IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.06.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.15213 to 15215 of 2003 & WPMP Nos.19096, 19097 and 19099 of 2003 M/s/Essar Machine Works Ltd., rep.by its Managing Director Mr.Suresh Veeraswami 155, Developed Plots Industrial Estate Perungudi, Chennai 96 .. Petitioner in W.P.15213 & 15214 of 2003 M/s.Electromechanics rep.by its Proprietor Mr.Suresh Veeraswami II-25, Instronics Campus Chennai 41 .. Petitioner in W.P.15215 of 2003 Vs. 1. The Deputy Director Regional Office (Tamil Nadu) Employees State Insurance Corporation 143, Sterling Road Chennai 34 2. Authorisied Officer Regional Office (Tamil Nadu) Employees State Insurance Corporation 143, Sterling Road Chennai 34 ...Respondents 1 & 2 in W.P.15213 & 15214/2003 and 2nd respondent in W.P.15215/2003 The Regional Director Regional Office (Tamilnadu) Employees state Insurance Corporation 143 Sterling Road, Chennai-34 ...1st Respondent in W.P.15215/2003 https://hcservices.ecourts.gov.in/hcservices/ 3. Recovery Officer Office of the Recovery Officer Regional Office (Tamil Nadu) Employees State Insurance Corporation 143, Sterling Road Chennai 34 .. Respondents in all W.Ps. Prayer in W.P.15213/2003 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the proceedings contained in two even Order No.TN/INS VIII/51-57630-66/3795 dated 8.4.2003 on the file of the 1st respondent received by the petitioner company on 8.5.2003, quash the same and direct the respondents to drop the proceedings for the period from 4/2002 to 9/2002. Prayer in W.P.15214/2003 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the proceedings contained in two even Order No.TN/INS VIII/51-57630-66/2727 dated 8.4.2003 on the file of the 1st respondent received by the petitioner company on 8.5.2003, quash the same and direct the respondents to drop the proceedings for the period from 1.12.1999 to 31.12.1999, 1.2.2000 to 30.9.2001 and 1.10.2001 to 31.3.2002. Prayer in W.P.15215/2003 : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the proceedings contained in two even Order No.TN/Recy/ESIC/CP 16/51-18524-67 dated 17.1.2003, quash the same and direct the respondents to withdraw the claim for payment of contributions for the period 4/97 to 3/2000, 4/2000 to 9/2001, resubmit fresh claims to the employer for interest due. For Petitioner in :: Mr.Sanjay Ramaswami for all W.Ps Mr.M.Uma Shankar For Respondents in all W.Ps :: Mr.K.C.Ramalingam COMMON ORDER The first two Writ Petitions are filed by M/s.Essar Machine works Limited represented by its Managing Director. In both the Writ Petitions, the challenge is to the order passed under Section 45-A of the ESI Act claiming dues from the petitioner employer. It is the case of the petitioner that the factory was closed and they are not in business any more. Despite the same, the respondent ESI Corporation seeks dues from the company without any justification. https://hcservices.ecourts.gov.in/hcservices/ 2. The third Writ Petition is filed by one M/s.Electromechanics represented by its Proprietor. In that Writ Petition, the attachment order dated 17.1.2003 is under challenge. By the impugned order of attachment, the petitioner employer was informed that they are prohibited from dealing with the property under attachment due to the non-payment of the amounts. 3. In all the Writ Petitions, this court passed a common order of interim stay on 20.5.2003. On notice from this Court, the respondent ESI Corporation has filed a counter affidavit on 4.10.2010. In all the three Writ Petitions, the principal objection taken by the respondent ESI Corporation is that the respondent ESI Corporation has passed an order under Section 45-A of the ESI Act fixing the liability and since the same is not under challenge in the manner known to law, there is no impediment for invoking the execution proceedings against the petitioner employer. In the 3rd Writ Petition, the Notice under Section 45-A is not under challenge and only the consequential proceeding is under challenge. 4. In these circumstances, the question of entertaining the Writ Petition under Article 226 of the Constitution will not arise. Whether the petitioner employer was liable to pay certain amount or whether the closure is in fact or not, are only a camouflage and they are only the questions of fact. For this purpose, the comprehensive mechanism is provided under Section 75 of the ESI Act before the ESI Court. The Supreme Court has held that if the orders under Section 45-A of the Act are not under challenge, they can be deemed to become final and there is no impediment for the ESI authorities to invoke the execution powers. 5. In this context, it is necessary to refer to the judgment of the Supreme Court in ESI Corpn. v. C.C. Santhakumar reported in (2007) 1 SCC 584, wherein it has been held 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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. In the light of the above, all the three Writ Petitions are not maintainable and accordingly they stand dismissed. No costs. The connected Miscellaneous Petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ajr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Deputy Director Regional Office (Tamil Nadu) Employees State Insurance Corporation 143, Sterling Road Chennai 34 2. Authorisied Officer Regional Office (Tamil Nadu) Employees State Insurance Corporation 143, Sterling Road Chennai 34 3. Recovery Officer Office of the Recovery Officer Regional Office (Tamil Nadu) Employees State Insurance Corporation 143, Sterling Road Chennai 34 4. The Regional Director Regional Office (Tamilnadu) Employees state Insurance Corporation 143 Sterling Road, Chennai-34 1 cc to Mr.M. Umashankar, Advocate, Sr. 32201 1 cc to Mr.K.c. Ramalingam, Advocate, Sr. 33035 W.P.Nos.15213 to 15215 of 2003 PA (CO) kk 23/6 https://hcservices.ecourts.gov.in/hcservices/