Khadi Gramodhyog Prayog Samiti vs Regional Director

G.R. Udhwani, J. (Oral)—Two notices dated 24.8.2015 and 2.9.2016 issued under the provisions of Employees State Insurance Act, 1948, (for short "ESI Act") are sought to be challenged principally on the ground that the competent authority has not decided the question of its jurisdiction as preliminary issue; though the specific contention to that effect was raised in the reply to the said notices.

Having considered the submissions made by the learned counsel for the petitioner, it appears that there have been few rounds of litigation concerning the subject matter of this petition. In First Appeal No. 1070 of 2015 this Court has passed an order on 30.9.2015, thus:

"3. After hearing both the sides, it becomes clear that the competent Court has, by reasoned order remanded the matter back to the competent authority for passing appropriate order in the suit. Therefore, at present there is no reason to admit such appeal and to keep it pending for couple of years since ultimately there could not be any further order other than remanding the same to the competent authority for doing the needful pursuant to impugned order dated 31.03.2015 in ESI Application No. 30 of 2000 under Section 75 of the ESI Act. Therefore, considering the facts and circumstances and material on record as well as submissions by both the learned advocates, this First Appeal is disposed of with following directions:

3.1 The competent authority under the statute has to reconsider the issue and shall pass appropriate order under Section 48A of the ESI Act after extending reasonable opportunity of hearing to both the sides wherein competent Court shall also consider the issue regarding applicability of the Act upon the appellant. For the purpose, the competent authority shall decide such issue within 3 months from the date of receipt of writ of this order. For the purpose, both the sides are at liberty to raise all issues available to them, since this Court has not entered into merits of the dispute between the parties while disposing the First Appeal as aforesaid. Disposed of accordingly."

By subsequent order dated 21.10.2015, "Section 48A" referred to in para 3.1 of the order was corrected to "Section 45A".

It can be noticed in the order dated 30.9.2015 only direction to the concerned authority under ESI Act was to reconsider the issue after extending opportunity of being heard to both the sides. The question of jurisdiction of the competent authority under the Act and the applicability of the Act to the petitioner was also directed to be considered within a specified period and the parties were allowed to raise all issues available to them. The authority was not under an obligation to take up any issue as preliminary issue. However, in the written reply, such issue has been raised before it and the authority is yet to take the decision on the case.

Learned counsel for the petitioner submitted that the ESI Act is not applicable to the petitioner and, therefore, the authority must decide the preliminary issue about the applicability of the ESI Act.

As noticed above, this Court has already issued appropriate direction in the First Appeal afore stated, and at this stage it cannot be said that the authority would not decide the question of applicability of the provisions of ESI Act as no decision has yet been rendered on the case pleaded by the petitioner.

In view of the directions already issued by this Court, this petition is not required to be entertained. The petition, therefore, fails on the aforesaid ground only and is summarily rejected. If permissible under the law, it will be open for the petitioner to raise the preliminary issue regarding the applicability of the ESI Act.

With the aforesaid observations, the petition is rejected.