Orissa High Court
M/S Hotel Satyam vs Employees State Insurance on 13 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16720 of 2019
M/s Hotel Satyam ..... Petitioner
Mr. S. Mishra, Advocate
Vs.
Employees State Insurance ..... Opposite Parties
Corporation, Bhubaneswar and
others
Mr. A.P. Ray, Advocate
CORAM: JUSTICE SANJAY KUMAR MISHRA
ORDER
13.11.2023
Order No. The matter is taken up through hybrid mode.
12. 2. Heard learned Counsel for the Parties.
3. This Writ Petition has been preferred challenging the Order dated
12/15.04.2019 passed by the Opposite Party No.2 in a proceeding under
Section 45-A of the Employees' State Insurance Act, 1948, shortly, 'ESI
Act, 1948'. The main ground of challenge is, the number of employees
engaged by the Petitioner Firm being less than 10, the said Establishment is
not covered under the purview of the ESI Act, 1948.
4. Disputing the said stand of the Petitioner, a Counter Affidavit has
been filed by the Opposite Parties. Also a point of maintainability of the
Writ Petition has been raised by the Corporation on the ground of alternative
remedy available under Section 75 of the ESI Act, 1948. Mr. Ray, learned
Counsel for the Opposite Parties, relying on the judgment of the apex Court
reported in (1997) SCC 625 (Employees' State Insurance Corporation vs.
F. Fibre Bangalore (P) Ltd.) and drawing attention of this Court to
Paragraph 5 of the said Judgment submits, it is the ESI Court to decide the
issue and not Writ Court and the present Writ Petition is not maintainable.
5. With regard to maintainability of the Writ Petition the learned
Counsel for the Petitioner submits, though there is an alternative remedy
available under Section 75 of the ESI Act, 1948, since the Petitioner's
Establishment is not coverage under the said Act, the very initiation of the
proceeding under Section 45-A of the ESI Act, 1948 being bad, despite
availability of alternative remedy, the Petitioner has rightly approached this
Court for redressal of its grievances. This Court, while issuing notice to the
Corporation, did so in view of the specific averments made in the Writ
Petition.
6. Admittedly, there is a dispute as to number of employees engaged by
the Petitioner's Establishment to bring it under the coverage of the ESI Act,
1948.The same cannot be decided by a writ court, as the parties are to lead
evidence to substantiate their respective stands.
7. At this stage, learned Counsel for the Petitioner prays for withdrawal
of the Writ Petition with liberty to approach ESI Court for redressal of the
grievances of the Petitioner Firm, to which the learned Counsel for the
Corporation has no objection. Learned Counsel for the Petitioner further
submits, in view of the limitation prescribed under Section 75 of the ESI
Act, 1948, the ESI Court be directed to condone the delay, if the Petitioner
moves an Application to the said effect along with Application under
Section 75 of the Act, 1948.
8. In view of such submission made by the learned Counsel for the
Petitioner, the Writ Petition stands disposed of with liberty, as prayed for. It
is observed that if the Petitioner approaches ESI Court within four weeks
hence, with an application for condonation of delay, the ESI Court would do
well to deal with and dispose of such Application for condonation of delay
taking into consideration the period for which the Writ Petition was pending
before this Court in terms of Rule 17 of the Orissa Employees' Insurane
Court Rules, 1951 read with Section 14 of the Limitation Act, 1963 and
proceed with the matter thereafter in accordance with law.
9. Urgent certified copy of this order be granted on proper application
as per rules.
padma (S.K. MISHRA)
Signature Not Verified JUDGE
Digitally Signed
Signed by: PADMA CHARAN DASH
Designation: Personal Assistant
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Nov-2023 09:49:34
