JUDGMENT
Dilip Kumar Seth, J.
1. In a proceeding under Section 75(2-B) of the Employees’ State Insurance Act, 1948, the question of depositing 50 per cent of the amount was sought to be waived. But such waiver was not allowed and, however, injunction was granted. It is contended by the petitioner that in case this deposit is made, in that event it will not be able to recover the same. However, the petitioner contended that this law is not applicable in its establishment. According to the petitioner, today is the last date for depositing the said amount. Therefore, it has rushed to this Court for appropriate order. It is further contended that in the proviso to Sub-section (2-B) of Section 75 of the Employees’ State Insurance Act, the authority has discretion to reduce the amount, but the authority
has not exercised the discretion lawfully.
2. Learned counsel for the respondent on the other hand, contended that it is mandatory under Sub-section (2-B) of Section 75 of the said Act that 50 per cent of the amount is to be deposited. The discretion to reduce is the discretion of the authority which cannot be interfered with by the Writ Court. He also contended that the argument that the amount cannot be recovered is without any substance since such amount can be refunded under regulation 40 of the Regulations framed under the Act. Therefore, this writ petition cannot be maintained. He also contended that the question of applicability of the Act can be decided in the proceeding before the Employees Insurance Court itself. This Court should not enter into such question.
3. I have heard learned counsel for the parties at length. Sub- section (2-B) of Section 75 provides as follows:
“(2-B). No matter which is in dispute between a principal employer and the corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation.
Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.”
4. Thus, it appears that though it is mandatory to deposit 50 per cent of the amount, but the Court has discretion to waive or reduce the amount to be so deposited. But in order to waive or reduce the amount, the Court must give reasons which should be recorded in writing. It is contended by learned counsel for the respondents that it is a discretion to the, Court and there is no doubt about the said proposition. But the question remains whether such discretion has been lawfully exercised or not. The reason has to be recorded when the amount is reduced or waived. It is alleged that, whether even to reject that prayer, the reasons are to be recorded. It appears from the order that the reason for rejection is also recorded in the order itself. Thus, the question has become immaterial. When the Court is supposed to give reasons for one kind of action, it is also supposed to give reasons for the reverse kind of action. Therefore, even when rejecting the prayer in Sub-section (2-B) of Section 75 of the said Act, the Court is supposed to give reasons.
5. In the present case, reasons have been given and nothing having shown to contradict the reasons or that the reasons are perverse, this Court cannot interfere with such reasons. Thus,
I am not inclined to accept the contention of the petitioner with regard to the rejection of the prayer under Section 75(2-B) of the said Act.
6. So far as the question of deposit of the amount is concerned, it is not irrecoverable. If such deposit is made, definitely there must be some procedure for refund of such amount if ultimately it is found that the petitioner is not liable to pay the same. As rightly pointed out by learned counsel for the respondents, Regulation 40 provides for such refund under the Act. Be that as it may, if any amount is deposited as a condition for maintaining certain obligation, in that event the same can be refunded and law cannot permit forfeiture of such deposit when it is ultimately found that the said amount is not payable by the person who has made deposit under the said provision of the Act. More so, this deposit is being made in Court. Therefore, the control over the amount so deposited is with the Court. Such deposit is always subject to the result of the decision of the Court. There cannot be any apprehension against the Court in respect of such deposit or its refund as the circumstances may warrant. Therefore, this point also cannot be sustained.
7. In the circumstances, the time for deposit of the amount is extended by a period of one week after the reopening of the Court after the summer vacation. Such deposit, if made, be invested in some fixed deposit earning interest and such term deposit shall be renewed from time to time under order of the learned Employees Insurance Court subject to the result or direction in the proceeding before it.
8. With this observation and with the
above modification of the order dated April 20,
2001, passed in T. C. No. 24 of 2001 by the
Judge, Employees Insurance Court, West
Bengal, this writ petition is disposed of.
9. Xerox certified copy of this order, if applied for, be given.