JUDGMENT : Heard Sri Harish Kumar Rasineni, learned counsel for the petitioner and Sri N. Ranga Reddy, learned counsel for the respondent Nos.2 and 3 and learned Government Pleader for Municipal Administration for the 1st respondent and perused the material on record. 2. Learned counsel for the petitioner submits that the petitioner MEPMA Section and Computer Society (in short the society) is providing a skilled manpower to organizations and institutions on contract basis. Pursuant to the tender notice dated 05.07.2017 for supply of manpower from the 2nd respondent, the petitioner entered into agreement for supply of manpower on outsourcing basis for the period from 01.08.2017 to 31.03.2018 and supplied 51 outsourcing staff to the 2nd respondent. This contract was extended for two years up to 31.08.2020 on the same terms. The 2nd respondent paid the net amount of salaries to those staff after deducting the statutory contributions like EPF, ESI etc. 3. The petitioner received a notice dated 25.09.2020 from the 5th respondent/Employees State Insurance Corporation (in short ESI Corporation) for payment of the contribution towards the employees insurance under the Employees State Insurance Act, 1948 (in short E.S.I Act) for the period with effect from 01.09.2015 to 29.02.2016 and 01.07.2018 to 31.08.2020. The petitioner approached the 2nd respondent/the Rayadurgam Municipality and again on 10.12.2020 requesting the 2nd respondent to pay the said amount to the 5th respondent as the 2nd respondent had deducted and not paid the contributions towards the E.S.I to the petitioner. Thereupon, the 2nd respondent vide letter Roc.No.328/2020/E1 dated 14.12.2020 informed the petitioner that the payment of ESI premium was under process which fact was brought to the notice of the 5th respondent. 4. Learned counsel for the petitioner further submits that in the meanwhile, the 5th respondent passed an order dated 16.02.2021 under Section 45-A of ESI Act, 1948 directing the petitioner to pay an amount of Rs.1144856/-, for the period October 2015 to February 2016 and July 2018 to August 2020 within a period of 60 days providing further that in case of failure the same shall be recovered under Sections 45-C to 45-I of the E.S.I Act. The order dated 16.02.2021 was brought to the notice of the 2nd respondent whereupon the 2nd respondent vide Roc.No./2021/ dated nil.04.2021 informed the petitioner that the financial position of the municipality was poor and so, the amount will be paid in installments to the petitioner, but no such payment was made either to the petitioner or to the ESI Corporation by the 2nd respondent. 5. The 5th respondent herein on 03.06.2022 made an application to the 6th respondent the Recovery Officer of E.S.I Corporation for recovery of the contribution amount under order dated 16.02.2021 along with interest. 6. 5. The 5th respondent herein on 03.06.2022 made an application to the 6th respondent the Recovery Officer of E.S.I Corporation for recovery of the contribution amount under order dated 16.02.2021 along with interest. 6. Challenging the aforesaid proceedings the writ petition under Article 226 of the Constitution of India has been filed for the following reliefs:- “…it is prayed that this Hon’ble Court may be pleased to issue an appropriate Writ or order or direction or any other proceedings more particularly one in the nature of Writ of Mandamus, a. to declare the inaction of the 2nd and 3rd respondents in not paying the deducted/retained amounts of contributions payable to the ESI Corporation of the employees supplied by the petitioner on outsourcing basis for the period 01.08.2017 to 31.08.2020 as arbitrary and illegal and violation of petitioner’s rights guaranteed under Art 14, 19, 21 and 300A of Constitution of India and b. to declare the action of the 5th respondent in issuing notice No.79000424200000999/9252020304 dated 25.09.2020 and subsequent proceedings dated 16.02.2021 and 03.06.2022 demanding amounts of contributions payable to the ESI Corporation of the employees supplied by the petitioner to the 2nd respondent on outsourcing basis for the period 01.08.2017 to 31.08.2020 as arbitrary and illegal and in violation of the provisions of the Employee State Insurance Act, 1948, besides violation of the petitioner’s rights guaranteed under Article 14, 19 and 300A of Constitution of India and c. consequently, to direct the respondent Nos.2 and 3 to immediately and forthwith pay the amounts of contributions payable to the ESI Corporation of the employees supplied by the petitioner to the 2nd respondent on outsourcing basis for the period 01.08.2017 to 31.08.2020 including interest and default interest as on the date and d. consequently, to set aside the notice No.7900042420 0000999/9252020304 dated 25.09.2020 and subsequent proceedings dated 16.02.2021 and 03.06.2022 issued by the 5th and 6th respondent demanding amounts of contributions payable to the ESI Corporation of the employees supplied by the petitioner to the 2nd respondent on outsourcing basis for the period 01.08.2017 to 31.08.2020 and same and e. pass such order or orders as the Hon’ble Court may deem fit and proper in the interest of justice. 7. 7. The sole contention of the learned counsel for the petitioner is that the 2nd respondent did not make the payment of ESI contribution to the petitioner in spite of the assurance given by the 2nd respondent for payment of ESI contribution to the petitioner, vide letters dated 14.12.2020 and 01.04.2021 and consequently the payment could not be made. The impugned recovery proceedings cannot be initiated against the petitioner. 8. Sri N. Ranga Reddy, learned counsel for the respondent Nos.2 and 3 submits that the order dated 16.02.2021 under section 45-A of the ESI Act, 1948 was passed against the petitioner and for recovery of the amount determined by order dated 16.02.2021, the proceedings dated 03.06.2022 have been initiated by the Recovery officer. 9. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record. 10. The authorized officer of the ESI corporation passed the order dated 16.02.2021 under section 45-A of the ESI Act determining the contribution amount of Rs.11,44,856/-(Eleven Lakhs Forty Four Thousand and Eight Fifty Six only), against the petitioner and directing the petitioner to pay the said amount within a period of 60 days, failing which it was further provided that the same shall be recovered under Sections 45-C to 45 –I of the ESI Act, 1948. The order dated 16.02.2021 was passed after affording opportunity of hearing to the petitioner: The order was appealable under the ESI Act but the petitioner in spite of being so informed did not challenge the order dated 16.02.2021 which became final under the ESI Act. For recovery of the amount under the said order dated 16.02.2021, the Recovery officer has issued the impugned proceedings dated 03.06.2022. 11. The challenge made by the petitioner to the order dated 16.02.2021 cannot be sustained. Any illegality in the order dated 16.02.2021 could not be argued. The submission advanced is that the petitioner is not the Principal employer and it is the 2nd respondent who is the Principal employer liable to pay both the employer and employees contribution to ESI, in respective of the fact that if the employees were directly employed by the 2nd respondent or through an immediate employer. 12. ‘Principal employer’ & ‘Immediate employer’ are defined in Sections 2(17) and 2(13) of ESI Act respectively as under:- 2. Definitions. 12. ‘Principal employer’ & ‘Immediate employer’ are defined in Sections 2(17) and 2(13) of ESI Act respectively as under:- 2. Definitions. In this Act, unless there is anything repugnant in the subject or context:- (17) “Principal Employer means:-— (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under [the Factories Act, 1948 (63 of 1948)], the person so named; (ii) in any establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf or where no authority is so appointed, the head of the Department; (iii) in any other establishment, any person responsible for the supervision and control of the establishment; Section 2(13) -“immediate employer”, in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of a factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer [and includes a contractor].” 13. The question if the petitioner is the Principal or immediate employer, within the definition of the aforesaid terms would require consideration and determination of various factors including questions of fact. It is not a pure Question of law. Consequently such a plea of the petitioner, raised for the first time in the writ petition cannot be permitted to be raised nor can be gone into, in the exercise of the writ jurisdiction under Article 226 of the Constitution of India. 14. Further, it is evident from the notice dated 25.03.2020, Ex.P.4 given to the petitioner, that the petitioner was addressed therein as the Principal employer. 14. Further, it is evident from the notice dated 25.03.2020, Ex.P.4 given to the petitioner, that the petitioner was addressed therein as the Principal employer. The notice clearly mentioned in 2nd note as under: “In case you are not the Principal employer or have ceased to be the Principal employer, you are requested to intimate the date from which you ceased to be the Principal employer,” but in spite thereof the petitioner did not submit any reply to the 5th respondent nor disputed that he was the Principal employer. Further from the order dated 16.02.2021 it is evident that any such plea was not taken before the authorized officer ESI. 15. The statutory remedy was available to the petitioner against the order dated 16.02.2021 but the same was not availed and the period of limitation has expired. The petitioner now cannot be allowed to challenge the order dated 16.02.2021, which attained finality under the statute, after more than one and half year. 16. In A.V. Venkateswaran, Collector of Customs, Bombay vs. Ramachand Sobharaj Wadhwani and another, AIR 1961 SC 1506 , the Hon’ble Apex Court held that if the petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the court dealing with his petition under Article 226 of the Constitution of India to exercise its discretion in his favour. 17. It is apt to refer para 11 of A.V. Venkateswaran (supra) as under: “11. The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C. J. that the order of the Assistant Collector of Customs in assessing duty at 781 per cent. or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction. or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High Court under Article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he, cannot certainly be ' permitted to urge that as a ground for the Court dealing with his petition under Art. 226 to exercise its discretion in his favour. Indeed, the second pass age extracted from the judgment of the learned C. J. in State of Uttar Pradesh v. Mohammad Nooh (1958) SCR 595 at pp.605-607 case with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule.” 18. In Shivgonda Anna Patil and others vs. State of Maharashtra and others, (1999) 3 SCC 5 , the facts were that the appellant therein challenged the order passed by the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 in writ petition whereas no appeal or revision was filed against the said order under the Act and the High Court had dismissed the writ petition, the Hon’ble Apex Court held that no appeal or revision having been filed and the order having become final and binding, the dismissal of the writ petition by the High Court was justified. 19. It is apt to refer paragraph No.3 of the Shivgonda Anna Patil (supra) as under: “The challenge to the constitutional validity of the relevant provisions of the Urban Land (Ceiling and Regulation) Act has to be rejected as Its validity has already been upheld by this court. (See Maharao Saheb Shri Bhim Singhji etc. vs. UOI and ors : AIR 1981 SC 234 and AIR 1985 SC 150 ). (See Maharao Saheb Shri Bhim Singhji etc. vs. UOI and ors : AIR 1981 SC 234 and AIR 1985 SC 150 ). Moreover, the contention raised by the appellants that as no provision has been made in the Urban Land (Ceiling and Regulation) Act regarding payment of compensation at market rate for acquisition of agricultural land, it is violative of the second proviso to Article 31-A(1) of the Constitution, is thoroughly misconceived as what is taken over by the State is the excess vacant land. The challenge to the order passed by the competent authority is also without substance. No appeal or revision application was filed against it and therefore it had become final and binding on the appellants. After the determination of the excess land, a notification under Section 10(1) of the Act was issued and the excess land vested in the State Government under Section 10(3) of the Act. Ten years thereafter, the appellants had filed the Writ Petition challenging the said order. The High Court was, therefore, justified in dismissing the Writ Petition summarily. It 1s also worth noting that even though the sister of the appellants knew about the proceedings, she had not filed any objection at any stage before the land vested in the State Government. She filed a Writ Petition in 1986 and it was dismissed.” 20. The Recovery certificate is issued by the Authorized Officer to the Recovery Officer Under section 45-C of the E.S.I Act, to recover the amount in arrears under the ESI ACT upon which the recovery officer shall proceed to recover the amount by one or more of the prescribed modes. 21. There is no illegality in the impugned Recovery certificate dated 03.06.2022. 22. The dispute between the petitioner and the 2nd respondent with respect to the payment or non payment of the contribution, is a matter between them and in case of any grievance against 2nd respondent, it is for the petitioner to seek his remedy as may be available under law, but on such ground the employees entitled for the payment of ESI contribution under the statute cannot be made to suffer. 23. For the aforesaid reasons, the writ petition lacks merit and is accordingly dismissed. No order as to costs. 24. 23. For the aforesaid reasons, the writ petition lacks merit and is accordingly dismissed. No order as to costs. 24. Copy of this judgment be sent to the 4th respondent as there is no standing counsel representing respondents 4 to 6 the authorities of E.S.I Corporation. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.