Case: Employees State Insurance Corpn Vs. Distilleries&amp;Chemical Maz.Union

the High Court and it would cause extreme and grave hardship to the employer if it is required to pay contribution for the past for no fault of its own. It is also submitted that no party should suffer because of the orders of the Court if duly complied with. 16. We see much force, substance and merit in the above submission of the learned senior counsel. It is further pertinent to see that the first interim order was passed by the High Court on 19.05.1986 and it was modified on the application of the respondent No.2 on 17.07.1987 and 09.03.1988. The interim orders were not challenged at all by the ESIC and were thus accepted. Despite the pendency of the matter for 17 years, the ESIC did not file any reply or counter affidavit in the writ petition nor filed any application for variation/vacation of the stay as stated in the special leave petition and in fact accepted the interim order. It was, thus, not disputed by the ESIC that the employees were not getting any medical facilities from ESIC and they were in fact getting medical facilities from the employer. 17. The High Court observed as follows:- "However, since there was an interim order of this court dated 19.05.1986 as modified on 17.07.1987, which directed that no deduction shall be made from the employer or employees towards contribution for E.S.I, and in fact E.S.I facility was not availed by the employees of respondent No. 3 hence in our opinion it would be unfair if the respondent No.3 and its employees are directed to pay contribution for the period when they never got this facility. Learned Counsel for respondent No.3 has stated that the respondent No.3 was giving medical relief to its employees on its own and no medical benefit was given by the E.S.I Corporation. Under these circumstances, we direct that no contribution shall be realized from the employer or employees till today towards E.S.I contribution, but from today onwards they will start paying E.S.I Contribution and employees may avail benefit of the E.S.I Scheme. With the above observation, this petition is disposed off finally." 18. 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 i.e. from the date of disposal of the writ petition and should not bear with the liability for the past inasmuch as the employees of the respondent No.2 has not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim order of the High Court. In these circumstances, 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. 19. This apart it is important to note that in the past 17 years when the interim orders passed by the High Court was enforced, several employees have left/retired and were paid the entire salary without any deduction and, therefore, it will be impossible for the employer to recover the part of the employees contribution in respect of the ESIC from the employees. A separate counter affidavit was filed by the Mazdoor Union in support of the employer. As regards the question of law raised by learned counsel for the ESIC regarding the view taken by the High Court, we are of the opinion that the view taken by the High Court was on account of the peculiar facts and circumstances of the case. As already noticed, the deduction of contribution of the members of the Union had been specifically stayed by the High Court and the same continued for a period of 18 years till the disposal of the petition and that none of the members of the Union had availed facilities of the ESI. 20. In our view, passing of the final order by the High Court directing the payment of 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 the various judgments referred to above. There has been no postponement 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 18 long years, provision of medical relief by the Management. The High Court had directed deduction of contribution with effect from the date of the judgment, which, in our opinion, is perfectly justified. This apart, the members of the Union included casual, temporary, contractual, badli workmen and it will be practically impossible to find each and every member of the Union to recover their contribution for the last 18 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 judgments relied on by counsel for the appellant are distinguishable on facts and on law. The order passed by the High Court, in our opinion, is perfectly justified in view of the facts and circumstances of the case and it has been repeatedly held by this Court that such a relief can be granted in the peculiar facts and circumstances of the case and that there can be an exception as in the present case and, therefore, it cannot be said that the directions issued by the High Court are not correct or that they are contrary to the power under Article 226 of the Constitution of India. 21. The High Court, in our opinion, while disposing off the writ petition filed by the Union has taken a just, pragmatic, fair and judicious view after considering all the equities and facts and circumstances of the case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 i.e. from the date of disposal of the writ petition and should not bear with the liability for the past inasmuch as the employees of the respondent No.2 has not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim order of the High Court. In these circumstances, 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 IndiaThis apart it is important to note that in the past 17 years when the interim orders passed by the High Court was enforced, several employees have left/retired and were paid the entire salary without any deduction and, therefore, it will be impossible for the employer to recover the part of the employees contribution in respect of the ESIC from the employees. A separate counter affidavit was filed by the Mazdoor Union in support of the employer. As regards the question of law raised by learned counsel for the ESIC regarding the view taken by the High Court, we are of the opinion that the view taken by the High Court was on account of the peculiar facts and circumstances of the case. As already noticed, the deduction of contribution of the members of the Union had been specifically stayed by the High Court and the same continued for a period of 18 years till the disposal of the petition and that none of the members of the Union had availed facilities of the ESI.In our view, passing of the final order by the High Court directing the payment of 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 the various judgments referred to above. There has been no postponement 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 18 long years, provision of medical relief by the Management. The High Court had directed deduction of contribution with effect from the date of the judgment, which, in our opinion, is perfectly justified. This apart, the members of the Union included casual, temporary, contractual, badli workmen and it will be practically impossible to find each and every member of the Union to recover their contribution for the last 18 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 judgments relied on by counsel for the appellant are distinguishable on facts and on law. The order passed by the High Court, in our opinion, is perfectly justified in view of the facts and circumstances of the case and it has been repeatedly held by this Court that such a relief can be granted in the peculiar facts and circumstances of the case and that there can be an exception as in the present case and, therefore, it cannot be said that the directions issued by the High Court are not correct or that they are contrary to the power under Article 226 of the Constitution of IndiaThe High Court, in our opinion, while disposing off the writ petition filed by the Union has taken a just, pragmatic, fair and judicious view after considering all the equities and facts and circumstances of the case.