A Writ Petition is not maintainable to challenge recovery proceedings under the ESI Act if the petitioner has not challenged the underlying assessment order made under Section 45A and has adequate statutory remedies available before the Employees' Insurance Court.

To issue appropriate writs, orders or direction and in particular issue a Writ of Certiorari after calling for the concern records relating to the Order No.TN/RECY/45G/51-5100107670000999/CCR.94273 dated 30.09.2020 passed by the 1st respondent herein and quash the same and pass such other orders as this Hon’ble Court may deem fit and proper in the nature and circumstances of the case.

Prayer in WMP No. 19567 of 2020

To dispense with the production of the original impugned order vide No.TN/RECY/45G/51-5100107670000999/CCR.94273 dated 30.09.2020 passed by the 1st respondent for the present.

Prayer in WMP No.19568 of 2020

To grant an order of interim stay of the operation of order No..TN/RECY/45G/51-5100107670000999/CCR.94273 dated 30.09.2020 passed by the 1st respondent during the pendency of the writ petition.

Appearance of parties:

J U D G M E N T

Heard.

2. The petitioner, a civil engineering contractor, has filed the present writ petition challenging the order dated 30.09.2020 issued by the 1st respondent—the Recovery Officer, Employees’ State Insurance Corporation—under Section 45G of the Employees’ State Insurance Act, 1948. The impugned order was issued on account of arrears of ESI contributions payable by the petitioner. The respondents, after adding interest, damages, and costs, computed the total amount due as Rs.3,27,376/-, along with further interest at the rate of Rs.72.78 per day with effect from 01.10.2020.

3. When the matter was listed on 05.11.2020, this Court directed notice to be taken by respondents 1 and 2 and further called upon the respondents to clarify whether the recovery notice issued under Section 45G was preceded by an order under Section 45A of the ESI Act. Subsequently, when the case was posted on 26.11.2020, this Court directed the respondents not to initiate any coercive steps for recovery of the amount in the meantime. Thereafter, on 30.11.2020, the respondents were directed to file a counter affidavit.

4. When the matter was taken up on 16.12.2020, this Court sought clarification as to whether any order under Section 45A of the ESI Act had been passed and duly served on the petitioner prior to the issuance of the recovery notice. The matter was adjourned, and the earlier interim order was directed to continue. Subsequently, on 06.01.2021, the interim order was further extended until further orders. Thereafter, on 29.01.2021, this Court directed the third respondent bank to allow operation of the petitioner’s bank account.

5. On behalf of respondents 1 and 2, a counter affidavit dated 30.11.2020 was filed. In paragraph 13 of the said affidavit, it was stated that an order under Section 45A of the ESI Act had been passed on 16.07.2019, well before the onset of the COVID-19 pandemic and the imposition of lockdown restrictions. It was further pointed out that the petitioner has not challenged the order passed under Section 45A , but has chosen to question only the recovery proceedings initiated under Section 45G and the consequential attachment notice.

6. The respondents also submitted that a statutory remedy is available to the petitioner by way of an appeal under Section 75 of the ESI Act before the Employees’ Insurance Court, with a further right of appeal to this Court under Section 82 . In support of this position, reliance was placed on the judgment of the Hon’ble Supreme Court in E.S.I.C. v. C.C. Santhakumar , reported in (2007) 1 SCC 584, wherein the Supreme Court held as follows:

“The Legislature has provided for a special remedy to deal with special cases. The determination of t