AJAY KUMAR BHRAMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This Writ Petition has been preferred by the Petitioner to quash order dtd. 20/12/2021 (Annexure 12) vide which the Deputy Director, E.S.I. Corporation, Bhubaneswar (Opposite Party No.4) rejected the prayer of the Petitioner to waive the damages imposed on it for delayed payment of E.S.I. Contribution. Also a prayer has been made to direct the Opposite Parties to provide effective medical facilities to the employees of the Petitioner's Establishment in nearby areas of Gumadera, for which they are contributing under the Employees' State Insurance Act 1948, shortly, "the E.S.I Act".

(2.) The factual backdrop of the case is that the Petitioner is the Proprietor of M/s Ajay Construction, situated At- Gumadera, Po/Ps - Belpahar in the District of Jharsuguda. The E.S.I Act has been duly enforced in various districts across Odisha, including Jharsuguda District, vide Gazette Notification dtd. 30/5/2016. The Petitioner registered his Establishment under the E.S.I. Act in March, 2017. However, due to non-availability of any medical facilities in the nearby areas, the Petitioner couldn't deduct employees' contributions due to resistance of the workers. Accordingly, he made a representation on 18/10/2018 requesting the Opposite Party No.2 to provide medical infrastructure in or around Belpahar, so that contributions could be regularised.

(3.) The writ petition has been preferred basically to decide the legal issue regarding justification of the E.S.I. Corporation to impose maximum damages under Regulation 31-C of the Regulations, 1950, which is not mandatory. Further, the grounds urged in the writ petition to challenge the demand notice are, Sec. 85-B of the E.S.I Act uses the words "May Recover", indicating discretion and not compulsion. Moreover, computation and imposition of damages must be based on Sec. 85-B of the ESI Act and cannot derive authority solely from Regulation 31-C of the Regulations, 1950, which is a subordinate legislation. Further, substantial compliance of the provisions has already been made by paying Rs.4,55,844.00 towards contribution so also Rs.1,86,279.00 towards interest. The delay was due to non-availability of E.S.I medical services and employees' resistance, so also genuine hardships beyond the Petitioner's control.