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Judgment
K. Chandru, J.—The Petitioner has filed the present writ petition seeking to challenge an order, dated 6.12.2004 passed u/s 45-A of the
Employees'' State Insurance Act (for short ESI Act) by the Respondent ESI Corporation. By the said order, the Petitioner was directed to make a
contribution of Rs. 4,39,028/-in respect of the period 1997-98 and 1998-99. The Petitioner being the principal employer was directed to make
good the amounts together with interest. The said order was not challenged in any proceedings u/s 75 of the ESI Act as required under law.
Pursuant to the order passed u/s 45A, the Respondents issued notice proposing to attach the property of the Petitioner and also threatened them
with coercive action to recover the amount.
It is claimed by the Petitioner that subsequent to the order passed by the Respondents, they have paid a sum of Rs. 1,50,000/-by a demand
draft, dated 6.1.2005 and Rs. 2,89,028/-by a further demand draft, dated 28.1.2005, altogether a sum of Rs. 4,39,028/-. Notwithstanding the
said payment, the Petitioner was imposed with the liability of interest.
The case of the Petitioner was that their company had become sick. A reference was made to BIFR. The BIFR is yet to frame a scheme. In
view of the matter being seized by the BIFR and by virtue of Section 22 of the Sick Industries Companies (Special Provisions) Act, no recovery
can be made. It was also stated that by a notification in December, 1996, the salary limit of the employees covered by the Act was increased to
Rs. 6500/-. The said trade union even for an earlier increase of the limit of coverage from Rs. 1600/-to Rs. 3000/-filed a writ petition being W.P.
No. 6370 of 1992 and obtained a stay. Subsequently, in the year 1997, they filed W.P. No. 839 of 1997 and obtained an interim injunction
against increase the limit upto Rs. 6500/-. However, the union withdrew the writ petition on 28.9.1999. Because of the interim order obtained by
the trade union, they could not pay even their own contribution. After the dismissal of the writ petition, the department started demanding the entire
amount of contribution together with interest.
The said Trade union also filed W.P. No. 15901 of 2000 directing the management not to recover the amounts and that writ petition was also
dismissed. But, in the writ petition filed by the Petitioner in W.P. No. 16486 of 2000, by an order dated 27.9.2000, this Court held that
determination u/s 45-A was not proper. Hence it was set aside with liberty to proceed afresh. Thereafter, the department gave a notice, dated
19.7.2003 demanding payment of a sum of Rs. 4,39,028/-together with interest. Even after the management filed a reply and pointed out that
because of sickness they should be allowed to pay it in installments, the Respondents did not agree for the same. Hence the entire amount was
paid in two installments as noted above. Notwithstanding the same, the Respondents directed the management to pay interest and issued the
impugned notice.
The writ petition was admitted on 16.2.2005. Pending the writ petition, this Court granted an interim stay which was made absolute on
15.3.2005. On notice from this Court, the Respondents filed a counter affidavit, dated 17.8.2006. In the counter affidavit, it was claimed that an
order made u/s 45-A unless was challenged by way of proceedings u/s 75, it will become final and the authorities are at liberty to execute the
order. Further, u/s 39(5) of the ESI Act, for belated payments, interest is mandatory and there cannot be any negotiations on the same. Merely
because the trade union had filed the writ petition, that will not absolve the management to pay the statutory dues. Ultimately, there is no order of
the court waiving interest component on such payment. Reliance placed upon Section 22 is misconceived.
Insofar as the immunity claimed u/s 22 of the SICA Act is concerned, the issue is no longer res integra. A Full Bench of this Court in Gowri
Spinning Mills (Private) Ltd., (rep. by Managing Director), Dharmapurai v. Assistant Provident Fund Commissioner, Salem and Anr. reported in
2006 (4) LLN 441 has held that the pendency of BIFR proceedings cannot prevent the ESI authorities from enforcing the provisions of the Act.
With reference to challenge u/s 45-A, the Supreme Court vide its judgment in E.S.I.C. Vs. C.C. Santhakumar, held that the only remedy open
to the aggrieved person is to approach the appropriate ESI Court with a petition filed u/s 75 of the ESI Act. The following passages found in
paragraphs 17, 25, 28, 30 and 31 may be usefully extracted below:
Prior to the incorporation of Section 45-A under Act 44 of 1966, the only resort available to the Corporation was Section 75, for recovery of
contribution through the court. Since this procedure was found to be impracticable and delayed process involved, a special provision was
contemplated where under adjudication is to be made by the Corporation itself. By reason of incorporation of Section 45-A with effect from 17-
6-1967, it became possible for the Corporation to have determination of the question, binding on the principal employer, without resorting to the
ESI Court. In regard to the order u/s 45-A, the same is enforced, as envisaged u/s 45-B, which was similarly brought into the Act, by which the
contribution may be recovered as arrears of land revenue. With regard to the decision reached by the ESI Court in the application u/s 75, the said
decision is enforced, as envisaged in Sub-section (4) of Section 75 as if it is a civil court. The mode of recovery u/s 45-B of the Corporation and
the mode of recovery as per Section 75(4) by the ESI Court as the civil court are entirely different as both Sections 45 and 75 operate in different
spheres.
Section 45-A of the Act contemplates a summary method to determine contribution in case of deliberate default on the part of the employer.
By Amendment Act 29 of 1989, Sections 45-C to 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by
attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law
or the ESI Court. Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to
either a suit, appeal or application in the court. u/s 68(2) and Sections 45-C to 45-I, after determination of contribution, recovery can be made
straightaway. If the employer disputes the correctness of the order u/s 45-A, he could challenge the same u/s 75 of the Act before the ESI Court.
What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI
Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the
Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no
dispute in the determination either u/s 45-A(1) or u/s 68, the Corporation can straightaway go for recovery of the arrears.
The legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is
based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the
employer or not, on the available records, the Corporation could determine the arrears. So, the non-availability of the records after five years, as
per the Regulations, would not debar the Corporation to determine the amount of arrears. Therefore, if the provisions of Section 45-A are read
with Section 45-B of the Act, then, the determination made by the Corporation is concerned. It may not be final so far as the employer is
concerned, if he chooses to challenge it by filing an application u/s 75 of the Act. If the employer fails to challenge the said determination u/s 75 of
the Act before the Court, then the determination u/s 45-A becomes final against the employer as well. As such, there is no hurdle for recovery of
the amount determined u/s 45-B of the Act, by invoking the mode of recovery, as contemplated in Sections 45-C to 45-I.
In ESI Corpn. v. F. Fibre Bangalore (P) Ltd.2 it was observed that it is not necessary for the Corporation to seek a resolution of the dispute
before the ESI Court, while the order was passed u/s 45-A. Such a claim is recoverable as arrears of land revenue. If the employer disputes the
claim, it is for him to move the ESI Court for relief. In other cases, other than cases where determination of the amount of contributions u/s 45-A is
made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the ESI Court, before
enforcing recovery.
On the question of interest, it must be noted that the Supreme Court has held that on the matter of interest, there cannot be any private
negotiations and the interest is an automatic liability on the employer if there were delayed payments. The Supreme Court in Goetze (India) Limited
Vs. Employees State Insurance Corporation, had observed as follows:
As there was delay in making the payment of the contribution the Corporation had issued notice on 29.6.1990 at the first instance and thereafter
the order was passed u/s 45-A of the Act on 23.7.1992. The same was challenged before the ESI Court in which an interim stay was granted on
9.10.1992. During the pendency of the matter there was reverification and the quantum payable by the Appellant was worked out. The liability to
pay interest is statutory. There is no power of waiver. The question of any compromise or settlement does not really arise. Even otherwise the
order of the ESI Court referred to and relied upon by the Appellant is of no assistance to the Appellant. It only noted statement of the Appellant
that he had deposited the contribution payable. The reference to ""no further dues"" is obviously relatable to the contribution payable and nothing
beyond that.
The counsel for the Petitioner strongly relied upon a judgment of the Supreme Court in Consolidated Coffee Ltd. v. Agricultural Income Tax
Officer, Madikeri and Ors. reported in 2001 (1) SCC 278 for the purpose of contending that when a stay is in operation, recovery of tax cannot
be effected, since an order of stay had placed the demand for tax in abeyance. Therefore, during the period of stay, an Assessee cannot be said to
be in default and could not be subjected to penalty u/s 42 of the Karnataka Agricultural Income Tax Act. A reading of Section 42 of the Act will
show that it is not similar to Section 39(5) of the ESI Act. Further, as for the ESI Act, the Supreme Court had decided the matter in Goetze (India)
Limited case (cited supra).
Insofar as the ESI Act is concerned, payment of interest is a must on delayed payment whereas levy of damages is in the nature of penalty.
Therefore, any waiver or modification of damages u/s 85-B may be possible but not for interest levied in terms of Section 39(5) of the ESI Act.
The other decisions cited in Yeshaswi Cashew v. State of Karnataka and Ors. reported in 2001 (124) STC 465 is a judgment of a division
bench of the Karnataka High Court, wherein Consolidated Coffee Ltd. case of the Supreme Court (cited supra) was followed. On the contrary,
the reasoning given by the Supreme Court in Hazi Lal Mohd. Biri Works v. The State of U.P. and Ors. reported in 1973 (32) STC 496 will
squarely apply to the case on hand. The relevant paragraph may be usefully extracted below:
Argument has also been advanced by Mr. Sen that the interest on arrears of sales tax could not be realized for the period during which the
recovery of sales tax was stayed. We find it difficult to accede to this contention because there is nothing in the language of Section 8(1-A) of the
Act which prevents the running of interest because of the operation of any stay order. Indeed, the liability to pay interest is created by the statute
and the Sales Tax Officer has no discretion to grant any exemption from the payment of interest.
In view of the above, the writ petition is thoroughly misconceived. Accordingly, the writ petition will stand dismissed. No costs.
If there is any other liability imposed on the Petitioner for which the Petitioner wants to challenge the claim made by the Respondent ESI
Corporation, it is always open to them to file an appropriate application u/s 75 of the ESI Act and seek an appropriate remedy. Consequently,
connected miscellaneous petition stands closed.