Judgment:
B.R. Arora, J.
1. This appeal is directed against the order dated January 24, 1989, passed by the Judge, Employees State Insurance Court, Jodhpur, by which the learned Judge of the E.S.I. Court dismissed the application under Order 39 rules 1 and 2 read with Section 151 C.P.C., filed by the appellant and refused to grant temporary injunction in favour of the plaintiff.
2. Plaintiff M/s Rahimbux Nabooji Chhipa filed an application under Section 75 of the Employees State Insurance Act, challenging the demand of Rs. 23,825.57p. raised by the E.S.I. Corporation, Jodhpur. Alongwith the suit, an application under Order 39 rules 1 and 2 read with Section 151 C.P.C. was, also, filed, which was dismissed by the learned E.S.I. Court.
3. It is contended by the learned Counsel for the appellant that the appellant factory is not covered by the E.S.I. Act as it has less than twenty employees and is running without any power. It is, also, contended by the learned Counsel for the appellant that no proper opportunity of hearing was given to the plaintiff-appellant before issuing the demand under Section 45 of the E.S.I. Act and no proper enquiry under Section 45 of the E.S.I. Act was made by the E.S.I. Corporation before raising the demand. The learned Counsel for the respondents, on the other hand, has supported the order passed by the E.S.I.
4. I have considered the submissions made by the learned Counsel for the parties.
5. It is not necessary to give any specific finding whether the plaintiff factory is covered under the E.S.I. Act or not, because the application under Section 75 of the E.S.I. Court and if any finding is given in this matter then it will adversely affect the case of the plaintiff itself in the suit pending before the learned E.S.I. Court. The learned Judge of the E.S.I. Court prima facie was of the view that whether the factory of the plaintiff is covered by the provisions of the E.S.I. Act or not, is a question which can be decided only after the production of the evidence by the parties concerned and since the evidence has not yet been led by the parties, therefore, it cannot be finally determined whether the plaintiff factory is covered by the provisions of the E.S.I. Act or not, But prima facie there is the evidence which goes to show that the plaintiff factory is covered by the E.S.I. Act and the provisions of the E.S.I. Act appear to be applicable to the establishment of the appellant and, therefore, if the Judge of the E.S.I. Court refused to grant temporary injunction in favour of the plaintiff then I do not find any reason to Interfere with the order passed by the learned Civil Judge acting as the Judge of the E.S.I. Court. The discetion exercised by the learned lower court in refusing to grant injunction cannot be said to be, in any way, unjust or arbitrary.
6. The second contention, raised by the learned Counsel for the appellant is that no proper opportunity of hearing was given to the appellant-establishment before raising the demand under Section 45 of the E.S.I. Act. It is not in dispute that the notice was given to the appellant before the demand was raised and the appellant appeared before the E.S.I. Corporation and raised certain issues. The matter is still pending for consideration before the E.S.I. Court under Section 75 of the Act and, therefore, it will not be in the interest of justice to decide this question at this stage as it will affect the case of the appellant itself.
7. The learned lower Court has taken into consideration the interest of the plaintiff, also, when while refusing the temporary injunction the Court directed the respondents to return the amount; if ultimately the plaintiff succeeds, with interest @ 12% per annum. I do not find any case to interfere with the order, passed toy the learned Judge of the E.S.I. Court, but in case the appellant succeeds in its case pending before the learned Judge of the E.S.I. Court under Section 75 of the E.S.I. Act and if it is held that the provisions of the E.S.I. Act are not applicable to the plaintiff Establishment then the E.S.I. Court will return all the amounts which are deposited by the appellant or is recovered from it, under the provisions of the E.S.I. Act within the period of three months from the date of the judgment alongwith interest.
8. No substantial question of law is involved in this appeal and the appeal, filed by the plaintiff-appellant, deserves to be dismissed.
9. In the result, I do not find any merit in this appeal and the same is hereby dismissed.