenged the notice of claim issued by the Corporation and in connection with that challenge, the opposite party also preferred another application for temporary injunction to restrain the Corporation from claiming the amount or taking any step in the matter of realisation of the amount. The Corporation contends that the learned Judge by his order granted the prayer of temporary injunction without taking into account the mandatory provision of Section 75(2-B) of the E.S.I. Act whereunder the opposite party was under obligation to deposit 50% of the claim amount or the learned Judge on recording proper reason may either waive the deposit or reduce the same.
2. Appearing for the Corporation, the learned advocate contends that language of Section 75(2-B) is very much clear and the intention made for the provision was not mere directory, but, it was mandatory, of course, there was a rider for waiving or reducing the amount, but, there must be proper reason behind exercising that discretion. The learned advocate, therefore, contends that as the order was not preceded by the deposit as required under the Act, the order itself is liable to be set aside.
3. Appearing for the opposite party, the learned advocate, first of all, has raised a preliminary question regarding maintainability of this application under Article 227 of the Constitution of India, contending inter alia that there is provision for appeal under Section 82(2) of the Act and when there is an alternative remedy, the petitioner cannot avail of the extraordinary provision of Article 227 of the Constitution of India.
4. The learned advocate, next, contends that even if there is any mistake by the subordinate judiciary including that of Tribunal, this Court exercising its power under Article 227 of the Constitution of India cannot venture to correct the mistake, because, that will be excess of jurisdiction and that will not be permissible in law as it has been held time and again by the Apex Court of the land. The learned advocate, next, contends that it has been held earlier by a Division Bench of this Court that asking the employer to deposit 50% of the claim amount in all cases without making any discretion would amount to utilise the provision of the Act as a tool of oppression and that should be discouraged.
5. The learned advocate finally submits that in the given facts and circumstances, there was a bona fide dispute over the claim amount and hence the learned Judge rightly issued the injunction order and from the order itself it may be presumed that the learned Judge exercised his discretion in waiving the amount. For all the reasons stated above, there is no merit in the present application and the same is liable to be rejected.
6. I have given my anxious consideration to all the points canvassed by both the sides. It may be recorded at the outset that alternative remedy is never a bar in entertaining an application under Article 227 of the Constitution of India. On the examination of the record it appears that the subordinate Tribunal exceeded its jurisdiction or failed to exercise jurisdiction under the law.
7. Therefore is clear statutory mandate for making 50% deposits of the claim amount before raising and entertaining a claim by the employer and it is to be borne in mind that the statutory provision relates to a social security legislation and there is no scope for making any difference between a private employer and a Government undertaking and this has been a constant observation of the Apex Court delivering its different judgments in the field of labour laws.
8. The earlier decision of the Division Bench of this Court and its observation was in connection with an order directing deposit of money by the Employees' Insurance Court but regarding the case in our hand the situation is completely different.
9. Admittedly, the learned Judge has been given statutory discretion in waiving or reducing the amount, but, that discretion is to be exercised by recording cogent and convincing reason.
10. From the impugned order, it is very much clear that the learned Judge even did not consider this aspect, not to speak of, recording any reason and thereby the learned Judge totally disregarded the mandatory statutory provision which at once takes me to the point that there was total failure on the part of the learned Judge to exercise his jurisdiction and this will certainly attract the extraordinary power of this Court to correct the legal mistake.
11. When there was a statutory mandate to record a reasoned order and when the learned Judge has failed to do it, the order in question cannot sustain and the same shall be remitted back to the learned Judge to record a reason after hearing both the sides either to direct 50% deposit or even to waive or reduce the amount, but only after recording reasons behind such finding.
12. With the above observation, I am inclined to allow this application and to set aside the impugned order with a direction indicated above and the learned Judge is to decide this issue within three months from the date of communication of this order till that period, the temporary injunction shall be in force. If the opposite party does not participate in the proceeding within the time indicated in this order, the temporary injunction shall stand vacated without further reference. There will be no order as to costs.
13. Let urgent xerox certified copy of this order be made available to the learned advocates appearing for the parties.