BALIA, J. - (1.) HEARD learned counsel appearing for the parties.
(2.) THESE appeals are directed against the judgment dated 5. 5. 99 passed by the learned Single Judge dismissing the writ petition filed by All India I. T. D. C. Employees Union challenging the notification issued by Laxmi Villas Palace Hotel on 30. 1. 97 (Annex. P/7) informing its employees that in terms of the amendment made in the provisions that in terms of the amendment made in the provisions of the Employees State Insurance Act vide notification dated 23. 12. 96 which became effective with effect from 1. 1. 97, its provisions shall be made applicable to those employees with effect from 1. 1. 97 who were drawing monthly salary upto Rs. 6,500/- which limit was earlier upto Rs. 3,000/- and deduction on account of employee's contribution towards the Employees State Insurance was increased from 1. 5% to 1. 75%. So also, the employer's contribution was increased from 4. 75% with this notification, it was required of those employees who were drawing salary upto Rs. 6,500/- to secure new insurance cards after fulfilling the requisite declaration. The principle objection on behalf of the employees union of the said Notification is that in view of the Proviso to Section 1 (4), the provisions of the Act are not applicable to the respondent employer company. However, the term used by the petitioner in the writ petition is to claim exemption. It is the case of the appellant/petitioner union that the hotel in question is a Government of India undertaking and is State within the meaning of Article 12. Therefore, it being a State Hotel, the provisions of Section 1 (4) are not attracted so as to extend the applicability of the Act of 1948 to the employees of the said establishment, therefore, the contribution demanded from the employees to be deducted from the salary of the employees of the said establishment is not warranted. Apart from raising preliminary objection that the basic notification issued by the Union of India dated 23. 12. 96 has not been challenged by the petitioner which is the foundation for issuing the impugned notification by the Management and without making U. O. I. as a party respondent, the petition is not maintainable. It has been contended by the respondents that the applicability of the Act has been extended vide notification dated 23. 12. 96 been extended vide notification dated 23. 12. 96 amending the provisions of the Act and, therefore, it is not entitled to any relief. It was also contended that the determination of question of applicability of the Act to any particular establishment depends upon determination of basic facts which could be done by the proper forum under the Industrial Disputes Act and not by resorting to extraordinary jurisdiction under Article 226 of the Constitution of India. The factum of I. T. D. C. being on instrumentality of the State was also denied. The plea of the respondents found favour of the learned Single Judge and the Court held that if the applications for exemption or for determination of the applicability of the Act to the establishment in question is made before the appropriate government or Employees Insurance court, it would take decision thereon but as the question depends upon determination of the certain issues of the fact, to make a reference to the Industrial Tribunal/labour Court, the court refused to exercise the extraordinary jurisdiction to determine the controversy by taking evidence and adjudicate the same as the court of original jurisdiction. Considering the fact that during the pendency of the writ petition, the petitioner was allowed not to pay the contribution under the interim orders of this Court, which has not been deducted from their salary, the Court directed that the same should not be realised now because they were not availing the facility of E. S. I. during pendency of the writ petition. Aggrieved with the aforesaid decision, two appeals have been filed. Appeal No. 742/1999 has been preferred by the Employees' union and the appeal No. 1005/1999 is by the Employees State Insurance Corporation.
(3.) THE Corporation's appeal is to the extent that the learned Single Judge, has directed to consider the waiver of realisation of contribution of the period during which the interim order passed by this Court has remained operative whereas the appeal by the employees' Union is on the merit of issue as noticed by us above. In the first instance, learned counsel contended that there is no forum for adjudication of the dispute as to the applicability of the dispute as to the applicability of the Act to the establishment, therefore, there is no alternate remedy available under which this question can be decided and, therefore, the order under appeal cannot be sustained. There being no alternate remedy, the controversy ought to have been adjudicated by the learned Single Judge. This contention does not stand the test of scrutiny. Under the scheme of the Act of 1948, Chapter VI specifically deals with the adjudication of the disputes and claims. Section 74 envisages establishment of Employees Insurance Courts for resolution of the disputes arising under the Act. Sec. 75 of the Act enlist the matters to be decided by the Employees Insurance Court. Under Sec. 75 (1) (a), the question where any person is liable to pay the employee's contribution is raised, it is a matter to be decided by the Employees Insurance Court. Under Sec. 75 (1) (g), which is like a residuary clause invest the Insurance Court to decide any dispute between the principal employer and the Corporation or between a principal employer and immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act or any other matter required to be or which may be decided by the Employees Insurance Court under this Act. Sub-sec. 2b requires that if any dispute is raised by a principal employer against a Corporation in respect of any contribution or any other dues, he can raise such dispute only on depositing with the Court 50% of the amount as due from him as claimed by the Corporation. ;