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.
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W.P.(C.) No.4563 of 2009
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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