The show cause notice dated 20.02.1998 issued by the respondent in proceedings No.TN/INS-IV/51-52366-23/Ins.IV claiming Rs.1,58,877.84 from the petitioner in respect of arrears of contribution payable to by M/s.Leather Designs (P) Limited, 116, Mount Poonamallee Road, Nandambakkam, Chennai 600 089, for the period 1991-1992, 1992-1993 and 1993-1994 is under challenge in this petition.
2. Mr.S.Ravindran, learned counsel appearing for the petitioner contended that the impugned show cause notice is challenged by the petitioner mainly on the ground that the respondent, having already claimed contribution from the petitioner in respect of the period 1992-93 and 1993-94, is estopped from making any further claim against the petitioner for the very same period. It is contended that the petitioner received a notice on 29.10.2004 from the Recovery Officer of the Employees State Insurance Corporation claiming a sum of Rs.90,729/- as arrears of contribution, interest and damages for the period 1992-93 and 1993-94 and on receipt of such notice, the petitioner also paid the said sum of Rs.90,729/- by way of demand drafts drawn on Citibank N.A., Mumbai, bearing D.D.No.710332 for Rs.30,000/- and D.D.No.710333 for Rs.60,729/- dated 29.11.2004 payable to E.S.I.Fund A/c No.1 at Chennai, and the same were acknowledged by the Recovery Officer, ESI Corporation, Chennai.
3. It is submitted by the learned counsel for the petitioner that the impugned notice dated 20.02.1998 was received by the petitioner during the month of December 2004 claiming the arrears of contribution, interest and damages to the tune of Rs.1,58,877.84 in respect of the period 1991-1992, 1992-1993 and 1993-1994. It is contended by the learned counsel for the petitioner that the respondent is not entitled to claim the contribution of arrears, interest and damages from the petitioner for the period 1992-1993 and 1993-1994 as the respondent already claimed such contribution of arrears and the petitioner also paid the same and as such the respondent is estopped from making any further claim in respect of the said period.
4. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of this Court in Quality Engineering Works V. Regional Office (Tamil Nadu), Employees State Insurance Corporation reported in 2002-III-LLJ 913. The learned counsel for the petitioner further contended that in respect of the period 1991-1992, the petitioner may be given reasonable opportunity to put forward his objections in respect of the impugned show cause notice.
5. Per contra, learned counsel for the respondent/E.S.I. Corporation contended that the petitioner, instead of giving his objection after receiving the show cause notice, hurriedly filed the present writ petition before this Court. It is contended by the learned counsel for the respondent that enough opportunity was already given to the petitioner to appear before the respondent and to put forward his objections. It is also contended by the learned counsel for the respondent that the petitioner is having a remedy to file an appeal before the ESI Court and without exhausting that remedy the present writ petition is filed by the petitioner herein before this Court and as such this petition is not maintainable.
6. I have carefully considered the rival contentions put forward by either side and also perused the entire materials available on record including the impugned show cause notice dated 20.02.1998.
7. The main question arises for the consideration of this Court is that whether the petitioner is liable to pay the arrears of contribution, interest and damages in respect of the period 1992-1993 and 1993-1994 as claimed by the respondent through the impugned notice. A perusal of the impugned notice discloses that the respondent claimed contributions from the petitioner for two period, namely, (i) 1991-1992 and (ii) 1992-1993 and 1993-1994. It is curious to note that the said show cause notice dated 20.02.1998 was served on the petitioner only during the year 2004 and there is absolutely no explanation whatsoever put forth by the respondent for such inordinate delay. It is pertinent to note that the respondent also not filed any counter to the affidavit for the petition. The serving of the impugned notice during the year 2004 is further substantiated by two communications sent from the respondent under reference No.IV/51-52366-23 dated : nil in respect of changing the personal hearing dates from 12.01.2004 from 14.12.2004 and from 14.12.2004 to 17.01.2005 respectively. It is relevant to note as contended by the learned counsel for the petitioner, that the contribution in respect of the period 1992-1993 and 1993-1994 were claimed by the respondent and paid by the petitioner through two demand drafts drawn on Citibank N.A., Mumbai, bearing D.D.No.710332 for Rs.30,000/- and D.D.No.710333 for Rs.60,729/- dated 29.11.2004, on 30.11.2004 and subsequent to such demand the petitioner claimed that the show cause notice was served on him only in the month of December 2004 and the said facts were not disputed by the learned counsel for the respondent. Therefore, it is crystal clear that the respondent is estopped from making the claim of contribution from the petitioner for the very same periods, namely, 1992-1993 and 1993-1994 for which, amount already claimed by the respondent and paid by the petitioner.
8. The learned counsel for the petitioner rightly placed reliance on a decision of this Court in Quality Engineering Works V. Regional Office (Tamil Nadu), Employees State Insurance Corporation reported in 2002-III-LLJ 913 in which this Court has held as follows:
6. According to the petitioner, the earlier order under Section 45-A, dated May 10, 1987, was passed after hearing the petitioner in detail and perusing all the documents relating to the petitioner as well as its contracts, and therefore, the respondent is estopped from reopening the very same proceedings after an inordinate delay of six years. The respondent is not entitled to reopen the concluded issue wherein final orders had already been passed, especially when the petitioner had accepted the orders and paid the amount determined and complied with the same. In the above circumstances, it is neither possible nor feasible for the petitioner to go before the respondent and explain about the issue which was concluded long time back. The very notice of reopening is without jurisdiction, is arbitrary and vindictive in nature.
9. The principle laid down by this Court in the decision cited supra is squarely applicable to the instant case as in this case also the impugned notice contains the claim of the respondent not only for the period 1991-1992 but also for the periods 1992-1993 and 1993-1994 and as the respondent already claimed and the amount was already paid by the petitioner for the period 1992-1993 and 1993-1994, the respondent is estopped from making any further claim in respect of the periods 1992-1993 and 1993-1994.
10. The contention of the learned counsel for the respondent to the effect that the petitioner, instead of availing the opportunity to put forth his objections, hurriedly approached this Court by filing this petition and his further contention to the effect that the petitioner without exhausting his alternative remedy by filing an appeal before the ESI Court as the appeal lies before the ESI Court, filed the present petition and as such the present writ petition is not maintainable, are unacceptable and untenable.
11. At the risk of repetition, it is to be reiterated that the petitioner is mainly aggrieved in respect of the claim of arrears, interest and damages made by the respondent including the contribution pertaining to the periods 1992-1993 and 1993-1994 for which claim was already made and the amount also paid by the petitioner and as such, the impugned notice, in so far as it relates to the said periods, is issued without jurisdiction. Therefore, this Court has no hesitation to hold that the respondent has issued the impugned show cause notice arbitrarily, mechanically without application of mind and without jurisdiction in respect of the periods 1992-1993 and 1993-1994.
12. In respect of the availability of the alternative remedy, it is well-settled that the availability of alternative remedy is itself not a bar for invoking the writ jurisdiction of this Court. The Honble Apex Court has re-iterated the said settled principle of law in Committee of Management & Anr. V. Vice Chancellor & Ors. reported in 2009 (1) Supreme 101 as follows :
20. Apart from the fact that a statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr.Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one.
21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation V. Registrar of Trade Marks, Mumbai & Ors (1998) 8 SCC 1 :
15. ... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. ... (See also Guruvayoor Devaswom Managing Committee & Anr. V. C.K.Rajan & Ors. (2003) 7 SCC 546).
13. In view of the above said settled principle of law laid down by the Honble Apex Court in the decision cited supra, this Court has no hesitation to hold that the present writ petition filed by the petitioner is very much maintainable.
14. For the aforesaid reasons, this Court is constrained to quash the impugned notice in so far as the claim made by the respondent for the periods 1992-1993 and 1993-1994 in respect of the wages paid for general expenses/staff welfare and another job work. Accordingly, the show cause notice No.TN/INS-IV/51-52366-23/Ins.IV dated 20.02.1998 is hereby quashed in respect of the claim made by the respondent for the periods 1992-1993 and 1993-1994 in respect of the wages paid for general expenses/staff welfare and another job work. Consequently, the respondent is hereby directed to afford reasonable opportunity to the petitioner for making his objections in respect of the claim made by the respondent for the period 1991-1992 and the respondent shall consider such objections and pass orders on merits and in accordance with law within a period of three months from the date of first hearing. It is also made clear that the respondent shall issue notice to the petitioner informing about the date of hearing.
This petition is ordered accordingly. Consequently, connected Miscellaneous Petition is closed. No costs.
gg To The Deputy Director, Office of the Regional Officer (Tamil Nadu), ESI Corporation, 143, Sterling Road, Nungambakkam, Chennai 600 034