IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 20638 of 2008 Between: M/s.Rahath Talkies,Near Old Bus Stand, Kadapa-516001 rep.by its Managing partner J.V.Subba Reddy, R/o.D.No.3/48,Patha cuddapah Kadapa District ..... PETITIONER AND 1 The Regional Director (Insurances-1) R.O. E.S.I. Corporation, H.No.5-9-23,Hill Fort Road, Hyderabad-63 2 The Deputy Director , ESI Corporation, R.O., H.No.5- 9-23 Hill Fort Road,Hyderabad-63 3 The Recovery Officer, ESI Corporation, R.O., H.No.5-9- 23 Hill Fort Road,Hyderabad-63 .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ of certiorari or any other writ order or direction to call for the records pertaining to execution certiﬁcate No.AP/INS.1/52- 7043-121 dated 29.12.1993, 19.12.2001,16.4.2002,and 8.10.2002 forwarded by the Authorised Oﬃcer i.e. the Deputy Director, ESI Corporation RO, Hyderabad to the Recovery oﬃcer, ESI Corporation, Hyderabad and quash the same holding that the petitioner is not liable for the amounts covered under the certificate. Counsel for the Petitioner : MR. M.N.NARASIMHA REDDY Counsel for the Respondents : SMT.PUSHPINDER KAUR The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.20638 OF 2008 ORDER : The petitioner herein is a Cinema Theatre holding Form-B licence granted under A.P. Cinema (Regulation) Act. Originally, the petitioner theatre (herein after referred to as ‘the establishment’) was owned by one Smt. Shaik Soghra Khatoon, from whom the building of the cinema theatre was purchased by the deponent herein under two Registered Sale Deeds dated 16.6.2000 and 19.6.2000. Subsequently a fresh licence in Form-B was granted in his favour on 2.2.2005. This writ petition is ﬁled aggrieved by the notice for setting sale proclamation dated 1.4.2008 issued by the 3rd respondent herein – Recovery Oﬃcer -, the Employees of State Insurance Corporation informing that the proclamation of sale would be drawn on 21.5.2008 for sale of the land and building of the cinema theatre for recovery of the amount due under four Execution Certiﬁcates dated 29.12.1993, 19.12.2001, 16.4.2002 and 8.10.2002 forwarded by the 2nd respondent herein i.e., the Deputy Director of ESI Corporation under Section 45D (ii) of the Employees’ State Insurance Act, 1948. It is contended by the petitioner that since the arrears sought to be recovered under the four certiﬁcates mentioned above relate to the period much prior to purchase of establishment by the petitioner, the petitioner cannot be made liable for the same. It is also stated that as a matter of fact the petitioner cleared all the arrears from April, 1997 till the date of purchase before obtaining Form-B licence on 2.2.2005 and thereafter the amounts are being paid regularly. Hence, there are no arrears as alleged in the impugned notice dated 1.4.2008 and therefore the execution certiﬁcates dated 29.12.1993, 19.12.2001, 16.4.2002 and 8.10.2002 issued by the 2nd respondent herein are liable to be quashed. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. Section 93A of the Employees’ State Insurance Act, 1948 (for short, ‘ESI Act, 1948’) provides that where an employer, in relation to a factory or establishment, transfers that factory or establishment the employer and the person to whom the factory or establishment is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act in respect of the periods up to the date of such transfer. It is also relevant to note that under Section 45C of the ESI Act, 1948, the 3rd respondent – Recovery Oﬃcer – is competent to proceed to recover the amount speciﬁed under the certiﬁcate issued by the authorised oﬃcer by attachment of sale of moveable and immoveable property of the factory or establishment. Hence, prima facie, the notice dated 1.4.2008 does not appear to be in violation of the provisions of the Act. Moreover, an eﬃcacious alternative remedy is available to the petitioner under Section 75 of the Act before the Employees’ Insurance Court constituted under Section 74 of the Act which is competent to decide and dispose of claims arising under the provisions of the ESI Act, 1948. Hence, without exhausting such eﬃcacious alternative remedy, the petitioner cannot maintain this writ petition under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed leaving it open to the petitioner to work out the alternative remedy available under the Act. It is made clear that if any such proceedings are initiated by the petitioner before the Employees’ Insurance Court the same shall be decided without being inﬂuenced by any of the observations made in this order. No costs. _____________ G. ROHINI,J. Dt. 23.09.2008 gbs