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Employees' State Insurance Corporation Vs. Himatram Ramdas (30.10.1968 - GUJHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberCivil Revision Application No. 1183 of 1966
Judge
Reported in(1969)GLR377; (1969)IILLJ529Guj
ActsEmployees' State Insurance Act, 1948 - Sections 2(12), 2(14), 2(17), 3, 40, 61, 70, 73A, 73B, 74, 75, 75(1), 75(3), 76, 76(1), 77, 78, 78(2), 78(4), 79, 81, 82, 84, 85, 86 and 86(2)
AppellantEmployees' State Insurance Corporation
RespondentHimatram Ramdas
Cases ReferredFirm Radha Kishnan v. Ludhiana Municipality
Excerpt:
labour and industrial - jurisdiction - sections 2 (12), 2 (14), 2 (17), 3, 40, 61, 70, 73a, 73b, 74, 75, 75 (1), 76, 76 (1), 77, 78, 78 (2), 78 (4), 79, 81, 82, 84 to 85 and 86 (2) of employees' state insurance act, 1948 - assistant judge held that civil court has jurisdiction to entertain suit filed under employees' state insurance act - revision filed against order - dispute in respect of liability to pay special contribution - section 73b provides authority to decide such dispute - as per section 73b matter falls within jurisdiction of authority - civil court not competent to entertain any dispute in respect of employees' special contribution - order passed by assistant judge liable to be set aside. - - chapter iv deals with contributions, section 40 in that chapter imposes on the.....shah, j. 1. this revision application raises a short point for decision about the jurisdiction of the civil court to try a suit filed under the provisions of the employees' state insurance act, 1948 (hereinafter referred to as the act). the petitioner, who was defendant in the suit, is the employees' state insurance corporation (hereinafter referred to as the corporation) constituted under the provisions of the act. the opponent, who was original plaintiff, is a person who is conducting a weaving factory, sri vishnu fabrics weaving factory at surat. the petitioner-corporation gave a notice to the opponent on 15 april 1958 calling upon him to pay special contribution, not only in respect of employees in his own factory, but also in respect of employees in other six factories which,.....
Judgment:

Shah, J.

1. This revision application raises a short point for decision about the jurisdiction of the civil Court to try a suit filed under the provisions of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act). The petitioner, who was defendant in the suit, is the Employees' State Insurance Corporation (hereinafter referred to as the Corporation) constituted under the provisions of the Act. The opponent, who was original plaintiff, is a person who is conducting a weaving factory, Sri Vishnu Fabrics Weaving Factory at Surat. The petitioner-Corporation gave a notice to the opponent on 15 April 1958 calling upon him to pay special contribution, not only in respect of employees in his own factory, but also in respect of employees in other six factories which, according to the other six factories which, according to the opponent, were different from the factory owned by him and with which according to the opponent he had no concern. The opponent gave a reply to the Corporation on 22 April 1958 contending that he was not liable to pay any special contribution. In spite of this reply, the petitioner-Corporation issued a demand notice dated 17 January 1959 against the opponent calling upon him to pay the special contribution. The opponent, thereupon, filed an application being Civil Miscellaneous Application No. 5 of 1959 before the authority constituted under the provisions of S. 73B of the Act. Before the authority, the opponent challenged the right of the petitioner to claim special contribution from him. The authority, after hearing the parties, dismissed the application. After the dismissal of his application by the authority, the opponent paid, under protest, an amount of Rs. 4,637.32 on account of the special contribution claimed from him by the petitioner. He thereafter filed a suit in the Court of the Civil Judge (Junior Division), Surat, contending that he was not liable to pay any special contribution either in respect of employees in his own factory or in respect of the employees in the other six factories with which he had no concern. He, therefore, prayed for a declaration that he is not liable to pay any special contribution to the Corporation. He also asked for the relief of refund of the amounts paid by him under protest on the ground that they were illegally recovered from him. He also claimed a permanent injunction against the Corporation from making any claim for special contribution from him. In the plaint, he contended that the authority had decided the matter quite contrary to law. He contended that the decision of the authority is illegal and without jurisdiction.

2. The petitioner-Corporation filed its written statement whereby it raised several contentions. One of the contentions raised by the Corporation was that the civil Court had no jurisdiction to entertain the suit. The learned trial Judge accepted that contention of the Corporation and made an order that the plaint be returned for presentation the proper Court. Against this order of the trail Judge, the opponent went in appeal to the District Court at Surat, and the appeal was heard by the learned Assistant Judge in that Court, who came to the conclusion that the civil Court had jurisdiction to hear the suit. He, therefore, set aside the order of the learned trial Judge and remanded the matter back to the lower Court with a direction that it should be registered under its original number and should be disposed of in accordance with law. It is against this decision of the learned Assistant Judge that this revision application has been filed by the Corporation.

3. Sri Vin, learned advocate for the petitioner, urged two main contentions. He drew our attention to the provisions of S. 75 of the Act and contended that in view of the provisions of Sub-section (3) of that section, the civil Court has no jurisdiction to entertain this suit. Alternatively he argued that in view of the provisions of S. 73B of the Act and the appointment of an authority under that section, there was an implied bar of jurisdiction of the Civil Court. He, therefore, contended that the learned Assistant Judge, was wrong in holding that the civil Court has jurisdiction. He also pointed out that there is no other civil Court which has jurisdiction to entertain such a suit and therefore, the order of the learned trial Judge that the plaint should be returned for presentation to the proper Court is not correct. He, therefore, urged that the suit of the plaintiff should be dismissed with costs.

4. Miss Dabu, learned advocate for the opponent, contended that since there was no creation of an Insurance Court up to now, the provisions of S. 75 of the Act do not come into operation and therefore, the bar contained in Sub-section (3) of S. 75 does not arise. She did conceded that in view of the provisions of S. 73B of the Act and the appointment of an authority referred to therein, the jurisdiction would primarily lie with the authority in so far as the matters referred to in S. 73B are concerned. She, however, urged that the matter sought to be agitated in the present suit is not a matter which would fall within the jurisdiction of the authority and therefore, the civil Court has jurisdiction to entertain the suit. It was also urged that the provisions of Chaps. V-A and VI do not provide a self-contained code because the remedy given by the said provisions is not a complete remedy in the sense that there is no right of appeal against the decision of the authority and therefore, there is no implied bar of the jurisdiction of the Court. She also urged that even if there was an implied bar of the jurisdiction of the Court, the authority has acted contrary to law and has violated the provisions of law and therefore, there is jurisdiction in the civil Court. She further stated that in this suit the opponent was claiming a relief of declaration that the Corporation has no right to demand special contribution form him, and therefore, the civil Court has jurisdiction to entertain the suit.

5. The Act has been enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury. Chapter I deals with definition and registration of factories. 'Factory' is defined in S. 2(12) of the Act and the 'principal employer' is defined in S. 2(17) of the Act, Section 3 in Chap. II authorizes the Central Government to establish the Employees' State Insurance Corporation for administering the scheme of Employees' State Insurance in accordance with the provisions of the Act. Chapter IV deals with contributions, Section 40 in that chapter imposes on the principal employer the duty to pay contributions - both of the employer as well as employees - in the first instances. Section 2(14) defines an 'insured person' as an employee - in respect of whom contributions are or were payable. Chapter V deals with benefits available to insured persons under the Act. Chapter VI deals with creation and constitution of Employees' Insurance Court and specifies matters to be dealt with by such Insurance Court. Section 74 in this Chap. VI empowers the State Government to constitute an Insurance Court. Section 75(1) enumerates the questions or disputes which 'shall be decided' by the Insurance Court. Among the matters enumerated in S. 75(1), are the questions or disputes as to Clause (d) the person who is or was the principal employer in respect of any employee and Clause (g) any other matter which is in dispute between a principal employer and the Corporation. Section 75(3) provides as follows :

'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 medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.'

6. Chapter V-A consisting of Ss. 73A to 73I has been added subsequently in 1951 to enact certain transitory provisions. Section 73A provides for levy of special contribution from a principle employer at the rate specified in Sub-section (3) of the section. This special contribution is to be in lieu of contribution payable under Chap. IV of the Act. Section 73B reads as follows :

'(1) If any question or dispute arises in respect of the employers' special contribution payable or recoverable under this chapter and there is no Employees' Insurances Court having jurisdiction to try such question or dispute, the question or dispute shall be decided by such authority as the Central Government may specify in this behalf

(2) The provision of Sub-section (1) of S. 76, Ss. 77 to 79 and 81 shall, so far as may be, apply in relation to a proceeding before an authority specified under Sub-section (1) as they apply in relation to a proceeding before an Employees' Insurance Court.'

Section 73(c) to 73(g) relate to benefits to insured persons, mode of recovery of special contribution and power to call for additional information and to exemption from payment of special contribution.

7. Sri Vin's argument is that the questions whether the opponent is the principle employer in respect of the employees in his factory and other six factories and whether he is liable to pay special contribution in respect of the employees in all these factories are matters which are included within Cls. (d) and (g) of Sub-section (1) of S. 75. Therefore, according to Sri Vin, these questions have to be decided by the Employees' Insurance Court and consequently the civil Court has no jurisdiction to decide or deal with them. Sri Vin argued that the provisions of Sub-section (3) of S. 75 contain an express ouster of the jurisdiction of the civil Court and therefore, effect should be given to that provision in this case. It is an admitted position before us that so far as the local area in which the factories in dispute are situate, as yet, no Employees' Insurances Court has been established under the provision of S. 74 of the Act, and hence it is not possible for anyone to approach that Court and obtain its decision on questions and disputes mentioned in S. 75(1) of the Act. The provisions of Chap. VI of the Act should be read as a whole. The scheme adopted by the legislature is clearly stated in Ss. 74 to 82 is that chapter. The scheme is that there shall be, in the first instance, establishment of the Employees' Insurance Court; it is thereafter only that matters which are enumerated in S. 75(1) can be brought before that Court for decision. It is only when such a situation arises that the provision ousting the jurisdiction of the civil Court can become effective. The provision of S. 75(3) cannot be read in isolation and without regard to the context in which they appear. The arrangement in Ss. 74 and 75 clearly indicates that the Insurance Court is to be established first and the ouster of jurisdiction of civil Court is to be a consequence of the establishment of that Court. If Sri Vin's argument were correct, it would follow that there is no Employees' Insurance Court to decide these questions and yet the civil Court will be denied jurisdiction to decide these questions. In our opinion, the existence of the Employees' Insurances Court is a necessary condition precedent to bring into play the provisions of Sub-section (3) of S. 75 so as to oust the jurisdiction of the civil Court. In so far as the Insurance Court has not yet been established, the provisions of S. 75(3) have not become operative. We are, therefore, not prepared to accept this first contention of Sri Vin.

8. Sri Vin's second contention is based on the provisions of S. 73B which occurs in Chap. V-A of the Act. Section 73B envisages a situation where the Insurance Court has not been established under the provisions of S. 74. In such a case, S. 73B authorizes the Central Government to specify a certain authority and this authority will then have jurisdiction to decide any 'question or dispute arising in respect of the employees' special contribution payable or recoverable' under Chap. V-A. It is admitted before us that the Civil Judge (Junior Division), Surat, has been so specified for the area which would include the factories in dispute. At the relevant time Sri M. T. Trivedi was such Civil Judge who acted as the authority under this section. Sub-section (2) of S. 73B lays down that the provisions of Sub-section (1) of S. 76 and Ss. 77 to 79 and 81 shall, so far as may be, apply in relation to a proceeding before an authority specified under Sub-section (1) as they apply in relation to a proceeding before an Employees' Insurance Court. These sections provide for the procedure to be followed by the Employees' Insurance Court. The authority is required to follow the procedure mentioned in Ss. 76(1), 77 to 79 and 81. Section 76(1) deals with the institution of proceedings shall be instituted before the authority in the manner which is laid down in the provisions of the Act and any rules made by the State Government. Section 77 states that the proceedings shall be commenced by an application. It further lays down the period within which such application should be made and what particulars should be contained in such an application. Section 78 refers to the powers of the authority and it lays down that the authority shall have all the powers of a civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discover and production of documents and material objects, administering oath and recording evidence; and it further provides that such Courts shall be deemed to be a civil Court within the meaning of S. 195 and Chap. XXXV of the Code of Criminal Procedure, 1898. Sub-section (2) of S. 78 provides that the procedure to be followed by the authority shall be the procedure as may be prescribed by rules made by the State Government. Sub-section (3) of S. 78 provides that such authority can makes orders about the costs; and lastly Sub section (4) of S. 78 provides that the order passed by the authority shall be enforceable as if it were a decree passed by a civil Court. Section 79 deals with appearance by legal practitioners before the authority. Section 81 empowers the authority to submit to the High Court any question of law for its decision. These are the various provisions which relate to the powers of the authority and the procedure to be followed by the authority. Sri Vin's contention before us is that these provisions in the Act provide for a self-contained code and therefore, there is an implied bar of the jurisdiction of the civil Court. In our opinion, this contention of Sri Vin should be accepted. The liability to pay special contribution is imposed upon the principal employer by the provisions of S. 73A of the Act. It is, therefore, a liability which did not exist before and which has been created for the first time by the provisions of this statute. The provisions of the statute by which liability is created also provide for the tribunal (i.e., authority) to decide disputes in respect of employees' special contribution and lay down the procedure to be followed by the special tribunal and powers exercisable by it. Provision is also made empowering the tribunal to refer any question of law for the decision of the High Court. It is true that in so far as a decision by the authority is concerned, no right of appeal is provided because S. 82 is not made applicable to a decision by the authority; but that does not make any difference in the ultimate effect.

9. Sri Vin relied in support of his argument upon the decision in Secretary of State v. Nask & Co. [42 B.L.R. 767] and Firm Radha Kishan v. Ludhiana Municipality [A.I.R. 1963 S.C. 1547]. In 42 B.L.R. 767, the Judicial Committee of the Privy Council observed as follows :

'The exclusion of the jurisdiction of the civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'

10. This decision of the Privy Council, therefore, lays down two things; the first is that the jurisdiction of the civil Court should not be readily inferred and if there is no express provision in the stature ousting the jurisdiction of the civil Court, then the provisions of the statute should be such as can given rise to a clear implication that the jurisdiction of the civil Court is barred. Secondly, even if the jurisdiction of the civil Court is barred, still the civil Court will have jurisdiction to entertain the matter provided it is shown that the statutory tribunal has not complied with the provisions of the Act or that it has not acted in conformity with the fundamental principles of judicial procedure. The question as to when the jurisdiction of the civil Court can be said to be impliedly barred by the provisions of a statute was also considered by the Supreme Court in the case of Firm Radha Kishnan v. Ludhiana Municipality [A.I.R. 1963 S.C. 1547] (vide supra). In that case, the Ludhiana Municipality had levied a higher rate of terminal tax on salt imported by the appellant on the ground that the salt was Sambhar salt which, according to the municipal committee was not common salt. The appellant filed a suit to recover the amount collected from him by the municipality as terminal tax on that salt. A question arose in that case whether in view of the provisions of the Punjab Municipal Act (3 of 1911), Ss. 61(2), 84 and 86, the civil Court had jurisdiction to entertain the suit. Under S. 61(2) the municipal committee had power to impose, with the previous sanction of the State Government, any tax which the State legislature had power to impose in the State, subject to any general of special orders which the State Government might make in that behalf. There was no dispute that the State Government had issued a notification empowering the municipal committee to impose terminal tax on common salt and any other salt which was not common salt. Under S. 84, a right of appeal was given against any levy or refusal to refund any tax collected under the Act, to the Deputy Commissioner or such other officers as might be empowered by the State Government in that behalf. In Sub-section (2) of S. 84 it was provided that if on hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of a tax arose, on which the officer hearing the appeal entertained reasonable doubt, he might, either of his own motion or on the application of any person interested, state the case and refer the same for the opinion of the High Court. Under S. 86 it was provided that the liability of any person to be taxed could not be questioned in any manner or by any authority other than that provided in the Act and under Sub-section (2) of S. 86 it was provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provision of the Act and the rules thereunder. The Supreme Court, therefore, noted that under the provisions of the Punjab Municipal Act, a liability is created by the provisions of the statutes and a remedy is provided by the provisions of the statute itself. The Supreme Court considered the decision of the Privy Council to which we have referred and other decisions on the subject and then laid down the law in the following terms :

'The statute may specifically provide for ousting jurisdiction of civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil Court's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.'

11. Applying the principles stated above, the Supreme Court held in that case that the appellant was bound to pursue the remedy provided by the Act and could not maintain a suit in the civil Court.

12. As stated above, the provisions of Chap. V-A create the liability for the payment of special contribution for the first time and provide for a remedy if any dispute arises in respect of the liability to pay special contribution. Section 73B provides for the authority who is empowered to decide this point or dispute. The procedure to be followed by the authority is also prescribed. The authority has power to take a reference to the High Court on any question of law and the authority is bound to follow the decision of the High Court on that question. In so far as the claims or disputes in respect to the employees' special contribution payable or recoverable under Chap. V-A of the Act are concerned, a special forum is provided by the Act and that forum is competent to give a relief. It is, therefore, clear that so far as the matter falls within the jurisdiction of the authority, the civil Court is not competent to entertain any dispute or question in respect of the employees' special contribution. The only limited jurisdiction that the civil Court will have in such matter is, as recognized by the Supreme Court, when the said tribunal abuses its power or does not act under the Act, but acts in violation of the provisions of the Act.

13. Miss Dabu, the learned advocate for the opponent, did not contest the position in law arising from the fact that the authority has been constituted to deal with the question and that the relief should be had from that authority. Miss Dabu's contention, however, was that the relief that the opponent has asked for in the suit is not a relief which is 'in respect of the special contribution.' She stated that the case of the opponent in the suit is that he is not an employer in respect of the other six factories and that though the opponent is the owner of one factory, he is not liable under the Act, as the number of employees is not more than nineteen, to pay any special contribution. Her contribution is that the dispute raised by the opponent in the suit was one which the authority was not competent to decide and therefore, the civil Court has jurisdiction. It is true that S. 73B does not in terms lay down that the authority can decide as to whether a person is or was a principle employer. But the jurisdiction conferred on the authority by the words used in S. 73B is in wide terms. The jurisdiction of the authority is to consider 'any question or dispute in respect of the employer's special contribution payable or recoverable' under Chap. V-A of the Act. If the opponent raises a question that he was not a principal employer, he raises a question 'in respect of the employer's special contribution.' It is, therefore, a question which is covered by the language of S. 73B and therefore, the authority has power to decide whether the opponent is a principle employer in respect of the employees in his own factory as well as in the other six factories which, according to the opponent, are not owned by him and with which he has no concern. This contention of Miss Dabu, therefore, is rejected.

14. Miss Dabu does concede, as we stated above, that if the dispute falls within the jurisdiction of the authority, the opponent is not entitled to go to the civil Court in the first instance. It follows from this statement of Miss Dabu that she does not contest before us in this part of her argument that the authority is the exclusive tribunal before which a question falling within the language of S. 73B should be agitated and got decided. Miss Dabu, however, urged that her case falls within the exception recognized by the Supreme Court. Her contention is that the opponent has stated in the plaint that the authority has acted contrary to law and that the decision of the authority is illegal. She says, therefore, that the opponent has brought has case within the exception recognized by the Supreme Court and therefore, the civil Court has jurisdiction to try the suit. Now, what the plaintiff has stated in the plaint has been summarized by the learned trial Judge in his judgment. From what is stated by the learned trial Judge, it is clear that the opponent contended before the authority that he is not the owner and he has no concern with the other six factories; he further contended that his own factory does not employ more than nineteen persons. He, therefore, contended that he is not liable to pay any special contribution. The authority came to a decision that the opponent is a partner of a firm which owns the six concerns and that therefore he is a principal employer in relation to the employees in all the seven factories. The opponent contends that it is a wrong decision. However, on the mere fact that a wrong decision is given on facts by the tribunal of exclusive jurisdiction, it cannot be said that it has violated any provision of the Act or has acted illegally. There is no contention raised by the opponent in the plaint alleging that any provision of law has been departed from or that the principles of judicial procedure have not been followed. All that is stated in the plaint is that the authority has wrongly come to this conclusion and therefore, the authority acted illegally in holding that the opponent is liable to pay special contribution. The averments made in the plaint, therefore, even if there are accepted as true, do not amount to showing that the authority has violated any provisions of the Act or departed from any principles of judicial procedure. We are, therefore, of opinion that the civil Court has no jurisdiction to entertain this suit. We may note that in support of the argument that by giving a wrong decision on facts, the authority has illegally imposed the liability to pay special contribution on the opponent, Miss Dabu relied on a decision of the Supreme Court in Civil Appeals Nos. 312 and 312 of 1966 (sic), dated 21 August 1968. On going through this decision of the Supreme Court, we do not find any observations in support of Miss Dabu's argument. In that case, the lands were under the management of the State Government, as the person who was entitled to its possession was a minor. The Collector managed the lands on behalf of the Government. During his management the Collector gave on lease certain lands to the defendants. The minor, after he attained majority, got back the management in 1958. He filed a suit to recover the possession of the lands. The defendants took up a contention that they were the tenants in the land and that on account of the amendment of the Bombay Tenancy and Agricultural Lands Act, they had become 'deemed purchasers' with effect from the date when the plaintiff attained the majority. The question, therefore, that arose for decision in that case was, whether the defendants had become owners of the land. For this purpose defendants were required to prove that they were tenants on the relevant date. The question then arose whether the civil Court could decide that question in view of the provisions of Ss. 70 and 85 of the Bombay Tenancy and Agricultural Lands Act. Under S. 70 of the Act, it was the duty of the mamlatdar to decide whether a person 'is' a tenant or not; and under S. 85, the jurisdiction of the civil Court was barred from deciding questions which were required to be dealt with by the mamlatdar under the Act. The Supreme Court held that the question whether the defendants 'were' tenants in the land or not fell to be decide a long time after they ceased to be tenants. Therefore, the question that arose was whether they 'were' tenants at a date which was before the filing of the suit. The Supreme Court held that, under the provisions of S. 70 of the Act, the mamlatdar has a right to decide the question whether a person 'is' a tenant or not at the time when the suit was filed and not at any time previous to the filing of the suit. In our opinion, therefore, this decision of the Supreme Court does not help Miss dabu at all and there is no other authority or provision of law shown to us by Miss Dabu in support of her argument.

15. The result, therefore, is that the civil Court has no entertain this suit. The suit is, therefore, not maintainable in the civil Court. The learned trial Judge was wrong in making an order that the plaint should be returned for presentation to the proper Court.

16. In the result, therefore, we set aside the order passed by the learned Assistant Judge and hold that the civil Court has no jurisdiction to entertain such a suit and the suit is, therefore, ordered to be dismissed. The opponent shall pay the costs of the petitioner throughout and bear his own. Rule is made absolute with costs.


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