TMI Blog2011 (6) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... g any proceedings against the petitioner claiming contribution in respect of Group Organisation Development Reward payment made to their workmen. 2.Notice of motion was ordered on the writ petition on 23.6.2006. Pending the notice, an interim stay was granted. Subsequently, when the matter came up on 27.10.2006, this court admitted the writ petition and also granted the interim stay with a condition that the petitioner shall file an affidavit of undertaking stating that he will make good the amount to the department in case they lost the writ petition. No affidavit has been filed by the petitioner management till date. 3.The case of the petitioner was that it is a manufacturing firm of Semi-finished speedo meter, electrical temperatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing but an incentive and it should be added in the PF calculation. The petitioner was also requested to submit the Acquittance register from 1.3.2002 for calculating arrears. 5.It must be noted that in the present case, no final order has been passed and that the petitioner must produce necessary registers as ordered by the department. In the absence of the order passed by the competent authority, i.e., second respondent, the petitioner cannot rush to this court to stall further proceedings. Ultimately whether the Group Oganisation Development payment would amount to basic wage under section 2(b) of the PF Act is not a mere question of law, but also question of fact involved upon the determination by the authorities. Merely relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 11, the Bombay High Court had observed as follows: 11....This Judgment of the Apex Court should conclude the matter. Therefore any settlement and the Award between the parties cannot be binding on an Authority under the Act who can arrive at a conclusion based on all materials available including settlements if any produced before him. 8.The question as to the authority under Section 7A can go into the question as to whether certain items can come within the term basic wags and he can lift the veil to determine the issue has also been considered by the Supreme Court in Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner reported in (1996) 9 SCC 454. The Supreme court in paragraph 6 of its judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: 31.When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32.No reason could be assigned by the appellants counsel to demonstrate why the appellate jurisdiction of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der vide judgment in ESI Corpn. v. C.C. Santhakumar reported in (2007) 1 SCC 584. The following passages found in paragraphs 17, 25, 28, 30 and 31 of the said judgment may be usefully reproduced below: 17. Prior to the incorporation of Section 45-A under Act 44 of 1966, the only resort available to the Corporation was Section 75, for recovery of contribution through the court. Since this procedure was found to be impracticable and delayed process involved, a special provision was contemplated whereunder adjudication is to be made by the Corporation itself. By reason of incorporation of Section 45-A with effect from 17-6-1967, it became possible for the Corporation to have determination of the question, binding on the principal employer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enge the same under Section 75 of the Act before the ESI Court. 28.What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dispute in the determination either under Section 45-A(1) or under Section 68, the Corporation can straightaway go for recovery of the arrears. 30.The legislature has provided for a special remedy to deal with special cases. The determination of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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