1 wp-lod-2260-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.2260 OF 2011 M/s.Eagle Theaters .. Petitioner versus Employees State Insurance Corporation .. Respondent Mr.V.P.Vaidya for the petitioner. Mr.H.V.Mehta for the respondent. CORAM : S.C.DHARMADHIKARI, J. 19th October 2011. P.C.: . Heard by consent of parties forthwith at the admission stage. The petitioner is aggrieved and dissatisfied with an interim order passed by the Judge, Employees State Insurance Court, Maharashtra, Mumbai in Application (ESI) No.235 of 2009. By the order dated 3rd August 2011, the application for interim relief made by the petitioner-applicant has been rejected. 2} The principal contention of Mr.Vaidya appearing on behalf of the petitioner is that the learned Judge deciding the interim relief application 2 wp-lod-2260-11.doc was indeed aware of the fact that the same Court earlier in Misc.Application (ESI) No.1 of 2008 dated 9th December 2009 granted exemption from the pre-condition of depositing 50% of the amount claimed by the Corporation. After waiving condition of deposit and registering the main matter, all that was required by the Court below, was to make an order on interim relief application staying the recovery in terms of the order of the Corporation. However, the learned Judge proceeded on the basis that the petitioner misled the Court earlier and obtained exemption. There was no basis for such a conclusion because there was no material produced of the Court being misled and misrepresented as suggested by the Corporation. In fact, the Court seems to have proceeded on some distinct basis, as is clear from a reading of the order. The Court below was aware that the petitioner prayed for interim relief requiring it to stay the execution and implementation of the order of damages dated 14th December 2007 imposed under section 85-B of the Act. 3} In such circumstances, the order under challenge is totally perverse and vitiated by errors apparent on the face of record and should be set aside, is the request of Mr.Vaidya. 3 wp-lod-2260-11.doc 4} Mr.Mehta appearing on behalf of the respondent-Corporation on the other hand submitted that the Court below was satisfied by the Corporation that the exemption granted is erroneous. The ESI contribution for omitted wages in respect of amount paid to M/s.R and S Electronics for installation of Dolby Sound System and as per the report of the ESI Inspector and the show cause notice already issued to the petitioner-applicant, has been suppressed. In these circumstances, the petitioner establishment was liable to pay the damages as claimed for the delayed payment of ESI contribution. 5} For all these reasons it is submitted that the interlocutory order requires no interference in writ jurisdiction even if another view is possible. Resultantly, writ petition be dismissed. 6} With the assistance of Mr.Vaidya and Mr.Mehta, I have perused the petition and all annexures thereto. Since the order under challenge is interlocutory and the submission is that it being vitiated by an error apparent on the face of record and perversity, parties have proceeded on the basis of the record produced at an interlocutory stage. 4 wp-lod-2260-11.doc 7} The learned Judge had before him, an interim application seeking stay of recovery in terms of the order of the Corporation. The learned Judge was aware that when such order was passed and it was challenged by the petitioner-applicant before the ESI Court, it was required to satisfy the Court that it must dispense with the pre-condition of deposit to the extent of 50% of the amount quantified as damages. That the petitioner-applicant did by seeking the waiver of this condition and on that application specific order has been passed granting waiver of the condition of pre-deposit. Yet, while taking cognizance of the request for grant of interim relief, the Court seems to have got influenced to a great extent by the fact that the petitioner was required to pay ESI contribution on the basis of ESI report as well as the show cause notice already issued to the petitioner-applicant. However, it caused an enormous delay of more than one thousand days and that is stark breach of the provisions of the ESI Act. 8} To my mind, a reading of the interim order shows that the learned Judge was influenced by some oral submissions made on behalf of the respondent-Corporation. The learned Judge was not required to sit in 5 wp-lod-2260-11.doc judgment over the order passed on the waiver application. If at all the Corporation thought that the said order is obtained by misleading the Court or factual misrepresentation, the Corporation was free to adopt such remedies as are permissible in law. Once the remedies have not been adopted, then, by indirect and oblique manner, the Corporation could not have sought setting aside of that order and deposit of entire sum. This is a clear case where the Court below has proceeded on erroneous assumption without any material of it being misled or the order being obtained by any misrepresentation of facts. When no such material was before the Court, it was not proper to virtually recall the order of waiver of pre-deposit. If at all the Court below was of the opinion that the damages have been prima facie rightly recovered, it could have made an appropriate order securing it and not by dismissing the application straightaway. In the result, the order under challenge suffers from a serious legal infirmity and even if it is interlocutory it requires interference in the writ jurisdiction. 9} As a result of the above discussion, the writ petition succeeds. The impugned order dated 3rd August 2011 below Exhibit 2 is quashed and set aside. The application is allowed and there will be an interim 6 wp-lod-2260-11.doc stay of recovery of dues/amounts on the basis of the order of the ESI Corporation which is impugned in the main application. 10} However, it is clarified that this Court has not expressed any opinion on the rival contentions and all that it has done, is to emphasise the prima facie case that has been made out by the petitioner-applicant. Therefore, the findings are tentative and prima facie and should not influence the Court below while trying the main application. As a result of the request made by Mr.Mehta, hearing of the application is expedited and ESI Court shall make an endeavour to dispose off the same as expeditiously as possible and within a period of six months from the date of receipt of the copy of this order. There will be no order as to costs. 11} Petition allowed in the above terms. (S.C.DHARMADHIKARI, J)