APHC010448102008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3509] WEDNESDAY ,THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO: 1208/2008 Between: The Regional Director, Esi Corporation, Hyderabad. ...APPELLANT AND Texmaco Ltd Yerraguntla And 2 Others and Others ...RESPONDENT(S) Counsel for the Appellant: 1. U.R.P. SRINIVAS Counsel for the Respondent(S): 1. The Court made the following: ORDER: (per Hon’ble Sri Justice Ravi Nath Tilhari) Heard Sri V.Kalyan Chakravarthi, learned counsel representing Sri U.R.P.Srinivas, learned Standing Counsel for the appellant. No representation for the respondents. 2. This appeal has been filed by the Regional Director, Employees State Insurance Corporation under Section 82 of the 2 Employees State Insurance Act (in short ‘E.S.I.Act’), challenging the order dated 18.10.2004 in E.I.Case No.27/2002 by the Employees Insurance Court and Chairman, Industrial Tribunal-I, Hyderabad (in short E.I.Court). 3. Texmaco Ltd., was the original owner of the company dealing with manufacturing and sale of cement. Zuari Cement purchased the company in the year 1982. The 3rd respondent- M/s.Zuari Cement filed two E.I.Case Nos.69/2001 and 85 of 2002 before the E.I.Court under Section 75 of the E.S.I.Act. the Employees Union of Texmaco Ltd, filed E.I.Case No.27 of 2002. They had challenged the demand notices issued under the E.S.I.Act, on the common ground inter alia that the employer was providing superior benefits than the Corporation as also that the Government granted exemption from applicability of the E.S.I.Act but refused such exemption illegally w.e.f. 01.04.1993. 4. After contest, all the three cases were allowed by E.S.I.Court declaring the demand notices as illegal and holding that the 3rd respondent-M/s.Zuari Cement was exempted from the operation of the E.S.I. Act as long as superior or similar medical 3 benefits were being provided to the employees. Common order dated 18.10.2004, was passed by the E.I.Court. 5. The common order dated 18.10.2004 in E.I.Case Nos.69/2001 and 85 of 2002 was challenged in C.M.A.Nos.89 of 2006 and 266 of 2005 respectively. Those two appeals were allowed by this Court by the common judgment dated 21.09.2007, setting aside the order of the E.I.Court and holding that the E.I.Court had no jurisdiction to grant or extend exemption from the operation of the E.S.I.Act. 6. The 3rd respondent-M/s.Zuari Cement approached the Hon’ble Apex Court. The Civil Appeals were dismissed on 02.07.2015. It was held by the Hon’ble the Apex Court that the E.I.Court had no jurisdiction or power to grant exemption from the operation of the Act. 7. The present appeal arises out of the same common order dated 18.10.2004, in E.I.Case No.27/2002. 4 8. In Zuari Cement Ltd. v. Regional Director, E.S.I.C, Hyderabad1, the Hon’ble Apex Court in Paras 12 to 16, held as under: “12. As discussed earlier, in terms of Section 87 of the Act, only the appropriate Government has the power to grant exemption to a factory or establishment or class of factories or establishments from the operation of the Act. In fact, the appellant factory itself has obtained exemption from the appropriate Government - the State Government under Section 87 of the Act for the period from 1986 to 1993. Likewise, the rejection of exemption was also under Section 87 of the Act. While so seeking the relief of declaration from the ESI Court that the appellant is entitled to exemption from the operation of the Act is misconceived. Contrary to the scheme of the statute, the High Court, in our view, cannot confer jurisdiction upon the ESI Court to determine the issue of exemption. The ESI Corporation, of course, did not raise any objection and subjected itself to the jurisdiction of the ESI Court. The objection as to want of jurisdiction can be raised at any stage when the Court lacks jurisdiction, the fact that the parties earlier acquiesced in the proceedings is of no consequence. 13. The Employees' Insurance Court is a tribunal specially constituted for the purpose of deciding any controversy that may arise on the matters enumerated in Section 75 of the Act. A reading of Section 75 of the Act would show that the ESI Court has full jurisdiction to decide all the matters arising between the employer and the Corporation under the Act. Section 75 of the Act sets out the matters to be decided by the ESI Court. As per Section 75(1)(g) of the Act, the 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 1 AIR 2015 SC 2764 5 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 the 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' Insurance Court under this Act. 14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements³, it was held that: (SCC p. 378, para 26) "26. ... It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way." 15. In Babu Verghese v. Bar Council of Kerala¹, it was held as under: (SCC pp. 432-33, paras 31-32) "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylors, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, who stated as under: (Nazir Ahmad case, IA pp. 381-82) where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.' 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh¹, and again in Deep Chand v. State of Rajasthans. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law." 16. Where there is want of jurisdiction, the order passed by the court/ tribunal is a nullity or non est. What is relevant is 6 whether the court had the power to grant the relief asked for. The ESI Court did not have 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 the ESI Court and the impugned judgment¹ does not suffer from any infirmity warranting interference.” 9. Consequently, following the judgment of the Hon’ble Apex Court in Zuari Cement Ltd (supra), the same order dated 18.10.2004 passed in E.I.Case No.27/2002 is also set aside. 10. The C.M.A. is allowed. No order as to costs. 11. As a sequel thereto, interlocutory applications, if any pending, shall also stand closed. _____________________ RAVI NATH TILHARI, J _______________________ CHALLA GUNARANJAN, J Date: 19.02.2025 Pab 7 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN C.M.A.NO: 1208 /2008 Date:- 19.02.2025 Pab 8