M. M. Lal, J. - (1.) -In this writ petition filed by M/s. Modi Steels and another, the petitioners have prayed for a writ of certiorari to quash the impugned orders dated 21-8-1986, 15-2-1987 and 13-12-1987, by which a sum of Rs. 15,12,603/- plus interest has been claimed from the petitioners as their contribution under the Employees State Insurance Act and also for a writ of mandamus directing the respondents not to recover the said amount mentioned in the said orders.
(2.) WE have heard learned Advocate General, who appeared on behalf of the petitioners, and Sri B. N. Asthana who appeared on behalf of the respondents. Learned Advocate General appearing on behalf of the petitioners has urged that unless the aforesaid dispute is decided by the Insurance Court under section 75 of the aforesaid Act, the aforesaid amount cannot be recovered from the petitioners as arrears of land revenue under section 458 of the said Act. The said argument is misconceived because sub-section (2) of the section 45-A provides that an order made by the Corporation under sub-section (1) shall be sufficient proof for recovery of the amount determined by such order as arrears of land revenue under section 45-A of the said Act. This shows that even before the dispute is decided by the Insurance Court, the amount determined under section 45-A (1) of the aforesaid Act can be recovered as arrears of land revenue. Learned Advocate General appearing for the petitioners has, however, referred to us M/s. Krishna Mills Co. v. The Regional Director, 1973 Lab. IC 408, in which it has been observed that where an employer disputes its liability to pay contribution in respect of certain contract labour, the Regional Director of the Employees State Insurance Corporation is incompetent to decide that dispute and he cannot stay the recovery proceedings without referring the dispute to be decided by the Employees Insurance Court. He has further referred to us Regional Director, Employees State Insurance Corporation v. M/s. Fibre Bangalore (P) Limited, AIR 1980 Karnataka 86 (FB). On the basis of the said rulings learned Advocate General has urged before us that till the dispute, which the petitioners have raised before the Insurance Court under section 75 is decided, the aforesaid amount cannot be recovered from them. In our opinion the said argument is without substance and the aforesaid rulings do not help the petitioners. So far as the decision of the Karnataka High Court reported in 1973 Lab. IC 408 is concerned, the Bench was not considering the case where there was an order under section 45-A of the Act preceding the demand. With respect to the same the Full Bench of the Karnataka High Court in AIR 1980 Karnataka 86 (para 4) also observed that the decision of the Court in M/s. Krishna Mills Co. case, the Bench was not considering a case where there was an order under section 45-A of the Act preceding the damand. The Full Bench further clarified the position that in cases other than the case covered by the provisions of section 45-A of the Act, the dispute had to be decided by the Insurance Court before the amount could be recovered from the employees. This is how the Full Bench answered the question referred to in para 6 of its judgment : "Where in case to which provisions of section 45-A of the Act are attracted, the Corporation by an order made in accordance with that section determines the amount of contributions payable and that claim is disputed by the employer it would not be necessary for the Corporation to seek a resolution of that dispute before the Insurance Court. Such a claim is recoverable as arrears of land revenue. If the employer disputes the claim it is for him to move the Insurance Court for relief. In other case-other than cases where determination of the amount of contributions under section 45-A is made the Corporation, if its claim is disputed by the Employer, should seek an adjudication of the dispute before the Insurance Court before enforcing recovery."
(3.) WE are, thus, of the opinion that where an amount is determined under section 45-A of the aforesaid Act, the said amount can be recovered from the employer as arrears of land revenue under section 45-B of the Act even before the dispute with respect to the same is decided by the Insurance Court in proceedings under section 75 of the Act and that in cases other than the cases under section 45-A of the Act, the amount cannot be recovered till the dispute is decided by the Insurance Court. It may be observed at this place that admittedly the petitioners have filed a suit under section 75 of the aforesaid Act and the same is pending adjudication before the Insurance Court. Learned Advocate General appearing on behalf of the petitioners has referred to us Annexures nos. 2 and 5 and on the basis of the same has tried to urge that the amounts mentioned therein in no way can be called the wages. With respect to the same it may be noted from para 10 of the Annexure no. 5 that the corporation on the other hand has taken a stand that all the said items were infact wages. In our opinion the controversy and dispute as to whether the said items are infact wages or not can be adequately decided by the Insurance Court in the suit pending before it under section 75 of the Act.;