Calcutta High Court (Appellete Side)
Employees' State Insurance ... vs M/S. A. Tosh & Sons India Limited on 14 June, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
14-06-17
Item No. 1
AD C.O. 3119 of 2016
Employees' State Insurance Corporation
-vs-
M/s. A. Tosh & Sons India Limited
Mr. T. K. Chatterjee,
Mr. Abhishek Banerjee.
... for the petitioner.
Mr. Kumar Gupta,
Mr. Meghajit Mukherjee.
... for the opposite party.
Heard Mr. Chatterjee, learned Advocate for the petitioner, Employees' State
Insurance Corporation (shortly to be called on hereafter as ESIC), being assisted
by Mr. Banerjee.
Heard also Mr. Gupta, learned Advocate being assisted by Mr. Mukherjee
representing the opposite party, M/s. A. Tosh & Sons India Limited (shortly to be
called on hereafter as the opposite party).
The application under Article 227 of the Constitution of India has been
directed by the ESIC against the order dated 1st June, 2016 passed by the
learned Employees' Insurance Court, West Bengal, Calcutta (shortly to be called
on hereafter as ESI Court) in Tender Case No. 8 of 2016 filed by the opposite
party raising dispute on the coverage order dated 16-06-2014.
Mr. Chatterjee argued that the impugned order passed by the learned ESI
Court sending the matter back on remand at the interlocutory stage is without
jurisdiction, since there is no provision of remand in the Act and it was done
before adjudication and even before opportunity of discovery of documents and
2
framing of issues. Further argued that the order impugned was passed at the
stage of consideration of application for temporary injunction as was sought for
by the opposite party. Upon such grievance, Mr. Chatterjee submitted to allow
the revisional application and to pass necessary direction upon the ESI Court for
adjudication of the dispute raised by the opposite party.
Mr. Gupta, per contra, replies that the revisional application under Article
227 of the Constitution of India itself is not maintainable since there is no
perversity in the order and by the impugned order there is no question of
becoming prejudiced by the ESIC since direction was given by the learned trial
Court to adjudicate the dispute.
Perused the materials on record and also the order impugned. There is no
dispute that the order impugned was passed by the learned ESI Court while the
record was taken up to pass order in respect of the application for temporary
injunction filed by the opposite party. From the order impugned, it also appears
that till that stage no written objection was filed by the ESIC. There is also
indication in the impugned order that defence of the ESIC was struck of due to
non-filing of W.S. or W.O. as the case may be. It further reveals that the Tender
Case No. 8 of 2016 was initiated before the learned ESI Court at the instance of
the opposite party, who raised dispute over the coverage order, which is, of
course, liable to be adjudicated under Section 75(1)(g) of the Employees' State
Insurance Act, 1948. Learned trial Court in remanding the matter observed as
follows :
3
"Considering the facts of the case and having regard to the materials on
record, I find that the coverage point has been highly disputed. Another disputed is
whether the retrospective can be given regarding claiming of contribution prior to
the date of coverage of the applicant company.
I find from record that no details of the employees as observed in Karnataka
Asbestos Cement Product case. The record reveals that no opportunity of hearing
was given to the applicant prior issuance of coverage notice in form C-11 dated
16/6/14vide annexure 'A' to the main application.
*** *** ***
*** *** ***
On further consideration of the materials on record I am of the view that the case should be remand to the ESIC for fresh hearing on the point of coverage".
By recording the above order in sending the matter back on remand to the ESIC for fresh hearing on the point of coverage, the application for temporary injunction also was disposed of.
The question arose (1) as to whether at the interlocutory stage while the matter was before the learned ESI Court for hearing and consideration of the prayer of temporary injunction as sought for by the opposite party-company the order impugned in sending back the matter on remand can be sustained under law, and, (2) whether the impugned order is liable to be entertained under Article 227 of the Constitution of India.
Appreciating the submission of Mr. Gupta, this Court has got no hesitation but to observe once again that though the Constitutional Court has been enjoying an unfettered jurisdiction to exercise the power under Article 227 of the Constitution of India, but such unfettered power does not approve to pass any order which is not warranted by the law. Meaning thereby, if the decision- 4 making process remains in order attending the facts and law in proper perspective, then, High Court should not interfere within any such order complained of.
This Court has already observed on earlier occasions that when learned ESI Court is enjoying the power for adjudication of disputes under Section 75 of the Act then after adjudication, said Court is also empowered to lay down the appropriate order to its satisfaction even in exercising judicial discretion. It is true that within the Act itself there is no power as such to send back the matter on remand to the ESIC for fresh hearing or to attend the direction. But when the ESI Court is vested with jurisdiction like civil court, of course, to resolve some special nature of disputes, then it will not be wise to criticise also the power of such court, if, in any eventuality it exercises judicial discretion like civil court as under Section 151 of the Code of Civil Procedure. Of course, exercising of such judicial discretion again ought to be within the framework of the provision of law, meaning thereby it may be corollary to the main, but ought not to be a foreign to the provision of law and established practice.
The question of remand may be thought of at some appropriate stage. It appears from the materials on record that the order impugned was passed while the matter was pending before the learned ESI Court for dealing with the prayer for temporary injunction. Written objection was not filed till that stage. The matter also was not proceeded with ex parte or it was not proceeded for disposal by striking out defence of the ESIC, meaning thereby, the pleadings were yet to be completed. It is redundant to say that further stages in the proceeding like 5 discovery and inspection, framing of issues, adducing evidence were all far away of. Therefore, at that juncture while the matter was simply pending before the learned ESI Court for attending the prayer of temporary injunction, in disposing of the said prayer, recording of order of remand itself is perversity and therefore cannot be sustained in law since lapses were caused in the decision making process. Had the stages noted hereinbefore been exhausted, and after adjudication if learned ESI Court would think of sending the matter back on remand then, of course, there would be approval of such order as an act done by learned ESI in exercise of judicial discretion for determination of the actual lis.
Therefore, while very coverage order was assailed within the ambit of Section 75(1)(g) by the opposite party/company on the grounds as said therein, learned ESI Court ought to have attended the same for its complete adjudication. This was also within the domain of jurisdiction of the learned trial court that had there been no contest by the ESIC, then it could have been decided also ex parte which would be equally binding upon the parties unless set aside or modified.
In the facts and circumstances, the scenario is otherwise, as indicated above, at the above interlocutory stage, the order of remand cannot be approved as legal act, as there is lapses in the decision-making process. The order impugned was passed while the proceeding of the Tender Case virtually was at the immature stage.
Therefore, the revisional application being C.O No. 3119 of 2016 is allowed, and, the order dated 1st June, 2016 passed by the learned ESI Court in Tender Case No. 8 of 2016 is set aside and quashed with direction to the learned ESI 6 Court to adjudicate the application filed before it disputing the coverage order under reference and after adjudication on merit, learned trial Court would be at liberty to pass appropriate decision or even remand order to its satisfaction. Since, some time already has been evaded in between, learned ESI Court is directed to expedite the proceeding of the Tender Case by giving opportunity to the ESIC to file written objection, if any, within a stipulated period, and thereafter, shall proceed to dispose of the Tender Case in accordance with law.
Be it mentioned that all points are kept open for adjudication before the learned ESI Court and since no opposition is offered against the text of revisional application filed before this Court by the ESIC shall not be deemed as any act of admission on any aspect by the opposite party.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Mir Dara Sheko, J.)