Telangana High Court
M/S Thirumala Cabs Orange Tours And ... vs Employees State Insurance Corporation on 15 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.6824 OF 2024
ORDER:
Heard learned counsel for the petitioner and the
learned standing counsel appearing on behalf of
respondents.
2. The petitioner approached the Court seeking the
prayer as follows:
"to issue an Order, direction or a Writ or more particularly
one in the nature of Writ of Mandamus, declaring that the
impugned order of the 2nd Respondent in TS/MEC/52-52-
029273-001-1006, dated 11.01.2024 is contrary to the
principles of natural justice, Arbitrary, illegal, without
jurisdiction and pass such other order".
3. The case of the petitioner, in brief, as per the
averments made by the petitioner in the affidavit filed by
the petitioner in support of the present writ petition is as
under:
a) The petitioner is dealing with the business in passenger
transport and Cargo and the same was covered under the
Employees State Insurance Scheme by paying the ESI
Corporation regularly. The petitioner suffered heavy losses
during the period of 2020 to 2022
Covid-19 Pandemic, and petitioner could not pay the ESI
contributions. One Sri K.Sai Kumar, Assistant
Director/Authorized Officer, sent a letter No.TS/MEW/52-52-
0292273-001-1006/2620231211 dated 23.03.2023 to the
petitioner regarding nonpayment of contributions for the months
of June 2022 to December 2022 and it is proposed to determine
and recover the amount of contribution payable in respect of the
Employees of the petitioner under Section 45A of the ESI Act on
the basis of average wages of Rs.11,550/- for 4319 employees
total amounting to Rs.1,39,67,646/- and the petitioner was
called upon to appear before the 2nd respondent, either in person
or through an authorized representative on 13.04.2023.
However, on 13.04.2023 one Sri K.Ramu, Authorized Officer took
up the personal hearing, before whom the petitioner's HR
Manager appeared and thereafter the matter was adjourned due
to ill health of the petitioner's representative.
b) Further it is the case of the petitioner that one Sri Amar
Kale, Authorized Officer/Assistant Director - 2nd respondent by
impugned order dated 11.01.2024 under Section 45A of the ESI
Act determined the contribution payable by the petitioner for the
months of June 2022 to September, 2022 and November 2022
to December 2022 amounting to Rs.1,11,57,136/- without
hearing the petitioner.
PERUSED THE RECORD.
4. The grievance of the petitioner is that respondent No.2
issued impugned order dated 11.01.2024 in violation of
principles of natural justice without giving a reasonable
opportunity to the petitioner. Aggrieved by the same, the
petitioner approached the Court by filing the present writ
petition.
5. Learned counsel appearing on behalf of the respondents
submits that, against an order passed under Section 45-AA of
the Employees' State Insurance Act, 1948 within 60 days Appeal
lies to the Appellate Authority, the petitioner has not exhausted
the same and approached the Court by filing the present Writ
Petition.
6. Learned counsel for the petitioner, on the other hand,
submits that in view of the fact that the principles of natural
justice had been violated, the petitioner is entitled to file the
present writ petition.
PERUSED THE RECORD
7. The Division Bench of Apex Court in a judgment
dated 20.04.2021 reported in (2021) 6 SCC 771 in M/s.
Radhakrishnan Industries Vs. State of Himachal Pradesh,
which referred to Whirlpool Corporation Vs. Registrar of
Trade Marks (reported in (1998) 8 SCC 1) and further the
said view had been reiterated by a Full Bench of the Apex
Court (3 Judges) in a judgment reported in (2021) SCC
Online SC page 801 in Magadh Sugar and Energy Limited
Vs. State of Bihar and Others dated 24.09.2021 and in the
said judgment it is observed as under :
28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any
other purpose as well;
(ii) The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where
an effective alternate remedy is available to the
aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise
where (a) the writ petition has been filed for the
enforcement of a fundamental right protected by
Part III of the Constitution; (b) there has been a
violation of the principles of natural justice; (c)
the order or proceedings are wholly without
jurisdiction; or (d) the vires of a legislation is
challenged;
(iv) An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of
the Constitution in an appropriate case though
ordinarily, a writ petition should not be
entertained when an efficacious alternate
remedy is provided by law;
(v) When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing
the right or liability, resort must be had to that
particular statutory remedy before invoking the
discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory
remedies is a rule of policy, convenience and
discretion; and
(vii) In cases where there are disputed questions of
fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the High
Court is objectively of the view that the nature of the
controversy requires the exercise of its writ
jurisdiction, such a view would not readily be
interfered with."
In the present case it is 28(i)(iii) that is attracted.
8. Taking into consideration the aforesaid submissions
of both the learned counsel on record, and duly
considering the law laid down by the Apex Court in
the judgment dated 20.04.2021 reported in (2021) 6 SCC
771 in M/s. Radhakrishnan Industries Vs. State of
Himachal Pradesh, which referred to Whirlpool
Corporation Vs. Registrar of Trade Marks (reported in
(1998) 8 SCC 1), and further the said view being
reiterated by a Full Bench of the Apex Court (Three
Judges) in a judgment reported in (2021) SCC online SC
page 801 in Magadh Sugar and Energy Limited v State of
Bihar and others dated 24.09.2021 (referred to and
extracted above) the writ petition is allowed and the
order impugned, dated 11.01.2024 issued by the 2nd
respondent to the petitioner is set aside duly considering
petitioner's specific plea that petitioner had sent an e-mail
dated 01.11.2023 to the 2nd respondent office stating that
due to ill health, petitioner could not attend the personal
hearing on 27.10.2023 and requested for another
opportunity of personal hearing but however the order
impugned had been passed in violation of principles of
natural justice denying reasonable opportunity due to the
petitioner without considering the said request of the
petitioner vide impugned order dated 11.01.2024 passed
under Section 45-A of the ESI Act and determined the
contribution payable by the petitioner for the period from
June 2022 to September 2022, and November 2022 to
December 2022 amounting to Rs.1,11,57,136 unilaterally,
unreasonably, therefore, the matter is remanded to the
2nd respondent to give a reasonable opportunity to the
petitioner and pass appropriate orders in accordance to
law in conformity with the principles of natural justice,
within a period of four (04) weeks from the date of receipt
of a copy of this order. However, there shall be no order
as to costs.
Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
_____________________________
MRS JUSTICE SUREPALLI NANDA
Date: 15.03.2024
Note : Issue C.C.in two days.
B/o. Dsu
