Employees State Insurance ... vs M/S. Sheesh Mahal Restaurant
2014 Latest Caselaw 1289 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.146/2012

%                                                   10th March, 2014

EMPLOYEES STATE INSURANCE CORPORATION ..... Appellant
                  Through: Mr. K.P. Mavi, Advocate.

                          Versus
M/S. SHEESH MAHAL RESTAURANT                              ..... Respondent
                  Through: None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           No one appears for the respondent in spite of service.

2.           This first appeal is filed under Section 82 of the Employees'

State Insurance Act, 1948 (hereinafter referred to as 'the Act') against the

impugned order of the ESI Court dated 25.2.2012 by which the ESI Court, at

the stage of final arguments, has remanded the matter to the competent

authority under the Act for fresh adjudication. This is stated to have been

done after 15 years of pendency of the case, which is an original proceeding,

and which was initiated by the respondent herein before the ESI Court.

3.           Learned counsel for the appellant argues that proceedings

FAO No.146/2012                                                 Page 1 of 3
 which are initiated under Section 75 of the Act are in the nature of original

proceedings inasmuch as all issues of facts and law are urged by the

respective parties and the Court thereafter passes a final judgment including

on the issue of service of notice or coverage or any other aspect touching the

merits of the matter. It is argued that the ESI Court by the impugned order

has adopted a very strange procedure and which is unknown to law of

remanding a matter of an original proceeding at the stage of final arguments

and which defeats the whole purpose of adjudication, and that too after 15

years of trial before the ESI Court.

4.           I agree with the arguments urged on behalf of the appellant

inasmuch as proceedings under Section 75 are original proceedings and

before remanding of a matter and which is ordinarily done only when it is

proved that the assessing authority must decide the issue of assessment

afresh such as for the reason of non-service of notice, and otherwise

adjudication has to be on merits by the ESI Court. I also agree that the

remand of matters at the stage of final arguments and that too after 15 years

of trial is wholly impermissible in law and amounts to gross perversity by

the ESI Court.

5.           In view of the above, the appeal is allowed. The impugned

order dated 25.2.2012 is set aside and the ESI Court will now decide the
FAO No.146/2012                                                 Page 2 of 3
 case filed by the respondent herein under Section 75 of the Act on merits in

accordance with law and from the stage of final arguments being the stage

the case was at the time of passing of the impugned order dated 25.2.2012.

Parties are left to bear their own costs.




MARCH 10, 2014                              VALMIKI J. MEHTA, J.

Ne