M/S. Manjeeth Enterprises v. M/S. Employees State Insurance Corporation

134231

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD TUESDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELL ANEOUS APPEAL NO:42O OF 2O23 Appeal Under section 82 of ESr Act against the order dared 12.05.2023 made in E.l.c. No. 53 of 2018 on the fire of thl Emproyees rnsurance courLino Chairman, lndustrial Tribunal - lat Hyderabad. Between:

M/s Manjeeth Enterprises 723. HMr corony. rviyapur. R.R. District - 500049 Rep. by its Proprietrix, Smt Manjeeth Xaui '

..APPELLANT/PETITIONER AND 1 !Y/q Employqe-s, State tnsurance Corporation, S_g_23, Hiil Fort Road, Hyderabad - 500063 Represented by its Deputy Director

2. The Recovery officer, ESr corporation , 5-9-23, Hil Fort Road, Hyderabad. ...RESPONDENTS/RESPONDENTS 1 & 2 IANO:1OF2 o23 Petition under section 151 cpc praying that in the circumstances stated in the affidavit fired in support of the petition, ir,e uign court may be preased to stay the operation of the order dated 12.05.2023 passed in E.t.c.No. ss or zota on the file of the Emproyees rnsurance court and chairman, rndustriar rribunar-r 1f ft.vlgrauao including the order No Ap/rNS-il ts2-oo-o2}2€,g-100.1 , dated 05 01.2018 passed by the Respondent under Section 45-A of ESr Act, .1948 and consequential c-19 order No.TS/lNS-ll-5 2oo-o212}g-oo0-1001, dated 20.04.2018.

Counsel for the Appellant: Sri M. Kiran Kumar Counsel for the Respondents: Sri pasham Srinivasulu The Court delivered the foilowing JUDGMENT:

THE, HONOURABLE SRI JUSTICE P.SAVI KOSHY AND THE HONOTIRABLE SHRI JUSTICE ANIL KUNIAR JIJKANTI C.M.A.No.420 OF 2023 JUDGMENT 0,et Hon'hle Sri ,lustice l'}Sum Koshl'.) Heard NIr. M.Kiran Kutnar, leamed counsel for thc :,ppellant and Mr. Pasham srir-rivasulu, learned counsel tbr the respondents. Perused the record ) The present is an appeal which has been filed under Section 82 of the Employees State lnsurance Act, 1948 (fol. short 'the Act'). The challenge is to the order passed under Section 7:i( 1) (g) of the Act by the Employecs Insurance Court dated 12.05.2023 in E.l.C.No.53 of 2018.

3.

Vicie the irnpugned order, the learneci Empioyees lnsurance Court has dismissed the petition filed by the petitionel challenging Section 45-A order dated 05.0 I .20 [ 8 to the extent of issuance of nc,tice of recovery frrr an atnount of I{s.5,94,595i- for tire periods liorn 01.12.2012 to 3 I .12.2016 and 01.01.20 l7 to 30.09.2Ct17 4.

The prinr;:r1r contention bv thc leamed coutrsei lbr the appellant is that the appeilant has not been given a fail and r,:asouable

opportunity ol defence. According to the appellanr. it was not given reasonable period of time for. fumishing of the relevant records in suppoft of his contentions. Lastry, it was contended that the authorities have faired to apprcciate the fact that rrorn 2010-20,, the business of the appellant,s estabiishment was closed and the firm was not functional which has been further ignored bv the authorities while passing the order under Section 45_A of the Act. 5.

Upon perusai ol the impugned orcier and the documents supporteci along *.ith ttre appeal, what is clearly ref.lected is that it is not a case where the appellant was not granted a fair and reasonable opportunity to appeaf before the authorities. The impugned order itself would show that the notice, at the flrst instance, which was issued by the ESic was received by the appellant. However, there has been no response given to the said notices. Subsequently, personal hearing was tixed on 2l .ll.2Ol7 on which date also, the appellant stood absent. The matter was therealier taken up on 22.12.2017, on which date the representative of the proprietor i.e., the husband of thc proprietor S.Gurmukh singh appeared befbre the Authorised Officer and infbrmed the Corporation about the closurc of the business and

sought tirne to produce the records in that regard As played for by the appeltant, time wirs extended and the date was fixed fbr 29'12 2017 ' ot't which date also, the appellant though was reptesented but no documents were fumished in support of their contention ol the business having'ocen closed' That since the appellant was reluctattt itr producing the nraterial records to show the non-operation of their business, the autirorities were, therefore' Ieft with no option but to pass the order undel Section 45-A of the Act on 05 '0 I '20 I 8 6.

The Authorised Olficer while passing the impugned order had assessed only for the period from 01'12'20[2 onrvards and the earlier period prior to 0 1 . I 2'2012 was u'aived of as those rvere time ban ed claims which wete sought to be raised' What is further rcflccted fiom the proceedings is that though the appellant has been strongl'v banking upon the conteution of their business having been closed from 20ll onwards, but nc'' documentary proof to substantiate thc sxme v/as proclucedbeloretheauthoritiesinspiteolrepeatopp()Ilunity.Further, whatisalsoretlectedisthattheappellantdidprodur:etheincornetax returns fbr the period between 2008-2009 to 201 l-2012 i'eflccting the nil retums for the said period contending that thc btrsintxs stood

closed. However, the income tax retums fbr the subsequent period have not been produced by the appellant belbre the authorities concemed tbr reasons best known. It was adrn itted by the appellant that they have, in fact, submitted their income rax retums fbr the subsequent period also but those ret.ums wefe ,ot produced befbre the Court with which it could had been easily ascerrained whether there was any business carried out by the appellant,s establishment subsequent to 20il onwards. [n the absence ot such material inlbrmations made avaiiable, the authorities concerned could not I,a.,.e taken any other view other than the one which has been taken by tltern. 7.

T'he preseni is an appeal rvhich has becn liied under Section 82 0f the Act' Sub-Section (2) of Section g2 specificalll enunlerates an appeal to the High Court from an order of ESI Court to be maintainable only in the event ol it involving -_substantial question of law. In the instant case, all these contentions which have been raised by the appellant are all factual matter.s and all of which have been considered and creliberated upon by the courl and as well as those cannot be temed to be substantial question ol. la\v.

8.

We do not find any substantial question ol lan ulade out b)' the appellant lbr assailing the impugned order.

9.

This appt:al fails and is, accordingly, rejected' Therc shall be no ordcr as to cost:i.

Consequently, miscellaneous petitions pendir,g. il any, shalt stand closcd.

Sd/. V. KAVITHA ASSIS NT REGISTRAR //TRUE COPY// s CTION OFFICER To, The Employees lnsurance Court and Chairman' ln'lustrial l-ribunal - lat Hvderabad.

ijir"""C6t" sti tr.4. Kiran Kumar, Advocate [OPU9] ^. 6;; dc i; s;i F;.hr. srinivasulu AdvoCate [oPUC] Two CD CoPies 2.

4.

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HIGH COURT DATED: 1011212024 \ ai :

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JUDGMENT

CMA.No.420 of 2023 REJECTTNG THE APPEAL 6 ceP1e'5 Vi- -<'{e5