JUDGMENT :

Bhargav D. Karia, J.

1. Heard learned advocate Mr.Palak Thakkar for the appellant/applicant and learned advocate Ms.Kriti Pathak for the respondents in First Appeal No.1022 of 2023 as well as learned advocate Mr.A.V.Nair for the appellant ESI Corporation and learned Senior Advocate Mr.Saurabh Soparkar with learned advocate Mr.Jwalit Soneji for the respondent No.1 in First Appeal No.2588 of 2023.

2.1. First Appeal No.1022 of 2023 is filed challenging the judgment and order dated 2nd January, 2023 passed by Employees State Insurance Court, Ahmedabad in ESI Application No.73 of 2016 whereby, the order passed under Sections 45A and 45AA of the EMPLOYEES STATE INSURANCE CORPORATION ACT , 1948 (for short ‘the ESI Act’) was quashed and set aside by remanding the matter back to the appellate authority to re-decide the matter by giving an opportunity of hearing to the appellant.

2.2. First Appeal No.2588 of 2023 is filed by the ESI Corporation challenging the Judgment and Order dated 12.05.2022 passed by the ESI Court in ESI Application No.40 of 2015 whereby the communication dated 12.03.2015 was set aside holding that the provisions of the ESI Act are not applicable to the firm of a Chartered Accountant.

2.3. As common question arises in both the appeals as to whether provisions of ESI Act are applicable to the firm of a Chartered Accountant or not, the same were heard analogously.

2.4. In First Appeal No.1022 of 2023, though the ESI Court has in fact held that the provisions of the Act are not applicable to the firm of a Chartered Accountant, the matter is remanded back to the appellate authority to decide a fresh.

3. Learned advocate Mr. Palak Thakkar for the appellant-Chartered Accountant firm submitted that he supports the reasoning given by the Court below and only assail the impugned judgment and order so far as it has remanded the matter back to the appellate authority on the ground of violation of the principle of natural justice.

3.1 It was submitted that the Court below ought not to have remanded the matter back to the appellate authority when it has held on merits in favour of the appellant. Learned advocate Mr. Palak Thakkar for the appellant-Chartered Accountant firm submitted that after considering the entire case law on the subject and after considering the evidences on record, it was held by the ESI Court that the ESI Corporation has failed to prove that the activity carried out by the appellant is a shop or commercial establishment and order of assessment as well as the recovery was not according to the law and in view of such findings, the matter ought not to have been remanded back to the appellate authority on the ground of violation the principles of natural justice as the findings in the impugned order would be binding upon the appellate authority even otherwise.

4. Learned advocate Ms. Kriti S. Pathak appearing for the respondent- ESI Corporation in First Appeal No.1022 of 2023 submitted on merits of the case though no cross-objection is filed with regard to the finding of the issue no.4 held in favour of the appellant by the Court below and assailed such findings on merits and therefore, this Court is of the opinion that such submissions made by the learned advocate for the respondent-ESI Corporation so far as the First Appeal No.1022 of 2023 is concerned are not considered on merits in absence of any challenge to the findings arrived at by the Court below to the effect that a firm of the Chartered Accountant cannot be a shop or a commercial establishment as per the provisions of the law as per the settled legal position after considering the decided cases in favour of the appellant-Chartered Accountant firm.

5. The submissions made by lea