JUDGMENT - R.J. KOCHAR, J.:---The petitioner-company is aggrieved by the decision of the respondent to cover the petitioner-company under the provisions of the Employers State Insurance Act, 1948 (ESI Act). It is further aggrieved by an order passed by the competent authority under section 45(A) of the ESI Act determining the amount of contribution payable in respect of employees of the petitioner's factory and a further order passed by the competent authority under section 45(C) of the ESI Act issued to the Recovery Officer for recovery of the arrears of the ESI contribution payable by the petitioner company. Finally it has also challenged the order of Employees Insurance Court (EI Court) passed on 20th January, 1998 in Application (ESI) No. 96 of 1986 filed by the petitioner company to challenge the aforesaid orders passed by the competent authority under the Act. The EI Court has exercised its jurisdiction to decide the said application under section 75 of the Act holding that on the facts and circumstances of the case and oral and documentary evidence the petitioner company was rightly covered under the ESI Act and was liable to pay the contribution determined by the Regional Director of the respondent Corporation under section 45(A) of the Act for the period from September 1979 to March 1984 with interest. The EI Court rejected the application of the petitioner company and declared that it was rightly covered from September 1979 and it was liable to pay the contribution determined by the Corporation with statutory interest thereon till the date of payment.

2. The petitioner company has chosen to file the present writ petition under Article 226 of the Constitution of India invoking the extra ordinary jurisdiction of the High Court to impugn the aforesaid orders of the competent authority and also the order of the EI Court at Mumbai, instead of filing a substantive appeal as provided under section 82 of the ESI Act. Shri H.V. Mehta, the learned Counsel for the respondent has questioned the maintainability of the writ petition when the Act has provided substantive appeal against the orders of the EI Court passed under section 75 of the ESI Act. According to the learned Counsel the present writ petition would not lie and cannot be entertained and decided by the High Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India when an appeal has been specifically provided by the said Act. Shri Mehta contended that the petitioner company has not availed of the statutory remedy under the Act and has filed the present petition by passing the statutory remedy of appeal. Secondly Shri Mehta has also submitted on merits that the E.I. Court established under the ESI Act has considered the facts and circumstances and the whole evidence on record, documentary and oral, and has given its findings and has also given cogent reasons for its conclusions. The Court has considered the bare facts on record and therefore, this Court in its writ jurisdiction cannot enter into the controversy on the question of facts which have been finally concluded by the EI Court which is a Court of facts finding. According to Shri Mehta, the findings and conclusions arrived at by the Court are based on evidence and are not perverse, warranting any interference in the impugned judgment and order of the Court under Article 226 of the Constitution of India.

3. Shri S.C. Naidu, the learned Counsel for the petitioner company has strenuously submitted that in the given circumstances of the case, the present petition is maintainable as the order of the competent authority to cover the petitioner's factory is in violation of the mandatory provisions of the Act and the principles of natural justice and the same is, therefore, null and void. Secondly, he has submitted that the exercise of power under section 45(A) by the competent authority is not legitimate as the conditions which are prescribed in the section were not complied with and ther

Click Here to Read the rest of this document