Arijit Pasayat, J. - (1.) These two appeals are inter-linked and are, therefore, taken up for disposal together. Challenge in these appeals is to the legality of the judgment rendered by a Division Bench of the Rajasthan High Court at Jodhpur confirming the order passed by a learned single Judge, who while dismissing the writ petition filed by the respondent No.1 (hereinafter referred to as the "Union") in Civil Appeal No. 313 of 2005 gave certain directions. The judgments in the said case were followed in the connected Civil Appeal No. 313 of 2005.
(2.) Background facts in a nutshell are as follows : Pursuant to the amendment made in the provisions of the Employees" State Insurance (Central) Rules, 1950 (in short the "Rules") framed under Employees State Insurance Act, 1948 (in short the "Act") vide Notification dated 23-12-1996 which became effective with effect from the date 01-01-1997, the employees who were drawing monthly salary of Rs.6,500/- which limit was earlier Rs.3,000/- were required to make contributions at the enhanced rate of 1.75 % in place of the earlier figure of 1.5%. The employers contribution was increased from 4% to 4.75%. In view of the Notification those employees who were drawing salary upto Rs.6,500/- were required to secure new insurance cards after filing requisite declaration. The concerned employer notified the employees accordingly. The Union challenged the employer"s notice on the ground that in view of proviso to Section 1(4) of the Act, the amendment as brought in by the Notification had no application to the concerned employees. However, prayer in the writ petition was to grant exemption. In the case of ITDC which were subsequently taken over by Laxmi Vilas Palace Hotel, Udaipur, stand was that the employer-hotel was a Government of India undertaking and is State within the meaning of Article 12 of the Constitution of India (in short the "Constitution"). According to the Union, the applicability of the Act cannot be extended to the employees of the said establishment. Therefore, the demand for payment for contribution from the concerned employees to be deducted from their salaries is not warranted. The Employees State Insurance Corporation (in short the "Corporation") raised preliminary objections as regards the maintainability of the writ petition. It was pointed out that since the Notification in question was issued by the Union of India, without making the Union of India as a party the petition was not maintainable. A further plea was taken that in view of the alternative remedy available under the Industrial Disputes Act, 1947 (in short the "ID Act") the writ petition was not maintainable. Learned Single Judge found the writ petition to be not maintainable in view of the alternative remedy provided. It, however, gave following direction: "It would be appropriate to direct the E.S.I. Corporation to consider that since the petitioners have not availed the facility of E.S.I. from then they should waive the realization of the contribution for this period from the petitioners in the aforesaid circumstances and the necessary orders in this regard would be issued by the E.S.I. Corporation." (Underlined for emphasis)
(3.) This direction was given on the basis that operation of the Notification was stayed by order dated 26-2-1996 in the writ petition. Both the Corporation and the Union filed appeals before the Division Bench. By the impugned judgment the Division Bench gave the following directions: "1. The deduction of the employees" contribution will be made by the employer and along with the employees" contribution, employer"s contribution shall be deposited with the ESI Corporation. 2. Such deposits shall be kept in separate account by the ESI Corporation for a period of three months. 3. If within the said period of three months, any dispute is raised about the applicability of the Act to the establishment in question by the employer or employees before the appropriate forum, the said arrangement of regular deposits of the contribution and maintenance of the separate account by the Corporation shall continue until the adjudication of that dispute by the said forum.;