High Court Patna High Court - Orders

M/S Usha Agro Industries Pvt.L vs The State Of Bihar &Amp; Ors on 31 March, 2011

Patna High Court – Orders
M/S Usha Agro Industries Pvt.L vs The State Of Bihar &Amp; Ors on 31 March, 2011
             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
                              -----------

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.)