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2006 DIGILAW 818 (CAL)

SUDHIR D. AHUJA v. EMPLOYEES STATE INSURANCE CORPORATION

2006-12-22

JAYANTA KUMAR BISWAS

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( 1 ) THE petitioner is questioning the steps taken by the Employees' State insurance Corporation for the purpose of recovery of contribution for the period from January, 1990 to March, 1992. He is also questioning the notice dated July 30th, 1991 issued by the corporation asking him to implement the provisions of the Employees' State Insurance Act, 1948. ( 2 ) THE first question that has arisen for consideration is whether this writ petition dated December 20th, 2006 is maintainable at all. Questioning the notice dated July 30th, 1991 and certain other steps taken by the corporation with a view to enforcing provisions of the Employees' State insurance Act, 1948. The petitioner filed a writ petition in this Court in 1992. In that an order dated May 7th, 1992 was made giving directions for affidavits and granting an interim order in terms of prayer (g) of that writ petition, or condition that the petitioner must invest rupees five thousand in short term deposit in a nationalized bank. That writ petition was dismissed by order dated September 23rd, 2003. No appeal was preferred against that order. ( 3 ) AFTER the writ petition filed in 1992 was dismissed, the authorities of the corporation issued notices calling upon the petitioner to deposit the contributions. In response, he submitted representations disputing his liability. The amount payable was determined by the competent authority and certain proceedings in connection wherewith a notice dated December 4th, 2006 was issued were initiated. After all these, he has taken out the present writ petition contending that provisions of the Employees' State insurance Act, 1948 have no manner of application to his proprietorship firm that is activities connected with intellectual properties. ( 4 ) BY citing to me the Apex Court decision in M. P. Electricity Board and ors. vs. Shiv Narayan and Anr. , 2005 (7) SCC 283 , Counsel for the petitioner argues that since the question whether the provisions of the Act do apply to the firm of the petitioner is a question that goes to the root of the jurisdiction of the authority that took steps for enforcing the provisions, the petitioner is entitled to approach the Writ Court. I do not see how the authority cited to me is of any assistance in the present case. I do not see how the authority cited to me is of any assistance in the present case. That was a case under the electricity Act, 1910, and there the question was whether office of a lawyer or a firm of lawyers was to be treated as a commercial establishment. ( 5 ) COUNSEL argues that remedy available under section 75 of the employees' State Insurance Act, 1948 is not a bar to the maintainability of the present writ petition. As to the question of effect of the order dated september 23rd, 2003 dismissing the petitioner's first writ petition, his argument is that since that writ petition was not decided on merits, the petitioner is entitled to take out a fresh writ petition questioning the same steps and notices challenging which the 1992 writ petition was filed. ( 6 ) I am unable to agree with him. The question whether the 1992 writ petition was decided on merits is absolutely irrelevant, since as will appear from the order dated September 23rd, 2003 that was dismissed after hearing counsel for the petitioner. The propriety of that order cannot be questioned by filing a fresh writ petition. The petitioner chose not to question that order by filing any appeal or taking out an application for review. That order having attained finality, he is not entitled to agitate the same questions that were agitated in the 1992 writ petition. I am, therefore, of the view that this writ petition is liable to be dismissed summarily on this ground alone. ( 7 ) THAT apart, in my opinion, the petitioner should not be permitted to approach the Writ Court questioning the proceedings initiated by the corporation. If he was aggrieved by the decision determining and assessing the dues payable, his remedy was before Employees' Insurance Court (under section 75 ). He, having chosen not to approach that forum, in my opinion, should not be permitted to approach the Writ Court. The question whether provisions of the Employees' State Insurance Act, 1948 were applicable to his firm, should have been agitated by him before that forum. ( 8 ) FOR these reasons I dismiss the writ petition. There shall be no order for costs in it. Writ petition dismissed.