1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.11.2011 CORAM: THE HONOURABLE Mr.JUSTICE K.CHANDRU W.P.(MD)No.438 of 2011 and M.P.(MD)No.1 of 2011 R.R.Hotel, Rep.by its Proprietor T.Ravi S/o Thangarasu, No.14/21, L.F.Road, Near Gandhi Statue, Cumbum, Theni District. ... Petitioner Vs. The Recovery Inspector, O/o. The Recovery Officer, Sub Regional Office, Employees State Insurance Corporation, 4th Main Road,K.K.Nagar, Madurai. 20. ... Respondent Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records pertaining to the impugned order in No.SRO/MDU/RRC/57-39795 dated 30.12.2010 passed by the respondent and quash the same as illegal. For Petitioner : Mr.T.Lajapathiroy For Respondents : Mr.K.C.Ramalingam O R D E R The petitioner has come forward to challenge a demand notice issued for payment of Rs.1,44,844/- towards the arrears of ESI and the petitioner was also informed that in case if there is any default necessary attachment order will be issued. 2.Notice motion was ordered on 12.01.2011. Pending the notice, on the condition that the petitioner deposits 50% of the amount. It is stated that the condition has been complied with. Subsequently, the Writ petition was admitted on 09.02.2011. 3.On notice from this Court, Mr.K.C.Ramalingam, learned standing counsel appears on behalf of the ESI Corporation. It is brought to the notice of this Court that the order fixing the https://hcservices.ecourts.gov.in/hcservices/ 2 liability in terms of Section 45-A is not under challenge. It is only a consequential proceedings which is under challenge. 4.In this contest the Supreme Court has held that if the substantive order under Section 45-A is not under challenge in a petition under Section 75 before the ESI Court, there is no impediment for the ESI authorities to execute the order in terms of the execution proceedings who are having the execution power. 5.In this contest it is necessary to refer to a judgment of the Supreme Court in ESI Corporation Vs. C.C. Santhakumar reported in (2007) 1 SCC 584. The Supreme Court has held as follows: "17. Prior to the incorporation of Section 45-A under Act 44 of 1966, the only resort available to the Corporation was Section 75, for recovery of contribution through the court. Since this procedure was found to be impracticable and delayed process involved, a special provision was contemplated whereunder adjudication is to be made by the Corporation itself. By reason of incorporation of Section 45-A with effect from 17-6-1967, it became possible for the Corporation to have determination of the question, binding on the principal employer, without resorting to the ESI Court. In regard to the order under Section 45-A, the same is enforced, as envisaged under Section 45-B, which was similarly brought into the Act, by which the contribution may be recovered as arrears of land revenue. With regard to the decision reached by the ESI Court in the application under Section 75, the said decision is enforced, as envisaged in sub-section (4) of Section 75 as if it is a civil court. The mode of recovery under Section 45-B of the Corporation and the mode of recovery as per Section 75(4) by the ESI Court as the civil court are entirely different as both Sections 45 and 75 operate in different spheres. 25.Section 45-A of the Act contemplates a summary method to determine contribution in case of deliberate default on the part of the employer. By Amendment Act 29 of 1989, Sections 45-C to 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law or the ESI Court. Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to either a suit, appeal or application in the court. Under Section 68(2) and Sections 45-C to 45-I, after determination of contribution, recovery can be made straightaway. If the employer disputes the correctness of the order under Section 45-A, he could challenge the same under Section 75 of the Act https://hcservices.ecourts.gov.in/hcservices/ 3 before the ESI Court. 28.What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dispute in the determination either under Section 45-A(1) or under Section 68, the Corporation can straightaway go for recovery of the arrears. 30.The legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. So, the non-availability of the records after five years, as per the Regulations, would not debar the Corporation to determine the amount of arrears. Therefore, if the provisions of Section 45-A are read with Section 45-B of the Act, then, the determination made by the Corporation is concerned. It may not be final so far as the employer is concerned, if he chooses to challenge it by filing an application under Section 75 of the Act. If the employer fails to challenge the said determination under Section 75 of the Act before the Court, then the determination under Section 45-A becomes final against the employer as well. As such, there is no hurdle for recovery of the amount determined under Section 45-B of the Act, by invoking the mode of recovery, as contemplated in Sections 45-C to 45-I. 31.In ESI Corpn. v. F. Fibre Bangalore (P) Ltd.2 it was observed that it is not necessary for the Corporation to seek a resolution of the dispute before the ESI Court, while the order was passed under Section 45-A. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim, it is for him to move the ESI Court for relief. In other cases, other than cases where determination of the amount of contributions under Section 45-A is made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the ESI Court, before enforcing recovery. https://hcservices.ecourts.gov.in/hcservices/ 4 6.In the light of the above, the Writ petition stands dismissed. No costs. Consequently, connected M.P.is closed. It is open to the petitioner to move the appropriate ESI Court by filing an application under Section 75 of the ESI Act. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To The Recovery Inspector, O/o. The Recovery Officer, Sub Regional Office, Employees State Insurance Corporation, 4th Main Road, K.K.Nagar, Madurai. 20. +1cc to Mr.K.C.Ramalingam,Advocate, Sr.no.367619 W.P.(MD)No.438 of 2011 01.11.2011 nbj SMA/16.11.2011/3C/4P https://hcservices.ecourts.gov.in/hcservices/