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2018 Supreme(Jhk) 1980
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Hv Axles Ltd. - Appellant
Versus
State Of Jharkhand - Respondent
W.P. (C) No. 5750 of 2009.
Decided On : 25-01-2018
Lalan Kumar Singh, Advocate, for the Respondent State; Ashutosh Anand, Advocate, for the ESIC
The order should be passed by the person who hears the arguments, failing which the order will amount to gross violations of the principles of natural justice and fair play.
Headnote:
Employees State Insurance Act - Exemption Application - Section 87, Section 91 A - The court remitted the matter to the competent authority for passing a fresh order after hearing the petitioner in accordance with law due to the violation of principles of natural justice and fair play by the authority who passed the impugned order without giving any opportunity of hearing before the Principal Secretary, Labour, Employment and Training, Government of Jharkhand.
Fact of the Case:
The petitioner sought exemption from the provisions of the Employees State Insurance Act, 1948 for its establishment. The application for exemption was heard by the Special Secretary, but the impugned order was passed by the Principal Secretary, who did not hear the application.
Finding of the Court:
The court set aside the impugned order and remitted the matter to the competent authority for passing a fresh order after hearing the petitioner in accordance with law due to the violation of principles of natural justice and fair play.
Issues: Violation of principles of natural justice and fair play by the authority who passed the impugned order without giving any opportunity of hearing before the Principal Secretary, Labour, Employment and Training, Government of Jharkhand.
Ratio Decidendi: The order should be passed by the person who hears the arguments, failing which the order will amount to gross violations of the principles of natural justice and fair play.
Final Decision: The writ application is allowed, and the impugned order is quashed. The matter is remitted back to the competent authority to pass a reasoned and speaking order in accordance with law on the basis of materials already available on record within a period of six months.
ORDER
Anubha Rawat Choudhary, J. - Heard Mr. V.P. Singh, learned senior Advocate assisted by Mr. A.K. Das, Advocate appearing for the petitioner.
2. Heard Mr. Lalan Kumar Singh, J.C. to G.P. I appearing for the Respondent State.
3. Heard Mr. Ashutosh Anand, Advocate appearing on behalf of Respondent no 3 and 4.
4. In this writ petition, the petitioner has prayed for following reliefs:-
(a) In this writ petition, the petitioner has prayed for quashing the order dated 13.10.2009 issued under Memo no. 990 by the Principal Secretary, Department of Labour Employment and Training, Government of Jharkhand, as contained in Annexure-9 to the writ petition whereby the concerned authority has been pleased to reject the application filed by the petitioner under section 87 of the Employees State Insurance Act, 1948 seeking exemption from applicability of the provisions of the said Act.
(b) For a direction upon the concerned authorities to immediately and forth with grant exemption with effect from 01.11.2004 to the petitioner-company under Section 87 read with section 91 A of the Employees State Insurance Act from application of the provision of the said Act to the establishment of the petitioner. Counsel for the petitioner submitted as follows :-
(i) section 1(3) of the Employees State Insurance Act provides that it shall come into force on such date or dates as the Central Government may by notification in the official gazette appoint and different dates may be appointed for different provisions of the Act and for different States or different parts thereof. It is submitted the Central Government vide notification dated 25.10.2004 had brought the Act into force in the area of the petitioner and also made the same applicable to the different parts of the district of East Singhbhum.
(ii) It is submitted that the petitioner applied for registration and vide letter dated 09.05.2005 issued by the Deputy Director, Employees'' State Insurance Corporation, the petitioner-company was informed that it has been allotted ESI Code No. 60-15643-78 and was asked to make compliance of the provisions of the Act.
(iii) The petitioner company was earlier part of M/s Tata Engineering and Locomotive Company Ltd., presently known as M/s. Tata Motors Ltd. Later it separated from M/s. Tata motors due to various business reasons. It is submitted that as the petitioner-company is providing better facilities to its employees than contemplated under the Act and as its employees/workers are not interested in coming to the fold of the Respondent nos. 2 to 4 by leaving their better facilities from the petitioner, therefore, the petitioner company filed an application under Section 87 of the Act for grant of exemption from the applicability of the provisions of the Act to the petitioner-company in the prescribed format, mentioning therein all the details of the benefits, which are being provided to its employees.
(iv) It is submitted that since the Respondents did not care to provide any relaxation to the petitioner and had been pressing the petitioner hard for compliance of the provisions of the Act and also had threatened to take coercive step against the petitioner-company. As such, the petitioner having no alternative moved before this Court in W.R (C) No. 5194 of 2008 and this Court, presided over by Hon''ble Mr. Justice D.G.R. Patnaik was pleased to dispose of the said writ application vide order dated 17.02.2009, directing the respondents to decide the application filed by the petitioner under Section 87 of the said Act for grant of exemption within six weeks and till the decision is taken and effectively communicated to the petitioner, the respondents were restrained from taking any coercive step against the petitioner.
(v) It is submitted that H.V. Axles Ltd. Karamchari Union, which is a recognized trade union in the petitioner-company had also in a representative capacity of its members had represented before the Secretary, Department of Labour, Employment an
