Allowed

Jai Jagdamba Public School Sansthan v. the Judge, Employees State Insurance Court, Pali

Rajasthan HC21 Dec 2022CW/10254/2019

Case brief

AI extract

What is this about?

The High Court held that a writ petition challenging the rejection of a temporary injunction application under the Employees' State Insurance Act is maintainable as the order is interlocutory. The court set aside the impugned order, directed the petitioner to deposit 50% of the demanded amount within six weeks, and stayed recovery pending the final disposal of the main application provided the dep

What did the court decide?

The impugned order dated 24.05.2019 was set aside; the petitioner was directed to deposit 50% of the demanded amount within six weeks; recovery was stayed till final disposal of the application under

Jai Jagdamba Public School Sansthan Vs the Judge… — Writ and Judicial Review | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Writ Petition No. 10254/2019

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Jai Jagdamba Public School Sansthan, Through The Secretary Hemant S/o Mahendra Kumar, Age 28 Years Address- 31, Rajiv Gandhi Gandhi Colony, Pali Marwar (Rajasthan).

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Jai Jagdamba Uchh Madhyamik Vidhyalaya, 31, Rajiv Gandhi Colony District-Pali (Rajasthan).

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Om Prakash S/o Mahendra Kumar, Aged About 38 Years, By Caste Mewara, Head Master Of Jai Jagdamba Uch Madhyamik Vidhyalaya, 31, Rajiv Gandhi Colony, Pali Marwar District Pali (Rajasthan).

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----Petitioners

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Versus

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1. The Judge, Employees State Insurance Court, Pali, Rajasthan

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Dy Director, Employees State Insurance Corporation, 1/3 And 1/4 Pal Link Road, Jodhpur (Rajasthan).

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The Social Security Officer, Employees State Insurance Corporation Local Office- Near Railway Station, Pali (Rajasthan).

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Authorized Officer, Employees State Of Insurance Corporation, Jaipur (Rajasthan).

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Bhanwar Lal S/o Viradi Chand Ji, Aged About 70 Years, By Caste Kalal, Resident Of 97, Himmat Nagar, Pali Marwar, District Pali (Rajasthan).

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			----Respondents
For Petitioner(s)	:	Mr. P.D. Bohra
For Respondent(s)	:	Mr. Akshat Verma

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HON'BLE MS. JUSTICE REKHA BORANA

Order

21/12/2022

Reportable

The present writ petition has been filed against the order dated 24.05.2019 passed by the Employees State Insurance Court, Pali, whereby an application for temporary injunction preferred by the petitioner-school has been rejected.

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(2 of 6)

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[CW-10254/2019]

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Two preliminary objections have been raised by learned counsel for the respondents:

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(i) First, that the present writ petition is not maintainable in terms of Section 82 of the Employees’ State Insurance Act, 1948 (hereinafter referred to as ‘the Act of 1948’). In support of his argument, learned counsel relied upon a judgment of Hon’ble Allahabad High Court in the case of Modi Steel Unit-A Vs. Employees’ State Insurance Court (S.D.M.), Ghaziabad and Ors. (F.A.F.O. Nos.827 and 828 of 1980) decided on 13.03.1984.

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(ii) Second, that the petitioner-school did not deposit 50% of the recovery amount in compliance of Section 75(2B) of the Act of 1948, therefore, the petitioner itself could not have been heard by the court.

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Replying to the said objections, learned counsel appearing for the petitioners submitted that as held by Bombay High Court in the case of Abdul Shakur Umar Sahigara and Co. Vs. Regional Director, Employees State Insurance Corporation reported in (2004) 101 FLR 1126 and in the matter of Employees State Insurance Corporation Vs. Force Motors Ltd. reported in (2008) 118 FLR 526 , an appeal against an interlocutory order or procedural order which does not finally decide the rights or liabilities of the parties would not lie in terms of Section 82 of the Act of 1948 and therefore, the present writ petition is maintainable before this Court.

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So far as the second objection is concerned, learned counsel for the petitioners fairly submitted that the petitioner-school is bound and is willing to deposit 50% of the demanded amount

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(3 of 6)

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[CW-10254/2019]

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before the court below in terms of Section 75(2B) of the Act of 1948.

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So far as the question of maintainability of the present writ

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petition is concerned, in Abdul Shakur Umar Sahigara’s case (supra), while interpreting the word ‘Order’, the Hon’ble Bombay High Court held as under :

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“With the understanding of the above distinction if one puts a question as to against which order an appeal lies u/s 82, the logical answer would be that it lies against such order which is enforceable as if it is a decree passed in a suit by a Civil Court. Therefore, an appeal u/s 82 of the Act shall lie against an order which has the characteristics of a decree. Such orders could be only those orders passed u/s 75 of the Act which have flavour of or trappings of determination or adjudication of the rights and obligations of the parties. In my view, only such orders can be said to be appealable u/s 82 of the Act and no other.”

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In Force Motors Ltd.’s case (supra), it has been held as

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under :

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“An appeal u/s 82 will not lie against a procedural order or an interlocutory order which does not finally decide the rights or liabilities of the parties.”

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Section 82 of the Act of 1948 reads as under :

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“ 82. Appeal

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(1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees' Insurance Court.

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(2) An appeal shall lie to the High Court from an order of an Employees' Insurance Court if it involves substantial question of law.

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(3) The period of limitation for an appeal under this section shall be sixty days.

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(4) The provisions of sections 5 and 12 of the 118[Limitation Act, 1963] shall apply to appeals under this section.”

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A bare perusal of above provision makes it clear that no appeal would lie against an order of the Employees State

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(4 of 6)

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[CW-10254/2019]

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Insurance Court except those expressly provided for. The only exception to the said provision is a matter which involves substantial question of law. Evidently, the present impugned order is an order whereby the interim order has been refused to be granted by the court. The same does not finally decide the rights and liabilities of the parties. Even the question as to whether the provisions of the Act of 1948 itself would apply to the petitioner-school has not been decided finally. Other question as to whether the demand as raised by the respondent-Corporation has been determined after following due process of law has also been not adjudicated with the observation that the same can be decided only after the evidence being led by the parties.

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Therefore, it is clear that the order impugned does not finally adjudicate the rights and liabilities of the parties and hence in view of ratio as laid down in Force Motors Ltd. (supra), no appeal would lie against the same and therefore, the present writ petition is maintainable.

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So far as the judgment relied upon by learned counsel for the respondents in the case of Modi Steel (supra) is concerned, true it is that in the said case it has been held by Hon’ble Allahabad High Court in the year 1984 that against an order of stay, injunction, an order passed ex-parte or for restoration of an application dismissed for default, an appeal under Section 82 would lie. But in the later judgments of years 2004 and 2008 passed by Bombay High Court in the cases of Force Motors Ltd. (supra) and Abdul Shakur Umar Sahigara (supra), it has specifically been held that an appeal against such order would not lie in terms of Section 82 of the Act of 1948. The judgments in

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(5 of 6)

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[CW-10254/2019]

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both the cases have been passed after relying upon the Hon’ble Apex Court judgment in the cases of Shah Babulal Khimji Vs. Jayaben D. Kania And Another , reported in AIR 1981 SC 1786 and Dnyanoba Bhaurao Shemode Vs. Maroti Bhaurao Marnor reported in AIR 1999 SC 864. Therefore, following the opinion of Hon’ble Bombay High Court, this Court is also of the opinion that the present writ petition is maintainable before this Court.

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As learned counsel for the petitioners has consented to deposit 50% of the amount with the court below, the second objection as raised by learned counsel for the respondents need not be gone into.

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So far as the decision of the application for temporary injunction without depositing of 50% of the amount is concerned, the same cannot be held to be bad. As held by Hon’ble Allahabad High Court in National Thermal Power Corp. Ltd. Vs. Employees State Insurance Corp. Ltd. and Ors. (First Appeal From Order Nos.2368 of 2003 and 1530 of 2008, decided on 11.03.2022), the provisions of law demanding 50% is directory but provisions of Section 75(2B) are not mandatory. Further, there is no bar provided in the Act of 1948 to the effect that even an application for temporary injunction wherein a specific question whether an institute is governed by the Act of 1948, has been raised, cannot be considered and decided without the advance deposit of 50% of the demanded amount.

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So far as the merit of the case is concerned, in the opinion of this Court, a specific issue has been raised by learned counsel for the petitioner-school that it is not governed by the Act of 1948

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(6 of 6)

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[CW-10254/2019]

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and unless and until the said issue is finally decided, the recovery

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of the demanded amount deserves to be stayed.

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In view of above observations, the present writ petition is disposed of with the following observations :

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(1) The order dated 24.05.2019 passed by the Employees State Insurance Court, Pali is set aside;

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(2) The petitioner-school is directed to deposit 50% of the demanded amount with the court below within a period of six weeks from the date of receipt of copy of the present order;

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(3) In the event of such deposit, the recovery of demanded amount from the petitioner-school shall remain stayed till the final disposal of the original application filed by the school under Section 75 of the Act of 1948; and

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(4) If the petitioner-school fails to deposit 50% of the demanded amount as directed above, the present order shall cease to operate.

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(REKHA BORANA),J

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87-AnilKC/-

Jai Jagdamba Public School Sansthan v. the Judge, Employees State Insurance Court, Pali

Case brief

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Jai Jagdamba Public School Sansthan v. the Judge, Employees State Insurance Court, Pali

Case brief

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