Sut Hospital vs Employees State Insurance ...
2021 Latest Caselaw 5508 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                       WP(C).No.2541 OF 2021(P)


PETITIONER:

               SUT HOSPITAL,
               PATTOM, THIRUVANANTHAPURAM - 695 004, REPRESENTED BY
               ITS CHIEF LIAISON OFFICER, M.RADHAKRISHNAN NAIR.

               BY ADVS.
               SRI.T.C.KRISHNA
               SMT.ASHA K.SHENOY
               SRI.PRATAP ABRAHAM VARGHESE

RESPONDENTS:

      1        EMPLOYEES STATE INSURANCE CORPORATION
               REPRESENTED BY ITS REGIONAL DIRECTOR, SUB REGIONAL
               OFFICE, PANCHDEEP BHAVAN, THYCAUD,
               THIRUVANANTHAPURAM - 695 014

      2        THE DEPUTY DIRECTOR,
               ESI CORPORATION, SUB REGIONAL OFFICE, PANCHDEEP
               BHAVAN, THYCAUD, THIRUVANANTHAPURAM - 695 014.

      3        RECOVERY OFFICER
               ESI CORPORATION, SUB REGIONAL OFFICE,
               PANCHDEEP BHAVAN, THYCAUD, THIRUVANANTHAPURAM 695 014

      4        STATE BANK OF INDIA
               LIC PATTOM BRANCH, PATTOM JUNCTION, PATTOM,
               THIRUVANANTHAPURAM - 695 004.
               REPRESENTED BY ITS GENERAL MANAGER.

               R1-R3 BY ADV. SRI.ADARSH KUMAR
               R1-R3 BY ADV. SRI.SHASHANK DEVAN
               R4 BY ADV. SRI.SANTHOSH MATHEW

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.2541/2021                 2


                                JUDGMENT

Dated this the 16th day of February 2021

The petitioner, in the prayer clause, has prayed for quashing

and setting aside the orders at Exts.P3 and P9. In fact the order

at Ext.P3 is an order dismissing an Insurance Case in default. But

it seems that subsequently the said Insurance Case was restored

and decided on merit vide judgment at Ext.P7. So far as Ext.P9 is

concerned, the same is a notice issued by the Recovery Officer to

the petitioner-hospital.

2. Heard both sides. Learned counsel for the petitioner

argued that the petitioner is challenging the quantum of interest

imposed on the petitioner and that too without issuing any notice

for recovery of interest.

3. During the course of submissions, learned counsel for the

petitioner argued that the petitioner is in fact challenging the

garnishee order at Ext.P4 issued under Section 45G of the

Employees State Insurance Act, 1948 directing the banker of the

petitioner to pay Rs.10727204/- to the respondent-ESI

Corporation.

4. A perusal of the order at Ext.P1 issued under Section 45A

of the ESI Act shows that as the petitioner had defaulted

remittance of contribution payable to the ESI as per the

provisions of the ESI Act, the Assistant Director of the ESI

Corporation has assessed the contribution to the tune of

Rs.42,35,617/-. The petitioner had subsequently preferred the

Insurance Case bearing No.15 of 2010 challenging the very fact

that it is an establishment covered under the ESI Act. However,

that Insurance Case is dismissed by judgment at Ext.P7.

5. Be that as it may, the garnishee order at Ext.P4 is

covering the amount of arrears towards contribution so also

damages and interest. The basic contention of the learned

counsel for the petitioner that no notice for recovery of interest is

served on the petitioner seems to be incorrect in view of the fact

that vide notice dated 27.05.2019 at Ext.R1(c), the petitioner was

informed by the Recovery Officer about the amount quantified as

principal amount due towards contribution as well as interest.

The remedy with the petitioner in respect of the amount claimed

by the ESI Corporation as interest lies before the Insurance Court

as per the provisions of Section 75 of the ESI Act provided the

petitioner disputes the amount claimed as interest during

recovery proceedings of which the petitioner has already received

notice. The order at Ext.P4 dated 23.05.2019 is issued under

Section 45G of the ESI Act and undoubtedly, the respondent-

Corporation has right to issue such order. The contention of the

petitioner that out of the amount of Rs.10727204/- claimed in the

garnishee order, an amount of Rs.76,28,535/- is already

recovered by the ESI Corporation through its Bank by no way

absolve the petitioner of their liability to pay interest on the

contribution due and payable to the Corporation. The petitioner

has not challenged the order dated 23.05.2019, Ext.P4, with due

diligence. It is sought to be challenged after a period of more

than 1 ½ years.

In the light of the foregoing reasons, this writ petition is

devoid of merit and the same is accordingly dismissed. Needless

to mention that the petitioner is always free to challenge the

order imposing liability on the petitioner before the Insurance

Court as per the provisions of Section 75 of the ESI Act.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF ORDER DATED 12/1/2010 UNDER SECTION 45 A ISSUED BY THE ESI CORPORATION.

EXHIBIT P2 TRUE COPY OF ORDER DATED 17/3/2010 IN CMP NO.93/2010 IN IC NO.15/2010

EXHIBIT P3 TRUE COPY OF ORDER DATED 30/8/2016 IN IC NO.15/2010

EXHIBIT P4 TRUE COPY OF GARNISHEE ORDER DATED 23/5/2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF ORDER DATED 28/5/2019 IN IA NO.14/2019 IN I.C.NO.15/2010

EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 16/10/2019 IN OP(LC) NO.14/2019

EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 21/10/2020 IN IC NO.15/2010

EXHIBIT P8 TRUE COPY OF LETTER DATED 14/12/2020 FROM THE PETITIONER TO THE DEPUTY DIRECTOR, ESI CORPORATION.

EXHIBIT P9 TRUE COPY OF LETTER DATED 30/12/2020 FROM THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P10 TRUE COPY OF REPRESENTATION DATED 15/1/2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P11 TRUE COPY OF BANK STATEMENT SHOWING WITHDRAWAL OF RS.3,20,000/- FROM THE PETITIONER'S BANK ACCOUNT NO.35399183921.

EXHIBIT P12 TRUE COPY OF BANK STATEMENT SHOWING WITHDRAWAL OF RS.72,79,064/- FROM THE PETITIONER'S BANK ACCOUNT NO.67246911891.

EXHIBIT P13 TRUE COPY OF BANK STATEMENT SHOWING WITHDRAWAL OF RS. 29,491/- FROM THE PETITIONER'S BANK ACCOUNT NO.35399183921.

RESPONDENT'S EXHIBITS:

EXHIBIT R1 TRUE COPY OF THE GARNISHEE ORDER DATED 23-5-2019 ISSUED WITH ACKNOLEDGEMENT TO THE STATE BANK OF INDIA PATTOM LIC BRANCH EXHIBIT R1(A) TRUE COPY OF THE GRANISHEE ORDER DTD.23.5.2019 ISSUED WITH ACKNOLEDGEMENT TO THE SBI, PATTOM BRANCH.

EXHIBIT R1(B) TRUE COPY OF THE GARNISHEE ORDER DTD.23.5.2019 ISSUED WITH ACKNOWLEDGMENT TO THE YES BANK, VAZHUTHACAUD, THIRUVANANTHAPURAM.

EXHIBIT R1 © TRUE COPY OF COMMUNICATION DTD.27.5.2019 ISSUED UNDER R1 OFFICE TO THE PETITIONER EXHIBIT R1 (D) TRUE COPY OF E-MAIL COMMUNICATION DTD.30.12.2020 ISSUED BY PETITIONER TO THE EMAIL ID OF R1.

EXHIBIT R1 (E) TRUE COPY OF COMMUNICATION DTD.22.1.2021 ISSUED BY R3 TO CHIEF LIAISON OFFICER, M/S. THE TRIVANDRUM SPECIALISTS HOSPITAL PRIVATE LIMITED, PATTOM (SUT HOSPITAL, PATTOM), TRIVANDRUM - 695 004.

EXHIBIT R1(F) TRUE COPY OF ACKNOLEDGEMENT OF RECEIPT BY THE CHIEF LIAISON OFFICER, M/S. THE TRIVANDRUM SPECIALISTS HOSPITAL PRIVATE LIMITED, PATTOM, (SUT HOSPITAL, PATTOM), TRIVANDRUM - 695 004 OF EXHIBIT R1(E) COMMUNICATION.

True Copy

P.S to Judge

smp