Kerala High Court
Sivakumar vs The Director,E.S.I.Corporation on 5 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 6759 OF 2016
PETITIONER:
SIVAKUMAR, AGED 45 YEARS
S/O. K. KUMARA PILLA, KUMARA BHAVAN, T.C
17/1254/20 PANGODE JUNCTION, THIRUMALA,
THIRUVANANTHAPURAM 06
BY ADVS.
SRI.THIRUMALA P.K.MANI
SRI.P.E.SAJAL
RESPONDENTS:
1 THE DIRECTOR, E.S.I.CORPORATION
EMPLOYEES STATE INSURANCE CORPORATION SUB
REGIONAL OFFICE, PANCHDEEP BHAVAN, THYCAUD,
THIRUVANANTHAPURAM 695 014
2 DEPUTY DIRECTOR
EMPLOYEES STATE INSURANCE CORPORATION SUB
REGIONAL OFFICE, PANCHDEEP BHAVAN,
THYCAUD,THIRUVANANTHAPURAM 695 014
3 SOCIAL SECURITY OFFICER
EMPLOYEE STATE INSURANCE CORPORATION,
THIRUVANANTHAPURAM 695 001
4 ELDHOSE PAUL, AGED 31 YEARS, S/O.M.M PAULOSE,
PULIKKATHOTTI MANGUDI VEEDU, VANNAPPURAM
VILLAGE, THODUPUZHA THALUK, IDUKKI 685 602
BY ADVS.
SRI.T.V.AJAYAKUMAR, SC, ESI CORPN.
SRI.ANTONY MUKKATH
KUM.P.H.RIMJU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P. (C) No.6759/2016 2
M. A. ABDUL HAKHIM, J.
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W.P(C). No. 6759 of 2016
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Dated this the 5th day of April, 2024
JUDGMENT
1. The petitioner has filed this Writ Petition challenging Ext.P7 order dated 31/12/2015 passed under Section 45A of the Employees' State Insurance Act, 1948 [for short, 'the ESI Act']. By Ext.P7 order, the petitioner is required to pay contribution of ₹1,96,623/- for the period from 01.04.2012 to 28.02.2015. According to the petitioner, he is not liable to pay the contribution since during the said period, the 4th respondent had been running the business by virtue of a lease arrangement between the petitioner and the 4 th respondent. According to him, it is the 4th respondent who is liable to pay contribution for the said period. The petitioner also has a case that, before passing Ext.P7 order, he was not heard. After passing Ext.P7 W.P. (C) No.6759/2016 3 order, the petitioner submitted Ext.P8 Representation on 23.01.2016.
2. I heard the learned counsel for the petitioner as well as the counsel for respondents 1 to 3.
3. It is seen from Ext.P7 order that the petitioner did not avail the opportunity of hearing in spite of the same being granted several times. The petitioner wants this Court to adjudicate the question of fact as to who is liable to pay contribution during the relevant period, which this Court cannot adjudicate. As against Ext.P7 order, the petitioner has got a statutory remedy under Section 45AA of the Act before the Appellate Authority. That apart, in view of Section 75(1)(d) of the Act, the petitioner can approach the Employees' Insurance Court also for adjudicating as to who was the person responsible to pay the contribution.
4. In view of the aforesaid remedies available to the petitioner for adjudication of the question of facts raised by the petitioner in this Writ Petition, I am not inclined to entertain this Writ Petition. Accordingly, this W.P. (C) No.6759/2016 4 Writ Petition is dismissed. I find from the records that, there have been interim stay in favour of the petitioner during the pendency of the Writ Petition. Hence I keep Ext.P7 order in abeyance for a period of two months from today in order to enable the petitioner to avail statutory remedies against Ext.P7 Order.
The Writ Petition is accordingly dismissed.
Sd/-
M. A. ABDUL HAKHIM, JUDGE Sbna/ W.P. (C) No.6759/2016 5 APPENDIX OF WP(C) 6759/2016 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ABOVE SETTLEMENT DEED NO.1479/99 DATED 14.06.1999 EXECUTED IN FAVOUR OF THE WIFE OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE RENT DEED DATED 26.09.2011 EXECUTED BY TEH 4TH RESPONDENT IN FAVOUR OF THE WIFE OF THE PETITIONER EXHIBIT P3 TRUE COPY OF THE LICENSE FEE RECEIPT DATED 10.04.2015 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM TO THE 4TH RESPONDENT WITH RESPECT OF THE BUILDING BEARING T.C.NO.7/1992-4 EXHIBIT P4 TRUE COPY OF THE PROFESSIONAL TAX RECEIPT DATED 28.08.2014 ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM TO THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE ENDORSEMENT DATED 14.09.2015 MADE BY TEH 4TH RESPONDENT SURRENDERING THE POSSESSION OF THE BUILDING EXHIBIT P6 TRUE COPY OF THE RENT DEED DATED 07.12.2015 EXECUTED BY PRESENT LESSEE IN FAVOUR OF THE WIFE OF THE PETITIONER WITH RESPECT OF THE BUILDING BEARING T.C.NO.7-1992-4 EXHIBIT P7 TRUE COPY OF THE ORDER NO.78000 32425 0001101/REV/SROT DATED 31.12.2015 ISSUED BY THE 2ND RESPONDENT U/S 45A OF THE ESI ACT EXHIBIT P8 TRUE COPY OF THE ABOVE REPRESENTATION DATED 23.01.2016 SUBMITTED TO THE 2ND RESPONDENT RESPONDENTS EXHIBITS EXHIBIT R1 TRUE COPY OF THE PRELIMINARY SURVEY REPORT DATED 16.11.2011 EXHIBIT R1(a) TRUE COPY OF THE LIST OF EMPLOYEES COUNTER SIGNED BY THE PETITIONER EXHIBIT R1(b) TRUE COPY OF NOTICE NO.48000324250001101 (SROK) DATED 17/7/2012 EXHIBIT R1(c) TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 17/7/2012 EXHIBIT R1(d) TRUE COPY OF THE C-18 NOTICE NO.78000324250001101/SROT/INS DATED 18/6/2015 EXHIBIT R1(e) TRUE COPY OF THE ACKNOWLEDGMENT CARD DATED 18/6/15