Page No.# 1/19

GAHC010126182014

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/4139/2014

HOTEL RADHA INTERNATIONAL

A PARTNERSHIP FIRM INCORPORATED UNDER THE PROVISIONS OF THE

PARTNERSHIPS ACT, 1932 AND HAVING ITS PRINCIPAL PLACE OF

BUSINESS AT 54, CENTRAL ROAD, AGARTALA TRIPURA, WEST PIN- 799001

IN THE STATE OF TRIPURA AND REP. BY SRI PANKAJ BEHARI SAHA, ONE

OF THE PARTNERS OF THE PETITIONER COMPANY AND RESIDENT

UDAIPUR, BADAR ROAD, P.O. R.K. PUR, DIST. GOMTI, TRIPURA, -799120.

VERSUS

EMPLOYEE STATE INSURANCE ESI CORPORATION and 5 ORS

NORTH EAST REGION, GUWAHATI.

2:LABOUR COMMISSIONER

GOVT. OF TRIPURA.

3:THE REGIONAL DIRECTOR

ESI CORPORATION

NE REGION

GUWAHATI.

4:THE ASSISTANT DIRECTOR

REGIONAL OFFICE ESI CORPORATION NE REGION

GUWAHATI-21.

5:THE ASSISTANT DIRECTOR INSURANCE

REGIONAL OFFICE-TRIPURA

ESI CORPORATION.

6:RECOVERY OFFICER Page No.# 1/19

GAHC010126182014

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/4139/2014

HOTEL RADHA INTERNATIONAL

A PARTNERSHIP FIRM INCORPORATED UNDER THE PROVISIONS OF THE

PARTNERSHIPS ACT, 1932 AND HAVING ITS PRINCIPAL PLACE OF

BUSINESS AT 54, CENTRAL ROAD, AGARTALA TRIPURA, WEST PIN- 799001

IN THE STATE OF TRIPURA AND REP. BY SRI PANKAJ BEHARI SAHA, ONE

OF THE PARTNERS OF THE PETITIONER COMPANY AND RESIDENT

UDAIPUR, BADAR ROAD, P.O. R.K. PUR, DIST. GOMTI, TRIPURA, -799120.

VERSUS

EMPLOYEE STATE INSURANCE ESI CORPORATION and 5 ORS

NORTH EAST REGION, GUWAHATI.

2:LABOUR COMMISSIONER

GOVT. OF TRIPURA.

3:THE REGIONAL DIRECTOR

ESI CORPORATION

NE REGION

GUWAHATI.

4:THE ASSISTANT DIRECTOR

REGIONAL OFFICE ESI CORPORATION NE REGION

GUWAHATI-21.

5:THE ASSISTANT DIRECTOR INSURANCE

REGIONAL OFFICE-TRIPURA

ESI CORPORATION.

6:RECOVERY OFFICER

Page No.# 2/19

ESI CORPORATION

BAMUNIMAIDAN

GUWAHATI- 781021

Advocate for the Petitioner : MR.P BARUAH, MR.A GOYAL,MR.K CHOUDHURY,DR.ASHOK

SARAF,MR.Z ISLAM

Advocate for the Respondent : MR.K K NANDI, SC, E S I,,,

Linked Case : WP(C)/5903/2014

HOTEL RADHA INTERNATIONAL

A PARTNERSHIP FIRM INCORPORATED UNDER THE PROVISIONS OF THE

PARTNERSHIPS ACT

1932 AND HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 54

CENTRAL ROAD

AGARTALA

TRIPURA WEST PIN-799001

STATE - TRIPURA

AND REP. BY SRI PANKAJ BEHARI SAHA

ONE OF THE PARTNERS OF THE PETITIONER COMPANY AND R/O UDAIPUR

BADAR ROAD

P.O. R.K. PUR

DIST- GOMTI

TRIPURA-799120

VERSUS

EMPLOYEE STATE INSURANCE ESI CORPORATION and 5 ORS

NORTH EAST REGION

GUWAHATI

2:LABOUR COMMISSIONER

GOVT. OF TRIPURA

3:THE REGIONAL DIRECTOR

ESI CORPORATION

NE REGION

GUWAHATI

Page No.# 3/19

4:THE ASSTT. DIRECTOR

REGIONAL OFFICE

ESI CORPORATION

NE REGION

GHY-21

5:THE ASSTT. DIRECTOR INSURANCE

REGIONAL OFFICE- TRIPURA

ESI CORPORATION

6:RECOVERY OFFICER

ESI CORPORATION

BAMUNIMAIDAN

GHY-21

------------

Advocate for : MR.Z ISLAM

Advocate for : SC

ESIC appearing for EMPLOYEE STATE INSURANCE ESI CORPORATION and 5

ORS

Linked Case : WP(C)/4140/2014

GEMIMI DISTRILLERIES TRIPURA PVT LTD.

A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE PROVISIONS

OF THE COMAPNIES ACT

1956 AND HAVING ITS PRINCIPAL PLACE OF BUSINESS AT INDUSTRIAL

GROWTH CENTRE

BUDHJANGNAGAR

P.O. R.K. NAGAR

KHEYERPUR

AGARTALA-8

WEST TRIPURA IN THE STATE OF TRIPURA AND REP. BY SRI PANKAJ

BEHARI SAHA

ONE OF THE DIRECTORS OF THE PETITIONER COMPANY AND RESIDENT

UDAIPUR

BADARPUR ROAD

P.O. R.K. PUR

DIST. GOMTI

TRIPURA- 799120.

VERSUS

EMPLOYEE STATE INSURANCE ESI CORPORATION and 5 ORS

NORTH EAST REGION

Page No.# 4/19

GUWAHATI.

2:THE COMMISSIONER

GOVT. OF TRIPURA

3:THE REGIONAL DIRECTOR

ESI CORPORATION

NE REGION

GUWAHATI.

4:THE ASSISTANT DIRECTOR

REGIONAL OFFICE ESI CORPORATION

NE REGION

GUWAHATI-21.

5:THE ASSISTANT DIRECTOR

INSURANCE REGIONAL OFFICE- TRIPURA

ESI CORPORATION.

6:RECOVERY OFFICER

ESI CORPORATION

BAMUNIMAIDAN

GUWAHATI- 781021.

------------

Advocate for : MR.A GOYAL

Advocate for : MR.K K NANDI appearing for EMPLOYEE STATE INSURANCE ESI

CORPORATION and 5 ORS

BEFORE

HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

For the Petitioner : Mr. K. Choudhury, Advocate.

For the Respondents : Mr. M. Smith, Advocate

Date of Hearing : 15.07.2024, 22.07.2024,

Date of Judgment : 22.08.2024

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JUDGMENT & ORDER (CAV)

1. Heard Mr. K. Choudhury, learned counsel for the petitioners. Also heard Mr. M.

Smith, learned counsel for the respondent Nos. 1 and 3 to 6.

2. These three writ petitions are taken up together for final disposal as they

involve similar issues and cause of action.

3. By way of these batch of writ petitions, the action of authorities under

Employee State Insurance Act, 1948 (hereinafter referred to as Act, 1948) has

been challenged.

4. The facts and sequence of events which is gathered from the pleadings of the

parties, necessary for determination of the writ petitions are recorded herein

below:

A. WP(C) No. 4139/2014 :

I. According to the respondents, they carried out an inspection in

the premises of the petitioner on 20.12.2008 in exercise of their power

under the Act, 1948. On 01.01.2009, a notification under Sub Section 3

of Section of the Act, 1948 was issued notifying 1

st

January, 2009 as

the appointed date on which the provision of Chapter-IV (except

Section 44 and 45 of the Act, 1948 which was already brought into

force) and Chapter-V and VI (except Sub Section 1 of Section 76 and

Sections 77,78,79 and 81, which have already been brought into force),

was notified to be applicable in the areas in the State of Agartala

which falls with in the Revenue Village- Agartala, Jogandranagar,

Khayrpur Mdhuban Village, Lankamura, Barjala, Kunjaban, Badharghat

Revenue Village in Agartala.

II. On 16.03.2010, a notification was issued by the Labour

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Department, Government of Tripura in exercise of power under Sub

Section 5 of Section 1 of the Act, 1948 whereby 15.03.2010 has been

declared as the appointed date on which all the provisions of the ESI

Act, was extended to various establishments as enumerated and

specified in Schedule-I of the said notification, which included hotels or

restaurants wherein 20 or more persons were employed at any of the

preceding 10 months from the date of notification.

III. On 20.07.2011, another notification under Sub Section 5 of Section

1 of the Act, 1948 was issued appointing 07.07.2011 as the date on

which all the provisions of the ESI Act was extended to various

establishments which also included hotels and restaurants wherein 10

or more persons are employed or were employed, on a day preceding

12 months of such effective date.

IV. On 01.10.2012, a show cause notice was issued to the petitioner

demanding payment of contribution under ESI Act, 1948 for the period

with effect from January 2009 to August, 2012. In the aforesaid show

cause notice, it was reflected that the total numbers of employee are

11, against whom the contributions were asked from the petitioner.

V. Though in the affidavit, a stand has been taken that inspection

was carried out on 20.12.2008, however, in the show cause notice

dated 01.10.2012, no date of visit was reflected and it was kept blank.

VI. Thereafter, on 12.11.2013, Regional Office, ESI, Tripura, issued a

letter to the Recovery Officer, ESI, Bamunimaidan, Guwahati to recover

an amount of Rs. 3,08,439/- (Rupees Three Lakh Eight Thousand Four

Hundred Thirty None Only).

VII. In the meantime, on 11.12.2013, another show cause notice was

issued for period from September, 2012 to September, 2013.

VIII. Pursuant to a communication dated 12.11.2013, the

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Recovery Officer, Bamunimaidan, Guwahati passed a Prohibitory Order

on 11.12.2013 asking the Branch Managers of HDFC Bank, Agartala

Branch and Axis Bank, Agartala Branch wherein the petitioner was

maintaining its account.

IX. The petitioner also received a communication dated 20.12.2013

issued by the Chief Manager of the UCO Bank communicating the

petitioner that they have received a Prohibitory Order from the ESI to

recover an amount of Rs. 3,10,602/- and they have marked lien in the

account of the petitioner.

X. Thereafter, the petitioner filed an reply to the show cause notice

dated 23.11.2013 inter alia taking a stand that the petitioner were not

aware of the fact that they are covered under the ESI Act, 1948 and

they are required to be registered. They also took a stand that the total

number of employee were less than 10

XI. On 31.12.2013, a meeting was held in the chamber of Labour

Commissioner, wherein 15 numbers of different establishments

including the petitioner were present. The representative of different

establishments raised their ignorance as regards ESI facilities. After

consultation, it was suggested by the competent authorities of ESI

establishments to apply to the Regional Director of Guwahati for

exemption with a copy to the Labour Commissioner of Labour

Directorate of Government of Tripura so that the issues may be

resolved and accordingly, the owners of the establishments agreed to

pay the subscription of December to regularize their registration by 15

th

of January, 2014.

XII. Accordingly, the petitioner has also agreed to pay their subscription

for the month of December, with a hope that his previous dues will be

exempted and they will be allowed to use their bank accounts so as to

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run their business smoothly.

XIII. An application before the Regional Director i.e. respondent

No. 3 was filed on 01.02.2014. Thereafter, the Regional Director, asked

the Branch Manager of the Bank by its communication dated

14.02.2024 to release the dues to the ESI Corporation.

XIV. According to the petitioner, having no alternative, they were

compelled to make payment of all the demanded dues and after

payments of the dues, the Prohibitory Orders were revoked. Prior to

that, the writ petition was filed on 14.08.2014 raising their grievance.

B. WP(C) No.5903/2014 :

I. On 12.11.2013, an order of recovery was passed by the Assistant

Director, asking the Recovery Officer to recover an amount of Rs.

3,08,439/- payable under ESI contribution for the period from January,

2009 to August, 2013.

II. On 11.12.2013, the Recovery Officer passed a Prohibitory Order to

the Branch Manager of HDFC Bank, Agartala Branch, UCO Bank,

Agartala Branch and Axis Bank, Agartala Branch.

III. On 20.12.2013, the petitioner filed a reply to the show cause

notice dated 23.11.2013 taking a similar stand that they were not

aware about the fact that they are covered under ESI Corporation and

that they are required to be registered. It was also a stand like the

other case that total numbers of employees were less than 10 and they

have no hotel facilities.

IV. In this case also, on 22.12.2013, the Chief Manager, UCO Bank

communicated the petitioner as regards receiving prohibitory order to

recover the amount.

V. Pursuant to meeting dated 31.12.2013, on 01.02.2014, the

petitioner informed the Regional Director that they had made their

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contribution and prayed for exemption from the earlier dues.

VI. Thereafter, on 14.02.2014, the Regional Director asked the Branch

Manager, HDFC Bank and UCO Bank to pay the dues to the ESI

Corporation with a further enquiry as regards any other accounts that

are being maintained by the petitioner in their banks.

VII. According to the petitioner, in view of the aforesaid, the

petitioner paid the amount on 05.03.2014 under compulsion and

accordingly, the prohibitory order was revoked.

VIII. Thereafter, a show cause notice dated 15.05.2014 was issued

asking them as to why damages to the tune of Rs. 1,77,535/- not be

imposed and recovered from them for the period w.e.f. January, 2009

to August, 2012 for the reason of the default of the petitioner’s

company in making the payment of ESI contribution.

IX. Accordingly, on 27.10.2014, petitioner appeared before the

Regional Director and explained that the writ petition is still pending

before this Court and it would be appropriate to wait till the case is

disposed of.

X. Thereafter, on 20.03.2015, a notice was issued under Section 85B

of the Act, 1948 by the Assistant Director asking the Recovery Officer to

recover an amount of Rs. 1,77,535/- which was assessed to be delayed

payment of contribution.

XI. On 24.03.2015, a notice of demand treating the petitioner to be

defaulter directing it to pay an amount of Rs. 1,77,535/- within 15

(fifteen) days of the receipt of the notice was issued.

C. WP(C) No.4140/2014:-

I. The events which are different from the WP(C) No. 4139/2014

are the following:-

II. Inspection was carried on 22.12.2012.

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III. First show cause notice was issued on 22.07.2013 alleging that the

petitioner had failed to pay contribution to ESI since April, 2012 to May,

2013.

IV. On 19.11.2013, the Assistant Director (Insurance) Regional Office-

Tripura, passed an order confirming that the petitioner is liable to pay

ESI contribution for the period April, 2012 to May, 2013.

V. This petitioner was also part of the meeting held on 31.12.2013 as

recorded hereinabove.

VI. The contributions were made by this petitioner also and it was

intimated to the Regional Director by communication dated 31.01.2014.

VII. The Assistant Director issued an order of recovery asking the

Recovery Officer to recover the amount due to the tune of Rs.

12,92,865/- as an arrears by an order dated 07.04.2014.

VIII. The Recovery Officer passed notice of demand to the petitioner

demanding the rest of amount on 22.04.2014.

5. The learned counsel for the respondent has raised two preliminary objections

as to the maintainability of the present writ petition, firstly; on the ground that

the writ petitions are hit by Article 226(2) of the Constitution of India and

secondly; for the reason of the petitioners having efficacious alternative remedy

of appeal under Section 82 of the Act, 1948 against the action/order impugned in

the present writ petitions.

6. Therefore, let this Court first deal with the preliminary objections raised by the

learned counsel for the respondents:

A. Article 226 (2) of the Constitution of India:-

I. According to the learned counsel for the respondents, the

cause of action for filing the present writ petitions arose in the State

of Tripura. The show cause notices as well as order passed under

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Section 45A of the Act, 1948 which are under challenge in these

present proceedings were issued at the Regional Office of the

respondents at Tripura, the industries are situated at Tripura and

therefore, according to the learned counsel for the respondents, the

High Court of Tripura or the Employees Insurance Court at Tripura

are the appropriate forum to adjudicate the issues raised by the

petitioner in the writ petitions, in view of the mandate of Article

226(2) of the Constitution of India. In this context, the learned

counsel for the respondents places reliance on the decision of the

Hon’ble Apex Court in Alchemist Ltd and Another –Vs- State

Bank of Sikkim and Others reported in 2007 11 SCC 335. Para-

19, 20,21,22,37 and 38.

B. Availability of alternative remedy.

I. The learned counsel for the respondents further argues

that the challenge made in these batch of writ petitions are, show

cause notices issued on different dates asking to pay the contribution

and orders passed under Section 45A of the Act, 1948 and therefore,

the appropriate forum to determine the dispute is an ESI Court

under the Act, 1948.

II. The learned counsel for the respondents further contends that

the dispute raised as regards the applicability of the Act can also be

determined by an Employees Insurance Court constituted under

Section 75 of the Act, 1948 or by the Appellate Authority under

Section 45 A of the Act, 1948. Therefore, the petitioner is having

efficious alternative remedy and on this count alone, the writ

petitions are liable to be dismissed. In support, the learned counsel

places reliance on the decision of the Hon’ble Apex Court in the case

of E.S.I.C. –Vs- C. C. Santhakumar reported in 2007 1 SCC

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584.

7. Countering such argument, Mr. K. Choudhury, learned counsel for the

petitioner argues that the cause of action is a bundle of facts and in the present

case in hand, the Recovery Officer, Guwahati, sitting at Guwahati had issued

various prohibitory orders to different banks situated at Agartala. Therefore, a

part of cause of action falls within the jurisdiction of this Court and therefore, the

writ petitions shall be maintainable before this Court under Article 226 of the

Constitution of India. In support of such contention, Mr. Choudhury, learned

counsel places reliance on the decision of the Hon’ble Apex Court in Rajendran

Chingaravelu –VS- CIT reported in 2010 1 SCC 457 and Shanti Devi –Vs-

Union of India reported in 2020 10 SCC 766.

8. Determinations:

A. Now let this Court deal with the issue of maintainability of the present writ

petitions on the ground that the writ petitions are hit by the Article 226(2) of

the Constitution of India in the following paragraphs:-

I. The ratio laid down by the Hon’ble Apex Court in the judgments relied

on by both the learned counsel for the parties on this point as well as

settled proposition of law holding the field touching the issue can be

summarized as follows:

a. Cause of action in the context of Article 226 (2) of the

Constitution of India shall be a bundle of facts giving rise to one or

more bases for filing a writ petition i.e. certain fact situation that

entitles the writ petitioners to opt a relief against an

instrumentality of the State.

b. In order to confer jurisdiction on the High Court, the

petitioner must show that at least a part of cause of action had

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arisen within the territorial jurisdiction of that High Court.

c. In determining lack of territorial jurisdiction, the court must

take all the facts pleaded in support of the cause of action, of

course without entering upon an enquiry, as to the correctness of

such facts. Therefore, the averments made in the petitions are

vital for determination and for that purpose, the consideration,

whether such statement is correct or not is, immaterial.

d. The High Court can exercise its jurisdiction under Article 226

of the Constitution of India, where the cause of action wholly or in

part arises within its jurisdiction and it is not relevant that the seat

of the authority, whose action is challenged, is outside the

territorial jurisdiction of the High Court.

e. Insignificant event connected with the cause of action taking

place within the territorial high Court, to which the litigant

approaches at his own choice and convenience, shall not confer

upon the jurisdiction upon High Court. Trivial and unconnected

event connected with the cause of action, even if occurred within

the jurisdiction of the Court, the High Court cannot assume in

jurisdiction on such a given situation.

f. However, a small fraction of cause of action accrued within

the jurisdiction of the High Court not being trivial or unconnected,

shall confer jurisdiction in the matter and such determination can

be made from the facts pleaded in the writ petitions and the

prayer made thereof.

g. If such facts pleaded are not having any connection with the

prayers made such fact pleaded shall not give rise to the cause of

action and / or jurisdiction under Article 226 of the Constitution of

India.

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II. Now coming to the case in hand, as discussed and detailed

hereinabove, an important fact is the issuance of order of recovery and the

directions issued by the Recovery Officer from Guwahati to different banks

at Tripura to do certain acts for recovery of the amounts. Such facts are

not only specifically pleaded in the writ petitions but it is also not denied by

the respondents authorities and that the competent recovery authority sits

within the territorial jurisdiction of this Court. Specific pleadings in this

regard have made in the writ petition.

III. Yet another aspect is that such action of the recovery officer is also

impugned in the present writ petitions and specific payers are made

seeking issuance of writ of certiorari to set aside such orders. Such facts

pleaded, cannot, in the considered opinion of this Court, be said, either to

be trivial or unconnected with the other action initiated within the

jurisdiction of Tripura High Court, rather it is the considered opinion of this

Court that the order of recovery is intrinsically connected with the notice

demanding contribution.

IV. Therefore, this Court is of the unhesitant view that the facts pleaded

in the writ petitions as regards the order of recovery issued by an authority

who sits within the jurisdiction of this Court is having a nexus on the basis

whereof, the prayer made can be considered by this Court. Therefore, in

the considered opinion, this court shall have jurisdiction to entertain this

writ petition. Accordingly, the first objection raised by the respondents

stands rejected.

B. Alternative Remedy:

i. It is by now well settled that the power to issue prerogative writs

under Article 226 of the Constitution of India is plenary in nature and is not

limited by any other provision of the Constitution. It is equally well settled

that under Article 226 of the Constitution of India, the High Court, is having

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discretion to entertain or not to entertain a writ petition, having regard to

the facts and circumstances of the case. The availability of alternative

remedy is a self imposed restriction and normally, High Court should not

exercise its discretion under writ jurisdiction, when an effective and

efficacious remedy is available. However, such alternative remedy shall not

operate as a bar, where the writ petition has been filed for enforcement of

any of the fundamental rights or where there has been violation of the

principle of natural justice or where the orders or proceedings are wholly

without jurisdiction or the vires of an Act is challenged or an important

legal issue is involved. It is also well settled that the power under Article

226 of the Constitution of India to issue a writ can be exercised not only

for the enforcement of the fundamental right but also for any other

purpose as well.

ii. It is also by now well settled that when a right is created by a statute,

which itself prescribes the remedy or procedure for enforcing the right or

liability, resort must be had to that particular statutory remedy before

invoking the discretionary remedy under Article 226 of the Constitution of

India. This Rule of exercise of statutory remedy is a rule of policy and

convenience and it is discretionary.

iii. The said principle also emphasises that in cases where there are

disputed question of facts, the High Court may decide not to exercise it writ

jurisdiction, except when an important question of law is involved.

iv. In the aforesaid context , now let this court first deal with the

provision of the Act:

a. Section 45A of the Act, 1948 deals with the determination on

contribution in certain cases. Sub Section 1 of Section 45A of the Act,

1948, the Corporation is empowered to determine, by order, the

amount of contribution payable in respect of employees of the

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establishment/factory etc. on the basis of information that may be

gathered by an Officer under Section 45 of the Act, 1948. However,

such determination is subject to the condition of giving a reasonable

opportunity of being heard to the principal or immediate employer or

the person in charge of the factory or the establishment as the case

may be. Such determination is also subject to the condition that the no

such order can be passed in respect of a period beyond 5 years from

the date on which the contribution shall become payable.

b. Section 45A(A) of the Act, 1948 deals with the Appellate

Authority. It provides that if an employer is not satisfied with the order

passed under Section 45A of the Act, 1948, he can approach the

appellate authority, as may be provided by regulation, within 60 days of

the date of such order, after depositing 25% of the contribution, so

directed or the contribution as per the own calculation of the employer,

whichever, is higher. Proviso to Section 45A(A) of the Act, 1948,

mandates that if the employer finally succeeds in the appeal, the

Corporation is to refund the statutory deposit made under Section

45A(A) of the Act, 1948 to the appellant together with such interest as

may be specified in the regulation.

c. Admittedly, in the case in hand, the challenge made under this

batch of writ petitions are determination made under Section 45A of

the Act, 1948 and notice issued under first proviso to Section 45A of

the Act, 1948.

d. Chapter-VI of the Act, 1948 deals with adjudication of dispute and

claims.

e. Section 74 under this Chapter mandates constitution of

Employees’ Insurance Court and such Court is to be constituted by the

respective State Government by notification published in official

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Gazette, for such local area as may be specified in the notification.

f. Section 75 of the Act, 1948 enumerates the nature of dispute that

can be adjudicated by the Employee Insurance Court constituted under

Section 74 of the Act, 1948. Amongst other, Clause-G of Sub Section 1

of Section 75 of the Act, 1948 prescribes that the Employee Insurance

Court can decide any other matter beyond those subject matters

enumerated under Clause-a to Clause- e.e of Sub Section 1 of Section

75 of the Act, 1948, which is in dispute between a principal employer

and the corporation or between a principal employer or an immediate

employer or between a person and a corporation or between an

employee and principal or immediate employer, in respect of any

contribution or benefit or other dues payable or recoverable under this

Act.

g. Thus, the jurisdiction of the corporation to issue the notice raised

by the petitioner and/or the dispute as regards the number of the

employees can very well be determined by such a Court.

h. It is clear that under the scheme of Act, 1948, there is provision

for appeal under Section 45A. Thus, rights of appeal have statutorily

been created. Such provision of appeal prescribes the remedy and

procedure for enforcing right of an aggrieved party, who is aggrieved

by an order passed by an adjudicating authority. An order passed under

Section 45A of the Act, 1948, is an appealable order under Section

45AA of the Act, 1948. Section 75 of the Act, 1948 deals with matters

to be decided by Insurance Court. Under Section 75, the Insurance

Court is conferred jurisdiction to decide any question or dispute

enumerated therein and therefore, the issue whether the petitioners

are liable to pay contribution can also be adjudicated by a competent

Insurance Court. That being the position, it is clear that the petitioners

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are having an alternative efficacious remedy, which is statutorily

created.

i. The Act, 1948 is one of the most important Legislation relating to

social security measures for workers in independent India and it was

created to provide financial support to the workers in times of medical

distress etc. From the provisions as discussed hereinabove, the Act is a

code unto itself and not only contains comprehensive procedure for

recovery of dues but also emphasises quasi judicial and judicial bodies

for redressal of grievances of any aggrieved person. Therefore, in the

given facts of the present case, this court is not inclined to exercise its

discretionary power under Article 226 of the Constitution of India, for

the reason of the petitioner having efficacious and alternative remedies

under the Act, 1948.

j. The petitioners have not been able to satisfy and establish that

any of the fundamental rights protected by Part-III of the Constitution

of India has been violated. Though it has been alleged that the

petitioners shall not come within the definition of industry under the

Act, 1948, however, such determination requires adjudication of the

facts which can very well be dealt by the appellate authority under

Section 45AA of the Act, 1948 or by the Insurance Court. In the

considered opinion of this Court, the petitioners have also failed to

demonstrate that there has been a violation of principles of natural

justice in the adjudicating proceeding. Admittedly notices were issued

and the petitioners had also filed reply to such notices.

k. The point of jurisdiction in issuing the notices, can also be decided

by the appellate authority or the Insurance Court inasmuch as the

petitioners have not alleged that orders are wholly without jurisdiction

and the petitioners, had already made the payments, though according

Order downloaded on 04-08-2025 10:06:37 PMPage No.# 19/19

to them, under compulsion.

l. There is also no challenge to the vires of any legislation in the

present batch of writ petitions. Therefore, on this count also, this court

is not inclined to exercise its discretion under Article 226 of the

Constitution of India.

9. Accordingly, the writ petitions are dismissed, however, with liberty to

approach the appropriate authority/Court permissible under law. The period spent

in this court shall not be counted for the calculation of the prescribed period of

limitation.

JUDGE

Comparing Assistant