EMPLOYEES STATE INSURANCE CORPORATION AND ORS. v. JARDINE HENDERSON STAFF ASSOCIATION AND ORS

Citation: [2006] SUPP. 4 S.C.R. 27

Court: Supreme Court of India

Bench: AR. LAKSHMANAN, LOKESHWAR SINGH PANTA

Case summary

EMPLOYEES STATE INSURANCE CORPORATION AND ORS. v. JARDINE HENDERSON STAFF ASSOCIATION AND ORS.pdf

Judgment text

- -J EMPLOYEES STATE INSURANCE CORPORATION AND ORS. v. JARDINE HENDERSON STAFF ASSOCIATION AND ORS. JULY 25, 2006 [DR. AR. LAKSHMANAN AND LOKESHWAR SINGH PANTA, JJ. ] Employees State Insurance Act, 1948: Section 2(9)(b); Employees State Insurance (Central) Rules, 1950, Rules 50, 51 and 54-Writ petition challenging Notification amending Rules 50, 51 and 54 by which the wage limit for coverage of an employee under the Act enhanced from Rs. 3000 to Rs. 6500-By interim order, High Court restrained employers from deducting ES/ contribution, however, directed them to provide medical facilities-High Court upheld the validity of Notification-Further directed employers to enforce Not! ficationfiwn date ofjudgment-Justification of challenged on the ground that enforcement ofNotification ought to be from date of Notification-Held: High Court's direction for enforcement of Notification w. e.

f the date ofjudgment is pe1fectly justified, fair andjudicious considering the facts and equity and hence calls for no interference under Article 136-Employers-Companies have spent large amount of money on employees in providing medical facilities, it would cause extreme and grave hardship to them ifthey are required to pay contribution for the past several years for no fault oftheir own-This apart, employee-union included workmen who have left or expired and hence deduction of their contribution from salary is not workable-Constitution ofIndia, 1950, Articles 226, 136, 142. Employees State Insurance (Central) Rules, 1950 : Rules 50, 51 and 54-Amendment of Rules 50, 51 and 54 enhancing wage limit-For coverage of employees under the Act-From Rs. 3000 to Rs. 6500 -Held: Is not ultravires-Employees State Insurance Act, 1948- Section 2(9)(b). Equity : Act ofcourt should not prejudice any party-No party to suffer because ·- ~ . of1he orders of the Court if duly complied with.

Maxim: lex non cogit ad impossibilia--App/icabi/ity of Pursuant to the issuance of Notification dated 23. 12. 1996, Rules 50, 51 and 54 of the Employees State Insurance (Central) Rules, 1950, were amended by virtue of which the wage limit for coverage of an employee u/s. 2(9)(b) of the Employees State Insurance Act, 1948 was enhanced from Rs. 3000/- to Rs. 6500/-. Various Employees Unions challenged the vires of the Notification by filing Writ Petitions before High Court. By an interim order, High Court restrained employers from deducting the ESI contributions required to be deposited with the Corporation but continue to provide existing medical facilities to the employees till the disposal of Writ petitions. The Single Judge of High Court disposed of all the Writ Petitions by quashing the amendment of the Rules of 1950. Corporation and Union of India filed appeals against that part of Order by which amendment was quashed. On t6. 3.

2004, Division Bench allowed the appeals holding that .. the enhancement could not be termed as u/1ra vires for the purpose of the Act and that all interim orders passed in this connection staying the operation of the said enhancement are vacated. The High Court further directed that the employers who had stay order in their favour, will implement the amendment only from the date of the impugned judgment of the High Court dated 16. 03. 2004 though the amendment came into operation w. e. f. 01. 01. 1997. The said interim order was n_ot appealed or challenged by the Corporation nor was it stayed during the pendency of the appeal before the Division Bench. Hence these appeals by Corporation. Appellant-Corporation contended that once the Notification is enforced, the applicability of the same will be from the date of Notification and not from any future date. Dismissing the appeals, the Court HELD: I.

The respondent-Companies have spent large amount of money on the employees and provided medical facilities in view of the order of the High Court granting stay/injunction etc. If the High Court had not passed the order of injunction, the respondent-companies would • EMPLOYEES STATE INSURANCE CORPN. '"JARDINE HENDERSONSTAFFASSON 29 have contributed the ESI contribution instead of spending monies on the medical facilities and allowances. In these circumstances, it will cause extreme and grave hardship to the employer if they are required to pay contribution for the past several years for no fault of their own. No party much less the respondents should suffer because of the orders of the Court if duly complied with. 149-C-EI Rajesh D. Darbar & Ors. v. Narasingrao Krishnaji Kulkari & Ors. , 120031 7 SCC 219; Mohammed Gazi v. State of MP. , 120001 4 SCC 342; Somaiya Organics (India) Ltd. & Anr. v. State ofU. P. & Anr. , 120011 5 SCC 519; Harsh Dhingra v. State ofHaryana & Ors.

, 120011 9 SCC 550; Raymond Ltd. v. MP. Electricity Board, 120011 I SCC 534; Ashok Kr. Gupta v. State of U. P. , 119971 5 SCC 201; Sarwar Kumar v. M. Agarwal, (20021 4 SCC 147; Shree Cement v. State ofRajasthan, 1200011SCC765; British Physical Lab India Ltd. v. State ofKarnataka, 1199911 SCC 170;West Bengal Hosiery Association v. State ofBihar & Ors. , 119981 4 SCC 134; Council ofScientific and Industrial Research v. K. G. S. Bhatt, 119891 4 SCC 635; ONGC v. Sendhabhai Vastram Patel, 120051 6 SCC 454; SBP & Co. v. Patel 0 Engineering Ltd. , (20051 8 SCC 618; Union of India & Anr. v. Murugan Talkies, (1996] I SCC 504 and Municipal Corporation ofFaridabad v. Siri Niwas, [20041 8 SCC 195, referred to. 2.

The High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future and should not bear with the liability for the past inasmuch as the employees of the respondents have not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim orders of the High Court. The order passed by the High Court meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of India. (49-F-GI 3.

Passing of the final order by the High Court directing the payment of the ESI contribution from the date of the said judgment does not amount to postponing the enforcement of notifiration, in view of the peculiar circumstances of the case, namely, the non-availability of the facilities, non-deduction of contribution from the members of the union for several years and provision of medical relief by the Management. The High Court's direction for deduction of contribution w. e. f. the date of the judgment is perfectly justified. This apart, the members of the union included casual, temporary, contractual and it will be practically impossible to find each and every member of the union to recover their contribution for the past several years and in fact some of the workmen who would have been the employees during all these years would have left, expired etc. and on account thereof also their contribution cannot be recovered. 149-H; 50-A-CI 4. 1.

The High Court under Article 226 and this Court under Article 136 read with Article 142 of the Constitution of India have the power to mould the relief in the facts of the case. 151-HI Employees' State fo1surance Corpn. v. Kera/a State Handloom Development Corpn. Employees Union (CITU), Kannur, Dist. Kannur, Kera/a and Ors. , 1199411 SCC 268; J. C. Golak Nath & Ors. v. State of Punjab & Anr. , [19671 2 SCR 762; Managing Director, EC! L, Hyderabad and Ors. v. B. Karunakar and Ors. , [19931 4 SCC 727; Gasket Radiators Pvt. Lid. v. Employees' State Insurance Corporation and Anr. , jl9851 2 SCC 68; Employees' Stale Insurance Corporation v. Hotel Kalpaka International, j1993 j 2 SCC 9; i\4afatlal Industries Ltd and Ors. v. Union ofIndia and Ors. , 119971 5 SCC 536 and Bharagath Engineering v. R. Ranganayaki and Anr. , (2003) 2 sec 138, held inapplicable. 4. 2.

This Court under Article 142 of the Constitution of India is empowered to pass such orders as would do complete justice oetween the parties. This Court is also empowered to mould the relief in such a manner so that it is not only just but also equitable even while declaring the law. It is also permissible in law to prospectively overrule the judgment. If the respondent is now allowed to recover from the erstwhile covered employees, it would severely affect industrial relations. Reversal of the impugned order would lead to prosecution, penalty and also interest against the respondent without any faua of the respondent. [52-E, Fl Employees' State Insurance Corpn. v. All India ! TDC Employees' Union and Ors. , [20061 4 SCC 257, distingui:;hed. ONGC Ltd. v. Sendhabhai Vastram Patel and Ors. , [20051 6 SCC 454; Raj Kumar and Ors. v. Union ofIndia and Anr. , 120061 I SCC 737 and SBP Co. v. Patel Engineering Ltd. , 12005[ 8 SCC 618, relied on. 5. l.

The maxim of equity which is founded upon justice and good sense is applied as well as other maxim: lex non cogit ad impossibi/ia (i. e. EMPLOYEES STATE INSURANCE CORPN. "·JARDINE HENDERSON STAFF ASSON. 3J the law does not compel a man to do what he cannot possibly perform). 153-81 Raj Kumar Dey and Ors. v. Tarapada Dey and Ors. , 1198714 SCC 398 and Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. , 119961 2 sec 459, relied on. 5. 2. The act of Court can prejudice no party either the ESI or the respondent-companies. The respondents are therefore relieved from making any contributions for the period in question and are directed to make the contribution as directed by the Division Bench of the High Court. [53-E-F) Employees State Insurance Corporation v. Distilleries & Chemical Mazdoor Union & Ors. , (2006) 6 JT 443 and Chandra Singh and Ors. v. State ofRajasthan and Anr. , 12003) 6 SCC 545, relied on. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1726 of2005.

From the Judgment and Order and dated 16. 3. 2004 of the High Court --'! of Calcutta, in A. P. O. No. 124/2001 from W. P. No. 24811997. WITH C. A. Nos. 3132, 3133, 3134, 3135, 3136, 3137, 3138, 3139, 3140, 3142, 3143, 3144, 3145, 3146, 3147, 3148, 3149, 3150 of 2006. C. S. Rajan, R. Venkatramani, V. J. Francis, Jenis V. Francis, Anupam Mishra, Anjali K. Verma, Niraj Gupta, Meera Mathur, S. B. Upadhyay and Shiv Mangal Sharma for the Appellants. Gaurab Kumar Banerjee, Pradip Ghosh, Kailash Vasdev, Anil Divan, B. C. Sharma, N. P. Agarwalla, P. H. Parekh, Sameer Parekh, Sumeet Lall, Shakun Sharma, Mary Mita for (P. H. Parekh & Co. ), Gaurav Agarwal, Ajit Bhattacharjee, Pinaky Addy, Chiranjan Addy, Chanchal Kumar Ganguli, Vaibhav Gaggar, E. C. Agrawala, S. S. Jauhar, K. V. Vishwanathan, Rahul Ray, S. Rakshit for (Khaitan & Co. ), Rauf Rahim, Mohamr. :~-: ubmissions on behalf of respondent No. 4 Modern Food Industries Ltd. in SLP (Civil) No. 2086 lof 2004.

He made similar submissions and cited the same authorities as others did. Mr. Rana Mukherjee, learned counsel appearing on behalf ofrespondent No. 5, Engel India Machines & Tools (1987) Limited made the following submissions. He submitted that various Jabour Unions of different industries including that of respondent No. 5 challenged the said Notification by filing separate writ petitions in the Calcutta High Court and the High Court by different orders from time to time granted injunction with regard to the said Notification. The said injunction was extended from time to time which, in effect, injuncted the Management from either collecting or making any contributions toward;; the Corporation. Such injunctions were extended and continued from time to time. On 30. 06. 1997, by judgment and order, the learned Single Judge of the High Court declared the said amendments as ultra vires. Being aggrieved by the said order.

the appellant-Corporation filed 120 appeals before the Division Bench of the High Court which stood disposed off by the impugned judgment and order on 16. 03. 2004. It is submitted that respondent No. 5 by way of abundant caution had also in the meantime applied for exemption for the said period of 1997-2004 i. e. the date of the impugned judgment and order under Sectiun 87 of the Act of 1948 which is still pending before the appropriate Government. Learned counsel has also annexed certificates, ddails of expenditure and extracts from the annual report.

It is submitted that the respondent should not be proceeded against by the Corporation under Section 68 of 1948 inasmuch as the contributions towards ESI fund had not been made during the period since the Company was prevented by an order of injunction of the Calcutta High Court and that the said directions, therefore, require no interference by this Court and this Court may exercise its powers under Article 142 of the Constitution of India to do complete justice to the respondent No. 5-herein. EMPLOYEES STATE INSURANCECORPN. "·JARDINE HENDERSON STAFF ASSON. [LAKSl'MANAN. l. J 4 Ms. Mridula Ray Bhardwaj, learned counsel for the respondent in Civil appeal arising out of SLP 20882-20891 of 2004 etc. submitted repeatedly the same arguments on behalf of respondent No. 5 Westinghouse Saxby Farmer Limited. An application in the prescribed Proforma-A for exemption from the provisions of the Act as per and after the Calcutta High Court's direction passed in this order dated 07. 06.

2004 in writ petition No. 8791 of 2004. On 03. 08. 2004, the Company further submitted another set of application in Proforma-A as asked for by the West Bengal Labour Department's letter dated 22. 07. 2004. Thereafter, pursuant to the Government of West Bengal Labour Department's notice dated 30. 08. 2004, 29. 10. 2004, 16. 11. 2004 and 26. 11. 2004, the Company's representative duly attended the hearing in connection with the Company's exemption application. It is stated that the Company has submitted the Comparative Table of Benefits given by the Company to its employees and benefits under the ES! scheme etc. However, no order has yet been passed or communicated by the Labour Department in regard to the respondent-Company's application for exemption. Learned counsel has also furnished the amount of medical expenses paid by the respondent-Company to its employees since 1996-97. Mr. C. K. Ganguli, learned counsel for the respondent in civil appeal (arising out of SLP (Civil) Nos.

20933-20939 of 2004 made submissions on behalf ofHahnemann Publishing Company Ltd. The learned counsel furnished the details about the medical allowances given to the employees and submitted that if the liability is made retrospective, the employer will not be able to recover the contributions from the concerned employees and the employer will have to make both employers and employees contribution. Notwithstanding the fact that the company has incurred huge expenditure for granting liberal medical benefits as coverage of such employees since the notification was stayed. The Central Inland Water Transport Corporation, respondent No. 21 through Mr. S. D. Gupta who is the Head of the Central Inland Water Transport Corporation Ltd. filed an affidavit. It is stated that some employees/workers Union/Associations in CIWIC filed a writ petition in the High Court praying for their exemption from the provisions of the ES! Act, 1948. That pursuant to an order dated 07. 09.

2004 passed by the High Court, the Government of India, Ministry of Labour and Employment issued a notice dated 16. 02. 2005 informing that in connection with exemption from provisions of the Act it has been decided that hearing would be held on 04. 03. 2005 in the said Ministry and all the concerned parties were requested to attend the hearing and make their submissions. The representative of crwrc Ltd. attended the aforesaid hearing on 04. 03. 2005 and made his submissions. As decided in the said meeting, CIWIC under cover of its letter dated 23. 03. 2005 submitted two separate applications both dated 22. 03. 2005 for exemption from the provisions of the ES! Act as amended upto date in respect of its factory establishments which were covered under the provisions of the said Act. That due consideration of the aforesaid appeal and the two applications dated 22. 03. 2005, the Ministry of labour and Employment issued a notification S- 380141612005-SSS-l dated 05. 01.

2006 thereby granting exemption to CIWIC • Ltd. From the operation of the ESI Act, 1948 for the period from 01. 01. 1997 to 30. 09. The order reads as follows:- "Jn exercise of the power conferred by section 88 read with section 91-A of the Employees' State Insurance Act, 1948 (34 of 1948) the Central Government hereby exempts the regular employees in respe::t of two units of Mis Central Inland Water Transport Corporation Limited i. e. Mis. Marine Workshop and Mis Rajabagan Dock yard both in Kolkata, West Bengal from the operation of the said Act for the period from 01. 01. 1997 to 30. 09. 2006" A copy of the said Notification has also been annexed and marked as R-4. It is submitted that in view of the above, CIWJC has been exempted from the provisions and operations of the ES! Act, 1948 for the relevant period from 01. 01. 1997 to 15. 03. 2004 for which the special leave petition has been filed by the Corporation.

It is also further submitted that the Corporation has also been granted exemption from the operation of the ES! Act for further period upto September, 2006. In view of the above. learned counsel submitted that the special leave petition Nos. 20938 and 39 of 2004 be dismissed against respondent No. 21. Mr. P. Gaur, learned counsel for respondent No. 4 in S. L. P. No. 20840 of 2004 (Siemens Workers Union & Others) submitted that this Court will be reluctant to interfere with the discretion exercised by the High Court. In this connection, he cited Municipal Corporation ofFaridabad v. Siri Niwas, [2004] 8 SCC 195. He also submitted that it is not the case of the Corporation that the said exercise of jurisdiction is irrational. In Union ofIndia v. Murugan Talkies (supra) similar relief granted by . , the High Court was not interfered with by this Court. Therefore, he submitted ~ EMPLOYEES STATE INSURANCE CORPN. v. JARDINEHENDERSON STAFF ASSON.

[LAKSHMANAN, J] 49 • that the discretion exercised by the High Court is justified in view of various facts and circumstances and thus prayed that the appeal filed by the Corporation be dismissed. We have given our thoughtful consideration to the questions and issues involved in this matter. We have also perused the pleadings, the order passed by the learned Single Judge and the orders passed by the Division Bench and the written submissions made by the respective parties along with the annexures filed therein. We have already noticed that the respondent-Companies have spent large amount of money on the employees and provided medical facilities in view of the order of the High Court granting stay/injunction etc. If the High Court had not passed the order of injunction, the respondent-companies would have contributed the ESI contribution instead of spending monies on the medical facilities and allowances.

In these circumstances, the submissions made by learned senior counsel appearing for the respondents that it would be unfair and unjust to make the employer to pay contribution towards ESIC .. _,,, since in lieu ofthe contribution to ESIC, the employer provided better medical facilities, in our view holds water and it would cause extreme and grave hardship to the employer if they are required to pay contribution for the past several years for no fault of their own. In our view, no party much less the respondents should suffer because of the orders of the Court if duly complied with. We see much force, substance and merit in the submissions made by the learned senior counsel appearing for the respective respondents and as duly adopted by the other learned counsel appearing for other civil appeals.

> In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution fo; the future and should not bear with the liability for the past inasmuch as the employees of the respondents have not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim orders of the High Court. The order passed by the High Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of India. In our view, passing of the final order by the High Court directing the payment of the ES! contribution from the date of the said judgment does not amount tu postponing the enforcement of notification and the same is also not in violation of the principles laid down by this Court in various judgments referred tu above.

There has been no postponing of the enforcement of the Notification in view of the peculiar circumstances of the case, namely, the non-availability of the facilitks, non-deduction of contribution from the members of the union for several years and provision of medical relief by the Management. The High Court's direction for deduction of contribution w. e. f. the date of the judgment in our view. is perfectly justified. This apart. the members of the union included casual. temporary contractual and it will be practically impossible to find each and every member of the union to recover their contribution for the past several years and in fact some of the workmen who would have been the employees during all these years would have left, exrired etc. and on account thereof also their contribution cannot be recovered. The order passed by the High Court, in our opinion, is perfectly justified in view of the peculiar facts and circumstances of the case.

The High Court, in our opinion, while disposing of the matter has taken a just. pragmatic. fair and judicious view after considering all the equities and facts and circumstances of the case. Extreme hardship might have been caused to both the employer as well as the employee since no medical facilities admittedly have been availed by the workmen from ESlC and the employer had provided medical facilities to the workmen as per the Court orders and in view of the interim order also had paid medical allowances. A similar view was taken by us in the case of Employees State Insurance Corporation v. Distilleries & Chemical Mazdoor Uniun & Ors. in Civil Appeal Nos. 1727 of2005, 3002 and 3003 of2006 by the very same Bench comprising of Dr. AR. Lakshmanan and Lokeshwar Singh Panta, JJ. We have also considen:d the submissions both factual and legal made by Mr. C. S. Rajan, learned senior counsel appearing on behalf of the ESI Corporation.

In our opinion, his argument has no merits in the facts and circumstances of this case and the interim orders passed by the High Court which prevented employer and employee from making any contribution towards ESL In the present case. the law as well as the facts are in favour of the respondents. The High Col. Jr! has correctly appreciated the tremendous hardship that will be caused if arrears are sought to be paid and nobody stands to gain. neither the employer nor the employee under the circumstances. Even assuming that the law is in favour of the ES! , keeping in view the special facts and circumstances of the present case, relief can be denied under Article 136 of EMPLOYEES STATE INSURANCE CORPN "· JARDINEHENDERSON STAFF ASSON. (LAKSMMANAN. 1. J 51 the Constitution of India. In view of the judgment reported in Chandra Singh A . and Ors. v. State of Rajasthan and Anr. , [2003] 6 SCC 545 (Three Judges Bench), Dr. AR. Lakshmanan, J speaking for the Bench held as follows:- "42.

In any event, even assuming that there is some force in the contention of the appellants, this Court will be justified in following Taherakhatoon v. Salambin Mohammad, [1999] 2 SCC 635 wherein this Court declared that even if the appellants contention is right in law having regard to the overall circumstances of the case, this Court would be justified in declining to grant relief under Article 136 while declaring the law in favour of the appellants. 43. Issuance of a writ of Certiorari is a discretionary remedy. [See Champa/al Binani v. CIT, West Bengal, AIR (1970) SC 645. The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant.

Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. [See S. D. S. Shipping Pvt. Ltd. v. Jay Container Sen>ices Co. Pvt. Ltd. & Ors. , (2003) 4 Supreme 44]. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Article 142 ofthe Constitution of India is entitled to pass such order which will do complete justice to the parties. 44........................................................... 45. This Court said that this principle applies to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter.

So even after the appeal is admitted and special leave is granted, the appellant must show that exceptional and special circumstances exist, and that, if there is no interference, substantial and grave injustice will result and that the case has features ofsufficient gravity to warrant a review ofthe decision appealed against on merits. So this Court may declare the law or point out the lower courts' error, still it may not interfere if special circumstances are not shown to exist and the justice of the case on facts does not require interference or if it feels the relief could be moulded in a different fashion. 46. The observations made in paras 15-20 ofthe Taherakhatoon (supra) can be usefully applied to the facts and circumstances of the case on hand. 47. In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the committee of three Judges.

The nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. 48............................................................. 49. We, therefore, would although dismiss the appeals, but we would direct the High Court and the State government to pay all retiral benefits to the appellants herein as expeditiously as possible preferably within a period of three months from the date of communication of this order. No Costs. " This Court under Article 142 of the Constitution of India is empowered to pass such orders as would do complete justice between the parties. This Court is also empowered to mould the relief in such a manner so that it is not only just but also equitable even while declaring the law as observed in para 25 of ONGC Ltd. v. Sendhabhai Vastram Patel and Ors.. [2005] 6 SCC 454 and Raj Kumar and Ors. v. Union ofIndia and Anr. , [2006] 1 SCC 737.

It is also permissible in law to prospectively overrule the judgment as has been done recently in the case of SBP Co. v. Patel Engineering Ltd, [2005] 8 SCC 618. If the respondent is now allowed to recover from the erstwhile covered employees, it would severely affect industrial relations. Reversal of the impugned order would lead to prosecution, penalty and also interest against the respondent without any fault of the respondent. The decision of this Court in /TDC Employees Union (supra) is clearly distinguishable as unlike in the present case. In that case, the High Court did not give any positive direction. The decision of the High Court was not reversed by this Court. - The High Court under Article 226 and this Court under Article 136 read with Article 142 of the Constitution of India have the power to mould .. _ the relief in the facts of the case. EMPLOYEES STATEINSURANCECORPN "·JARDINE HENDERSON STAFF ASSON. [LAKSHMANAN. J. ] 53 ...

I Likewise, the judgment cited by learned counsel for the appellant- Corporation are in a different context altogether and the ratio of the said cases are not applicable to the present case. This apart the maxim of equity which is founded upon justice and good sense was applied as well as other maxim: lex non cogit ad impossibilia (i. e. the law does not compel a man to do what he cannot possibly perform) The applicability of the aforesaid maxim has been approved by this Court in Raj Kumar Dey and Ors. v. Tarapada Dey and Ors. , [1987] 4 SCC 398 and Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. , [1996] 2 sec 459. The ESI Act has enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury. Under the scheme of the Act, function of the ES! Corporation is to derive insurance fund from the contribution from employees and workmen. The employer is entitled to recover workmen's share from the wages of the workmen concerned.

It was argued by the respondent that the employer is providing better medical facilities to the workmen and. therefore, the object and purpose of the Act has been fully satisfied. It is pertinent to notice that none of the employees of the Union have complained about medical services provided by the employer since the object is otherwise fulfilled. No further direction, in our opinion, is required to be passed. The act of Court can prejudice no party either the ES! or the respondentcompanies. We, therefore, relieve the respondents from making any contributions for the period in question and direct them to make the contribution as directed by the Division Bench of the High Court. It is stated that some of the respondents have already filed exemption applications and that the appellant-Corporation has also granted them necessary relief.

We ) also permit the other respondents who have not filed any exemption application may now file the same and if such application for exemption is filed, it is for the authorities to consider the same on merits and in accordance with law. For the foregoing reasons, we dismiss all the appeals filed by the appellant-Corporation in the peculiar facts and circumstances of the cases. The High Court while upholding the Notification has held that the same would apply from the date of the judgment. The said observation is justified in view of the facts and circumstances and the legal submissions made and considered in paragraphs supra. No costs. D. G. Appeals dismissed.