2014(5) ALL MR 227
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

V.A. NAIK AND A.S. CHANDURKAR, JJ.

Maharashtra State Co-operative Cotton Growers' Marketing Federation Limited & Anr. Vs. Employees' State Insurance Corporation, Nagpur & Ors.

Writ Petition No. 2523 of 2013

8th April, 2014

Petitioner Counsel: Shri M.V. SAMARTH
Respondent Counsel: Shri M.P.M. PILLAI, Shri A.T. PUROHIT, Shri A.M. DESHPANDE

Constitution of India, Arts.226, 227 - Employees' State Insurance Act (1948) - Prohibitory order - Withdrawal of - Prohibitory order was issued by respondent ESI Corporation prohibiting bank from permitting petitioner Cotton Growers Federation from withdrawing amount from its account - Amount lying in account of petitioner Federation was received by respondent Corporation towards contribution payable under ESI Act - Purpose of prohibitory order stood served - Withdrawal of prohibitory order thereafter by respondent Corporation, proper - Respondents are not liable to return amount which is withdrawn. 2002 (1) Mh.L.J. 626 Ref.to. (Para 7)

Cases Cited:
R.P. Sawant & Others Vs. Bajaj Auto Limited & Another, 2002 (1) Mh.L.J. 626 [Para 3,7]


JUDGMENT

JUDGMENT :- The only question that arises for determination in this writ petition is whether on the withdrawal of the prohibitory order dated 04.03.2013 prohibiting the petitioner-Maharashtra State Cooperative Cotton Growers' Federation Limited from withdrawing amount from its account in Bank of India, by the order dated 12.03.2013, the respondent-Employees' State Insurance Corporation was liable to redeposit the amount of Rs.27,25,171/- in the account of the petitioner-Federation on the principle of restitution.

2. The respondent-Corporation had issued recovery certificates against the petitioner under the provisions of the Employees State Insurance Act, as according to the respondent-Corporation, the petitioner-Federation was covered under the provisions of the Act. Against the recovery certificates for the period from 1976 to 1988, the petitioner-Federation filed applications before the Employees' Insurance Court seeking a declaration that the petitioner-Federation is not covered by the provisions of the Act and the issuance of the recovery certificates was bad in law. The applications filed by the petitioner-Federation were dismissed by the Employees' Insurance Court and it was held that the provisions of the Act were applicable to the petitioner-Federation. Several first appeals were filed by the petitioner-Federation against the orders of the Employees' Insurance Court and after hearing the first appeals for admission and issuing notice on the stay application, this Court, by an order dated 30.06.2008, restrained the respondent-Corporation from taking coercive steps for recovering the amount. The stay application was then heard by this Court on 11.08.2008 and as the respondent-Corporation had withdrawn the amount deposited by the petitioner-Federation in the Employees' Insurance Court before the adinterim order was passed on 30.06.2008, this Court observed that there was no question of granting any stay to the impugned orders passed by the Employees' Insurance Court. This Court disposed of the stay applications filed in the first appeals as infructuous, granting liberty to the petitioner-Federation to move an appropriate application, which could be considered on its merits. It is an admitted position that after the order dated 11.08.2008 was passed and the stay applications were disposed of as infructuous, the petitioner-Federation did not file any application for staying the effect and operation of the orders of the Employees' Insurance Court holding that the petitioner-Federation was covered by the provisions of the Act. The first appeals were pending for some time and on 09.12.2013, they were dismissed for want of prosecution. It is informed to this Court by the learned counsel that the first appeals are restored yesterday. In the meanwhile, since there was no stay to the orders passed in the Employees Insurance Cases and since the last of the Employees Insurance Cases, Bearing No.3/2007 was also dismissed by the Employees' Insurance Court on 20.02.2013, the Employees Insurance Corporation issued a prohibitory order dated 04.03.2013 to the Bank of India prohibiting and restraining the Bank until further orders, from making payment from the account of the petitioner-Federation in the Bank, to the petitioner. After the issuance of the prohibitory order dated 04.03.2013, the respondent-Corporation withdrew the sum of Rs.27,25,171/- from the account of the petitioner-Federation towards contribution for the period from 1988 to 2004. After the said amount was withdrawn, the respondent-Corporation cancelled the prohibitory order dated 04.03.2013 by the order dated 12.03.2013. According to the petitioner, in view of the withdrawal of the prohibitory order dated 04.03.2013 by an order dated 12.03.2013, the respondent-Corporation was liable to redeposit the said amount in the account of the petitioner-Federation, by applying the principle of Restitution.

3. Shri Samarth, the learned counsel for the petitioners, submitted that after the withdrawal of the prohibition order dated 04.03.2013, the respondent-Corporation cannot be permitted to retain the benefit acquired by the respondent-Corporation in pursuance of the prohibitory order dated 04.03.2013. The learned counsel submitted that by applying the principle of Quantum Meruit to the facts of this case, it would be necessary to direct the respondent-Corporation to restore the position that was existing at the time of passing of the prohibitory order. It is submitted that if an order granting or bestowing benefits is withdrawn, a party acquiring the benefits cannot be permitted to retain the benefits after the withdrawal of the order. It is submitted that this Court had, by the order dated 30.06.2008 in the first appeals, restrained the respondent-Corporation from taking coercive steps to recover the contribution amount and the respondent-Corporation was not justified in issuing the prohibitory order and withdrawing substantial amount from the account of the petitioner-Federation towards the dues allegedly payable under the provisions of the Act. The learned counsel relied on the judgment of this Court, reported in 2002 (1) Mh.L.J. 626 (R.P. Sawant & Others Versus Bajaj Auto Limited & Another) to substantiate his submission that by applying the Doctrine of Restitution, the respondent-Corporation should be directed to make good the said amount to the petitioner-Federation as the same has been recovered from the petitioner-Federation after issuance of the prohibitory order dated 04.03.2013, and the said order is withdrawn by the order dated 12.03.2013.

4. Shri Pillai, the learned counsel for the respondent-Corporation supported the action of the respondent-Corporation. According to the respondent-Corporation, several applications were filed by the petitioner-Federation before the Employees' Insurance Court for a declaration that the petitioner-Federation was not covered by the provisions of the Act and the recovery certificates issued by the respondent-Corporation were liable to be quashed. It is submitted that all the applications, except application bearing No.3/2007 were disposed of by the Employees' Insurance Court by holding that the petitioner-Federation was covered by the Act and the recovery certificates were not bad in law. It is submitted that though initially, an order was passed by this Court in the first appeals on 30.06.2008 restraining the respondent-Corporation from taking coercive steps to recover the amount, that order stood modified by the subsequent order dated 11.08.2008, whereby the applications filed by the petitioner-Federation for grant of stay, came to be disposed of as infructuous, by observing that there was no question of granting any stay to the impugned orders. It is submitted that in the absence of any stay in the first appeals filed by the petitioner-Federation and with the dismissal of E.S.I. Application No.3/2007 in default on 20.02.2013, there was no hindrance in the way of the respondent-Corporation in taking steps to recover the dues payable by the petitioner-Federation. It is submitted that in this background, to ensure that the petitioner Federation does not withdraw the entire amount lying in the account of the petitioner-Federation in the Bank with a view to frustrate the recovery of the contribution amount, the prohibitory order was passed on 04.03.2013 prohibiting and/or restraining the Bank from permitting the petitioner-Federation from withdrawing the amount lying in the account of the petitioner-Federation. After withdrawing the amount from the account of the petitioner-Federation towards the dues payable under the Act, it is submitted that the respondent-Corporation issued the order dated 12.03.2013, withdrawing the prohibitory order dated 04.03.2013. It is submitted that after the purpose of the respondent-Corporation was served, the respondent-Corporation had issued the order withdrawing the prohibitory order. As the amount was withdrawn from the account of the petitioner-Federation, there was no reason to continue the prohibitory order and, hence, the same was withdrawn by the order dated 12.03.2013. In the aforesaid factual background, according to the learned counsel for the respondent-Corporation, there is no question of applying the principle of Restitution and directing the respondent-Corporation to repay the amount withdrawn by the respondent-Corporation from the account of the petitioner-Federation.

5. Shri Purohit, the learned counsel for the respondentBank and Shri Deshpande, the learned Assistant Government Pleader appearing on behalf of the respondentState, had nothing much to say in the matter as according to them, the relief is sought only against the respondent-Corporation and they appear for the formal parties.

6. On hearing the learned counsel for the parties, it appears that there is no force in the submissions made on behalf of the petitioners. In our view, the respondent-Corporation cannot be directed, in the facts of the case, to repay the amount of Rs.27,25,171/- withdrawn by the respondent-Corporation from the account of the petitioner-Federation. Several applications were filed by the petitioner-Federation before the Employees' Insurance Court for a declaration that the petitioner-Federation was not covered by the provisions of the Act and was not liable to pay the contribution, as demanded. The applicationscases for the period from 1976 to 1988 were dismissed by the Employees' Insurance Court. It was held by the Employees' Insurance Court that the petitioner-Federation was covered by the provisions of the Act. Several first appeals were filed by the petitioner-Federation in this Court. The appeals were admitted by this Court and while issuing notice to the respondent-Corporation on the stay applications, this Court directed the respondent-Corporation not to take any coercive steps to recover the amount. It is notable, that though it is concealed by the petitioner-Federation, as no averment is made in the petition in this regard, the order dated 30.06.2008 was modified by this Court on 11.08.2008 and this Court disposed of the applications filed by the petitioner-Federation for staying the impugned orders of the Employees' Insurance Court, as infructuous. This Court held that there was no question of granting stay to the orders of the Employees' Insurance Court. Though the petitioner Federation was granted liberty to move an appropriate application, it is not in dispute that no application was filed in the first appeals seeking stay to the orders of the Employees' Insurance Court or further recovery. In our view, the petitioner ought to have disclosed about the order dated 11.08.2008, whereby the applications filed by the petitioner-Federation were disposed of as infructuous. This is a case of Suggestio Falsi-Suppressio Veri. According to the averments in the petition, the respondent-Corporation could not have taken any steps to recover the amount from the petitioner-Federation in view of the order dated 30.06.2008, whereby the respondent-Corporation was restrained from taking coercive steps to recover the amount. While a case is tried to be built on the basis of the order dated 30.06.2008 in the first appeals, there is a concealment of the fact that the said order was modified and the applications for stay were disposed of as infructuous by observing that there is no question of granting any stay to the orders of the Employees' Insurance Court.

7. Be that as it may, not only were the orders of the Employees' Insurance Court dismissing the applications filed by the petitioner-Federation before the Employees' Insurance Court not stayed by this Court but the only application bearing E.S.I. Application No.3/2007, that was pending till 20.02.2013 was also dismissed in default by the Employees' Insurance Court on the said date. In the absence of any stay to the orders of the Employees' Insurance Court holding that the provisions of the Act were applicable to the petitioner-Federation and with the dismissal of the last E.S.I. Application bearing No.3/2007 on 20.02.2013, it is rightly submitted on behalf of the respondent-Corporation that there was no obstacle in the way of the respondent-Corporation in recovering the amount due and payable by the petitioner-Federation from the account of the petitioner-Federation, in accordance with law. Hence, the prohibitory order was issued by the respondent-Corporation on 04.03.2013 prohibiting the bank from permitting the petitioner-Federation from withdrawing the amount from the account of the petitioner-Federation with a view to frustrate the recovery. After the amount lying in the account of the petitioner-Federation was received by the respondent-Corporation towards the contribution payable under the Act, the respondent-Corporation rightly issued the order dated 12.03.2013 withdrawing the prohibitory order dated 04.03.2013. It is rightly submitted on behalf of the respondent-Corporation that the purpose of issuance of the prohibitory order stood served after the amount was withdrawn from the account of the petitioner Federation towards contributiondues payable under the Act. After the purpose was served, in our view, as rightly submitted on behalf of the respondent-Corporation, there was no reason to continue the prohibitory order dated 04.03.2013. Any further continuation of the prohibitory order after withdrawal of the amount from the account of the petitioner-Federation may have been illegal. In the facts of the case, it, therefore, cannot be said that the respondents are liable to return the amount that was recovered by the respondent-Corporation from the account of the petitioner-Federation on the basis of a prohibitory order that was subsequently withdrawn. It is not necessary that in each and every case, where an order is withdrawn that a restitution of the benefits, so derived would follow. The Hon'ble Supreme Court and this Court has time and again laid down the principles and mentioned the circumstances in which restitution would be necessary. In the facts of the case, there is no reason to direct the respondent-Corporation to redeposit the amount withdrawn from the account of the petitioner-Federation merely because the prohibitory order dated 04.03.2013 is withdrawn by the order dated 12.03.2013. The judgment reported in 2002 (1) Mh.L.J. 626 (R.P. Sawant & Others Versus Bajaj Auto Limited & Another) and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. In the case before the Hon'ble Supreme Court, the workmen were removed during the pendency of their complaints before the Industrial Court under Item 6 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and in that background, the Hon'ble Supreme Court observed that the complaints could not have been scuttled by the unceremonious removal of the complainants from service and the Doctrine of Restitution would come to the rescue of the complainants in such cases. It is no doubt true that the Court would have jurisdiction, or for that matter even inherent jurisdiction to order restitution wherever justice demands the same. Neither are the provisions of Section 144 of the Code of the Civil Procedure,1908, which speak of restitution, applicable to the facts of this case, nor does justice demand in this case, that the Principles of Restitution should apply.

8. The petitioner-Federation may have moved this Court in the first appeals or in E.S.I. Application No.3/2007 for restitution after its restoration, if the principles of restitution under Section 144 were to apply but, this relief could not have been sought in writ jurisdiction, in the facts of the case, only because of the withdrawal of the prohibition order. When there is an unjust enrichment, the Doctrine of Restitution may apply. This is surely not a case of unjust enrichment as canvassed on behalf of the petitioner-Federation. The Employees' Insurance Court had held that the petitioner-Federation was covered by the provisions of the Act. There was no stay to the orders of the Employees' Insurance Court. If the amount lying in the account of the petitioner-Federation was withdrawn by the respondent-Corporation in the facts of the case towards the recovery of the dues under the Act, it cannot be said that there was unjust enrichment on the part of the respondent-Corporation. We also fail to understand how the principles of Quantum Meruit could be applied to this case.

9. Apart from what we have observed hereinabove, we find that this is a case where the petitioner-Federation has not approached this Court with clean hands. As already stated hereinabove, the petitioner has only disclosed the adinterim order in the first appeals, restraining the respondent-Corporation from taking coercive action against the petitioner-Federation for seeking the relief and has concealed the important and material fact that the said order stood cancelled by the subsequent order and the stay applications filed by the petitioner-Federation were disposed of as infructuous by observing that there was no question of granting stay to the orders of the Employees' Insurance Court. A party who fails to approach the Court with clean hands, would anyway not be entitled to any relief in writ jurisdiction.

10. In the facts of the case and for the reasons recorded hereinabove, the writ petition is dismissed with costs.

Petition dismissed.