Kalakshetra Foundation v. Authorised Officer / Deputy Director

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.01.2022 Coram The Hon'ble Mr. Justice V.PARTHIBAN W.P.Nos.24200 and 24203 of 2021 and W.M.P.Nos.25526 & 25528 of 2021 Kalakshetra Foundation, (Employer No.51001113920000999), Rep. by its Director, Kalakshetra Road, Thiruvanmiyur, Chennai 600 041.

... petitioner in both W.Ps Vs.

1. Authorised Officer/Deputy Director, Employees' State Insurance Corporation, ESI Regional Office (Tamil Nadu), 143, Sterling Road, Nungambakkam, Chennai 600 034.

2. The Recovery Officer, Employees' State Insurance Corporation, ESI Regional Office (Tamil Nadu), 143, Sterling Road, Nungambakkam, Chennai 600 034.

3. Additional Commissioner and Regional Director, Employees' State Insurance Corporation, ESI Regional Office (Tamil Nadu)-cum- Appellate Authority, 143, Sterling Road, Nungambakkam, Chennai 600 034.

...Respondents in both W.Ps

PRAYER in W.P.No.24200 of 2021:Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, to call for the records of the first respondent pertaining to the Order Ref.No.51001113920000999/ 31120202057/Ins-v dated 27.07.2020, culminating in the Order/Notice Ref No.TN/D-18/INS-V/51-00-111392-000-0999 dated 24.06.2021 and Order Nos.Ref.No.TN/INS-V/51-00-111392-000-0999 dated 24.06.2021, of the first respondent and to quash the same and consequently, direct the respondents to refund/return to the petitioner a sum of Rs.9,22,880/- (Rupees Nine Lakhs Twenty Two Thousand Eight Hundred and Eighty Only) together with interest

at 18% per annum from 06.10.2020 till date of payment. PRAYER in W.P.No.24203 of 2021:Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari, to call for the records of the third respondent culminating in the Order No.TN/Ins-V/51-00-111392-000-0999 dated 29.09.2021 demanding damages of Rs.5,29,815/- and to quash the same.

In both W.Ps.

For petitioner : Mr.Manoj Menon for M/s.Menon For Respondents : Mr.K.Prabakar COMMON ORDER These two writ petitions have been filed by the petitioner Foundation to call for the records of the first respondent pertaining to the Order Ref.No.51001113920000999/ 31120202057/ Ins-v dated 27.07.2020, culminating in the Order/Notice Ref No.TN/D-18/INS-V/51-00-111392-000-0999 dated 24.06.2021 and Order Nos.Ref.No.TN/INS-V/51-00-111392-000-0999 dated 24.06.2021, of the first respondent and to quash the same and consequently, direct the respondents to refund/return to the petitioner a sum of Rs.9,22,880/- (Rupees Nine Lakhs Twenty Two Thousand Eight Hundred and Eighty Only) together with interest at 18% per annum from 06.10.2020 till date of payment and to call for the records of the third respondent culminating in the Order No.TN/Ins-V/51-00-111392-000-0999 dated 29.09.2021 demanding damages of Rs.5,29,815/- and to quash the same.

2. Although an appeal provision is available in the ESI Act, the petitioner Foundation has chosen to directly approach this Court bypassing the effective alternative remedy .

3. According to the learned counsel for the petitioner, the order of levy passed by the respondent Corporation suffered from ex-facie illegality as no opportunity has been afforded to the petitioner. Therefore, the petitioner is constrained to approach this Court directly. According to the learned counsel, the order passed by the Authority is in excess of jurisdiction and also violative of Article 14 of the Constitution of India.

4. When the learned counsel was confronted by this Court in regard to the efficacious remedy available by way of an appeal under the relevant statute, the learned counsel originally submitted at the time of admission that the orders passed by the authority had not been made available and not communicated to the petitioner and therefore, the petitioner was constrained to

approach this Court. The learned counsel also attempted to argue more elaborately on various grounds raised in these writ petitions.

5. Notice was ordered. In response to the notice, Mr.K.Prabakar, learned counsel appeared on behalf of the respondents and filed a detailed counter affidavit.

6. In the counter affidavit, apart from denying the various allegations contained in the affidavit filed in support of these writ petitions, raised the plea of maintainability of the writ petitions on the ground that an application under Section 75 of the ESI Act could be filed against the impugned proceedings before the ESI Court. The learned counsel also categorically stated that the order under Section 45(A) of the ESI Act, has been passed on 25.05.2017 and the same was also received by the petitioner on 29.05.2017 itself. Therefore, the contention of the learned counsel for the petitioner that the order was not received, is factually incorrect and false.

7. At this, the learned counsel for the petitioner would request this Court to give liberty to the petitioner to avail the remedy provided under Section 75 of the ESI Act. According to the learned counsel, in view of the delay in approaching the competent Court, the petitioner's application may not be entertained. The learned counsel therefore, requested this Court to pass some directions.

8. However, this Court is not inclined to accede to the request of the petitioner for the simple reason that the petitioner has chosen to approach this Court directly bypassing the alternative remedy by stating incorrect reason that he has not received the order passed under Section 45(A) of the ESI Act dated 25.05.2017. In any case, it is always open to the petitioner to avail the alternative remedy by citing the reason of pendency of the writ petitions before this Court in order to explain the cause for any delay in filing the application, if the delay had occurred on account of the pendency of the writ petitions before this Court for a short duration. When efficacious remedy is available under Section 75 of the ESI Act, no liberty need to be given to the petitioner as such remedy stems from the Act itself.

9. In the said circumstances, this Court is not inclined to give any direction merely because the petitioner has approached this Court on a wrong premise that these writ petitions would be entertained in the circumstances explained in the affidavits filed in support of these writ petitions.

10. Therefore, these writ petitions stand dismissed on the

ground that the alternative remedy is available under the relevant statute.

No costs.

Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar gsk To

1. The Authorised Officer/Deputy Director, Employees' State Insurance Corporation, ESI Regional Office (Tamil Nadu), 143, Sterling Road, Nungambakkam, Chennai 600 034.

2. The Recovery Officer, Employees' State Insurance Corporation, ESI Regional Office (Tamil Nadu), 143, Sterling Road, Nungambakkam, Chennai 600 034.

3. The Additional Commissioner and Regional Director, Employees' State Insurance Corporation, ESI Regional Office (Tamil Nadu)-cum- Appellate Authority, 143, Sterling Road, Nungambakkam, Chennai 600 034.

+2cc to Mr.K.Prabakar , Advocate, S.R.No.1046, 1047 +1cc to the Government Pleader, S.R.No.1379 W.P.Nos.24200 and 24203 of 2021 and W.M.P.Nos.25526 & 25528 of 2021 GPL(CO) CT 28/01/2022