Orissa High Court
(Through Hybrid Mode) vs Deputy Director (Revenue) on 6 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22760 of 2017
(Through Hybrid mode)
Orissa State Housing Board .... Petitioner
-versus-
Deputy Director (Revenue), ESI .... Opposite Party
Corporation, Bhubaneswar
Advocates appeared in this case :
For Petitioner : Mr. Somanath Mishra, Advocate
Mr. G. Tripathy, Advocate
Mr. K. R. Mohanty, Advocate
For Opposite Party : Mr. A. P. Ray, Advocate
CORAM: JUSTICE ARINDAM SINHA
JUDGMENT
06.12.2022
1. The writ petition was heard on 3rd November, 2022 by this
Bench. Paragraphs 1 and 2 from order dated 3rd November, 2022 are
reproduced below.
"1. Mr. Mishra, learned advocate appears on
behalf of petitioner and submits, sub-section (4) in
section 1 in Employees State Insurance Act, 1948 has
proviso saying that the sub-section does not apply to a
factory or establishment under control of the
Government, whose employees are otherwise in receipt
of benefits substantially similar or superior to benefits
// 2 //
provided under the Act. In paragraph 3 of the writ
petition the statements have been made invoking the
provision. Counter has not been filed.
2. Mr. Ray, learned advocate appears on behalf of
the Revenue and draws attention to paragraph 3 in
impugned order dated 27th June, 2017. The paragraph is
extracted and reproduced below.
"However, employer did not submit any
documentary evidence to substantiate their
contention. The State Government, Labour and ESI
Department vide their letter No.SS-
II/SC/14/2015/763/L&ESI, Bhubaneswar dated
2.2.2016 also communicated to the Secretary,
Odisha State Housing Board, Bhubaneswar that
proposal for exemption, prayed by the employer is
also rejected on the ground that there is no merit for
consideration."
Mr. Mishra replies that exemption under section 87 is
distinguishable from the provision under the proviso in
section 1(4)."
Paragraphs 2, 3 and 4 from order dated 22nd November, 2022 are
reproduced below.
"2. Mr. Mishra, learned advocate appearing on behalf of
petitioner and submits, rejection of exemption sought by his
client is not relevant for adjudication of the writ petition
since, under sub-section (4) in section 1 of Employees'
State Insurance Act, 1948, it is to be first determined
whether the Act applies to his client. This was not done.
Instead, notice issued under section 45A.
// 3 //
3. Mr. Ray, learned advocate appears on behalf of the
Corporation. He draws attention to communication dated
2nd February, 2016 issued by the Under Secretary to
petitioner. Text of the communication is reproduced below.
"I am directed to invite a reference to your
Letter No.14585 dated 29.11.2014. Memo No.6006
dated 23.07.2015 on the subject cited above and to
say that Government after careful consideration
have been pleased to order that proposal for
exemption, prayed in the Letter under reference
does not merit any consideration. Hence rejected."
4. Petitioner will produce letter no.14585 dated 29th
November, 2014 and memo no.6006 dated 23rd July, 2015.
The documents be produced in Court on copies served to
Mr. Ray. The purpose is, in event petitioner had applied for
exemption, the contention for their being adjudication on
whether the Act applies to it, will be unnecessary on
petitioner's own conduct of having applied for exemption
under the Act."
2. Today Mr. Mishra produces letter dated 29th November, 2014.
It appears the letter was from Land-cum-Administrative Officer to
Under Secretary to Government, Labour and ESI Department,
Government of Odisha. There is no dispute that the letter was
addressed to the appropriate Government, who rejected the proposal
for exemption prayed for therein.
// 4 //
3. Mr. Ray relies on judgment of the Supreme Court in
Employees' State Insurance Corporation vs. F. Fibre Bangalore
(P) Ltd, reported in (1997) 1 SCC 625, paragraph 5. He submits,
petitioner did not apply to the Insurance Court, raising dispute. As
such, there should not be interference with impugned order of
determination made under section 45A.
4. Mr. Mishra, in reply, relies on order dated 16th September,
2008, passed by co-ordinate Bench in OJC no.7374 of 2001 (Orissa
Tourism Development Corporation vs. Employees' State
Insurance Corporation and another). He submits, his client's case
stands covered by said order.
5. Relevant paragraphs from order dated 16th September, 2008
(supra) are reproduced below.
"Mr. P. Ray, learned counsel appearing for the
E.S.I. Corporation submits that the O.T.D.C. had
represented before the State Government for grant of
exemption from the purview of the E.S.I. Act and the same
has been rejected by the State Government vide its order
dated 12.10.1995, as per Annexure-A/1 to the Counter
affidavit filed in the connected writ application i.e. W.P.(C)
No.2339 of 2007. Accordingly it is submitted that the
question of application of the provisions of E.S.I. Act to the
establishment of O.T.D.C. can be effectively adjudicated by
the appropriate E.S.I. Court under section 75(1)(g) of the
// 5 //
E.S.I. Act and this Court in exercise of its extra-ordinary
writ jurisdiction should not adjudicate the same, when
alternate statutory remedy is available.
Without going into the merits of the case one
way or the other, the writ petition is disposed of with a
direction to the petitioner to approach the E.S.I. Court with
regard to their grievances by filing appropriate
application/dispute within a period of two months. In case
any such dispute is filed, the E.S.I. Court shall condone the
delay, if any, and dispose of the dispute on merit, in
accordance with law. The petitioner is at liberty to file
appropriate application for interim protection, which shall
also be considered by the E.S.I. Court on its own merit. No
coercive action shall be taken against the petitioner for
realization of the ESI dues till its application for interim
protection is taken up by the ESI Court."
It appears the order was on concession since, then learned counsel
appearing for the corporation had submitted that question of
application of provisions under the Act to the establishment of the
Tourism Corporation, could be effectively adjudicated by appropriate
ESI Court under section 75(1)(g) though, therein also there was
rejection of grant of exemption. That being the position it is of no
consequence that petitioner did not approach the ESI Court and
instead moved this Court.
// 6 //
6. F. Fibre Bangalore (P) Ltd (supra) is not applicable since,
the Supreme Court pronounced view of the full Bench of the High
Court to be erroneous, which was, except where order under section
45A becomes final, in all other cases, the corporation is required to go
to the Insurance Court, have it adjudicated and then make a demand.
Paragraph 5 from the judgment is reproduced below.
"The Full Bench of the High Court has held that in a case
where the order under Section 45-A becomes final, there is
no need for the Corporation to seek adjudication before the
Insurance Court. In all other cases, the Corporation is
required to go to the Insurance Court, have it adjudicated
and then make a demand. We are of the view that the Full
Bench of the High Court is clearly in error to reach that
conclusion. Though Section 75 of the Act does not
envisage as to who has to approach the Insurance Court,
by necessary implication when the employer denies the
liability or applicability of the provisions of the Act or the
quantum of the contribution to be deposited by the
employer, it is for him to approach the Insurance Court
and seek adjudication. It is not for the Corporation in each
case whenever there is a dispute, to go to the Insurance
Court and have the dispute adjudicated. Otherwise; the Act
would become unworkable and defeat the object and
purpose of the Act."
(emphasis supplied)
// 7 //
7. On basis of the concession as reflected in order dated 16th
September, 2008 (supra), impugned demand for three weeks, to
enable petitioner to approach the ESI Court. In event the approach is
made, impugned demand will thereafter be deemed set aside and
quashed. On no approach by petitioner, the stay will stand
automatically vacated and the corporation thereupon to proceed
pursuant to impugned demand, in accordance with law.
8. The writ petition is disposed of.
(Arindam Sinha)
Judge
Prasant
