JUDGMENT : 1. This Memorandum of Civil Miscellaneous Appeal is filed under Section 82 of Employees’ State Insurance Act, 1948 (for short ‘E.S.I. Act’) assailing the order passed in E.I.C.No.57 of 2008, dated 24.11.2015 by the Employees Insurance Court and Chairman, Industrial Tribunal-I at Hyderabad. 2. Appellants are the respondent Nos.1 to 3, respondent No.1 is the petitioner, respondent No.2 is the respondent No.4 in E.I.C. No.57 of 2008. 3.1. Respondent No.1-petitioner has filed petition under Section 75 (1) (g) of E.S.I. Act against the appellants -respondent Nos.1 to 3 and respondent No.2-respondent No.4 to declare that the action of the Corporation is illegal, unjust, contrary to law and also in violation of principles of natural justice by setting aside Section 45-G Prohibitory Order bearing No.520.Q/0106-03, dated 28.02.2006 passed by respondent No.3 therein (appellant No.3 herein) and consequent order No.52-Q/0106-03, dated 13.10.2008 passed by respondent No.1 therein (appellant No.1 herein) by declaring them as illegal, unjust and contrary to law and consequently declare that the petitioner (respondent No.1 herein) is not liable to pay any contribution as demanded by the respondent Corporation. 3.2. Respondent No.1-petitioner stated in the petition that Osmania University, Hyderabad is an Autonomous Institution and a creature of Statute and funded by Government of Andhra Pradesh which has its own Department of Publication and Press. The salaries of the employees of the Department of Publication and Press are paid by Respondent No.1-petitioner out of the block grant received from Government of Andhra Pradesh. The medical facility to the employees is provided through its own dispensary. The employees are provided medical leave on a half pay @ 20 days for every completed year of service and all the employees of the Department of Publication and Press are drawing a salary of more than Rs.6,500/- per month and thus the respondent No.1- petitioner is not coverable under the provisions of the E.S.I. Act. The respondent No.1-petitioner was exempted by Government of Andhra Pradesh through G.O.Rt.No.679, dated 05.05.1992 from the purview of E.S.I. Act provisions for the period from 01.04.1960 to 31.03.1993. The request of respondent No.1-petitioner for exemption of further period is pending consideration with the Government. Pensionary benefits and other benefits of Non-Gazetted Officers of Government of Andhra Pradesh are extended to the employees of the Department of Publication and Press. The request of respondent No.1-petitioner for exemption of further period is pending consideration with the Government. Pensionary benefits and other benefits of Non-Gazetted Officers of Government of Andhra Pradesh are extended to the employees of the Department of Publication and Press. The corporation served a Prohibitory Order on respondent No.2- respondent No.4 directing it to recover a sum of Rs.21,96,259/- including interest up to 15.10.2008 from the account of the Department of Publication and Press and remit the same to the Corporation. The Director of Department of Publication and Press is not in a position to pay the salaries to its employees. There are 69 employees in the Department and they are drawing a salary of more than Rs.6,500/- per month and thus the action of respondent Nos.1 to 3 (appellants herein) in covering the said Department under the purview of the Act is illegal and arbitrary. The Corporation has not afforded opportunity to respondent No.1- petitioner before initiating proceedings under the provisions of E.S.I. Act. 4. Appellant Nos.1 and 2-respondent Nos.1 and 2 filed common written statement and contended that petition is not maintainable both on facts and law. Respondent No.1-petitioner is covered under the E.S.I. Act with code No.52-0106-03. The Government of Andhra Pradesh granted exemption under Section 90 r/w 91-A of the Act from 01.04.1960 to 31.03.1993 only. Respondent No.1-petitioner is liable to pay the contributions from 01.04.1993. The Department of Publication and Press is engaged in “manufacturing process” namely printing of textbooks, journals, forms and other stationery and thus it is a factory within the meaning of Section 2 (12) of the Act. The Government of Andhra Pradesh rejected the petition for exemption vide letter dated 05.06.2003. The recovery action has been initiated after following due procedure. 5. Respondent No.3-appellant No.3 did not file written statement whereas respondent No.2-respondent No.4 remained ex parte before the learned Tribunal. 6. The learned Tribunal has framed the following issues: 1. Whether the 45-G order passed by respondent No.3 dated 28.02.2006 and the consequent order dated 13.10.2008 is liable to be set aside? 2. Whether the petitioner is not liable to pay any amount as demanded by the respondents? 3. To what relief? 7. Professor V.Krishna Rao is examined as PW.1 on behalf of respondent No.1-petitioner and got marked Exs.P1 to P5, his evidence is eschewed as per the orders in IA.No.41 of 2012 dated 22.02.2012. 2. Whether the petitioner is not liable to pay any amount as demanded by the respondents? 3. To what relief? 7. Professor V.Krishna Rao is examined as PW.1 on behalf of respondent No.1-petitioner and got marked Exs.P1 to P5, his evidence is eschewed as per the orders in IA.No.41 of 2012 dated 22.02.2012. T.Ramulu is examined as PW.2 and got marked Exs.P6 to P10. Mohd. Nazeer Ahmed Khan is examined as RW.1 from ESIC Limited (appellant No.1-respondent No.1) and got marked Exs.R1 and R2. 8. The learned Tribunal after analysing the evidence adduced by the parties, allowed the petition filed by respondent No.1- petitioner with costs and the notice bearing No.52.Q/0106-03 dated 28.02.2006 and the order under Section 45-G of the Act dated 13.10.2008 are set aside and the respondent No.1-petitioner is entitled to withdraw the amount of Rs.5,49,065/- deposited by them on 30.10.2008 vide IA.No.175 of 2008 after the expiry of Appeal time which is impugned in the present Appeal. 9. Learned counsel for the appellants-respondent Nos.1 to 3 submits that following are the substantial question of law in the Appeal which are as under: a) Whether, the E.I court committed an error in giving a finding with regard to the proceedings leading up to the passing of the order under Section 45 A of the E.S.I. Act in a challenge to the collateral recovery proceedings under Section 45(G) of the Act, as could be seen from the scheme of the provisions of the E.S.I. Act, 1948. b) Whether, the E.I court committed an error in giving a finding on the order passed under Section 45-A in the absence of any plea or issue as required under order VI, Rule 2 CPC. c) Whether, the Employees Insurance Court committed an error in giving a finding on the order passed under Section 45-A of the Act more particularly the challenge to the said order by the respondent university is barred by limitation under section 77 (1-A) of E.S.I. Act. 10. Notice got issued to respondent No.1-petitioner in the Appeal is served on 22.09.2016 but none appeared. Respondent No.2- respondent No.4 failed to advance his arguments in spite of affording opportunity. 11. Now the points for consideration are: 1. Whether the learned Tribunal was justified in observing in the order about Section 45-A of E.S.I. Act in a challenge to the recovery proceedings under Section 45-G of the Act? 2. Respondent No.2- respondent No.4 failed to advance his arguments in spite of affording opportunity. 11. Now the points for consideration are: 1. Whether the learned Tribunal was justified in observing in the order about Section 45-A of E.S.I. Act in a challenge to the recovery proceedings under Section 45-G of the Act? 2. Whether the claim of respondent No.1-petitioner is barred by limitation under Section 77(1-A) of E.S.I. Act? 3. Whether the order passed by the learned Tribunal in E.I.C.No.57 of 2008, dated 24.11.2015 suffers from any perversity or illegality? If so, does it require interference of this Court? 12. The evidence of PW.1 with that of Exs.P1 to P5 are eschewed, they are not taken into consideration by the learned Tribunal. 13. The documents marked through PW.2 are Exs.P6 to P10. Ex.P6 dated 28.03.2006 issued by Recovery Officer vacating the Prohibitory Order issued to the Bank (respondent No.2-respondent No.4). Ex.P7 is the Notification dated 15.05.2002 in G.O.Rt.No.439 with regard to grant of exemption to Andhra Pradesh Government Text Book Press, Hyderabad from the provisions of E.S.I. Act, 1982. Ex.P8 is the Notification dated 05.05.1992 in G.O.Rt.No.679 which states that Government has exempted Department of Publication and Press, Osmania University, Hyderabad from all provisions of E.S.I. Act for the period from 01.04.1962 to 31.03.1993 which is not in dispute in the case. Ex.P9 is the Prohibitory Order wherein State Bank of Hyderabad, Osmania University Campus, Hyderabad (respondent No.2-respondent No.4) is restrained from making payments. Ex.P10 is the Order under section 45(G) of E.S.I. Act, 1948, dated 13.10.2008 in No.52.Q/0106-03 where under respondent No.1-petitioner failed to pay arrears due under the E.S.I. Act in respect of certificate No.AP/INS.I/52-0106-03 dated 10.07.1998; 18.07.2000 and 16.01.2001 amounting to Rs.21,96,259/- towards balance due which includes further interest up to 15.10.2008. The challenge in the E.I.C.No.57 of 2008 are Exs.P9 and P10. 14. It is the case of respondent No.1-petitioner that in spite of making applications to the Government for exemption from E.S.I. Act, Government has not taken a call. It is appropriate to refer to Ex.R1 which is a Writ Petition filed by Osmania University, Hyderabad represented by its Registrar against Government of Andhra Pradesh (respondent No.1) and others vide WP.No.5492 of 2006 filed under Article 226 of the Constitution of India with a direction to the Government of Andhra Pradesh to pass appropriate orders in the matter of granting permanent exemption under E.S.I. Act. The above said Writ Petition was disposed of on 27.08.2008 and the operative portion is as under: “The first respondent filed counter affidavit. It is stated in the counter affidavit that the exemption sought for by the petitioner has been rejected by the first respondent on 5.06.2003 and the same has been communicated to the petitioner. Copy of the letter addressed to the petitioner has been placed on record, which reads as hereunder. "With reference to your letter 1 st cited, I am directed to inform that the request to grant of exemption from all the provisions of ESI Act 1948 on permanent basis with effect from 1990 onwards, cannot be accepted in view of the observations of the standing committee for exemptions that the Osmania University is situated within the limits of twin cities of Hyderabad and Secunderabad and Employees can avail the Medical facilities provided by ESI at any ESI Dispensary in Hyderabad and Secunderabad. Hence the request is hereby rejected. In view of the decision of the first respondent conveying to the petitioner regarding its rejection for exemption from the purview of the ESI Act, this Writ Petition does not survive and the same is accordingly dismissed as infructuous”. 15. The representations made by respondent No.1-petitioner to the Government were rejected on 05.06.2003 itself and copies of the same is also sent to Osmania University, Hyderabad. E.I.C. No.57 of 2008 is filed on 14.10.2008. 16. Respondent No.1-petitioner has also filed petition under Section 75 (1)(g) of E.S.I. Act to declare the action of appellant Nos.1 and 2-respondent Nos.1 and 2 in applying the provisions of E.S.I. Act and also the action of respondent No.2 therein (Recovery Officer) in issuing orders in proceedings No.52.Q/0106-85, dated 17.01.2000 is illegal, unconstitutional in not considering the application of the petitioner (Osmania University) dated 01.04.1998 as illegal and to set aside the proceedings, dated 17.01.2000 holding that the provisions of Employee State Insurance Act, 1948 are not applicable to the petitioner University. Ex.R2-E.I.C. No.102 of 2001 came to be dismissed for default without costs vide order dated 27.11.2003. The respondent No.1-petitioner has suppressed the said fact in the E.I.C.No.57 of 2008. 17. The evidence of PW.2 is the same with that of the petition averments in E.I.C.No.57 of 2008. Ex.R2-E.I.C. No.102 of 2001 came to be dismissed for default without costs vide order dated 27.11.2003. The respondent No.1-petitioner has suppressed the said fact in the E.I.C.No.57 of 2008. 17. The evidence of PW.2 is the same with that of the petition averments in E.I.C.No.57 of 2008. In his cross-examination, he stated that Osmania University is a Autonomous Body and paying salary @ Rs.15,000/- per month to the employees from 2005 (revised pay scales) and Osmania University failed to pay contributions for the period from 01.04.1993 to till date (21.08.2022) and E.S.I. Corporation collected certain contributions through the Bank account and exemption granted under Ex.P7 is to Text Book Press but not to the Osmania University. PW.2 admitted that they are liable to pay the remaining contributions if any after adjusting the recovery already made. 18. The admission made by PW.2 goes to show that they are liable to pay the remaining contributions to the appellant No.1-respondent No.1. 19. Respondent No.1-petitioner has challenged the order under Exs.P9 and P10 but the learned trial Court has gone to the extent of stating that “It is not known whether the order under Section 45-A was passed based on assumed wages or the claim pertains on actual only without there being an order under Section 45-A. It is not the case of respondent No.1-petitioner that they were not given reasonable opportunity while passing order under Section 45-A of the E.S.I. Act. 20. Learned counsel for the appellants submits that in absence of challenging Section 45-A order, respondent No.1-petitioner cannot challenge Section 45(G) order. 21. The appellate authority to prefer an Appeal against the order passed under Section 45-A of E.S.I. Act is Section 45-AA which shall be before the Insurance Commissioner, the Additional Commissioner, the Regional Director and Joint Director as per Regulation 31-D of the Employees State Insurance (General) Regulations, 1950. 22. Under Section 77 (1)(A) of the E.S.I. Act states that application shall be made within a period of three years from the date on which the cause of action arose. 23.1. ESI Corpn. Vs. C.C. Santhakumar, 2007 (1) SCC 584 the Supreme Court observed as under: "The legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. 23.1. ESI Corpn. Vs. C.C. Santhakumar, 2007 (1) SCC 584 the Supreme Court observed as under: "The legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. So, the non-availability of the records after five years, as per the Regulations, would not debar the Corporation to determine the amount of arrears. Therefore, if the provisions of Section 45-A are read with Section 45-B of the Act, then, the determination made by the Corporation is concerned. It may not be final so far as the employer is concerned, if he chooses to challenge it by filing an application under Section 75 of the Act. If the employer fails to challenge the said determination under Section 75 of the Act before the Court, then the determination under Section 45-A becomes final against the employer as well. As such, there is no hurdle for recovery of the amount determined under Section 45-B of the Act, by invoking the mode of recovery, as contemplated in Section 45-C to 45-1." 23.2. In M/s. Cosmo Computer Printers Vs. The Employees’ State Insurance Corporation, CMA No. 285 of 2020 dated 27.01.2020 of the High Court of Judicature at Madras the High Court of Madras held that “Appellant-company cannot challenge the recovery proceedings without challenging the correctness of the order passed under Section 45-A of the E.S.I. Act. The same view is followed in E.S.I. Corporation Vs. R. Shanti , https://indiankanoon.org/doc/3528478. 24. The learned trial Court has travelled beyond the pleadings and discussed about the orders passed under Section 45-A of E.S.I. Act in Para No.11 of its order. Respondent No.1-petitioner has challenged the recovery proceedings in the E.I.C. but not the orders passed under Section 45-A of the E.S.I. Act. 25. Though respondent No.1-petitioner has stated that he is not aware of the show cause notices issued by E.S.I.C. which cannot be a ground to allow the E.I.C.No.57 of 2008. 26. Respondent No.1-petitioner has challenged the recovery proceedings in the E.I.C. but not the orders passed under Section 45-A of the E.S.I. Act. 25. Though respondent No.1-petitioner has stated that he is not aware of the show cause notices issued by E.S.I.C. which cannot be a ground to allow the E.I.C.No.57 of 2008. 26. In view of the decisions stated supra at Para Nos.23.1 & 23.2 respondent No.1-petitioner cannot challenge the order passed under Section 45(G) of the E.S.I. Act, 1948 without challenging the correctness of the order passed under Section 45-A of E.S.I. Act. The order passed by the Tribunal is perverse and the same is liable to be set aside in view of the reasons above. 27. Civil Miscellaneous Appeal is allowed and the order passed by Employees Insurance Court and Chairman Industrial Tribunal-I at Hyderabad in EIC.No.57 of 2008 dated 24.11.2015 is set aside, consequently petition filed by the respondent No.1-petitioner is dismissed. There shall be no order as to costs. Interim Orders if any shall stands vacated. Miscellaneous application/s stands closed.