IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.06.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.28931 of 2010 & M.P.No.1 of 2010 The Management of Hinduja Foundries Limited (previously known as Ennore Foundries Limited) Ennore, Chennai 57, rep.by its Executive Director-HR .. Petitioner Vs. 1. Employees State Insurance Corporation rep.by its Director 143, Sterling Road, Chennai 600 034 2. Deputy Director Employees State Insurance Corporation 143,Sterling Road Chennai 600 034 .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus forbearing the 2nd respondent from holding proceedings initiated pursuant to C18 notice No.TN/Ins- VI/51-3779-54 dated 14.9.2006 claiming contribution from the petitioner for the period 2000-01 to 2004-05. For Petitioner :: Mr.S.Ravindran for Mr.T.S.Gopalan & Co. For Respondents :: Mr.G.Bharadwaj O R D E R The petitioner is Hinduja Foundries Limited represented by its Executive Director-HR. The said employer was previously known as Ennore Foundries Limited. In the present case they have come forward with the Writ Petition seeking to forbear the 2nd respondent from holding proceedings initiated pursuant to C18 https://hcservices.ecourts.gov.in/hcservices/ notice dated 14.9.2006 claiming contribution from the petitioner for the period 2000-01 to 2004-05 and to pass appropriate orders. 2. When the matter came up for admission on 21.1.2010, this Court directed the learned Standing Counsel for the ESI Corporation to take notice. Accordingly, Mr.G.Bharadwaj, learned counsel has taken notice for the respondents. He has also filed a counter affidavit dated 9.2.2011 and an additional counter affidavit dated 11.3.2011. 3. The facts leading to the case are as follows: The petitioner was issued with a notice by the respondent ESI Corporation claiming payment for certain escaped contribution. While the correspondence was pending, the Parliament enacted Central Act 18 of 2010, amending the provisions of the ESI Act. By the said amendment, the Parliament has introduced the proviso to Section 45-A, wherein it was stated that the Corporation cannot pass any orders in respect of the period beyond five years from the date on which the contribution shall become payable. Even though under the further provision in the form of Section 45-AA of the Act an appeal to the hierarchy of officers in the Corporation was provided, Mr.G.Bharadwaj, learned counsel for the respondent fairly submits that so far no authorities have been notified. Even otherwise, if an order is made under Section 45-A, if not challenged, it can become final, thereby allowing upon the authorities to enforce the said order. The employer, if he is so aggrieved in the order passed by this Court under section 45-A, has a right of raising a dispute before the ESI Court under Section 75 of the Act. The ESI Court has power to go to all the issues including the coverage, entitlement and any exemption if any. The aggrieved employer has also every right of appeal to come to this Court by way of CMA under Section 82 of the ESI Act. When there is enough forum provided to the aggrieved employer, they had come to this Court even at a stage where before the determination of the dues from the employer. 4. The Supreme Court in ESI Corpn. v. C.C. Santhakumar reported in (2007) 1 SCC 584 has held that the only remedy open to the employer is to move the ESI Court in case of no determination is made under Section 45-A. However, Mr.S.Ravindran, learned counsel representing M/s.T.S.Gopalan and Co., submitted that the new statutory amendment gives right to the employer and provides a limitation to the authorities to demand any amount which is beyond five years. Since admittedly the amount claimed also relates to the period from 2000-2001 to 2004-2005, it is unnecessary for them https://hcservices.ecourts.gov.in/hcservices/ to move any other authority and the respondent officers must be directed to decide that issue as a preliminary issue. Further the stand taken by the petitioner is that there has been correspondence between the parties. It is not as if the respondent authorities have refused to decide the issues raised by the petitioner company. 5. On the other hand in the counter filed by the respondents, in paragraphs 9 and 10, it was averred as follows: "9... There is no provision under the Act to decide any issue as preliminary issue and therefore the request of the petitioner to decide the point of limitation as preliminary issue could not be considered by the respondent. But without producing the records the petitioner was insisting the respondent to decide the point of limitation as preliminary issue which was denied by the respondents as they have no jurisdiction to decide in the said manner. It is not open to the petitioner to prevent the 2nd respondent from passing the order under Sec.45 of the Act. If at all the petitioner is aggrieved by the said order, there is enough protection given to the petitioner under the ESI Act. 10. The petitioner has left the enquiry and came forward to file the above Writ Petition to obtain interim orders as if the respondents are not deciding the point of limitation as preliminary issue. In fact, the order passed by this Hon'ble Court is only to the effect that the petitioner can be given one more opportunity to produce the records and not to decide the point of limitation as preliminary issue. 6. In the additional counter affidavit, in paragraph 7, it was averred as follows: "However, this Hon'ble Court may be pleased to decide whether the amendment is applicable to the above matter and the period for which the petitioner has to produce the records to the respondent Corporation. It is pertinent to note that the petitioner was taking time for nearly 4 years to produce the records and ultimately filed W.P.No.14181 of 2010 and got the order set aside under the guise of seeking one more opportunity to produce the records which they have not produced till date and now taking advantage of the order of this Hon'ble Court they are insisting this respondent to decide the point of https://hcservices.ecourts.gov.in/hcservices/ limitation as preliminary issue for which there is no provision under the Act." 7. In any event, since the authority who is entitled to decide the issue relating to payment of subscription towards ESI can also decide the question of limitation as introduced by the proviso to Section 45-A of the ESI Act, it is one thing to state that the authorities should decide all the issues which are raised in the form of pleadings before the said authority and it is another thing to state that the particular issue has to be decided only as a preliminary issue. The authority, who is empowered to decide all matters must also decide the issue relating to limitation. The quasi judicial authority like the respondents cannot be curtailed by any orders of this Court including this Court directing to decide a particular issue as a preliminary issue. 8. As already held by the Courts in several instances that it is open to the authorities to decide a particular issue as a preliminary issue or if not feasible, try all the issues together and composite order can be passed so that in case of further challenge, the matters need not be hanged in the balance. Without any final determination, the Writ Petition filed by the petitioner is misconceived and this Court is not inclined to give any particular direction except to observe that the authority must decide all the issues which are raised before him and the findings must be rendered in all the issues. If the petitioner has to lose on the issue raised by them regarding limitation, certainly the Act provides for hierarchy of appeal forum. 9. As held by the Supreme Court in Santhakumar (cited supra), this Court under Article 226 of the Constitution cannot interdict the orders passed by the authority at every stage. The Writ Petition is misconceived and accordingly it stands dismissed. No costs. The connected Miscellaneous Petition is closed. -Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ajr To 1. Director Employees State Insurance Corporation 143, Sterling Road, Chennai 600 034 2. Deputy Director Employees State Insurance Corporation 143,Sterling Road Chennai 600 034 C.C. to M/S.T.S.GOPALAN & CO Advocate SR.No.32043 WP.No.28931 of 2010 VSN(CO) VS 18.07.2011 https://hcservices.ecourts.gov.in/hcservices/