Telangana High Court
M/S Thirumala Cabs Orange Tours And ... vs Employees State Insurance Corporation on 15 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.6824 OF 2024
ORDER:
Heard learned counsel for the petitioner and the learned standing counsel appearing on behalf of respondents.
2. The petitioner approached the Court seeking the prayer as follows:
"to issue an Order, direction or a Writ or more particularly one in the nature of Writ of Mandamus, declaring that the impugned order of the 2nd Respondent in TS/MEC/52-52- 029273-001-1006, dated 11.01.2024 is contrary to the principles of natural justice, Arbitrary, illegal, without jurisdiction and pass such other order".
3. The case of the petitioner, in brief, as per the averments made by the petitioner in the affidavit filed by the petitioner in support of the present writ petition is as under:
a) The petitioner is dealing with the business in passenger transport and Cargo and the same was covered under the Employees State Insurance Scheme by paying the ESI Corporation regularly. The petitioner suffered heavy losses 2 during the period of 2020 to 2022 Covid-19 Pandemic, and petitioner could not pay the ESI contributions. One Sri K.Sai Kumar, Assistant Director/Authorized Officer, sent a letter No.TS/MEW/52-52-
0292273-001-1006/2620231211 dated 23.03.2023 to the petitioner regarding nonpayment of contributions for the months of June 2022 to December 2022 and it is proposed to determine and recover the amount of contribution payable in respect of the Employees of the petitioner under Section 45A of the ESI Act on the basis of average wages of Rs.11,550/- for 4319 employees total amounting to Rs.1,39,67,646/- and the petitioner was called upon to appear before the 2nd respondent, either in person or through an authorized representative on 13.04.2023. However, on 13.04.2023 one Sri K.Ramu, Authorized Officer took up the personal hearing, before whom the petitioner's HR Manager appeared and thereafter the matter was adjourned due to ill health of the petitioner's representative.
b) Further it is the case of the petitioner that one Sri Amar Kale, Authorized Officer/Assistant Director - 2nd respondent by impugned order dated 11.01.2024 under Section 45A of the ESI Act determined the contribution payable by the petitioner for the months of June 2022 to September, 2022 and November 2022 3 to December 2022 amounting to Rs.1,11,57,136/- without hearing the petitioner.
PERUSED THE RECORD.
4. The grievance of the petitioner is that respondent No.2 issued impugned order dated 11.01.2024 in violation of principles of natural justice without giving a reasonable opportunity to the petitioner. Aggrieved by the same, the petitioner approached the Court by filing the present writ petition.
5. Learned counsel appearing on behalf of the respondents submits that, against an order passed under Section 45-AA of the Employees' State Insurance Act, 1948 within 60 days Appeal lies to the Appellate Authority, the petitioner has not exhausted the same and approached the Court by filing the present Writ Petition.
6. Learned counsel for the petitioner, on the other hand, submits that in view of the fact that the principles of natural justice had been violated, the petitioner is entitled to file the present writ petition.
PERUSED THE RECORD 4
7. The Division Bench of Apex Court in a judgment dated 20.04.2021 reported in (2021) 6 SCC 771 in M/s. Radhakrishnan Industries Vs. State of Himachal Pradesh, which referred to Whirlpool Corporation Vs. Registrar of Trade Marks (reported in (1998) 8 SCC 1) and further the said view had been reiterated by a Full Bench of the Apex Court (3 Judges) in a judgment reported in (2021) SCC Online SC page 801 in Magadh Sugar and Energy Limited Vs. State of Bihar and Others dated 24.09.2021 and in the said judgment it is observed as under :
28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a 5 violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vii) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
In the present case it is 28(i)(iii) that is attracted. 6
8. Taking into consideration the aforesaid submissions of both the learned counsel on record, and duly considering the law laid down by the Apex Court in the judgment dated 20.04.2021 reported in (2021) 6 SCC 771 in M/s. Radhakrishnan Industries Vs. State of Himachal Pradesh, which referred to Whirlpool Corporation Vs. Registrar of Trade Marks (reported in (1998) 8 SCC 1), and further the said view being reiterated by a Full Bench of the Apex Court (Three Judges) in a judgment reported in (2021) SCC online SC page 801 in Magadh Sugar and Energy Limited v State of Bihar and others dated 24.09.2021 (referred to and extracted above) the writ petition is allowed and the order impugned, dated 11.01.2024 issued by the 2nd respondent to the petitioner is set aside duly considering petitioner's specific plea that petitioner had sent an e-mail dated 01.11.2023 to the 2nd respondent office stating that due to ill health, petitioner could not attend the personal hearing on 27.10.2023 and requested for another opportunity of personal hearing but however the order impugned had been passed in violation of principles of natural justice denying reasonable opportunity due to the 7 petitioner without considering the said request of the petitioner vide impugned order dated 11.01.2024 passed under Section 45-A of the ESI Act and determined the contribution payable by the petitioner for the period from June 2022 to September 2022, and November 2022 to December 2022 amounting to Rs.1,11,57,136 unilaterally, unreasonably, therefore, the matter is remanded to the 2nd respondent to give a reasonable opportunity to the petitioner and pass appropriate orders in accordance to law in conformity with the principles of natural justice, within a period of four (04) weeks from the date of receipt of a copy of this order. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
_____________________________ MRS JUSTICE SUREPALLI NANDA Date: 15.03.2024 Note : Issue C.C.in two days.
B/o. Dsu