Kanhangad Co-Operative Milk ... vs Regional Director
2021 Latest Caselaw 20552 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
        FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                          WP(C) NO. 20729 OF 2021
PETITIONER :

            KANHANGAD CO-OPERATIVE MILK SUPPLY SOCIETY
            LTD.NO.F.F.43,
            KUNNUMMAL, KANHANGAD P.O., THROUGH ITS SECRETARY,
            RAJESH T.V., AGED 41 YEARS, S/O.RAGHAVAN,
            THACHIRAVALAPPIL HOUSE, ARAYI, P.O.KANHANGAD SOUTH,
            KASARAGOD DISTRICT.

            BY ADVS.
            BALU TOM
            BONNY BENNY



RESPONDENTS :

    1       REGIONAL DIRECTOR
            ESI CORPORATION, PANCHDEEP BHAVAN, NORTH ROUND,
            THRISSUR-2.

    2       THE RECOVERY OFFICER,
            ESI CORPORATION, OFFICE OF THE RECOVERY OFFICER,
            PANCHDEEP BHAVAN, NORTH ROUND, THRISSUR-680001.

    3       STATE OF KERALA
            REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR AND
            REHABILITATION (B) DEPARTMENT,
            THIRUVANANTHAPURAM-695001.

    4       BRANCH MANAGER
            KOTTACHERY SERVICE CO-OP. BANK, KOTTACHERY,
            KOZHIKODE-673004.

            BY ADV.T.V.AJAYAKUMAR, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 20729 OF 2021

                                  2

                    BECHU KURIAN THOMAS, J.
                  =-=-=-=-=-=-=-=-=-=-=-=-=-=
                    W.P.(C).No.20729 of 2021
                  =-=-=-=-=-=-=-=-=-=-=-=-=-=
               Dated this the 1st day of October, 2021



                            JUDGMENT

Petitioner is challenging Ext.P5 notice issued under Section

45G of the Employees State Insurance Act (for short, 'the ESI Act').

Ext.P5 is an order issued as a measure of recovery pursuant to the

orders passed by the first respondent under Section 45A of the ESI

Act.

2. Petitioner is a society and claims that it conducts

service of collecting milk from its members. It is stated that though

it does not indulge in any manufacturing activity using power, it is

carrying on manufacturing cattle feeds using three employees for

whom a separate welfare scheme is in existence. It is also claimed

that, the society does not come within the purview of the ESI Act.

3. Though petitioner has pleaded that an assessment has

been done against it, except for Ext.P4 communication no details are

forthcoming about the under Section 45A of the ESI Act. Petitioner

has not produced nor has pleaded any details about the order issued

under Section 45A of the ESI Act. The remedy if any, of the WP(C) NO. 20729 OF 2021

petitioner is to challenge the order under Section 45A before the

appropriate forum rather than to approach this Court under Article

226 of the Constitution of India that too against Ext.P5 alone.

4. Ext.P5 is only a consequence of the order under

Section 45A. The remedy of the petitioner lies elsewhere and this

Court in exercise of the writ jurisdiction cannot entertain this writ

petition since admittedly the order under S.45A has not been

challenged. Accordingly this writ petition lacks merit and the same is

dismissed reserving liberty of the petitioner to move the appropriate

statutory remedy for appropriate reliefs. However since garnishee

orders have been passed as per Ext.P5 directing the 4 th respondent to

transfer the amount in full to the 2 nd respondent and there will be a

direction to withhold transfer of amount as directed in Ext.P5 for a

period of four weeks from today, to enable the petitioner to move the

appropriate statutory remedy against the orders issued under the ESI

Act.

The writ petition is disposed of as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM WP(C) NO. 20729 OF 2021

APPENDIX OF WP(C) 20729/2021

PETITIONER'S EXHIBITS :

Exhibit P1 PHOTOSTAT COPY OF THE NOTIFICATION G.O.

(RT)NO.2282/2003/LBR DATED 18.08.2003.

Exhibit P1(I) PHOTOSTAT COPY OF THE NOTIFICATION G.O.

(RT)NO.2750/2007/LBR DATED 10.09.2007.

Exhibit P1(II) PHOTOSTAT COPY OF THE NOTIFICATION G.O.

(RT)NO.1687/2008/LBR DATED 24.06.2008.

Exhibit P1(III) PHOTOSTAT COPY OF THE NOTIFICATION G.O.

(RT)NO.1369/2008/LBR DATED 10.09.2009.

Exhibit P2 PHOTOSTAT COPY OF THE ORDER OF THE EMPLOYEES' INDUSTRIES COURT, KOZHIKODE IN EIC.66/06.EIC.33/07 & EIC.20/09 DATED 20.02.2011.

Exhibit P3 PHOTOSTAT COPY OF THE COMMUNICATION DATED 19.02.2020 ISSUED BY THE EMPLOYEES' STATE INSURANCE CORPORATION.

Exhibit P4 THE PHOTOSTAT COPY OF THE COMMUNICATION FROM THE RECOVERY OFFICER, EMPLOYEES' STATE INSURANCE CORPORATION, SUB REGIONAL OFFICE, KOZHIKODE ON 09.12.2020.

Exhibit P5 PHOTOSTAT COPY OF THE GRANISHEE ORDER UNDER SEC.45G OF THE ESI ACT, 1948 DATED 07.09.2021 ISSUED BY EST CORPORATION.