: 1 : 123-95-FA-Judgment=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 123 OF 1995 1. Kamalakar Shankarrao Palange 2. Prabhakar Dnayndeo Waghmode 3. Vasant Shankar Nikam 4. Pratap Piraji Sarnaik 5. Ananda Shripati Patil 6. Manohar Dadoba Kamblikar, deleted vide office order dtd. 7.2.97 in final order 7. Vasant Hanmantsa Naikwade 8. Krishnarao Dadoba Salokhe 9. Khanderao V. Bhosale 10.Gajanan Bapu Bhosale, deleted vide office order dtd. 7.2.97 in final order 11. Rangrao Tatoba Powar 12.Bashir A. Mulla 13.Maruti Laxman Patil 14.Vilas Maruti Patil 15.Dattatraya Gopal Chougule .. Appellants v/s. 1. The State of Maharashtra, through Collector, Kolhapur 2. Regional Director, E.S.I. Corporation, Bombay 3. Managing Director, Shetkari Sahakari Sangh Ltd. .. Respondents Mr. Vinod Jadhav i/b Vijay Patil for the appellants Mr. R.M. Jaykar i/b M.V. Jaykar & Co. Mr. P.G. Sawant, ‘B’ Panel Counsel for respondent no.1 State CORAM : A.V. NIRGUDE, J DATE : 30th NOVEMBER,2011. : 2 : 123-95-FA-Judgment=.sxw Oral Judgment : 1. This appeal is filed by the original applicants challenging the Judgment and Order dated 3rd August, 1994 passed by the learned Judge, Employees Insurance Court, Kolhapur in Application (ESI) 3 of 1988 dismissing the same. The facts leading to this litigation in short can be stated as under. 2. The appellants applicants are employees of respondent no.3 which is a Cooperative Society. I am told that there is no dispute between the parties that the respondent no.3 Society is also a local Authority as contemplated under Section 90 of the Employees State Insurance Act, 1948 (hereinafter referred to as the said Act). The respondent no.3 has various businesses including of a printing press. The appellants are employed in the printing press. Sometime in 1984, the respondent no.2, the Director of ESI Corporation served a notice on respondent no.3 directing him to bring his employees under the umbrella of the provisions of the Act w.e.f. 1st January, 1984. The respondent no.3 challenged this notice in the Employees Insurance Court, Kolhapur vide Application (ESI) No.1 of 1984. This was decided on 8th April, 1988 and the Court directed that the provisions of the Act would be applicable to the employees of the respondent no.3 working in the printing : 3 : 123-95-FA-Judgment=.sxw press w.e.f. 1984. 3. The appellants prior to the said Judgment of April, 1984 were already receiving certain benefits akin to the benefits provided under the Act from respondent no.3. They wanted that they should get the benefits which they were getting previously instead of the benefits applicable under the Act. Sotheir employer­ respondent no.3­ moved an Application under Section 90 of the said Act to the respondent no.1 Government for getting exemption. Section 90 is quoted below to explain the extent of exemption granted by the Government in appropriate cases. Section 90 reads as under. “90. Exemption of factories or establishments belonging to Government or any local authority - The appropriate Government may, (after consultation with the Corporation) by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment belonging to any local authority (from the operation of this Act), if the employees in such factory or establishment are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.” 4. As said above, the respondent no.3 is a local Authority as contemplated under Section 90 and, therefore, the respondent no.3’s application for exemption was considered and was partly allowed. The Government however did not exempt the respondent no.3 from enforcing the provisions of the Act : 4 : 123-95-FA-Judgment=.sxw to the employees of the printing press. Thus, despite of the application made under Section 90, the appellants did not get the desired relief. Aggrieved by this, the appellants moved the present case before the Employees Insurance Court, Kolhapur. 5. The first question that arose for my consideration whether the Employees Insurance Court has jurisdiction to decide such an application? For deciding this, one must read Section 75 of the Act. Section 75 reads as under. “75. Matters to be decided by Employees' Insurance Court.- (1) If any question or dispute arises as to-- (a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee' s contribution, or (b) the rate of wages or average daily wages of an employee for the purposes of this Act, or (c) the rate of contribution payable by a principal employer in respect of any employee, or (d) the person who is or was the principal employer in respect of any employee, or (e) the right of any person to any benefit and as to the amount and duration thereof, or (ee) any direction issued by the Corporation under section 55A on a review of any payment of dependents' benefits, or (g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer in respect of any contribution or benefit or other dues payable or recoverable under this Act or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act], : 5 : 123-95-FA-Judgment=.sxw such question or dispute [subject to the provisions of sub- section (2A)] shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act. (2) [Subject to the provisions of sub- section (2A), the following claims] shall be decided by the Employees' Insurance Court, namely:-- (a) claim for the recovery of contributions from the principal employer; (b) claim by a principal employer to recover contributions from any immediate employer; (d) claim against a principal employer under section 68; (e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and (f) any claim for the recovery of any benefit admissible under this Act. (2A) If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance Court under sub- section (2) of section 54A in which case the Employees' Insurance Court may itself determine all the issues arising before it. (2B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent. of the amount due from him as claimed by the Corporation: Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub- section. (3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.” 6. By no stretch of imagination, even the residuary clause (g) will not help the appellants for seeking relief from the said Court. As observed above, : 6 : 123-95-FA-Judgment=.sxw an exemption is possible only under Section 90 and it is granted only by the Government. If at all, the respondent no.3 did not succeed in their attempt to get blanket exemption and had failed to get exemption in respect of the employees of the print press, they (respondent no.3) ought to have challenged the said decision before the appropriate Authority. The Employees Insurance Court has jurisdiction to decide such a dispute because such a dispute would be the dispute between the employer and the Corporation. The above quoted provision of Section 75 (clause ‘g’) covers such dispute but in this case instead of the respondent no.3 coming before the Employees Insurance Court challenging the decision of the Government, their employees, the appellants approached the Employees Insurance Court. By no stretch of imagination and in view of Section 75, the appellants had any locus to make such an application and so the Court would have no jurisdiction to entertain such an application. The learned Judge of the lower Court rightly dismissed the application. 7. For the reasons mentioned above, I do not find any fault in the impugned Judgment. Hence, appeal stands dismissed. (A.V. NIRGUDE, J.)