IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.12.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.12757 of 2007 and M.P.No.2 of 2007 C.KRISHNAN [ PETITIONER ] Vs 1 EMPLOYEES STATE INSURANCE CORPORATION REP BY ITS REGIONAL DIRECTOR PANCHDEEP BHAVAN, 143 STERLING ROAD NUNGAMBAKKAM, CHENNAI 34. 2 THE RECOVERY OFFICER EMPLOYEES STATE INSURANCE CORPORATION PANCHDEEP BHAVAN 143 STERLING ROAD NUNGAMBAKKAM, CHENNAI 34. 3 ESSEE METAL CONTAINER PVT. LTD 7, INDUSTRIAL ESTATE GUINDY CHENNAI 32. [ RESPONDENTS ] Prayer :Petitions under Article 226 of the Constitution of India praying for a Writ of Certiorari, calling for the records of the proclamation of attachment of the 3rd respondent's property being land and building at No.390, Industrial Estate Kovilambakkam Chennai 117 under sections 45C to 45 I of the ESI Act 1948 made by the 2nd respondent by publication in The Hindu dated 4.3.2007 and the Daily Thanthi dated 7.3.2007 and quash the same as illegal and invalid. For Petitioner :: Mr.Bala Chandru For Respondents :: Mrs.S.Jayakumari 1& 2 ORDER Heard both sides. 2. The petitioner claiming to be the Managing Partner of M/s.Essee Cans filed the present Writ Petition challenging the proclamation of attachment made in respect of the 3rd respondent's property under Sections 45-C to 45-I of the ESI Act made by the 2nd respondent published in the Hindu Newspaper dated 4.3.2007 and Daily https://hcservices.ecourts.gov.in/hcservices/ Thanthi dated 7.3.2007. 3. The Writ Petition was admitted on 5.4.2007. Pending the Writ Petition, this Court granted an interim stay of further proceedings in the proclamation of sale. Notice was directed to be taken by the Standing Counsel. Accordingly, Mrs.S.Jeyakumari, learned counsel appears for the 2nd respondent. 4. The respondents also filed a counter affidavit dated 20.10.2008. In the counter, in paragraph 13, it was stated as follows: "13. It is submitted that since M/s.SRK Industries and its partner Mr.C.Seshadhri, Partner (petitioner's brother and one of the partner along with the petitioner in M/s.Essee Cans P.Ltd.) continued to be a chronic defaulter, the recovery officer proceeded further with the issue of show cause notice in Form C18 (adhoc) dated 8.9.03 for the further period from 4/02 to 3/03 proposing to determine the contribution of Rs.27,885/- as per the Act based on the available information affording an opportunity of being heard on 11.11.03 to both the factory address and residence address of the partner. Since the factory M/s SRK Industries the partner Mr.C.Seshadhri neither appeared before the recovery officer on the said date nor complied, the recovery officer had to invoke Section 45A of the Act and passed an order dated 12.3.04 determining contribution of Rs.27,885/- for the period from 4/02 to 3/03 which is valid, legal and maintainable. Even after the issue of the 45A order, either M/s SRK Industries or the partner Mr.C.Seshadhri, partner (petitioner's brother and one of the partner along with the petitioner in M/s.Essee Cans P Ltd.) failed to utilize the opportunities of personal hearings and to comply as per the Act, the recovery officer has no other option to refer the case to the to the 2nd respondent recovery officer vide Recovery Certificate in Form C19 dated 1.6.04 to recover Rs.34,009/- (Contribution Rs.27,885/- % interest Rs.6,124/-) for the period from 4/02 to 3/03 under Section 45C to 45I of the ESI Act. This is valid, legal and enforceable consequential action." 5. The petitioner as against the proclamation of sale had also moved the ESI Court in CMP Nos.199 and 200 of 2003 and the fact of moving the ESI Court is set out in paragraphs 14 and 15, which reads as follows: "14.In the meantime, the partner Mr.C.Seshadhri, partner (petitioner's brother and one of the partner along with the petitioner in M/s.Essee Cans P. Ltd.) had filed petitions in ESI Court vide 1) CMP Nos.199 and 200 of 2003 against C19 recovery certificate in No.TN/Ins.VIII/51- https://hcservices.ecourts.gov.in/hcservices/ 58198/57/C19/3051 dated.10/28.4.03 for Rs.16,573/- for the period from 10/01 to 3/02; 2) CMP Nos.201 and 202 of 2003 against C19 recovery certificate in No.TN/Ins.VIII/51- 58198/57/C19/2363 dated.10/28.4.03 for Rs.2,71,519/- for the period from 4/94 to 9/01 and all the CMPs of 199,200, 201 and 202 of 2003 were dismissed for his default. 15. Even after the above mentioned show cause notices/45A orders/Recovery Certificates/Dismissal of CMPs 4 nos./Personal hearing note by the recovery officer on 5.4.2003, M/s.SRK Industries, or the partner Mr.C.Seshadhri, Partner (petitioner's brother and one of the partner along with the petitioner in M/s.Essee Cans P.Ltd.) did not have any inclination to comply as to settle the issue as per the provisions of the Act, the recovery officer had issued further show cause notice in Form C18 (adhoc) dated 6.8.04 proposing to claim contribution of Rs.27,885/- for the further period from 4/02 to 3/04 to determine the same as per provisions of the Act after affording an opportunity of being heard on 23.8.04 to both the factory and residence address of the partner Mr.C.Seshadhri, Partner (petitioner's brother and one of the partner along with the petitioner in M/s.Essee Cans P.Ltd.) failed to appear before the recovery officer on the date of personal hearing on 28.8.04 the recovery officer had no other alternative than to invoke Sec.45A of the Act to determine the contribution and passed order under Sec.45A of the Act dated 24.2.05 for Rs.27,885/- for the period from 4/03 to 3/04 and issued the same to both the factory address and residence address of the partner Mr.C.Seshadhri which is legal, valid and maintainable. Since there was no response from both the parties, the recovery officer referred the case to the 2nd respondent recovery officer vide recovery certificate in Form C19 for Rs.33,693/- (contribution Rs.27,885/- + interest Rs.5,808/-) dated 26.4.05 to recover the same under Section 45C to 45I of the Act. This is valid, legal and enforceable consequential action." 6. Though in the affidavit in page 5 it is stated that they had no choice except to approach this Court under Article 226 of the Constitution, there is no reference to their having availed the remedy in terms of the provisions of the ESI Act and also there is no reference to their moving the ESI Court in this regard. This action of the respondents is clearly reprehensible. 7. In any event, the contentions that the respondents have no right to attach the property, which does not belong to the petitioner and on the earlier action they moved against some other company are not the questions which are not gone into by this Court in exercise https://hcservices.ecourts.gov.in/hcservices/ of Article 226 of the Constitution of India. In case of improper attachment pursuant to the power exercised under the Act, the Act itself provides sufficient remedy under Section 45-H of the ESI Act. This Section incorporates the II and III Schedule of the Income Tax Act, 1961. The Income Tax Act under II Schedule more particularly Sections 10 and 11 clearly provides recovering officer making enquiries with reference to the ownership and in case of objection regarding ownership also, that renders a finding and if so he can release the said properties being brought under sale. Further, there is also a remedy regarding the liability by raising a dispute before the ESI Court under Section 75 of the ESI Act and failing which, even further appeal lies before this Court under Section 82 of the Act. 8. However, learned counsel for the petitioner strenuously contended that Article 21 provides for living with dignity and the attachment of the petitioner's property cannot be the appropriate course. Though there may be alternative remedy, it is the question of discretion and therefore this Court having admitted the Writ Petition and granted interim stay, they cannot be non-suited at this juncture. It is unnecessary to state that even in terms of Article 21, it does not give any liberty to disobey the laws of the land and the question of living with dignity includes abiding the laws made by the appropriate legislature. 9. On the question of the above term, it is necessary to refer to the judgment of the Supreme Court in Rajkumar Shivhare vs. Assistant Director, Directorate of Enforcement and another reported in (2010) 4 SCC 772. The Supreme Court in the said judgment in paragraph Nos.29 to 31 held as follows: "29. By referring to the aforesaid schemes under different statutes, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same. 30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L.Chandra Kumar v. Union of India. However, that does not answer the question of maintainability of a Writ Petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a Writ Petition should not be entertained ignoning the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicted and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the Writ Petition on the ground of lack of territorial jurisdiction. Further, in paragraph No.35, the Supreme Court has held as follows: "35. In this case, liability of the appellant is not created under any common law principle but, it is a 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." 11. In the light of the above, no case is made out. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition stands closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1 REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION PANCHDEEP BHAVAN, 143 STERLING ROAD, NUNGAMBAKKAM, CHENNAI 34. 2 THE RECOVERY OFFICER EMPLOYEES STATE INSURANCE CORPORATION PANCHDEEP BHAVAN, 143 STERLING ROAD NUNGAMBAKKAM, CHENNAI 34. 2 cc To Mr.Menon & Goklaney, Advocate, SR.90249 1 cc To Mr.S.Jayakumari, Advocate, SR.90776 W.P.No.12757 of 2007 ksk(co) pmk.10.1.2011 https://hcservices.ecourts.gov.in/hcservices/