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2017 DIGILAW 1745 (RAJ)

Perfect Thread Mills Ltd. v. Union of India

2017-08-08

SANGEET LODHA

body2017
ORDER : Sangeet Lodha, J. By way of this petition, the petitioner has questioned legality of order dated 21.4.17 passed by the Joint Director, Employees State Insurance Corporation, under section 85 B of the Employees' State Insurance Act, 1948 (for short "the Act"), directing recovery of damages on account of delayed payment of amount due in respect of contribution and the recovery notices issued pursuant thereto. In the alternative, it is prayed that the respondents be directed to permit filing of an appeal against the order impugned before the Employees' State Insurance Court (ESI Court) without satisfying the condition of pre-deposit under subsection (2B) of Section 75 of the Act. 2. Learned counsel appearing for the petitioner contended that as per proviso to clause (b) of the Explanation attached to Section 77 (1A) of the Act, no claim shall be made by the Corporation after five years of the period to which the claim relates and thus, the claim for damages made by the Corporation by the order impugned for the period beyond five years is ex facie without jurisdiction. 3. A perusal of Section 77 reveals that it deals with commencement of proceedings before the ESI Court. The proviso to clause (b) of Explanation attached to sub-section (1-A) of Section 77 cannot be construed to be an independent provision without reference to the main provision of Section 77 of the Act. As a matter of fact, the proviso to clause (b) of Section 77(1-A) of the Act, fixing the period of 5 years for claim made by the Corporation apply only in respect of claim made by the Corporation before the ESI Court and to no other proceedings and therefore, the contention sought to be raised on behalf of the petitioner that by virtue of proviso to clause (b) of explanation attached to Section 77(1-A) of the Act, the damages determined by the Corporation by the order impugned for the period beyond 5 years is ex facie without jurisdiction, is absolutely devoid of any merit. The reliance in this regard may be placed on a decision of the Hon'ble Supreme Court in the matter of E.S.I.C. v. C.C. Santhakumar, (2007) 1 SCC 584 . 4. The reliance in this regard may be placed on a decision of the Hon'ble Supreme Court in the matter of E.S.I.C. v. C.C. Santhakumar, (2007) 1 SCC 584 . 4. Learned counsel submitted that though the remedy is available to the petitioner against the order impugned before the ESI Court under Section 75 of the Act but the remedy provided under the Act is not efficacious inasmuch as, as per the mandate of provisions of sub-section (2B) of Section 75, no dispute in this regard is permitted to be raised by the principal employer before the ESI Court unless he has deposited with the court 50% of the amount due from him as claimed by the Corporation. 5. Merely because the remedy available to the petitioner under the relevant statutes is subject to condition of pre-deposit, it cannot be said that the remedy provided is not efficacious. Moreover, proviso to sub-section (2B) of Section 75, empowers the ESI Court to waive or reduce the amount to be deposited under the said sub-section for the reasons to be recorded in writing. In this view of the matter, in the considered opinion of this court, the present matter does not suggest any special feature so as to permit the petitioner to invoke extra ordinary jurisdiction under Article 226 of the Constitution of India by passing the remedy available under the relevant statute. 6. The writ petition is therefore, dismissed in limine.