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2019 Supreme(Mad) 2385
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
M/s. Super Spinning Mills Limited (Defunct) Rep.by its Director-A.R.Balasundaram & Another – Appellant
Versus
The Assistant Director, M/s. Employees State Insurance Corporation Sub-Regional Office, Coimbatore & Others – Respondents
W.P.Nos. 29704, 29585 & 29586 of 2019, W.M.P.Nos.29464, 29465, 29604 of 2019
Decided on : 24-10-2019
Advocate Appeared:
For the Petitioners:S. Ravindran, Senior Counsel, S. Bazeerahamed, Advocate.
For the Respondents:C.V. Ramachandramurthy, Advocate.
Headnote:
Constitution of India,1950 - Article 226 - ESI Act - Section 75 - National Green Tribunal Act, 2010 - Section 22 - Granted to employment - Employment State Insurance Court - Employees State Insurance Court Coimbatore in quash order and consequentially direct Employees State Insurance Court/Principal Labour Court Coimbatore to restore case and decide said case on merits Court - However Civil Miscellaneous Appeal Section can be filed only if ESI Court passed an order on merits and as per law - However in present case no such order was passed on merits - Contrarily ESI Court taken maintainability of petition and rejected the appeal filed by writ petitioner mainly on ground that petition Section is not maintainable and petitioner has exhaust appeal remedy Section - Thus writ petition to be decided with reference Section and also Section ESI Act - Such interpretations as well as constitutional validity of such appeal provisions with reference to various provisions are to be decided only Article Constitution of India and therefore regular appeal contemplated Section Act may not an appropriate remedy as far order of ESI Court which is impugned in present writ petition is concerned – Held, Court and therefore petitioner has chosen file writ petition Article Constitution of India - When validity interpretation of provisions of very same Act is raised by way issue in writ petition then High Court cannot direct the parties to prefer an appeal very same Act - Only in event of deciding the issues on merits High Court can direct parties to prefer appeal Act otherwise - In respect of challenge made regarding the validity well as interpretation particular provision same need not be filed under provisions Act itself - Contrarily such issues can be decided in writ petition for purpose interpreting provisions Act so ascertain the rights of parties with reference to provisions - However ESI Court itself has not decided issues on merits with reference to placed before this Court - Contrarily ESI Court has decided maintainability of petition by interpreting the provisions of Act – Therefore this Court has clarify and provide correct interpretation for purpose entertaining petition Courts across the State of Tamil Nadu and Union Territory are bound entertain petitions filed Section without exhausting appeal remedy contemplated Section In other words appeal contemplated Section Act optional one and all petitions filed Section is to be entertained numbered and adjudicated on merits and in accordance with law without directing parties to exhaust appeal remedy provided Section Act - Therefore this Court has no hesitation in coming conclusion that impugned order passed by ESI Court unnumbered ESIOP perverse - Therefore impugned orders stand quashed - ESI Court Coimbatore is directed to entertain interlocutory application as well appeal and decide the matters on merits and in accordance with law – Petition allowed
JUDGMENT :
(Prayer In W.P.No.29704 of 2019: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the Employees State Insurance Court, Coimbatore in I.A.No.2 of 2019 in unnumbered ESIOP and quash its order dated 12.09.2019 and consequently, direct the Employees State Insurance Court, Coimbatore to restore the case in I.A.No.2 of 2019 in unnumbered ESIOP and decide the case on merits.
Prayer In W.P.No.29585 of 2019: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the Employees State Insurance Court, Coimbatore in ESIOP.No.53 of 2019 and quash its order dated 09.09.2019 and consequentially, direct the Employees State Insurance Court/Principal Labour Court, Coimbatore to restore the case in ESIOP.No.53 of 2019 and decide the said case on merits.
Prayer In W.P.No.29586 of 2019: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the Employees State Insurance Court, Coimbatore in ESIOP.No.54 of 2019 and quash its order dated 09.09.2019 and consequentially, direct the Employees State Insurance Court/Principal Labour Court, Coimbatore to restore the case in ESIOP.No.54 of 2019 and decide the said case on merits.
The orders dated 12.09.2019 and 09.09.2019 passed by the Employees State Insurance Court, Coimbatore are sought to be quashed in the present writ petitions.
2. The learned Senior Counsel appearing on behalf of the writ petitioner made a submission that the writ petitioner/Mill was already closed on 01.06.2007. On 23.05.2015, the first respondent passed an order determining the contribution from the writ petitioner company at Rs.2,70,250/-, for the period from April 2011 to March 2013. Therefore, the writ petitioner filed a petition under Section 75 of the ESI Act on 25.04.2019 before the ESI Court, Coimbatore along with I.A.No.2 of 2019, to condone the delay of 399 days in filing a petition.
3. The ESI Court, without deciding the issues on merits, suo motu raised the question of maintainability under Section 75 of the ESI Act and arrived at a conclusion that the petitioner has to exhaust the appeal remedy contemplated under Section 45AA of the ESI Act. Therefore, the petition under Section 75 of the ESI Act is not maintainable, without exhausting the appeal remedy under Section 45 AA of the ESI Act.
4. The learned Senior Counsel made a submission that suo motu decision of the ESI Court regarding the maintainability of the petition under Section 75 of the ESI Act, prompted the writ petitioner to file a writ petition under Article 226 of the Constitution of India. Therefore, interpretation or challenge under the provisions of the ESI Act, is to be made only by way of a writ petition filed under Article 226 of the Constitution of India. The learned Senior Counsel further stated that he is aware of the appeal provision provided under Section 82 of the Act, by way of filing a Civil Miscellaneous Appeal before the High Court. However, the Civil Miscellaneous Appeal under Section 82 of the ESI Act can be filed, only if the ESI Court passed an order on merits and as per law. However, in the present case, no such order was passed on merits. Contrarily, the ESI Court has taken a suo motu decision on the maintainability of the petition and rejected the appeal filed by the writ petitioner, mainly on the ground that the petition under Section 75 of the Act is not maintainable and the petitioner has to exhaust the appeal remedy under Section 45AA of the ESI Act. Thus, the writ petition is to be decided, with reference to Section 45AA and 75 and also Section 45A of the ESI Act. Such interpretations as well as the constitutional validity of such appeal provisions, with reference to various provisions are to be decided only under Article 226 of the Constitution of India
