Heard Mr.T.L.Ram Mohan, senior counsel appearing for the petitioner. As there was no representation on behalf of the first respondent, this Court was constrained to direct Mr.R.Viduthalai, learned Senior Central Government Standing Counsel, to take notice on behalf of the first respondent and to appear on behalf of the first respondent. Heard Ms.Jayakumari, appearing on behalf of the second respondent.

2. The petitioner, an employer within the meaning of the Employees' State Insurance Act, 1948, who is engaged in producing beedies, alleging that the workers employed in his factory are governed by the provisions of:

i. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966;

ii. The Beedi Workers Welfare Cess Act, 1976 and Rules, 1977;

iii. The Beedi Workers Welfare Fund Act, 1976; and

iv. The Beedi Workers Welfare Fund Act, 1978,

seeks the issue of a writ of Declaration, declaring that the provisions of Employees' State Insurance Act No.XXXIV of 1948 will not apply to the establishments and workers already covered under the Beedi and Cigar Workers (Conditions of Employment) Act No.XXXII of 1966, the Beedi Workers Welfare Cess Act No.LVI of 1976 and the Beedi Workers Welfare Fund Act No.LXII of 1976, and the Rules framed thereunder.

3. According to Mr.T.L.Ram Mohan, learned senior counsel appearing for the petitioner, since the interest of the beedi workers working in the petitioner’s factory are still protected under the statutes, referred to as (i) to (iv) above, there is no need either for the workers or for the Management to contribute under the Employees' State Insurance Act, 1948. Hence, the demand of contribution from the petitioner, made under the provisions of the Employees' State Insurance Act, 1948, is unsustainable in law, as otherwise, the beedi workers would be getting the benefits of both the enactments, and the petitioner-employer would be bound to make double contribution.

4. Per contra, Mr.R.Viduthalai, learned Senior Central Government Standing Counsel, appearing for the first respondent, and Ms.Jayakumari, learned counsel appearing for the second respondent, contend that the provisions of the Employees' State Insurance Act, 1948, being a social welfare Legislation similar to Employees’ Provident Fund Act, the beedi workers are entitled to have the benefits of contribution under the Employees' State Insurance Act, 1948, as in the case of Employees’ Provident Fund Act, as held in M/s.P.M.PATEL & SONS V. UNION OF INDIA reported in AIR 1987 SC 447. Alternatively, it is contended that it may not be proper for this Court to exercise its powers under Article 226 of the Constitution of India to decide as to the applicability of the provisions of the Employees' State Insurance Act, 1948, particularly when the Employees’ Insurance Court is empowered to decide as to the applicability of the provisions of Sections 74 and 75 of the Employees' State Insurance Act, 1948.

5. In this connection, Mr.R.Viduthalai, learned Senior Central Government Standing Counsel, relied upon:

i. the decision of a Constitution Bench of the Apex Court in BASANT KUMAR V. EAGLE ROLLING MILLS reported in AIR 1964 SC 1260;

ii. the decision of this Court made by S.Ramalingam,J. dated 9.7.1990 made in W.P.No.9196 of 1982, etc. (V.ABDUL JABAR SAHIB AND SONS, GOAT MARK BEEDI, VELLORE V. THE STATE OF TAMIL NADU & 2 OTHERS)

iii. the decision of the Apex Court in E.S.I.C. V. F.FIBRE BANGALORE P. LTD. reported in 1997 (II) LLJ 739 = AIR 1997 SC 244;

iv. the decision of this Court in THE E.S.I. V. T.O.D.H.W.C.S. SOCIETY reported in 1997 (II) LLJ 176;

v. the decision of a Division Bench of the Rajasthan High Court, in ALL INDIA ITDC EMPLOYEES' UNION V. E.S.I.C. reported in 2002 (III) LLJ 917.

6. I have bestowed my careful consideration to the submissions of both sides.

7. The issues that were raised between the parties, which arise for my consideration in this writ petition are:

(i) whether the provisions of the Employees' State Insurance Act, 1948, ar