IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 WP(C).No. 32731 of 2011(N) -------------------------- PETITIONER(S) : --------------------- THE KOTTAYAM WHOLESALE CO-OPERATIVE CONSUMER'S STORES LTD., NO.K.162, KOTTAYAM – 686 001. REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH RESPONDENT(S) : ------------------------ 1. THE SECRETARY, LABOUR & REHABILITATION (B) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR, EMPLOYEE'S STATE INSURANCE CORPORATION, MALU'S COMPLEX, ST. FRANCIS CHURCH ROAD, KALOOR, KOCHI – 17. R1 BY VIJU ABRAHAM, GOVT. PLEADER R2 BY P.SANKARANKUTTY NAIR, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV WPC NO.32731 OF 2011 (N) APPENDIX PETITIONER(S) EXHIBITS : P1. : COPY OF THE GOVERNMENT ORDER ISSUED DTD: 31.01.07 BY THE 1ST RESPONDENT EXEMPTING THE PETITIONER FROM PURVIEW OF ESI ACT FOR THE YEAR 2004-2005. P2. : COPY OF THE APPLICATION FOR EXEMPTION DTD:11.01.2006 IN PROFORMA – A. P3. : COPY OF THE UNDERTAKINGS DTD: 11.01.2006 GIVEN BY THE EMPLOYEES TO EXEMPT THE PURVIEW OF THE ESI ACT. P4. : COPY OF THE LETTER DTD:08.09.2009 ISSUED BY THE 1ST RESPONDENT. P5. : COPY OF THE ORDER OF REJECTION DTD: 11.08.2010. P6. : COPY OF THE APPEAL BEFORE THE GOVERNMENT DTD:27.08.2010. P7. : COPY OF THE DEMAND NOTICE DTD: 30.05.2011 ISSUED BY THE 2ND RESPONDENT. P8. : COPY OF THE APPLICATION IN PROFORMA-A DTD:15.01.2007. P9. : COPY OF THE UNDERTAKING DTD: 16.01.2007 GIVEN BY THE EMPLOYEES TO EXEMPT FROM THE PURVIEW OF THE ESI ACT FOR THE YEAR 2007-2008. P10. : COPY OF THE LETTER DTD:23.02.2007 ISSUED BY THE 1ST RESPONDENT. P11. : COPY OF THE COVER NOTE DTD: 15.03.2007 ISSUED BY THE PETITIONER. P12. : COPY OF THE DEMAND NOTICES DTD: 29.06.2011. P13. : COPY OF THE PROFORMA-A DTD: 16.01.2008. P14. : COPY OF THE UNDERTAKING DTD:16.01.08 GIVEN BY THE EMPLOYEES TO EXEMPT THEM FROM THE PURVIEW OF ESI ACT FOR THE YEAR 2008-2009. P15. : COPY OF THE DEMAND NOTICE DTD: 29.06.2011 ISSUED BY THE 2ND RESPONDENT. P16. : COPY OF THE DEMAND NOTICE DTD: 29.06.2011 ISSUED BY THE 2ND RESPONDENT. AMV .....3/- : 3 : WPC NO.32731 OF 2011 (N) P17. : COPY OF THE NOTIFICATION DTD: 02.01.2010 EXEMPTING FROM THE PETITIONER FROM THE PURVIEW OF ESI ACT FOR THE YEAR 2009-10. P18. : COPY OF THE APPEAL DTD:19.07.2011 FILED BY THE PETITIONER. P19. : COPY OF THE NOTICE DTD: 30.08.2011 ISSUED BY THE 2ND RESPONDENT. P20. : COPY OF THE REPRESENTATION DTD: 29.09.2011 FILED BEFORE 2ND RESPONDENT. P21. : COPY OF THE NOTICE DTD: 11.11.2011 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A.TO JUDGE AMV P.N.RAVINDRAN, J. ---------------------------------------------- WP (C) No. 32731 of 2011 ----------------------------------------------- Dated this the 20th day of December, 2011 JUDGMENT The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act, 1969. This writ petition is filed challenging Exts.P7, P12, P15 and P16 show cause notices issued by the second respondent under section 45 A of the Employees State Insurance Act, 1948 calling upon the petitioner to show cause why an order of assessment should not be passed under section 45 A of the Act. Ext.P7 show cause notice relates to the year 2006-07, Ext.P12 show cause notice relates to the year 2007-08, Ext.P15 and Ext.P16 show cause notices relate to the year 2008-09. 2. Ext.P5 order discloses that the petitioner's application for exemption for the financial year 2006-07 stands rejected. The petitioner cannot in the absence of a challenge to Ext.P5 successfully challenge Ext.P7 show cause notice. Therefore the challenge to Ext.P7 cannot be entertained. As regards the challenge to Exts.12, P15, and P16 show cause notices, it is not in dispute that the petitioner has filed Exts.P10 and P13 WP(C)No. 32731 of 2011 -2- applications wherein it has sought exemption from the provisions of the Act for the years 2007-08 and 2008-09. In such circumstances, as the Government are yet to take a decision on the said applications, I am of the opinion that further proceedings pursuant to Exts.12, P15, and P16 show cause notices should be kept in abeyance until such time as the Government takes an appropriate decision on Exts.P10 and P13 applications filed by petitioner seeking exemption for the years 2007-08 and 2008-09. I accordingly dispose of the writ petition with a direction to the State Government to consider Exts.P10 and P13 applications filed by the petitioner and take an appropriate decision there on with notice to the petitioner and the second respondent, expeditiously, and in any event within three months from the date on which the petitioner or the second respondent produces a certified copy of this judgment before the first respondent. Until such time further proceedings pursuant to Exts.P12, P15 and P16 show cause notices shall be kept in abeyance. Sd/- P.N.RAVINDRAN, JUDGE. Rkc //true copy// PA to Judge.