1 904-wp-6160-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6160 OF 2011 NESCO Limited .. Petitioner. V/s. Employees State Insurance Corpn. Panchdeep Bhavan & Another .. Respondents. Mr. V.P. Vaidya, for the Petitioner. Mr. H.V. Mehta, for Respondent No.2. CORAM : K.K.TATED, J. DATE : 3rd AUGUST, 2011. P.C.: 1 Heard the learned counsel for the Parties. 2 Leave to amend the Petition is granted. Amendment to be carried out forthwith. 3 Rule. 4 By consent, matter is taken up for final hearing at the stage of admission. 2 904-wp-6160-2011.sxw 5 By this Petition, under Articles 226 & 227 of the Constitution of India, the Petitioner-Original Applicant challenges the order dated 27th June, 2011 passed by the learned Judge, Employees' Insurance Court, Mumbai in Misc. Application (ESI-E) No.12 of 2009 rejecting Petitioner’s Application under Section 75 (2B) of the Employees' State Insurance Act, 1948 (herein after referred to as “the said Act”). 6 Initially the Petitioner filed Application ESI No.5 of 2008 before the Judge, Employees Insurance Court, Mumbai under Sections 75 read with Sections 76 and 77 of E.S.I. Act, 1948, challenging the order dated 14th February, 2008 for arrears of contributions of Rs.17,05,370/- pertaining to three MRLs notices dated 24th December, 1998, 4th November, 1998 and 24th December, 1998 and the Prohibitory order issued by the Respondent thereby, withdrawing from the Petitioner’s Account a sum of Rs. 41,25,784/-. In the said application, the learned Judge, Employees Insurance Court passed judgment dated 17th June, 2008, directing Respondent to refund a sum of Rs.35,09,817/-. The Court also directed Respondent to carry out reconciliation work and find out how much amount the Petitioners are liable to be paid. 7 Pursuant to the order dated 17th June, 2008, the Deputy Director of Employees' State Insurance Corporation passed order dated 25th 3 904-wp-6160-2011.sxw March, 2009, holding that the Petitioners are liable to pay a total sum of Rs.11,01,340/-. In the said order, the Deputy Director stated that as per ESI Court's Order, a sum of Rs.5,15,967/- is lying with the Respondent and, therefore, Petitioners are liable to pay a sum of Rs.5,85,373/-. 8 Being aggrieved by the said reconciliation order dated 25th March, 2009, the Petitioner preferred Application under Sections 75, 76 and 77 of the said Act. In the said application, they preferred Application under Section 75 (2B) of the said Act for waiving the condition of deposit of 50% of the claim. As per Section 75 (2B) of the said Act, it is mandatory on the part of Principal Employer to deposit with the Court 50% of the amount due from him as claimed by the Corporation. In the said application, the Petitioner submits that in any case, 50% of the total claim has retained by the E.S.I. Corporation by virtue of judgment of E.S.I. Court, dated 17th June, 2008 in Application No. 5 of 2008 and, therefore, there is no question of depositing 50% of the claim. The said application decided by the learned Judge, Employees' Insurance Court, Mumbai by order dated 27th June, 2011 and rejected Petitioner's application, directing them to deposit a sum of Rs.5,85,373/- within a month from the date of the order. Hence, the present Petition. 9 The learned counsel appearing for the Petitioner submits that 4 904-wp-6160-2011.sxw the order dated 27th June, 2011 passed by learned Judge, Employees' Insurance Court, Mumbai is against justice, equity and good conscience and the same is liable to set aside. He submits that the learned Judge failed to appreciate that the Respondent-Corporation by its reconciliation order dated 25th March, 2009 held that the Petitioners are liable to pay a total sum of Rs.11,01,340/- and whereas a sum of Rs.5,15,967/- has already been lying with them. Therefore, there is no question of depositing any further amount as required under Section 75 (2B) of the said Act. On the basis of this submission, he submits that the impugned order dated 27th June, 2011 passed by the learned Judge is liable to be set aside and the application filed by them being Misc. Application (ESI) No. 12 of 2009 be allowed in terms of prayer clause (a). 10 On the other hand, the learned counsel appearing for the Respondent vehemently opposed the present Petition. He submits that the learned Judge of Employees' Insurance Court, Mumbai passed interlocutory order dated 27th June, 2011 and, therefore, the present Petition is not maintainable. He further submits that as per reconciliation order dated 25th March, 2009, they called upon the Petitioner to pay additional sum of Rs.5,85,373/- and therefore, atleast, Petitioner have to deposit 50% of the said amount. He further submits that the Petitioner on one or the other ground filed several litigations in different Courts. Therefore, there is no 5 904-wp-6160-2011.sxw substance in the present case and the same is liable to be dismissed. 11 I have gone through the impugned order dated 27th June, 2011 passed by the learned Judge, Employees' Insurance Court, Mumbai, application filed by the Petitioner under Section 75 (2B) and the order dated 25th March, 2009 passed by the Authority. Before considering the Petitioner's case, it is necessary to reproduce Section 75(2B) of the Employees' State Insurance Act, 1948 which reads as under:- “Section 75 (2B):- No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation.” 12 It is clear from the provisions of Section 75 (2B) that in any Appeal preferred against the order passed by the authority, Principal Employer have to deposit the 50% of the amount in the Court. In the present case, the authority, as per order dated 25th March, 2009 held that, the Petitioners are liable to pay a sum of Rs.11,01,340/- towards their dues. Therefore, if the Petitioner wants to challenge the order dated 25th March, 2009 under Sections 75, 76 and 77 of the said Act, they have to deposit atleast 50% of the amount in the Court, but in the present case, admittedly, 6 904-wp-6160-2011.sxw a sum of Rs.5,15,967/- is already lying with the authority. Therefore, whether the amount deposited in the Court or with the authority is one and the same in the facts of the present case. In the present case, I do not find any reason directing the Petitioner to further deposit any amount pursuant to the Section 75 (2B) of the said Act for preferring an Appeal. 13 In the above mentioned facts and circumstances of the case, Writ Petition is allowed. 14 The impugned order dated 27th June, 2011 passed by the learned Judge, Employees' Insurance Court, Mumbai in Misc. Application (ESI-E) No.12 of 2009 is set aside. The Employees' Insurance Court, Mumbai is directed to proceed with the hearing of main application filed by the Petitioner under Sections 75, 76 and 77 of the E.S.I. Act, 1948 without insisting deposit under Section 75 (2B) of E.S.I. Act, 1948. 15 No order as to costs. (K.K.TATED, J.)