Employees'' State Insurance Corporation vs Arvind Mills Ltd.

H.K. Rathod, J.—Heard learned Advocate Mr. S. D. Vasavada for the appellant-E.S.I. Corporation and learned Senior Advocate Mr. K. M. Patel with learned Advocate Mr. Varun K. Patel on behalf of the respondent.

In this appeal, appellant-E.S.I. Corporation has challenged order passed by Employees'' State Insurance Court, Ahmedabad (for short "the E.S.I. Court") in E.I. Application No. 38 of 1998 vide Exh. 154 dated 7-12-2007 whereby E.S.I. Court has allowed application filed by respondent and it is declared that order passed by Deputy Director of opponent-E.S.I. Corporation dated 17-8-1998 (Annexure-A) is illegal, improper, and therefore, set aside with a direction to E.S.I. Corporation that amount of Rs. 42,935-50 paid excess by Company be refunded with 12% interest.

Learned Advocate Mr. Vasavada has raised substantial questions of law before this Court in Paras 4(a) and (c) of appeal memo which is as under:

4(a) In light of the facts of present case and in view of statutory provisions contained in Section 2(9) of the E.S.I. Act, whether E.S.I. Court is right and justified in interpreting ''or'' as ''and'' and excluding the workers appointed through Standing Order as an apprentice and whether the amount paid as wages to them would not qualify to deduct the contribution from the said wages?

(c) Whether the E.S.I. Court is right and justified in entertaining E.I. Application filed by respondent and passing the impugned order, directing the appellant-Corporation to refund the amount of Rs. 42,931-50 to present respondent with 12% interest despite there is no provision to refund the same?

3.1. Aforesaid two questions, which, according to Mr. Vasavada, being a substantial questions of law, required to be examined by this Court u/s 82 of E.S.I. Act.

3.2. In support of above, he has relied upon Regulation 40 of Employees'' State Insurance General Regulations, 1950 where refund of contribution erroneously paid required to be refunded, but not with interest. Therefore, according to him, there is no provision in Regulations which gives power to E.S.I. Court to refund amount with interest. Except that, there is no other submission made by learned Advocate Mr. Vasavada in support to his submissions.

Learned Senior Advocate Mr. K. M. Patel submitted that as per definition of ''employee'' u/s 2(9) of the E.S.I. Act, whether an apprentice under Apprenticeship Act or under Certified Standing Order, is excluded or not and only 3rd category is to be included, except as referred above, has been examined by this Court in F.A. No. 2941 of 2007 dated 25-7-2008 and FA. No. 5291 of 2007 dated 23-7-2008 which came to be filed by E.S.I. Corporation. He also submitted that provision of Section 2(9) of Act has been considered by this Court and appeal filed by E.S.I. Corporation has been dismissed, which is considered to be involving substantial question of law in both, appeals therefore, same question cannot be re-agitated by E.S.I. Corporation before this Court. Therefore, that contention should be rejected and it cannot be considered now to be a substantial question of law.

4.1. Learned Senior Advocate Mr. K.M. Patel has raised contention that Regulation 40 applies to cases where amount of contribution is erroneously paid to E.S.I. Corporation, then such amount can be refunded by Corporation, but without interest and that will not take away Court''s power while setting aside order of recovery passed by E.S.I. Corporation, and thereafter, Court can pass an order to refund amount with interest. He further submitted that each Court is having inherent power as well as discretionary power to pass appropriate orders giving proper relief to parties. Therefore, Regulation 40 is not applicable to facts of this case.

In the definition of Section 2(9) employee, it is provided that ''and includes any person employed for wages on any work connected with administration of factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of products of the factory or establishment or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (Act No. LII of 1961), or under the Standing Orders of the establishment; but does not include''.

5.1. The contention raised by appellant before E.S.I. Court, is to be examined by this Court. The Advocate of E.S.I. Corporation has made his submissions in Para 9.5 which is quoted as under:

Mr. I.R. Amarnani, Advocate for opponent, vehemently submitted that it is the case of omitted wages under various Acts as formed by Insurance Inspector in his inspection and it is not dispute about the amount, but the dispute is whether this amount paid attracted E.S.I. contribution and for that at the time of inspection, record was not produced by the applicant company and even on oral objection of the applicant company, factory was re-inspected, but at that time also as per both the witnesses of the opponent, record was not produced in full, and therefore, it is not correct to say that the amount was shown by the team of inspectors sent by opponent is not correct and proper and on perusal of documents produced by list Exh. 45, it is very clear that the amount shown as labour charges are liable to contribution and the opponent-Corporation is entitled to that. Mr. Amarnani further submitted that there are many mistakes and non-compliance as found from record by Insurance Inspector at inspection as per the report and observations made in it and it is the question of interpretation of the Section also pertaining to the amount paid to so-called apprentices and as per Section 2(9), the apprentices who are engaged under the Apprenticeship Act, 1961 are only excluded in definition and all other apprentices and trainees are included in the definition of ''Employee'' vide proviso attached to it, and therefore, the amount shown at page 2 for the apprentices is liable to contribution and in view of this situation, the demand of the opponent-Corporation is legal and proper, however, Mr. Amarnani conceded that the rate of contribution as 5.50% is correct for the relevant time, but the Company responsible for contribution towards the labour charges and so far as 70% amount is concerned, the company has paid contribution but the material charges is less and labour charges is more and that should be kept in mind.

Considering all above submissions made by Advocate of Corporation, no question has been raised by Advocate of Corporation before E.S.I. Court that apprentices, who are engaged under Apprenticeship Act, 1961 or apprentice engaged under Standing Orders of establishment, whether ''or'' or ''and'' to be read, was not raised by Advocate of Corporation before E.S.I. Court. Therefore, question raised in Para 4(a) to effect that whether E.S.I. Court is right and justified in interpreting ''or'' as ''and'' and excluding the workers appointed through Standing Orders as an apprentice, this question was not raised at all by Advocate of Corporation before E.S.I. Court. The question which was not raised at all by Advocate of Corporation before E.S.I., Court therefore, it is not proper to find a fault with E.S.I. Court, that whether E.S.I. Court is right and justified in interpreting ''or'' as ''and'' in Section 2(9) of the Act. The E.S.I. Court has not interpreted Section 2(9) in respect to apprentices at all. The E.S.I. Court has considered only apprentices engaged under Standing Orders are not employee u/s 2(9) of the E.S.I. Act.

I have gone through entire order passed by E.S.I. Court. Nowhere, question ''or'' as ''and'' is raised by Advocate of Corporation. Therefore, question is whether a contention which is not raised at all by E.S.I. Corporation before E.S.I. Court, is open to be raised before this Court for first time. The answer is given by Apex Court in negative. In such circumstances, if this contention was raised and not found place in the order, the remedy is open to party to approach same Court or same Judge and that contention cannot be raised first time before this Court.

Recently, this aspect has been examined by Apex Court in case of Mohd. Akram Ansari v. Chief Election Officer and Ors. reported in AIR 2008 SCW 416. Para 14 of said decision is reproduced as under:

In this connection, we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally, a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a Court, the presumption is that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge mat the other points were pressed but not dealt with.

8.1. Recently also, the Apex Court has delivered judgment on 21st November, 2008 in case of Md. Rafique @ Chachu v. State of West Bengal reported in 2008 (15) Scale 15 wherein it was observed by Apex Court that ''if a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the matter is still fresh in the minds of the Judges to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary.'' Relevant discussion made in Para 5 of said decision is reproduced as under:

It would be logical to first deal with the plea relating to absence of concession. It is to be noted that the appellant conceded certain aspects before the High Court. After having done so, it is not open to the appellant to turn around or to take a plea that no concession was given. This is clearly a case of sitting on the fence and it is not to be encouraged. If really there was no concession, the only course open to the appellant was to move the High Court in line with what has said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . In a decision Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party while the matter is still fresh in the minds of the Judges to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to the appellant to contend before this Court to the contrary. The above position was highlighted in Roop Kumar Vs. Mohan Thedani,

Therefore, according to my opinion, the question raised before this Court as a substantial question of law provided such question must have to be raised before E.S.I. Court first to invite answer or decision on that question, and then, to raise said question before this Court being a substantial question of law and this Court can examine it u/s 82 of E.S.I. Act. That u/s 82 of Act, appeal shall not lie against order of E.S.I. Court provided that substantial question of law is involved. So, substantial question of law is involved being a condition precedent for entertaining appeal filed by either party. In absence of that, appeal is not maintainable or available to party. Therefore, in light of this background, Para 4(a) the question which has been raised by E.S.I. Corporation in a particular form which was not at all raised before E.S.I. Court and now to raise before this Court cannot be allowed to be raised before this Court for first time.

Apart from that, decision given by this Court in F.A. No. 2941 of 2007 and F.A. No. 5291 of 2007, in both cases appeal filed by E.S.I. Corporation raising same question u/s 2(9) definition of employee connected to apprentice under Standing Orders, that appeals have been dismissed by this Court by order dated 25-7-2008 and 23-7-2008 respectively. Therefore, this question is already covered by aforesaid decision of this Court. Therefore, Para 4(a) now cannot be considered to be a substantial question of law raised by Corporation involved in present appeal.

10A. The relevant Para 19 from FA. No. 2941 of 2007 dated 25-7-2008 is quoted as under:

I have considered the submissions made on behalf of the appellants and also gone through the judgment of the trial Court and other relevant documents. As held in the case of Mukesh K. Tripathi (supra) the interpretation clause contained in a statute although may deserve a broader meaning having employed the word ''includes'' but it is necessary to keep in view the scheme of the object and purport of the statute which takes him out of the said definition. The interpretation of the Section in question begins with the words ''unless the context otherwise requires''. After considering the evidence on record and after considering the judgments of different High Court and Supreme Court, the Court below came to the conclusion that apprentice under the Apprentice Act or under the Standing Orders are not included within the definition of ''workmen'' and their stipend or training expenses are not included within the meaning of ''wages'', more particularly when they have taken insurance for the employee who are covered under the Apprentice Act under the agreement. I am in complete agreement with the reasonings adopted and finding arrived at the trial Court and no evidence is shown to me to take a contrary view of the matter. Apart from that learned Advocate for the appellant is not able to point out any question of law much less substantial question of law involved in the appeal. Therefore, I do not find any reason to interfere with the impugned judgment.

In respect of Para 4(c), that cannot considered to be a question of law because it is a question of power of Court at the time of deciding application filed by respondent. Therefore, Regulation 40 is not applicable in such a case because Regulation 40 applies in case where establishment has paid contribution to Corporation erroneously which is required to be refunded by Corporation, but Corporation cannot refund such contribution with interest. In this case, when Court has set aside order of recovery passed by Corporation, then natural consequences being legal, is refunded with interest is order rightly passed by E.S.I. Court and such question cannot considered to be a substantial question of law.

Section 82 of the Act is, relevant therefore, quoted as under:

Appeal:- (1) Save as expressly provided in this Section, no appeal shall lie from an order of an Employees'' Insurance Court.

(2) An appeal shall lie to the High Court from an order of an Employees'' Insurance Court if it involves a substantial question of law.

(3) The period of limitation for an appeal under this Section shall be sixty days.

(4) The provisions of Sections 5 and 12 of the Limitation Act, 1963 (XXXVI of 1963), shall apply to appeals under this Section.

Prima facie, plain reading of Section 82 it provides that ''save as expressly provided in this Section, no appeal shall lie from an order of E.S.I. Court''. There is some purpose and object to finality of order passed by E.S.I. Court unless a substantial question of law is involved. Therefore, this Court has to consider seriously when appeal is to be filed by either party, whether any substantial question of law involves or not? The substantial question of law involves means whether that contention was raised before E.S.I. Court or not, otherwise substantial question of law cannot considered to be involved unless it was raised before E.S.I. Court. The substantial question of law has been considered by Madras High Court in case of The Management, Boys Town Society, Tirumangala, represented by its Secretary, Boys Town, Tirumangala v. V. Palani and Anr. reported in 1997 (2) LCR 681. Relevant observations are in Para 6, therefore, quoted as under:

...It has been held in the decision reported in Ramaswami v. Poongavanam 1953 (1) MLJ 557 : AIR 1954 Mad. 218 : 66 LW 440 : 1953 MWN 273, that whether a person is a workman or not is a question of fact on which there can be no appeal as per Section 30 of the Workmen''s Compensation Act. It has been held in the decision reported in Smt. Asmath Beebi (Died) v. Smt. Marimuthu 1990 (1) LLN 891, also as follows:

A question of fact, however substantial, cannot masquerade as a question of law and cannot automatically be treated as substantial one even if the amount involved is substantial or the argument pressed is vehement. If it is of great public importance or if it arises so frequently as to affect a large class of people or is so basic to be operation of the Act itself, one may designate the question of law substantial. But, where it is covered already by precedents or the law on that aspect is well settled, the mere difficult of applying the fact to that law cannot make it a substantial question of law.

When we consider these two decisions, I am of opinion that the contention of the learned Counsel appearing for the respondent that the appeal itself is not maintainable since there is no substantial question of law as required u/s 30 of the Workmen''s Compensation Act is involved, is well founded and on that ground itself, the appeal is liable to be dismissed.

In this appeal, E.S.I. Court has considered submissions of both Advocates in Paras 9.6 and 9.7 of the order. The relevant Paras 9.6 and 9.7 are quoted as under:

9.6. In view of the above submissions, on perusal of the record, pleadings and documents of the case, it is found that the opponent claimed some amount from the applicant as omitted wages and as per the applicant, he has already paid the amount and even made excess payment which should be refunded. It should be understood in two parts, one if the amount paid as ''wages'' and the second is the amount of bills paid to the alleged contractors. It is the submission of the applicant that the Deputy Director of the opponent has passed an order u/s 45A of the Act directing the applicant company to pay Rs. 11,31,026/- as contribution on the amount ascertained by the Inspector at Rs. 2,99,087,124/- at the rate of 5.5.% plus Rs. 5,56,133/- being the amount of the interest at the rate of 18% upto 15-8-1998. It is the submission of the applicant that as regards to Item No. 7 of Part ''A'' of Category "A" of the Observation Slip, the said amount of Rs. 7,87,352-15 ps. is the amount paid to the learner apprentice as a stipend and the learner apprentice is not included in the definition of the ''employee'' and the stipend paid to the apprentice is not covered under the definition of ''wages'' u/s 2(2) of the Act, and therefore, this amount should not be considered for the purpose of recovery of any contribution. In view of this contention of the applicant, it is necessary to note Sections 2(9) and 2(22) of the Act, defining term ''employee'' and ''wages'' as under:

2(9) ''employee'' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and:

(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere, or

(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or

(iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or lent on hire has entered into a contract of service.

and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of the factory or establishment or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (Act No. LII of 1961), or under the Standing Orders of the establishment.

Section 2(22) ''wages'' means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes (any payment to an employee in respect of any period of authorized leave, lock-out, strike which is not illegal or lay-off and) other additional remuneration, if any (paid at intervals nor exceeding two months) but does not include:

(a) any contribution paid by the employer to any pension fund or provident fund, or under this Act;

(b) any travelling allowances or the value of any travelling concession;

(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(d) any gratuity payable on discharge.

It is pertinent to note that it is on record that these apprentices learners are kept in training by the applicant company as per the provisions of Standing Orders. This fact is not denied by the opponent E.S.I. Corporation and it is in evidence also that these learners are there as per the provisions of the Standing Orders settled by award of Industrial Court. As per the submissions of Mr. Amarnani, the apprentices engaged under the Apprentices Act, 1961 are only excluded in the definition of ''employee'' but after the definition is looked into, it is very clear in the inclusion proviso that ''any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act 1961, or under the standing orders of the establishment'', is included in the definition of ''employee''. This is necessary thing that ''persons engaged under the Apprentices Act, 1961 or under the Standing Orders of the establishment'' are not included in the definition of ''employee'' and therefore, the stand taken by the Applicant is correct, even otherwise, in the very first sentence of the definition of ''employee'', the word ''employed'' is used. It is necessary that there should be an element of employment and for that purpose, there should be term of employment either direct or implied. Even in the definition of ''wages'', it is mentioned that there should be terms of the contract of employment express or implied. Therefore, unless there is term of contract of employment, one cannot be covered under the definition of ''employee'' and unless some amount is paid to employee, any amount paid to other persons cannot be covered under the definition of ''wages'' because the term ''wages'' is connected with employee. If the person to whom the payment is made is not employee, the amount to him would not be ''wages''. In view of this situation, it is very clear that a trainee engaged under the provisions of the Standing Orders is not ''employee'' and the stipend for payment of any amount to him is not ''wages'' being not paid to employee. My views are fortified by some judgments of Supreme Court and High Courts.

(1) It is observed by Madras High Court in the case of E.S.I.C. v. Kwality Spg. Mills Pvt. Ltd. 1976 LIC 324 that "...the terms of contract under which the apprentices were working, go to show that there was no contract of service between the mills and the apprentices. The primary object of the apprentices joining the mills is one of learning....

(2) It is observed in the case of E.S.I.C. v. Tata Engineering & Loco Co. Ltd. 1976 LIC 1 : 1976 SCC (L&S) 41 that "the concept of apprenticeship, is therefore, fairly known and has now been clearly recognized in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged do not give any scope for holding that they are employed in the work of the company or in connection with it for wages within the meaning of Section 2(9) of the Act," (Page 392, Line 3). "The heard of the matter in apprenticeship, is therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of the discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee....

From the terms of the agreement it is clear that apprentices are mere trainees for a particular period for a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company.

9.7 It is established in this case that the trainees or apprentices are not regular employees and are not covered under the definition and this judgment is being followed till the date. Even the Andhra Pradesh High Court, had also thereafter, observed that the apprentices employed as trainees, under agreement with management and paid stipend only, are not employees u/s 2(9) in the case of E.S.I.C. v. Andhra Prabha Pvt. Ltd. 2000 (2) CLR 726 (AP). Thus, the Applicant Company has rightly raised the point that the amount of Rs. 7,87,352-15 Ps. paid to the learner apprentices as stipend do not form part of "wages" as defined u/s 2(22) of the Act and these apprentices engaged under the provisions of the Standing Orders of the establishment are not covered under the definition of the "employee" under the E.S.I. Act. It should be noted that in Annexure-A with observation slip of E.S.I. Inspector Part ''A'' containing Sr. Nos. 1 to 9 showing amount Rs. 24,34,968-55 Ps. excluding Sr. No. 7, the amount paid to the trainees i.e. Rs. 7,87,352-15 Ps and for this amount, the Company had calculated the covering amount for contribution at the rate of 5.50% which comes to Rs. 1,33,924/- and Company had paid the said contribution on 23-2-1996 and the proof is the xerox copy of the challan.

Now, for another part, this should be noted that in observation slip, the total amount paid to some alleged contractors as per the bills is shown as omitted wages without any verification or bifurcation for the actual amount paid as "wages" and the amount not paid as "wages" but paid towards other heads.

14.1. In view of discussion made by E.S.I. Court, Sections 2(9) and 2(22) is rightly interpreted. The respondent-Company has not engaged both kind of apprentices, but engaged only one kind of apprentices under certified or settled Standing Order under provision of B.I.R. Act, 1946. Therefore, respondent-Company has not engaged apprentices under provision of Apprentices Act, 1961. Now looking to Section 2(9) employee, it is made clear that both kind of apprentices are excluded from definition of employee u/s 2(9) of E.S.I. Act, one under Apprentice Act or under Standing Order of establishment. The facts of this case are related to only apprentices engaged under Standing Orders of establishment. Therefore, submission made by learned Advocate Mr. Vasavada not to read ''or'' as ''and'' have no meaning because in facts of this case, apprentices engaged only under Standing Orders, not under Apprentices Act, 1961. So, question of interpretation of Section 2(9) in respect to apprentices does not arise at all. But it clear from Section 2(9) is that either of apprentice engaged under Apprentices Act, 1961 or Apprentices engaged under Standing Orders of establishment are both excluded from definition of employee u/s 2(9) of E.S.I. Act. Similarly, payments of stipend paid to apprentice is also not considered by wages u/s 2(22) of E.S.I. Act. The employee to employed having contract of employment but, apprentice is not employed and is not having contract of employment, but only engaged as trainee for stipend. That amount or payment cannot considered to be wages within meaning of 2(22) of E.S.I. Act. Therefore, substantial question of law is not raised and involved in present appeal. Therefore, appeal shall not lie u/s 82 of E.S.I. Act.

The Section 2(9) of E.S.I. Act considered by this Court. That both the categories of apprentice are excluded from definition of Section 2(9) , otherwise there is no purpose to mention second category of apprentice which is covered under Standing Orders of establishment. Therefore, according to my opinion, the Legislature thought it fit to exclude apprentice under Apprentices Act or under Standing Order of the establishment and for this purpose, these two parts made it clear that does not mean that ''or'' is not included. Such submission of learned Advocate Mr. Vadavada cannot be accepted. Basically, difference is found out by Legislature is that the employee is required to be employed and apprentice is not required to be employed, but has to be engaged. This is a basic difference between employee and apprentice, otherwise question of exclusion of apprentice under Apprentices Act or under Standing Order of the establishment does not arise. So, in short, apprentice either engaged under Apprentices Act or under the Standing Orders of the establishment, in both are excluded by Legislature making it clear in Section 2(9) of Act by way of Amendment dated 20-10-1989. Therefore, according to my opinion, contention raised by learned Advocate Mr. Vasavada cannot be accepted. In this appeal, no substantial question of law is involved, and therefore, according to my opinion, this appeal is not maintainable, and accordingly, present appeal is dismissed.

In view of the order passed in main first appeal, Civil Application No. 8143 of 2008 does not survive and is disposed of accordingly. Interim relief, if any, granted earlier stands vacated.

The Registry is directed to refund the amount of Rs. 42,931-50 which has been deposited by appellant-Corporation pursuant to the order dated 29-8-2008 passed in present appeal, to Arvind Mills Ltd. by account payee cheque after proper verification.

Learned Senior Advocate Mr. K. M. Patel submitted that 12% interest which is available to respondent-Company is not paid or deposited so far by appellant-Corporation.

Therefore, the appellant E.S.I. Corporation shall pay 12% interest upon said amount as directed by E.S.I. Court to respondent-Company within a period of 2 months from date of receiving copy of this order.