ORISSA INDUSTRIES LTD Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) HEARD Mr. S. B. Nanda for the petitioners and Mr. S. K. Das, learned Additional Government Advocate, for the opposite parties.

(2.) THE Orissa Industries Ltd. , and its recognised Union, Lathikata Mazdoor Union, are petitioners before this Court. Their prayer is that they should be allowed exemption from the provisions of the Employees' State Insurance Act, 1948 (shortly 'the Act' ). The exemption is claimed on the ground that the facilities provided by the employer are substantially similar or superior to the benefits provided under the Act by the Employees' State Insurance Corporation (shortly 'the Corporation' ). The prayer has been ultimately rejected by the Govt. on the ground that the benefits provided by the management are inferior to those provided under the E. S. I. Scheme. This is the communication of the Deputy Secretary dated April 12, 1984 as at Annexure-21.

(3.) IT is submitted by Mr. Nanda that this decision has been arrived at by the Government without giving a proper hearing to the petitioners. On the question of hearing, our attention has been invited by Mr. S. K. Das learned Additional Govt. Advocate, to Section 89 of the Act which visualises that before granting any exemption, a reasonable opportunity has to be given to the Corporation to make any representation if it may wish in regard to the proposal. Learned Addl. Govt. Advocate submits that this would show that no hearing was contemplated to be given to the employer or for that matter the employees. As the Government is called upon while deciding the question of exemption to examine whether the benefits provided by the employer are substantially similar or superior to the benefits provided under the Act, we are of the view that it would be only just and proper to give a hearing to satisfy the mind of the Govt. In this regard. Merely because Section 89 is silent about giving a hearing to the employer, it cannot be inferred as a matter of course that no hearing is to be given to the employer under any circumstance. In this connection we may refer to M. S. Gill v. The Chief Election Commissioner, (A. I. R.) 1978 S. C. 851, in which it was held that merely because a statutory provision is silent in this regard, principle of natural justice shall not stand excluded. This observation was cited with approval in S. L. Kapoor v. Jagmohan, (A. I. R.) 1981 SC 136 (see para 10 ). As a valuable right of the employer is involved, we are of the view that the demand of the employer that before a decision is taken in the matter of exemption it should be heard, should not be rejected. In the present case, we have found that even the Mazdoor Union has joined hands with the employer in demanding exemption. We are, therefore, of the view that it would be in the interest of justice if along with the Corporation, both the employer and the Lathikala Mazdopr Union, and for that matter, any other Union in existence, are heard in the matter, and we would direct the Government to do so. Let the question be decided by the Government after hearing all the aforesaid parties. After this is done, it would be open to the Government to decide whether to grant any exemption, and if so, whether from one or more provisions of the Act as contemplated by Section 91 of the Act. Let necessary decision in the matter be taken within three months from the date of receipt of the writ from this court.