1) M/s Nahar Ind r Industrial Enterprises Ltd v. Employees Sta s State Insurance Corporation & Ot Others
Case Details
IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 106+245 CR-938-2024 (O&M) Date of decision: 07.02.2025 Page 1 of 8 8 (cid:1) M/s Nahar Ind r Industrial Enterprises Ltd. Vs. Employees Sta s State Insurance Corporation & Ot Others ...Petitioner(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- ate Mr. Aalok Jagga, Advocate Mr. Harkirat S. Jagdev, Advo Advocate cate Mr. APS Madaan, Advocate for the petitioner. te Mr. H.S. Bhatia, Advocate .1 and 2. for the respondents No.1 a NIDHI GUPTA, PTA, J. *** Present petition under Art r Article 227 of the Constitution of India is filed filed seeking setting aside of order der dated 20.12.2022 (Annexure P9) passed b d by the Court of learned Civil ivil Judge, Senior Division-cum- Employees Ins s Insurance Court, Ludhiana to a a limited extent whereby the impugned ord order under Rule 18(1) has been pa n passed instead of Rule 18(2) of the Employee yees Insurance Court Rules, 1951 951 (hereinafter referred to as “the Rules”); ; and plaint has been ordered t ed to be ‘returned’, rather than ‘transferring’ ’ the application to the learned E ed Employees Insurance Court at Dera Bassi to si to be continued from the sta stage of proceedings already culminated be d before it. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) 2.
Legal Reasoning
Mr. H.S. Bhatia, Advocate ate puts in appearance on behalf Page 2 of 8 8 (cid:1) of respondent dents No.1 and 2 and files Power of er of Attorney, which is taken on record. 3. The petitioner company is y is a company registered under the Companie anies Act having its head office at e at Ludhiana. Brief facts of the case in chrono ronological sequence are as follows: ws: – 25.09.2017 - - The Respondent issued Show how cause notice U/s 45A of Employee Sta State Insurance Act, 1948 (herein reinafter referred to as ‘the ESI Act’), claiming ing Rs.58,30,683/- as deficit contri ntribution payable by petitioner for 2012-13 to 3 to 2015-16. 21.12.2017 – –The petitioner submitted reply reply to the said Show cause Notice. 29.12.2017 – –The respondent issued Order er dated 29.12.2017, assessing final deficit co it contribution payable by petitioner oner as Rs.3,78,55,800/- U/s 45A of ESI Act, 194 1948. 18.05.2018 – –The Appeal filed by the petition itioner U/s 45AA of the ESI Act, 1948 was par partly allowed vide order dated ted 18.5.2018, holding payable deficit contrib tribution to be Rs. 1,24,61,552/-. 30.05.2018 – –The petitioner filed Applicatio ation dated 30.5.2018 bearing CS/2920/2018 018 (Annexure P-10), U/s 75 of the the ESI Act, 1948 before the ESI Court in Ludhi udhiana challenging order dated 18. 18.05.2018. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) 30.05.2018 - - In the said application Notice tice was issued by ESI Court to Respondent f nt for 5.7.2018. On 5.7.2018 ma matter is adjourned for filing written statem atement to 18.07.2018. Page 3 of 8 8 (cid:1) 18.07.2018 – –On 18.7.2018, on the 3rd date date of hearing, without filing written statem atement, the respondent filed App Application (Annexure P-1), for transfer of sui f suit from ESI Court Ludhiana to ESI ESI Court Mohali. 08.08.2018 – –The petitioner filed reply (Anne nnexure P-2), to application for transfer. 09.10.2018–Vi Vide order dated 9.10.2018 (Ann Annexure P-3), the respondent’s Application fo n for transfer was dismissed. 29.05.2019 – –In the meantime, the trial comm mmenced, and vide order dated 29.5.2019 (An (Annexure P-6), PW1 tendered his his affidavit along with exhibits Ex.P-1 to Ex. P x. P-3726. 10.09.2019 – –The respondent challenged ord order dated 9.10.2018 before this Court by by way of CR-5613/19 titled as as ‘Employees State Insurance Corporation V n V/s M/s Nahar Industrial Enterp terprises Ltd.’ in which notice of motion is issu issued vide order dated 10.9.2019 19 (Annexure P-4), for 18.11.19, however no st o stay is granted. 18.12.2019 – –Vide Zimni order dated 18.12.20 2.2019 - available at page 32 of the paper boo book- the evidence of the Plaint laintiff/ petitioner is closed and matter is adjo . djourned for defendant evidence. 08.11.2021 - -Vide order dated 8.11.2021 (An (Annexure P-7) the Defendant/ respondent al also closed his evidence. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) Page 4 of 8 8 (cid:1) 22.09.2022 – – In the meantime, vide order dat dated 22.9.2022(Annexure P-8), the aforemen mentioned CR-5613/19 was allowe lowed by this Court, and Order 09.10.18 was as set aside and Matter was rema emanded back to decide issue of jurisdiction afr afresh. 20.12.2022 – –Vide impugned order dated 20. 20.12.2022 (Annexure P-9) the ld. Trial Court
Decision
ourt disposed of the transfer applic pplication thereby also rejecting the Plaint. 20.02.2023 – –In view of the above, CS-204/23 4/23 was filed before ESI Court, Dera Bassi. 25.10.2023 – –In the said suit, the petitioner fi er filed Application (Annexure P- 12) for attac ttaching the pleadings and evide vidence led by the parties at Ludhiana to be to be treated as part of the record o rd of Courts at Dera Bassi. 22.11.2023 – –Vide 2nd Impugned order dated ted 22.11.2023 (Annexure P-14) passed by th the Ld. Trial Court Dera Bassi, , the said application of the petitioner was was dismissed. 4. It is in this factual backgr ckground that the present civil revision petiti etition has been filed, challenging t ing the orders dated 20.12.2022 (Annexure P P-9) passed by the learned ESI C SI Court, Ludhiana, disposing of the transfer a er application and the plaint of th f the petitioner; and the order dated 22.11.2 11.2023 (Annexure P-14) passed by d by the learned ESI Court Dera Bassi, directing cting fresh trial in the matter. 5. Learned counsel appearing aring on behalf of the petitioner submits that hat the impugned orders are unsu nsustainable, being violative of SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) Rule 18 of the f the Punjab Employees Insurance ce Court Rules, 1951 (hereafter referred to as as ‘the 1951 Rules’). 6. Learned counsel refers to to the said provision to submit Page 5 of 8 8 (cid:1) that by way ay of impugned order dated 20. 20.12.2022 (Annexure P9) the learned ESI Co Court at Ludhiana had ‘returned’ ’ the petition under Rule 18 of the Rules to b to be presented before the Court urt of competent jurisdiction as per law. Learn earned counsel contends that ‘retur eturning’ of plaint is permissible under Rule 18 e 18(1) only at the initial stage wher here on receiving an application it appears to t to the Court that it should be pres presented to another Court. It is submitted tha that at any stage subsequent ther thereto the only option for the Court is to to ‘transfer’ the matter as stipula pulated under Rule 18(2). It is submitted tha that therefore, firstly the learned E ed ESI Court at Ludhiana was an error in ‘return eturning’ the plaint vide 20.12.2022 022 (Annexure P-9) whereas the same ought to ht to have been transferred. Therea ereafter, the learned trial Court at Dera Bassi assi was in patent error in dismis ismissing the application of the plaintiff/petiti etitioner for attaching the writt written statement and record pertaining to to the suit and to proceed with th th the present petition from the stage at whi which it was transferred vide t e the impugned order dated 22.11.2023 (A 3 (Annexure P14). It is according dingly prayed that the present petition be allo e allowed in the interest of justice. 7. Learned counsel for respo spondents No.1 and 2 does not dispute the co e contentions made on behalf of the f the petitioner. 8. No other argument is made ade on behalf of the parties. SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) 9. I have heard learned co counsel for the parties and Page 6 of 8 8 (cid:1) perused the ca e case file in great detail. 10. I find merit in the argum guments advanced on behalf of learned couns unsel for the petitioner. The provi rovision of Rule 18 of the 1951 Rules reads as s as follows: – wrong Court: “18. Application presented to wro plication it appears to the Court (1) where on receiving an applica o another Court, it shall return it that it should be presented to ano rsing upon it the date of the to the applicant after endorsing reason for returning it and the presentation and return, the rea should be presented. name of the Court to which it shou ourt at any stage subsequent to (2) Where it appears to the court plication, that the application the presentation of an applica to another court, in the same should have been presented to ourt shall send the application state the first mentioned Court he has received a copy of the (and the opposite party if he h cordingly. application under rule 19) accordi plication is transferred under sub (3) The Court to which an applicat the the proceeding as the rule art of it has been taken before it, previous proceeding or any part o est of the parties will not thereby if it is satisfied that the interest of be prejudiced." (2) may continue if 11. A bare reading of Rule 1 le 18(1) clearly shows that the option to retu return an application is available to le to the learned trial Court only at the nascent cent stage of presentation of applic pplication. Whereas at any stage subsequent th thereto, the plaint is to be transf ansferred. In the present case, a perusal of the f the zimni order dated 29.05.2019 2019 (Annexure P6) shows that there is volum oluminous documentary evidence ( ce (Ex.P1 to Ex.P3726) adduced by the petiti etitioner/plaintiff. A perusal of f of further Zimni orders dated 18.12.2019 an 9 and 8.11.2021 (Annexure P-7), s 7), shows that the plaintiff and SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) defendant evid evidence also stood closed. It is th therefore, undisputed that the Page 7 of 8 8 (cid:1) evidence of th of the parties stood concluded and e nd even the final arguments had been advance anced before the ESI Court at Ludh Ludhiana. In view of the above facts, Rule 18( 18(2) of the 1951 Rules would com come into play, as per which the learned ESI co SI court at Ludhiana could have only only transferred the matter. For this reason, th n, the order dated 20.12.2022 (Anne Annexure P-9) suffers from error apparent and and cannot be sustained. 12. The above facts have been een noticed by the learned trial Court in impug pugned order dated 22.11.2023 (P (P-14) itself as follows:- to get “3…So, from the above said order returned on the technical groun wants w applicant/plaintiff the pleadings, documents, record, e attached with the present petitio stating that in the earlier petiti Ludhiana was got concluded and allowed and trial is continued from the time of the court and the par the earlier petition No. CS/292 pertaining to the exactly same m well as the court had put their fu time and resources to mature th years, so it would have been be been continued from the same st lead their respective evidence and in the said petition which is requi in the present petition also, as m same. Opposite counsel for the de no objection to the application ke facts. Therefore, if trial of this fa same stage, it will definitely sa parties, however, this court lacks allow such kind of application as by the CPC upon this court in this order it is clear that petition was round of jurisdiction only. Now, the rd, etc. of the said petition etition to cut short the trial by etition the trial of the case at and if the present application is d from the said stage, it will save e parties. This court feels that in S/2920/2018 filed at Ludhiana me matter, both the parties as eir full efforts and invested their re the case which took around 5 n better if the trial could have e stage as both the parties had e and brought material on record required to be brought on record , as matter in both the cases is he defendants has also given his keeping in view the above said this case is continued from the ly save the time of court and lacks competence and power to n as no such power is conferred n this regard. Therefore, keeping SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1) in view of these circumstances, dismissed.” nces, the present application is 13. It is the considered view of w of this Court that in the above Page 8 of 8 8 (cid:1) noted peculiar uliar facts and circumstances of the f the present case, and the order dated 20.12.2 12.2022 (Annexure P-9) stands set a set aside, provision of Rule 18(3) would come e into play. As per Rule 18(3) the the Court to which the matter is transferred ( d (which is the ESI Court Dera B Bassi in the present case), is vested with th h the discretionary power to contin ntinue with the trial at any of its previous stage tage, if the interest of the parties wi s will not be prejudiced. 14. Accordingly, in view of the f the above noted peculiar facts and circumsta stances of the present case, pres present petition is allowed; the order dated ed 20.12.2022 (Annexure P9) an ) and order dated 22.11.2023 (Annexure P14 P14) are set aside; and the ESI Co I Court Dera Bassi is directed to proceed with ith the trial from the stage where ere it had been left, before the ESI Court at L Ludhiana. 15. Pending application(s) if an if any also stand(s) disposed of. 07.02.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.02.15 10:01 I attest to the accuracy and integrity of this document (cid:1)