* HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE P. SWAROOP REDDY +C.M.A. NO. 469 OF 2008 %20.10.2010 #The Regional Director, Regional Office, Employees State Insurance Corporation and two others . ….Appellants Vs. $ M/s VMC Film Distributors represented by its Proprietor Sri V. Doraiswami Raju …. Respondents !Counsel for the Appellants: Smt Pushpinder Kaur Counsel for the Respondents: Dr. I Sujatha <Gist : >Head Note: ? Cases referred: 1. 2000 (1) LLJ 171 2. 1994 III LLJ (suppl.) 643/ (MAI Nos. 67 and 68 of 1984 dated April 26, 1991) 3. AIR 1969 SC 430 4. 1977 LAB IC 1482 HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE P. SWAROOP REDDY C.M.A. NO. 469 OF 2008 Between: The Regional Director, Regional Office, Employees State Insurance Corporation , 5-9-23 Hill Fort Road, Hyderabad. And two others ……..APPELLANTS/RESPONDENTS AND M/s VMC Film Distributors represented by its Proprietor Sri V. Doraiswami Raju resident of Flat No. 16, IV Floor Shilpa Apartments, MLA Colony ……....RESPONDENT/PETITIONER JUDGMENT : (Per Hon'ble Sri Justice Ghulam Mohammed) This Civil Miscellaneous Appeal is directed against the order dated 02.05.2008 passed in I.A.No. 120 of 2007 in EIC.No. 09 of 2007 on the file of Employees Insurance Court and Chairman Industrial Tribunal-I, Hyderabad. I.A. No. 120 of 2007 was filed by the respondent herein viz., M/s VMC Film Distributors represented by its Proprietor Sri V. Doraiswami Raju, under Section 151 CPC read with Section 75 of Employees’ State Insurance Act, 1948 (for short “the ESI Act”) to direct the respondents therein in specific terms to lift the Attachment Order of movable property and to restore the possession of the same to it. That application was allowed in part with the following observation: “After hearing both sides, I am of the opinion that the petitioner prima facie is able to show that the attachment was made in a hurried manner without any reasonable cause. Hence, I am inclined to order interim custody of the attached movable properties to the petitioner. In the result, the petition is partly allowed without costs. But in order to safeguard the interest of both sides, I think it proper to order interim custody of the attached movable properties covered by impugned order namely (1) Tirupati Sri Balaji (Hindi Version) Copy No. 14, 16 reels of the Film, (2) Annamayya (Telugu Version) Copy No. 71, 16 Reels of the film, owned by VMC Productions which is not the petitioner’s firm, (3) Honda City GX1 –Grey Colour bearing number AP 9 AZ 9989 on the condition of the proprietor of the petitioner company executing undertaking affidavit not to dispose of the above said movable properties till the disposal of the main case and produce the same in same condition without any alteration as and when directed by the court. The petition is allowed partly as indicated above.” Aggrieved by the same, the Regional Director, Employees State Insurance Corporation preferred the present Civil Miscellaneous Appeal. Brief facts of the case are that the respondent herein viz., M/s VMC Film Distributors represented by its Proprietor Sri. V. Doraswamy Raju filed EIC No. 9 of 2007 disputing the coverage of the film under the provisions of the ESI Act. It is stated that the impugned attachment order dated 7.2.2007 was directed against the petitioner therein to pay the amount of Rs. 13,45,375/- towards alleged ESI Contributions for the period of November 1989 to September 2005 which includes interest. The Tribunal granted stay on 30.4.2007 in I.A.No. 90 of 2007 on condition of depositing 40% of the amount. It is stated that the petitioner complied with the order by paying 40% of the amount. Even then, the third respondent issued public notice in Deccan Chronicle Daily Newspaper on 15.3.2007 proposing to sell attached property of the petitioner including the Car. Aggrieved by the same, the petitioner filed CMA No. 564 of 2007 and this Court passed orders on 28.9.2007 setting aside the orders dated 28.6.20007 passed in I.A.No. 120 of 2007 in EIC No. 9 of 2007 and remitting the matter to the Tribunal for fresh disposal after giving an opportunity to both sides. Aggrieved by the same, respondents-ESI Corporation filed an appeal viz., CMA No. 2024 of 1989, in so far as remitting the matter to ESI Corporation. The appeal was disposed of with a direction to the respondents for fresh assessment after due process of law and the petitioner was also directed to produce the relevant records. The respondent has provided an opportunity to the petitioner subsequently as per the directions but records were not produced by the petitioner. Hence, it is stated that the respondent passed orders dated 10.8.2006 under Section 45A determining the contributions payable as Rs. 7,47,271/- for the relevant period and granted 15 days time for compliance. Therefore the Tribunal opined that the petitioner deposited 40% of the claimed amount in the court which is lying in the court deposit and if the Corporation succeeds ultimately in the main case they are entitled to withdraw the said amount and the petitioner is not escaping from the jurisdiction of the court to deprive the Corporation from payment of the claim and accordingly allowed the petition in part. The learned counsel appearing for the appellant has drawn our attention to the provisions of the Employees’ State Insurance Act, 1948 and contended that this is a beneficial piece of legislation and it provides for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. He also submits that determination of contribution has to be made under Section 45 A of the ESI Act and under Section 45 of the ESI Act duties and functions of Inspectors are mentioned and under Section 45C, issue of certificate to the Recovery Officer. He stated that under Section 45 of the Act Inspector has visited and Ex. P1 is the visit note, Ex. P-2 is the letter of ESI Inspector dated 9.8.1996 and Ex. P-3 is the observation slip of ESI inspector dated 20.8.1996. He also drawn our attention to the judgment of the Calcutta High Court reported in EMPLOYEES’ STATE INSURANCE CORPORATION VS. MACKINTOSH BURN LIMITED AND ANOTHER[1], and of Madhya Pradesh High Court reported in EMPLOYEES’ STATE INSURANCE CORPORATION, INDORE VS. SWADESH DAILY NEWSPAPER, GWALIOR[2]. On the other hand, learned counsel appearing for the respondent contended that initially appellants raised a demand to pay contributions for the period from November 1989 to September 2005 without giving any notice and thereafter, with regard to this period, appellants herein have attached the property, which is illegal and arbitrary. She also submitted that respondent deposited 40% of the claimed amount in stay petition No. 90 of 2007. She further submits the respondent made representations to the appellants stating that the attached film reels if kept unused without screening in the theatres would get damaged and become useless apart from causing loss to revenue and therefore, prayed to raise the attachment order. She further submits that the main question that is to be decided by the Tribunal is still pending for adjudication before the ESI Court and the jurisdiction of Civil Court is barred under Section 75 (3) and ESI Court is a Special Tribunal to deal with the matter. She has drawn our attention to the judgments of the Supreme Court reported in INCOME TAX OFFICER, CANNANORE VS. M.K. MOHAMMED KUNHI[3] and M/S SHRIRAM BEARINGS LIMITED VS. THE EMPLOYEES’ STATE INSURNACE CORPORATION AND OTHERS[4]. We have heard the learned counsel appearing for both sides and also perused the entire material made available on record. The point that arises for consideration is as to whether the Tribunal has rightly entertained the application so as to lift the attachment and while doing so rightly imposed a condition of depositing 40% of the disputed amount towards contribution? It is no doubt true that the impugned attachment order dated 7.2.2007 was directed against the respondent herein to pay the amount of Rs. 13,45,375/- towards alleged ESI Contributions for the period from November 1989 to September 2005, which includes interest. The Tribunal granted stay on 30.4.2007 in I.A No. 90 of 2007. It is also no doubt true that the respondent herein paid 40% of the impugned amount. Under Section 45 of the ESI Act Inspector has visited the premises. The main duty of the Inspector is to give report mentioning how many persons are employed with the aid of power and how many persons are employed without the aid of power and if the persons are beyond 10 with the aid of power, then the factory can raise a demand to contribute or to make contributions under Section 45 D. The relevant Sections 45, 45A, 45B, 45C and 45 D read as under: “45. Inspectors, their functions and duties (1) The Corporation may appoint such persons as Inspectors, as it thinks fit, for the purposes of this Act, within such local limits as it may assign to them. (2) Any Inspector appointed by the Corporation under sub-section (1) (hereinafter referred to as Inspector), or other official of the Corporation authorised in this behalf by it may, for the purposes of enquiring into the correctness of any of the particulars stated in any return referred to in Section 44 or for the purpose of ascertaining whether any of the provisions of this Act has been complied with- (a) Require any principal or immediate employer to furnish to him such information as he may consider necessary for the purposes of this Act; or (a) at any reasonable time enter any office, establishment, factor or other premises occupied by such principal or immediate employer and require any person found in charge thereof to produce to such Inspector or other official and allow him to examine such accounts, books and other documents relating to the employment of persons and payment of wages or to furnish to him such information as he may consider necessary; or (b)examine, with respect to any matter relevant to the purposes aforesaid, the principal or immediate employer, his agent or servant, or any person found in such factor, establishment, office or other premises, or any person whom the said Inspector or other officials has reasonable cause to believe to be or to have been an employee; (c) make copies of, or take extracts from, any register, account book or other document maintained in such factory, establishment, office or other premises; (d) exercise such other powers as may be prescribed . (3) An Inspector shall exercise such functions and perform such duties as maybe authorised by the Corporation or as may be specified in the regulations. 45 A. Determination of contributions in certain cases. (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Inspector or other official of the Corporation referred to in sub-section(2) of Section 45 is (prevented in any manner) by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment. Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard. (2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as an arrear of land revenue under Section 45B (or recovery under Section 45C to Section 45-I). 45B. Recovery of contributions : Any contribution payable under this Act may be recovered as an arrear of land revenue. 45C. Issue of certificate to the Recovery Officer: (1) Where any amount is in arrears under this Act, the authorised officer may issue, to the Recovery Officer, a certificate under his signature specifying the amount of arrears and the Recovery Officer, on receipt of such certificate, shall proceed to recover the amount specified therein from the factory or establishment or, as the case may be, the principal or immediate employer by one or more of the modes mentioned below--- (a) attachment and sale of the movable or immovable property of the factory or establishment or, as the case may be, the principal, or immediate employer; (b)arrest of the employer and his detention in prison; (c) appointing a receiver for the management of the movable or immovable properties of the factory or establishment or, as the case may be, the employer: Provided that the attachment and sale of any property under this section shall first be effected against the properties of the factory or establishment and where such attachment and sale is insufficient for recovering the whole of the amount of arrears specified in the certificate, the Recovery Officer may take such proceedings against the property of the employer for recovery of the whole or any part of such arrears. (2) The authorised officer may issue a certificate under sub-section (1) notwithstanding that proceedings for recovery of the arrears by any other mode have been taken. 45C Recovery Officer to whom certificate is to be forwarded (1) The authorised officer may forward the certificate referred to in Section 45C to the Recovery Officer within whose jurisdiction the employer---- (a) carries on his business or profession or within whose jurisdiction the principal place of his factory or establishment is situate; or (b) resides or any movable or immovable property of the factory or establishment or the principal of immediate employer is situate. (2) Where a factory or an establishment or the principal or immediate employer has property within the jurisdiction of more than one Recovery Officers and the Recovery Officer to whom a certificate is sent by the authorised officer--- (a) is not able to recover the entire amount by the sale of the property movable or immovable, within his jurisdiction; or (b) is of the opinion that, for the purpose of expediting or securing the recovery of the whole or any part of the amount, it is necessary so to do, he may send the certificate or, where only a part of the amount is to be recovered, a copy of the certificate certified in the manner prescribed by the Central Government and specifying the amount to be recovered to the Recovery Officer within whose jurisdiction the factory or establishment or the principal or immediate employer has property or the employer resides, and thereupon that Recovery Officer shall also proceed to recover the amount due under this Section as if the certificate or the copy thereof had been the certificate sent to him by the authorised officer”. In the Calcutta High Court’s judgment, which was relied on by the counsel appearing for the appellant reported in EMPLOYEES’ STATE INSURNACE CORPORATION VS. MACKINTOSH BURN LIMITED AND ANTOEHR (supra-1), at paragraphs 8 and 15 8it was held as under: “8. After hearing the learned advocates for the parties and after going through the provisions contained in the Act it appears to this Court that Employees’ Insurance Court can in view of Section 75 (2B) of the Act restrain the petitioner from realising any amount till the disposal of the proceeding under Section 75 of the Act even unconditionally. But mere pendency of an application under Section 75 of the Act cannot prevent the petitioner or its recovery officer from realising the amount alleged to be due if there is no order of injunction to that effect. In the instant case on March 3, 1998, when the amount was realised by the petitioner through recover officer, although the proceeding under Section 75 of the Act was pending, no order or injunction was passed restraining the petitioner from realising the amount. Such order was passed on March 10, 1998 when execution was complete. Under the aforesaid circumstances, so long the proceeding initiated under Section 75 of the Act is not disposed of and so long as it is not finally held that the amount realised by the petitioner is not in fact due, the Employees’ Insurance Court cannot pass any direction for refund of the amount which had already been realised through due process of execution. In the instant case there is no finding that the process of execution under Section 45 (1)(d) of the Act was illegal or without jurisdiction. 15. In view of the fact that the Act does not authorise the Employee’s Insurance Court to pass any order of refund of money already realised before adjudication of the dispute under Section 75 of the Act, the Order No. 8 was patently without jurisdiction and as such this is a fit case where this Court should exercise its jurisdiction under Article 227 of the Constitution of India.” The Madhya Pradesh High Court in EMPLOYEES’ STATE INSURNACE CORPORATION, INDORE VS. SWADESH DAILY NEWSPAPER, GWALIOR (Supra-2), dealing with Section 75(1)(viii) of the ESI Act, at paragraph 10 held as under: “10. Section 75(1) (viii) speaks of- “any other matter which is in dispute between a principal employer an the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be or which may be decided by the Employee Insurance Court under this Act”. For the E.I Court, to assume jurisdiction in regard to ‘any other matter’, there has to be a ‘dispute’ between Corporation on one side and such person on the other side who is entitled in law to raise a question ‘in respect of any contribution or benefit or other dues payable or recoverable under the Act or any other matter required to be or which may be decided” by the Court under the Act. Only when the proper person moves the Court or when the court is vested under the Act with authority to decide the ‘matter’, that jurisdiction under Section 75 can be exercised. Although Clause (viii) of Section 75 (1) is a residuary clause, that does not vest EI Court with an inherent power or jurisdiction to deal or decide ‘any matter’ at its whim or caprice at the instance of any party. The use of the expression ‘which may be decided’ is not to be misunderstood as vesting such inherent power or jurisdiction in the EI Court as to defeat any express or implied statutory prohibition, such as contemplated under Regulation 40(1), afore-extracted (Cotton Corporation AIR 1983 SC 1272; Manoharlal AIR 1962 SC 527; Mahesh Chandra Gupta 1991 MPLJ 520). The Madhya Pradesh High Court further at paragraph 13 held as under: “13. Second question is, if the employer has any locus standi to raise the ‘question’ of refund of the contribution already paid which is made up of both, employee’s and employer’s contribution. That neither he, nor any other person, can directly raise that ‘dispute’ in E.I Court, I have already held. However, it is also to be noticed that according to Section 38, ‘employee’ is the ‘insured’ and even when any deduction is made by the employer from the wages paid to the employee until that amount is paid by him to the Corporation, the employer holds that amount in ‘trust’ for the purpose of payment of that amount to the Corporation. The moment the trust is discharged by payment, he ceases to have any authority to act in any manner in respect of that amount though he had deducted that amount from the wages paid to the employee. When the ‘insured’ or the ‘employee’ does not raise any ‘dispute’ in accordance with Regulation 40(1), the employer is impliedly debarred from raising the ‘question’ regarding refund in respect of which a ‘dispute’ could have been, but has not been, raised as per provisions of Regulation 40(1) by the employee claiming refund in regard to deduction made from his wages under an ‘erroneous belief’ in respect to any particular ‘benefit period’. The employer cannot unilaterally claim that he had paid any contribution, whether that was done under ‘erroneous belief’ or not, because contribution is jointly payable by him for the employee of latter’s shares along with his own contribution. Regulation 40 does not kill employee’s option to avail the ‘benefit’ subsequent and pursuant to any ‘contribution’ paid, rightly or wrongly. Right to refund contemplated under Regulation 40 is primarily his; and employer’s is only contingent or consequential right.” Be that as it may, the main question that is to be decided is still pending for adjudication before the E.I Court, and E.I Court is a Special Court and the jurisdiction of Civil Court is barred under Section 75 (3) of the ESI Act. The relevant provision Section 75 (3) of the ESI Act reads as under: “Section 75(3). No Civil Court shall have jurisdiction to decide ordeal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by (a medical board, or by a medical appeal tribunal or by the Employees’ Insurance Court.)” For ready reference, Section 75(g) reads as under: “Section 75(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, (or any other matter required to be or which may be decided by the Employees’ Insurance court under this Act,) such question or dispute(subject to the provisions of sub-section (2A)) shall be decided by the Employee’s Insurance Court in accordance with the provisions of this Act.” A plain reading of the above provision makes it clear that ‘any other matter’ shall mean and include all matters connected there with or incidental thereto and the purpose of this Act has to be construed liberally so as to give liberal interpretation, viz., one in favour of Corporation and another in favour of persons against whom they raise demand so as to make contributions and so as to bring the contributions within the purview of the Act and make liable to pay the contributions. In that context, the Tribunal has rightly exercised its vested jurisdiction. With regard to Section 75(g) of the ESI Act, the learned counsel contended that the main issue with regard to coverage of the Act is still pending with the authorities and the Tribunal is empowered to deal with the matter. The Supreme Court in INCOME TAX OFFICER, CANNANORE VS. M.K. MOHAMMED KUNHI (supra-3) observed as under: “The argument advanced on behalf of the appellant before us that in the absence of any express provisions in Sections 254 and 255 of the Act relating to stay of recovery during the pendency of an appeal it must be held that no such power can be exercised by the tribunal, suffers from a fundamental infirmity inasmuch as it assumes and proceeds on the premise that the statute confers such a power on the Income- tax Officer who can give the necessary relief to an assessee. The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the appellate tribunal. Indeed the Tribunal has been given very wide powers under Section 254 (1) for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal. If the Income-tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the appellate tribunal is entirely