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Judgment
V. Kanagaraj, J.—The petitioner has filed this writ petition praying to issue a writ of certiorari or to call the records in C.M.P. No. 203 of
1991 in E.S.I.O.P. SR. No. 55890 of 1990 on the file of the I Additional City Civil Court, Madras, and to quash the impugned order dated July
30, 1992. In the affidavit filed in support of the writ petition, the petitioner would contend that the second respondent herein had initiated
proceeding u/s 45-A of the E.S.I. Act, 1948, by notice No. TN/INS/IV/8868-1II dated December 27, 1985 calling upon the petitioner to pay
Rs. 35,746.99 towards E.S.I, contribution for the year 1977 and upto November, 1978 in respect of various items referred to in the said notice;
that during the said period, the petitioner was not the owner and he was not in the management of the said hotel, but it was carried on by Hotel
Gokula by its then Directors, Mr. N. Boralingaiah and others; that the petitioner herein had purchased the assets of the said hotel by virtue of the
orders passed by the Supreme Court of India in SLP No. 10113 of 1982 dated December 7, 1982 and the orders of the Madras High Court
made in Application Nos. 2378, 2379, 2471 and 2472 of 1984 in C.S. No. 151 of 1978 dated July 16, 1984.
The further contention of the petitioner company is that the receiver appointed by the High Court delivered possession of the hotel building and
its assets to the petitioner on July 31, 1984. But they were not delivered with the account books and records of the previous management of the
hotel and hence the petitioner was not in a position to admit the claim made in the said notice dated January 3, 1986 of the second respondent, nor
had the petitioner been in a position to produce the account books and, therefore, by letter dated January 27, 1986, he requested certain
particulars from the second respondent, but the second respondent without any intimation, decided the matter as per the order passed on June 25,
1991 u/s 45-A of the E.S.I. Act (hereinafter referred to as the ''Act'') calling upon the petitioner to pay the contribution of Rs. 35,746.99.
The further case of the petitioner is that on the said orders passed by the second respondent, the petitioner filed ESIOP before the first
respondent challenging the said order of the second respondent along with C.M.P. No. 203 of 1991 u/s 75(2-B) of the Act seeking waiver of the
deposit of 50 percent of the contribution amount contemplated therein; that after hearing, the first respondent passed the impugned order dated
July 30, 1992 dismissing the C.M.P. No. 203 of 1991 with costs and this order since bears errors apparent on the face of the records and is liable
to be quashed, the petitioner has come forward to file this writ petition on certain ground as set out in the grounds of writ petition.
In the counter filed on the part of the respondents, it would be contended that the petitioner hotel failed to comply with the provisions of the Act
in spite of several and repeated requests made by the Corporation and hence the Corporation was constrained to send a show cause notice dated
April 30, 1986, seeking explanation and with an opportunity for personal hearing on May 29, 1986; that the petitioner neither submitted the
explanation, nor attended the personal enquiry. Hence, the enquiry was again fixed on September 5, 1989 informing the same to the petitioner and
even on that day, the petitioner''s representative requested only for an adjournment from time to time on January 8, 1989, March 9, 1989, March
20, 1989, April 23, 1989, November 10, 1989 and finally on May 2, 1991 and it came to be known that the petitioner was only dodging/adopting
dilatory tactics with intend to protract the proceedings; that in the said circumstances, order u/s 45-A was passed on June 25, 1991 with the
available information; that the petitioner''s contention that he was not liable to pay the statutory dues for the period from September, 1977 to
November, 1978 since he was not the owner of the petitioner hotel at that time is unacceptable in view of the provisions u/s 93-A which provides
for such contingencies.
The further contention of the counter affidavit is that the order challenged in the writ petition is not the order passed in the main writ petition; that
the impugned order passed in the C.M.P. requesting to waive the deposit which is a pre-condition to accept the petition on the file that Clause 2-B
u/s 75 states that unless 50 per cent of the amount due on the impugned order is deposited, no dispute could be raised before the E.I. Court; that
the very dismissal of the C.M.P. indicates that the petitioner did not have sufficient or valid reasons warranting waiver of the deposit; that the
petitioner also did not avail the appeal remedy provided u/s 82 of the E. S. I. Act; that absolutely there is no error apparent on the face of ""the
records so as to vitiate the order and on this ground alone, the writ petition deserves to be dismissed in limini. With the above averments, the
respondent would pray for dismissing the writ petition as not maintainable.
In consideration of the facts and circumstances encircling the whole of the writ petition and having regard to the materials placed on record
especially the impugned order and upon hearing the learned counsel for the second respondent, what is gathered is that pending disposal of the
main petition before the E.I. Court in E.S.I.O.P. SR. No. 55890 of 1991 (Ex. A) requesting for waiver of deposit of the 50 per cent amount due
on the impugned order, or an interim application had been filed in C.M.P. No. 203 of 1991 and the same: having come to be dismissed on July 30,
1992, the petitioner even without filing a regular appeal in spite of there having been a statutory appeal provision as per law, has come forward to
seek the relief under the extraordinary jurisdiction of this Court conferred by Article 226 of the Constitution of India.
So far as the impugned order passed by the E.I. Court is concerned, the relief has been sought/or by the petitioner u/s 75(2-B) of the E.S.I. Act
and to appreciate the section, I extract the same hereunder:
No matter which is in dispute between a principal employer and the Corporation shall be raised by the principal employer unless he has deposited
with the Court 50 per cent of the amount due from him as claimed by the Corporation. Provided that the Court may, for reasons to be recorded in
writing, waive or reduce the amount to be deposited under this sub-section.
So far as the wording and language of the section is concerned, deposit of 50 per cent of the amount due from the principal employer as claimed
by the Corporation is mandatory whatever be the dispute between the principal employer and the Corporation that is raised. In short, without the
deposit of 50 per cent amount due from the principal employer, no matter shall be raised. This part of the section is not only mandatory, but also
negative in disallowing rather prohibiting the employer from raising any dispute between himself and the Corporation, without making the deposit of
50 per cent of the amount due from him as claimed by the Corporation. Hence, it could be said that without the 50 per cent of the payment
effected, no dispute could be raised by the, employer thus making the 50 per cent deposit a pre-condition for raising any dispute on the part of the
employer between himself and the Corporation.
The second part of the section is a proviso and would give power to the Court either to waive or to reduce the said 50 per cent deposit to be
made from the amount due from the principal employer and the Court in such event, waives or reduces the amount to be deposited, shall record
the reasons in writing. Therefore, the scope for allowing such applications u/s 75(2-B) in either waiving or reducing the amount deposited in the
Court is very much limited and narrow and unless a very strong case is made out, normally, the Courts would not allow such a plea put forth on the
part of the principal employer for waiver or reduction of the amount to be deposited from out of the 50 per cent of the amount due from the
employer to the Corporation.
While the legal position is such that, the E.I. Court discussing the facts and circumstances in an elaborate manner and applying the norms of law
as found in the section and without agreeing with the argument put forth on the part of the petitioner that only the previous owner who was
managing the hotel during the year 1977-78 is liable to pay the amount due in view of Section 93 and insisting the present owner that he is jointly
and severally liable to pay the amount due in respect of the contribution would ultimately end up dismissing the very petition filed by the petitioner
as seen from the impugned order dated July 30, 1992.
If the entire case and the totality of the circumstances are considered in the context of the position of the relief sought for on the part of the
petitioner either to waiver or to reduce the 50 per cent deposit of the amount due from the petitioner to the Corporation, cannot be complied with
since the only reason attributed on the part of the petitioner that it was the previous owner Who was running the hotel at the relevant time, having
come to be disagreed with and dismissed in view of Section 93 of the Employees'' State Insurance Act, 1948. There is absolutely nothing wrong in
dismissing the petition filed by the petitioner herein before the E.I. Court as per the impugned order which is the only order that could be passed in
the context and circumstances of the case.
In the above circumstances, I am unable to see any reason to interfere with the impugned order passed by the E.I. Court. While exercising the
extraordinary justification under Article 226 of the Constitution of India, I am unable to see any serious infirmity or inconsistency or patent errors of
law or perversity in approach insofar as passing of the impunged order by the first respondent is concerned.
In result, the writ petition fails and the same is dismissed.
Consequently, connected W.M.P. is dismissed. No costs.