High Court Kerala High Court

Kerala State Drugs And … vs Employees State Insurace … on 13 February, 2009

Kerala High Court
Kerala State Drugs And … vs Employees State Insurace … on 13 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 4563 of 2009(R)


1. KERALA STATE DRUGS AND PHARMACEUTICALS
                      ...  Petitioner

                        Vs



1. EMPLOYEES STATE INSURACE CORPORATION
                       ...       Respondent

2. ALAPPUZHA DISTRICT CO-OPERATIVE BANK,

3. STATE OF KERALA, REP. BY THE PRINCIPAL

                For Petitioner  :SRI.V.JAYAPRADEEP

                For Respondent  : No Appearance

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :13/02/2009

 O R D E R
                          ANTONY DOMINIC, J.
                    -------------------------
                       W.P.(C.) No.4563 of 2009
              ---------------------------------
             Dated, this the 13th day of February, 2009

                            J U D G M E N T

The petitioner is a Government company. It is stated that it is a

Relief Undertaking as per Ext.P2 notification issued by the 3rd

respondent exercising its powers under the Kerala Relief

Undertakings (Special Provisions) Act, 1961.

2. It is stated that during the period 2003-06, the company

was lying closed on account of financial crisis. According to the

petitioner, finally, following a settlement with the Employees Unions

and with the Government assistance, the company was revived from

2007 onwards. It is stated that based on the agreement, wages for

the aforesaid period has not been paid and even the employees have

agreed to defer their claims. It is stated that despite all these,

towards the contributions payable under the Employees State

Insurance Act, the 1st respondent has taken proceedings and

attached the account of the company held with the 2nd respondent.

It is challenging the attachment so effected, the writ petition is filed.

3. The main contention raised by the learned counsel for the

WP(C) No.4563/2009
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petitioner is that since wages itself have not been paid, they have no

liability to pay the contributions payable to the 1st respondent.

However, an employer cannot avoid the liability except in a

situation, where exemption is granted from appropriate

Government. From the records produced, I am not in a position to

conclude that the petitioner has moved the 1st respondent seeking

exemption.

4. Therefore, in view of this, I direct that it will be open to

the petitioner to seek exemption from the Government from paying

contributions due under the ESI Act. The petitioner will make a

proper application in this regard within four weeks from today.

5. Subject to the petitioner making an application as above,

it is directed that attachment effected as per Ext.P8 will stand lifted

and the position as such will continue till a decision is taken on the

application to be made by the petitioner for exemption. It is

directed that, if an application is so received by the 1st respondent,

decision thereon should be taken as expeditiously as possible, at

any rate, within two months thereafter.

The writ petition is disposed of as above.

(ANTONY DOMINIC, JUDGE)
jg