Back
2016 Supreme(Bom) 931
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, G. S. KULKARNI, JJ.
Employees State Insurance Corporation - Petitioner
Vs.
State of Maharashtra - Respondents
W.P. No. 4531 of 2014
Decided On : 02-08-2016
For the Petitioner: Mr. Shailesh S. Pathak
For the Respondent: Mr. V.N. Sagare, AGP, Mr. A.R. Belge I/by Mr. N. A. Kulkarni
Delay should not be the sole reason to dismiss a writ petition, but the court should consider the facts and circumstances, conduct of the parties, and the nature of the claim before entertaining a delayed writ petition.
Headnote:
Notification - Challenge to Exemption Notification - The court dismissed the writ petition challenging the exemption notification dated 23.10.2007, citing delay and lack of grounds for condonation of delay.
Fact of the Case:
The Petitioner, a State Corporation, filed a writ petition challenging a notification dated 23.10.2007 after an order was passed by the ESI Court partially allowing the application filed by the Respondent.
Finding of the Court:
The court found that the challenge to the notification at a late stage was difficult to accept, citing settled law that delay should not be the reason to dismiss a writ petition, but the court should consider the facts and circumstances before entertaining a delayed writ petition. The court also noted the actual participation of the Petitioner in the proceedings and the availability of statutory remedy, ultimately dismissing the writ petition.
Issues: Challenge to exemption notification, delay in filing the writ petition, participation in proceedings, and availability of statutory remedy.
Ratio Decidendi: The court emphasized that delay should not be the sole reason to dismiss a writ petition, but the facts and circumstances, conduct of the parties, and the nature of the claim should be considered. The court also highlighted the need to exhaust available remedies and the lack of grounds for condonation of delay in this case.
Final Decision: The writ petition challenging the exemption notification was dismissed by the court, and no costs were awarded.
Anoop V. Mohta, J.
The Petitioner/Corporation a State within the meaning of Article 12 of the Constitution of India, has filed the present writ petition thereby challenge is made to Notification dated 23 October 2007 by filing the present Petition on 21.01.2014, and after the order passed by the ESI Court, Pune on Application (ESI) No. 17 of 2006 filed by Respondent No.2. After hearing the parties including the Petitioner and considering the issues so raised about the applicability of the provisions of the Employees State Insurance Act, 1948 (for short, ESI Act) and the subsistence of Notification, the ESI Court held as under :
“1 The Application (ESI) No. 17/2006 is partly allowed.
2. The order passed by the Opponent u/s 45A on 29.7.2005 for the period 5/96 to 3/99 is partly set aside, and it is declared that the applicant is liable to pay E.S.I contribution of Rs.6002/only for the period 5/96 to 4/97, and it is further declared that the applicant is not liable to pay E.S.I. Contribution, in view of the exemption granted from 1.5.1997 onwards, till the said exemption is in existence.
3. The Opponent is directed to refund the amount to the applicant with interest as per rules, within two months from today.
4. No order as to costs.”
2. Admittedly, this order remained in tact as there is no averment of the challenge to the same though statutory remedy was available. However, in this Petition a prayer is made for a stay of the said order dated 11.01.2013.
3. The learned counsel appearing for the Petitioner submitted that this is a case where such exemption retrospectively ought not to have been granted in view of objection dated 22.05.2007. Respondent No.1the State Government, after considering the provisions, including the objections so raised, has decided to grant exemption and issued Notification on 23.10.2007. The challenge to the power of State to grant exemption, in our view, at the instance of the Petitioner, in view of the present facts and circumstances, at this late stage, is difficult to accept. It is settled that in every matter delay should not be the reason to dismiss the writ petition on the said ground. However, it is also settled that the High Court need to consider facts and circumstances and conduct of the parties before entertaining the delayed writ petition so filed. The law in this regard is settled in State of Jammu and Kashmir v. R.K. Zalpuri AIR 2016 SC 3006, whereby the Supreme Court reiterated that the Court should take note of the factual background and must keep in mind the aspect of delay while entertaining the writ petition. The Supreme Court in paras 26, 27 and 28 has observed as under:
“26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ Court.
27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “Deo gratias” “thanks to God”.
28. Another aspect needs to be stated. A writ Court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless noninterference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present.”
4. This is not a case of grave
