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Judgment
Rakesh Tiwari, J.—Heard Sri Ajay Rajendra, counsel for the petitioner and Sri Rajesh Tiwari for the respondents.
Petitioner No. 1 is a cooperative society registered under UP. Cooperative Societies Act, 1965 having its head office at Zila Parishad Bazar, Muzaffarnagar. The petitioner No. 2 is its Secretary whereas petitioner No. 3 is its employee.
Contention of the counsel for petitioner is that petitioner is not covered by the provisions of Employees State Insurance Corporation Act, 1948 (hereinafter referred to as ESIC Act) as it is a cooperative society and does not engage any worker and hence it is not liable to pay ESI contribution in respect of its employees.
It is stated that petitioner transacts the business of providing fertilizer to the farmers and for this purpose the work of fertilizer transportation has been given to a contractor namely M/s. Tomar Transport, 25A, Nai Mandi, Muzaffarnagar, which owns trucks and engages workers for doing the work independently. The said contractor pays wages/salary to its employees for the work done by them and the petitioner has no control over employees of the contractor.
It is further submitted that notices had been issued by the Employees State Insurance Corporation claiming contribution of 22 employees employed for the period 1.3.2004 to 30.9.2004 along with 15% interest, which has been disputed by the petitioner on the aforesaid ground of nonapplicability of the ESIC Act. The petitioner has also filed Suit No. 1 of 2007 challenging the recovery proceedings by the Corporation in pursuance of letter dated 4.3.2004, by which a demand for recovery of Rs. 42, 505/ was made. In the aforesaid suit, the petitioner has filed an application for interim injunction and has deposited Rs. 20, 260/ on 1 7.3.2007 through treasury challan.
It is also submitted that Civil Judge (S.D.), Meerut nominated as ESI Court, has also granted interim injunction restraining the respondents from making recovery of Rs. 40, 505/ from the petitioner on the basis of letter dated 4.3.2004 during pendency of the suit and if the subsequent recovery certificates are not challenged in writ petition, it would result in multiplicity of suits which the employer may be compelled to file.
Grievance of the petitioner is that after the injunction order was passed, recovery certificates in respect of contractor employees have been issued by the ESI against the petitioner for subsequent period and hence the present petition. Sri Ajay Rajendra, counsel for the petitioner has relied upon judgment rendered by the High Court in Indian Steel and Wire Products Ltd. Kolkata v. State of Jharkhand and others, 2008 (116) FLR 1095, wherein notices for recovery of contribution issued under Section 45B of the Employees'' State Insurance Act, 1 948 were stayed during pendency of application of the petitioner in that case for grant of exemption. The facts of that case are totally different from this case. In that case, the employer had not disputed coverage under the Act and had filed an application for grant of exemption from rigours of the Act under Section 87 of the Act, as such the Court directed the competent officer in the corporation to decide petitioner''s application for exemption, whereas in the case at hand the petitioneremployer has challenged applicability of the Act itself and has already filed a suit in which following issues have been framed:
In the circumstances, contention of the petitioner that if he challenges the notices in the civil suit, it will result in multiplicity of the proceedings, does not appear to be correct. In fact if notices are challenged in writ petition, it would be multiplicity of the proceedings for the reason the petitioner can move an injunction application along with application for amendment in the suit already pending to avoid filing of multiple suits, on which the Court below may pass appropriate orders.
Therefore, without entering into merits of the case, the writ petition is dismissed at this stage. No order as to costs.