ORDER

H.N. Seth, J. - M/s. Indra Shanta Card Board Manufacturing Co. has filed this petition Under Article 226 of the Constitution of India, through its Proprietor Indra Pal. The Petitioner prays for a writ of prohibition directing the Additional District Magistrate, Aligarh, not to proceed with case No. 5 of 1960 Son Pal v. Indra Pal and that in any case he should decide the legal issue and the question of jurisdiction first.

2. According to the allegations made in the petition, Petitioner's factory started functioning from 22nd of November, 1967. It was covered under the provisions of the Employees State Insurance Act 1948 with effect from 6th December 1968 and thereafter it made its contribution under the Employees State Insurance Act 1954 regularly. On 9th December, 1968, Respondent No. 1, Son Pal while operating a Calender Machine without Petitioners consent, unfortunately met with an accident and received certain injuries. He filed an application u/s 4(1)(b) of the Workmen Compensation Act, before the Additional District Magistrate Aligarh who is the prescribed authority under the Act, claiming compensation amounting to Rs. 3,000. Tin Petitioner appeared before the Additional District Magistrate and filed his objections to the claim. He moved an application before the Additional District Magistrate and urged that as Petitioner' factory was covered under the Employee State Insurance Act, Respondent No. could claim disablement benefit under that Act and as provided in Section 61 of the Act, a claim for compensation under the Workmen's Compensation Act is barred He accordingly prayed that the proceedings under the Workmen's Compensation Act be dropped.

3. The Additional District Magistrate purporting to act u/s 75 of the Employees State Insurance Act, the) referred a question, as to whether or no the claimant was covered by the provisions of that Act, to the Employees Stat Insurance Court for decision. Before tha court Respondent No. 2 Sonpal raised a objection that there was no proper reference by the Additional District Magistrate. Such a reference could not b entertained by State Insurance Com unless it had been made in accordance with the provision of Section 77 of the Ac; He prayed that in the circumstances the reference should be returned unanswered. The plea raised by Sonpal was accepted by the Employees State Insurance Court which, by its order date 13th April, 1970 returned the reference unanswered. When the matter was taken up by the Additional District Magistrate on 17th July, 1970, the Petitioner again moved an application that he should first decide the question about his jurisdiction to go into the claim made under the Workmen's Compensation Act, before taking up the other issues involved in the case. The District Magistrate, however, rejected the application with the observation that the Employees State Insurance Court has already held that the Applicant has failed to make out a case that provision of Employees State Insurance Act are applicable in this case. He also observed that in the circumstances, it was not necessary for him to pass any order and that the application should be filed.

4. The Petitioner has now come up before this Court and contends that the Employees State Insurance Court did not record a finding that the provisions of Employees State Insurance Act are not applicable to the facts of this case. It specifically returned the reference unanswered without recording any finding. In the circumstances, the Additional District Magistrate was bound to decide the question raised by the Petitioner, before proceeding to deal with this issue. He also claims that according to Sections 53 and 61 of the Employees State Insurance Act, jurisdiction of the prescribed authority under the Workmen's Compensation Act is barred.

5. Order passed by the Employees State Insurance Court states as follows:--

...and the reference is returned to ADM (R) without any findings, being unauthorised by law and without jurisdiction