Employees State Insurance Corporation vs Distilleries & Chemical Mazdoor Union & ...

Since parties to the above three appeals and the question of law to be decided are the same, by consent of parties, all the three matters were taken up together for final disposal. Respective employer, the Trade Union and the State of U.P. have been impleaded as party respondents in these appeals. We shall now take up the facts mentioned in civil appeal No. 1727 of 2005 for reference. Since the facts are identical in other matters we are not stating them in the other cases. A writ petition No. 6920 of 1986 was filed by the Distilleries and Chemical Mazdoor Union, Meerut against the State of U.P., the ESIC and the Company, namely, Central Distilleries and Breweries Limited (CSBL) merged with Shaw Wallace Distilleries Limited (SWDL) for seeking direction in the nature of mandamus not to realise any contribution from the workmen of respondent No.2-herein.

The writ petition was admitted and an interim order was passed stating that, meanwhile no deduction shall be made towards the contribution of ESIC from the members of the petitioners-Union under the ESI Act.

An application was filed on behalf of respondent No.2 herein for vacation/suitable modification of the order, in order to safeguard the interest of the Company keeping in view all the provisions of the Act. On 17.07.1987, the Court, after hearing all the parties on the application of the company, confirmed the previous order dated 19.05.1986 with the modification that "no deduction shall be made from the employer or the employees towards the contribution under the ESI Act provided the respondent-employers shall pay the medical allowance to its workmen."

An application for modification of the order dated 17.07.1987 was filed by respondent No.2 herein to substitute the words "provide" and "facility" instead of "pay" and "allowance". The Court modified the above order dated 17.07.1987 as sought for.

The writ petition remained pending and no contribution was either deducted or deposited. Management continued to provide the medical facility to its workmen as directed by the Court, which fact has not been disputed either by the ESIC or by the workmen. The ESIC did not file any counter affidavit/opposition to the writ petition. The writ petition was finally heard and disposed off along with another writ petition No. 27607 of 1998 which had been filed by another employees Union. Another Union - Distilleries and Breweries Shramik Sangh, Meerut filed writ petition No. 27607 of 1998 against the State Government of U.P., ESIC and CDBL on the ground that no medical facility has been provided by the ESIC Authority in the area and the exemption application filed before the Secretary of Labour Department has not been decided and sought direction from the Court not to realise any contribution from the workers of the Union under the ESI Act and also sought exemption from applicability of the Act for the employees of CDBL. An interim order was passed in the writ petition to the extent.

No counter was filed by the State and the ESIC and the interim order was confirmed in the said writ petition. An application for amendment of the writ petition was filed by the Union in the said writ petition for extending the coverage to the daily/contractor workers since they are also the members of their Union. The aforesaid amendment application was allowed. The CDBL filed an application for stay. Final arguments were heard by the High Court and a detailed judgment was passed in the writ petition No. 6920 of 1986 and by the same order writ petition No. 27607 of 1998 was also disposed off. The Court has ordered:

With the above averments, the management employer filed the petition to vacate the ex-parte order granted by the High Court on 19.05.1986 or to suitably modify the same to safeguard the interest of the management in regard to the anomalies mentioned in the paragraphs (supra). However, the High Court, by its order dated 17.07.1987 instead of vacating the interim stay confirmed the same with certain modifications that no deduction shall be made either from the employer or from the employees towards the contribution under the ESI Act. The said order was again modified on 09.03.1988 to the effect that the words "payments" and "allowances" occurring in order dated 17.07.1987 shall be substituted by the words "provide" and "facility".

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. 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. Extreme hardship might have been caused to both the employer as well as the employee since no medical facilities have been availed by the workmen from ESIC and the employer had provided medical facilities to the workmen as per the Court orders and also had paid medical allowances. In the result, all the three appeals are dismissed and the judgments passed by the High Court are affirmed. However, there will be no order as to costs.

The question of law is left open to be decided in an appropriate case.