Indraprastha Medical Cororation ... vs Employees State Insurance ...
2013 Latest Caselaw 3633 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 19th August, 2013.
+                                CM(M) No.817/2013
       INDRAPRASTHA MEDICAL CORORATION LTD ..Petitioner
                   Through: Mr. Atul Sharma, Mr. Sarojanand Jha
                            & Ms. Isha J. Kumar, Advs.
                                    Versus

    EMPLOYEES STATE INSURANCE
    CORPORATION                        .......Respondent
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

CM No.12643-44/2013 (for exemption).

1. Allowed, subject to just exceptions.

2. The CMs stand disposed of.

CM(M) No.817/2013 & CM No.12642/2013 (for stay).

3. The file has been received in the Court just before lunch break, owing

to the roster bench being not available and the urgency expressed by the

petitioner.

4. The petitioner is aggrieved from the non-grant of the ex parte interim

relief by the ESI Court.

5. The counsel for the petitioner has argued, (a) that the respondent had

vide notices dated 11th November, 2004 and 29th April, 2005 covered the

Indraprastha Apollo Hospital of the petitioner under the provisions of the

Employees State Insurance Act, 1948; (b) that the petitioner had challenged

the said coverage before the ESI Court, which vide judgment dated 7 th

December, 2010 allowed the petition and quashed the coverage of the

petitioner vide notices aforesaid though with a liberty to the respondent to

re-assess the liability if any of the individual department in accordance with

the observations made in the said judgment; (c) that the said judgment has

attained finality and was not challenged by the respondent; (d) that though

the respondent thereafter issued a show cause notice to the petitioner but

without passing any order on the aspect of coverage , has vide order dated

28th April, 2013 treated the petitioner as covered and liable to pay

contribution in the sum of Rs.36,73,742/- for the period 17th September,

2004 to 31st March, 2011; (e) that the petitioner again challenged the said

order dated 28th April, 2013 before the ESI Court and filed an application

for interim relief; that the notice of the petition as well as the application for

interim relief was issued; (f) that however the respondent in the interregnum

vide notice dated 5th August, 2013 forwarded a certificate for recovery of

Rs.61,10,326/- from the petitioner; (g) that the petitioner again applied for

interim relief before the ESI Court and which application was taken up by

the ESI Court on 13th August, 2013 but notice thereof also has been issued

for 21st August, 2013 and no ex parte relief as sought was granted.

6. The counsel for the petitioner has drawn attention to the proviso to

Section 75 (2B) of the Act to contend that the Court is empowered to, for

reasons to be recorded in writing, waive or reduce the amount to be

deposited under that Section. He has further contended that in view of the

findings in the detailed judgment dated 7th December, 2010, the respondent

could not have treated the petitioner as covered under the Act and raised a

demand on the petitioner. It is yet further urged that the time of 15 days

granted in the notice dated 5th August, 2013 is expiring on 20th August, 2013

and the petitioner will suffer irreparable loss and injury if coercive steps are

taken against it even before its application for interim relief is heard by the

ESI Court.

7. Considering that the grievance urged in this petition filed under

Article 227 of the Constitution of India is against an ex parte order of

refusal to grant ex parte ad-interim relief, need is not felt to issue notice of

this petition or to keep the same pending in this Court in as much as the

same is likely to result in delay before the ESI Court also where the

proceedings are already listed next on 21st August, 2013.

8. Considering, (i) the fact that the petitioner is a Hospital and the

functioning whereof may suffer if the monies are coercively recovered from

it; and, (ii) further considering the fact that there is no possibility of the

monies, unless got deposited, remaining unrecoverable from the petitioner;

and, (iii) yet further for the reasons, (a) that the ESI Court, in the order dated

13th August, 2013 has not given any reason for refusal of ex parte relief; (b)

the coverage earlier in the year 2004-2005 of the petitioner by the

provisions of the Act was struck down and the order dated 24th April, 2013

does not prima facie appear to justify the second coverage; (c) though there

is subsequent event of notification dated 23rd May, 2011 extending the

provisions of the Act to all medical institutions in NCT of Delhi w.e.f. 1 st

April, 2011 but there does not appear to be any justification for demand for

contribution for the period prior thereto, it is deemed appropriate to protect

the petitioner till 21st August, 2013 for which date notice of the application

of the petitioner has been issued by the ESI Court and till the disposal of the

application of the petitioner for interim relief.

9. Accordingly this petition is disposed of by restraining the respondent

from taking any coercive steps against the petitioner in pursuance to the

notice dated 5th August, 2013 till the disposal of the application of the

petitioner for interim relief filed before the ESI Court.

10. The ESI Court is however requested to dispose of the said

application, expeditiously, on its own merit, without being influenced by the

grant of ex parte relief vide this order.

11. No costs.

Copy of this order be given dasti under signatures of the Court

Master.

RAJIV SAHAI ENDLAW, J

AUGUST 19, 2013 pp..