5. The petitioner claimed that it has 38 employees and they are getting various types of benefits more than what are provided by the Respondent-Corporation. The provisions of the has not been made applicable and no notification, as envisaged in Sub-section (5) of Section 1 of the said Act, has been published in the official gazette, bringing the club or the area of the club within its ambit.

6. The petitioner by way of precaution had got the club registered under the provisions of the said Act and it has been allotted ESI Code No. 60-15577-112. The petitioner-club, thereafter, had given notice dated 6lh March, 2005 to its employees for deduction of the contribution from their salary for the purpose of deposit in the E.S.I. Fund and to discontinue the medical facilities, which are being given to its employees. The employees did not accept the same and filed a joint representation before the petitioner-club stating therein that they have been getting better medical facilities and benefits and they do not want to become a member of the E.S.I., which provides lesser/inferior benefits (Annexure-2).

7. The petitioner-club tried to pursue the employees, but they did not agree on the ground that they have been getting much better medical and other facilities than what are given by the Corporation. The petitioner in that situation sent letter dated 9lh July, 2007 to the Secretary, Department of Labour, Employment and Training, Government of Jharkhand, requesting him to exempt the petitioner-club from the applicability of the provisions of the said Act. The petitioner has also annexed all the relevant details as required in the prescribed format.

8. It has been stated that Section 87 of the said Act provides for exemption of a factory or establishment or class of factories or establishments in any specified area from the operation of this Act. The petitioner has applied for exemption under the said statutory provision long back, but till date no order has been passed by the appropriate government.

9. The petitioner submitted that on one hand the respondents have kept the petitioners representation pending and on the other they are pressing hard for payment of a huge sum. The petitioner has, thus, also sought an order, restraining the respondents from taking any coercive action for realization of the amount demanded by Annexure-7.

10. The Respondent No. 5 has further directed the Bank of India, Telco to prohibit and restrain the petitioner from operating the account, being Account No. 10081, and from making payment to any other person other than the Respondent No. 5.

11. The petitioner under said circumstance, again filed representation on 18th December, 2007 (Annexure-9) and requested to grant exemption under the provisions of the said Act.

12. The petitioner emphatically stated and submitted that there is no notification under Section 1(5) of the Act, applying the provision of the to the petitioner-club situate in Golmuri Area. The action on the part of the respondents is, thus, wholly arbitrary and illegal. The respondents cannoi make such demand unless the representation filed by the petitioner, before the appropriate authority, is disposed of.

13. The respondents have appeared and contested the writ petition. It has been, inter alia, stated that the writ petition is not maintainable. The same is premature. The petitioner has got statutory alternative remedy under Section 75 of the. The petitioner had earlier applied for allotment of E.S.I. Code, which was allotted to the petitioner. Once the petitioner-club is allotted E.S.I. Code, they have to deposit the contribution of the employees as required under the law. The respondents have already issued order under Section 45(A), directing the petitioner-club to deposit Rs. 3,29,437/-. The demand is legal and valid. The petitioner failed to pay the said contribution and it further wants to escape the statutory liability. Learned Counsel placed reliance on the decision of the Honble Supreme Court in the case of Employees State Insurance Corporation v. Hyderabad Race Club 2004 Lab.I.C. 3201 (SC) and contended that in view of the said decision, the club is an establishment under the. Since the petitioner-club comes under the purview of Section 2(12) of the Act, no notification under Section 1(5) of theis required to be issued separately. It has further been stated that on the one hand, the petitioner has raised the question of applicability of the provisions of the and on the other hand it has applied for exemption under Section 87 of the. Hotels, restaurants, shops, road motor transport establishment etc. have been brought within the purview of the said act by notifications dated 18th August, 1975 (Annexure-A), 20th September, 1996 (Annexure-B) and 25th October, 2004 (Annexure-C). The petitioner, thus, cannot escape the liability of payment of the contribution, as required under the provisions of the said Act.

14. I have heard learned Counsel for the parties and perused the facts and materials on recoid.

15. The admitted position is that the petitioner is a club of the officers of M/s. lata Motors Ltd., who are either in service or retired. It situate at Golmuri, Jamshedpur. According to the petitioner, it is neither engaged in any manufacturing activity as defined in the Factories Act, nor its employees are workmen within the meaning of the. The club cannot be called as factory in terms of Section 2(12) of the. The petitioner has further claimed that its employees are getting better facilities and, thus, opposed the deduction of contribution from their wages to be paid as contribution to the Respondent-Corporation. It has been further submitted that in order to make the provisions of the applicable there must be a specific notification for application of the as required under Section 1(5) of the said Act. There being no such notification, the petitioner-club cannot be brought within the fold of the provisions of the said Act. In a hotel, restaurant or shop there is no restriction of entry of public whereas in the petitioner-club, entry is restricted only to its members or their wards or guests. The petitioner-club has been established to provide the recreational facilities to its members on no profit no loss basis and is a non-profit making organization. The petitioner had applied for grant of registration by way of abandon precaution. The petitioner has claimed that it has filed representation, seeking exemption from the applicability of the provisions of the before the appropriate authority. The said representation is still pending. It has been submitted that during the pendency of the said representation, the respondents cannot force the petitioner-club to pay the contribution amount and the arrears thereof

16. It has been submitted that the decision in Hydera Race Clubs case (Supra) has no application to the facts of the instant case, as in that case, there was a specific notification under Section 1(5) of the Act, whereas no such notification exists in the present case. The provision of the is, thus, not applicable to the petitioner-club and as such, the impugned letters/orders dated 22nd/25th June, 2007 (Annexure-5) and 17th/18th October, 2007 (Annexure-7) are wholly illegal and arbitrary.

17. Learned Counsel submitted that in view of the said facts and provisions of law, certain enquiry is required before applying the provision of the to the petitioner-club as also for exempting the petitioner from the operation of the.

18. I find substance in the said submission. Chapter-VIII of the said Act prescribes provisions for dealing with the claim of exemption. Section 87 empowers the appropriate Government to exempt any factory or establishment or class of factories or establishments in any specified area from the operation of this Act for a period of one year and from time to time to renew the period of one year by issuing notification in the official gazette. Section 91 empowers the appropriate Government to exempt any employee or class of employees in any factory or establishment or class of factories or establishments from one or more of the provisions relating to the benefits provided under this Act with the consent of the Corporation. Section 91(A) provides for exemption either prospectively or retrospectively on such dote as may be specified therein.

19. When the statute or the law provides for consideration of any representation, the representee has got legitimate claim for consideration of the same filed under such provision. In the instant case, the petitioner has filed a representation long back but the same has not been disposed of. The petitioner has, thus, genuinely claimed that its representation deserved to be considered and disposed of by the appropriate Government.

20. Since the petitioner has claimed exemption under the said legal provision, its representation needs to be considered by the appropriate government.

21. In view of the above, this writ petition is disposed of, directing the Respondent No. 1, the appropriate Government, to consider and dispose of the petitioners representation with speaking reasons, after giving the petitioner reasonable opportunity of hearing. Since there has already been long delay, the petitioners representation must be finally disposed of by the said respondent within a period of six weeks from the date of receipt/production of a copy of this order.

22. Until the petitioners representation is finally disposed of by the said respondent, no coercive action shall be taken against the petitioner regarding recovery of any amount of contribution or penalty, including the amount as demanded by Annexures-5 & 7.

Any coercive step already taken in the context, including the order of attaching the petitioners bank account shall stand by and remain ineffective awaiting final disposal of the petitioners representation.