M/S.Lions Eye Hospital vs Union Of India
2021 Latest Caselaw 689 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                       WP(C).No.428 OF 2021(C)


PETITIONER:

      1        M/S.LIONS EYE HOSPITAL
               PUTHIYADOM(H), PAIKA, POOVARANI.P.O,
               KOTTAYAM DISTRICT-686577, REPRESENTED BY ITS
               ADMINISTRATOR, M.S.RAMAKRISHNAN.

      2        DR.GEORGE MATHEW,
               MANAGING TRUSTEE, M/S.LIONS EYE HOSPITAL,
               PUTHIYADOM(H), PAIKA,
               POOVARANI.P.O, KOTTAYAM DISTRICT-686577.

               BY ADVS.
               SRI.M.P.KRISHNAN NAIR
               SRI.K.K.VIVEKANANDAN
               SMT.SEEMA KRISHNAN
               SHRI.NANDAKUMAR K.

RESPONDENTS:

      1        UNION OF INDIA
               REPRESENTED BY SECRETARY,
               MINISTRY OF LABOUR AND EMPLOYMENT GOVERNMENT OF
               INDIA, NORTH BLOCK,NEW DELHI-110001.

      2        THE DIRECTOR,
               EMPLOYEES STATE INSURANCE CORPORATION,
               NEW DELHI-110001.

      3        THE ASSISTANT DIRECTOR,
               EMPLOYEES STATE INSURANCE CORPORATION,SUB REGIONAL
               OFFICE, MALU'S COMPLEX, ST.FRANCIS CHURCH ROAD,
               KALOOR, ERNAKULAM-682017.

      4        STATE OF KERALA,
               REPRESENTED BY SECRETARY DEPARTMENT 0F LABOUR AND
               EMPLOYMENT, SECRETARIAT,
               THIRUVANANTHAPURAM-695001.

      5        THE OFFICER-IN-CHARGE,
               INSPECTION OFFICE, EMPLOYEES STATE INSURANCE
               CORPORATION, PERUMBAVOOR-683542.
 WP(C).No.428 OF 2021            2

      6      SHRI. SUBRAMANIYA PILLAI.M,
             SOCIAL SECURITY OFFICER, EMPLOYEES STATE INSURANCE
             CORPORATION, BRANCH OFFICE,
             NEAR AMBADY HOTEL, THODUPUZHA-685584.

             R1 BY SRI.ANISH JAIN, CGC



             SRI. T.V.AJAYAKUMAR - SC, SRI. P.VIAJAYAKUMAR -
             ASGI

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.428 OF 2021                     3

                              JUDGMENT

The petitioners have approached this

Court impugning Ext.P1 Visit Note and Ext.P12

final order issued by the 3rd respondent -

Assistant Director of Employees State

Insurance Corporation.

2. Shri.M.P.Krishnan Nair, learned

counsel appearing for the petitioners,

however, expressly concede that his clients

have already invoked the statutory appellate

remedy against Ext.P12, by preferring Ext.P13

Appeal under the provisions of Section 45A of

the Employees State Insurance Act, 1948 (ESI

Act for short); but asserts that since the

said proceedings is not an efficacious

alternative remedy, this writ petition is also

maintainable.

3. Shri.M.P.Krishnan Nair, contends that

the appellate remedy is not efficacious

because his clients will have to pay 25% of

the demand before the same can be entertained

and therefore, that it cannot be seem to be an

alternative remedy. He, therefore, prays that

this writ petition be entertained and Ext.P12

be set aside.

4. Shri.T.V.Ajaykumar, learned Standing

Counsel appearing for the Employees State

Insurance Corporation, in response, submits

that it is now been well settled through a

catena of judgments of this Court and of the

Hon'ble Supreme Court, that merely because an

assessee is required to pay certain amounts as

condition for entertaining a statutory Appeal,

it will not cease to be an alternative

statutory remedy and therefore, that this writ

petition is not maintainable. He further

submitted that, going by Section 75 of the ESI

Act, the petitioners can invoke the

jurisdiction of the Appellate Authority to

reduce the amount of pre-deposit and

therefore, that this Court may not entertain

this writ petition on its merits at this

stage.

5. I find substantial force in the

submissions of Shri.T.V.Ajaykumar,

particularly because the petitioners

themselves admit that they have preferred

Ext.P13 Appeal before the competent Appellate

Authority. The records also reveal that they

have moved Ext.P14 Interim Application before

the said Authority, seeking waiver of

pre-deposit and it is also admitted that this

application has yet not been considered by the

Appellate Authority.

6. I am, therefore, of the firm view

that this writ petition cannot be found to be

maintainable at this stage and that the

petitioners must pursue Exts.P13 and P14 as

per law, before the Appellate Authority.

7. At this time, Shri.M.P.Krishnan Nair,

learned counsel for the petitioners, prayed

that the Appellate Authority be directed to at

least consider Ext.P14 Interim Application for

waiver of pre-deposit within a time frame to

be fixed.

8. I am certain that the afore prayer

can be acceded to by this Court taking note of

the circumstances involved.

9. I, therefore direct the competent

Appellate Authority to consider Ext.P14

application of the petitioners as

expeditiously as is possible, after affording

necessary opportunity of being heard to them;

and to issue apposite orders on it not later

than one month from the date of receipt of a

copy of this judgment.

10. Needless to say, until such time as

the afore exercise is completed, the competent

respondents will not enforce the demand

against the petitioners through coercive

measures.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/11.1.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE VISIT NOTE OF THE SOCIAL SECURITY OFFICER DATED 10.08.2015.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 16.11.2015 ISSUED BY THE 5TH RESPONDENT

EXHIBIT P3 TRUE COPY OF THE ATTENDANCE REGISTER FOR THE PERIOD FROM JULY 2015 TO JULY 2016

EXHIBIT P4 TRUE COPY OF THE ATTENDANCE REGISTER FOR THE PERIOD FROM JANUARY 2014 TO JUNE,2015.

EXHIBIT P5 TRUE COPY OF THE WAGES REGISTER FOR THE PERIOD FROM MAY,2014 TO JUNE,2016

EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 09.10.2019 ISSUED BY THE RESPONDENT

EXHIBIT P7 TRUE COPY OF THE PAMPHLET OBTAINED BY THE PETITIONERS.

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 13.01.2020 ISSUED BY THE RESPONDENT TO THE PETITIONERS.

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 13.02.2020 SUBMITTED BY THE PETITIONERS ALONG WITH DOCUMENTS

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 26.02.2020 ISSUED BY THE RESPONDENT TO THE PETITIONERS

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 07.09.2020 ISSUED BY THE RESPONDENT TO THE PETITIONERS

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 03.11.2020 ISSUED BY THE RESPONDENT

EXHIBIT P13 TRUE COPY OF THE APPEAL FILED BY THE PETITIONERS BEFORE THE APPELLATE AUTHORITY

EXHIBIT P14 TRUE COPY OF THE PETITION FLED BY THE PETITIONERS BEFORE THE APPELLATE AUTHORITY FOR WAIVER OF DEPOSIT OF 25% IF THE DEMAND.