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TMI Blog2015 (8) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction to consider the question of grant of exemption, order passed by the ESI Court granting exemption and consequently setting aside the demand notices is non-est. The High Court, in our view, rightly set aside the order of ESI Court and the impugned judgment does not suffer from any infirmity warranting interference. - Decided against appellant. - Civil Appeal Nos. 5138-40/2007 - - - Dated:- 2-7-2015 - T.S. Thakur and R. Banumathi, JJ. JUDGMENT These appeals are preferred against the judgment dated 21.09.2007 passed by the High Court of Andhra Pradesh allowing Civil Miscellaneous Appeals and thereby setting aside the order of ESI Court granting exemption to the appellant from the operation of Employees State Insurance Act, 1948 (for short the Act ). 2. Brief facts which led to the filing of these appeals are as under:- The appellant is engaged in the business of manufacture and sale of cement situated at Yerraguntla in Cuddapah District. The said area was brought under the purview of ESI Scheme with effect from 1.03.1986. The Government of Andhra Pradesh granted exemption to the appellant-cement factory from the operation of the Act by various orders f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e workmen union were allowed and the ESI Court granted future exemption to the appellant from the coverage of the ESI Scheme and the ESI Court also set aside the impugned demand notices for the period between 1993 to 2001 and the interest thereon. Assailing the said order, the ESI Corporation filed appeal before the High Court contending that ESI Court does not have power under Section 75 of the Act and it is only the appropriate government which has got the power under Section 87 of the Act to exempt anyone from the application of the Act. By the impugned judgment dated 21.09.2007, the High Court allowed the appeals of the Corporation holding that ESI Court does not have the power to grant exemption under Section 75(1)(g) of the Act. In these appeals, the appellant assails the correctness of the above judgment. 4. Mr. Debal Kumar Banerji, learned Senior Counsel for the appellant contended that the appellant approached the ESI Court pursuant to the directions of the High Court issued in different writ petitions that the ESI Court has the jurisdiction to decide the issue of exemption and in the second round of litigation, the High Court was not right in saying that ESI Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries or establishments.-The appropriate Government may by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment or class of factories or establishment in any specified area from the operation of this Act for a period not exceeding one year and may from time to time by like notification renew any such exemption for periods not exceeding one year at a time. A close perusal of Chapter VIII of the ESI Act i.e. Sections 87 to 91A of the Act will show that only the appropriate government has been empowered to exempt any factory or establishment or class of factories or establishments in any specified area from the operation of the Act for a period not exceeding one year and may from time to time renew such exemption for a period not exceeding one year at a time. Under Section 89, the appropriate Government shall not grant exemption under Section 87 or Section 88 unless a reasonable opportunity has been given to the Corporation to make any representation it may wish to make in this regard. A combined reading of Sections 87, 88 and 89 would go to show that it is a two tier consideration, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed under Section 75 of the Act and the ESI Court constituted under Section 74 of the Act, cannot decide the legality or otherwise of an order relating to exemption passed by the appropriate government. 10. Learned Senior Counsel for the appellant vehemently contended that grant of exemption to a factory or establishment from the operation of the Act falls within the jurisdiction of ESI Court under Section 75(1)(g) of the Act which specifically empowers the ESI Court to decide any matter which is in dispute between a principal employer and the Corporation in respect of any contribution or benefit or other dues payable or recoverable under the Act. It was submitted that only pursuant to the orders of the High Court, the appellant approached the ESI Court and the ESI Court has exercised its power to grant exemption on the basis of the orders of the Division Bench of the High Court. It was submitted that ESI Corporation submitted itself to the jurisdiction of ESI Court and while so, it cannot turn round and raise objection as to its jurisdiction to consider the issue of exemption and in support of his contention, learned Senior Counsel for the appellant placed reliance upon the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 75(1)(g) of the Act, ESI Court is empowered to decide any matter which is in dispute between the employer and the Corporation in respect of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided by the ESI Court under the Act and such question or dispute subject to the provisions of sub-section (2-A) shall be decided by the ESI Court in accordance with the provisions of the Act. When considered in the light of clauses (a) to (d) in Section 75 (1) of the Act, the expression any other matter occurring in Section 75(1) (g) only means any other dispute between an employer and corporation or a person and Corporation pertaining to the contribution or benefit or other dues payable under the Act or any other matter required to be decided by ESI Court under the provisions of the Act. Grant or refusal of exemption by the appropriate government cannot be said to be a dispute between the employer and the Corporation. For grant or refusal of exemption, a specific provision is prescribed under the Act, it cannot be brought within the ambit of any other matter required to be decided by the Employees Insuranc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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