Kerala High Court
Kerala Financial Corporation vs Assistant Director on 11 April, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
Thursday, the 11th day of April 2024 / 22nd Chaithra, 1946
WA NO. 466 OF 2024
AGAINST JUDGMENT DATED 12/2/2024 IN WP(C) 5201/2024 OF THIS COURT
APPELLANT(S)/PETITIONER:
KERALA FINANCIAL CORPORATION REPRESENTED BY CHAIRMAN AND MANAGING
DIRECTOR, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695033
BY SENIOR ADVOCATE DHANYA P.ASHOKAN, ADVS.VENUGOPAL M.R, S.MUHAMMAD
ALIKHAN & ATHULYA V.R
RESPONDENT(S)/RESPONDENTS:
1. ASSISTANT DIRECTOR ESI CORPORATION, SUB REGIONAL OFFICE, PANCHDEEP
BHAVAN, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014
2. THE BRANCH MANAGER BRANCH OFFICE, ESI CORPORATION,
THIRUVANANTHAPURAM, PIN - 695014
3. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR AND
REHABILITATION (B) DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001
BY GOVERNMENT PLEADER - R3
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to issue an interim direction to the respondents staying the operation of
Exts.P9 and P11 issued by the 1st respondent, pending disposal of the Writ
Appeal.
This writ appeal coming on for orders on 11.4.2024, upon perusing
the appeal memorandum,the court on the same day passed the following:
EXT P3:TRUE COPY OF THE REQUEST DATED 30/09/2008 SUBMITTED BY THE
PETITIONER CORPORATION BEFORE THE 3RD RESPONDENT.
EXT P4:TRUE COPY OF THE REQUEST DATED 16/11/2010 SUBMITTED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXT P6: TRUE COPY OF THE REPRESENTATION DATED 22/11/2022 SUBMITTED
BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXT P9: TRUE COPY OF THE ASSESSMENT ORDER DATED 06/11/2023 ISSUED BY
THE IST RESPONDENT TO THE PETITIONER.
EXT P10:TRUE COPY OF THE REQUEST DATED 30/11/2023 SUBMITTED BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXT P11:TRUE COPY OF THE REPLY DATED 28/12/2023 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER.
AMIT RAWAL & EASWARAN S., JJ.
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W.A. No. 466 of 2024
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Dated this the 11th day of April, 2024
ORDER
AMIT RAWAL, J.
C.M.Application No.1 of 2024This application is filed seeking condonation of delay of ten(10) days.
Delay condoned.
Writ Appeal
1. Inter alia alleges that appellant petitioner Corporation had valid exemption from the applicability of the provisions of the Employees State Insurance Act for the period from 01.07.2003 to 30.07.2008. Immediately on expiry of the period of exemption, vide Ext.P3 request was submitted for grant of exemption, but the same was kept pending. It was reminded by Ext.P4. Nothing happened leaving cause to approach this Court vide writ petition bearing No.1214 of 2011 which was kept pending in the archives of the High Court and came up WA NO. 466 OF 2024 -2- for final hearing on 08.11.2022 and disposed off with the following judgment.
"The above writ petition is filed with following prayers :
(a) call for the records relating to the case and examine the same.
(b) Declare that the petitioner is eligible for exemption from the provisions of the Employees State Insurance Act as provided under Sec. 1(4) of the ESI Act.
(c) Declare that in any view of the matter the Government is liable to exempt the petitioner from the provisions of the Employees State Insurance Act with retrospective effect by invoking its powers under Section 87 of the ESI Act and in the light of Exhibit P2 exemption orders.
(d) Issue a writ of mandamus, such other writs, orders or direction directing the 3 rd respondent to consider and dispose of Exhibit P3 request invoking its powers under Section 91A of the ESI Act as it stood on the date of Exhibit P3.
(e) Issue appropriate writ or orders prohibiting respondents 1 & 2 from demanding ESI contribution from the petitioner or from WA NO. 466 OF 2024 -3- initiating any coercive steps for recovering any such amount so long as the petitioner's employees are provided with superior benefits than what is provided under the ESI Act.
(f) Pass such other orders as this Hon'ble Court shall deem fit in the facts and circumstances of the case.[SIC]
2. The writ petition is filed for a declaration that the petitioner is eligible for exemption from the provisions of the Employees State Insurance Act and also to exempt the petitioner from the provisions of the Employees State Insurance Act (for short "ESI Act") with retrospective effect. The appropriate Government is the authority to exempt the petitioner under Sec. 87 of the ESI Act. If the petitioner want an exemption under the ESI Act, the petitioner has to approach the appropriate authority. Moreover, as per the amended Sec.91A, the exemption can be granted only prospectively and there cannot be any retrospective exemption invoking the powers under Sec. 87 of the ESI Act.
3. In the light of the same, no orders can be passed in this case. The petitioner is free to approach the Government in accordance to law.
With the above observation, this writ petition is closed. "
WA NO. 466 OF 2024 -4-2. Thereafter vide Ext.P6 on 22.11.2022 again a request was submitted to the Government i.e., the Secretary Labour & Rehabilitation (B) Department for exemption. Department issued the show cause notices for non-payment of the ESI contribution of different periods which was duly replied and request was made that the application for exemption is pending consideration, but after having afforded two opportunities resulted into impugned orders Exts.P9 and P10.
3. Smt.Dhanya P. Ashokan, learned Senior Counsel assisted by Sri.M.R.Venugopal further contends that vide Ext.P11 respondent Corporation was requested to re-open on various grounds particularly non- compliance of the provisions of sub-section (2) of Section 44 of the Act, but of no avail. It is in that background the present appeal has been filed.
4. Issue notice before admission.
5. There shall be an interim stay of the WA NO. 466 OF 2024 -5- assessment order subject to the condition that appellant corporation, within a period of two(2) weeks from today, shall deposit 50% of the demanded amount, which will be subject to the outcome of the writ appeal.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE VV 11-04-2024 /True Copy/ Assistant Registrar