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TMI Blog2006 (7) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 passed by the said Court in C.M.W.P No. 32843 of 1997 which was disposed off by the High Court with certain directions as covered by the earlier decision in C.M.W.P. No. 6920 of 1986. 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 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: 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 employee may avail benefit of the E.S.I Scheme Civil Appeal No. /2006 @ SLP NO. 4202 OF 2005 This appeal filed against the final judgment and order dated 16.09.2004 in C.M.W.P. No. 32843 of 1997 was disposed off by a learned Single Judge of the High Court. The said writ petition was disposed off on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, amounted to postponing the enforcement of the notification and, therefore, it is in clear violation of the principles laid down by this Court in Employees' State Insurance Corpn. Vs. Kerala State Handloom Development Corpn. Employees Union (CITU), Kannur, Dist. Kannur, Kerala and Others, (1994) 1 SCC 268. The learned senior counsel has also relied on certain other judgments of this Court. g) that the impugned direction of the High Court will have far-reaching implications on the enforcement of the provisions of the Act and will also give benefit to those employers by themselves or through employees to obtain stay orders from the High Court under Article 226 of the Constitution of India and thereby assisting them indirectly and, therefore, this is a fit case for interference by this Court under Article 136 of the Constitution of India. Counter affidavit has been filed by respondent No.1 Mazdoor Union and the respondent No.2-employer. Mr. Anil Divan, learned senior counsel invited our attention to the various orders passed by the High Court in the writ petition on 19.05.1986, 17.07.1987, 09.03.1988 and the final order passed by the High Court in the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . That the appellant has not referred to or mentioned about the two important orders that has been passed by the High Court. The said order would show that: The employer company have initially opposed the writ petition filed by the Employees Union and had also prayed for vacation of the ex-parte interim order dated 19.05.1986 passed by the High Court and/or prayed for suitable modification of the order to safeguard the interest of the respondent company (employer), in view of the provisions of the Act. However, the High Court after hearing the parties, confirmed the interim order dated 19.05.1986 and directed that no deduction shall be made either from the employer or the employees towards the contribution under ESI Act provided the respondent employer shall pay medical allowance to its workmen. Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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