High Court of Judicature at Allahabad
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M/S Amardeep Hospital & Research Centre Private Ltd. & Anr. v. State Of U.P. & Others - WRIT - C No. 26787 of 2007  RD-AH 10553 (8 June 2007)
HON. SHISHIR KUMAR, J
Sri P.K.Srivastava,Advocate accepts notice on behalf of Employees State Insurance Corporation, prays for and is granted three weeks time to file counter affidavit. Petitioners will have two weeks time to file rejoinder affidavit.
List this case in the third week of July, 2007.
The petitioners are running Nursing Home situated at 17-A/22 K.P.Kakkar Road, Zero Road, Allahabad. A notice dated 11/15.5.2007 has been given to the petitioners for covering the establishment under the purview of Section 1(5) /2(12) of the Act. It has been submitted by the petitioners that the petitioners are providing medical facilities, therefore they are not covered under the aforesaid fact. Further submission has been made that the petitioners are not covered by the notification by which it can be said that Nursing Homes and Medical Clinics are covered under the shop and establishment.
Sri P.K.Srivastava, leaned counsel for the respondents submits that as the petitioners are provided medical service which is covered under the Act, is not supported by any notification issued under the law. Reliance has been placed upon the Division Bench judgment of Calcutta High Court in Duncan Gleneagles Hospital Ltd. Vs. Employees State Insurance Corporation reported in (2004) 101 FLR 1134 and another judgment in Employees State Insurance Corporation Vs. Duncan Gleneagles Hospital Ltd. reported in (2005) 106 FLR 1029 (Cal.)
Sri P.K.Srivastava states that some petition filed by nursing homes orders were made that they must avail alternative remedy under Section 75(1)(G) of the ESI Act.
Prima facie I find substance in the objections raised by S.D.Singh that matters to be decided by ESI Court under Section 75, are the act. Where the petitioners challenge the applicability of the Act itself, and the jurisdiction of authorities under the Act, to give notice for complying with the provisions of the Act, the writ petition under Article 226 of the Constitution of India should not be dismissed on the ground of alternative remedy.
Until further orders, the effect and operation of the notice dated 11/15.5.2007 (Annexure 1 to the writ petition) given by Deputy Director, ESI Corporation to the petitioners for compliance of ESI Act shall remain stayed.
W.P. No.26787 of 2007
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