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2012 (3) GCD 1913 (Guj)
Hon’ble Mr. Justice Rajesh H. Shukla
Rajrani Omprakash Shukla & Anr.
Versus
Director Employees’ State Insurance & Ors.
First Appeal No. 3793 of 2011—Decided on 10/04/2012
Employees State Insurance Act, 1948 — Section 76 — Employees State Insurance (General) Regulation, 1950 — Regulation 77 — Deceased workman died while working at M.P. (Indore) — Applicants filed application for Compensation at ES I Court Ahmedabad — Dismissal of application on ground of jurisdiction — Finding that ES I Court at Ahmedabad has no jurisdiction valid but application needed to be returned for presentation in proper Court instead of same being rejected — Court quashed and Set aside impugned order and passed consequential necessary order for return of application for presentation to the Court established under the Act at M.P. (Indore).
Held :
It is evident that the deceased was working in the local area of State of M.P. and the proceedings could be instituted in the Court appointed in respect of that local area at M.P., i.e. Indore. Therefore, the submission made by learned Senior Counsel Shri Patel that since it is a benevolent Act, liberal approach may be adopted, cannot be readily accepted in view of the specific provision in Section 76 of the ESI Act regarding jurisdiction. [Para 10]
The alternate submission made that, in any case the application could not have been rejected, and it ought to have been returned for being presented before the appropriate Court at M.P. (Indore), requires to be accepted. It is well accepted that if the claim application or the petition is presented before the Court or the authority, which does not have the jurisdiction, then it is required to be returned for being presented before the appropriate forum or the court. Therefore, the ESI Court at Ahmedabad having found that it is has no jurisdiction in view of Section 76 of the ESI Act, was not justified in dismissing the application, and it ought to have returned the application instead of rejecting for being presented to the Court at M.P. (Indore), in which it could have been instituted. [Para 11]
Accordingly, the impugned judgment and order passed in ESI Application No. 5 of 2003 dated 23.9.2011 is hereby quashed and set aside. The said application is ordered to be returned to the Applicant by the ESI Court in a sealed cover for being presented to the Court established under the Act at M.P. (Indore) in accordance with law.
[Para 12]
Law Laid Down :
When the language of the statute provides for institution of proceedings in the Court appointed under the Act for every local area is specified there is question of demating from such language even if it is a benevolent Act.
Rajesh H. Shukla, J.—The present First Appeal arises out of the judgment and order passed in ESI Application No. 5 of 2003 by the ESI Court, Ahmedabad dated 23.9.2011, by which the application of the Appellants has been rejected on the ground of jurisdiction.
2. The facts of the case are that the deceased workman Ashokbhai Omprakash Shukla was working with Bata India Limited at Madhya Pradesh (Indore) and he died during the course of treatment at Ahmedabad. Therefore the Appellants, who are the mother and sister, filed an application for compensation under the Employees’ State Insurance Act, 1948 (hereinafter referred to as “the ESI Act”). After considering the material and evidence, as stated in the impugned judgment, the ESI Court at Ahmedabad has rejected the application on the ground of jurisdiction, which is assailed in the present First Appeal on the grounds stated in the application.
3. Heard learned Senior Counsel Shri K.M. Patel appearing with learned Advocate Shri Jigar M. Patel for the Appellants and learned Advocate Shri Hemant S. Shah appearing for Respondent No. 2.
4. Learned Senior Counsel Shri Patel referred to the provisions of Section 76 of the ESI Act which provide for the aspect of jurisdiction, and submitted that it is a benevolent Act, and therefore, liberal interpretation could be made. Learned Senior Counsel Shri Patel has submitted that he had received treatment as per direction, and therefore, the cause of action has arisen in the ESI Court at Ahmedabad. He has also referred to Regulation 77 of the Employees’ State Insurance (General) Regulations, 1950 and submitted that, as stated in this, if the death could be reported to any nearest branch office, the medical benefit under the Act could also be made available in the same way.
5. Alternatively, learned Senior Counsel Shri Patel has submitted that in any case as per the provisions of the Code of Civil Procedure, the application ought not to have been rejected and it ought to have been returned for being presented before the appropriate Court at M.P. (Indore). He therefore submitted that appropriate orders may be passed.
6. Learned Advocate Shri Hemant S. Shah appearing for Respondent No. 2 has submitted that so far as the aspect of jurisdiction is concerned, Section 76 of the ESI Act referred to the local area, and admittedly, at the time of the incident, the deceased was working in the local area situated at M.P., and therefore, ESI Court at M.P. had the jurisdiction and not the ESI Court at Ahmedabad. He therefore submitted that the impugned judgment and order is just and proper.
7. In view of the rival submissions, it is required to be considered whether the present First Appeal can be entertained or not.
8. The first submission with regard to jurisdiction and the submission made by learned Senior Counsel Shri K.M. Patel referring to Section 76 of the ESI Act is required to be considered.
9. The provisions of Section 76 of the ESI Act provide:
“76. Institution of proceedings, etc.—(1) Subject to the provisions of this Act and any rules made by the State Government, all proceedings before the Employees’ Insurance Court shall be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose.”
10. Therefore, it is evident that the proceedings could be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose. Thus, it is evident that the deceased was working in the local area of State of M.P. and the proceedings could be instituted in the Court appointed in respect of that local area at M.P., i.e. Indore. Therefore, the submission made by learned Senior Counsel Shri Patel that since it is a benevolent Act, liberal approach may be adopted, cannot be readily accepted in view of the specific provision in Section 76 of the ESI Act regarding jurisdiction. Further learned Senior Counsel Shri Patel has also ref
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