M/s. G. S. Gill and Company vs Employees State Insurance Corporation

None appears for the appellant.

I have heard learned counsel for the respondent. This appeal is preferred by the employer to challenge the order dated 12^th March 1997 passed by the learned member of ESI Court, Mumbai in an application filed under Section 75 of the Employees’ State Insurance Act, 1948 (“said Act”). By the impugned order, the prayer for interim relief in the main application under Section 75 of the said Act is decided.

The appellant has filed an application under Section 75 of the said Act challenging the recovery proceedings calling upon the applicant to make payments towards the contribution, under the said Act by passing order under Section 45A of the said Act. In the main application under Section 75 of the said Act, the appellant filed an application for grant of interim relief praying that pending the final hearing of the application under Section 75 of the said Act, the respondent-corporation should be restrained from recovering the amount of Rs. 84,654/-. This application is decided by the impugned order which reads as under :

Learned counsel for the respondent submits that the present appeal filed under Section 82 of the said Act is not maintainable, as it does not involve any substantial question of law. He submits that the impugned order is an interim order which does not decide the rights of the parties, as the main application is still pending. He relies upon the decision of this court in Employees State Insurance Corporation, Pune Vs. Force Motors Limited (Formerly Known as Bajaj Tempo Ltd., Pune^{11.2008-III-LLJ-81 (Bom)}. He submits that this court has followed the view taken by the learned Single Judge of this court in the case of Abdul Shakur Umar Sahigara & Co. Vs. Regional Director, Employees State Insurance Corporation^{22.(2004) 1 LLJ 921 (Bom)}

He further submits that in the decision of Abdul Shakur, it is held that the order which is not final and conclusive is not appealable under Section 82 of the said Act, as it does not have the trappings or flavour of a decree. This view is followed in the decision of the Force Matters Limited.

I have perused the papers and the judgments relied upon by the learned counsel for the respondent. In the said decision in case of Force Matters Limited, a similar order granting interim relief in an application under Section 75 of the said Act was challenged in the appeal. This court had dismissed the appeal by holding that an appeal under Section 82 of the said Act will not lie against a procedural order or an interlocutory order which does not finally decide the rights or liabilities of the parties. It is held that the order granting stay to the recovery of an amount till disposal of the application under Section 75 of the said Act makes no adjudication as regards rights and liabilities of the parties. Hence, such a decision would not be appealable. Even in the present case, the impugned order grants interim relief during he pendency of the application under Section 75 of the said Act. Hence, it does not satisfy the test of maintaining an appeal under Section 82 of the said Act. The legal principal settled in the aforesaid decision squarely applies to the facts of the present case.

The first appeal is devoid of any merit. The first appeal, is therefore, dismissed.

Learned counsel for the respondent submits that the main application under Section 75 of the said Act is still pending.

It is unfortunate that the application under Section 75 of the said Act pertaining to recovery of ESI contribution pertaining to the period prior to 1995 has still remained pending.

It is, therefore directed that the Application (ESI) No. 53 of 1995 pending before the ESI Court, Mumbai shall be decided expeditiously.