HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.Nos.220 AND 323 OF 2010 Date: 14-03-2011 C.M.A.No.220 of 2010 Between: The Employees State Insurance Corporation ……… Appellant and M/s. The Reliance General Insurance Co. Ltd and others …… Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.Nos.220 AND 323 OF 2010 COMMON JUDGMENT: (Per BPR, J) These appeals, which are filed under Section 82 of the Employees State Insurance Act (for short ‘the Act’), involved common question and hence, they are taken up together for disposal. The appellant in C.M.A.No.220 of 2010 is the E.S.I. Corporation and the appellants in C.M.A.No.323 of 2010 are the Corporation along with three others, who seek to assail the orders allowing the applications filed by respondent No.1 herein in I.A.Nos.33 of 2010 and 35 of 2010, whereby it has been directed to deposit the amounts on par with a restitution. Heard Sri B.G. Ravinder Reddy, learned standing counsel appearing for the appellant-corporation and Sri S. Raj Kumar and Sri Koka Satyanarayana Rao, learned counsel appearing for the respondents. The facts, which are not in dispute and which gave rise to the present proceedings, are that an amount of Rs.1,17,25,933/- was found to be due by the Rayalaseema Paper Mills Limited, which is the second respondent in both these appeals, towards E.S.I. contribution and interest. Since the said employer failed to pay the said amount, certificate was issued by the authorized officer for recovery of the amount and as per the orders, dated 01-02-2010 passed under Section 45-G of the Act, called upon respondent No.1 herein, who is a garnishee, to transfer the said amount which was payable by it to the second respondent unit. However, respondent No.1 did not comply and failed to pay the amount. Hence, it was declared as “deemed principal employer in default” and thus it was directed to deposit the amount by 11-02-2010 at 15-00 hours. The said order was also not complied with and no amount was paid and therefore, it’s banker, which is HDFC Bank Limited, was directed to transfer the amount into accounts. The said banker also, in fact, did not try to comply with the said order, but it is only when again summons were issued to the bank to appear before the recovery officer on 12-02-1010 at 11-30 AM, the bank submitted a pay order, dated 12-02-2010 for the amount of Rs.1,17,25,933/-. Therefore, the case of the appellants is that the question of refunding these amounts nor any restitution as such does not arise since it amounts to due recovery which has been duly completed. However, in the application, the main contention urged on behalf of respondent No.1 was to the effect that having regard to the directions issued against it, it had moved an application before the Court on 11-02-2010 as out of order, since there is urgency, which was numbered as E.I.C.Sr.No.412 of 2010 and the Court passed the orders in I.A.No.19 of 2010 directing it to deposit 50% of the amount demanded by the recovery officer as per the orders, dated 10-02-2010 on or before 26-02-2010 and till such time, the appellant-corporation is restrained from taking any action against respondent No.1 for recovery of any amounts. Therefore, the complaint in the petition was that this recovery, which has taken recourse to by the corporation, is in the teeth and in utter violation of the said orders passed by the very Court on 11-02-2010. Hence sought for refund. These applications were contested by the appellant-corporation in trying to justify the action mainly on the ground that the proceedings were taken in the manner which is contemplated under the law and more so by due issuance of notices and proceedings under Section 45-G of the Act. Therefore, the question of re-depositing does not arise. The Court below, by considering all these submissions from both sides, did not find favour in support to the objection raised by the appellant-corporation and rejected the same especially on the ground that at a time when the orders were passed in I.A.No.19 of 2010 and at the time of its prior hearing, it was in the presence of the standing counsel of the corporation and the ESI Inspector, who were physically present in the Court. Therefore, the said order is passed after hearing the standing counsel and also taking into consideration the submissions made by the said standing counsel and the ESI Inspector and therefore, the same is binding on the corporation. Hence, respondent No.1 is entitled to claim back the amounts and ordered for refund. Hence, these Appeals. Having heard the learned counsel on either side and on perusal of the material on record, it is seen that there is no dispute in regard to the chequred events. The ultimate process, which has reached its zenith, is the issuance of the proceedings against the garnishee. It is at this stage the garnishee intervened by moving urgent application and the order was passed by the Court in the presence of the standing counsel of the corporation and the E.S.I. Inspector on 11-02-2010. There is no denial in this regard nor any challenge as to their presence and they being heard. Therefore, it cannot be said that the said order in any way can be given a go-bye nor the appellant-corporation could have proceeded inspite of such order. Curiously even though the appellant-corporation is trying to assail the orders in these applications filed at the instance of the garnishee, however, no attempt is made to challenge or assail any proceedings either in appeal or otherwise as against the order passed in I.A.No.19 of 2010, dated 11-02-2010. There is no explanation whatsoever forthcoming on its behalf. Therefore, the order, dated 11-02-2010, has become final, conclusive and binding and could not have been reopened nor can astray. In the aforesaid circumstances, there being no other further argument much less any circumstance pointed out to show as to how the said order, dated 10-02-1010 could be get over by the appellant- corporation. It is not open to the appellant-corporation to fall back on the proceedings, which were initiated though step by step as contemplated under Section 45-G of the Act without any demur on its part. Hence, we do not find any merits in either of these appeals. Both the appeals are, accordingly, dismissed. No order as to costs. _________________ B. PRAKASH RAO, J _________________ R. KANTHA RAO, J Date: 14-03-2011 YCR