Jharkhand High Court
Jameshedpur Blood Bank (Jbb) vs State Of Jharkhand & Ors on 27 September, 2012
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4810 of 2007
Jamshedpur Blood Bank (JBB), Jamshedpur... ... Petitioner
-V e r s u s-
The State of Jharkhand and Ors. ... Respondents.
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CORAM: - HON'BLE MR. JUSTICE APARESH KUMAR SINGH.
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For the Petitioner : - Mr. Manish Mishra, Advocate
For the Respondent (ESIC) : - Mr. Rajan Raj, Advocate
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05/27.09.2012Heard learned counsel for the parties.
The demand notice dated 18.06.2007 issued by the Employee State Insurance Corporation for recovery of its contribution for the period from April, 2002 to April, 2007 amounting to Rs. 04,99,820/- from the petitioner, is under challenge in the present writ petition.
According to the petitioner, it is a society registered under the Society Registration Act 1860 having Registration No. 414/1978-79 and has separately applied after bifurcation of the State for fresh registration. The petitioner received demand notice dated 18.06.2007 by the Corporation under Sections 39/40 of the Employee State Insurance Act, 1948 for assessment of its contribution for the period from April, 2002 to April, 2007 and the demand of Rs. 04, 99,820.75/- has been raised for the said period, which is impugned hereinabove.
Counsel for the petitioner submits that no notification as contemplated under Section 1(5) of the Act of 1948 has been issued by the appropriate government, in this case being the government of Jharkhand bringing the petitioner under coverage of the said Act.
It is further submitted that petitioner is providing better medical facility to its employee having those available in the hospital maintained by the corporation. It is further submitted that alternative remedy of appeal before the concerned court is an onerous remedy as the respondents have raised the demand for five years in one go by the impugned demand notice and they would be required to make a pre deposit while availing alternative remedy.
Learned counsel for the respondent-Corporation, on the other hand, submits that by referring to Annexure-A to the counter affidavit being memorandum dated 17.11.1997 and 19.06.1997 by which it has been indicated that all pathological labs including those dealing with blood bank fall within the definition of factory in view of the judgment in the case of Subodh S Shah & Others Vs. Director Food & Drugs Control Office, Ahemadabad reported in AIR 1997 Gujarat 83. It is submitted that as per the said judgment tapping, collecting, cross-matching and keeping in bottles by the blood bank concerned amounts to manufacture of blood and human blood is a drug, which are covered under Section 2(12) of the ESI Act, 1948 other than blood bank pathological labs, which are located in the hospitals and meeting the requirement of the patients admitted in those hospitals. Learned counsel for the respondents also disputes the contention of the petitioner that appropriate notification under Section 1(5) of the Act is required to be issued in the instant case for bringing the petitioner under the coverage of the Act as the petitioner is covered by the provision of 1(3) of the Act, which has already been held hereinabove being the factory within the meaning of Section 2(12) of the Act, 1948. Learned counsel for the respondents further refutes the contention of the petitioner that medical facilities in ESIC are inadequate and submits that it is not a ground to relieve the petitioner of statutory liability to pay the contribution under the Act which is a beneficial legislation for amelioration of the deprived class like the workmen and employees working under factory etc. Having heard learned counsel for the parties, it is apparent that the petitioner's society is covered under the provision of Act, 1948 as also indicated by notification vide Memorandum dated 17.11.1997 (Annexure-A). The petitioner's society being covered under the definition under Section 2(12) of the Act, 1948, therefore no separate notification as contemplated under Section 1(5) appears to be mandatory on the part of the appropriate government for bringing the organization under ESI Law as the petitioner being blood bank comes within the coverage of the Act. The petitioner has alternative remedy to avail under Section 75 of the ESI Act, 1948, under the aforesaid Act where all issues of facts and law can be raised. Therefore in exercise of writ jurisdiction, I see no reason to interfere in this writ petition and to allow the same bypassing the alternative remedy.
In these facts and circumstances, this writ petition is without any merit and it is accordingly, dismissed.
(Aparesh Kumar Singh, J.) Kamlesh/