Madras High Court
The Director General vs The Management on 28 July, 2021
W.A.No.4270 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.4270 of 2019
1.The Director General,
Employees State Insurance Corporation,
"Panchdeep Bhavan", C.T.G.Road,
New Delhi 110 002.
2.The Regional Director,
Regional Office,
The Employees State Insurance Corporation,
No.143, Sterling Road,
Nungambakkam, Chennai - 34.
3.The Joint Director,
Sub Regional Office,
Employees State Insurance Corporation,
IV Main Road, K.K.Nagar, Madurai - 625 020. .. Appellants
Vs
1.The Management
Bhuvaneswari Textile (P) Ltd.,
Thadicombu 624 709,
Dindigul.
2.National Textile Workers Union
Branch Bhuvaneswari Textiles (P) Ltd.,
Thadicombu 624 709, Dindigul,
Rep. by its Branch Secretary,
C.Sekar. .. Respondents
Page 1 of 8
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
Appeal filed under Clause 15 of Letters Patent against the order
dated 16.02.2011 made in M.P.No.1 of 2011 in W.P.No.24874 of 2007.
For Appellants : Mr.S.Ravindran, Senior Counsel
for Ms.S.Jayakumari
For Respondents : Mr.P.R.Raman, Senior Counsel
for Mr.M.Elanchezhian for R1
No appearance for R2
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
This appeal has been preferred by the appellants against
allowing of the clarification petition filed in the year 2011 in M.P.No.1
of 2011 in a writ petition filed in W.P.No.24874 of 2007, which was
dismissed on 03.10.2007.
2. W.P.No.24874 of 2007 has been filed by the second
respondent being the Union of the first respondent. The prayer in the
writ petition is for a writ of mandamus forbearing the appellants from
implementing the ESI Scheme until they discharge their statutory
duties of establishing and providing facilities and amenities. Suffice it
to state that the Scheme has come into vogue with effect from
01.09.2001. The learned Single Judge taking note of the fact that the
aforesaid writ petition filed by the second respondent is engineered by
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
the first respondent was pleased to dismissed it by the order dated
03.10.2007. The following is the operative portion of the order
passed:-
11. Furthermore, as could be seen from the various
proceedings in this Court as well as the Madurai Bench of the
Madras High Court, every attempt has been made to stall the
implementation of the scheme. Several Writ Petitions have been
filed claiming various reliefs. But, the real intention seems to be
to stall the implementation of the scheme. It will be useful to
refer the order made in W.P.No.4721 of 2004 which was filed
before the Madurai Bench of the Madras High Court. The
petitioner therein-Centrwin Textile Mills Employees' Union filed
Writ Petition for prohibition restraining the first and second
respondents therein from implementing the E.S.I. Scheme in the
third respondent - Mills therein till all the statutory obligations are
fulfilled by them in so far as the employees of the third
respondent in that Writ Petition is concerned. By an order dated
22.06.2007, the Madurai Bench of Madras High Court dismissed
the said Writ Petition and the order is reproduced hereunder:-
"This Writ Petition has been filed by a trade Union
seeking for restraining the respondents from
implementing the E.S.I.Act to the industry, in which
their members are working till all the statutory
benefits are given.
2.It must be stated that by the third respondent
herein in which the petitioner/Union is functioning,
had filed a Writ Petition being W.P.No.74 of 2004 and
the said Writ Petition filed for an identical relief came
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
to be dismissed by this Court by order dated
10.12.2004. In the light of the same, this Writ
Petition is also dismissed. No costs. Consequently,
injunction granted is vacated and connected W.P.MP
(MD)No.4699 of 2004 is closed."
12. The narration of the above facts will amply prove
that the intention of the petitioner is only to stall the
implementation of the scheme by filing Writ Petition
after Writ Petition which has to be curtailed.
13. In the result, I am not inclined to grant the relief
that has been sought for by the petitioner in the
present Writ Petition and the Writ Petition is therefore
liable to be dismissed and accordingly, dismissed.
Consequently, M.P.No.1 of 2007 is closed. No costs.
3. The writ petition as aforesaid was dismissed 03.10.2007.
Thereafter, the first respondent before us filed a clarification petition
on 05.09.2011 in M.P.No.1 of 2011. This was ordered by the learned
Single Judge stating that the implementation of the Scheme would
start after the dismissal of the writ petition. Challenging the same, the
present writ appeal has been filed.
4. Learned senior counsel appearing for the appellants submitted
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
that the order of the learned Single Judge is required to be interfered
with. The reliance made on the judgment of the Apex Court in a
different case cannot be made applicable to the case on hand. The
second respondent has not come up on appeal. There is no law which
mandates the implementation after the disposal of the writ petition.
Therefore, the order of the learned Single Judge requires interference.
5. Learned senior counsel appearing for the first respondent
submitted that what is deferred is only the implementation of the
Scheme and the learned Single Judge having exercised the discretion,
the appeal deserves to be dismissed.
6. We find force in the submission made by the learned senior
counsel appearing for the appellants. The implementation is pursuant
to a Scheme which has got a statutory backing. The Scheme has been
upheld. Having held that the very writ petition filed by the second
respondent is not maintainable, on an application made by the first
respondent, the learned Single Judge ought not to have passed the
order relying upon the order passed by the Apex Court which does not
have any application to the case on hand.
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
7. We would only observe that the learned Single Judge has
committed an error in entertaining the application and allowing it after
holding that the writ petition itself is mis-conceived and initiated at
the instance of the first respondent by the second respondent.
Admittedly, the second respondent has not filed any application for
clarification. The clarification is only by way of Review. The learned
Single Judge without even reviewing the finding on the maintainability
of the writ petition has granted the relief.
8. In such view of the matter, we are inclined to set aside the
order of the learned Single Judge. However, we make it clear that the
allowing the writ appeal by us by setting aside the order of the
learned single Judge will not stand in the way of the first respondent
approaching the appellants for appropriate relief. Liberty is given to do
so within a period of four weeks from the date of receipt of a copy of
this judgment. We would observe that the appellants are expected to
look into the said representation without being influenced either by the
order passed in the writ petition or by us in the writ appeal.
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
9. With the above observation, the writ appeal stands allowed.
No costs.
(M.M.S., J.) (R.N.M., J.)
28.07.2021
Index:Yes/No
mmi/ssm
Note: Issue copy of the order on 04.08.2021
https://www.mhc.tn.gov.in/judis/
W.A.No.4270 of 2019
M.M.SUNDRESH, J.
and
R.N.MANJULA,J.
mmi
W.A.No.4270 of 2019
28.07.2021
https://www.mhc.tn.gov.in/judis/
