M. RAMA JOIS, J. ( 1 ) THE Management of Hotel Ashok, an unit of the India Tourism Development Corporation (ITDC) for short) has presented this writ petition praying for quashing the legality of an order of reference made under S. 10 of the Industrial Diputes Act. ( 2 ) THE relevant facts of the case are as follows: The Petitioner Hotel is situate at Bangalore and is an unit of the ITDC, It employs about 400 workmen. In the matter of regulating conditions of service of the employees of the Hotels of the ITDC, one of the rules framed by the ITDC, is for providing medical attendance 'the India tourism Development Corporation medical Attendance Rules ('the Rules' for short) copy of which is produced as annexure-J in the petition. Rule 11 (5) of the Rules reads: -"these Rules will not be operative in any unit from the date such an unit is brought under the ESI act. "in the year 1973 itself, the ESI Corporation, the third respondent to the petition had intimated the petitioner that the employees of the Hotel should be covered by the ESI scheme. The petitioner raised objection to the applicability of the ESI Act to the Hotel, but the ESI Corporation was persisting its demand to bring the employees of the petitioner under the beneficial schme of the ESI Act. This insistence was on the basis that in the kitchen section of the Hotel electric power was being used for manufacturing articles of food. The petitioner raised a dispute as to the applicability of the ESI act to it, before the ESI Court under s. 75 of Act. The relevant portion of the order passed by the ESI Court reads: -" - Their evidence, discloses that more than twenty employees have been employed in the kitchen section and that electric power is being used for preparation and preservation of certain food stuffs and also for cleaning, washing and keeping the food stuffs cool. * * * * the evidence and records thus prove that more than twenty employees are employed in the kitchen sections of the hotel and that power is used for the preparation of food stuffs. The learned counsel for the applicant contended that preparation of food stuffs does not constitute manufacturing process. * * * * the evidence and records thus prove that more than twenty employees are employed in the kitchen sections of the hotel and that power is used for the preparation of food stuffs. The learned counsel for the applicant contended that preparation of food stuffs does not constitute manufacturing process. It was submitted, in reply by the learned counsel, for the respondent that preparation of food stuffs with the aid of various electrical appliances in the kitchen of the hotel does constitute manufacturing process and that such a hotel the whole itself can be covered under the esi Act as a factory. The submission was supported by the authority of Poona Industrial Hotel Limited v. I. C. Sarin (1980 Lab. I. C. page 100) the authority supports the contention of the respondent. * * * *10. The learned Counsel for the applicant then argued that since the hotel is registered and covered under the Karnataka Shops and Establishments Act, it cannot be called as a factory and that there can be no coverage under S. 2 (4) of the Act. There is nothing in any provision of the ESI Act to indicate that an establishment need not be a factory as well. An establishment can very well be an industrial establishment and there can be no two opinions not convinced by the submission that since it is an establishment, it cannot be a factory. 11. The learned Counsel for the applicant further contended that the corporation cannot bifurcate only the kitchen sections and try to cover the same. I do not find that there is any bar against the, Corporation to determine and claim contribution only as regards the section of the establishment as a factory. In the case of D. V. Jagati v. ESI Corporation (FIR, 1982 (44) page 125) a similar question had arisen. It has been held in the said authority that an employee who is doing something which is incidental or preliminary to or connected with the work of the factory is an employee of the factory. In the case at hand it is an admitted fact that all these employees are working in the kitchen sections. It has been held in the said authority that an employee who is doing something which is incidental or preliminary to or connected with the work of the factory is an employee of the factory. In the case at hand it is an admitted fact that all these employees are working in the kitchen sections. From the principles laid down in this authority, I am of the opinion that the Corporation has acted in fair and reasonable manner in covering only the employees of the kitchen where manufacturing process is carried out with the aid of power by more than 20 employees. 16. It has been held that the kitchen sections of the applicant hotel are liable to be covered for the period as shown in the impugned order Ex. A. 2. The Respondent Corporation shall re-do the calculations after giving -reasonable opportunities to the applicant and shall claim contribution only on actuals". The ESI Court held that the kitchen Section of the Hotel comes within the definition of the word 'factory' as denned in S. 2 (12) of the ESI Act and, therefore, the persons employed in the kitchen come under the coverage of the ESI Act and the scheme framed thereunder. The esi Court also agreed that once the povisions of the ESI Act is held applicable to the kitchen establishment of the petitioner Hotel, all other employees also would come under the coverage of ESI scheme. It, however, confined its finding in respect of kitchen establishment only. After the above decision was rendered by the ESI court the petitioner decided to implement the ESI scheme. Accordingly issued circular dt. 29-2-1983 (Annexure-B ). It reads:circular the Hon'ble Employees Insurance court has passed an order in its judgment on 8-12-82 that Hotel Ashok, Bangalore should be covered under ESI scheme immediately. Accordingly it is decided to implement the Scheme w. e. f. 7th February 1983 to enable the employees to submit the declaration forms as required under the scheme. Therefore, all covered employees should collect their forms from Personnel Department and submit the same within two days the forms can be had from Personnel Department from 1st February, 1983 onwards". Accordingly it is decided to implement the Scheme w. e. f. 7th February 1983 to enable the employees to submit the declaration forms as required under the scheme. Therefore, all covered employees should collect their forms from Personnel Department and submit the same within two days the forms can be had from Personnel Department from 1st February, 1983 onwards". The workmen represented by their union, however, raised a dispute and in this behalf addressed a letter (An- nexure-C) to the Deputy Labour Commissioner, It reads: - * * * * subject: Change in service condition withdrawing customary practice by managment of Hotel Ashok (I. T. D. C.) Bangalore. All the employees of Hotel Ashok, bangalore are enjoying the Medical benefit under the I. T. D. C. Medical rules. This practice is in existence since so many years. But suddenly, on 29th Jan. 1983 the management has put a circular on the notice board stating that they are going to introduce ESI scheme in our Hotel w. e. f. 7th February 1983. While putting this kind of a circular the management has not consulted us and violated the principles of S. 9-A of the industrial DISPUTES ACT, 1947 1947. Moreover the management has no right to change the service conditions of the employees withdrawing the customary practice aa termed in IVth schedule of the Industrial Disputes act 1947. As per term 8 of IV schedule of the INDUSTRIAL DISPUTES ACT, 1947, no employer can change the conditions of service applicable to any workmen in respect of any customary concessions or privilege or change in usage without prejudice, we wish te state that the existing facility with regard to the medical benefits is comparatively superior to the benefits enacted in the ESI Act and we are demanding the management to continue the present system without reducing the existing benefits. Therefore we request you kindly to advise the management not to alter service conditions of the employees. Further we request you kindly to admit this matter in conciliation and pass necessary orders". In connection with the above letter, the management also addressed a letter dt. 1-3-1983 (Annexure-D) to the Deputy Labour Commissioner. Therefore we request you kindly to advise the management not to alter service conditions of the employees. Further we request you kindly to admit this matter in conciliation and pass necessary orders". In connection with the above letter, the management also addressed a letter dt. 1-3-1983 (Annexure-D) to the Deputy Labour Commissioner. The letters indicate, while the stand of the workmen was that the Rules were more beneficial than the ESI scheme and, therefore, they were asking the management not to reduce those benefits and their contention was that withdrawal of the benefits under the Rules without issuing notice prescribed under S. 9-A of the INDUSTRIAL DISPUTES ACT, 1947, was unlawful, the stand of the petitioner management was that it had no alternative than to Introduce the ESI scheme having regard to the provisions Of the Act, and that if they failed to introduce the ESI scheme, they were liable for penal action under the provisions of the Act and that all along r. 11 (5) of the Rules itself provided that from the date of coverage of the esi scheme to the employees of the hotel, the Rules would cease to apply and, therefore, no change was effected. ( 3 ) THEREAFTER the State Government made a reference vide Annexure- f dated 5-4-1983. It reads:-"no. SWL 217 LLD 83. Karnataka Government secretariat, multistoreyed Buildings, bangalore, dated 5-4-1983. ORDER whereas the Government of Karnataka are of opinion that an industrial dispute exists between the workmen and the management of hotel Ashok (ITDC) High Grounds, bangalore on the points noted below: and whereas the Government of karnataka consider it desirable to refer the dispute for adjudication. Now, therefore, in exercise of the powers, conferred by clause (d) of sub-S. (1) of S. 10 of the Industrial disputes Act, 1947 (Central Act No. 14 of 1947), the Government of Karnataka hereby refer the said dispute for adjudication to the Industrial tribunal, Bangalore. POINTS OF DISPUTE (a) Are the management of the hotel Ashok (ITDC), High Ground, p. B. No. 5095, Bangalore-1, justified introducing the ESI Scheme in their establishment? Are the workmen of hotel Ashok (ITDC), High Grounds, p. B. No. 5093, Bangalore justified in going on strike with effect from 3-3-1983 on the said issue? (b) If so, to what relief (s) the workmen are entitled?". Are the workmen of hotel Ashok (ITDC), High Grounds, p. B. No. 5093, Bangalore justified in going on strike with effect from 3-3-1983 on the said issue? (b) If so, to what relief (s) the workmen are entitled?". (underlined italic by me) questioning the legality of the said notification this petition was presented on 24-5-1983. During the pendency of this Writ Petition, the State Govenment amended the first question by way of an Addendum as per notification dated 7-5-1983. It reads:-"no. SWL 217 LLD 83. Karnataka Government secretariat, multistoreyed Buildings, bangalore, dated 7th May 1983. ADDENDUM in Government Order No. SWL 217 lid 83 dt. 5-4-1983 the word appearing in para (a) of points of dispute after the word establishment, the following word shall be added- "and in stopping medical benefits to their employees under I. T. D. C. Medical Attendance Rules". ( 4 ) SRI. K. Kasturi, learned Counsel for the petitioner, submitted as follows: The application of the provisions of the ESI Act to the employees of the hotel was not the Act of the petitioner, but it was by operation of law. There was no question of the management being in a position to introduce or not to introduce the provisions of the ESI Act. The third respondent ESI Corporation statutorily entrusted with the responsibility of enforcing the provisions of the esi Act called upon the petitioner to comply with the provisions of the ESI act. The petitioner disputed the applicability of the ESI Act to it and raised a dispute before the ESI Court. The esi Court held that the kitchen section of the Hotel falls within the definition of the word 'factory'. The jurisdiction to decide that question is exclusively vested in the ESI Court. In view of this decision, all the employees of the Hotel automatically come within the coverage of the ESI scheme in view of the decision of the Supreme Court in in the case of Hyderabad Asbestos Cement Co. , v. ESI Court. (AIR 1978 S. C. 356 ). The Industrial Tribunal ('tribunal' for short) had no jurisdiction to decide as to whether the ESI Act was applicable to the petitioner Hotel or not. Hence the reference is incompetent. ( 5 ) SRI. M. C. Narasimhan, learned counsel for respondent-4 and Sri. Anantharam, Secretary of Respondent- 4, Union addressed arguments. (AIR 1978 S. C. 356 ). The Industrial Tribunal ('tribunal' for short) had no jurisdiction to decide as to whether the ESI Act was applicable to the petitioner Hotel or not. Hence the reference is incompetent. ( 5 ) SRI. M. C. Narasimhan, learned counsel for respondent-4 and Sri. Anantharam, Secretary of Respondent- 4, Union addressed arguments. Their arguments may be summarised as fol- lows: (I) The provisions of the ESI Act have not at all become applicable to the Hotel as no notification under S. 1 (5) of the Act has been issued by the central Government, which is the appropriate Government to issue such notification as Hotel Ashok is a Central Government undertaking. (II) The Tribunal has jurisdiction to decide as to whether the provisions of the ESI Act were applicable and in fact it is the ESI Court which had no jurisdiction to decide the question of applicability of the Act as the same did not fall within the purview of it jurisdiction conferred under S. 75 of the ESI Act. (III) Even on the basis that 'kitchen' of the petitioner Hotel is 'factory' as held by the ESI Court, the other employees are not covered by the provisions of the ESI Act and the scheme framed thereunder. 5. As far as the first and third questions are concerned, I have considered and answered them in W. P. No. 2609 of 1983 presented by the workmen of the petitioner questioning the legality of the circular issued by the petitioner informing the introduction of the ESI scheme in respect of its employees, in the order pronounced in that petition to-day. On consideratipn of the provisions of S. 1 (3) of the ESI Act and the definition of the word 'factory' given in S. 2 (12) of the ESI Act, I have held that kitchen of Hotel Ashok came within the meaning of that word and therefore the provisions of ESI Act had come into force in respect of Hotel ashok by the force of S. 1 (4) of the esi Act from the date of its establishment in the City of bangalore as the provisions of the ESI Act had already come into force before that date in the area of the Corporation of the City of Bangalore. I have respectfully agreed with the view taken on a similar question by the Bombay High Court in the case of Poona Industrial Hotel v. I. C. Sarin (1978 LIC 1759) and Madras High court in the case of E. S. I. C. v. Spencer and Co. , (1980 LIC 100 ). As regards the applicability to employees other than those working in the kitchen, but in the same hotel; I have also held, in view of the aforesaid two judgments and the judgment of the Supreme Court in the case of Hyderabad Asbestos Cement Co. , v. ESI Court, (1978) (1) llj. 181 -AIR 1978 S. C. 356) indubitably the provisions of the ESI Act apply to all the employees. Therefore as far as the first and third contentions are concerned, they have got to be and are answered in favour of the petitioner for the reasons set out in the order in w. P. No. 2609 of 1983. ( 6 ) THE next and the only question for consideration is whether the state Government could have referred the first question far adjudication and whether the Tribunal had jurisdiction to decide the said question. The first question together with addendum, reads :-"are the Management of Hotel ashok (ITDC) High Grounds, P. B. No. 5095, Bangalore-1 is justified in introducing the ESI Scheme in their establishment and in stopping benefits to their employees under the itdc Medical Attendance Rules?"the underlined portions were added subsequently by way of addendum by notification dt. 7-5-1983 during the pendency of the petition. The first question referred in the first instance called upon the Tribunal to decide as as to whether the petitioner management was justified in introducing the esi scheme. The contention of Sri Kasturi, learned Counsel for the petitioner is that it is not the management which introduced the ESI scheme, but the esi Act and the scheme became applicable to the petitioner Hotel in view of the mandatory provisions of the ESI act. By referring such a question, the tribunal is called upon to decide whether the management was justified in obeying the provisions of the ESI Act and the scheme or whether the ESI act is applicable to the petitioner hotel. He submitted that if the question to be decided was that:- (I ). By referring such a question, the tribunal is called upon to decide whether the management was justified in obeying the provisions of the ESI Act and the scheme or whether the ESI act is applicable to the petitioner hotel. He submitted that if the question to be decided was that:- (I ). even if the ESI Act is applicable whether the management was justified in implementing the ESI act, it would be plainly contrary to the provisions of the ESI Act, and (II) whether the provisions of esi Act were applicable to the petitioner Hotel, such a question falls squraely within the exclusive jurisdiction of the ESI Court and, therefore, the reference to that extent is bad as the Tribunal had no jurisdiction to decide that issue. ( 7 ) SRIYUTHS M. C. Narasimhan and anantharam, per contra, contended that the Tribunal had jurisdiction to decide as to whether the provisions of the ESI Act were applicable to Hotel ashok and in fact their contention was that the ESI Court was not invested with the jurisdiction to decide the said question. ( 8 ) I shall, in the first instatnce, make a brief survey of the provisions of the ESI Act. The ESI Act as the preamble indicates, was enacted to provide certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. S. 38 of the ESI Act reads:-"38. All Employees to be insured:- subject to the provisions of this Act all employees in factories or establishments to which this Act applies shall be insured in the manner provided by this Act" (underlined italic by me ). S. 39 provides for payment of contribution by employers and employees as provided in the ESI Act for the purpose of giving insurance coverage in respect of matters specified in the preamble and for which purpose specific provisions have been made in the Act. The coverage extends to all employees, permanent, temporary and even casual. (See: Regional Director ESI v. Suvarna s. M. (1979 (2) Kar. L. J. 158 ). S. 27 provides for constituting ESI fund. The coverage extends to all employees, permanent, temporary and even casual. (See: Regional Director ESI v. Suvarna s. M. (1979 (2) Kar. L. J. 158 ). S. 27 provides for constituting ESI fund. For the purpose of administering the fund and the provisions of the act, a Corporation called the 'esi Corporation' is constituted under S. 3 of the ESI Act and powers to promote measures of health of insured persons is conferred on the Corporation and its standing Committee under Ss. 29 and 19 of the ESI Act respectively. The various types of benefits such as sickness benefit maternity benefit, dependents' benefit, disablement benefit, funeral benefit and the quantum and scales of such benefits to be provided to the employees are incorporated in Chapter V vide Ss. 46 to 59-A of the ESI Act. S. 61 of the ESI Act provides that a person who is entitled to the benefits under the ESI Act shall not be entitled to receive similar benefits under any other enactment S. 72 of the esi Act requires the employers not to reduce benefits to an employee only because he is required to pay contribution under the provisions of the ESI act. It reads:- 72. Employer not to reduce wages, etc:- No employer by reason by of his liability for any contributions payable under this Act shall, directly or indirectly reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act". Chapter VI incorporates provision for adjudication of diputes and claims under the provisions of the ESI Act. Relevant sections are 75, 81 and 82. They read:-"75. Chapter VI incorporates provision for adjudication of diputes and claims under the provisions of the ESI Act. Relevant sections are 75, 81 and 82. They read:-"75. Matters to be decided by Employees' Insurance Court:- (1) If any, question or dispute arises as to:- (a) Whether any person is an employee within the meaning of the act or whether he is liable to pay the employee's contribution, or (b) the rate of wages or average daily wages of an employee for the purposes of this Act, or (c) the rate of contribution payable by a principal employer in respect of any employee, or (d) the person who is or was the principal employer in respect of any employee, or, (e) the right of any person to any benefit and as to the amount and duration thereof, "or' (ee) any direction issued by the corporation under S. 55a on a review of any pyament of dependent's benefits, or (1) ** ** ** (g) any other matter which is in dispute between a principal employer and the Corporation or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues Payable or recoverable under this act, or any other matter required to be or which may be decided by the employees' Insurance Court under this Act. Such question or dispute subject to the provisions of sub-sec. (2a) shall be decided by the Employees' Insurance court in accordance with the provisions of this Act. (3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal Tribunal or by the Employees insurance Court. 81. Reference to High Court :- an Employees' Insurance Court may submit any question of law for the decision of the High Court and if it does so shall decide the question pending before it in accordance with such decision. 82. Appeal.- (1) Save as expressly provided in this section, no appeal shall lie from an order of an employees' Insurance Court. (2) An appeal shall lie to the high Court, from an order of an employees' Insurance Court if it involves substantial question of law. 82. Appeal.- (1) Save as expressly provided in this section, no appeal shall lie from an order of an employees' Insurance Court. (2) An appeal shall lie to the high Court, from an order of an employees' Insurance Court if it involves substantial question of law. (3) The period of limitation for an appeal under this section shall be sixty days. (4) The provisions of sections 5 and 12 of the Indian Limitation Act, 1908 shall apply to appeals under this section. " (underlined italic by me ). S. 85 of the ESI Act makes disobedience of the provisions of the ESI Act punishable. It reads: -"85. Punishment for failure to pay contributions, etc:- if any person:- (a) fails to pay any contribution which under this Act he is liable to pay, or (b) deducts or attempts to deduct from the wages of an employee the whole or any part of the employer's contribution Or (c) in contravention of S. 72 reduce the wages or any privileges or benefits admissible to an employee , or (d) in contravention of S. 73 Or any regulation dismisses, discharges, reduces or otherwise punishes an employee, or (e) fails or refuses to submit any return required by the regulartions, or makes a false return, or (f) Obstructs any Inspecter or other official of the Corporation in the discharge of his duties, or (g) is guilty of any contravention of or non-compliance with any of the requirements of this Act or the rules or the regulations in respect of which no special penalty is provided, he shall be punishable: - (i) where he commits an offence under clause (a) with imprisonment for a term which may extend to six months, but - (a) which shall not be less than three months, in case of failure to pay the employees' contribution which has been deducted by him from the employees' wages; (b) which shall not be less than one month, in any other case, and shall also be liable to fine which may extend to two thousand rupees. Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term or of fine only in lieu of imprisonment; (ii) where he commits an offence under any of the clauses (b) to (g) (both inclusive) with imprisonment for a term which may extend, to six months or with fine which may extend to one thousand rupees, or with both",ss. 88 to 91-A of the ESI Act empowers the appropriate Government to exempt, specified factories or establishments or specified class of employees from the provisions of the ESI act. ( 9 ) THERE is no dispute that no notification under any of the provisions of the ESI Act has been issued according exemption to hotel Ashok or any class of persons employed in the Hotel. Therefore all the employees of the Hotel have come under, the coverage of the ESI Act as held in the order made today in W. P-No. 2069/83. If the petitioner fails to comply with the provisions of the ESI -Act, it is liable to be punished for disobedience of the provisions 'of the ESI act as provided in S. 85. Therefore, a question as to, whether the petitioner was justified in implementing the ESI Act and scheme in spite of the same having come into forte, cannot arise at all. ( 10 ) BUT the contention urged for respondents 3 and 4 was the provisions of the ESI Act are not applicable to Hotel Ashok and the government had the power to refer such a dispute for industrial adjudication and the industrial tribunal had the jurisdiction to decide the question. The contention has to be considered with reference to two aspects, namely- (I) whether or not the ESI court has exclusive jurisdicton to decide as to whether the provisions of the ESI Act are applicable to a factory or establishment ? (II) Whether the dispute relating to applicability of the Act arising in this case is an industrial dispute at all ? i shall now proceed to consider these two aspects one by one. (II) Whether the dispute relating to applicability of the Act arising in this case is an industrial dispute at all ? i shall now proceed to consider these two aspects one by one. ( 11 ) IT appears to me, the question as to whether the ESI Court has got exclusive jurisdiction to decide a dispute concerning the applicability of the provisins of the esi Act in respect of an establishment or not, has to be decided having due regard to the relevant provisions of ESI Act. From the wording of S. 75 of the ESI Act extracted earlier, it may be seen that clauses (a) to (f) of the said section specifies matters In respect of which the ESI Court is required to decide. According to the petitioner, question as to the applicability of the ESI Act comes within clause (2 ). However, the petitioner contends that in any event it comes under clause (g), which inter alia, provides that all other matters in espect of any contribution or enefit payable or recoverable under he provisions of the ESI Act in respect of which there is a dispute between a principal employer and the Corporation, it shall be decided by the ESI Court. There can be no doubt that one of the matter which could be a matter of dispute between an employer and the Corporation, when an employer is called upon by the Corporation to introduce esi scheme for his employees, could be the applicability of the provisions of the ESI Act itself to his factory or establishment. If the employer contends that the provisions of the ESI Act were not applicable and therefore, the corporation was not justified in calling upon him to introduce the esi scheme and, therefore, that contribution was not recoverable from him, such a dispute has to be raised before the ESI Court for the section says that such a dispute shall be decided by the ESI Court. Against the decision of the ESI court either of the parties has got a right of appeal to the High Court on a substantial question of law vide S. 82. Under S- 81 there is also a provision for 'reference by the ESI Court, of any question of law arising in a dispute pending before it, to the High court. Against the decision of the ESI court either of the parties has got a right of appeal to the High Court on a substantial question of law vide S. 82. Under S- 81 there is also a provision for 'reference by the ESI Court, of any question of law arising in a dispute pending before it, to the High court. The question of applicability of the provisions of the ESI act in respect of an employer in a given case might constitute a substantial question of law and an appeal therefore could be preferred to this Court against the decision of the ESI Court or the ESI Court itself could refer the question to the High Court. Sub-sec. (3) of S. 75 of the ESI Act expressly bars the Jurisdiction of the Civil Court. ( 12 ) A carefull examination of the scheme of the provisions incorporated in the ESI Act for deciding disputes and claims arising under the provisions of the ESI Act, gives no room for doubt that the esi Court has been constituted as a Court of exclusive jurisdiction in respect of disputes arising in connection with the applicability or implementation of the provisions of the ESI Act. The provision for appeal and reference to the High court and the bar of jurisdiction of the Civil Court give the clearest indication that the intention of the legislature was to constitute the esi Court as the Court of exclusive jurisdiction to decide all disputes in connection with the applicability and implementation of the provisions of the Act and, therefore, the jurisdiction of any other Court or tribunal by necessary implication is barred unless in respect of any particular matter specific jurisdiction is conferred on any other tribunal. The contention of the 3rd and 4th respondents, if accepted would lead to anomolous and in congruous resultsl suppose, the petitioner had preferred an appeal to this Court against the decision of the ESI Court holding that the kitchen of Hotel Ashok was 'factory' and it was confirmed by this Court. If the contention of the petitioner is correct, even then the Government could refer the same question for Industrial adjudication and the industrial Tribunal could sit in judgment over the decision of not only the ESI Court, but also of this court. If the contention of the petitioner is correct, even then the Government could refer the same question for Industrial adjudication and the industrial Tribunal could sit in judgment over the decision of not only the ESI Court, but also of this court. Similar would be the position when the ESI Court after securing the opinion of the High Court on reference had decided such an issue. Certainly that is not the intention of the. Legislature. ( 13 ) (1) Learned Counsel for res- pondent-4 relied on the following decisions of the Supreme Court in support of his submission that the question of applicability of the esi Act to the petitioner Hotel could be a subject matter of adjudication by the Industrial Tribunal; (1) B. W. C. Mills v. Their Workmen, (AIR. 1968 SC. 585 ). (ii) Gujarat State Co. O. P. L. D. Bank v. P. R. Mankad, (AIR. 1979 SC. 1203 ). (iii) Workmen af N. G. Bunk v. N. G. Bank, (AIR. 1976 SC. 611 ). (2) In the case of B. W. C. Mills certified standing orders of the company contained provisions for grant of leave to workmen. The workmen, however, raised a dispute as to the quantum of leave and demanded better leave facilities than those provided in the standing orders. The Government referred the following question for industrial adjudication :"whether the standing Orders filed by the Management and now certified by the Qertif ying Authority be modified as a modification to the existing Standing Orders as amended (demanded) by the employers through their association in the light of the views and as indicated in the Annexure to the notification". The management questioned the jurisdiction of the industrial Court to decide the said issue on the ground that as the authority functioning under the standing orders had certified that the provisions were reasonable, the Industri, 1 Tribunal bad no jurisdiction to decide the reasonablenese of the standing orders. This Court rejected the contention of the management. The management took the matter in appeal before the Supreme Court. On the second question urged in the appeal relating to the jurisdiction of the Industrial Tribunal, on a consideration of the provisions of the i:d. Act and of the Standing Orders act, the Supreme Court said at paragraph 23 thus-". . . . . . . . . . . . On the second question urged in the appeal relating to the jurisdiction of the Industrial Tribunal, on a consideration of the provisions of the i:d. Act and of the Standing Orders act, the Supreme Court said at paragraph 23 thus-". . . . . . . . . . . . THE discretion of the state Government, under S. 10 of the Act, is very wide. It may be that the workmen, affected by the standing orders, may not always, and in every case, succeed in obtaining a reference to the industrial Tribunal, on a relevant point. These are some of the circumstances for giving a right and a remedy to the workman, under the Standing Orders Act Itself, but there is no indication, in the scheme of the Standing Orders act, that the jurisdiction of the industrial Tribunal, to entertain 'industrial dispute' bearing upon the standing orders of an Industrial establishment, and to adjudicate upon the same, has in any manner been abridged, or taken away, by the Standing Orders Act". Learned Counsel relied on paragraph 23 and submitted that on the same reasoning it should be held that the jurisdiction of the ESI court was not exclusive and the question of applicability of the ESI act should be a subject matter of reference to industrial Tribunal. ( 14 ) THE discussion made in the earlier part of the paragraph indicates that the jurisdiction of the industrial Tribunal was upheld in view of the specific items in Schedule II and III to the INDUSTRIAL DISPUTES ACT, 1947, They are : the Second Schedule * * * 2. The application and interpretation of standing orders". * * * the Third Schedule * * *4. Leave with wages and holidays," in view of the specific conferment of power on the industrial Tribunal to decide the above issues, it was held that there was nothing in the standing Orders Act which ousted the jurisdiction of the Industrial tribunal, to decide as to whether the condition of service regarding leave provided for in the Standing orders required modification. ( 15 ) (1) The present case is entirely different. Obedience to the provisions of the ESI Act are mandatory unless exempted by notification issued by the appropriate Government. Therefore no question as to the justness of the implimentation of the provisions of the ESI Act and the scheme frarned thereunder could arise at all. ( 15 ) (1) The present case is entirely different. Obedience to the provisions of the ESI Act are mandatory unless exempted by notification issued by the appropriate Government. Therefore no question as to the justness of the implimentation of the provisions of the ESI Act and the scheme frarned thereunder could arise at all. The ESI Court has held that the provisions of the ESI act are applicable to the petitioner hotel. It is not open to the Tribunal to hold that the management was not justified in implementing the provisions of the Act or to make an award directing it not to Implement the provisions of the ESI Act. (2) The decision of the Supreme court on the first question in the case of B. W. C. Mills shows that the industrial Tribunal has no jurisdiction to modify or supersede a condition of service which is lawfully binding on the parties. The first question was, whether in the face of a binding settlement in force the tribunal had jurisdiction to decide the same point. The Supreme Court held-". . . . . . . . . . . . FROM this, it will follow that when there is a subsisting award, binding on the parties, the tribunal will have no jurisdiction to consider the same points, in this reference. * * *24. But in view of our finding on the first point, that the award, exhibit M-6, had not been terminated it follows that the reference, made by the State Government, dated March 20, 1963, in this case, is incompetent, and the Industrial tribunal has no jurisdiction to adjudicate upon the same in I. D. No. 8 of 1963. In the result, the order of the High court is set aside, and a writ of prohibition, restraining the second respondent, from proceeding with the adjudication, in I. D. No. 8 of 1963, will issue, and the appeal allowed, to that extent. Parties will bear their own costs, in this appeal. " (underlined italic by me) if that is the position, when a binding settlement is in force, It is moreso when the conditions of service are laid down by law and in the ease by this provisions of the ESI Act. Parties will bear their own costs, in this appeal. " (underlined italic by me) if that is the position, when a binding settlement is in force, It is moreso when the conditions of service are laid down by law and in the ease by this provisions of the ESI Act. The Industrial Tribunal has no jurisdiction to hold that the management was not justified in Implementing the provisions of the ESI Act and ask it not to implement it. ( 16 ) (1) In the case of A. Bhojaraja Setty v. Stale of Myosre (W. P. No. 2134/1967 DD. 1-9-1972) a division bench of this Court held that when a condition of service like age of retirement was fixed by a statuatory provision the Industrial tribunal had no jurisdiction to decide whether the age of retirement so fixed by law was justified, and to hold that it was not justified and to fix a higher age of retirement. In view of the ratio of this judgment it is clear that the Tribunal had no jurisdiction to ask the management not to implement the provisions of the ESI Act. (2) The decision in Gujarat State co. Op. Ld. Bank's case also does not In any way advance the case of respondents 3 and 4. In that case, the Supreme Court held that a dispute regarding removal from service of an employee of a Co-operative society established and functioning under the provisions the Gujarat co-operative Societies Act, 1962, was not a dispute required to be decided under that Act and that the Industrial Tribunal had jurisdiction to decide, the dispute. In coming to that conclusion, the supreme Court pointed out that the expression 'any dispute' used in S 25 (1) of that Act did not cover a dispute by an employee of a society challenging the legality of his removal. Therefore the ratio is not apposite'to this ease. Respondents 4 and 5 however relied on paragraph 28 of the judgment. It reads-"28. The matter can be looked at from another angle also. The law of industrial disputes or indstrial relations is a special law dealing with rights and obligations specially created by it. As against this, the provisions in S- 54 of the Act of 1925/s. 95 of the act of 1961 is a general provision. It reads-"28. The matter can be looked at from another angle also. The law of industrial disputes or indstrial relations is a special law dealing with rights and obligations specially created by it. As against this, the provisions in S- 54 of the Act of 1925/s. 95 of the act of 1961 is a general provision. In accordance with maxim generalia specialibus non derogant there fore, nothing in these general provisions can derogate from B. I. R. Act and the Co-operative Society Act must yield to the Special provisions in the bombay Industrial Relations Act, whenever a dispute clearly comes within the language the latter act". They contended, on the aforsaid reasoning the Industrial Tribunal should be held to have exclusive jurisidiction to decide the issue regarding the applicability of ESI act to the petitioner-Hotel. I find it difficult to agree On the other hand the aforsaid pargraph supports the contention of the petitioner. The jurisdiction given to the ESI court under S. 75 of the ESI Act is a special jurisdiction. The jurisdiction to decide disputes between the ESI Corporation and the employers or employees as the case may be regarding the applicablity of the provisions of the ESI Act, squarely falls under S. 75 (g) of the esi Act. Therefore, this special jurisdiction must prevail over the general jurisdiction of the industrlal Tribunal to decide industrial disputes existing only between a management of an industry and Its workmen. (3) The decision in the case of n. G. Bank also does not lend support to the contention of respondents 3 and 4. In that case the question for consideration was whether calculation of depreciation by Income-Tax Authorities while computing the income of the management under the Income-Tax Act was binding on the labour court which was called upon to decide the dispute regarding bonus payable to workmen. The Supreme court held that it was not. The anology is not at all apposite this case. The Supreme court held that it was not. The anology is not at all apposite this case. ( 17 ) HAVING due regard to the scheme of the ESI Act, analysed by me earlier, I am of the veiw that the ratlo of the judgment of the Supreme Court in the case of State of Punjab v. Labour Court, ( 1981 (1) LLJ 354 ) in which the supreme Court considered the exelusiveness of the jurisdiction of the authority constituted under the payment oi Gratuity Act, vis-a-vis the jurisdiction of the Labour Court under S. 33-C of the ID. Act, is apposite to this case. The relevant portion of the judgment reads-"7. It is apparent that the payment of Gratuity Act enacts a complete Code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the act. 8. Upon all these considerations, the conclusion is inescapable that parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under S. 33c (2) of the industrial DISPUTES ACT, 1947 did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal must succeed". That being so, it must be held that the applications filed by the employee respondents under S. 33c (2) of the industrial DISPUTES ACT, 1947 did not lie, and the Labour Court had no jurisdiction to entertain and dispose of them. On that ground, this appeal must succeed". The ratlo of the above judgment applies on all fours to this case in view of the provisions of the ESI Act referred to earlier which disclose the intention of the Legislature to make the ESI Act a complete code by itself with provision for adjudication of disputes by the ESI Court and for correction of any error by the High court on appeal. Therefore, in my view, the question as to whether the provisions of the ESI Act is applicable to the petitioner Hotel or not, is a question which squarely falls within the jurisdiction of the ESI court. It is open to any of the parties referred to In clause (g) of S. 75 of the ESI Act to raise a dispute before the ESI Court and if the party is dissatisfied with the decision he could prefer an appeal to this Court. Therefore, the State Government could not have referred the first question for adjudication to industrial Tribunal under S. 10 of the 1. D. Act. ( 18 ) LEARNED counsel for respon- dent-3, however, submitted that the decision in State of Punjab V. Labour court has been explained by the supreme Court In the case of Workmen Metro Theatre v. Metro Theatre Ltd (AIR. 1981 S. C. 1685 ). , and this judgment shows that the jurisdiction of the ESI Court cannot be held to be exclusive. He relied on the following observations :". . . . . . . . IT is true, as has been observed by this Court in State of punjab v. Labour Court, Julunder (AIR 1979 S. C. 1981), that the Act enacts a "complete Code containing detailed' provisions covering all essential features of the scheme for payment of gratuity. But it is also clear that the scheme envisaged by the enactment secures the minimum for the employees in that behalf and express provisions are found in the Act under which better terms of gratuity if already existing are not merely preserved but better terms could be conferred on the employee in future. But it is also clear that the scheme envisaged by the enactment secures the minimum for the employees in that behalf and express provisions are found in the Act under which better terms of gratuity if already existing are not merely preserved but better terms could be conferred on the employee in future. In other words the view taken by the tribunal that it could not go beyond the scheme of gratuity contemplated by the Act is clearly erroneous". In the above paragraph, all that the supreme Court has said is that the provisions of Gratuity Act guarantees the minimum benefit in the matter of gratuity, and does not bar the securing of better benefits by award made under the provisions of the I. D. Act. But as far as enforcement of the provision of the Gratuity act is concerned, the jurisdiction of the authority constituted under that Act is exclusive as held In state of Punjab v. Labour Court and the ratio of that decision has not been modified to any extent. ( 19 ) THE matter could be looked from another angle, which leads to the same result. The definition of the word 'industrial dispute' is given in S. 2 (k) of the I. D. Act. It reads-" (K) 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen which is connected with the employment or non-emplyment or the terms of employment or with the conditions of labour, of any person". In order that a dispute is 'industrial dispute', it should be a dis. pute between the management of an industry and its workmen. As stated earlier, as regards the applicability of the ESI Act and the rules framed thereunder to the petitioner Hotel, the ESI Corporation being of the opinion that the esi Act is applicable to the petitioner Hotel, it called upon the petitioner to implement the provisions of the ESI Act. The petitioner disputed the applicability of the ESI Act and raised a dispute with the Corporation on the question before the ESI Court and failed. The petitioner disputed the applicability of the ESI Act and raised a dispute with the Corporation on the question before the ESI Court and failed. Thus it may be seen when the ESI Corporation calls upon an employer to implement the provisions of the ESI Act in respect of his factory or other establishment, whether the applicability of the ESI Act to such factory or establishment is disputed by the employer or his employees, it would be a dispute either between the employer and the ESI Corporation or employees and the ESI Corporation, as the case may be, and not a dispute between the employer and workmen, and therefore no industrial dispute at all to be adjudicated under the I. D. Act, but would be a dispute which could be raised and decided before and by esi Court. That Is also the position in this case. ( 20 ) LEARNED Counsel for respondent-3 submitted that the employees were entitled to raise a dispute with the management regarding the applicability of the 'esi Act. I am unable to agree, for, it is neither the decision of the management to implement the ESI Act nor has it any choice in the matter when it has been called upon to implement the ESI Act and the ESI Act is applicable to the petitioner having regard to the provisions of the ESI act. Whether employer or employees raise the dispute as to the applicability of the Act, the other party to the dispute would be the esi Corporation and, therefore, the dispute is not an industrial dispute at all and consequently outside the jurisdiction of the industrial tribunal. Whether employer or employees raise the dispute as to the applicability of the Act, the other party to the dispute would be the esi Corporation and, therefore, the dispute is not an industrial dispute at all and consequently outside the jurisdiction of the industrial tribunal. ( 21 ) (1) Learned Counsel for the workmen, however, submitted that even after the Introduction of the ESI Scheme, it was open for the workmen to demand better medical benefits comparable to those which they were receiving before the ESI sheme and that the same should be continued and should not be withdrawn and this was also the question required to be decided by the Tribunal as is evident from the addendum, (2) Sri Kasturi, learned counsel for the petitioner, however, contended that there was no question of the petitioner withdrawing the benefits under the Medical Attendance Rules consequent on the introduction of the ESI scheme for R. 11 (5) thereof itself had provided that rules would cease to operate after the comfng into force of the esi scheme. He submitted that if such a rule was not there and there were certain benefits in the rules which were more advantageous to the workmen under the rules, it would have been open for the workmen to contend that the management was not justified in withdrawing the said benefit in view of S. 72 of the ESI Act. Even so learned Counsel contended that such a dispute also falls within the exclusive jurisdiction of the esi Court. (3) In view of S. 72 of the ESI act, if any better benefits were available under the earlier rules or practice, i. e. before the introduction of the ESI scheme to the employees of an establishment and the same was with drawn by the employer it could then become a subject matter of dispute before the ESI Court. Therefore there can be no doubt that the withdrawal of the benefit under the Medical Attendance Rules could be a subject matter of dispute before ESI Court. But it appears to me that as far as this issue is concerned, it could also be a subject matter of industrial adjudication under the provisions of the i. D. Act, for Entry 4 in the Second schedule to the I. D. Act reads-"4, Withdrawl of any customary concession or privilege". But it appears to me that as far as this issue is concerned, it could also be a subject matter of industrial adjudication under the provisions of the i. D. Act, for Entry 4 in the Second schedule to the I. D. Act reads-"4, Withdrawl of any customary concession or privilege". Therefore, if the workmen demand that certain benefits over and above the benefits available under the ESI scheme which they were getting should be extended to them, such an issue cannot be said as falling within the exclusive jurisdiction of the ESI court and therefore the same can be a subject matter of reference under S. 10 of the I. D. Act. This position is placed beyond doubt by the judgment of the Supreme Court in Basant Kumar v. Bagle Rolling Mills ltd. , the relevant portion of which reads;"before we part with these appeals there is one more point to which reference must be made. We have already mentioned that after the notification was Issued under S. 1 (3) by the respondent 3 appointing 28 August 1960 as the date on which some of the provisions of the Act. should come into force in certain are as of the State of Bihar, the Chief Executive Officer of respondent-1 issued notices giving effect to the State Government's notification and intimating to the appellants that by reason of the said notification the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the high Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that respondent-1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the scheme which had been brought into force under the Act. The High Court has held that the question as to whether the notices and circulars issued by respondent-1 were invalid could not b considered under Art. 226 of the constitution that is a matter which can be appropriately raised in the form of a dispute by the appellants under S, 10 of the industrial DISPUTES ACT, 1947. The High Court has held that the question as to whether the notices and circulars issued by respondent-1 were invalid could not b considered under Art. 226 of the constitution that is a matter which can be appropriately raised in the form of a dispute by the appellants under S, 10 of the industrial DISPUTES ACT, 1947. It is true that the powers conferred on the high Courts under Art. 226 are very wider, but it is not suggested by Sri Chetterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention. We would confirm the finding of the High Court that the proper remedy which Is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to S. 10 of the industrial DISPUTES ACT, 1947. or seek relief, if possible, under Ss 74 of the Act''. In fact, the Supreme Court has, In the above case considered the specific issue, namely, as to whether the employees were entitled to raise a dispute regarding the action of the management In withdrawing the better benefits available to them, before the introduction of the ESI seheme and whether such a matter could be a subject matter of reference for industrial adjudication and held that such a dispute could be raised either under S. 75 read with s. 72 of the ESI Act or under S. 10 of the I. D. Act. (5) The question which the Tribunal has been called upon to consider pursuant to the addendum issued by the Government is a question of this type and the industrial tribunal has the jurisdiction to decide it. (6) In view of my conclusion as above, I hold that the first question referred for adjudication in the first notification could not be subject matter of reference before the Tribunal, but the second part of the question added on later could be a subject matter of reference. Therefore, it appears to me, that port! on of the question which cannot form the subject matter of dispute before the Tribunal, being severable, has to be struck down leaving the rest of the question, to be decided by the Tribunal. Therefore, it appears to me, that port! on of the question which cannot form the subject matter of dispute before the Tribunal, being severable, has to be struck down leaving the rest of the question, to be decided by the Tribunal. The question together with addendum reads :- "are the Management of Hotel ashok (ITDC) High Grounds, P. B. No. 5095, Bangalore-1 justified in introducing the ESI Scheme in their establishment and In stopping benefits to "their employees under the itdc Medical Attendance Rules?". In my opinion, the underlined words should be struck down and if they are so struck down, the question would read- "are the management of Hotel ashok (ITDC) High Grounds, P. B. No, 5095, Bangalore-1, justified in stopping the benefits to their employees under the ITDC Medical attendance Rules'?. This is the real dispute between the parties and which falls within the jurisdiction of the industrial Tribunal. The records of the Government which culminated in the issue of the impugned orders also revealed that this was the real dispute between the parties. ( 22 ) SRI Kasturi, learned Counsel for the petitioner, however, contended that the State Government had no authority to amend the notification issued in the first instance by making an addendum and therefore the entire notification Is liable to be quashed. (1) The real dispute between the parties has been the withdrawl of certain benefits to which they were entitled to prior to the introduction of the ESI Act and the scheme framed thereunder. The records of the government which culminated in the impugned order also shows that as far as the applicability of the ESI act to the Hotel was concerned, it was considered inevitable, but it was only the justness of the with- drawl of the benefit under the Rules which had to be adjudicated. The government is under a duty to formulate the point of controversy precisely, (see : Mahadeva Textiles v. Additional Industrial Tribunal (1976 Lab. I. C. 1284 ). Therefore, if the real dispute between the parties had not been correctly reflected or formulated in the first notification, I see no basis to hold that the Government has no power to amend the notification and formulate the correct question and call upon the Industrial tribunal to answer the said question. (See Mangharam and Co. , v. K. B. Kher) AIR 1956 M. P. 183. (See Mangharam and Co. , v. K. B. Kher) AIR 1956 M. P. 183. ( 23 ) IT may be that if an issue sought to be added or raised by way of an amendment to the original order making the reference is entirely different from the one already referred and in respect of which there had been no dispute between the parties, it might be open to the objection that the amendment was without jurisdiction. (See Workmen v, state of Haryana) 1969 (I) Lab. I. C. 510) but that is not the position in the present case. Hence, I reject the contention of the petitioner that the whole notification should be quashed. 23 (1 ). Learned Counsel for respondents 5 and 6 contended that the decision rendered by the ESI Court was not binding as they were not parties before the ESI Court. In view of the decision rendered in W. P. No. 2609/83 filed by the workmen holding that the provisions of the ESI act has come into force in respect of the employees of Hotel Ashok for the reason, the Hotel comes within the definition of the word 'factory' as defined in S. 2 (12) of the ESI Act, the question is merely academic. Apart from this. I find no substance in the contention also. The provisions of the ESI Act are meant for the benefit of employees. A decision by the ESI Court holding that the provisions of the ESI Act are applicable to employees cannot be regarded as a decision against the employees at all. In fact the ESI Corporation which is entrusted with the responsibility of ensuring the benefits flowing from the provisions of the ESI Act to the employees had taken the stand that the provisions of the ESI Act are applicable to workmen and the petitioner hotel disputed the applicability of the provisions of the ESI Act. The ESI Court upheld the contention of the ESI corporation and rejected that of the hotel. Therefore it cannot be said that the employees, are adversely affected by the decision. The ESI Court upheld the contention of the ESI corporation and rejected that of the hotel. Therefore it cannot be said that the employees, are adversely affected by the decision. (2) It looks strange that when the Legislature has enacted the provisions of the ESI Act for the benefit of the employees 'and the ESI Act has come into force and there is no exemption given by any notification issued under S. 90 of the ESI Act the employees should oppose the introduction of the beneficial provisions of the ESI Act. When I asked the learned Counsel as to why the resistance is coming from the employees for whose benefit the ESI Act has been enacted, learned Counsel submitted that under the existing Medical Attendance Rules there was a provision for payment of cash towards medical reimbursement bills whereas under the provisions of the esi scheme, the employees were entitled to get free medical service at ESI hospitals in the case of sickness of the employees concerned or members of their family and the employees prefer the former to the latter. (3) Learned Counsel for respondents 5 and 6 submitted that some of the dependents to whom the medical attendance facilities are provided under the Rules arc not revered by the provisions of the ESI Act and the them farmed thereunder. Even on the basis that the employees consider employer be the reason, that the rules are more beneficial and advantagious to them than the provisions of the ESI Act and the scheme framed thereunder, I find it extremely difficult to hold that the introduction of the provisions of the act to the employees is adverse to their interest, for, It cannot be said that the Legislature has enacted the ESI Act the Introduction of which in respect of employees of a factory or establishment is likely to affect their interest adversely. It may be, as already pointed out earlier, that the employees are entitled to claim that certain benefits which they were getting which according to them, were over and above the benefits available under the ESI Act, should not be withdrawn if their demand is not complied with, they are also entitled to raise a dispute before the ESI Court on the ground that such reduction of benefits was vlolative of S. 72 of the ESI Act or they could also raise an industrial dispute falling under item 4 of the second schedule to the I. D: Act. That is an independent right and a remedy available to the employees, but on no account it can be said that the introduction of the ESI Act and the scheme affects adversely the interest of the employees. (4) If the employees prefer the rules, which have been In force and do not like the enforcement of the esi Act, the only course open to the employees is to approach the Central government requesting to exempt the establishment of Hotel ashok from the provisions of the esi Act and it is for the Central government to consider as to whether there is any force in the appeal for such exemption and if convinced to issue a notification under the appropriate provision of ESI Act. In the absence of any such exemption the implementation of the ESI act and the scheme thereunder by the petitioner for Its employees is unavoidable and the employees cannot resist the implementation of the ESI Act. In the result. I find no substance in the aforesaid contentions of respondents 5 and 6. ( 24 ) IN the result. I make the following order- (1) The Writ Petition is partly allowed. (II) The words- 'in introducing the ESf Scheme in their establishment and' in the first question referred for industrial adjudication by the impugned, notification, are struck down (141) The Industrial Tribunal shall proceed to decide the referenee on the basis that the first question referred for its opinion reads-"are Management of Hotel ashok (ITDC) High Grounds, P. B. No. 5095, Bangalore-1 justified in stopping benefits to their employees under the ITDC Medical attendance Rules"? (IV) No costs. --- *** --- .