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IN THE HIGH COURT AT CALCUTTA
SMITA DAS DE, J.
North Sea Shipping and Logistics Pvt. Ltd. and Others – Appellants
Versus
Union of India and Others – Respondents
WPA No. 27944 of 2025
Decided On : 23-12-2025
Based on the provided legal document, the key points are as follows:
The Court recognizes that while there is an available alternative remedy under the Employees State Insurance Act, 1948, the High Court retains discretion to entertain writ petitions despite such remedies. The distinction between maintainability and entertainability is emphasized, meaning that the mere existence of an alternative remedy does not automatically preclude the High Court from hearing a writ petition, especially if there are exceptional circumstances (!) .
The petitioner, engaged in freight services, contended that they did not qualify as a factory under the relevant notification and thus were not obligated to contribute under the ESI Act. Despite this, an order was passed against them based on inspection reports, and their appeal was dismissed by the appellate authority. The petitioner challenged this order through a writ petition, which the Court is considering whether to entertain given the availability of an alternative remedy under the Act [paras 4-10].
The Court has acknowledged the importance of the discretion to entertain writ petitions and has set the matter for further hearing, indicating that the issue of whether the petition should be entertained depends on the specific facts and circumstances of the case [para 14].
The Court has stayed the order passed under Section 45A of the ESI Act until a future date, allowing the petitioner to avoid immediate compliance while the matter is under consideration [para 15].
The Court has also highlighted that the parties are permitted to exchange legal notes before the next hearing, emphasizing a procedural openness to ensure comprehensive argumentation [para 16].
The Court explicitly states that the point regarding the maintainability of the writ petition remains open for further consideration at the next hearing, indicating that the ultimate decision on whether to dismiss or entertain the petition based solely on the existence of an alternative remedy has not yet been made [para 14].
In summary, the Court is exercising its discretion to consider the writ petition despite the availability of an alternative remedy, emphasizing that each case's specific facts and circumstances are crucial in such determinations.
| Table of Content |
|---|
| 1. petitioner's business classification under esi act. (Para 3 , 4) |
| 2. respondent's order and contribution calculation. (Para 5 , 7) |
| 3. alternative remedy and maintainability issues. (Para 10 , 11) |
| 4. judicial discretion in writ jurisdiction. (Para 12 , 13) |
| 5. staying order and future hearing. (Para 14 , 15 , 16) |
JUDGMENT :
SMITA DAS DE, J.
1. Affidavit of service filed by the petitioner is kept on record.
2. Heard the parties through their respective learned Counsels.
3. The petitioner No.1 is engaged in the business of providing freight forwarding, customs clearing and other shipping services.
4. The learned Counsel for the petitioner submits that since, the date of incorporation, the petitioner has not employed more than 6 to 8 people on its payroll as employees and does not fall within the ambit of being a factory and establishment in the light of the gazette notification dated 10th February, 2010. As a result the petitioner No.1 does not have any statutory obligation to apply registration under the provisions of the Employees State Insurance Act, 1948 (hereinafter referred to as the ‘said Act’).
5. A personal hearing was given on 18th November, 2024, accordingly submitted the balance sheet profit and loss account for the period 2019-2020 to 2023-2024. Thereafter, by an order dated 15th January, 2025 an order was passed under Section 45A of the said Act by the respondent No.2 holding, inter alia, that the coverage of the petitioner no.1 under ESIC was valid on the basis of the inspection carried out by the social security officer on 23rd December, 2010 which was duly intimated to the petitioner No.1 by way of notice in form C11 dated 05.01.2011. Thus the contribution was determined and calculated to the tune of Rs.3,05.750/- upon wages INR 76,43,756/-.
6. Being aggrieved by the order passed under Section 45A of the said Act by the respondent No.2 the petitioner duly filed an appeal under Section 45AA of the said Act before the respondent No.3.
7. The respondent No.3 upon hearing was pleased to dismiss the same on 25th September, 2025, directing, inter alia, the petitioner to make the payment on account of the contribution in terms of the provision of the said Act amounting to Rs.3,05,750/- for the period December, 2019 to March, 2023.
8. The learned Counsel for the petitioner submits that the order dated 15.01.2025 was passed by the respondent No.2 without considering the relevant documents and held the petitioner to be liable for payment of the contribution to the tune of Rs.3,05,750/- upon wages of Rs.76,43,756/- mainly on the basis of the inspection report.
9. The learned Counsel for the petitioner submits that the appellate authority erroneously held that the Form C11 was duly served upon the petitioner on the date of inspection and was acknowledged by the petitioner on the date of inspection. No opportunity of hearing was ever given to refute the allegations, for running an establishment by employing more than 10 employees.
10. The learned Counsel for the respondent strenuously argues on the point of maintainability since there is an alternative remedy available to agitate the issue involved herein. In this context he relies upon the judgment of the Hon’ble Supreme Court in Employees State Insurance Corporation Ltd. Vs. Nagar Nigam Allahabad & Anr. 2024 SCC Online 977 wherein it has been held in paragraphs 23 and 24 which is reproduced below:-
“23. The appellant-Corporation had issued notices to respondent Nagar Nigam to show cause as to why the recovery of statutory contribution under Section 40 of the Act of 1948 should not be effected from it. However, admittedly, no response was given by the respondent-Nagar Nigam to such notices. There is also no dispute that for the earlier periods, between 1964 to 1978, the respondent-Nagar Nigam made regular contributions under the Act of 1948 thereby conceding to the position that its workshop was covered under the definition of ‘factory’ where manufacturing process was being
The High Court maintains discretion to entertain writ petitions despite the existence of alternative remedies, underscoring that maintainability and entertainability are distinct concepts.
Authority must not invoke Section 45A for best judgment assessment unless there is no submission of required documents; disputes should be resolved in ESI Court.
Writ jurisdiction is discretionary and should not be exercised when an efficacious statutory remedy exists, especially for disputes involving complex factual determinations. Courts should defer to sp....
The main legal point established in the judgment is the importance of exhausting the alternative statutory remedies provided under the Employees State Insurance Act, 1948 before seeking judicial inte....
Determination regarding alternative remedies available under the Employees’ State Insurance Act, 1948.
Point of Law : Supreme Court considered the scope of notification of establishments under section 1(5) of the 'ESI Act'.
The court established that jurisdictional issues and the requirement to exhaust statutory remedies are critical in determining the maintainability of writ petitions.
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