Bharat Aluminium Majdoor Sangh ... vs Bharat Aluminium Company Ltd
2021 Latest Caselaw 1995 Chatt

                                    1

                                                                     NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                              WPL No. 20 of 2020

      Bharat Aluminium Majdoor Sangh (INTUC) through Working
      President, (Sanjay Kumar Singh S/o Shri R. P. Singh Aged Bout 50
      Years) Putka Pahar Road, BALCO Township, Thana BALCO, District
      Korba Chhattisgarh.                                 --- Petitioner

                                 Versus

   1. Bharat Aluminium Company Ltd. Through its Authorized Signatory
      Post Balco Nagar, Police Station Balco, Korba, District Korba
      Chhattisgarh.

   2. Regional Director Employees State Insurance Corporation, Regional
      Office, 107, Ramnagar, Road, Near Jagannath Chowk, Kota, Raipur
      District Raipur Chhattisgarh 492010.

   3. Deputy Director Employees State Insurance Corporation, Regional
      Office, 107, Ramnagar, Road, Near Jagannath Chowk, Kota, Raipur
      District Raipur Chhattisgarh 492010.          ---- Respondents

For the Petitioner : Mr. S. P. Kale Advocate.

For Respondent no.1 : Mr. Abhishek Sinha, Sr. Advocate with Aditya pandey, Mr. D.L.

Dewangan and Mr. Samrath Singh Marhas, Advocate

Hon'ble Shri Justice Goutam Bhaduri

Order on Board

25 .08.2021

1. The instant petition is against the order dated 03.02.2020

whereby the application filed by the petitioner to implead

The Bharat Aluminium Mazdoor Sangh (affiliated with

INTUC) through its working President as party/respondent in

a proceeding before ESI Court was rejected.

2. The facts of the case are that pursuant to the orders dated

18.05.2012 and 25.07.2012 whereby the employer Bharat

Aluminium Company Ltd., was directed to deposit Rs.

45,53,68,376/- with the ESI Corporation towards contribution

for the period from October 2007 to 2010, an application was

filed under section 77 of The Employees State Insurance Act,

1948 challenging the said orders before the Employees State

Insurance Court, Korba. During the pendency of the said

dispute before the ESI Court, an application was initially filed

by the petitioner-Union to implead the working president of

Bharat Aluminium Mazdoor Sangh affiliated by INTUC

(Annexure P-4) as a party. The said application was rejected

by the ESI Court on 14.05.2019 with the following

observations:

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esa la;ksftr fd;s tkus dk vkosnu fnukad 26-08-2017** Lohdkj ;ksX; ugha gksus ls fujLr fd;k tkrk gSA izdj.k okLrs vkosnd lk{; gsrq fnukad 27-07-2019

3. The said order was subject of challenge by one Sanjay Kumar

Singh claiming to be the working President of Petitioner

Union named and styled as Bharat Aluminium Majdoor Sangh

affiliated by INTUC. However, the said petition was

dismissed as withdrawn by order dated 23.03.2019, which

reads as under:

" 23.10.2019 Mr. S.P. Kale, counsel for the petitioner. After arguing for some time, learned counsel for the petitioner prays for withdrawal of the petition with liberty to file a well constituted petition.

As prayed, this petition stands disposed of with such liberty."

4. Thereafter, MCC No.1071 of 2019 was filed for modification

of the order dated 23.10.2019 and this court on 6.12.2019

has passed the following order in the said MCC :

"06.12.2019

1. The present MCC has been filed for modification of the order dated 23.10.2019 passed in WPL No.203 of 2019.

2. It is contended that WPL No.203 of 2019 was dismissed as withdrawn. Wherein, the petitioner had prayed for liberty to file a better constituted petition before the Labour Court with impleadment of the proper party. However, in the order passed in WPL No.203 of 2019 on 23.10.2019 has granted liberty to file a well constituted petition. Therefore, it is prayed that the said order may be modified to the extent that with liberty to file a better constituted petition before the Labour Court with the impleadment of proper party.

3. In view of the above, without any observation on merits of the case, the order dated 23.10.2019 passed in WPL No.203 of 2019 is modified to the extent

that the petitioner is at liberty to file a duly constituted petition before the Labour Court with the impleadment of the proper party".

4. With the aforesaid observation, the MCC stands disposed off."

5. Subsequent to the order dated 06.12.2019, an application for

impleadment was filed by the petitioner Bharat Aluminium

Majdoor Sangh (INTUC) vide Annexure P-7 before the Court

below which was rejected by the impugned order dated

03.02.2020. Hence this petition.

6. Learned counsel for the petitioner would submit that initially

after dismissal of the application for impleadment by the ESI

Court, the order was subject of challenge in WPL No. 203/

2019 filed by Sanjay Kumar Singh before this court and the

said petition was dismissed as withdrawn on 23.10.2019

since it was not preferred by the Union and according to the

modification order, a fresh application was filed by the

petitioner-Union to be impleaded as party/respondent. He

refers to the case law reiterated in Employees State

Insurance Corporation Vs. Bhakra Beas Management

Board (Civil Appeal No.8335/2004) and would submit

that the employees/workers would always be a necessary

party as it is the employees who are the affected persons.

Therefore, the rejection of the application of petitioner-Union

to implead them as party is completely illegal and requires to

be set aside.

7. Per contra, learned counsel for respondent no.1 would

submit that on earlier occasion on 14.05.2019 the application

preferred by the Union was rejected and the said order has

never been set aside, therefore, it is only to protract the

proceedings by intervening the issue, the petitioner has

chosen to file fresh application at the fag end especially

when the case is already fixed for final arguments on

28.8.2021. As such he contends that when the proceeding is

pending since 2012, at the fag end, the petitioner cannot be

allowed to jump in.

8. No representation is made on behalf of respondents 2 & 3.

However, they have stated in their reply that they have no

objection if the petitioner Union is added as a party to the

petition provided that they would represent all the workers

engaged with respondent no.1.

9. Heard learned counsel for the parties. A perusal of the record

would show that the demand notices issued by the ESI

Corporation was of the year 2012 which was challenged

before the ESI Court in the year 2012 and the proceedings

are at the fag end. The petitioner Union who claims to be

representative of the workers initially filed an application in

the year 2019 which was rejected on 14.05.2019 on the

ground that no document has been placed to show that they

are representatives of the union. The said order of dismissal

of application to implead was challenged before this Court by

Sanjay Kumar Singh claiming to be the Working President of

Bharat Alluminium Mazdoor Sangh (INTUC) but after hearing

the arguments the same was dismissed as withdrawn as it

was not preferred by the Union. Thereafter a modification

order was passed on 06.12.2019 by this Court wherein

liberty was given to the Petitioner-Union to file a duly

constituted petition before the Labour Court seeking

impleadment of proper party. In consequence thereof, an

application seems to have been filed by the Bharat

Aluminium Mazdoor Sangh (INTUC) vide Annexure P-7. A

perusal of the initial application filed by the respondent

Bharat Aluminium Company Ltd would show that no workers

union was impleaded in such application.

10. The Supreme Court in case of Fertilizer & Chemicals

Tranvancore Ltd. Vs. Regional Director, ESIC &

others, 2009 (11) SCALE 766 observed that wherever

any dispute of like nature was challenged by the employer

u/s 75 of the Act, the employer has not only to implead the

ESIC but has also to implead at least some of the workers

concerned in a representative capacity (if there are a large

number of workers) or the trade-union as the principal

beneficiary of the Act is workmen and not the ESI. The

relevant part of the judgment is quoted below :

"11. In our opinion, wherever any petition is filed by an employer under section 75 of the Act, the employer has not only to implead the ESIC but has also to implead at least some of the workers concerned (in a representative capacity if there are a large number of workers) or the trade union representing the said workers. If that is not done, and a decision is given in favour of the employer, the same will be in violation of the rules of natural justice. After all, the real concerned parties in labour matters are the employer and the workers. TheESI Corporation will not be in any way affected if the demand notice sent by it under Section 45A/45B is quashed.

12. It must be remembered that the Act has been enacted for the benefit of the workers to give them medical benefits, which have been mentioned in section 46 of the Act. Hence the principal beneficiary of the Act is the workmen and

not the ESI Corporation. The ESI Corporation is only the agency to implement and carry out the object of the Act and it has nothing to lose if the decision of the Employees Insurance Court is given in favour of the employer. It is only the workmen who have to lose if a decision is given in favour of the employer. Hence, the workmen (or at least some of them in a representative capacity, or their trade union) have to be necessarily made a party/parties because the Act is a labour legislation made for the benefit of the workmen".

11. Having considered the aforesaid proposition, since the

primary challenge by the Management do not disclose that

any Union in representative capacity was made a party, the

application to implead the petitioner is allowed. The Orders

of Labour Court dated 3.02.2020 and 14.05.2019 are set

aside. It is however, made clear that since the proceedings

are pending since 2012 and already the case is fixed for final

hearing, there shall not be any de novo proceeding again

and the petitioner may advance their arguments during final

hearing which is said to be fixed on 28.8.2021.

12. With such observation, this writ petition stands disposed off.

Sd/-

GOUTAM BHADURI JUDGE

Rao