2006 Supreme(SC) 265

2006(3) Supreme 37
Supreme Court of India
(From Rajasthan High Court)
Arijit Pasayat and Tarun Chatterjee, JJ.
Employees State Insurance Corporation —Appellant
versus
All India I.T.D.C. Employees Union and Ors. —Respondents
Civil Appeal No. 313/2005
With
C.A. No. 315/2005
Decided on 24-3-2006
Counsel for the Parties :
For the Appellant : Mr. C.S. Rajan, Sr. Advocate, V.J. Francis, Anupam Mishra, C.M. Jayakumar, Jenis, Advocates.
For the Respondents : Mr. Parveen Jain, Sudhir Nandrajog, Abhishek Agarwal, Ms. Shweta Chadha, Ms. Meha Kiran, Ms. Nina Gupta, Ms. Bina Gupta, Rakesh K. Khanna, Dr. Rashmi Khanna, Surya Kant, Advocates.

Headnote:Employees’ State Insurance (Central) Rules, 1950—Notification where by employees who were drawing monthly salary of Rs. 6500 (which limit was earlier Rs. 3000) were required to make contribution at enhanced rate of Rs. 1.75% in place of earlier figure of 1.5% and employers contribution was increased from 4% to 4.75%—Respondent union challenged notification by writ—Single Judge found writ petition not maintainable in view of alternative remedy available under Industrial Disputes Act—However in view of stay order where by notification was stayed, appellant was directed "to consider" that since petitioners had not availed facility of ESI, appellant should waive the realisation of contribution for that period and necessary order in that regard could be issued by appellant—Appeal by both sides were disposed of by Division Bench—Appeal—Contention that High Court’s order virtually meant Notification to operate prospectively and such direction could not be given—While disposing of writ petitions with a direction "to consider", there is need for High Court to make direction clear and specific—Corporation to give opportunity to concerned parties so that after consideration necessary order could be passed.

       Held : We may, in this context, examine the significance and meaning of a direction given by the Court to "consider" a case. When a court directs an authority to `consider’, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner(s) in the writ petitions. Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to ‘consider’ and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself. The High Courts also direct authorities to ‘consider’, in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of power of judicial review, directs the authority to ‘consider’ and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs ‘consideration’ without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct to authority to ‘consider’ afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. (Paras 13 to 15)

       We may also note that sometimes the High Courts dispose of matter merely with a direction to the authority to ‘consider’ the matter without examining the issue raised even though the facts necessary to decide the correctness of the order are available. Neither pressure of work nor the complexity of the issue can be a reason for the Court, to avoid deciding the issue which requires to be decided, and disposing of the matter with a direction to ‘consider’ the matter afresh. (Para 17)

       Therefore, while disposing of writ petitions with a direction to ‘consider’, there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. (Para 19)

       It is true as contended by learned counsel for the Corporation that the use of the expression "should" gives a scope for entertaining a doubt that there was a positive direction. It is, therefore, necessary to clarify that what learned Single Judge in the direction said was only consideration by the Corporation and there was no positive direction. In that view of the matter the Corporation shall now give opportunity to the concerned parties i.e. respondents 1, 2 and 3 in each case to present their respective stand before the Corporation so that after consideration necessary order can be passed in accordance with law. (Para 21)