ORDER
1. This matter came to be listed on being specially ordered by the Hon'ble Chief Justice vide order dated 12.1.2011. The Writ Petition is yet to be admitted. However, Mrs.Jeyakumari, learned Standing Counsel for ESI Corporation takes notice for the respondent.
2. The Writ Petitioner challenges an order passed under Section 45-A of the ESI Act dated 8.7.2010 by the respondent. By the impugned order, the liability on the petitioner was fixed for the period from 1.6.2005 to 31.3.2006. It is claimed that the petitioner company has paid labour charges to the non-coded contractors and also paid contingency charges. For the balance sums of money, after a show cause notice was issued to the petitioner, ESI Corporation determined the amount due and payable on the escaped contribution. The amount due from the company was fixed at Rs.61,74,211/-. Since already a sum of Rs.98,509/- was paid, the principal employer namely the petitioner was directed to pay balance of Rs.60,75,702/-. It is against this order, the Writ Petition is filed.
3. The ground taken in the Writ Petition was that it was incorrect to state the contractors were non-coded contractors. Out of 19 contractors, 8 had code number of their own. It is also claimed that a similar claim was made relating to the year 2005-2006. Therefore, by virtue of the amendment made to Section 45-AA, limitation of five years also applies. The respondent ESI Corporation before fixing the amount ought to have issued Notice to the contractors and then satisfy about their code and then only fix the amount and hence there is non-application of mind for passing an Order under Section 45AA of the ESI Act. However, it is unnecessary to go into the contentions raised in the Writ Petition, as the petitioner has other remedies under the ESI Act.
4. By an amendment made by Central Act 18 of 2002, Section 45-AA has been introduced raising the appellate authority is provided for filing an appeal passed under Section 45-A. Though it is now claimed that there is no statutory notification issued in terms of the appellate authority, yet Section 75 of the ESI Act is still intact. Section 75 is a comprehensive provision under which any dispute including the dispute of the present nature can be raised before the appropriate ESI Court. Therefore, it cannot be said that the petitioner has no remedy by way of any appeal provisions under the Act. Even if any adverse order is passed by the ESI Court, there is further remedy by way of Section 82, which is an appeal to this Court.
5. The Supreme Court in ESI Corpn. v. C.C. Santhakumar reported in (2007) 1 SCC 584 held that in respect of a notice under Section 45-A of the ESI Act, which is not challenged under Section 75 of the Act, the authorities can deem it a final order and proceed to recover the amount. It is necessary to refer to the following passages found in paragraphs 17, 25, 28, 30 and 31 of the said judgment, which are as follows: "17. Prior to the incorporation of Section 45-A under Act 44 of 1966, the only resort available to the Corporation was Section 75, for recovery of contribution through the court. Since this procedure was found to be impracticable and delayed process involved, a special provision was contemplated whereunder adjudication is to be made by the Corporation itself. By reason of incorporation of Section 45-A with effect from 17-6-1967, it became possible for the Corporation to have determination of the question, binding on the principal employer, without resorting to the ESI Court. In regard to the order under Section 45-A, the same is enforced, as envisaged under Section 45-B, which was similarly brought into the Act, by which the contribution may be recovered as arrears of land revenue. With regard to the decision reached by the ESI Court in the application under Section 75, the said decision is enforced, as envisaged in sub-section (4) of Section 75 as if it is a civil court. The mode of recovery under Section 45-B of the Corporation and the mode of recovery as per Section 75(4) by the ESI Court as the civil court are entirely different as both Sections 45 and 75 operate in different spheres. 25.Section 45-A of the Act contemplates a summary method to determine contribution in case of deliberate default on the part of the employer. By Amendment Act 29 of 1989, Sections 45-C to 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law or the ESI Court. Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to either a suit, appeal or application in the court. Under Section 68(2) and Sections 45-C to 45-I, after determination of contribution, recovery can be made straight away. If the employer disputes the correctness of the order under Section 45-A, he could challenge the same under Section 75 of the Act before the ESI Court. 28.What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dispute in the determination either under Section 45-A(1) or under Section 68, the Corporation can straightaway go for recovery of the arrears. 30.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 Sections 45-C to 45-I. 31.In ESI Corpn. v. F. Fibre Bangalore (P) Ltd. it was observed that it is not necessary for the Corporation to seek a resolution of the dispute before the ESI Court, while the order was passed under Section 45-A. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim, it is for him to move the ESI Court for relief. In other cases, other than cases where determination of the amount of contributions under Section 45-A is made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the ESI Court, before enforcing recovery."
6. The Supreme Court in Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement and another reported in (2010) 4 SCC 772 has held that when a Statute provides for comprehensive remedy, question of entertainment of the Writ Petition under Article 226 will not arise. It is necessary to refer to following passages found in paragraphs 26, 35, 37 and 38: "26. In the instant case also when a right is conferred on a person aggrieved to file appeal from "any" order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any "order" or "decision" of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal an all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law.
35. In this case, liability of the appellant is not created under any common law principle, but it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A Writ Petition in the facts of this case is therefore clearly not maintainable.
37. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if the High Court had territorial jurisdiction it should not have entertained a Writ Petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA.
38. The learned counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan v. Pandit Durga Prasad. The learned counsel relied on para 13 of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. However, the aforesaid principle is subject to one exception, namely, where there is a complete lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is declared ultra vires. In such case, notwithstanding the existence of such a tribunal, the High Court can exercise its jurisdiction to grant relief."
7. In the light of the above, the Writ Petitions stand dismissed. No costs. Consequently, the connected Miscellaneous Petition stand closed.