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2019 Supreme(Online)(KER) 72870
HIGH COURT OF KERALA
S.V. BHATTI, J
RAVEENDRAN C.K. – Appellant
Versus
THE EMPLOYEES STATE INSURANCE CORPORATION – Respondent
WP(C)/16430/2017
SRI.G.SREEKUMAR (CHELUR), SRI.T.V.AJAYAKUMAR, SMT.SREELATHA PARAMESWARAN
A principal employer must comply with statutory deposit requirements under the Employees State Insurance Act before challenging notices or orders related to contributions; failure to do so legitimizes dismissal by the Tribunal.
Headnote:
Insurance - Employees State Insurance Act, 1948 - Sections 45A, 75(2B) - The court dismissed the writ petition challenging the dismissal of an insurance case by the Industrial Tribunal, as the petitioner failed to comply with the deposit requirement mandated under the Act.
Fact of the Case:
The petitioner was served a show cause notice for non-payment of contributions under the Employees State Insurance Act. After failing to comply with a Tribunal's order to deposit a portion of the dues, their application was dismissed, leading to a challenge in a writ petition.
Issues: Whether the court should intervene to restore the petitioners' case after their failure to comply with deposit requirements established by the Tribunal under the Act.
Ratio Decidendi: The court determined that non-compliance with the deposit condition justified the Tribunal's dismissal of the application for not adhering to statutory obligations under the Employees State Insurance Act.
Final Decision: Writ petition dismissed.
JUDGMENT
Dated this the 27th day of November 2019 The issue arises under the Employees State Insurance and Miscellaneous Provisions Act, 1948. The petitioner challenges the orders of respondents in Exts.P9 and P10 as totally illegal, arbitrary and amounts to refusing to exercise the jurisdiction conferred on the respondents herein by the Act. The circumstances relevant for disposing of the writ petition are briefly stated thus:
The Deputy Director of Employees State Insurance Corporation, Thrissur issued Ext.P3 Show Cause Notice calling upon the petitioner herein to show cause why action shall not be taken for not paying the contributions for the period 1.10.2014 to 30.9.2016. Ext.P3 notice was followed by determination and the recovery officer issued Ext.P4 calling upon the petitioner to remit Rs.44651/-. The petitioner filed Insurance Case No.215 of 2016 before the Court of Employees Insurance (Industrial Tribunal) Thrissur. The Industrial Tribunal in M.P.No.2 of 2016 dated 20.7.2016 called upon the petitioner to deposit 15% of the contribution determined vide order dated
10.1.2014 under Section 45A of ESI Act. The time granted for deposit was on or before 23.9.2016. The petitioner since did not comply with the condition imposed by the Tribunal on 26.9.2016, Insurance Case No.215 of 2016 was dismissed. The operative portion of the order reads as follows:
“ Section 75 (2B) of the Employees State Insurance Act, 1948 provides that 'No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees Insurance Court unless he has deposited with the Court fifty percent of the amount due from him as claimed by the Corporation.
Provided that the Court may, for reasons to be recorded in writing waive or reduce the amount to be deposited under this Section.'
Invoking the authority of this Court provided in the above Section the amount of deposit was reduced to 15% and the applicant was directed to deposit the same with the respondent Corporation. But they have not complied with the direction. In the circumstance there is no way other than to dismiss the application. Hence the application is dismissed.”
2. The petitioner thereafter filed M.P.Nos.160 and 161 of 2016 to restore the application to file and condone the delay for filing the restoration petition etc. The Industrial Tribunal through Ext.P10 dismissed the said applications. Hence the Writ Petition.
3. The respondent filed counter affidavit together with annexures and opposes considering any prayer by the Court under Article 226 of the Constitution of India.
4. Adv.Jithin Babu argues that the Industrial Tribunal while making Ext.P10 order did not give required value to the reasons stated by the petitioner. Appeal is a substantive remedy. The case has been dismissed for default. The delay if is condoned, the petitioner is willing to comply with the condition and argue the appeal on merits. According to petitioner, there is complete non- application of mind by the Tribunal in exercising its jurisdiction. Therefore the order impugned in the writ petition is liable to be set aside. Insurance Case No.215 of 2016 is restored to file by this Court and direction is issued to dispose of the case expeditiously.
5. Adv.T.V.Ajayakumar appearing for Corporation rightly objects to the consideration of this Court any prayers made by the petitioners. He argues that the delay application filed to set aside the default order and restore insurance case to file certainly could be considered on merits, if at all an insurance case is in fact pending before the Industrial Tribunal. The petitioner, by not depositing the 15% of the paltry amount directed by the Industrial Tribunal, allowed Insurance Case No.215 of 2016 to be dismissed. So the case is dismissed for not complying with the direction issued by the Tribunal. The petitioner atleast along with these applications did not tender the
