Rule. First respondent did not make any arrangement for his appearance, although served. Since, he was appearing in person, this Court had passed an order appointing Mr.R.D.Bhatt as Amicus Curaie to assist the Court. With his consent so also of Mr.Mehta, learned Counsel appearing for respondent - Employees State Insurance Corporation (ESIC), Ms.Joil for respondent No.3, petition is taken up for hearing and final disposal.

2. Petitioner is a company incorporated and registered under the Companies Act, 1956. It has a factory at Dombivali (East), where the activities of manufacturing chemicals are undertaken by it. For these activities, it engages direct employees as well as through Contractors.

3. Respondent No.3 is father of one Narayan Vitthal Bhoir (deceased), who was a direct employee of petitioner. He was taken up in employment and worked as an Operator at the factory since 1st April 2001. Petitioner has been registered under the provisions of Employees State Insurance Act, 1948 (ESI Act for short). It has covered the petitioner on and with effect from 10th September 1991 and has been allotted Employer’s Code No.31-25401-90.

4. There was a fire at the factory at Dombivali and the deceased sustained injuries on 6th August 2001 and expired on 10th August 2001.

5. It is the case of petitioner that the deceased being an employee at the factory, is required to be covered under the ESI Act. The deceased was so covered and his contribution for the period 1st April 2001 to 30th September 2001 was duly paid along with other employees. It is the case of petitioner that Return of contribution for aforesaid period was filed with ESIC on 4th October 2001.

6. It is further not in dispute that the dependents of the deceased approached the petitioner for compensation on account of the death of the deceased during the course of his employment. Since the compensation was not paid and the dependents were also not informed with regard to follow up action, they were constrained to apply to the Commissioner for Workmen’s Compensation (Commissioner for short) by filing an application being Application (WCA) No.80/B-18/2002.

7. Upon receipt of the copy of the said application, petitioner filed its written statement and inter alia raised an issue of jurisdiction of the Commissioner to entertain and adjudicate the claim. According to the petitioner, deceased was covered under the provisions of ESI Act. Considering the provisions of the ESI Act and more particularly, section 53 thereof, the bar created thereunder would operate. Consequently, the application cannot be entertained and tried, it being patently not maintainable.

8. To the application filed before the Commissioner, viz., 9th Labour Court, Mumbai, an Insurer viz., New India Assurance Company Ltd. was impleaded as Opposite Party. It also took up the plea that the claim of dependents is not maintainable.

9. It appears that an order was passed by 9th Labour Court framing issue as to whether the petitioner proves that the deceased employee was member of ESI Scheme or not and directed the parties to lead evidence. In other words, the issue of maintainability was directed to be decided as a preliminary issue. It appears that an order was passed by 9th Labour Court holding that the application of dependents was maintainable. Aggrieved by the said order, a writ petition was filed in this Court and this Court directed that the preliminary issue be re-considered and a finding rendered thereon on merits and in accordance with law. That is how the 9th Labour Court took up the preliminary issue for consideration afresh. It permitted parties to lead evidence. After the evidence was led, it heard oral arguments and by the order dated 19th July 2006 it declared that the deceased is not a member of ESIC and, therefore, the application before it can proceed.

10. Aggrieved by this order and finding on the preliminary issue that the present writ petition under Article 226 of the Constitution o