JUDGMENT
Janarthanam, J.
1. Madras Type Foundry situate at No. 41, Bazullah Road, Madras-17, of which the appellant herein, namely, P.S. Ambikanathan is the proprietor, is an age old factory said to be manufacturing printing types and printing accessories on and from 1952. Of course, on this aspect of the matter, there is no material traceable to records. However, it is represented at the Bar beyond any pale of controversy, that the said factory had been in existence as stated above.
2. It is also not in dispute that this factory is liable for payment of contribution under the Employees’ State Insurance Act, 1948 (for short ‘the Act’). There had been regular payment of contribution till up to the year 1974 and thereafter, default appeared to have been committed by the appellant in making such contribution. Consistent defaults had been committed for the period between 1977 and 1981.
3. Consequently proceedings under Section 45-A had been initiated for determination of the amount of contribution due from him, besides initiation of proceedings for damages for nonpayment under Section 85-B of the Act. In all, 11 orders had been passed determining quantum of contribution payable by him, during the period between November 27, 1976 and June 29, 1982, besides passing three orders quantifying damages
to be paid by him during the period between June 8, 1978 and May 25, 1981. The orders so passed were not at all challenged by him by institution of proceedings under Section 75 of the Act.
4. The ESI Corporation apeared to have initiated proceedings under Section 5 of the Revenue Recovery Act, 1890 for collection of a sum of Rs. 1,95,224.30 representing the amount of contributions plus interest and damages. The Special Tahsildar, in the process of levy of execution, demanded the amount from him on May 5, 1983 and he appeared to have paid on June 17, 1983 a sum of Rs. 10,000 by means of a cheque. It appears that he had already paid a sum of Rs. 22,000 and thus, in all he appeared to have paid a total sum of Rs. 32,000. However, without paying the balance of amount, he rushed to the ESI Court (I Additional Judge, City, Civil Court), Madras and filed ESIOP No. 26 of 1983 challenging the levy of execution of the entirety of the sum of Rs. 1,95,224.30 impleading the Employees’ State Insurance Corporation represented by the Regional Director as respondent therein.
5. The petition so filed was however stoutly i resisted by the ESI Corporation.
6. On the purported consideration of the materials available on record, learned Judge of the ESI Court, however dismissed the petition with costs. Aggrieved by the said order, P.S. Ambikanathan, proprietor of the Madras Type Foundry, filed the present CMA challenging the said order.
7. Learned Counsel appearing for the appellant, taking great pains, addressed elaborate arguments revolving on the questions of delegation, non-obsevance of principles of natural justice, in the sense of not giving adequacy of opportunity to the appellant before determination of the amounts of contribution to be paid by him as well as the quantification of the damages ensuing as a result of non-payment of contribution and such other allied matters, drawing my attention to the raging controvercial decisions of various High Courts of Judicature, inclusive of a Division Bench of this Court. He also pointed out that the apex of the Judicial Administration of this country has also seized of similar matters and until a decision is rendered by the apex Court, the controvertial opinions expressed by various High Courts shall have to prevail within their jurisdiction.
8. In the peculiar facts and circumstances of the case, there is no need at all to refer to the various decisions relied upon by learned Counsel in support of his arguments on the questions above referred to.
9. I am of the view that the ESI Court committed a very grave error of the law in entertaining the petition in ESI OP No.26 of 1983 itself. Such an error, I feel, is nothing but the resultant product of the non- application of mind at the time of entertaining the petition, in the light of the salient provisions adumbrated in the Act.
10. Section 45-A(1) (as it stood at the relevant point of time), dealing with the determination of contribution prescribes that where in respect of factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of Section 44 or any Inspector or other official of the Corporation referred to in Sub-section (2) of Section 45 is obstructed by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment.
11. Sub-section (2) of the Section states that an order made by the Corporation under Sub-section (1) shall be sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as an arrear of land revenue under Section 45-B.
12. Section 45-B dealing with recovery of contribution says that any contribution payable under this Act may be recovered as an arrear of land revenue.
13. Section 85-B deals with the power to recover damages (as it stood at the relevant point of time). Sub-section (1) says that where an employer fails to pay the amount due in respect of any contribution or any other amount payable under this Act, the Corporation may recover from the employer such damages not exceeding the amount of arrears as it may think fit to impose : provided that before recovering such damages, the employer shall be given a reasonable opportunity of being heard. Sub-section (2) thereof says any damages recoverable under Sub-section (1) may be recovered as an arrear of Jand revenue.
14. A person, aggrieved by the determination of the amount of contribution under Section 45-A(1) or the quantification of damages under Section 85-B, can further agitate by filing a petition under Section 75(1)(g) of the Act. The said Section runs thus :
"75. Matters to be decided by Employees' Insurance Court. -- (1) If any question or dispute arises as to-- ............. (g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act, such question or dispute subject to the provisions of Sub-section (2-A) shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act."
15. Section 77 deals with commencement of proceedings and according to its Sub-section (1), the proceeding before an Employees’ Insurance Court shall be commenced by application. Sub-section (1-A) thereof prescribes that every such application shall be made within a period of three years from the date on which the cause of action arose.
16. In the light of the aforesaid statutory provisions, it goes without saying that the appellant is entitled to question the amount of contribution determined under Section 45-A(1) as well as the quantification of damages under Section 85-B by instituting a proceeding by filing a petition under Section 75(1(g) of the Act.
17. Various orders, as already indicated, namely, 11 orders passed between November 27, 1976 and June 29, 1982 determining the amounts of contribution and three orders passed between June 8, 1978 and May 25, 1981 in the matter of quantifying damages to be paid were not at all challenged by the appellant by institution of proceedings in the form of petition filed in respect of each of these orders under Section 75(1)(g) of the Act. Of course, there is no period prescribed for resortment to proceedings under Section 75 except the one as provided for under Sub-section (1-A) prescribing a period of limitation of three years from the date on which cause of action arose. If such proceedings under Section 75 are not at all resorted to, then it goes without saying that the amounts of contribution and damages already determined shall become final.
18. The challenge before the ESI Court was, as already indicated, one revolving on the challenge of execution proceedings resorted to be taken for the collection of amount by the Special Tahsildar. It is the rudimentary principle of civil law that the executing Court cannot go behind the original order and it has to simply execute the order as it stands. Applying the analogy of this principle, the execution levied by the Special Tahsildar for collection of the amounts determined under Section 45-A(1) and 85-B, which have become final cannot at all be challenged even before the ESI Court.
19. It is to be pointed out here that the appellant has filed ESI OP No.26 of 1983 before the Court below on June 25, 1983, clubbing various causes of action, arising from the passing of the various orders, as aforesaid, and most of the orders, if separately challenged by means of individual petitions under Section 75 of the Act, such of those petitions would have become barred by time, by lapse of three years, excepting in respect of four orders, of which three orders relate to determination of contribution passed on May 5, 1981, January 6, 1982, and the other June 29, 1982, and the other order relates to damages passed on May 25, 1981. The sordid fact is that the appellant did not file any separate application before the ESI Court at least in respect of those four orders and the compendious petition, he has filed on June 25, 1983 that too challenging levy of execution cannot be taken for granted as one filed in respect of those four orders.
20. Learned Counsel for the appellant would however submit that since excepting two orders relatable to determination of contribution passed on January 6, 1982, and June 29, 1982, the rest of the orders must have to be construed as ab initio void as one passed by an authority who is a delegate of the delegate, which is not permissible under Sec. 94-A and that even in respect of those two orders, though there is proper delegation, they also must be construed as ab initio void, in the sense of adequacy of opportunity to meet the case of the Corporation by personal hearing not having been provided to the appellant, it cannot be stated that there is any cause of action for those orders and therefore it is, the question of limitation, as has been provided for under Sub-section (1 -A) of Section 77 is not at all applicable and consequently, he can challenge those orders at any point of time he chooses. To this argument, I am unable to affix my seal of approval, on the fact of the express and explicit provisions adumbrated under Section 75 of the Act. That Section gives details of disputes under various clauses, namely, Clauses (a) to (g) of Sub-section (1) of that Section. The challenge of the aforesaid orders, as submitted by learned Counsel for the appellant, can by no stretch of imagination be stated to come under any of those clauses and the further factor is that he did never make such a challenge before the ESI Court, calling for a finding on that aspect and no finding, in fact, had been given by such Court so that he can agitate further by way of appeal under Section 82 of the Act before this Court.
21. Thus, looked at from any angle, there are
no merits in the Civil Miscellaneous Appeal and
the same deserves to be dismissed and is
accordingly dismissed, but in the circumstances,
I make no order as to costs.