IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 4563 of 2009(R) ------------------------- PETITIONER(S): ---------------- KERALA STATE DRUGS AND PHARMACEUTICALS LTD., REP. BY ITS MANAGING DIRECTOR, NEW BAZAR ROAD, KALAVOOR, ALAPPUZHA. BY ADV.MR.V.JAYAPRADEEP RESPONDENT(S): --------------- 1. EMPLOYEES STATE INSURACE CORPORATION REPRESENTED BY ITS ASSISTANT DIRECTOR, REGIONAL OFFICE, KERALA PACHADEEP BHAVAN, NORTH SWORAJ ROUND, POST BAG NO. 2, THRISSUR 680 020. 2. ALAPPUZHA DISTRICT CO-OPERATIVE BANK, LTD., ALAPPUZHA, REP. BY ITS MANAGER. 3. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT,INDUSTRIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. MR.P.SANKARANKUTTY NAIR, SC FOR ESI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.4563 of 2009 --------------------------------- Dated, this the 13th day of February, 2009 J U D G M E N T The petitioner is a Government company. It is stated that it is a Relief Undertaking as per Ext.P2 notification issued by the 3rd respondent exercising its powers under the Kerala Relief Undertakings (Special Provisions) Act, 1961. 2. It is stated that during the period 2003-06, the company was lying closed on account of financial crisis. According to the petitioner, finally, following a settlement with the Employees Unions and with the Government assistance, the company was revived from 2007 onwards. It is stated that based on the agreement, wages for the aforesaid period has not been paid and even the employees have agreed to defer their claims. It is stated that despite all these, towards the contributions payable under the Employees State Insurance Act, the 1st respondent has taken proceedings and attached the account of the company held with the 2nd respondent. It is challenging the attachment so effected, the writ petition is filed. 3. The main contention raised by the learned counsel for the WP(C) No.4563/2009 -2- petitioner is that since wages itself have not been paid, they have no liability to pay the contributions payable to the 1st respondent. However, an employer cannot avoid the liability except in a situation, where exemption is granted from appropriate Government. From the records produced, I am not in a position to conclude that the petitioner has moved the 1st respondent seeking exemption. 4. Therefore, in view of this, I direct that it will be open to the petitioner to seek exemption from the Government from paying contributions due under the ESI Act. The petitioner will make a proper application in this regard within four weeks from today. 5. Subject to the petitioner making an application as above, it is directed that attachment effected as per Ext.P8 will stand lifted and the position as such will continue till a decision is taken on the application to be made by the petitioner for exemption. It is directed that, if an application is so received by the 1st respondent, decision thereon should be taken as expeditiously as possible, at any rate, within two months thereafter. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg