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Section 75 – Employees State Insurance Act, 1948

Employees State Insurance Act, 1948

 

 

75. MATTERS TO BE DECIDED BY EMPLOYEES’ INSURANCE COURT. –

 

(1) If any question or dispute arises as to – (a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee’s contribution, or

 

(b) the rate of wages or average daily wages of an employee for the purposes of this Act, or

 

(c) the rate of contribution payable by a principal employer in respect of any employee, or

 

(d) the person who is or was the principal employer in respect of any employee, or

 

(e) the right of any person to any benefit and as to the amount and duration thereof, or

 

1[(ee) any direction issued by the Corporation under section 55A on a review of any payment of dependants’ benefit, or]

 

2[***]

 

(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, 3[or any other matter required to be or which may be decided by the Employees’ Insurance Court under this Act],

 

such question or dispute 4[subject to the provisions of sub-section (2A)] shall be decided by the Employees’ Insurance Court in accordance with the provisions of this Act.

 

(2) 4[Subject to the provisions of sub-section (2A), the follow­ing claims] shall be decided by the Employees’ Insurance Court, namely:—

 

(a) claim for the recovery of contributions from the principal employer;

 

(b) claim by a principal employer to recover contributions from any immediate employer;

 

5[***]

 

(d) claim against a principal employer under section 68;

 

(e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not law­fully entitled thereto; and

(f) any claim for the recovery of any benefit admissible under this Act.

 

6[(2A) If in any proceedings before the Employees’ Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees’ Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees’ Insurance Court under sub-section (2) of section 54A in which case the Employees’ Insurance Court may itself determine all the issues arising before it.]

 

7[(2B)No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees’ Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation :

 

Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.

 

(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees’ Insurance Court.

 

COMMENTS

 

(i) When an appropriate remedy is available for appeal under section 75 of the E.S.I. Act, the employer cannot file a writ petition; Tuticorin Thermal Power Station Industrial Cooperative Society Ltd. v. Deputy Regional Director, E.S.I. Corpn., Madurai, 2005 LLR 963.

 

(ii) Section 75(2A) is applicable in cases of unscheduled inju­ries; Employees’ State Insurance Corporation v. Hari Hazra, (1989) 58 FLR 762 (Cal).

 

(iii) Insurance Court is a court for all practical purposes; J.C. Patel Kamalaben v. Employees’ State Insurance Corporation, (1987) 55 FLR 337 (Bom).

 

(iv) Jurisdiction of civil court on a dispute as to whether this Act is applicable to a factory or not has been excluded under section 75(3); Employees’ State Insurance Corporation v. Nirmala Chemical Industries, (1994) 1 ALT 4 (DN) AP.

 

(v) Applying the theory of notional extension, the E.S.I.C. will be liable to pay compensation to the employee’s dependants, who died on his way to the factory; Sheela v. Employees’ State Insurance Corporation, (1990) 77 FJR 119 (P&H).

 

(vi) The ESI Court has power to grant an injunction or interim stay; Aggarwal Hardware Industries v. Employees’ State Insurance Corporation, 1976 Lab IC 1354.

 

(vii) A Civil Court cannot determine whether this Act is applica­ble to an establishment or not; Employees’ State Insurance Corporation v. Jalandhar Gymkhana Club, 1992 LLR 733 (P&H).

 

(viii) Jurisdiction of a civil court is barred/ousted; Employees’ State Insurance Corporation v. Jalandhar Gymkhana Club, 1992 LLR 733 (P&H).

 

(ix) The cause of action for contribution would arise only after the decision of the Insurance Court in the proceedings laid under section 75 of the Act. Therefore, in all matters arising for consideration of the Court under section 75 which relate back to the period anterior to October 20, 1989, from when on the amended Act came into force, the bar of limitation would not operate; Deputy Director, Employees’ State Insurance Corporation v. Bhuwalka Steel Industries Ltd., (2003) 2 LLJ 348 (Kar).

 

—————

1. Subs. by Act 44 of 1966, sec. 32, for clause (ee) (w.e.f. 28-1-1968).

 

2. Clause (f) omitted by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).

 

3. Ins. by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).

 

4. Subs. by Act 44 of 1966, sec. 32, for “The following claims” (w.e.f. 28-1-1968).

 

5. Clause (c) omitted by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).

 

6. Ins. by Act 44 of 1966, sec. 32 (w.e.f. 28-1-1968).

 

7. Ins. by Act 29 of 1989, sec. 29 (w.e.f. 20-10-1989).

 

8. Subs. by Act 44 of 1966, sec. 32, for “the Employees’ Insurance Court” (w.e.f. 28-1-1968).

 

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Employees’ State Insurance Act, 1948

 

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