High Court
Case Details
IN THE HIGH CO H COURT OF ORISSA AT CUTTACK W.P .P.(C) No.41193 of 2023 M/s Upakaran Ho Jajpur and anoth House, Dist. other ..... Petit etitioners Mr. P.K. Mahapatra, A , Advocate -versus- General as Ex The Director Gene Officio Chairman Corporation and an, ESI nd another ..... Opposite P te Parties Mr. A.P. Ray, A , Advocate CORAM: JU JUSTICE SANJAY KUMAR MISHRA ORDER 02.04.2024 This matte de. atter is taken up through hybrid mode. This Writ rit Petition has been preferred challeng nging the Order No. 04. 2. order dated 07. 07.11.2023 passed in a 45-A proceed eeding by the Assistant D t Director (REV.II) on the ground that at due to prolonged illnes ness the Petitioner No.2, who is the Ma Managing Partner of the
Legal Reasoning
the Petitioner No.1-Firm, despite gr granting opportunity to to have its say in terms of order er dated 03.07.2023 pas assed in W.P.(C) No.7792 of 2019, cou could not produce the rec records to substantiate its stand befo efore the Opposite Party No ty No.2. 3. Learned C Counsel for the Petitioners submi mits, the Petitioner No.2 o.2, who is the Managing Partner of the Petitioner No.1 o.1-Firm, though appeared throug ugh his Counsel, could ld not produce the records as desired ed by the E.S.I. Authority ity because of his prolonged illness.
Legal Reasoning
4. Mr. Maha hapatra, learned Counsel for the Peti etitioners further submits its, even though the coordinate Benc nch, vide order dated 03 03.07.2023 passed in W.P.(C) No.7 o.7792 of Page 1 of 4 2019, did not not target the said proceeding, bu but the Authority conc oncerned, despite bringing to his is notice regarding the ai ailment of the Petitioner No.2 and ask asking for time on the said aid ground, proceeded hastily and con oncluded the same with ithout giving opportunity to the Pet Petitioner No.1-Firm to e establish its stand as to its non-co coverage under the Emp mployees’ State Insurance Act, 1948, s , shortly, ‘the Act, 1948’. 5. Though n no Counter has been filed opposing ng to the prayer made i e in the Writ Petition and disputin uting the averments mad ade therein, Mr. Ray, learned Counsel sel for the Corporation, re relying on the judgments of this is Court reported in 81 81 (1996) C.L.T. 152 (M/s. Indian H Hygiene (Food Craft Div Division) and another v. Employees’ es’ State Insurance Co Corporation, Regional Office, O Orissa, Bhubaneswar a r and another), 1997 LAB. I.C. 3273 (Royal Plastics Indus ustries and another v. Employees ees State Insurance Corp orporation and others) so also judgm gment of the apex Court rt reported in (1997) 1 SCC 625 (Empl ployees’ State Insuran rance Corporation v. M/s. F. F. Fibre Bangalore (P) L ) Ltd., submits that law is well settled led that if a party is agg aggrieved by the order passed in a a 45-A proceeding, he he has to challenge the said order eit either by preferring an A n Appeal under Section45-AA befo efore the Appellate Autho thority or before the Employees’ Ins Insurance Court under se section 75 of the Act, 1948, and th this Writ Petition, being g premature and in view of the alte lternative remedy availab lable under Section 75 of the Act, ct, 1948, deserves to be d e dismissed. 6. In respon onse to the submissions made by M Mr. Ray, learned Couns nsel for the Corporation, Mr. Maha hapatra, Page 2 of 4 learned Counse sel for the Petitionerssubmits, the Pet Petitioner No.1-Firm has as rightly approached this Court chall allenging the very initiati iation of 45-A proceeding, as the num umber of employees of th the Petitioner No.1-Firm is less than 1 n 10 and the said estab tablishment cannot be brought und nder the coverage of the he Act, 1948. 7. Mr. Maha hapatra further submits, if the Pet Petitioner No.1-Firm is be being compelled to approach the E.I. .I. Court, it may be requ equired to deposit 50% of the amou ount, as determined by by the Assistant Director (REV.II II) vide impugned order der dated 07.11.2023, which would be be huge. 8. In view o of the submissions made by the l e learned Counsel for the the Parties, since the number of emp mployees engaged by the the Petitioner No.1-Firm so also its co coverage under the Act, 1 t, 1948 is in dispute, this Court is of th f the view that the Part arties are required to lead eviden dence to substantiate th their respective stand as to coverag age/non- coverage of the he Petitioner No.1-Firm under the Act Act, 1948 and the Petition ioner No.1-Firm should have approach ached the E.I. Court unde nder section 75 of the Act, 1948 as p s per the settled position on of law. 9. At this st stage, Mr. Mahapatra, learned Coun unsel for the Petitioners rs wants to withdraw the Writ Petitio ition with liberty to appro roach the E.I. Court under section 75 75 of the Act, 1948 within thin four weeks hence. 10. In view of of such submission made by Mr. Maha hapatra, learned Counse nsel for the Petitioners, the Writ P t Petition stands disposed sed of as withdrawn with liberty, as as prayed for. 11. Needless t s to mention here that as the coverage age of the Petitioner No. No.1-establishment is in dispute ute, the Page 3 of 4 Petitioners may ay also move an application along w with the application und nder section 75 of the Act, 1948 befo efore the Employees’ Insu nsurance Court for waiver or reduction ion of the amount to be d e deposited in terms of proviso unde der sub- section 2-B of of section 75 of the Act, 1948. If su such an application is m s moved, the E.I. Court shall do well ell to deal with the said id application and dispose of the sa same in accordance with ith law. 12. Urgent ce certified copy of this order be gran anted on proper applicati ation as per rules. padma (S. K. Mishra) Judge Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 04-Apr-2024 15:41:34 Page 4 of 4