- (1.) THE petitioner-company is aggrieved by the decision of the respondent to cover the petitioner-company under the provisions of the Employers State Insurance Act, 1948 (ESI Act ). It is further aggrieved by an order passed by the competent authority under section 45 (A) of the ESI Act determining the amount of contribution payable in respect of employees of the petitioners factory and a further order passed by the competent authority under section 45 (C) of the ESI Act issued to the Recovery Officer for recovery of the arrears of the ESI contribution payable by the petitioner company. Finally it has also challenged the order of Employees Insurance Court (EI Court) passed on 20th January, 1998 in Application (ESI) No. 96 of 1986 filed by the petitioner company to challenge the aforesaid orders passed by the competent authority under the Act. The EI Court has exercised its jurisdiction to decide the said application under section 75 of the Act holding that on the facts and circumstances of the case and oral and documentary evidence the petitioner company was rightly covered under the ESI Act and was liable to pay the contribution determined by the Regional Director of the respondent Corporation under section 45 (A) of the Act for the period from September 1979 to March 1984 with interest. The EI Court rejected the application of the petitioner company and declared that it was rightly covered from September 1979 and it was liable to pay the contribution determined by the Corporation with statutory interest thereon till the date of payment.
(2.) THE petitioner company has chosen to file the present writ petition under Article 226 of the Constitution of India invoking the extra ordinary jurisdiction of the High Court to impugn the aforesaid orders of the competent authority and also the order of the EI Court at Mumbai, instead of filing a substantive appeal as provided under section 82 of the ESI Act. Shri H. V. Mehta, the learned Counsel for the respondent has questioned the maintainability of the writ petition when the Act has provided substantive appeal against the orders of the EI Court passed under section 75 of the ESI Act. According to the learned Counsel the present writ petition would not lie and cannot be entertained and decided by the High Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India when an appeal has been specifically provided by the said Act. Shri Mehta contended that the petitioner company has not availed of the statutory remedy under the Act and has filed the present petition by passing the statutory remedy of appeal. Secondly Shri Mehta has also submitted on merits that the E. I. Court established under the ESI Act has considered the facts and circumstances and the whole evidence on record, documentary and oral, and has given its findings and has also given cogent reasons for its conclusions. The Court has considered the bare facts on record and therefore, this Court in its writ jurisdiction cannot enter into the controversy on the question of facts which have been finally concluded by the EI Court which is a Court of facts finding. According to Shri Mehta, the findings and conclusions arrived at by the Court are based on evidence and are not perverse, warranting any interference in the impugned judgment and order of the Court under Article 226 of the Constitution of India.
(3.) SHRI S. C. Naidu, the learned Counsel for the petitioner company has strenuously submitted that in the given circumstances of the case, the present petition is maintainable as the order of the competent authority to cover the petitioners factory is in violation of the mandatory provisions of the Act and the principles of natural justice and the same is, therefore, null and void. Secondly, he has submitted that the exercise of power under section 45 (A) by the competent authority is not legitimate as the conditions which are prescribed in the section were not complied with and there is no application of mind by the competent authority before passing the order of coverage of the factory of the petitioner company. Shri Naidu has emphasied that it was not the case of the Corporation that the petitioner company had not filed returns or had not submitted or furnished particulars, registers or records in accordance with the provisions of section 44 or that the petitioner company had not maintained accounts in accordance with the section 44 or that the Inspector to the officer of the Corporation was prevented in any manner in exercise of his function or discharging his duties under section 45 of the Act. Shri Naidu has stressed the point that the petitioner company has submitted returns, particulars, registers and all records and has not violated the provisions of section 44 or 45 for that matter in other provisions of the Act and therefore, the order passed by the competent authority under the extra ordinary provisions of section 45 (A) was void ab initio. He has also pointed out that before invoking section 45 (A) which according to the learned Counsel is all draconian, the petitioner company was not given a reasonable opportunity of being heard. It was vehemently argued by Shri Naidu that the conditions prescribed in section 45 (A) are conditions precedent and are mandatory in nature which must be observed strictly by the competent authority exercising the said powers. He has further tried to point out from the evidence on record that the petitioner company had maintained all the records as prescribed under the law and has submitted the returns as required and that there was no breach of any provisions of law, warranting resort to such a draconian section 45 (A) of the Act. He has pointed out that the order to cover the petitioner is totally erroneous as from the report of the Inspector who visited the factory it was clear that only 8 employees were employed and, therefore, there was absolutely no reason or ground to apply the provisions of the Act to the factory of the petitioner. He has also pointed out that the determination and calculation of arrears of contribution and the recovery certificate are bad in law and that they also require to be quashed and set aside as a consequence. Shri Naidu also contended that before passing the order under section 45 (A) the petitioner company was not furnished with any documents which were relied upon by the competent authority and therefore, it had no reasonable opportunity to meet the case of the Corporation. The order passed by the competent authority under section 45 (A) was an unreasoned order and was, therefore, amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Shri Naidu has submitted that he has also challenged the aforesaid order of coverage and determination of arrears of contribution under section 45 (A) of the Act. Shri Naidu has criticised the exercise of power in the manner in which it was done as an abuse of process of section 45 (A) as the contigencies which are narrated in the section were not present. Since section 45 (A) and all other further provisions upto 45 (g) which follow orders under section 45 (A) of the Act are of draconian nature and any infraction of the provisions would attract penal provisions, the competent authority must strictly comply with section 45 (A) of the Act. Shri Naidu has also given emphasis that no hearing was given to the petitioner company before passing the orders under section 45 (A) of the Act. Shri Naidu has next contended that the EI Court has also not considered the aforesaid contentions raised by the petitioner company and has not applied its mind to the facts and circumstances of the case and the entire material on record including oral and documentary evidence and therefore, the impugned order of the E. I. Court is perverse.;