The main legal point established in the judgment is the requirement for approaching the ESI Court for adjudication of disputes under the Employees State Insurance Act, 1948.

JUDGMENT

Arindam Sinha, J. - The writ petition was heard on 3rd November, 2022 by this Bench. Paragraphs 1 and 2 from order dated 3rd November, 2022 are reproduced below.

'1. Mr. Mishra, learned advocate appears on behalf of petitioner and submits, sub-section (4) in section 1 in Employees State Insurance Act, 1948 has proviso saying that the sub-section does not apply to a factory or establishment under control of the Government, whose employees are otherwise in receipt of benefits substantially similar or superior to benefits provided under the Act. In paragraph 3 of the writ petition the statements have been made invoking the provision. Counter has not been filed.

2. Mr. Ray, learned advocate appears on behalf of the Revenue and draws attention to paragraph 3 in impugned order dated 27th June, 2017. The paragraph is extracted and reproduced below.

'However, employer did not submit any documentary evidence to substantiate their contention. The State Government, Labour and ESI Department vide their letter No.SS-II/SC/14/2015/763/L&ESI, Bhubaneswar dated 2.2.2016 also communicated to the Secretary, Odisha State Housing Board, Bhubaneswar that proposal for exemption, prayed by the employer is also rejected on the ground that there is no merit for consideration.'

Mr. Mishra replies that exemption under section 87 is distinguishable from the provision under the proviso in section 1(4).' 

Paragraphs 2, 3 and 4 from order dated 22nd November, 2022 are reproduced below. 

'2. Mr. Mishra, learned advocate appearing on behalf of petitioner and submits, rejection of exemption sought by his client is not relevant for adjudication of the writ petition since, under sub-section (4) in section 1 of Employees' State Insurance Act, 1948, it is to be first determined whether the Act applies to his client. This was not done. Instead, notice issued under section 45A.

3. Mr. Ray, learned advocate appears on behalf of the Corporation. He draws attention to communication dated 2nd February, 2016 issued by the Under Secretary to petitioner. Text of the communication is reproduced below.

'I am directed to invite a reference to your Letter No.14585 dated 29.11.2014. Memo No.6006 dated 23.07.2015 on the subject cited above and to say that Government after careful consideration have been pleased to order that proposal for exemption, prayed in the Letter under reference does not merit any consideration. Hence rejected.'

4. Petitioner will produce letter no.14585 dated 29th November, 2014 and memo no.6006 dated 23rd July, 2015. The documents be produced in Court on copies served to Mr. Ray. The purpose is, in event petitioner had applied for exemption, the contention for their being adjudication on whether the Act applies to it, will be unnecessary on petitioner's own conduct of having applied for exemption under the Act.'

2. Today Mr. Mishra produces letter dated 29th November, 2014. It appears the letter was from Land-cum-Administrative Officer to Under Secretary to Government, Labour and ESI Department, Government of Odisha. There is no dispute that the letter was addressed to the appropriate Government, who rejected the proposal for exemption prayed for therein.

3. Mr. Ray relies on judgment of the Supreme Court in Employees' State Insurance Corporation vs. F. Fibre Bangalore (P) Ltd, reported in (1997) 1 SCC 625, paragraph 5. He submits, petitioner did not apply to the Insurance Court, raising dispute. As such, there should not be interference with impugned order of determination made under section 45A.

4. Mr. Mishra, in reply, relies on order dated 16th September, 2008, passed by co-ordinate Bench in OJC no.7374 of 2001 (Orissa Tourism Development Corporation vs. Employees' State Insurance Corporation and another). He submits, his client's case stands covered by said order.

5. Relevant paragraphs from order dated 16th September, 2008 (supra) are reproduced below.

'Mr. P. Ray, learned counsel appearing for the E.S.I. Corporation submits that the O.T.