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2021 DIGILAW 340 (AP)

Sathavarana Ispat Limited v. Regional Director

2021-06-16

A.V.SESHA SAI

body2021
ORDER : In the present Writ Petition, challenge is to the order bearing No.79000700150000499/4302020519/45A Revised, dated 08.04.2021, passed by 2nd respondent under Section 45-A of the Employees’ State Insurance Act, 1948 (for short, ‘the ESI Act, 1948’). 2. Heard Sri V.Eswaraiah Chowdary, learned counsel for the petitioner and Smt. S.Siva Kumari, learned Standing Counsel for the respondents, apart from perusing the material available on record. 3. The petitioner herein is a public limited company, having registered office at Hyderabad, and is engaged in manufacture of pig iron metallurgical coke, power and ductile iron pipes, and the manufacturing unit is situated at Haresamudram, Anantapuram district. Earlier, by pressing into service the provisions of Section 45A of the ESI Act, 1948, 2nd respondent herein passed an order dated 20.08.2020, determining the liability of the petitioner as Rs.94,02,856/- for the period from 01.12.2016 to 31.03.2017 and 01.11.2017 to 30.09.2019. Assailing the said order passed by 2nd respondent, petitioner herein preferred a statutory appeal under Section 45- AA of the ESI Act, 1948 on 02.11.2020, by making a pre-deposit of 25% of the demand. 1st respondent, vide order bearing No.79-00-070015-000-0499/45-AA (Appeal No.05/2020-21), dated 22.02.2021, while setting aside the order of the primary authority dated 20.08.2020, remanded the matter to 2nd respondent-primary authority, with a direction to decide the case on the basis of the records to be made available by giving fresh opportunity to the employer. Pursuant to the said remand order passed by 1st respondent-appellate authority, now, 2nd respondent-primary authority, by way of the impugned order dated 08.04.2021, once again determined the liability of the petitioner under Section 45A of the ESI Act, 1948 as Rs.70,52,142/-. This Writ Petition challenges the validity and legal sustainability of the said order. 4. According to the learned counsel for the petitioner, the order impugned in the present Writ Petition is highly arbitrary, illegal, unreasonable and opposed to the very spirit and object of the provisions of the ESI Act, 1948, and 2nd respondent passed the impugned order without properly analysing the material available on record. It is also the submission of the learned counsel that the impugned action is also not in consonance with the ground realities of the issue. 5. It is also the submission of the learned counsel that the impugned action is also not in consonance with the ground realities of the issue. 5. On the contrary emphatically supporting the questioned order, it is maintained by the learned Standing Counsel that the very Writ Petition instituted by the petitioner is not maintainable before this Court in view of availability of alternative remedy of statutory appeal provided under Section 45AA of the ESI Act, 1948. It is also the submission of the learned Standing Counsel that only after meticulous consideration of all the issues, 2nd respondent herein passed the impugned order, as such, the same does not warrant any interference of this Court under Article 226 of the Constitution of India. 6. In reply, it is submitted by Sri V.Eswaraiah Chowdary, learned counsel for the petitioner that another difficulty which the petitioner herein is compelled to face is that once again, it has to deposit 25% of the amount if the petitioner herein is relegated to the alternative remedy of statutory appeal under Section 45-AA of the ESI Act, 1948. 7. In this context, it is appropriate to refer to the provisions of Section 45-AA of the ESI Act, 1948, which reads as under: “If an employer is not satisfied with the order referred to in section 45A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the corporation.” According to the above provision of law, an employer, if not satisfied with the order passed by the primary authority under Section 45-A of the Act, is entitled to prefer an appeal to the appellate authority, in the instant case, it is 1st respondent, within 60 days from the date of the order after depositing 25% of the contribution so ordered. 8. It is not in dispute that the intention of the Legislature in constituting the appellate authority is to enable the employer to have the factual situation verified by the appellate authority after going through the records. 8. It is not in dispute that the intention of the Legislature in constituting the appellate authority is to enable the employer to have the factual situation verified by the appellate authority after going through the records. Having regard to the factual situation available on hand, this Court does not propose to go into the said factual controversies, if any, in exercise of the jurisdiction conferred under Article 226 of the Constitution of India, having regard to the efficacious alternative remedy available to the petitioner under Section 45AA of the ESI Act, 1948. But, since the petitioner herein has already availed the appeal remedy earlier by making the pre-deposit as contemplated under Section 45AA of the ESI Act, 1948, which is not in dispute, this Court deems it appropriate to dispense with compliance of the said condition by the petitioner while availing the remedy of statutory appeal before 1st respondent against the impugned order. 9. For the aforesaid reasons, the Writ Petition is disposed of, giving liberty to the petitioner herein to avail the remedy of preferring statutory appeal under Section 45AA of the ESI Act, 1948 against the impugned order, within a period of one week from the date of receipt of a copy of this order. On filing such appeal within the time stipulated, condition of pre-deposit of 25% of the amount, as contemplated under Section 45AA of the ESI Act, 1948, is dispensed with. It is made clear that if any such appeal is preferred within the time stipulated above, the same be considered and appropriate orders be passed by 1st respondent on merits strictly in accordance with law. It is also made clear that for a period of two weeks from the date of filing of such appeal, no coercive action pursuant to the impugned order shall be taken by the respondents. It is further made clear that the benefit of this order would not enure to the petitioner if the petitioner fails to prefer the appeal within the time stipulated above, and if no appeal is preferred within the stipulated time, it is open for the respondent-authorities to take further action in the matter in accordance with law. It is also made clear that the appeal shall be disposed of within a period of three months from the date of filing of the appeal. It is also made clear that the appeal shall be disposed of within a period of three months from the date of filing of the appeal. There shall be no order as to costs of the Writ Petition. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.