Employees State Insurance Corporation vs Fire End Enterprises and Others

A.S. Chandurkar, J.

This appeal filed under Section 82(2) of the Employees State Insurance Act, 1948 (for short the said Act) takes exception to the order dated 30-6-1999 passed by the Employees Insurance Court, Nagpur in Insurance Case No. 10/1996.

The respondent No. 1 had initiated proceedings under Section 75 of the said Act seeking declaration that provisions of said Act were not applicable to it and hence, prayed for setting aside the prohibitory order issued by the present appellant. In said proceedings, the respondent examined various witnesses in support of the relief sought. The present appellant also examined a witness in support of the defence as taken. The evidence of all these witnesses was recorded by the learned Judge of the Employees Insurance Court, Nagpur. Thereafter, on 30-6-1999, after transfer of the learned Judge of the Employees Insurance Court, Nagpur, the incharge Judge of the said Court decided the application and allowed the same. Being aggrieved, the present appellant has filed this appeal.

Shri M.P.M. Pillai, the learned Counsel appearing for the appellant submitted that under provisions of Section 74(1) of the said Act, the State Government was required to constitute Employees Insurance Court by issuing notification in the Official Gazette. He submitted that on 15-7-1996, such notification was issued by the State Government and the Member, First Industrial Court, Nagpur was appointed as Judge of the Employees Insurance Court, Nagpur. Pursuant to said notification, Shri M.L. Chauhan functioned as Judge of the Employees Insurance Court, Nagpur. He had also recorded evidence of the parties. However, the learned Judge who decided the proceedings finally was only the In-charge Judge and there was no notification that was issued appointing him as a Judge of the Employees Insurance Court, Nagpur. He submitted that such objection was duly raised before the concerned Court, but no finding thereof was recorded. He, therefore, submitted that the proceedings have been decided by the learned Judge who had no jurisdiction to do so in absence of any notification under Section 74(1) of the said Act. He further urged that even on merits the impugned order was legally incorrect.

The respondent No. 1 has not chosen to contest the proceedings though it has been duly served.

The following substantial question of law arises in this appeal: Whether the learned In-charge Judge who decided the proceedings was competent to do so in absence of any notification under Section 74(1) of the said Act?

I have considered the contentions as urged by the appellant and I have gone through the records of the case. The provisions of Section 74(1) of the said Act require issuance of notification by the State Government for constituting an Employees Insurance Court. Such notification was issued on 15-7-1996 as referred to above. Pursuant thereto, Shri M.L. Chauhan who was Member of first Industrial Court functioned as Judge of the Employees Insurance Court, Nagpur. The incumbent who was thereafter appointed was given charge of the First Industrial Court which is evident from the cause title of the impugned order. It is, therefore, clear that there was no specific authorization for the Judicial Officer who had been given charge of the particular Court to function as Judge of the Employees Insurance Court, Nagpur. Moreover, such objection having been raised before the learned Judge, the same was required to be considered in accordance with law. There is, however, no consideration of said aspect by the learned Judge. Hence, in absence of any notification by which an In-charge Judge could have functioned as Judge of the Employees Insurance Court, Nagpur, it would be necessary to set aside the impugned order and remand the proceedings for fresh consideration.

Besides notification dated 15-7-1996, a subsequent notification dated 22-10-2012 has been brought to the notice of this Court. In the subsequent notification care has been taken to mention that that even successors of the Judicial Officers mentioned in the notification would be covered by said notification. Such clause, however, is absent in the said notification dated 15-7-1996. Hence, the substantial question as framed is answered by holding that the proceedings have been decided by the In-charge Court without being so authorized by notification dated 15-7-1996.

In view of aforesaid, the proceedings are required to be remanded by setting aside the impugned order for fresh consideration. The record indicates that both the parties have led evidence before the Employees Insurance Court, Nagpur. The matter, therefore, will have to be considered in the light of evidence available on record. Hence, the following order is passed:

ORDER

(1) The order dated 30-6-1999 is set aside for reasons mentioned herein above.

(2) The proceedings shall be expeditiously decided by the Employees Insurance Court, Nagpur. It is made clear that this Court has not examined the correctness of the findings recorded in the impugned order.

(3) The appeal is allowed in aforesaid terms. No costs.