Kerala High Court
The Deputy Director vs Dr.K.M.Ashik on 14 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
OP(LC) NO. 5 OF 2020
AGAINST THE ORDER IN M.P. NO.12/2020 AND M.P. NO.13/2020 IN
EIC 5/2020 OF E.I.COURT, KOZHIKODE
PETITIONER/RESPONDENT:
THE DEPUTY DIRECTOR
EMPLOYEES STATE INSURANCE CORPORATION,
SUB-REGIONAL OFFICE, HOUSEFED COMPLEX,
SASTHRI NAGAR ROAD, ERANHIPALAM,
KOZHIKODE-673 006.
BY ADVS.
SRI.ADARSH KUMAR
SRI.SHASHANK DEVAN
RESPONDENT:
DR.K.M.ASHIK
S/O. DR.K.MOIDU, MEDICAL DIRECTOR,
M/S. NATIONAL HOSPITAL (A UNIT OF MOIDUS MEDICARE
PVT. LTD.),
I.G.ROAD, KOZHIKODE-673 001.
THIS OP (LABOUR COURT) HAVING BEEN FINALLY ON
10.09.2021, THE COURT ON 14.9.2021 DELIVERED THE FOLLOWING:
O.P.(LC) No.5/20 -:2:-
BECHU KURIAN THOMAS, J.
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O.P.(LC) No.5 of 2020
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Dated this the 14th day of September, 2021
JUDGMENT
The relief claimed in this original petition is to set aside Ext.P1
and Ext.P1(A) as being contrary to Section 75(2B) of the ESI Act.
The order in Ext.P1 reads as "Heard learned counsel for the petitioner
and perused documents. In the circumstances, Pre Condition to deposit
50% under section 75(2B) is reduced to Rs.25,000/- (Rupees Twenty five
thousand only) and the petitioner is directed to deposit the amount with
respondent corporation on or before 11.03.2020. In default, the
application will be dismissed for default." while Ext.P1(A) reads as
"Heard learned counsel for the petitioner and perused documents. Interim
stay granted until further order subject to the compliance of order passed
in MP 12/20 i.e. the petitioner shall deposit Rs.25,000/- with respondent."
2. In spite of notice to the respondent, there is no appearance
and hence this Court heard the arguments of the learned counsel for
petitioner.
3. The learned counsel for the petitioner, Adv.Sri.Shashank
Devan submits that this Court has already considered the issue
involved in this original petition, whether the Insurance Court has
power to pass interim orders waiving in whole or in part the statutory
deposit under Section 75(2B) of the Employees' State Insurance Act,
1948 (in short 'the Act) without recording any reasons. The decision
in O.P.(LC) No.23 of 2019 dated 11.02.2020 as well as the decision
in O.P.(LC) No.14 of 2019 dated 16.10.2019 are pressed into service
for the aforesaid proposition.
4. A reading of Ext.P1 and Ext.P1(A) show that there has been
a reduction of the amount required to be deposited as per Section
75(2B) of the Act. Section 75(2B) of the Act contemplates deposit of
50% of the amount assessed for grant of stay. Admittedly, the
present amount directed under Ext.P1 and Ext.P1(A) is only a paltry
sum of the amount in dispute. There is thus a reduction in the
amount directed to be deposited from the amount contemplated
under the statutory provision. Statute permits waiver or reduction but
only for reasons recorded. Unfortunately, reasons are not seen
recorded in Ext.P1 or in Ext.P1(A). In the absence of reasons having
been recorded, Ext.P1 and Ext.P1(A) cannot be legally sustained.
5. Accordingly, I set aside Ext.P1 and Ext.P1(A) and direct the
Employees Insurance Court, Thiruvananthapuram to reconsider the
application for stay of order impugned in M.P. No.12 of 2020 and
M.P. No.13 of 2020 in E.I.C.No.5 of 2020. The application for stay
shall be considered after hearing both parties and in accordance with
law. The ESI Court shall pass appropriate orders as directed above,
within a period of three months from the date of receipt of a copy of
this judgment. Needless to say that no coercive action pursuant to
the order impugned in E.I.C.No.5 of 2020 shall be initiated by the
petitioner till a decision is taken by the Insurance Court, as directed
above.
The original petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
The name 'Thiruvananthapuram' appearing in paragraph 5 of
the judgment dated 14/09/2021 in O.P.(LC) No.5/2020 is corrected as
'Kozhikode' as per order dated 28/09/2021 in I.A. No.1/2021 in O.P.
(LC) No.5/2020.
Sd/-
Deputy Registrar
APPENDIX OF OP(LC) 5/2020
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 12.2.2020
PASSED BY THE EI COURT, KOZHIKODE IN MP
NO.12/2020 IN EIC NO.05/2020.
EXHIBIT P1(A) TRUE COPY OF THE CONDITIONAL INTERIM
ORDER DATED 12.2.2020 PASSED BY THE EI
COURT, KOZHIKODE IN MP NO.13/2020 IN EIC
NO.05/2020.
EXHIBIT P2 TRUE COPY OF THE SECTION 85B ORDER
NO.72000169970001401.REV.SRO.KZ DATED
9.5.2019 ISSUED BY THE PETITIONER
CORPORATION TO THE RESPONDENT IMPOSING
AN AMOUNT OF RS.17,18,385/- AS DAMAGES
FOR BELATED PAYMENT OF CONTRIBUTION FOR
THE PERIOD FROM 08/2013 TO 05/2017.
EXHIBIT P2(A) TRUE COPY OF THE SECTION 85B ORDER
NO.72000169970001401 REV. SRO. KZ DATED
9.5.2019 ISSUED BY THE PETITIONER
CORPORATION, IMPOSING AN AMOUNT OF
RS.53,188/- AS DAMAGES FOR THE BELATED
PAYMENT OF CONTRIBUTION FOR THE PERIOD
BETWEEN 07/2017 TO 05/2018.
EXHIBIT P3 TRUE COPY OF THE EIC NO.05/2020 FILED BY
THE RESPONDENT DATED 12.2.2020
CHALLENGING EXHIBITS P2 AND P2(A)
PENALTY ORDERS.
EXHIBIT P4 TRUE COPY OF THE CMP NO.12/2020 IN EIC
NO.05/2020 DATED 12.2.2020 ALONG WITH
ACCOMPANYING AFFIDAVIT SEEKING FOR
WAIVER/REDUCTION UNDER SECTION 75(2B) OF
THE ESI ACT.
EXHIBIT P4(A) TRUE COPY OF THE CMP NO.13/2020 IN EIC
NO.05/2050 DATED 12.2.2020 ALONG WITH
ACCOMPANYING AFFIDAVIT, FILED BY THE
RESPONDENT SEEKING FOR STAY OF EXHIBIT
P2 AND EXHIBIT P2(A).
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED
16.10.2019 PASSED BY THIS HON'BLE COURT
IN OP(LC) NO.14/2019.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT PASSED BY THIS
HON'BLE COURT IN OP(LC) NO.23/2019.
