Dhanbad Cold Storage Private Limited Vs. the Employees State Insurance Corporation and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - learned counsel submits further that the demand of the amount, as raised by the respondents, is in itself bad in law and violative of the principles of natural justice as because, the petitioner was not given any opportunity of being heard against the proposed demand. learned counsel adds further that provisions of sub-section 2b of section 75 of the employees' state insurance act has made statutory requirement of deposit of 50% of the disputed amount as a condition precedent for raising such a dispute in respect of contribution or any other dues between the employer and the corporation and the petitioner has admittedly failed to comply with the statutory requirement under the act and cannot therefore legally pursue with its claim even before the learned court below.orderd.g.r. patnaik, j.1. challenge in this writ application is to the order dated 7.9.2007 passed in esi case no. 03 of 2008 by the presiding officer, labour court-cum-authority under employees state insurance act, dhanbad, whereby the petitioner's prayer for waiver of pre-requisite deposit of 50% of the disputed amount, have been rejected. similar challenge has also been made against the order dated 1.2.2008 passed in the aforesaid case by the learned court below, whereby the main application filed by the petitioner in respect of the maintainability of the proceeding itself, was dismissed. a further prayer has been made for quashing the provisional registration certificate issued by the respondent which, according to the petitioner, was issued under misconception and with ulterior motive, though according to the petitioner, it is not liable for registration or for coverage of any amount under the provisions of the employees' state insurance act.2. the petitioner's case in brief is that it is engaged in the business of storage of food articles. in course of its business, the petitioner had never appointed more than nine employees in its establishment at any point of time. such fact has been acknowledged and accepted by the labour department which had issued the registration to the petitioner's establishment under the bihar shops and establishments act and had renewed it from time to time declaring in all such renewals that the number of employees in the petitioner's establishment does not exceed nine.it is stated that on a regular inspection, the inspector of the esi corporation made a casual visit to the petitioner's establishment. even though, he had personally observed that the total number of employees working in the petitioner's establishment was only nine, the inspector had wrongly and maliciously recorded that there were eleven employees working in the unit.on the basis of the report of the inspector, and on the claim that the petitioner has been engaging eleven workers in its unit, the respondents allotted provisional registration to the petitioner under the esi act with further direction to produce its cash memo, vouchers and other documents for verification to the insurance inspector. the petitioner objected to the directive issued by the respondents on the ground that its unit does not come within the purview of the esi act. in spite of such objection, the respondent authorities recorded an ex-parte order and raised a demand of rs. 75,344/- as being the amount of contribution payable by the petitioner from 20.2.2003 to 31.5.2005.the petitioner being aggrieved by the action of the respondent authorities, moved before the labour court-cum-authority under the employees' state insurance act by filing an application challenging the provisional registration allotted and also prayed for waiver of pre-requisite deposit of 50% of the disputed amount and also for staying the operation of the impugned demand. the learned court below by its impugned order dated 7.9.2007 (annexure-10), rejected the petitioner's prayer for waiver of the pre-requisite deposit of 50% of the disputed amount and directed the petitioner to make the 50% deposit and by subsequent order dated 1.2.2008 (annexure-13), the learned court below dismissed the main application of the petitioner on the ground of non-deposit of 50% of the disputed amount.3. the petitioner has challenged the impugned orders on the ground that pre requisite deposit of 50% of the disputed amount, cannot be made a rule when legality, validity and genuineness of the registration under the esi act is under challenge.shri indrajit sinha, learned counsel for the petitioner, would argue that the learned court below without considering the grounds raised by the petitioner challenging the registration itself, has rejected the petitioner's original application itself on technical grounds, but not on merits. learned counsel submits further that the demand of the amount, as raised by the respondents, is in itself bad in law and violative of the principles of natural justice as because, the petitioner was not given any opportunity of being heard against the proposed demand.4. a counter-affidavit has been filed on behalf of the respondents.shri rajan raj, learned counsel for the respondents, would raised a preliminary objection on the maintainability of this writ application, on the ground that the petitioner being aggrieved by the impugned order of the court below, which was passed under the provisions of the employees' state insurance act, 1948, he ought to have availed the alternative remedy of appeal under the provisions of section 82 of the act and as such, this writ application is not maintainable. learned counsel adds further that the dispute raised by the petitioner in this writ application, is basically related to the dispute on facts in respect of number of employees engaged by the petitioner in its establishment and such dispute on facts, cannot be resolved by the writ court. learned counsel adds further that provisions of sub-section 2b of section 75 of the employees' state insurance act has made statutory requirement of deposit of 50% of the disputed amount as a condition precedent for raising such a dispute in respect of contribution or any other dues between the employer and the corporation and the petitioner has admittedly failed to comply with the statutory requirement under the act and cannot therefore legally pursue with its claim even before the learned court below.5. from the rival submissions of the learned counsel, it is apparent that the dispute raised by the petitioner, is essentially on the basis of controversy regarding the number of employees engaged by it in its establishment. while the petitioner's claim is that it has never engaged employees beyond nine in number, the respondents on the basis of the inspection report of the inspector, has claimed that on the basis of the inspection report, the number of employees engaged in the petitioner's establishment was found to be eleven. it is on the basis of such claim that the petitioner has also challenged the allotment of the provisional registration by the respondents under the esi act. these are obviously matters involving dispute on facts. furthermore, under section 82 of the act, a provision has been made for filing appeal against the orders passed by the employees insurance court. remedy is also available under the provisions of section 83 of the act, whereby the appellate court, may in appropriate cases, stay the order of payment under the act pending decision in the appeal and withhold the payment of any sum directed to be paid by the order appealed against.6. as rightly pointed out by the learned counsel for the respondents, the issues raised by the petitioner in the present writ application, are issues which this court, in exercise of its writ jurisdiction, cannot decide.7. for the reasons stated above, i do not find any merit in this application. accordingly, the same is dismissed. petitioner is, however, at liberty to avail the alternative remedy of appeal, as provided under the act, against the orders impugned.

Judgment:
ORDER

D.G.R. Patnaik, J.

1. Challenge in this writ application is to the order dated 7.9.2007 passed in ESI Case No. 03 of 2008 by the Presiding Officer, Labour Court-cum-Authority under Employees State Insurance Act, Dhanbad, whereby the petitioner's prayer for waiver of pre-requisite deposit of 50% of the disputed amount, have been rejected. Similar challenge has also been made against the order dated 1.2.2008 passed in the aforesaid case by the learned court below, whereby the main application filed by the petitioner in respect of the maintainability of the proceeding itself, was dismissed. A further prayer has been made for quashing the provisional registration certificate issued by the respondent which, according to the petitioner, was issued under misconception and with ulterior motive, though according to the petitioner, it is not liable for registration or for coverage of any amount under the provisions of the Employees' State Insurance Act.

2. The petitioner's case in brief is that it is engaged in the business of storage of food articles. In course of its business, the petitioner had never appointed more than nine employees in its Establishment at any point of time. Such fact has been acknowledged and accepted by the Labour Department which had issued the registration to the petitioner's Establishment under the Bihar Shops and Establishments Act and had renewed it from time to time declaring in all such renewals that the number of employees in the petitioner's Establishment does not exceed nine.

It is stated that on a regular inspection, the Inspector of the ESI Corporation made a casual visit to the petitioner's Establishment. Even though, he had personally observed that the total number of employees working in the petitioner's Establishment was only nine, the Inspector had wrongly and maliciously recorded that there were eleven employees working in the Unit.

On the basis of the report of the Inspector, and on the claim that the petitioner has been engaging eleven workers in its Unit, the respondents allotted provisional registration to the petitioner under the ESI Act with further direction to produce its cash memo, vouchers and other documents for verification to the Insurance Inspector. The petitioner objected to the directive issued by the respondents on the ground that its Unit does not come within the purview of the ESI Act. In spite of such objection, the respondent authorities recorded an ex-parte order and raised a demand of Rs. 75,344/- as being the amount of contribution payable by the petitioner from 20.2.2003 to 31.5.2005.

The petitioner being aggrieved by the action of the respondent authorities, moved before the Labour Court-cum-Authority under the Employees' State Insurance Act by filing an application challenging the provisional registration allotted and also prayed for waiver of pre-requisite deposit of 50% of the disputed amount and also for staying the operation of the impugned demand. The learned court below by its impugned order dated 7.9.2007 (Annexure-10), rejected the petitioner's prayer for waiver of the pre-requisite deposit of 50% of the disputed amount and directed the petitioner to make the 50% deposit and by subsequent order dated 1.2.2008 (Annexure-13), the learned court below dismissed the main application of the petitioner on the ground of non-deposit of 50% of the disputed amount.

3. The petitioner has challenged the impugned orders on the ground that pre requisite deposit of 50% of the disputed amount, cannot be made a Rule when legality, validity and genuineness of the registration under the ESI Act is under challenge.

Shri Indrajit Sinha, learned Counsel for the petitioner, would argue that the learned court below without considering the grounds raised by the petitioner challenging the registration itself, has rejected the petitioner's original application itself on technical grounds, but not on merits. Learned Counsel submits further that the demand of the amount, as raised by the respondents, is in itself bad in law and violative of the principles of natural justice as because, the petitioner was not given any opportunity of being heard against the proposed demand.

4. A counter-affidavit has been filed on behalf of the respondents.

Shri Rajan Raj, learned Counsel for the respondents, would raised a preliminary objection on the maintainability of this writ application, on the ground that the petitioner being aggrieved by the impugned order of the court below, which was passed under the provisions of the Employees' State Insurance Act, 1948, he ought to have availed the alternative remedy of appeal under the provisions of section 82 of the Act and as such, this writ application is not maintainable. Learned Counsel adds further that the dispute raised by the petitioner in this writ application, is basically related to the dispute on facts in respect of number of employees engaged by the petitioner in its Establishment and such dispute on facts, cannot be resolved by the writ court. Learned Counsel adds further that provisions of Sub-section 2B of section 75 of the Employees' State Insurance Act has made statutory requirement of deposit of 50% of the disputed amount as a condition precedent for raising such a dispute in respect of contribution or any other dues between the employer and the Corporation and the petitioner has admittedly failed to comply with the statutory requirement under the Act and cannot therefore legally pursue with its claim even before the learned court below.

5. From the rival submissions of the learned Counsel, it is apparent that the dispute raised by the petitioner, is essentially on the basis of controversy regarding the number of employees engaged by it in its Establishment. While the petitioner's claim is that it has never engaged employees beyond nine in number, the respondents on the basis of the inspection report of the Inspector, has claimed that on the basis of the inspection report, the number of employees engaged in the petitioner's Establishment was found to be eleven. It is on the basis of such claim that the petitioner has also challenged the allotment of the provisional registration by the respondents under the ESI Act. These are obviously matters involving dispute on facts. Furthermore, under section 82 of the Act, a provision has been made for filing appeal against the orders passed by the Employees Insurance Court. Remedy is also available under the provisions of section 83 of the Act, whereby the Appellate Court, may in appropriate cases, stay the order of payment under the Act pending decision in the appeal and withhold the payment of any sum directed to be paid by the order appealed against.

6. As rightly pointed out by the learned Counsel for the respondents, the issues raised by the petitioner in the present writ application, are issues which this court, in exercise of its writ jurisdiction, cannot decide.

7. For the reasons stated above, I do not find any merit in this application. Accordingly, the same is dismissed. Petitioner is, however, at liberty to avail the alternative remedy of appeal, as provided under the Act, against the orders impugned.