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2017 DIGILAW 744 (CAL)

Institute for Indian Mother and Child v. State of West Bengal

2017-09-04

SAMBUDDHA CHAKRABARTI

body2017
JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. Let the affidavit of service filed in Court today be kept with the record. The petitioner is a social welfare organization and it prayed for exemption under the provisions of the Employees' State Insurance Act, 1948. By an order dated December 4, 2014, the Secretary, Labour Department, Government of West Bengal granted exemption under Section 87 of the said Act for the year 2014-2015. 2. Admittedly, when the petitioner made a prayer for renewal of the exemption under the said provision of the Act, the said Secretary by an order dated September 22, 2015 recorded the submissions of the representatives of the petitioner establishment and granted exemption for the year 2015-16 subject to the condition that the establishment will join in the ESI Scheme beyond the period 2015-16 positively. It was specifically mentioned therein that the prayer for further exemption would not be entertained. The reason for the same has already been indicated in the order that at the hearing of the application for renewal. The multifaceted and limitless medical benefits and allied facilities available under the ESI Scheme were also discussed. It appears from the order that the officials representing the petitioner establishment had admitted those facts. 3. However, the petitioner had made another application for renewal of the exemption which was received by the Labour Department, Government of West Bengal on March 22, 2016. By an order dated December 14, 2016, the respondent authorities had recorded that the audit report of the petitioner establishment was examined, the State Government was not satisfied with the submission of the petitioner establishment for renewal and the prayer for renewal had been turned down for the year 2016-17. 4. Subsequently, Employees' State Insurance Corporation had passed an order dated January 3, 2017 alleging that the petitioner establishment was failed to pay the contribution for the period from April, 2016 to November, 2016 and consequently, notice was issued to the petitioner for showing cause against the amount determined by the ESI authorities as recoverable from the petitioner. 5. That order is under challenge in the present writ petition. 6. I have heard Mr. Haider, the learned advocate for the petitioner and Mr. Bhattacharyya, the learned advocate for the State respondents. The learned advocate for the ESI authorities has not been called on to make any submission. 7. 5. That order is under challenge in the present writ petition. 6. I have heard Mr. Haider, the learned advocate for the petitioner and Mr. Bhattacharyya, the learned advocate for the State respondents. The learned advocate for the ESI authorities has not been called on to make any submission. 7. I am not willing to admit this writ petition primarily for three reasons. First, while granting the said exemption for the year 2015-16, it was made clear by the respondent authorities that it was being done for the last time and further prayer for exemption would not be entertained in future. Mr. Haider tried to make out a case that this order was passed ex parte. This, however, does not appear from the order itself. The order makes a reference to the presence of the representatives of the petitioner establishment as well as the submissions made by them in course of hearing of the exemption proceeding. That was a make belief contention of the petitioner that the petitioner establishment was not represented by any official at the hearing or that the order passed was an ex parte one. There is no pleading in the writ petition that the recording of the order was incorrect. 8. Secondly, when the petitioner made next application for renewal-which was an belated application as it ought to have been made in terms of the second proviso to Section 87 of the Employees' State Insurance Act, within three months before the expiry of the period of exemption-that was turned down by an order which has been annexed to the writ petition as Annexure P-6. The reasons for rejecting the application had been very specifically recorded in the order itself that the respondent Government had not been satisfied with the submission of the establishment for granting renewal after examination of the audit report for the last three years. 9. Mr. Haider drew my attention to this order and submitted that it went against the earlier orders. Mr. Bhattacharyya has rightly drawn my attention that is not the order under challenge in the present writ petition. Thus, there is a mistaken identity about the order that the petitioner proposes to assail. 10. I quite agree with Mr. Bhattacharyya. 9. Mr. Haider drew my attention to this order and submitted that it went against the earlier orders. Mr. Bhattacharyya has rightly drawn my attention that is not the order under challenge in the present writ petition. Thus, there is a mistaken identity about the order that the petitioner proposes to assail. 10. I quite agree with Mr. Bhattacharyya. No relief has been prayed for by the petitioner in respect of the order passed by the Assistant Secretary, Government of West Bengal turning down the petitioner's prayer for renewal of exemption. That not being so, the subsequent show cause notice issued by the Employees' State Insurance Corporation cannot also be assailed by the petitioner. 11. The show cause notice is the sequel to the rejection of the prayer for renewal of the exemption. Until and unless that order is set aside or quashed, the Employees' State Insurance Corporation cannot be faulted for issuing the show cause notice. 12. Lastly but not the least, the petitioner also cannot challenge the order rejecting the prayer for renewal in view of the earlier order dated September 22, 2015 wherein and whereby it was specifically made clear that the exemption was being granted for the last time in order to facilitate the petitioner establishment as the preparatory works for joining into the relevant Scheme may take some time. In order to give some time to the petitioner establishment that exemption was granted for the year 2015-16. That no exemption would be granted in future was made sufficiently clear. The petitioner without assailing that order could not maintain subsequent application for renewal of exemption and the petitioner without challenging the order rejecting the renewal of exemption cannot challenge the demand made by the Employees' State Insurance Corporation. 13. Thus the whole thing is linked with each other in a chain formation, one following as a logical corollary and most certainly as a sequel to the previous one. The petitioner not having challenged the earlier orders, they remained valid and have attained finality. 14. Thus I find no merit in the writ petition and the same is liable to the dismissed. 15. Although I do not call Mr. Patra, the learned advocate for the Employees' State Insurance Corporation to make any submission. He voluntarily submitted that there has been suppression of material fact in the writ petition. 16. 14. Thus I find no merit in the writ petition and the same is liable to the dismissed. 15. Although I do not call Mr. Patra, the learned advocate for the Employees' State Insurance Corporation to make any submission. He voluntarily submitted that there has been suppression of material fact in the writ petition. 16. While the Court appreciates the suo moto exercise initiated by Mr. Patra, this part of the submission need not be gone into when the writ petition is being dismissed on merit itself. 17. There shall be no order as to costs.