JUDGMENT

Dated this the 2nd day of March 2021 This is a petition by the establishment who has suffered an order under Section 45-A of the Employees State Insurance Act, 1948 in respect of determination of contribution by the ESI Corporation.

Following reliefs are claimed in the instant petition.

(i)To call for the entire records of the petitioners case leading to issue of Exts.P1 Visit Note, P12 final order and P19 proceedings of the Appellate Authority and quash Exts.P1, P12 and P19 and all action taken in pursuance thereof.

(ii)To issue a writ of mandamus or any other appropriate writ, order or direction declaring that the ON CALL DUTY doctors which are mentioned in the panel of doctors in the Attendance Register, Ext.P3 and are being paid only honorarium are not covered in the definition of “employee” as per Sec. 2(9) of ESI Act and therefore, the petitioners' establishment M/s. Lions Eye Hospital is not coverable under the ESI Act and the Visit Note Ext.P1 and final order Ext.P12 and proceedings of the Appellate Authority Ext.P19 are highly illegal, arbitrary and ab initio void, unjust, unreasonable and liable to be set aside by this Hon'ble Court;

(iii)To issue a writ of mandamus or any appropriate writ, order or direction setting aside Ext.P1 Visit Note, Ext.P12 order and P19 proceedings of the Appellate Authority and all action taken in pursuance of Ext.P1, P12 and P19;

(iv)To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to act according to law and not to further harass and victimize the petitioners;

(v)To pass any other order/orders which are deemed fit and proper in the facts and circumstances of the case.

(vi)To award cost to the petitioners from the respondents.”

2. Heard the learned counsel for the petitioners at sufficient length of time. He argued that the petitioner No.1 is a renowned hospital having international repute where treatment is given free of cost. It is run on no profit basis. The learned counsel for the petitioners further argued that the muster rolls filed at Ext.P3 would show that the petitioner No.1 hospital was not having more than 5 to 7 employees at any point of time. There were four doctors on call who used to render services daily for 3 to 4 hours for which they were paid honorarium. The learned counsel for the petitioners argued that those 4 doctors on call cannot be treated as employees within the meaning of the said term under the Employees State Insurance Act, 1948. It is further argued that honorarium paid to them cannot be termed as wages under Section 2(22) of the said Act.

3. With this, the learned counsel for the petitioners argued that this Court, in WP(C) No. 428/2021 had directed the Appellate Authority to consider the application for waiver of pre-deposit after affording necessary opportunity of hearing to the petitioners as seen from paragraph 9 of the said judgment, Ext.P15. However, without complying with this direction, the learned Appellate Authority had passed erroneous order at Ext.P19 rejecting the application for waiver of pre-deposit and thereby refused to consider the appeal on merit. This is how, according to the learned counsel for the petitioner, now this Court must decide the challenge to the order under Section 45-A of the Employees State Insurance Act, 1948. In support of the challenge to this impugned order at Ext.P12, the learned counsel for the petitioners relied on staff attendance register at Ext.P3.

4. The learned counsel for the petitioners further argued that as the petitioner No.1 is an international charitable hospital, enmity developed against it and at the instance of other hospitals in the vicinity, vindictive action is taken by the State Insurance Corporation.

5. The learned standing counsel by taking notice for respondents No.2, 3, 5 and 7 argued that the petition as framed and filed is not maintainable in view of provisions under Section 75 of the ESI Act. It is further argued that the petition involve