WP(C) 4056/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. Hussain, learned counsel for the petitioner an d Mr. K.K. Nandi, learned counsel appearing for the respondents. The petitioner has filed the present petition praying fo r:- (i) refund of Rs.25,01,645/- with interest @ 15% per annum and (ii) to pay t he damages amounting to Rs.10,00,000/-. The case of the petitioner, as projected in the writ pet ition is that pursuant to the provisions contained in the Jogighopa (Assam) unit of Ashok Paper Mills Ltd., Calcutta (Acquisition and Transfer of Undertaking) A ct, 1990, the Ashok Paper Mill at Jogighopa was taken over and a new Government Company, namely Ashok Paper Mill (Assam) Limited, was formed with effect from 23 rd September, 1990. It is also the case of the petitioner that till 23rd Septem ber, 1990, i.e. the pre-taking over period, the petitioner is not liable though it is liable for payment of the employers as well as the employees’ contribution after its constitution, i.e. with effect from 23rd September, 1990. According t o the petitioner, the ESI Corporation has raised the demand for the pre and post -constitution of the petitioner and ultimately recovered a sum of Rs.33,36,682/- from the petitioner, which came into existence on 23rd September, 1990, towards the contribution payable under the provisions of the Employees’ State Insurance Act, 1948 (in short, the 1948 Act ), which includes both prior to 23rd Septemb er, 1990 and after 23rd September, 1990. It is also the case of the petitioner that pursuant to the claim lodged by the ESI Corporation, the same has been sett led by the Commissioner of Payments appointed under the provisions of the 1990 A ct by directing the petitioner to pay a sum of Rs.12,59,847/- to the ESI Corpora tion. The petitioner, therefore, has contended that since the Commissioner of P ayments has directed the payment of Rs.12,59,847/-, the remaining amount from Rs .33,36,682/- is required to be refunded to the petitioner. The learned counsel for the petitioner has submitted tha t the respondent Corporation cannot demand and deduct any amount towards the emp loyer as well as the employees’ contribution from the petitioner prior to its co nstitution, i.e. on 23rd September, 1990, by virtue of the provisions contained in 1990 Act and the liability of the petitioner after its constitution towards s uch contribution having been ascertained by the Commissioner of Payments vide or der dated 2nd (5th) November, 2001, the petitioner is entitled to refund of the excess deduction. According to the petitioner, the respondent Corporation has d educted Rs.33,36,682/- though they are entitled to Rs.12,59,847/-. Mr. Nandi, the learned counsel appearing for the respond ents referring to the averments made in the affidavit-in-opposition as well as t he provisions of the Employees’ State Insurance Act, 1948 has submitted that the writ petitioner though came into existence in the year, 1990, they are liable f or the dues payable by the earlier employer in view of the provisions contained in Section 93A of the said Act. Referring to the communication dated 14th Septe mber, 1995 (Annexure-E to the affidavit-in-opposition filed by the respondent Co rporation), it has further been submitted by Mr. Nandi that the writ petitioner in fact has admitted that position and stated in the said communication that the y would take the responsibility of paying all the arrear dues to the ESI Corpora tion prior to 1st April, 1995. It has further been contended by Mr. Nandi that the dispute, which has been raised by the petitioner ought to have been raised b efore the EI Court under Section 75(g) of the 1948 Act. The petitioner in the present petition claims that as it came into existence on 23rd September, 1990 by virtue of the 1990 Act, they are not liable to pay any dues payable by the erstwhile employer, which, however, h as been contested by the ESI Corporation by referring to the provisions of Secti on 93A of the 1948 Act, which provides as follows:- 93A. Liability in case of transfer of establishment.- Where an employer, in rel ation to a factory or establishment, transfers that factory or establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoe ver, the employer and the person to whom the factory or establishment is so tran sferred shall jointly and severally be liable to pay the amount due in respect o f any contribution or any other amount payable under this Act in respect of the periods up to the date of such transfer. Provided that the liability of the transferee shall be limited to the value of t he assets obtained by him by such transfer. The petitioner, therefore, has raised the dispute relati ng to their liability to pay contribution, which dispute can conveniently be dec ided in a proceeding instituted under Section 75(g) of the 1948 Act, as it requi res determination of the factual aspects. Such disputed question on facts canno t be determined in a writ proceeding. That being the position, the present writ petition is di sposed of with an observation that the petitioner may approach the EI Court unde r Section 75(g) of the 1948 Act together with an application seeking condonation of delay and if such an application as well as the appeal are preferred, the sa me shall definitely be considered by the EI Court in accordance with law. The writ petition is accordingly disposed of. No cost.