THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.81 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. Vijay B.Paropakari, learned counsel for the
appellant; Mr. G.Praveen Kumar, learned Deputy Solicitor
General of India for respondent No.1; and Mr. Pasham
Srinivasulu, learned Standing Counsel, Employees' State Insurance Corporation for respondent Nos.2 & 3.
2. This writ appeal is directed against the order dated 22.12.2022 passed by the learned Single Judge dismissing Writ Petition No.45451 of 2022 filed by the appellant as the writ petitioner.
3. Order dated 22.12.2022 is a short one and is self-
explanatory. The same is extracted hereunder:
"2. This writ petition is filed to declare the action of 3rd respondent in issuing proceedings No.TS/INS-V/52-00-085475-
000-0699 dated 07.12.2022 calling upon the petitioner Company to register the employees allegedly working under the 2 HCJ & NTRJ W.A.No.81 of 2023 petitioner irrespective of number of employees, to give details of all the employees and threatening to invoke Section 45 of the Employees' State Insurance Act, 1948 (for short, 'ESI Act') as illegal and consequently to set aside the above said proceedings.
3. Vide aforesaid proceedings dated 07.12.2022, 3rd respondent referring to Form-01 and C-11, dated 01.10.2020 requested the petitioner to cover its employees under the provisions of the ESI Act and Regulations made therein. According to the petitioner, it is not coverable under the provisions of the ESI Act. The petitioner need not comply with the notice dated 19.09.2022. It never engaged employees more than 28 days, the employees engaged by the petitioner are drawing over and above Rs.22500/- salary. Therefore, on the said grounds, according to the petitioner, it is not coverable under the provisions of ESI Act. The same are factual aspects, which this Court cannot consider in a petition filed under Section 226 of the Constitution of India. The petitioner has to file an application under Section 75(1)(g) of the ESI Act before the Employees' Insurance Court which will consider the aforesaid aspects and decide the same after conducting full fledged trial. The petitioner has to take the aforesaid contentions before the Employees' Insurance Court. Therefore, this Court is not inclined to grant any relief to the petitioner herein in view of the availability of aforesaid alternative and efficacious remedy.
4. In view of the above, this Writ Petition is dismissed. However, liberty is granted to the petitioner to pursue the aforesaid available alternative remedy."
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W.A.No.81 of 2023
4. According to the appellant, it is not covered under the Employees' State Insurance Act, 1948 (briefly referred to hereinafter as 'the ESI Act').
5. Learned Single Judge has only pointed out that appellant has a remedy under Section 75(1)(g) of the ESI Act to establish the above fact and thereafter has relegated the appellant to the forum of the Employees' Insurance Court.
6. We see no reason to interfere with the aforesaid order of the learned Single Judge.
7. While giving liberty to the appellant to pursue the remedy as pointed out by the learned Single Judge, we dismiss the Writ Appeal. However, there shall be no order as to costs.
8. As a sequel, miscellaneous applications pending, if any, in this Writ Appeal, shall stand closed.
_______________________ UJJAL BHUYAN, CJ ______________________ N.TUKARAMJI, J Date: 21.02.2023 KL