IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
16. 09.2013 CORAM THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR C.M.A.Nos.659 to 662 of 2013 M/s. Ran India Steels, Rep. By its Executive Director, R.Nagarajan, No.5, C.H.B. Colony West Velur Road, Tiruchengode Taluk, Namakkal District. ... Appellant in all C.M.As. .. Vs ..
1. Regional Director, Employee State Insurance Corporation, No.143, Sterling Road, Nungambakkam, Chennai 34.
2. The Joint Director, Sub Regional Office, Employee State Insurance Corporation, 2nd & 3rd Floor, Theerthamalai Vaniga Valagam, No.9/57, Three Road, Salem. ... Respondents in all C.M.As. Prayer in C.M.A.No.659/2013: Civil Miscellaneous Appeal preferred under Section 82 of Employees' State Insurance Act, 1948, against the Order and Decreetal Order dated 20.07.2011 passed by the learned Principal District Judge, Namakkal, in E.S.I.O.P.No.52 of 2008. Prayer in C.M.A.No.660/2013: Civil Miscellaneous Appeal preferred under Section 82 of Employees' State Insurance Act, 1948, against the Order and Decreetal Order dated 30.06.2011 passed by the learned Principal District Judge, Namakkal, in I.A.No.58 of 2008 in E.S.I.O.P.No.52 of 2008. Prayer in C.M.A.No.661/2013: Civil Miscellaneous Appeal preferred under Section 82 of Employees' State Insurance Act, 1948, against the Order and Decreetal Order dated 20.07.2011 passed by the learned Principal District Judge, Namakkal, in E.S.I.O.P.No.60 of 2008. Prayer in C.M.A.No.662/2013: Civil Miscellaneous Appeal preferred under Section 82 of Employees' State Insurance Act, 1948, against the Order and Decreetal Order dated 30.06.2011 passed by the learned Principal District Judge, Namakkal, in I.A.No.75 of 2008 in E.S.I.O.P.No.60 of 2008. In All C.M.As. For Appellant : Mr.S.Natanarajan For Respondents : Mr.M.Christopher - - - - - COMMON JUDGMENT
Notice before admission was served. Both the appellant and the respondent Corporation are represented by counsel. The arguments advanced by the learned counsel appearing on both sides are heard.
2. M/s. Ran India Steels is the appellant in all the four Civil Miscellaneous Appeals. Claims were made for the payment of contribution for two periods, the first one being the period from November 2005 to September 2006 and the second one being the period from October 2006 to September 2007. A sum of Rs.3,75,375/- was the amount claimed by the Employees State Insurance Corporation as contribution from the appellant for the first period and a sum of Rs.11,60,886/- was the amount claimed as contribution for the above said second period. As against the claims, the appellant filed E.S.I.O.P.Nos.60 of 2008 and 52 of 2008 respectively. Instead of depositing 50% of the claim amount as per the condition found in Section 75 (2-B) of Employees' State Insurance Act, 1948 [hereinafter referred to as the Act]., relying on the proviso empowering the Court to waive the condition or reduce the amount to be deposited, the appellant filed two Interlocutory Applications in both the E.S.I.O.Ps. They were taken on file as I.A.Nos.75 of 2008 and 58 of 2008 respectively. Before taking up the E.S.I.O.Ps. for hearing on merits, the E.S.I. Court heard the Interlocutory Applications and after hearing, passed an order in each one of the Interlocutory Applications dismissing those applications holding that the appellant herein was not entitled to the relief of waiver sought for or reduction of the amount payable as a condition for challenging the claim. The said orders dismissing the Interlocutory Applications came to be passed on 30.06.2011. While dismissing the said Interlocutory Applications, the learned Judge of the E.S.I. Court granted 15 days time to make deposit in terms of the main clause of Section 75 (2-B) of the Act. Within the time granted therein, the appellant did not deposit the amount in either of the E.S.I.O.Ps. Resultantly, the E.S.I. Court chose to pass orders on 20.07.2011 to the following effect: ".Conditional order passed on 30.06.2011. 50% contribution amount not paid till date. Hence, this petition is closed"..
3. Against the orders passed in the Interlocutory Applications and the E.S.I.O.Ps., the appellant has chosen to file the present Civil Miscellaneous Appeals. C.M.A.No.659 of 2013 has been filed against the order passed in E.S.I.O.P.No.52 of 2008, C.M.A.No.660 of 2013 has been filed against the order passed in I.A.No.58 of 2008 in E.S.I.O.P.No.52 of 2008, C.M.A.No.661 of 2013 has been filed against the order passed in E.S.I.O.P.No.60 of 2008 and C.M.A.No.662 of 2013 has been filed against the order passed in I.A.No.75 of 2008 in E.S.I.O.P.No.60 of 2008.
4. In all the appeals, the learned counsel for the appellant would submit that the E.S.I. Court, which chose to pass an order dismissing the Interlocutory Applications seeking waiver of the deposit contemplated under sub-section 2-B of Section 75 of the Act, ought to have given sufficient time to comply with the requirements of that Section and that the failure to grant sufficient time has resulted in denial of justice to the appellant, as the right of appeal available to the appellant has been taken away on the ground of non compliance of Section 75(2-B) of the Act. It is the further submission made by the learned counsel for the appellant that the advocate, who appeared for the appellant in the lower Court failed to inform the appellant regarding the last date on or before which the deposit had to be made in accordance with the orders passed in the Interlocutory Applications and that for the mistake committed by the counsel, the party should not be made to suffer.
5. Per contra, the learned counsel for the respondent would submit that the appellant deliberately avoided complying with the condition stipulated in sub-section 2-B of Section 75 of the Act while preferring an appeal; that though the appellant preferred Interlocutory Applications seeking the exercise of the power of the E.S.I. Court contemplated under the proviso to above said sub-section, the very fact that the appellant failed to make deposit of 50% of the claim amount within the time granted by the E.S.I. Court in the order dismissing the Interlocutory Applications will show that the appellant was determined to postpone the deposit to an indefinite period and that the filing of the present appeals, which had been filed, not immediately after the passing of the orders of the E.S.I. Court, but belatedly with petitions for condonation of delay, is also one of the attempts to evade the responsibility of making payment of contribution to the second respondent-Corporation, which would be used by the E.S.I. Corporation towards various welfare measures. It is the further submission made by the learned counsel for the respondent that none of the grounds raised by the appellant shall be countenanced and none of the grounds raised can be accepted to be a substantial question of law, based on which, the appeals can be entertained.
6. This Court gave its anxious consideration to the above said submissions made on both sides.
7. Section 75 of the Employees' State Insurance Act, 1948 enables an employer to challenge a claim made by the Corporation by approaching the E.S.I. Court. However, in order to filter the cases and prevent frivolous litigations, the parliament has chosen to insert sub-section 2-B along with the proviso to the above said Section prescribing a condition that no dispute shall be raised by the principal employer in respect of any contribution or other dues in the E.S.I. Court unless he has deposited with the Court 50% of the amount due from him as claimed by the Corporation. Though such a stringent condition has been incorporated, no doubt, a judicial discretion has been conferred on the Court to waive or reduce the amount to be deposited under the said sub-section with a condition that in case of waiving or reducing the amount of deposit, the Court must record its reasons in writing. For better appreciation, Section 75 sub-section 2-B of the Act with proviso is reproduced hereunder:- ".75. Matters to be decided by Employees' Insurance Court.- (1) .... (2) .... (2-A) .... (2-B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation. Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.".
8. In this case, as pointed out supra, contribution was claimed for the period from November 2005 to September 2006 and again from October 2006 to September 2007. Though the claims were challenged before the E.S.I. Court by filing the E.S.I.O.Ps., the appellant did not deposit 50% of the claim as per the condition stipulated in sub-section 2-B of the Act. However, the appellant had chosen to invoke the power of the Court to waive the condition or to reduce the amount to be deposited. The learned Judge of the E.S.I. Court, after considering the merits of the applications, chose to dismiss them holding that neither the waiver claimed nor the reduction of the amount to be deposited could be ordered. While doing so, the E.S.I. Court has acted fairly in granting 15 days time for making deposit of the amount contemplated under sub-section 2-B of Section 75 of the Act, keeping in mind that the appellant could not be denied the right of appeal without giving him time for complying with the condition. Before the expiry of the time thus granted by the Court, the appellant did not make the deposit. Nor was any application filed seeking extension of time. On the other hand, the appellant has chosen to come forward with all these Civil Miscellaneous Appeals challenging the orders passed in the Interlocutory Applications and the consequential orders passed in the E.S.I.O.Ps., making an untenable contention that the appellant was not given sufficient time for depositing the amount in compliance with the requirements of sub-section 2-B of Section 75 of the Act after the disposal of the Interlocutory Applications claiming waiver.
9. The other contention raised by the appellant that it was due to the mistake of the counsel, the appellant was not in a position to make the deposit in time, also cannot be countenanced. Suppose the appellant, without coming forward to challenge the orders, chose to make deposit and sought extension of time, we can say that the appellant acted bona fide. Even on the date of presentation of these appeals, the appellant has not chosen to come forward to deposit the amount contemplated under sub-section 2-B of Section 75 of the Act.
10. As rightly contended by the learned counsel for the respondent, the same will show lack of bona fide on the part of the appellant and the appellant's inclination to avoid payment of the contribution as per the claim as long as possible. No substantial question of law is shown to have involved in these Civil Miscellaneous Appeals. Sub-section 2 of Section 82 of the Act says that an appeal shall lie to the High Court from an order of an E.S.I. Court if it involves a substantial question of law. No such substantial question of law is proved to have arisen in these Civil Miscellaneous Appeals.
11. For all the reasons stated above, this Court comes to the conclusion that all the four Civil Miscellaneous Appeals fail and they are liable to be dismissed. Accordingly, all the C.M.A.Nos.659 to 662 of 2013 are dismissed. No costs. 16.09.2013 Index :Yes Internet :Yes jrl To 1. The Principal District Judge, Namakkal.
2. The Regional Director, Employee State Insurance Corporation, No.143, Sterling Road, Nungambakkam, Chennai 34.
3. The Joint Director, Sub Regional Office, Employee State Insurance Corporation, 2nd & 3rd Floor, Theerthamalai Vaniga Valagam, No.9/57, Three Road, Salem. P.R. SHIVAKUMAR, J.
jrl C.M.A.Nos.659 to 662 of 2013 16.09.2013