Gauhati High Court
Khasrul Islam vs The Union Of India And 5 Ors on 16 February, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010024372022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/981/2022
KHASRUL ISLAM
S/O- LATE ABDUL ROOF, R/O- RAZZAKMIA LANE, OLD LAKHIPUR ROAD,
MADHURBOND, SILCHAR, DIST- CACHAR, ASSAM, PIN-788001
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE MINISTRY OF LABOUR AND
EMPLOYMENT, GOVT. OF INDIA, JAISALMER HOUSE, MANSINGH ROAD,
NEW DELHI-01
2:THE REGIONAL DIRECTOR
NORTH EASTERN REGIONAL OFFICE
EMPLOYEE STATE INSURANCE CORPORATION
PANCHADEEP BHAWAN
BAMUNIMAIDAM
GUWAHATI-21
ASSAM
3:THE ASSISTANT DIRECTOR
(AUTHORIZED OFFICER) NORTH EASTERN REGIONAL OFFICE
EMPLOYEE STATE INSURANCE CORPORATION
PANCHADEEP BHAWAN
BAMUNIMAIDAM
GUWAHATI-21
ASSAM
4:THE RECOVERY OFFICER
NORTH EASTERN REGIONAL OFFICE
EMPLOYEE STATE INSURANCE CORPORATION
PANCHADEEP BHAWAN
BAMUNIMAIDAM
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GUWAHATI-21
ASSAM
5:THE BRANCH MANAGER
EMPLOYEE STATE INSURANCE CORPORATION
SILCHAR BRANCH
DIST- CACHAR
PIN-788001
ASSAM
6:THE EXECUTIVE ENGINEER
CENTRAL PUBLIC WORKS DEPARTMENT
BOARDER FENCING
DIVISION-I
MALUGRAM
MELA ROAD
SILCHAR
ASSAM
PIN-78800
Advocate for the Petitioner : MR. I ALAM
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
16.02.2022 Heard Mr. I. Alam, learned counsel for the petitioner; Mr. P.S. Lahkar, learned Central Government Counsel for the respondent nos. 1 and 6; and Mr. K.K. Nandi, learned Standing Counsel, Employee State Insurance Corporation [ESIC] for the respondent nos. 2 - 5.
2. This writ petition under Article 226 of the Constitution of India has been preferred by the petitioner assailing a notice of demand to defaulter dated 17.06.2021 issued by the respondent no. 4 and a prohibitory order dated 14.07.2021, also passed by the respondent no. 4.
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3. On perusal of the notice of demand dated 17.06.2021, it transpires that the said notice was issued under the provisions of Section 45[C] to 45[I] of the Employees' State Insurance Act, 1948 ['the ESI Act, 1948'] read with Rule 26[1] of the II Schedule of the Income Tax Act, 1961. The prohibitory order dated 14.07.2021 has been passed in purported exercise of the powers Section 45[C] to 45[I] of the ESI Act, 1948 read with Rule 26[1] of the II Schedule of the Income Tax Act, 1961 due to failure on the part of the petitioner to pay the arrear dues in respect of the Certificate bearing no. 43000913300001009 dated 17.06.2021.
4. Having gone through the provisions of the ESI Act, 1948, it is noticed that Section 74 of the Act has provided for constitution of the Employees' Insurance Court. Section 75 of the ESI Act, 1948 has provided for the matters which can be decided by the Employees' Insurance Court.
5. The learned counsel for the parties are not in dispute that the issues raised in this writ petition can be decided by the Employees' Insurance Court. It is seen that sub-section [2] of Section 82 of the ESI Act, 1948 has provided for an appeal to the High Court from an order of an Employees' Insurance Court if it involves a substantial question of law.
6. Mr. Alam has submitted that the petitioner has been undergoing severe financial constraints during the last 5 [five] years and has also been suffering from different ailments. If the petitioner approaches the Employees' Insurance Court for adjudication of the issues, then the petitioner has to deposit 50% of the amount dues claimed to be due from him by the respondent ESI authorities, as per sub-section [2B] of Section 75 of the ESI Act, 1948 which he is not in a position to comply at present.
7. As there is statutory remedy is provided under Section 75 of the ESI Act, 1948 to the petitioner against the notice of demand dated 17.06.2021 and the prohibitory order dated 14.07.2021, the petitioner shall approach the Employees' Insurance Court by way of an appropriate application. The proviso to sub-section 2[B] of Section 75 of the ESI Act, 1948 has made a provision for waiver or reduction of the amount to be deposited under sub- section [2B] of Section 75 of the ESI Act, 1948. The proviso has given the authority to the Page No.# 4/4 Employees' Insurance Court, for reasons to be recorded in writing, to make such waiver or reduction of the amount. The petitioner is at liberty to make such prayer for waiver or reduction of the amount with all supporting documents and in the event such a prayer is made by the petitioner seeking waiver or reduction of the amount to be deposited before the Employees' Insurance Court, the Employees' Insurance Court shall consider the same in accordance with law and by taking into account the facts and circumstances contended by the petitioner.
8. In view of availability of such alternative, efficacious andadequate statutory remedy, this writ petition is not entertained, reserving the liberty to the petitioner to approach the Employees' Insurance Court seeking redressal of his grievances in accordance with the provisions of the ESI Act, 1948. No cost.
JUDGE Comparing Assistant