The main legal point established in the judgment is that the question of applicability of the Employees State Insurance Act to a particular establishment should be decided by the proper forum by raising a dispute before it and not by invoking extraordinary jurisdiction under Article 226.

RAJESH BALIA, J.

( 1 ) HEARD learned counsel appearing for the parties.

( 2 ) THESE appeals are directed against the judgment, dated May 5, 1999 passed by the learned single judge dismissing the writ petition filed by All India I. T. D. C. Employees Union challenging the notification issued by Laxmi vilas Palace Hotel on January 30, 1997 (Annexure P7) informing its employees that in terms of the amendment made in the provisions of the Employees State Insurance Act vide notification, dated December 23, 1996 which became effective from January 1, 1997, its provisions shall be made applicable to those employees with effect from January 1, 1997 who were drawing monthly salary up to Rs. 6500. 00 which limit was earlier up to Rs. 3,000 and deduction on account of employees contribution towards the Employees State insurance was increased from 1. 5 per cent to 1. 75 per cent. So also, the employers contribution was increased from 4 per cent to 4. 75 per cent. With this notification, it was required of those employees who were drawing salary up to Rs. 6,500 to secure new insurance cards after fulfilling the requisite declaration.

( 3 ) THE principal-objection on behalf of the employees union to the said notification is that in view of the proviso to Section 1 (4), the provisions of the Act are not applicable to the respondent-employer company. However, the term used by the petitioner in the writ petition is to claim exemption. It is the case of the appellant/petitioner-union that the hotel in question is a Government of India undertaking and is State within the meaning of Article 12. Therefore, it being a State Hotel, the provisions of Section 1 (4) are not attracted so as to extend the applicability of the Act of 1948, to the employees of the said establishment, therefore, the contribution demanded from the employees to be deducted from the salary of the employees of the said establishment is not warranted.

( 4 ) APART from raising preliminary objection that the basic notification issued by the Union of India, dated December 23, 1996 has not been challenged by the petitioner which is the foundation for issuing the impugned notification by the management and without making U. O. I. as a party respondent, the petition is not maintainable. It has been contended by the respondents that the applicability of the Act has been extended vide notification, dated december 23, 1996, amending the provisions of the Act and, therefore, it is not entitled to any relief. It was also contended that the determination of question of applicability of the Act to any particular establishment depends upon determination of basic facts which could be done by the proper forum under the industrial Disputes Act and not by resorting to extraordinary jurisdiction under Article 226 of the Constitution of India. The factum of i. T. D. C. being an instrumentality of the State was also denied.

( 5 ) THE plea of the respondents found favour of the learned single Judge and the Court held that if the applications for exemption or for determination of the applicability of the Act to the establishment in question is made before the appropriate Government or Employees insurance Court, it would take decision thereon but as the question depends upon determination of certain issues of the fact to make a reference to the Industrial Tribunal/labour Court, the court refused to exercise the extraordinary jurisdiction to determine the controversy by taking evidence and adjudicate the same as the court of original jurisdiction. Considering the fact that during the pendency of the writ petition, the petitioner was allowed not to pay the contribution under the interim orders of this court, which has not been deducted from their salary, the Court directed that the same should not be realised now because they were not availing the facility of E. S. I. during pendency of the writ petition.

( 6 ) AGGRIEVED with the aforesaid decision, two appeals have been filed. Appeal No. 7