ORDER :

In the present Writ Petition, challenge is to the order bearing No.79000700150000499/4302020519/45A Revised, dated 08.04.2021, passed by 2nd respondent under Section 45-A of the Employees’ State Insurance Act, 1948 (for short, ‘the ESI Act, 1948’).

2. Heard Sri V.Eswaraiah Chowdary, learned counsel for the petitioner and Smt. S.Siva Kumari, learned Standing Counsel for the respondents, apart from perusing the material available on record.

3. The petitioner herein is a public limited company, having registered office at Hyderabad, and is engaged in manufacture of pig iron metallurgical coke, power and ductile iron pipes, and the manufacturing unit is situated at Haresamudram, Anantapuram district. Earlier, by pressing into service the provisions of Section 45A of the ESI Act, 1948, 2nd respondent herein passed an order dated 20.08.2020, determining the liability of the petitioner as Rs.94,02,856/- for the period from 01.12.2016 to 31.03.2017 and 01.11.2017 to 30.09.2019. Assailing the said order passed by 2nd respondent, petitioner herein preferred a statutory appeal under Section 45- AA of the ESI Act, 1948 on 02.11.2020, by making a pre-deposit of 25% of the demand. 1st respondent, vide order bearing No.79-00-070015-000-0499/45-AA (Appeal No.05/2020-21), dated 22.02.2021, while setting aside the order of the primary authority dated 20.08.2020, remanded the matter to 2nd respondent-primary authority, with a direction to decide the case on the basis of the records to be made available by giving fresh opportunity to the employer. Pursuant to the said remand order passed by 1st respondent-appellate authority, now, 2nd respondent-primary authority, by way of the impugned order dated 08.04.2021, once again determined the liability of the petitioner under Section 45A of the ESI Act, 1948 as Rs.70,52,142/-. This Writ Petition challenges the validity and legal sustainability of the said order.

4. According to the learned counsel for the petitioner, the order impugned in the present Writ Petition is highly arbitrary, illegal, unreasonable and opposed to the very spirit and object of the provisions of the ESI Act, 1948, and 2nd respondent passed the impugned order without properly analysing the material available on record. It is also the submission of the learned counsel that the impugned action is also not in consonance with the ground realities of the issue.

5. On the contrary emphatically supporting the questioned order, it is maintained by the learned Standing Counsel that the very Writ Petition instituted by the petitioner is not maintainable before this Court in view of availability of alternative remedy of statutory appeal provided under Section 45AA of the ESI Act, 1948. It is also the submission of the learned Standing Counsel that only after meticulous consideration of all the issues, 2nd respondent herein passed the impugned order, as such, the same does not warrant any interference of this Court under Article 226 of the Constitution of India.

6. In reply, it is submitted by Sri V.Eswaraiah Chowdary, learned counsel for the petitioner that another difficulty which the petitioner herein is compelled to face is that once again, it has to deposit 25% of the amount if the petitioner herein is relegated to the alternative remedy of statutory appeal under Section 45-AA of the ESI Act, 1948.

7. In this context, it is appropriate to refer to the provisions of Section 45-AA of the ESI Act, 1948, which reads as under:

“If an employer is not satisfied with the order referred to in section 45A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the corporation.”

According to the above provision of law, an employer, if not satisfied with the order passed by the primary authority under Section 45-A of the Act, is entitled