M/S Service Master Clean Ltd. Vs Employees Sate Insurance Corporation

M/S. SERVICE MASTER CLEAN LTD. (PRESENTLY KNOWN AS SMC INTEGRATED FACILITY MANAGEMENT SOLUTIONS LIMITED ) NO.208, 2ND FLOOR RAMANASHREE ARCADE 18, M.G. RAOD, BENGALURU - 560 001

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Digitally signed by H K HEMA Location: High Court of Karnataka

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REGISTERED OFFICE AT: ANNAPURNA BHAWAN PATLIPUTRA TELEPHONE EXCHANGE ROAD, PATNA BIHAR - 800 010

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REPRESENTED BY ITS SENIOR MANAGER COMPLIANCE /AUTHORIZED OFFICER.

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…APPELLANT

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(BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE ALONG WITH SRI K.S. DEVARAJ, ADVOCATE)

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AND:

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EMPLOYEES STATE INSURANCE CORPORATION REGIONAL OFFICE (KARNATAKA) NO.10, BINNYFIELDS TANK BUND ROAD, BINNYPET BANGALORE - 560 023 REPRESENTED BY ITS ASSISTANT/ DEPUTY DIRECTOR.

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…RESPONDENT

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(BY MS. VARSHINI M., ADVOCATE FOR SMT. GEETHA DEVI M.P., ADVOCATE)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 09.07.2024 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.9192/2020 (L-ESI) AND CONSEQUENTLY QUASH THE ORDER DATED 04.05.2020 PASSED BY THE RESPONDENT IN No.53000273720001001/5420201206 AND DIRECT THE RESPONDENTS TO GIVE OPPORTUNITY TO THE PETITIONER TO DEFEND ITS CASE BE RE-OPENING THE CASE, ETC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA and HON'BLE MR JUSTICE M.I.ARUN

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ORAL JUDGMENT

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(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA)

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When order dated 04.05.2020 passed under Section 45A of the Employees' State Insurance Act, 1948 came to be challenged before learned Single Judge by the appellant-petitioner, learned Single Judge dismissed the petition on the ground that a statutory appeal under Section 75 of the said Act of 1948 is available to the petitioner.

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Learned Senior Advocate Mr. Dhyan Chinnappa assisted by learned advocate Mr. K. S. Devaraj for the appellant-petitioner took exception to the aforesaid order of learned Single Judge by submitting that when the order was passed under Section 45A of the Act of 1948, there is a specific provision under Section 45AA, whereunder appellate authority is constituted and the orders passed under Section 45A are made appealable before the appellate authority.

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Section 45AA of the Act of 1948 reads as under,

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"45AA. Appellant authority.- If an employer is not satisfied with the order referred to in section 45A, he may prefer an appeal to an appellate authority as may be provided by

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regulation, within sixty days of the date of such order after depositing twenty-five per cent of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the corporation:

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Provided that if the employer finally succeeds in the appeal, the Corporation shall refund such deposit to the employer together with such interest as may be specified in the regulation."

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It was therefore submitted that the order of learned Single Judge is not accurate and it is erroneous, and that it is the appellate remedy under Section 45AA which the appellant wants to exhaust rather than invoking Section 75 of the Act of 1948. It was stated that in fact the appellant has already preferred an appeal under Section 45AA after learned Single Judge passed the impugned order. However, the said appeal has been lying without any progress, given the operation of impugned order.

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4.1. On the other hand, learned advocate Ms. M. Varshini for the respondent submitted that the order of learned Single Judge was justified inasmuch as the appeal could be filed also under Section 75 of the Act of 1948. She further submitted that as far as the appeal under Section 45AA is concerned, the time limit of sixty days is contemplated in the provision itself within which the appeal could be filed and thereafter the appeal would not be maintainable.

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The court is inclined to accept the submission on behalf of the appellant when it is not disputed even by the respondent that remedy of appeal is provided under Section 45AA in respect of the orders passed under Section 45A. When Section 45AA is a specific provision dealing with the appeal to be preferred and maintained in respect of the cases decided and order passed under Section 45A when the orders passed under the said provision, the appellant would be justified in approaching the appellate authority under Section 45AA by preferring appeal.

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5.1. The observations of learned Single Judge in providing that the appeal under Section 75 of the Act of 1948 is available are therefore obliterated, when the appellant has already filed the appeal under Section 45AA of the Act of 1948.

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With such limited observation, the court is inclined to dispose of the appeal without any further adjudication. It is clarified that the appeal of the appellant already filed under Section 45AA shall be dealt with by the appellate authority strictly in accordance with law and in that all the contentions of both the sides shall remain open to be agitated. This court has not gone into the merits.

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