Additional Commissioner/ Regional Director, Employees State Insurance Corporation & Anr. v. Mafatlal Industries Ltd

Mr. P.M. Palshikar, for Petitioners. Mr. K.J. Presswala, a/w. Mr. Prasanna Tare, i/b. Vigil Juris, for Respondents. .... CORAM : S.J.KATHAWALLA, J. DATE : 29TH JULY 2009. P.C. By this petition, the petitioners have impugned the order passed by the Employees’ State Insurance Court at Mumbai dated 2nd November 2007 under section 75(2B) of the Employees’ State Insurance Act, 1948. By the said order, the application filed by the applicant for waiver to deposit 50% amount of the damages is allowed.

Mr. Presswala, the learned Advocate for the respondents, has cited the decision in Sadhana Lodh v/s. National Insurance Co. Ltd. and Another [AIR 2003 SC 1561], wherein the Hon’ble Supreme Court has held : 2

Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Art.227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under S. 115 of the C.P.C. Where remedy for filing a revision before the High Court under S. 115 of CPC has been expressly barred by the State Government, only in such case a petition under Art. 227 of the Constitution would lie and not under Art. 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under S.115, CPC, in such a situation a writ petition under Art.227 would lie and not under Art.226 of the Constitution. Thus where the State Legislature has barred a remedy of filing a revision petition before the High Court under S.115, C.P.C., no petition under Art.226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough 3 to attract jurisdiction of High Court under Art.226 of the Constitution.

Mr. Presswala, therefore submits that writ petition as filed under Article 226 of the Constitution of India is not maintainable.

This Court inquired from Mr. Palshikar, the learned Counsel appearing for the petitioners whether the petitioners were desirous of withdrawing the petition and filing it under Article 227 of the Constitution of India. Mr. Palshikar has informed the Court that the petitioners will not be withdrawing the petition. He has submitted that this Court in its recent decision (copy of which was not available with him) has decided that even if a remedy by way of an appeal is provided, a party not wanting to pursue the appeal may approach this Court under its writ jurisdiction. He has further submitted that the matter relates to the Employees State Insurance Corporation and the impugned order allowing waiver to deposit 50% amount of damages ought not to have been allowed.

I have perused the entire order dated 2nd November 2007. Apart from the issue of maintainability, even otherwise, I see no merits in the petition because the order passed is a discretionary order and the 4 same is passed, after discussing the entire law on the subject and giving cogent reasons in support of the order. No interference is therefore called for under the writ jurisdiction.