1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.12.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.1569 of 2011 A.Azeema, Proprietrix, M/s.KAABA, No.142 A & B 1st Floor, South Masi Street, Madurai-1. ... Appellant/Petitioner Vs. 1.The Recovery Officer, Sub-Regional Office (Madurai), Employees' State Insurance Corporation, K.K.Nagar, Madurai-20. 2.The Branch Manager, HDFC Bank, Main Branch, Sri Nithyakalyani Towers, No.34, Krishnarayaor Tank Street, 2nd Floor, North Veli Street, Madurai-1. ... Respondents/Respondents Writ Appeal under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 14.10.2011, made in W.P.(MD) No.1688 of 2011 praying for the issuance of a Writ of Certiorari calling for the records relating to the order passed by the first respondent in his proceedings No.57/20474/11/RRC/SRO/MDU/10 dated 2.2.11 and quash the same as illegal. For Appellant : Mr.M.Ajmal Khan For Respondent-1 : Mr.K.C.Ramalingam JUDGMENT [Judgment of the Court was delivered BY M.VENUGOPAL, J] The Appellant/Petitioner has filed the instant Writ Appeal as against the order, dated 14.10.2011, in W.P.(MD)No.1688 of 2011, passed by a Learned Single Judge in dismissing the writ petition. 2. The short facts are that the Appellant/Petitioner is engaged in Textile Business. The First Respondent claimed a sum of Rs.42,622/- from the Appellant/Petitioner towards contribution payable under the Employees' State Insurance Act, on omitted wages. The Appellant/Petitioner filed Original Petitions in ESI OP Nos.11, 12 and 13 of 1998 before the ESI Court (Labour Court), Madurai, https://hcservices.ecourts.gov.in/hcservices/ 2 taking a plea that it is not liable to pay the sum demanded by the E.S.I. Corporation. However, the said Petitions were dismissed for default on 25.03.2010. Thereafter, the First Respondent issued an order in No.57/20474/11/RRC/ SRO/MDU/10, dated 02.02.2011, to execute the demand. Challenging the said order, the Appellant/Petitioner filed the Writ Petition in W.P.(MD)No.1688 of 2011, which came to be dismissed by the Learned Single Judge, on 14.10.2011. Aggrieved by the same, the present Writ Appeal has been filed. 3. The Learned Single Judge, while passing orders in W.P.(MD) No.1688 of 2011 on 14.10.2011, has, among other things, observed that the Appellant/Petitioner has entrusted the cases in ESI OP Nos.11, 12 and 13 of 1998 to their Counsel by name "M.Vaithiyalingam" and due to non-representation, the cases were dismissed for default on 25.03.2010. They have also projected Interlocutory Applications in I.A.Nos.15, 16 and 17 of 2011 before the E.S.I.Court, Madurai, for restoring the Original ESI OP Nos.11, 12 and 13 of 1998 dismissed for default and even before their I.As. could be taken up for condoning the delay in restoring the Original Petitions, the First Respondent has passed orders in his proceedings No.57/20474/11/RRC/SRO/MDU/10, dated 02.02.2011, to execute the demand and therefore the Writ Petition has been filed by the Appellant/Petitioner seeking to quash the said proceedings. 4. The Learned Single Judge, while dismissing the writ petition, has observed that the Appellant/Petitioner having availed the statutory remedy by filing ESI O.Ps. as per Section 75 of the Employees' State Insurance Act, 1948, has not prosecuted the same before the ESI Court and allowed them to go for default and also claimed to have filed interlocutory applications for restoration of Original Petitions. The learned Single Judge has opined that the Appellant/Petitioner should only move the ESI Court for appropriate relief and not to approach the Writ court. The learned Single Judge further observed that the Writ Court, constituted under Article 226 of the Constitution of India, cannot be used as a stop gap for obtaining interim orders, when their main remedy lies elsewhere. 5. At this stage, the learned counsel for the Appellant/Petitioner brings it to the notice of this Court that I.A.Nos.15, 16 and 17 of 2011 in E.S.I.O.P.Nos.11, 12 and 13 of 1998 on the file of ESI Court (Labour Court), Madurai, are coming up for hearing on 02.01.2012 and till such time, the Appellant/Petitioner may be given interim protection and further the Respondents may be restrained from taking any coercive steps in pursuance of the impugned notice, dated 02.02.2011, issued by the Recovery Officer, Sub-Regional Office (Madurai), ESI Corporation, Madurai-20. 6. We have heard the learned Standing Counsel for the ESI Corporation appearing for the 1st respondent, on the submissions made by the learned counsel for the Appellant/Petitioner. 7. It is not in dispute that the Interlocutory Applications in I.A.Nos.15, 16 and 17 of 2011, filed by the Appellant/Petitioner for https://hcservices.ecourts.gov.in/hcservices/ 3 restoring the Original ESI Petitions, namely ESI OP Nos.11, 12, 13 of 1998, are coming up for hearing before the ESI Court on 02.01.2012. Learned Counsel for the Appellant/Petitioner informs this Court that the erstwhile counsel for the Appellant/Petitioner before the ESI Court has not represented when the Original ESI Petitions, namely ESI OP Nos.11, 12 and 13 of 1998, were called on 25.03.2010 and only for default, the said Original Petitions were dismissed and the same were not dismissed on merits of the matter. 8. It is not in dispute that I.A.Nos.15, 16 and 17 of 2011 filed for restoration of Original Petitions are pending. To do complete justice between the parties and also to protect the interest of the Appellant/Petitioner and also taking note of the fact that Restoration Applications in I.A.Nos.15, 16 and 17 of 2011 are pending final hearing, we feel that on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence, it is sufficient for us, to protect the interest of the Appellant/Petitioner, by directing the First Respondent not to take any coercive steps, pursuant to the notice dated 02.02.2011, till the disposal of Restoration Applications in I.A.Nos.15, 16 and 17 of 2011 pending on the file of ESI Court, Madurai (which are admittedly coming up for hearing on 02.01.2012). Consequently, we direct the ESI Court, Madurai, to dispose of Restoration Applications in I.A.Nos.15, 16 and 17 of 2011 in ESI OP Nos.11, 12 and 13 of 1998, on merits and that too dispassionately, within a period of four weeks from the date of receipt of a copy of this order, after providing due opportunity to both the parties. 9. Accordingly, the Writ Appeal stands disposed of on the above terms. No costs. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar To: 1. The Recovery Officer, Sub-Regional Office (Madurai), Employees' State Insurance Corporation, K.K.Nagar, Madurai-20. 2. ESI Court (Labour Court), Madurai. 3. The Branch Manager, HDFC Bank, Main Branch, Sri Nithyakalyani Towers, No.34, Krishnarayaor Tank Street, 2nd Floor, North Veli Street, Madurai-1. +1 CC to Mr.K.C.Ramalingam, Advocate (SR.No.44546) Judgment in W.A.(MD)No.1569 of 2011 Dated: 20.12.2011 gb NSV/27.12.11/3P/5C https://hcservices.ecourts.gov.in/hcservices/