Allahabad High Court
M/S Paper Phants,Muradabad Thru. ... vs U.O.I. Thru. Secy. Govt. Of India ... on 30 September, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- WRIT - C No. - 7050 of 2022
Petitioner :- M/S Paper Phants,Muradabad Thru. Authorized Representative Anubhav Agrwal
Respondent :- U.O.I. Thru. Secy. Govt. Of India Ministry Of Labour And Deptt. Of Employment,New Delhi And Another
Counsel for Petitioner :- D.P. Dutt Tiwari,Chandra Mohan
Counsel for Respondent :- A.S.G,Shishir Pradhan
Hon'ble Saurabh Lavania,J.
Heard.
Present petition has been filed challenging the order dated 07.06.2022 passed by the opposite party No.2-Assistant Director Employees' State Insurance Corporation.
The impugned order dated 07.06.2022 has been passed in the proceeding initiated under Section 45-A of the Employees' State Insurance Act, 1948 (in short "Act of 1948").
At the very outset, preliminary objection regarding maintainability of the petition has been raised by the learned counsel for the side opposite on the ground that the petitioner has a statutory remedy provided under Section 45-AA of the Act of 1948. It is also stated that the remedy provide under the Act of 1948 is a statutory remedy, as such, the present petition is not maintainable. Section 45-AA of the Act of 1948 is quoted below for ready reference:-
"Section 45AA in The Employees' State Insurance Act, 1948
125 [ 45AA Appellate authority. ?If an employer is not satisfied with the order referred to in section 45A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent. of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the corporation: Provided that if the employer finally succeeds in the appeal, the Corporation shall refund such deposit to the employer together with such interest as may be specified in the regulation.]"
In response, learned counsel for the petitioner stated that the inspection by the concerned Officer was not conducted and opportunity of hearing was not given and the notice of the proceedings was also not provided, as such, under Article 226 of the Constitution of India petition is maintainable. In support of his submission, he placed reliance on the judgment of this Court passed in WRIT- C No. 2571 of 2022 (Dr.Archana Goel,Ex.Director M/S M.M. Hospital Pvt. Ltd. Thru. Auth. Representative Peeyush Tandon vs. U.O.I. Thru. Secy. Ministry Of Labour And Department Of Employment,New Delhi And Another).
A perusal of the judgment refereed above would show that this Court has not taken note of the remedy provided under Section 45-AA of the Act of 1948.
The Hon'ble Apex Court in Titaghur Paper Mills Co. Ltd. & another Vs. State of Orrisa and others, (1983) 2 SCC 433, has observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11 of the above report, the Court observed thus:-
"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton6 in the following passage:
"There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." (emphasis supplied)"
In the subsequent decision in Mafatlal Industries Ltd. & others Vs. Union of India & others, (1997) 5SCC 536, the Hon'ble Apex Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.
Considering the aforesaid, this Court is of the view that in the statute itself a mechanism for redressal of grievance is provided, as such, this Court is not inclined to entertain the present petition. Accordingly, the petition is dismissed.
Order Date :- 30.9.2022
Vinay/-
