IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 605 of 2003. Surya Roshni Limited, Moradabad Road, Kashipur, District Udham Singh Nagar.. … Petitioners. Vs. Regional Director, Employees State Insurance Corporation, Panchdeep Bhawan, Wing No.4, Shivpuri, Prem Nagar, Dehradun. …Respondent. Date March 27, 2010. Hon’ble B.S.Verma, J. (Stay Application No. 1815 of 2010) Mr. Sudhir Kumar, Advocate for the petitioner. Mr. C.K.Sharma, Advocate, for the respondent. Heard learned counsel for the parties and perused the record including the counter version placed by the respondent. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari for setting aside the demand raised by the respondent contained in letter dated 21-4-2003 (Annexure-9 to the petition). By the impugned demand, the respondent has directed the petitioner to deposit the ESI contribution through C-18 from February 1992 to August 1992 amounting to Rs. 17,99,096/- and through C-18 from 1-9-1994 to 31-12-1996 amounting to Rs. 16,56,732/- within a period of 15 days and to put forth its case within ten days. According to the petitioner, the petitioner is a Public Limited Company duly incorporated under the Indian Companies Act. The petitioner is engaged in manufacture of various kinds of lighting bulbs, tubes, etc. and engages about 1200 employees in its factory at Kashipur. The provisions of the Employees State Insurance Act were not applicable to Kashipur area and as such, the petitioner, in order to provide free medical help and assistance to its employees and their 2 family round the clock, has established a hospital by engaging three qualified doctors, trained nurses, other paramedic and non-paramedic staff etc. The provisions of the said Act were enforced in Kashipur w.e.f. 1-2-1992. But the required facilities and amenities was not provided by the respondent and no infrastructure for carrying out the duties under the Act was provided and the petitioner had to continue to provide the medical facilities and amenities to its employees. The employees’ Union of the petitioner company also made a representation to the State Government but no action was taken. Then the employees union filed a writ petition bearing Civil Misc. Writ Petition No. 30553 of 1992, Surya Shramik Sangh and another Vs. State of U.P. and others before the Allahabad High Court. The writ petition was disposed of vide order dated 16-9-1993 and direction was given that if a representation is made by the petitioner, the Director General of E.S.I. shall decide the representation of the petitioner and pass a speaking order on merits. The representation was made in compliance of the Court’s order. During the pendency of that writ petition, the petitioner again approached the Allahabad High Court in writ petition bearing C.M. Writ Petition No. 390 of 1994 and the High Court vide interim order dated 17-1-1994 restrained the respondent no. 4 from deducting E.S.I. contributions from the salary from the employees of the Surya Shramik Sangh for the months of February and March 1994. Thereafter the interim order was extended from time to time and, subsequently, the writ petition was transferred to this Court. In the mean time the representation of the petitioner was dismissed by the State Government, therefore, the writ petition was dismissed as infructuous vide order dated 23-3-2004. 3 Now the petitioner is deducting the amount of ESI contributions after dismissal of the writ petition. The grievance of the petitioner is that during the intervening period commencing from the interim order passed by the Allahabad High Court vide order dated 17-1-1994 in Writ Petition No. 390 of 1994 till the dismissal of the writ petition by order dated 23-3- 2004, the petitioner could not deduct the amount of ESI contribution for the month of February 1994 onwards because of the interim order passed by Allahabad High Court. In the counter affidavit, it has been stated that the Government has already rejected the application of the petitioner for granting exemption towards ESI contribution. It is also stated that the demand has been raised against the petitioner after giving personal hearing to the petitioner. Learned counsel for the petitioner has vehemently argued that the petitioner is not liable to pay the amount of ESI contributions for the period the interim order dated 17-1-1994 passed by the Allahabad High Court remained in force i.e. for the months of February 1994 till March 2004. Learned counsel in support of his contention has relied upon the judgment of the Apex Court in the case of Employees’ State Insurance Corporation Vs. Distilleries & Chemical Mazdoor Union and others [(2006) 6 Supreme Court Cases, 604] wherein it has been held in para 26 as under:- “26. In our opinion, the High Court was fully justified in passing the judicious order after considering the equities by directing the employer and the employees to make ESIC contribution for the future i.e., from the date of disposal of the writ petition and should not bear the liability for the past inasmuch as the employees of Respondent 2 have not availed any medical facilities from ESIC and at the same time the employer was providing the medical facilities due to interim 4 order of the High Court. In these circumstances, the order passed by the High Court, in our considered opinion, meets the ends of justice and does not require interference by this Court under Article 136 of the Constitution of India.” Learned counsel for the petitioner also contended that the medical facilities were not provided by the respondent and at the same time, they were provided by the petitioner. In view of the interim order of the High Court, the ESI contribution could not be deducted by the petitioner. In view of the law laid down by the Apex Court in the case of Employees’ State Insurance Corporation Vs. Distilleries & Chemical Mazdoor Union and others (supra), the petitioner is not liable to pay the amount of ESI contribution in compliance of the interim order dated 17-1-1994 passed by the Allahabad High Court. The writ petition (CMWP No. 390 of 1994) was received by transfer to this Court and was registered as W.P.M.S. No. 3583 of 2001. This writ petition was dismissed as infructuous vide order dated 23-3-2004. Accordingly the petitioner is not liable to pay the ESI contribution for the intervening period, i.e. from the date of interim order to the date of dismissal of the writ petition. For the reasons and discussion above, the writ petition deserves to be allowed. The impugned order dated 21-4-2003 (Annexure-9 to the petition) is liable to be set aside. The writ petition is allowed. The demand raised by the respondent (Annexure-9 to the writ petition) is set aside. The petitioner is not liable to pay the ESI contribution for the month of February 1994 till March, 2004. Costs easy. (B.S.Verma,J.) RCP 5