NORTH EAST GASES P LTD Vs. EMPLOYEES STATE INSURANCE CORPORATION

JUDGEMENT

(1.) The North East Gases (P) Ltd., the appellant herein, was the petitioner in Civil Rule No. 33487 94. In that [petition, an application had been filed by the Employees State Insurance Corporation, respondent herein, to set aside or modify the order dated 31st August, 1994, passed by the learned Single Judge in Civil Rule No. 3348/ 94, by which the learned Single Judge directed the Employees State Insurance Corporation to follow the procedures as contained under Sections 44 and 45 of the Employees State Insurance Act, 1948, hereinafter referred to as the Act, before any order was passed under Section 45-A of the Act. The learned Single Judge after hearing the learned counsel on both the sides, by another order made on 1.6.95, held as follows: "In view of the provision of Section 75 (i) (g) and the law laid down by the Apex Court filing & writ petition before this Court is misplaced. The order dated 31.8.94 passed by this Court is therefore, set aside. The party aggrieved is directed to approach the ESI Court in terms of Section 75 (i) (g) of the Act." Thus the application preserved by the Employees State Insurance Corporation, the respondent, was allowed. Being aggrieved by this order, the North East Gases Pvt Ltd. has come up before this Court in this writ appeal challenging the correctness and legality of that order of learned Single Judge.

(2.) We have heard the learned counsel for the appellant who having taken us through the grounds of appeal, the order of the learned Single Judge under appeal and the other documents produced, firstly urged : That though there is no dlispute that according to the provisions of Section 75 of the Act, in the event of ever dispute between the employer and employees in respect of the rate of contribution payable by the employer in respect of the employees, one can approach the Employees' Insurance Court to resolve that dispute, however, by virtue of the provisions of Section 45-A of the Act which deals with determination of contributions in certain cases, the Apex Court had the occasion to deal with the power conferred upon the competent authority under Section 45-A of the Act. He has further pointed out that the power conferred upon the State Insurance Corporation having been delegated to the Director General, the same cannot be sub-delegated to some other person. This question of law has been clearly considered and the law has been declared by the Supreme Court against the Insurance Corporation, therefore, no useful purpose will be served in going to the Employees' Insurance Court as the order made by the authority in the instant case not being proper the order is ab initio void and is without jurisdiction. Therefore, it is submitted that the order of the learned Single Judge directing the appellant to go to the Employees' Insurance Court will not serve any purpose.

(3.) Contrary to this argument of the learned counsel for the appellant, the learned counsel for the respondent/Employees State Insurance Corporation argued on two points : (1) Though it is true that the law is declared by the Supreme Court in connection with Section 45-A of the Act with regard to delegation of the power which is under the General Clauses Act, but still the law enunciated by the Supreme Court in the Sahni Silk Mills (P) Ltd & Another-Vs-ESI Corporation, reported in (1994)5 SCC 346 in paragraph 16, is in contravention of the Statute. (2) Presuming for the purpose of argument that this Court holds in the instant case that the order of the competent authority passed in the instant case is by virtue of the delegated power and that the same cannot be sustained in law, still with a view to maintain equity, referring to the provisions of Section 85 of the Act, this Court need not interfere with the order of the learned Single Judge. To say so, the learned counsel for the respondents, placed reliance on the decision of the Supreme Court in Employees' State Insurance Corporation- Vs-F. Fibre Bangalore (P) Ltd. as reported in (1997)1 SCC 625. We will refer to this decision later on.