Rajasthan High Court - Jaipur
K.P. Misra vs State Of Rajasthan on 11 February, 1993
Equivalent citations: (1993)IILLJ1123RAJ, 1993(1)WLC692
JUDGMENT Inder Sen Israni, J.
1. This matter has come up for arguments on confirmation of ad interim stay order, which was granted in the year 1985. Since the matter has become quite old, it was finally heard with the consent of both the parties.
2. It is submitted by Mr. Kasliwal, learned counsel, that the petitioner was appointed as Lower Division Cierk (LDC) in the Kota Cooperative Marketing Society Ltd. (respondent. No.2), vide order dated April 4, 1974. He is dealing with ministerial jobs, like accounts, general correspondence etc. It is further submitted that since the petitioner is doing job, which is ministerial in nature, he is not covered by the definition of term 'employee' as contained in Sub-section (9) of Section 2 of the Employees State Insurance Act, 1948 (for short, 'ESI Act'). It is also submitted that respondent No.2 is not a factory as defined in Sub-section (12) of Section 2 of the ESI Act. It is pointed out that, even though the petitioner has filed this writ petition in individual capacity, but this represents the interest of all ministerial staff employees, who are holding the posts of LDC, UDC, Junior Accountants, Accountants and other ministerial cadre working in the office of respondent No.2.
3. Mr. J.P. Gupta, learned counsel for respondent No. 1, has raised, a preliminary objection to the effect that under the provisions of Sections 74 and 75 of the ESI Act, such an objection could be raised and decided by the Employees Insurance Court (for brevity, "EIC"), which is established under the Statute. It is, therefore, submitted that this writ petition should be dismissed, on this preliminary objection itself.
4. I have heard both the parties at length. It may be pointed out that Chapter VI of the ESI Act deals with adjudication of disputes and claims. The Employees Insurance Court has been constituted under Section 74 of the ESI Act. Section 75 enumerates the matters to be decided by 'the EIC. Sub-clause (a) of Section 75 prescribes that a dispute "whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution", covers the matter raised by the petitioner. Apart from this, Sub-clause (g) is residuary clause, in which several other matters/disputes not specifically provided under Section 75 may also be raised and decided by the EIC. The matter is thus, clearly covered by the provisions mentioned above. When a Special Court has been established under the provisions of the Statute, it will not be appropriate to decide the said dispute, by way of writ petition under extraordinary jurisdiction of this Court under Article 226 of the Constitution. During the course of arguments, it was also pointed out by learned counsel for respondent No. 1 that respondent No. 2 has not raised any objection, regarding applicability of the provisions of ESI Act and the dispute has been raised only by the petitioner himself.
5. In view of the clear provisions mentioned above, the preliminary objection raised on behalf of respondent No.2 is upheld and the writ petition is dismissed, as not maintainable. However, as prayed by the learned counsel for the petitioner, the stay order, regarding recovery of the amount from the petitioner, shall remain stayed for a period of four weeks from today. If, during this period, the petitioner files the dispute before the Employees Insurance Court, he shall be at liberty to make prayer for fresh stay order and such an application shall be disposed of on merits by the said Court, in accordance with law. This stay order shall stand automatically vacated after a period of four weeks from the day of this order.
6. With the above directions, the writ petition stands dismissed, with no order as to costs.