M/s. Tarawade Transport Pvt. Ltd., E-42, MIDC, Chikalathana, Aurangabad v. The Employees State Insurance Corporation

Rule. Rule made returnable forthwith. Heard by consent. By way of present petition, the petitioner challenges the order dated 9th September 2009, passed by the learned Judge of the ESI Court & Member, Industrial Court, Aurangabad, below Exhibit 2 in Application ESI No. 6 of 2008, thereby rejecting the application filed by the present petitioner for waiver to deposit fifty percent of the amount which is pre-condition under Section 75(2)(b) of the Employees' State Insurance Act, 1948 (For short, "the ESI Act").

The petitioner is a Company engaged in transport business. The respondent Corporation had claimed an amount of Rs. 3,94,841/- from the petitioner for the period from 1990 to 1994. The liability was denied by the petitioner. However, the recovery certificate was issued on 1st April 2008 for an amount of Rs. 3,94,841/- towards contribution and Rs. 2,67,021/- towards interest. Since the petitioner did not pay the amount, the amount was recovered from the principal employer of the petitioner i.e. Bajaj Auto Limited, on 11th June 2008. Subsequently, another notice was issued on 21st August 2008, demanding an amount of Rs. 3,94,841/- towards damages. The petitioner, therefore, filed an application under Section 75 of the ESI Act, challenging the claim of (3) damages, so also, the amount which was already recovered from the petitioner, principal employer, towards arrears of contribution and interest.

Along with the said application, the petitioner also filed an appliction for waiver to deposit fifty percent of the amount, since according to the petitioner, more than fifty percent of the amount, which was subject matter of challenge in the said case, was already recovered. The said application is rejected. Hence, the present petition.

Mr. S.S. Vidwauns, learned Counsel appearing for the petitioner, relies on the judgment of Division Bench of Rajasthan High Court, in the case of M/s. Hindusthan Zinc Ltd. and Employees State Insurance Corporation and others (2005(105) FLR 270). He submits that since fifty percent of the amount is already recovered, the condition of pre-deposit was required to be waived.

Mr. V.D. Sonawane, learned Counsel appearing for the respondents, opposes the petition. He submits that as the petitioner had not suo motu deposited the amount, notice was required to be issued to the petitioner's employer. He, therefore, submits that the petition deserves to be rejected.

From the perusal of the application filed by the present petitioner i.e. ESIC Application No. 6/2008, it would reveal that the petitioner has challenged the entire amount of Rs. 6,61,182/- along with Rs. 3,94,841/- i.e. totaling Rs. 10,56,023/-. It is also not in dispute that (4) the amount of Rs. 6,61,182/- has already been deducted by the respondent Corporation from the principal employer of the petitioner. It is thus clear that more than 60 % of the amount, claimed in the application, already stands recovered by the respondent Corporation. I, therefore, find that the reliance placed by the learned Counsel appearing for the petitioner, on the judgment of Division Bench of Rajasthan High Court, in the case cited supra, is well placed.

Since the respondent is already having almost 60 % of the amount of the disputed figure, before the learned ESI Court, I find that in the facts of the present case, the petitioner was entitled for waiver of the condition of deposit of 50 % of the amount.

Rule is made absolute in the aforesaid terms. There shall be no order as to costs. ( B.R. GAVAI ) JUDGE ......................... bgp/7288wp