AI Structured Summary
Not yet generated for this judgment
Judgment
K. Chandru, J.—Heard both sides.
The Petitioner claiming to be the Managing Partner of M/s. Es see Cans filed the pre sent Writ Petition challenging the pro clamation of att achm ent made in respect of the 3rd res pondent ''s prop erty under Sections 45C to 45I of the ESI Act made by the 2nd res pondent published in the Hind u Newspaper dat ed 4.3.2007 and Daily Than thi dat ed 7.3.2007.
The Writ Petition was admitted on 5.4.2007. Pending the Writ Petition, this Court granted an in terim stay of further proceedings in the procla mation of sale. Notice was directed to be taken by the Standing Counsel. Accordingly, Mrs. S. Jeya kumari, learned Counsel appears for the 2nd res pondent.
The respondents also filed a counter affidavit dated 20.10.2008. In the counter, in par agraph 13, it was stated as follows:
It is submitted that since M/s.SRK Indu stries and it s partner Mr. C. Seshadhri, Partner (Petitioner ''s brother and one of the partner along with the Petitioner in M/s. Essee Cans P. Ltd.) continued to be a chronic def aulter, the recovery officer proceeded further with the is sue of show cause notice in Form C18 (adhoc) dated 8.9.03 for the further period from 4/02 to 3/03 prop osing to det ermine the contribution of Rs. 27, 885/-as per the Act based on the ava ilable in for mation affording an opportunity of being heard on 11.11.03 to both the factory address and resid ence address of the partner. Since the factory M/s SRK Indu stries the partner Mr. C. Seshadhri ne it her appeared before the recovery officer on the said date nor complied, the recovery officer had to invoke Section 45A of the Act and passed an order dated 12.3.04 determining contribution of Rs. 27,885/-for the period from 4/02 to 3/03 which is valid, legal and main tainable. Even after the issue of the 45A order, either M/s SRK Industries or the partner Mr. C. Seshadhri, partner (Petitioner ''s brother and one of the partner along with the Petitioner in M/s. Essee Cans P Ltd.) failed to utilize the opportunities of personal hearings and to comply as per the Act , the recovery officer has no other option to refer the case to the to the 2nd respondent recovery officer vide Recovery Certificate in Form C19 dated 1.6.04 to recover Rs. 34,009/-(Contribution Rs. 27,885/-% interest Rs. 6,124/-) for the period from 4/02 to 3/03 u/s 45C to 45I of the ESI Act. This is valid, legal and enforceable consequential action.
The Petitioner as against the proclamation of sale had also moved the ESI Court in CMP Nos. 199 and 200 of 2003 and the fact of moving the ESI Court is set out in paragraphs 14 and 15, which reads as follows:
In the mean time , the partner Mr. C.S eshadhri, partner (petitioner''s brother and one of the partner along with the petitioner in M/s. Essee Cans P. Ltd.) had filed petitions in ESI Court vide 1) CMP Nos. 199 and 200 of 2003 against C19 recovery certificate in No. TN/I ns.VIII/51 -58198/57/C19/3051 dated.10/28.4.03 for Rs. 16,573/-for the period from 10/01 to 3/02; 2) CMP Nos. 201 and 202 of 2003 against C19 recovery certificate in No. TN/I ns.VIII/51 -58198/57/C19/2363 dated.10/28.4.03 for Rs. 2,71,519/ -for the period from 4/94 to 9/01 and all the CM Ps of 199,200 , 201 and 202 of 2003 were dismissed for his default.
Even after the above mentioned show cause notices /45A orders/Recovery Certificates/Dismissal of CM Ps 4 nos./Personal hearing not e by the recovery officer on 5.4.2003, M/s.SRK Indu stries, or the partner Mr. C. Seshadhri, Partner (Petitioner''s brother and one of the partner along with the Petitioner in M/s. Essee Cans P. Ltd.) did not have any inclination to comply as to settle the is sue as per the provisions of the Act , the recovery officer had issued further show cause notice in Form C18 (adhoc) dated 6.8.04 proposing to claimc on attribution of Rs. 27,885/-for the further period from 4/02 to 3/04 to determine the same as per provisions of the Act after affording an opportunity of being heard on 23.8.04 to both the factory and resid ence address of the partner Mr. C. Seshadhri, Partner (Petitioner''s brother and one of the Partner along with the Petitioner in M/s. Essee Cans P. Ltd.) failed to appear before the recovery officer on the date of personal hearing on 28.8.04 the recovery officer had no other alternative than to invoke Sec. 45A of the Act to determine the con attribution and passed order under Sec. 45A of the Act dated 24.2.05 for Rs. 27, 885/-for the period from 4/03 to 3/04 and issued the same to both the factory address and residence address of the Partner Mr. C. Seshadhri which is legal, valid and maintainable. Since there was no response from both the parties, the recovery officer referred the case to the 2nd respondent recovery officer vide recovery certificate in Form C19 for Rs. 33 ,693/-(contribution Rs. 27,885/-+ interest Rs. 5,808/-) dated 26.4.05 to recover the same u/s 45C to 45I of the Act. This is valid, legal and enforceable consequential action.
Though in the affidavit in page 5 it is stated that they had no choice except to approach this Court under Article 226 of the Constitution, there is no reference to their having availed the remedy in terms of the provisions of the ESI Act and also there is no reference to their moving the ESI Court in this regard. This action of the respondents is clearly reprehensible.
In any event, the contentions that the respondents have no right to attach the property, which does not belong to the Petitioner and on the earlier action they moved against some other company are not the questions which are not gone in to by This Court in exercise of Article 226 of the Constitution of India. In case of improper attachment pursuant to the power exercised under the Act, the Act it self provides sufficient remedy u/s 45H of the ESI Act. This Section incorporates the II and III The Income Tax Act unde r II Schedule more particularly Sections 10 and 11 clearly provides recovering officer making enquiries with reference to the ownership and in case of objection regarding ownership also, that renders a finding and if so he can release the said properties being brought under sale. Further, there is also a remedy regarding the liability by raising a dispute before the ESI Court u/s 75 of the ESI Act and failing which, even further appeal lies before This Court u/s 82 of the Act.
However, learned Counsel for the Petitioner strenuously contended that Article 21 provides for living with dignity and the attachment of the Petitioner''s property cannot be the appropriate course. Though there may be alternative remedy, it is the question of discretion and therefore This Court having admitted the Writ Petition and granted in terim stay, they cannot be non-suited at This juncture. It is unnecessary to state that even in terms of Article 21, it does not give any liberty to disobey the laws of the land and the question of living with dignity includes abiding the laws made by the appropriate legislature.
On the question of the above term, it is necessary to refer to the judgment of the Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, . The Supreme Court in the said judgment in paragraph Nos. 29 to 31 held as follows:
By referring to the aforesaid schemes under different statutes, This Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute it self. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory in terpretation is war ranted either to widen or restrict the same.
The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fund amental to be questioned especially after the judgment of the Constitution Bench of This Court in L. Chandra Kumar v. Union of India. However, that does not answer the question of maintainability of a Writ Petition which seeks to impugn an order declining dispensation of pre-deposit of pena lty by the Appellate Tribunal.
When a statutory forum is created by law forredressal of grievance and that too in a fiscal statute, a Writ Petition should not been tertained ignoning the statutory dispensation. In This case the High Court is a statutory forum of appeal on a question of law. That should not be abdicted and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a man if ester or by not appreciating This aspect of the matter. It has however dismissed the Writ Petition on the ground of lack of territorial jurisdiction.
Further, in paragraph No. 35, the Supreme Court has held as follows:
In This case, liability of the appellant is not created under any common law principle but, it is a clearly a statutory liability and for which the statutory remedy is an appeal u/s 35 of FEMA, subject to the limitations contained the rein. A Writ Petition in the facts of This case is the re fore clearly not maintainable.
In the light of the above, no case is made out. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition stands closed.