Pnrshurun Pottery Works and Co. Ltd. vs Union of India (UOI) (Ministry of Labour) and Another

Shah, C.J.—This is an appeal from an order of the authority under the Employees'' Insurance Act 34 of 1948 (being the Civil Judge, Senior

Division, Rajkot), refusing to make a reference to the High Court u/s 81 of the said Act. The Parsuram Pottery Works Co., Ltd., Morvi, the

Appellant herein, appalled to the authority questioning the constitutional validity of the provisions of Chap. 5-A of the Act and the Notification

issued by the Central Government in exercise of its powers u/s 73A (3) Which is contained in. the said chapter fixing the employer''s special

contribution at 3/4% of the total wage.

The law contained in Chap 5-A is impugned on the grounds, interlaid, that it infringes the fundamental rights of the applicant guaranteed by Articles

14 and 31 of the Constitution and chat the Notification was arbitrary, unreasonable, discriminatory, confiscatory and void being in violation of the

applicant''s fundamental right. The law was also challenged on the ground that it was-a fraud on the Constitution of India.

The application was opposed by the opponents opponent being the Union of India and opponent 2 being the Employees'' State Insurance

Corporation, and one of their contentions was that the authority had no jurisdiction to decide on the question of the legality of the impugned

legislation, However, the authority rejected this contention holding that the objection against the validity of the legislation could be investigated by it

and that was unnecessary on that ground alone to make preference to the High Court.

By a subsequent order dated 20-7-1953, the no refused to make a reference to the High Court, because, in its opinion, the provisions of Chapter

5-A did not violate any fundamental rights of the applicant and it observed:

A challenge to the legislation itself is certainly such a dispute, but it must be patently to strong as to be irresistible. The contention must, create a

doubt in my mind that the law seems to be really a bad law and that, therefore, the dispute about payment is genuine.

In the opinion of the authority the dispute was untenable and therefore the applicant was bound to continue to make payment at the prescribed

percentage. It is against this order that the Applicant has preferred this appeal.

A preliminary objection is taken by the learned Advocate General on behalf of the opponents that no appeal lies, and for the reasons, which I

will presently state, the; contention is well founded. Chapter 6, Employees'' State Insurance Act relates to the adjudication of disputes and claims,

and Section 74 provides for the State Government to constitute an Employees'' Insurance Court; Section 75 enumerates the matter to be decided

by such Court; Sections 76 to 79 deal with the procedure to be followed by the Court, Sections 81 provides for a reference to the High Court on

a question of law; and Section 82 provides for an appeal to the High Court.

It is admitted that no Employees'' Insurance Court has been constituted in the Saurashtra State. By Section 20 of Act 53 of 1951 a new self-

contained Chapter containing Sections 73A to 73I was added to the Act, and it is u/s 73A (3) of this Chapter that the impugned Notification fixing

the employer''s special contribution has been issued by the Central Government.

Section 73B (1) says that if any question or dispute arises in respect of the employer''s Special contribution payable or recoverable under the

Chapter and there is no Employees'' Insurance Court having jurisdiction to try such quest on or dispute the question or dispute shall be decided by

such authority as the Central Government may specify in this behalf. The Civil Judge, Senior Division, is constituted an authority by the Central

Government in accordance with this provision.

It is clear, therefore, that the authority referred to in Section 73B (1) is different and distinct from the Employees'' Insurance Court constituted u/s

74 of the Act. That Court is to be constituted by the State Government while the authority in to be appointed by the Central Government.

Section 73B (2) provides that Sub-section (1) of Section 76, Sections 77 to 79 and Section 81 shall, so far as they may be, apply in relation to a

proceeding before authority specified u/s 73B (1). It is, however, material to note that Section 82, which provides for an appeal, is not made

applicable to proceedings before an authority, and that itself clearly proves that Ian order made by an authority is not appeasable.

Mr. Shah has urged that the remedy of an appeal had been provided for by Section 82, which occurs in Chapter 6 of the Act, and that the

remedy which had already been given cannot be taken away by a Chapter subsequently inserted in the, Act.

The contention is fallacious because the remedy of an appeal was from an order of an Employees Insurance Court, which is altogether a different

forum from an authority appointed under Chapter 5-A of the Act. It is significant that Section 82 has been specifically omitted in Sub-section (2) of

Section 73B, and the only conclusion therefore is that no appeal is contemplated from an order of the authority.

Mr. Shah next referred to Rule 47 of the Saurashtra Employees'' Insurance Court Rules, 39 and 52, which provides that in respect of matters

relating to procedure or admission of evidence for which no specific provision is made in these rules, the provisions of the o CPC shall, so far as

they may be, apply to proceedings under the Act, and on the strength of this Rule he argued that Section 113, Code of Civil Procedure, would be

applicable and that the Court could make a reference to the High Court. This contention is again fallacious because the Rules apply to a Court

constituted u/s 74 of the Act and the authority in ten preterit case is not a Court.

Mr. Shah finally referred to Article 228 of the Constitution, and said that the High Court can withdraw the case from a subordinate Court if the

case involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the

case.

This again is not possible, because the authority is not a Court and the transfer of a case to the High Court provided for by Article 228 refers only

to a case pending before a subordinate Court. There is therefore no substance in any of the contentions urged for the Appellant and since the order

old the authority in question is not appeal able, this appeal must fail.

Accordingly, the appeal is dismissed with Costs.

Baxi, J.

1 agree.