1. By way of this petition, the petitioner has prayed for following reliefs:-
(A) Your Lordships may be pleased to admit and allow the present petition with cost.
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction, holding and declaring that in view of special provisions contained in Section 45G(3)(i) of ESI Act, Respondent No.1/ Respondent no.2 bank must deposit the amount forthwith in the ESI Fund A/C no.1 and further be pleased to direct to deposit the amount forthwith in ESI Corporation.
(C ) Your Lordships may be pleased to issue an appropriate writ, order or direction holding and declaring that the Respondent No.3 has no authority to challenge any order on behalf of Respondent No.2 bank passed by the petitioner against the Respondent No.2 Bank.
(D ) Pending hearing and final disposal of present petition, Your Lordships may be pleased to pass appropriate writ, order or direction, as an interim relief, stay the order passed by ESI Court dated 15.12.2010 and further be pleased to direct the respondent No.1 to deposit the amount to the tune of Rs.1,71,890/- in the ESI Fund A/C No.1 of petitioner Corporation.
(E) An ex parte ad interim relief in terms of para 12(D) above may kindly be granted.
(F)xxx"
2. The short facts leading to filing of this petition are that the petitioner herein, a Corporation, has been established under the benevolent legislation viz. Employees State Insurance Act, 1948 (hereinafter referred to as "the Act" for brevity). Respondent No.3, herein is the original defaulter No.3 as he did not pay the statutory dues to the petitioner-Corporation, since July 2009. Therefore, present petitioner initiated recovery proceedings against the respondent No.3. The present respondent No.3 challenged the action of the petitioner before ESI Court at Ahmedabad. The ESI Court granted the stay on condition to deposit 50% of the amount mentioned in the Recovery Certificate. However, the respondent No.3 did not obey the order of the ESI Court. Thereafter, the petitioner filed an application below Ex.14 to vacate the stay in the proceedings. The ESI Court allowed the said application.
2.1. Being aggrieved by the said order the respondent No.3 preferred a writ petition being SCA No.1002 of 2011 before this Court. However, the said petition came to be withdrawn. Thereafter, the petitioner-Corporation issued notice to the respondent No.3 to deposit the amount of statutory interest. Thereafter, the petitioner issued an order u/s 45G(3)(1) to the Banker of the respondent No.3 employee i.e. respondent No.2, herein, to attach the bank account and transfer the fund to the petitioner's account. However, the respondent No.2-Bank did not transfer the fund in the said account. Against the said action of the respondent No.2, the present petition is filed by the petitioner.
3. Learned advocate for the petitioner contended that the action of the respondent No.1 and 2 in not transferring the fund of the respondent No.3 in petitioner's account is illegal, against the special provisions of Section 45G(3)(i) of the ESI Act. Section 45G(3)(i) of the ESI Act, reproduced as under:-
"The Director General or any other officer authorized by the Corporation in this behalf may, at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the factory or establishment or, as the case may be, the principal or immediate employer or any person who holds or may subsequently hold money for or on account of the factory or establishment or, as the case may be, the principal or immediate employer, to pay to the Director General either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due from the factory or establishment or, as the case may be, the principal or immediate employer in respect of arrears or the whole of the money when it is equal to or less than that amount."
4. I have heard learned advocate appearing for the parties and perused the record. As regard the contention raised by learned counsel for the petitioner that the respondent-Bank must be considered as deemed defaulter for non-compliance of the instruction given by the petitioner-corporation to transfer the funds of the respondent No.3 to its account is concerned, I am of the view that the said contention is misconceived, since the Bank cannot be held responsible for the default committed by a customer. At the most, the petitioner-Corporation could have requested the respondent-Bank to freeze the account of respondent No.3 or to categorize it in any other account as per the Banking Rules. This Court is of the considered opinion that for the default committed by a customer, i.e. respondent No.3, the respondent-Bank could not be held to be a deemed defaulter. Therefore, the present petition does not deserve to be entertained and is accordingly dismissed. Notice is discharged.
[K.S.JHAVERI,J.] pawan Top