THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G BHAVANI PRASAD REVIEW CMA MP NO. 1715 OF 2007 AND C.M.A NO. 908 OF 2001 ORDER: ( Per Justice B Prakash Rao) Heard Sri Vedula Srinivas, learned counsel for review petitioner/respondents and Sri B G Ravindra Reddy, learned Standing Counsel for E.S.I. Corporation/first respondent herein. In this review purported to be filed under Order 47 Rule 1 read with Section 114 of Civil Procedure Code, the petitioner which is a paper mill seeks review of the orders passed by this Court in C M A No. 908 of 2001 dated 19.7.2007. In brief, in respect of the claim set-forth by the respondent Employees Association, in pursuance of the application filed under Section 75 (1) (g) Employees State Insurance Act, regarding coverage for the purpose of contributions to be made under the said provisions, initially, the primary authority as per the orders dated 25.7.2000 allowed the claim , against which the first respondent corporation filed the main appeal under Section 82 of the Employees State Insurance Act, which was disposed of after hearing both sides, which order is under review in the present petition. In the order dated 19.7.2007, this Court opined that having regard to the fact that the amended provisions and the notification issued there for, by extending the benefit to the employees with the raise of salary from Rs.3,000/- to Rs.6500/- should be given from the date of notification but not from the date of the orders of the authority, hence the appeal was allowed with a direction to re-assess the liabilities and contributions with effect from the date of notification i.e., 23.12.1996. The main submission made on behalf of the review petitioner in this review is that having regard to the principle laid down by the Supreme Court i n Employees’ State Insurance Corporation and Ors Vs. Jardine Henderson Staff Association[1] holding that the period should not be prejudiced by any Act of Court and therefore notification could not possibly be implemented from the date of its issuance. Further, it was brought to the notice of this Court that in similar cases, as per the orders of this Court in C M A No. 1726 of 2001 dated 31.7.2007, the matters were remanded back for fresh consideration on all aspects, therefore the question of giving finality in respect of date of implementation requires variation, thus, it could not have been taken as date of notification. Sri B G Ravindra Reddy, learned Standing Counsel appearing on behalf of the corporation reiterated his stand that any notification will necessarily has to come into effect only from the date of its issuance and the interdiction by any interim orders of stay or otherwise by the Court would not postpone its implementation nor it would endure to the benefit of person who is liable to make contribution. In support, he placed reliance on the orders of the Apex Court in Civil Appeal No. 5527-28 of 1993 dated 11th October, 1993. Considering the aforesaid aspects and the facts and circumstances, the question in short is as to whether the notification has to be implemented from its date of issuance. There being no serious dispute in regard to other aspects, we are not going into the same. No doubt, as pointed out by the learned Standing Counsel in the aforesaid orders in Civil Appeal No. 5527- 28 of 1993 dated 11th October, 1993, it was held that the notification has to be enforced only from the date of its issuance, for convenience the entire order is extracted below; “Special leave granted. The Employees State Insurance (Central) Rules, 1950 were amended by the Notification dated March 27,1992 with effect from April 1, 1992. By the amendment the wage ceiling for coverage under the Employees State Insurance Act, 1948 (the Act) was enhanced from Rs.1600/- to Rs.3000/- per month. The amendment was challenged before the High Court on various grounds. While upholding the validity of the amendment a learned single Judge of the High Court directed that the notification should be enforced with effect from November 1, 1992 in stead of April 1, 1992. The judgment of the learned Single Judge was upheld by the Division Bench of the High Court. We have heard learned counsel for the parties. We are of the view that the High Court fell into patent error in postponing the date of the operation of the notification. The notification, amending the rules, was a legislative act. The amendment of the rules being a delegated legislation, the High Court could not have interfered with the date of operation of the notification. We set aside the direction given by the High Court regarding the postponement of the enforcement of the Notification and we direct that the notification dated March, 27, 1992 shall be operative from April 1, 1992. We, however, leave it open to the respondents to approach the appropriate Government, if so advised, under the Act for grant of exemption or for any other relief to which they may be entitled. We allow the appeals in the above terms. No costs.” However, in the later decision of the Apex Court, as referred to above i n Employees’ State Insurance Corporation case, similar question has come up for consideration, especially as to the effect of the stay and whether such period should be excluded, considering the same, it was held as under; “We have already noticed that the respondent companies have spent large amount of money on the employees and provided medical facilities in view of the order of the High Court granting stay/injunction etc. if the High Court had not passed the order of injunction, the respondent- companies would have contributed the ESI contribution instead of spending monies on the medical facilities and allowances. In these circumstances, the submissions made by learned senior counsel appearing for the respondents that it would be unfair and unjust to make the employer to pay contribution towards ESIC since in lieu of the contribution to ESIC, the employer provided better medical facilities, in our view holds wate and it would cause extreme and grave hardship to the employer if they are required to pay contribution for the past several years for no fault of their own. In our view, no party much less the respondents should suffer because of the orders of the Court if duly complied with. …. In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future and should not bear with the liability for the past inasmuch as the employees of the respondents have not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim orders of the High Court. The order passed by the high Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of India. In our view, passing of the final order by the High Court directing the payment of the ESI contribution from the date of the said judgment does not amount to postponing the enforcement of notification and the same is also not in violation of the principles laid down by this Court in various judgments referred to above. There has been no postponing of the enforcement of the Notification in view of the peculiar circumstances of the case, namely, the non-availability of the facilities, non-deduction of contribution from the members of the union for several years and provision of medical relief by the management. The High Court’s direction for deduction of contribution w.e.f., the date of the judgment in our view, is perfectly justified. This apart, the members of the union included casual, temporary contractual and it will be practically impossible to find each and every member of the union to recover their contribution for the past several union to recover their contribution for the past several years and in fact some of the workmen who would have been the employees during all these years would have left, expired etc and on account thereof also their contribution cannot be recovered. The order passed by the High Court, in our opinion, is perfectly justified in view of the peculiar facts and circumstances of the case.” As per the above, it amply transpires that the Apex Court has categorically held that the stay period, could not be extended for the implementation of the benefits conferred by the notification which was issued earlier. Admittedly, in this case also, the notification was issued on 23.12.1996, further the same was under a challenge and there has been a stay granted by this Court, therefore, it follows that the said stay period could not possibly be counted for the purpose of fixing the contribution. No doubt, in the earlier orders of the Supreme Court it was held that such notification has to come into effect only from the date of issuance but having regard to the latest judgment of the Supreme Court where the question has directly came up for consideration in depth and held otherwise, therefore, it is the latest principle which govern the situation. Hence, following the said dicta, we hold that same exercise as done in similar such case in C M A No. 1726 of 2001 dated 31.7.2007 has to be followed and the stay period has to be excluded and the matter has to be again considered afresh by providing reasonable opportunity to both sides. Accordingly the review petition is allowed and consequently the appeal in C.M.A No. 908 of 2001 is allowed and the matter is remitted back to the authority below for fresh consideration on merits and disposal in accordance with law, after giving notice and reasonable opportunity to both sides. We also make it clear that it is open for both sides to lead evidence in support of their respective contentions and raise all pleas which are available to them under law. No costs. _______________ B PRAKASH RAO,J __________________ G BHAVANI PRASAD,J DATE: - -2010 TVK THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G BHAVANI PRASAD REVIEW CMA MP NO. 1715 OF 2007 AND C.M.A NO. 908 OF 2001 Date: - -2010 THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE G BHAVANI PRASAD REVIEW CMA MP NO. 1715 OF 2007 AND C.M.A NO. 908 OF 2001 PD Judgment for perusal of Hon’ble Sri Justice G Bhavani Prasad. [1] AIR 2006 SC 2767