Madras High Court
The Deputy Regional Director vs A.Harikrishnan on 5 July, 2021
Bench: M.M.Sundresh, R.N.Manjula
W.A.No.814 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
W.A.No.814 of 2021
1.The Deputy Regional Director
Employees' State Insurance Corporation,
143, Sterling Road,
Chennai – 600 034.
2.The Recovery Officer,
Employees' State Insurance Corporation,
143, Sterling Road,
Chennai – 600 034 .. Appellants
Vs
A.Harikrishnan .. Respondent
Appeal filed under Clause 15 of Letters Patent against the order
dated 18.09.2009 made in W.P.No.9673 of 2003.
For Appellants : Mr.G.Bharadwaj
For Respondent : Mr.Prakash Gokaleney
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W.A.No.814 of 2021
JUDGMENT
(Delivered by M.M.SUNDRESH, J.) This appeal has been preferred by the appellants against the order of the learned Single Judge, who interfered with the consequential order of recovery on the premise that the respondent/writ petitioner has got no connection with the establishment and the said connection has not been proved by the appellants.
2. Learned counsel appearing for the appellants submitted that the proceedings have been pending for decades. On an earlier occasion, a writ petition was filed by the very same respondent/writ petitioner in W.P.No.992 of 1995 which was dismissed on 25.07.2002, inter alia, holding that without challenging the order passed under Section 45A of the Employees State Insurance Act, the writ petition filed is not maintainable. Therefore, the order of the learned Single Judge under appeal cannot be sustained. Even here, the order passed under Section 45A of the Act dated 18.11.2002 has not been challenged but only the consequential recovery proceeding. The writ petitioner cannot re-agitate the same, especially after filing the suit in O.S.No.2193 of 2003.
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3. Learned counsel appearing for the respondent submitted that the order of the learned Single Judge does not warrant interference and in any case, the appeal having been filed after more than a decade need not be entertained particularly when the employees are no more.
4.The respondent initially challenged the notice in Form-C18 dated 31.07.1978 by filing a writ petition in W.P.No.4045 of 1978 and this was dismissed. Subsequently, he challenged the order passed under Section 45A of the Act dated 23.09.1992 in E.I.O.P.No.14 of 1986 before the E.S.I. Court, which was also dismissed.
5. Thereafter, the appellants initiated recovery proceedings and issued recovery certificate. This was again challenged in E.I.O.P.No.56 of 1984 and obviously the same was dismissed. Not satisfied with the same, the respondent once again filed another writ petition in W.P.No.992 of 1995 which was dismissed by the Court on 25.07.2002 holding that the recovery proceedings cannot be challenged. A civil suit was also filed by the respondent in O.S.No.2193 of 2003. Once again, recovery proceedings were sought to be challenged before the learned Single Judge. As the learned Single Judge has mistakenly allowed the writ petition, the appellants rightly filed the present appeal. Page 3 of 5 https://www.mhc.tn.gov.in/judis/ W.A.No.814 of 2021
6. From the above said facts, it is clear that the respondent attempted to avoid the payment. The contention that he has got nothing to do with the company cannot be accepted, as it was he who initiated the proceedings on the earlier occasion. Therefore, he cannot feign ignorance especially after filing the writ petition on the earlier occasion apart from the proceedings initiated at his instance earlier including the civil suit. We are inclined to uphold the contention of the appellants that the consequential order cannot be challenged. In this connection, we have also taken note of the order passed by the Apex Court in E.S.I.C. Vs. C.C.Santhakumar (Appeal (Civil) No.4291 of 2000) to the effect that without challenging the order passed under Section 45A of the Act, no challenge can be made to the consequential order.
7. Accordingly, the order of the learned Single Judge dated 18.09.2009 made in W.P.No.9673 of 2003 stands set aside and the writ appeal stands allowed. No costs.
(M.M.S., J.) (R.N.M., J.)
05.07.2021
Index:Yes/No
mmi/ssm
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W.A.No.814 of 2021
M.M.SUNDRESH, J.
and
R.N.MANJULA,J.
mmi
W.A.No.814 of 2021
05.07.2021
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