IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3031 of 2010
M/S USHA AGRO INDUSTRIES PVT.L
Versus
THE STATE OF BIHAR & ORS
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05. 31.03.2011 Respondent no.3 is the workman. He suffered an
accident in employment of the petitioner on 1.8.1991. On
that date the petitioner was not registered with the
Employees State Insurance Corporation (hereinafter
referred to as the E.S.I.C). Subsequently the petitioner has
been registered with the E.S.I.C in 1992 with effect from
1.1.1991 and is stated to have deposited its contributions
for employees which is contended to include respondent
no.3 from 1.4.1991 i.e. from a date prior to the accident
along with penalty.
The workman had moved in Case No. 26 of 2000
under the Workmens Compensation Act. He was awarded
compensation of Rs. 53,040/- on 30.10.2001. It was
questioned by the petitioner in C.W.J.C. No. 13071 of 2002
that respondent was an “insured person” under the
E.S.I.C. Act. The petitioner did not intend to deny benefits
to respondent no.3, but only urged that the latter stood
covered by the payments made by the petitioner with
retrospective effect along with penalty etc. The proceedings
under the Workmens Compensation Act were barred under
Section 53 of the Employees State Insurance Act, 1948.
This Court in the writ petition directed both the authorities
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under the Wormkens Compensation Act and the E.S.I.C
Act to consider the claims of the petitioner accordingly that
the stand of the petitioner that he was willing to render
necessary co-operation.
Fresh orders have been passed on 19.10.2009 by
the authorities under the Workmens Compensation Act
which appears to a reiteration of their earlier stand. This
order is presently assailed.
The petitioner then filed this writ petition on
19.2.2010 after serving two copies of the writ application
on the counsel for the E.S.I.C on 15.2.2010 as also the
State. On 30.4.2010 this Court issued notice to respondent
no.3, and the State respondents as also the E.S.I.C were
directed to take instructions and file a comprehensive
counter affidavit within three weeks so that the matter may
be disposed at the stage of admission itself. On 3.3.2010
respondent no.3, the concerned workman, alone filed a
counter affidavit. The Court then directed that if separate
counter affidavits were not filed on the next date on behalf
of the State of Bihar and the E.S.I.C., the Court may not
grant further adjournment keeping in mind the welfare of
respondent no.3. It was further observed that the Court at
this stage was prima facie concerned for the welfare of
respondent no.3 and not whether he was entitled to relief
under the Workmens Compensation Act or the Employees
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State Insurance Act as the case may be.
Today a counter affidavit has been filed on behalf
of the State during the course of the proceedings.
Learned counsel for the E.S.I.C prays for further
adjournment to file counter affidavit.
No justification or reason has been placed on
behalf of the E.S.I.C. why despite the service of the writ
application as far back as 15.2.2010, the orders of this
Court dated 30.4.2010 and 3.3.2011, no counter affidavit
has been filed by it. There is a right in the respondent to
file a counter affidavit. The right is not absolute to the
extent of the concerned respondent controlling the Court
proceedings itself and stalling it. The Court is satisfied that
the E.S.I.C. has by its conduct stalled the proceedings in
the present writ petition denying timely justice insofar as
the respondent no.3 is concerned. The delay in
consideration of his claims for justice stands attributable
exclusively to the E.S.I.C. If a counter affidavit had been
filed by it today, perhaps the Court may have possibly
disposed off the writ application today itself appropriately
as the pleadings are otherwise complete with the sole
exception of the one respondent.
More than one year has not been considered
sufficient by the E.S.I.C. to file a counter affidavit. Learned
counsel for the E.S.I.C. today submits that he shall try his
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best endeavour that it is filed in the next one week. That is
not the concern of the Court. Further adjournment is
granted to the E.S.I.C. for filing of a counter affidavit
subject to the payment of costs of Rs.10,000/- to
respondent no.3 as he has been the immediate victim of
the delay in filing of the counter affidavit.
In 2010 (12) SCC 70 (Satyapal Singh Versus
Union of India) the Supreme Court has observed at
paragraph-10 on the issue of costs as follows:-
“10. ….. Once the other side is
represented, the costs levied by reason of
any attempt by a party to delay the
proceedings, should normally be for the
benefit of the other party who has suffered
due to such conduct……”
The counter affidavit of the E.S.I.C. must
specifically state that the costs have been paid to the
respondent no.3 enclosing proof of payment. The counter
affidavit must further explain the justification for stalling
the proceedings before the Court, refusing to assist the
court in dispensation of justice, denying timely justice to
respondent no.3. The counter affidavit must fix
responsibility on the official concerned of the Corporation
when it shall be at liberty to recover the costs from his
salary.
As prayed, list this matter at the same position
after one week.
P.K ( Navin Sinha, J.)