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Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception: Telangana High Court

A petition before the Telangana High court was disposed of and the court directed the petitioner to approach the Employees’ Insurance Court under section 75 of the ESI Act 1948 by filling the appropriate application in the case of C. Chandra Mohan Reddy vs Union Of India (WRIT PETITION No.30176 OF 2021) decided through the learned bench led by G.Radha Rani. 

Facts of the Case: The petitioner in partnership with P. Praveen Kumar worked in a company called Isha Engineering that is engaged in the field of mechanical, electrical, and electronic engineering. The petitioner’s establishment was registered under the respondent’s corporation i.e. ESI. Later it was found that the firm sustained loss and hence the partnership was closed in the year 2011. And since it was alleged that the petitioner had no contact with the managing partner, the petitioner failed to pay his part of the contribution for certain years as well as never responded to any notice served. Thus, ESI determined contribution under Section 45 ESI Act and issued an order under Section 45A as none of the partners were able to bring any record regarding the closure of the establishment and despite bringing the said fact to the notice of the respondents, the respondents were insisting for payment of the said amount leading to the filing of the petition by the petitioner.

According to the counsel of the respondent an alternative remedy was granted to him by section 75 of the ESI Act. The petitioner filed the writ petition invoking the extraordinary jurisdiction of the high court without availing the said remedy and so on this grounds, the writ petition can be dismissed. It was further elaborated that both the partners have supervision and power over the business meaning the petitioner was not a dormant partner. Even if the whereabouts of the Managing Partner were not known, the petitioner was responsible person to clear the recovery dues. They said that the respondent Corporation followed the due process as per the ESI Act 1948.The petitioner failed to produce relevant documents or proof of evidence about the closure of the unit and prayed to dismiss the petition by vacating the interim order.

Judgment: –  The court observed that the alternative statutory remedy is not a constitutional bar to the High Court’s jurisdiction under Article 226 of the Constitution of India in at least three contingencies, first where the writ petition seeks enforcement of any of the fundamental rights, second where there is a violation of principles of natural justice, and third where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. Elaborating further the court said that in the given case the writ petition was not filed for either enforcement of any Fundamental Rights or was there any violation of the Principals of Natural Justice. It was evident that show cause notice was issued and an opportunity was provided to the petitioner to submit his written representation for a personal hearing which he availed by sending his representative and at last, the order passed is not without jurisdiction nor is it vires of any Act challenged in this case.

Its on the petitioner as he failed to produce the documentary evidence that supported his stance about the closure of the firm and also the petitioner directly approached the High court without availing the statutory remedy of appeal provided under the Act. Therefore, the HC cannot move further with the case and such disputed issues are to be decided with reference to the original documents and evidence to be produced by the respective parties. The Court thus held that “Writ Petition is disposed of directing the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application and the EI Court is directed to dispose of the said application in accordance with law. The respondent shall not take any coercive steps for recovery of the purported due amount from the petitioner for a period of 60 days.”

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JUDGEMENT REVIEWED BY MANAL NASEEM

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