Rajesh Balia, J.:— Heard learned Counsel for the parties. This appeal arises out of the order passed by the learned Single Judge dismissing the S.B Civil Misc. Appeal No. 247/2004 filed by the present appellant.
2. The relevant facts for the present purposes may be noticed. A show cause notice was issued by the ESI Corporation on 5.7.2001 for showing the cause against determination of contribution which the appellant ought to have made to the appellant under the ESI Act in respect of contract labours employed by it for the period between 1.5.86 to 30.4.96 The dispute was raised by the appellant before the ESI Court inter alia on the ground that the demand is per se barred by time in view of clear provisions of proviso to section 77(1-A)(b), which inter alia provides that no claim shall be made by the Corporation after five years of the period to which the claim relates. Alongwith making an application for initiating the proceedings against ESI Corporation under section 77 of the Act read with section 75, the appellant moved an application for waiving or reducing the amount to be deposited by him in terms of sub-section (2-B) of section 75 of the Act.
3. According to the claim laid by the Corporation vide its notice dated 5.7.2001 for the period 1.5.86 to 31.3.92, 504 contract labours were employed by it and in respect thereof Rs. 22,83,019/- was claimed as contribution for both employers and employees. Simultaneously, for the period from 1.4.92 to 30.4.96 the claim of contribution at Rs. 22,41,162/- was laid on the enhanced wages of the workers during this period. This total amount claimed comes to Rs. 45,24,181/-. This notice was replied on 17.7.2001 However, without success before the claim was lodged, the Corporation has laid claim of Rs. 1,13,17,968/- as outstanding for the aforesaid period, which included the interest also. The appellant has already deposited Rs. 19,27,597/- on 21st December, 2002.
4. The ESI Court vide its order dated 27.1.2004, after recording the rival contentions, rejected the application and appeal against that order was preferred by the present appellant. The said appeal has also been dismissed by the learned Single Judge.
5. We find from the order of the ESI Court that notwithstanding noting the contention including that the claim for the entire period was beyond the period prescribed under the law under section 77(2-B), but it appears that no application of mind was made about the question whether there is a requirement to exercise of judicial discretion in favour of the applicant in the present facts and circumstances of the case.
6. The learned Single Judge has also observed that the statutory requirements are required to be followed. The reasons required to be recorded for waiver of the condition of deposit of the amount indicates that Court should apply its judicial mind for relaxation of the rigor of the statutory requirement. For the benefit under the proviso, one is required to show something more than the only ground of challenge to the order under challenge. An order passed by the competent authority is challenged on the basis of the grounds and reasons and they themselves are not the reasons for not making the required payment under the law. In all cases, party comes with the Court with reasons to challenge the order and if it is accepted that simply because one has challenged the order, he is entitled for waiver of the condition of deposit of the amount, then it will frustrate the statutory provision itself.
7. In the facts and circumstances noticed by us above, an obvious and strong case is made out from the reading of demand notice itself that so far as the entire period for each demand is made, it prima facie falls outside the limitation prescribed under section 77. We find from the record of proceeding that the substantial amount has already been deposited. Therefore, it is a fit case in which exercise of discretion ought to have been made in favour of the petitioner. Moreover, while admitting the appeal, this Court has directed that if the appellant deposits the principal amount of contribution after adjusting the amount already deposited by the appellant, the coercive process shall not be employed for recovering the amount of demand raised by the respondents.
8. We are informed that the principal amount of contribution for the period between 1.5.86 to 30.4.96 has been deposited by the appellant. If the principal sum of contribution determined for the entire period in dispute has been deposited by the appellant, the application of the applicant may be proceeded without demanding further deposit of the claim raised by the Corporation under the said period. We make no observations about any claim subsequent to period in question. The application be decided as expeditiously as possible preferably within a period of six months.
9. The appeal is accordingly allowed with no order as to costs.