Telangana High Court
WP/46718/2022 of M/s. Sri Krishna H P Vs The Deputy Director And Another on 30 December 2022
COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTYTWO PRESENT THE HONOURABLE SRI JUSTICE K.LAKSHMAN WRIT PETITION NO: 46718 OF 2022 M/s. SRI KRISHNA H P, SERVICE STATION represented By its Proprietor M.Vishnu
HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD(Special Original Jurisdiction)
FRIDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND TWENTYTWO
PRESENT
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
WRIT PETITION NO: 46718 OF 2022
Between:
M/s. SRI KRISHNA H P, SERVICE STATION represented By its Proprietor M.VishnuVardhan Reddy, S/o. Late lvl.lndrasena Reddy, aged about 52 years, Occ;Business, R/o.H.No.19-1 1 19, Church Road, Miryalaguda, Nalgonda District- 508207.
...PETITIONER
AND
1. The Deputy Director, ESI Corporation, Regional Office, 5-9-23, Hill Fort Road,Adarshnagar, Hyderabad, Telangana-Adarshnagar, Hyderabad, Telangana-
2. Recovery Oofficer, ESI Corporation, Regional Office, 5-9-23, Hill Fort Road,Adarshnagar, Hyderabad, Telangana.Adarshnagar, Hyderabad, Telangana.
...RESPONDENTS
Petition Under Article 226 of the Constitution of lndia praying that in thecircumstances stated in the affidavit filed therewith, the High Court may bepleased to call for the records from the Respondents and issue an appropriateWrit, order or direction, particularly one in the nature of Writ of Mandamus,declaring the Order passed by the 1st respondent vide proceedings No. AP/lNS-ll/52-00- 034370-000-091211564, daled 2910712015 under Section 45-A of theESI Act,1948 and consequently issued show notice issued by the 1st respondentvide Ref. No.AP/lns-ll/52 - 00 - 0343700000912, daled 2910312O16 and noticeissued by the 2nd respondent vide No.52Q/3 4370-0912, daled 06.12.2022received on 15.12.2022 covering the Petitioner Establishment under theProvisions of ESI Act,1948 in spite of not having employed not more than 10employees and demanding a sum of Rs.9,7'1,9841 for the period August - 2010to March- 2011 and April -2011 to 01 - 2016 as lllegal, unjust, contrary to law,without [jurisdiction, ]arbitrary, discriminatory and violation of [principles ]of naturaljustice and in violation of Articles 14,16 and 21 of the Constitution of lndia. andconsequently set aside the same.
l.A.NO:1 OF 2022
Petition Unc t:r Section 1 51 CPC praying that in the clrcumstances statedin the affidavit filed in support of the petition, the High Court may be pleased todirect the Responrl :nts not to take any coercive steps to recover the amount ofRs. Rs.9,71,9841- 'or lhe period Augusl 2010 to March- 2011 and April-201 1 to01-2016 otherwise the petitioner would suffer serious hardships and irreparableloss.
Counsel for the Petitioner: SRI.A.K.JAYAPRAKASH RAO
Counsel for the Re'spondents : SRI.B.G.RAVINOER REDDY
The Court made thr: following ORDER
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HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION No.46718 of 2022
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ORDER:
Heard Sri A.K.Jayaprakash Rao, leamed counselappearing for the petitioner and Sri B.G.Ravinder Reddy, leamedcounsel appearing for the respondents.
2. This Writ Petition is filed to declare that the proceedingsissued by the l't respondent under Section 45-A of the Employees'State Insurance Act dated 29.07.2015 vide proceedings No.AP/INS-lU52-00-034310-000-0912/1564 making demand for the period fromAugust 2010 to March 2011 and April 2011 to 01-2016, as illegal.
3. Petitioner is a Petrol Bunk and it was established ir.r theyear 1956. It has obtained license from the Labour Depafiment videRegistration No.A/l849/90 as per which petitioner herein had engagedonly five (05) employees. Therefore, according to the petitioner,provisions of Employees Insurance Act, 1948 are not applicable to thepetitioner establishment.
4. It is further contended that on22.08.2010, Social SecurityOfficer made inspection and recorded the statement of an employeervho is not having authorization to give the said statement. A notice )
daled 26.11.201t was issued by respondent No.1 to which petitioner
herein had subr:ritted an explanation dated 03.12.2014. As per therequest made by ['espondent ]No. l, petitioner attended personal hearingon 24.02.2015 and informed respondent No.1 that provisions of ESIAct, 1948 are rrot applicable to the petitioner since petitioner isemploying less tl'an 10 employees.
5. Petitioner herein had submitted Xerox copies of all therecords i.e., attendance register, wage register, profit and lossstatement for the year 2010-2011, Balance sheet, etc. Personal hearingwas held on 24.i'2.2015 and petitioner had attended the said enquiryand submitted ril the records. He has again attended enquiry on30.03.2015 and :;ubmitted aforesaid records. Without considering theaforesaid facts, respondent No.1 had passed order under Section 45-Aof the Act dated29.07.2015 ordering an amount of Rs.5 1,048/- fromthe petitioner tonards contributions for the period from 22.08.2010 to31.03.2011. A Show-cause notice dated, 29.032.2016 was issued.Thus, respondent No.t has passed the aforesaid order withoutfollowing due prc,cedure laid down under law and without consideringthe aforesaid fac [. ],;. documents submitted by the petitioner. According \
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to the petitioner, it is not coverable under the provisions of the Act.Therefore, petitioner is not liable to pay the aforesaid amount.6. The aforesaid aspects are factual aspects which this Courtcannot consider in the present Writ Petition filed under Article 226 ofthe Constitution of India. Petitioner herein has to f,rle an applicationunder Section Z5(1Xg) of the Act before the Employees InsuranceCourt raising all the aforesaid grounds and the said Court willconsider and decide the aforesaid facts after conducting full fledgedtrial. Both the petitioner and ESI Corporation will be grantedopportunity to cross-examine the witness and produce its evidence.The Employees Insurance Court will decide all the aspects includingthe order dated 29.07 .201 5 passed by respondent No.1 under Section45-A of the Act. Thus the aforesaid remedy of filing such anapplication under Section 75(1)(9) of the Act before the EmployeesInsurance Court constituted under Section 74 of the Act is not only analtemative remedy but also a efficacious remedy available to thepetitioner herein. Instead of availing the said altemative efficaciousremedy, petitioner herein had filed present Writ Petition. Therefore,this Writ Petition is disposed of, granting liberty to the petitioner toapproach Employees Insurance Court constituted under Section 74 of \
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the Act by way of liling application under Section Z5(f of the Act.)(g)
There shall be no order as to costs.
8. As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
SD/.T.SRINIVASDEPUTY REGISTRARqDSECTION OFFICER
//TRUE COPY//
To
1. The Deputy Dlrector And Another, ESI Corporation, Regional Office, 5-9-23,Hill Fort Roact. Adarshnagar, Hyderabad, Telangana.2. The Recovenr Officer, ESI Corporation, Regional Office, 5-9-23, Hill FortRoad, Adarshrragar, Hyderabad, Telangana.3. One CC to SIiI.A.K.JAYAPRAKASH RAO, Advocate [OPUC]4. One CC to SI--I B.G.RAVINDER REDDY, Advocate [OPUC]5. Two CD Cop r:s6. One spare copy s.ASW
Ga-
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HIGH COURT
DATED:30112!2022
ORDERWP.No.46718 of 2022
DISPOSING OF THE W.PWITHOUT COSTS.
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CC TODAY
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