The Indian Steel And Wire Products ... vs The State Of Jharkhand & Ors
2022 Latest Caselaw 1412 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Writ Jurisdiction)
                     W.P.(C) No. 3091 of 2012
                               ........

The Indian Steel and Wire Products Limited .... ..... Petitioner Versus The State of Jharkhand & Ors. .... ..... Respondents With W.P.(C) No. 6330 of 2015 ........

M/s Bharat Caterers .... ..... Petitioner Versus The State of Jharkhand & Ors. .... ..... Respondents With W.P.(C) No. 6957 of 2016 ........

M/s The Tata Pigments Limited .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents With W.P.(C) No. 6961 of 2016 ........

M/s The Tata Pigments Limited .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents With W.P.(L) No. 2199 of 2021 ........

TML Drivelines Limited (now Tata Motors Limited) ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents With W.P.(L) No. 2536 of 2021 ........

Tata Steel Limited (Earlier Known as Tata Iron and Steel Company Limited) .... ..... Petitioner Versus State of Jharkhand & Others .... ..... Respondents With W.P.(L) No. 3314 of 2021 ........

M/S Indian Steel & Wire Products Limited .... ..... Petitioner Versus The State of Jharkhand & Ors. .... ..... Respondents

With W.P.(L) No. 3315 of 2021 ........

M/S JEMCO Ltd (A Division of I.S.W.P.), Jamshedpur .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents

With W.P.(L) No. 3331 of 2021 ........

Tata Steel Utilities and Infrastructure Services Limited .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents With W.P.(L) No. 3900 of 2021 ........

M/S. Tata Pigments Limited .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents With W.P.(L) No. 4287 of 2021 ........

M/S. Tata Pigments Limited .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents With W.P.(L) No. 4288 of 2021 ........

Tata Steel Utilities and Infrastructure Services Limited .... ..... Petitioner Versus The State of Jharkhand & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............

For the Petitioner(s) : Mr. Manish Kumar, Advocate (in W.P.(C) No.3091/12, W.P.(L) No.3314/21, W.P.(L) No.3315/21) For the Petitioner(s) : Mr. Indrajit Sinha, Advocate (in W.P.(C) No. 6957/16,W.P.(C) No.6961/16, W.P.(L) No.2536/21, W.P.(L) No.3331/21, W.P.(L) No.3900/21, W.P.(L) No.4287/21, W.P.(L) No.4288/21) For the petitioner(s) : Mr. V. P. Singh, Sr. Advocate Mr. A. K. Das, Advocate Mrs. Rashmi Kumar, Advocate.

(in W.P.(C) No.6330/15 and W.P.(L) No.2199/2021) For the Respondents/State : Mr. Ravi Prakash Mishra, A.C. to Mr. Sachin Kumar, AAG-II (in W.P.(L) No.3314/21) For the Respondents/State : Mr. Gaurang Jajodia, A.C. to S.C.-I (in W.P.(C) No.3091/12) For the Respondents/State : Mr. Ankit Kumar, A.C. to Sr. S.C.-II (in W.P.(L) No.2199/21) For the Respondents/State : Mr. Ashok Kumar Yadav G.A.-I (in W.P.(C) No.6961/16, W.P.(L) No.3315/21) For the Respondent(s)/ESI : Mr. Ashutosh Anand, Advocate ..........

06/08.04.2022.

Heard, learned counsel for the parties. These writ petitions are listed and some of the writ petitions pending before this Court, vide W.P.(C) No.1173/2022 and W.P.(C) No.1189/2022 are also pending and shall be taken together, but before a order is passed few questions are coming up before this Court in most of the writ petitions.

If a factory or an establishment or class of factory or establishment in any specified area files an application for exemption of the operation of the Employees State of Insurance Act, 1948 within a period of three months before the expiry of the exemption period, the application has to be filed three months prior to the said period and the said application has to be disposed of within two months, meaning thereby before commencement period, the application must be disposed of by the State authority.

In some of the cases, this Court has found that this application has not been adjudicated by the state authorities within two months of their filing, rather after expiry of the period of exemption, such petitions are rejected after years, when such facility has been availed by the workers from the concerned company, such applications are being disposed of, rejecting their claim for exemptions, meaning thereby;

(i) On the one hand the factory or establishment or class of factory or establishment have already served the employees and thereafter, also they are saddled with the financial burden to be deposited before the ESI authorities.

(ii) In some cases the factories are exempted or other establishment, those are being noticed by the ESI authorities and the establishment has never been notified by the State Government with concurrence of Central Government to bring such establishment under the purview of the ESI Act, thus such notice are without jurisdiction in view of Section 1(5) of the Act.

(iii) In some of cases, this Court has found that even if exemption application is filed by the factory or establishment or class of factory or establishment before the State Government without impleading the registered union of the factory or the establishment as a party, who is the

beneficiary of such scheme from whom this Act has been enacted by the legislatures and without issuing notice by the State authority also or impleading as a party, and without having their opinion with regard to the facility providing by the factory or the establishment, the State authority is passing an order, on their standing without taking notice of the benefits of the workmen, as to whether the workmen are satisfied with their facility provided by the company or they want to avail the facility of ESI Act in general, of course that cannot be on the basis of the individual workers.

(iv) In some of the cases, this Court as well as Co-ordinate Bench of this Court has found that these applications are kept pending for years, sometime these are being heard by the Secretary, the Labour Department and orders are not being passed by the same Secretary, rather those are being passed by the Joint Secretary, who is junior and sometime, after transfer of the Secretary, by the new Secretary, who came on such post subsequently and without hearing the parties, which is a completely mockery of quashing judicial proceeding, as it has been held by the Apex Court in the case of Gullapalli Nageshwara Rao & Others Vs. Andhra Pradesh State Road Transport Corporation & Another reported in AIR 1959 SC (1) 308. Para-31 of the said judgment reads as follows:

"31. The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party- appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure."

Let these matters appear on 26.04.2022 along with W.P.(C) No.1173/2022 and W.P.(C) No.1189/2022.

The Bar is informed by this Court, that writ petitions pending before this Court out of the roster of this Court with regard to the order

passed under Section 87 of the ESI Act shall be listed on 26.04.2022 along with these matters.

The parties are directed to prepare their short notes and file mentioning slip before the Court Master or before the Joint Registrar (L&C) for listing these cases as per roster of this Court.

The Joint Registrar(L&C) is also directed to publish the same in the cause list with regard to Court No.19 that Bar is hereby informed that the writ petition arising out of order passed under Section 87 of the ESI Act shall be listed on 26.04.2022. They may file slip before the Joint Registrar (L&C) with regard to the writ petition pending before roster of Court No.19.

The affidavit shall be filed by State authority or by the ESI authority in one matter, which shall be treated for all the matters, however, copy must be served upon learned counsel for the other sides before filing the same.

The petitioner(s) shall also file an affidavit, that how many recognized union are there in their factory or establishment and what is there view with regard to the service provided by the company or they want to avail the facility of the ESI Act.

In the meantime, interim order granted earlier in W.P.(C) No.6961/2016 vide order dated 14.12.2016, in W.P.(L) No.2536/2021 vide order dated 10.08.2021 and in W.P.(L) No.2199/ 2021 vide order dated 24.07.2021 shall continue.

(Kailash Prasad Deo, J.) Jay/