Calcutta High Court
Allied Resins And Chemicals Ltd. vs Employees' State Insurance ... on 18 February, 2004
Equivalent citations: [2004(101)FLR1216], (2004)IIILLJ302CAL
JUDGMENT A.K. Bhattacharyya, J.
1. The hearing stems from an application filed by the petitioner Company praying for revision of the order dated April 7, 2003 passed by the learned Judge, E.I. Court in Tender Case No. 8/2003.
2. The background history leading to the present application is that the O.P. Corporation demanded payment of Rs. 19,30,023/- towards employer's contribution with interest from April, 1996 to March, 1998 from the petitioner Company which then brought a proceeding under Section 75(1)(g) of the E.S.I. Act, 1948 before the E.I. Court claiming certain reliefs followed by an application under Section 75(2-B) of the Act for waiving the deposit of 50% of the amount on account of its being a Sick Industry. The above application under Section 75(2-B) was disposed of by the impugned order directing the petitioner Company to deposit Rs. 2 lakhs by a specified date.
3. Being aggrieved by and dissatisfied with the said order, the petitioner has moved this Court in revision. All that now requires to be considered is whether the learned Court below was justified in passing the said order.
4. Mr. Utpal Bose, the learned counsel for the petitioner on referring to the Preamble of the Sick Industrial Companies (Special Provisions) Act, 1985 contended that having regard to the avowed object of the Act his client being a Sick Industry prayed for total waiver of the deposit as envisaged in Section 75(2-B) by exercising power under the proviso thereof for which none will be prejudiced, but it was not done by the learned Court below. Mr. Subal Maitra, learned counsel for the O.Ps., on the other hand, on citing a decision and an unreported Division Bench decision of this Court in Kalyani Spinning Mills Ltd. v. E.S.I. Court and Anr. delivered on February 10, 1993 and on referring to the Preamble of the E.S.I. Act which is no less important contended that there being no jurisdictional error nor involvement of any mala fide exercise of discretion, there is, perhaps, no scope for interfering with the order of the learned E. I. Court.
5. With all my concurrence, with the above contention of Mr. Maitra, I may plough a lonely furrow. Section 75 of the E.S.I. Act, 1948 provides for matters to be decided by E.I. Court. Sub-section (2-B) of the said Section in mandatory terms prohibits raising of any dispute between a principal employer and the Corporation in respect of any contribution or any other dues unless the principal employer has deposited with the Court 50% of the amount due from him as claimed by the Corporation. Proviso to the said Sub-`tion (2-B) empowers the Court to waive or reduce the amount to be deposited, on recording reasons.
6. "Discretion", as observed by LORD HALSBURY, means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to discharge of his office, ought to confine himself. In other words, it is that part of the judicial function which is uncontrolled by fixed rules of law but it has to be exercised in the particular circumstances of each case according to well established principles of reasons and justice and not fancifully or arbitrarily. Exercise of discretionary power of the Lower Court can be interfered with by this Court only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice . Here, the total amount due towards employer's contribution with interest from April, 1996 to March, 1998 is Rs. 19,30,023/- The learned E.I. Court on considering facts, circumstances and materials on record reduced the amount of deposit to Rs. 2 lakhs only, and there appears to be no error in exercise of discretionary power. Again, an interlocutory order can be interfered with only on jurisdictional error or in case of failure of justice or irreparable injury, none of which appears to be involved here.
7. In the premises, in the light of the above discussion, there being no material to interfere with the impugned order, the present revisional application be dismissed but without any cost.
8. The impugned order dated April 7, 2003 passed by the learned Court below in Tender Case No. 8 of 2003 is hereby affirmed with a slight modification that the petitioner company shall deposit the aforesaid amount within one month from the date of receipt of the record by the learned Court below.
9. Let a copy of this order along with the L.C.R., if received, be sent down to the learned Court below at once.