The North Coimbatore Food Corporation of India Workers Labour Contract Co-op. Society Ltd. vs The Joint Director Employees State Insurance Corporation, The Recovery Officer Sub-Regional Office Employees State Insurance Corporation and The District Manager Food Corporation of India

K. Chandru, J.—The Petitioner is a Labour Contract Cooperative Society and undertook the work of loading and unloading of food grain bags from Railway wagons and Trucks etc. The Petitioner society was imposed with a liability of demand u/s 45-A of the ESI Act by order dated31.12.2001. The Petitioner did not challenge the said order in the manner known to law. Subsequently, when proceedings of recovery was initiated by the Corporation, invoking Section 45-G of the ESI Act, the Petitioner society started making a claim that the liability of recovering the amount lies with the principal employer under the ESI Act and not the society. After some correspondence, when there was no action and also getting breathing time from the Department, they filed the present Writ Petition.

The Writ Petition was admitted on 14.6.2005. Pending the Writ Petition, in the application for interim relief, only Notice was ordered. On notice from this Court, the Respondents have filed a counter affidavit dated30.8.2008. In the counter affidavit, it was stated that the Petitioner society is the principal employer and they alone are liable for the contributions towards the employees engaged in loading and unloading operation and the contract between the Petitioner society and the Food Corporation of India clearly provides for the statutory liability arising out of the employers under various enactments including Factories Act, Workmen''s Compensation Act, Provident Fund Act and any other similar enactments. It is the liability of the Contractors and not of the principal employer.

Though Mr. N. Manokaran, learned Counsel for the Petitioner society contended that there is no reference to the ESI Act in the agreement, it is needless to state that ESI Act is akin to the provisions of the Workmen''s Compensation Act and both the enactments are mutually inclusive. Otherwise the term ''similar enactment'' will only refer to other labour enactments. If the Petitioner society is aggrieved by the order passed u/s 45A of the Act and that cannot be challenged before this Court on any ground and in the absence of challenge to Section 45-A Notice before the ESI Court u/s 75 of the Act, it can become final and the Corporation is entitled to execute the said order by invoking coercive machinery.

The Supreme Court in E.S.I.C. Vs. C.C. Santhakumar, held that in respect of a notice u/s 45-A of the ESI Act, which is not challenged u/s 75 of the Act, the authorities can deem it as a final order and proceed to recover the amount. It is necessary to refer to the following passages found in paragraphs 17, 25, 28, 30 and 31 of the said judgment, which are as follows:

Prior to the incorporation of Section 45-A under Act 44 of 1966, the only resort available to the Corporation was Section 75, for recovery of contribution through the court. Since this procedure was found to be impracticable and delayed process involved, a special provision was contemplated where under adjudication is to be made by the Corporation itself. By reason of incorporation of Section 45-A with effect from 17-6-1967, it be came possible for the Corporation to have determination of the question, binding on the principal employer, without resorting to the ESI Court. In regard to the order u/s 45-A, the same is enforced, as envisaged u/s 45-B, which was similarly brought in to the Act, by which the contribution may be recovered as arrears of land revenue. With regard to the decision reached by the ESI Court in the application u/s 75, the said decision is enforced, as envisaged in subsection (4) of Section 75 as if it is a civil court. The mode of recovery u/s 45-B of the Corporation and the mode of recovery as per Section 75(4) by the ESI Court as the civil court are entirely different as both Sections 45 and 75 operate in different spheres.

Section 45-A of the Act contemplates a summary method to determine contribution incase of deliberate default on the part of the employer. By Amendment Act 29 of 1989, Sections 45-C, 45-I were inserted in the Principal Act, for the purpose of effecting recovery of arrears by attachment and sale of movable and immovable properties or establishment of the principal or immediate employer, without having recourse to law or the ESI Court. Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to either a suit, appeal or application in the court. u/s 68(2) and Sections 45-C to 45-I, after determination of contribution, recovery can be made straight away. If the employer disputes the correctness of the order u/s 45-A, he could challenge the same u/s 75 of the Act before the ESI Court.

What Section 75(2) empowers is not only the recovery of the amounts due to the Corporation from the employer by recourse to the ESI Court, but also the settlement of the dispute of a claim by the corporation against the employer. While this is so, there is no impediment for the Corporation also to apply to the ESI Court to determine a dispute against an employer where it is satisfied that such a dispute exists. If there is no dispute in the determination either u/s 45-A(1) or u/s 68, the Corporation can straightaway go for recovery of the arrears.

The legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. So, the non-availability of the records after five years, as per the Regulations, would not debar the Corporation to determine the amount of arrears. Therefore, if the provisions of Section 45-A are read with Section 45-B of the Act, then, the determination made by the Corporation is concerned. It may not be final so far as the employer is concerned, if he chooses to challenge it by filing an application u/s 75 of the Act. If the employer fails to challenge the said determination u/s 75 of the Act before the Court, then the determination u/s 45-A becomes final against the employer as well. As such, there is no hurdle for recovery of the amount determined u/s 45-B of the Act, by invoking the mode of recovery, as contemplated in Sections 45-C, 45-I.

In ESI Corpn. v. F. Fibre Bangalore (P)Ltd. it was observed that it is not necessary for the Corporation to seek a resolution of the dispute before the ESI Court, while the order was passed u/s 45-A. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim, it is for him to move the ESI Court for relief. In other cases, other than cases where determination of the amount of contributions u/s 45-A is made by the Corporation, if the claim is disputed by the employer, then, it may seek an adjudication of the dispute before the ESI Court, before enforcing recovery.

In the light of the same, the Writ Petition stands dismissed. No costs. Consequently, the connected Miscellaneous Petition stands closed. However, dismissal of the Writ Petition will not prevent the Petitioner to move the ESI Court, if so advised.