Category Archives: E I courts

When the E.I. Courts grant stay…

(1) The E I Court is not the appropriate forum to challenge the action taken for recovery under the Second Schedule to the Income Tax Act, 1961. If a defaulter is aggrieved over the action of the Recovery Officer, he must, first of all, seek remedy as per the provisions contained in the Second Schedule to the Income Tax Act, 1961 and not resort to Chapter VI of the ESI Act, 1948.

(2) The employers who did not approach the E.I. Courts, in time, to challenge the decisions of the Insurance Branch officers should not be allowed to cite the recovery action as the cause of action for the purposes of Sec. 77 of the ESI Act, 1948.

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One finds that the Employees’ Insurance Courts are approached by the employers not only against the decision regarding coverage, assessment of contribution or levy of damages but also against the action taken by the Recovery Officer under the Second Schedule to the Income Tax Act, 1961.

There are employers who cite the recovery action as the cause of action to challenge the assessment under Sec.45-A of the said Act although they had failed to appeal, in time, to the E.I. Courts as per Sec. 77 of the ESI Act, 1948. There is a vital difference between the “appeal against assessment” and the “appeal against recovery action”. Any mix- up of the two would result in misrepresentation of facts and misinterpretation of law. But, such misrepresentations are entertained in the E.I. Courts and, consequently, the orders of the Insurance Branch Officer could not be enforced in time and action taken by the Recovery Officer gets affected.

The powers of the Recovery Officer to recover arrears from the defaulters and the procedure for recovery are codified in (1) the Second Schedule to the Income Tax Act, 1961 and (2) the Income Tax (Certificate Proceedings) Rules, 1962. The Recovery Officer of the ESI Corporation is able to enforce these provisions by virtue of Section 45- H of the E. S. I. Act, 1948.

The Recovery Team spends a lot of man- days collecting information regarding the source of income of the defaulter, details of property, etc., by taking various actions like measuring the land and building, contacting the revenue authorities for information regarding survey numbers, patta details , etc., approaching the police authorities more than once for each and every case of attachment, attaching the business by sealing the premises for appointment of Receiver, freezing the bank accounts under Rule 26(1) of the Second Schedule to the Income Tax Act, 1961 and Section 45-G of the ESI Act, 1948, etc.,

It is only when the employers ultimately realise that they cannot escape the coercive process anymore, they go to court and obtain stay. There are many cases in which stay orders had been served on the Recovery Officer exactly on the day notified for public auction. Thus, the sustained efforts taken by the Recovery Team to recover the dues are brought to naught at the last moment, by the stay orders issued by the Courts.

The Supreme Court has observed that “normally, the High Court should not, as a rule, in proceeding under Article 226, grant stay of recovery of tax, save under very exceptional circumstances. The grant of stay in such matters should be an exception and not the rule [Siliguri Municipality Vs. Amalendu Das – 1984 – 146 – ITR – 624-626 (SC) ]. Also, R. Laxmichand & Co. Vs. Union of India [1990 – ITR – 376 – (Guj.)].

The Chennai High Court is also of the view that the jurisdiction of the High Court under Article 226 of the Constitution cannot be invoked for the sole purpose of obtaining an interlocutory order to stay the sale of properties in proceedings for realisation of Income Tax. {S. Km. Sathappa Chettiar Vs. ITO {1960 – 40 – ITR – 338 (Madras)}.

Thus, the Supreme Court and the High Courts have been averse to interfere with the acts and actions of the statutory authorities unless their actions are beyond jurisdiction or in excess of jurisdiction. But, even while the Supreme Court and the High Courts have, thus, been and are wary of staying the actions of the Recovery Officer except for some specific reasons as mentioned earlier, many of the E.I Courts are not found to exercise any such restraint in granting stay.

E I courts and Recovery Officers

Under Rule 83, the Recovery officer has all the powers of the Civil Court while trying a suit, for the purpose of

(1) receiving evidence,
(2) administering oaths,
(3) enforcing attendance of witnesses and

(4) compelling production of documents.

The Recovery Officer, in the discharge of his functions under the aforesaid provisions, is deemed to be “acting judicially” within the meaning of the Judicial Officers Protection Act, 1850 (18 of 1850), as specifically mentioned in Rule 82 of the Second Schedule to the Income Tax Act, 1961. The Judicial Officers Protection Act seeks to confer protection to persons performing judicial functions. “By a layman, it may be taken as denoting only persons belonging to the lower judicial cadre of the State, but the Act is not confined to them. It extends to all persons who act judicially – broadly speaking ‘Judges”. (Para 4.1 – 104th Report of the Law Commission of India). The term “Judge” has been defined in Sec. 19 of the Indian Penal Code. The concept of “acting judicially” has been expressed more comprehensively under Sec. 77 of the Indian Penal Code.

Sec. 82 of the Second Schedule to the Income Tax Act, 1961 is a special provision intended to provide statutory protection to Recovery Officers. All the elements, which are essential for a judicial tribunal to adjudicate on a subject matter which is brought before it, are present in a proceeding before the Recovery Officer.

“The tribunal as distinguished from the court, exercises judicial power and decides matters brought before it judicially or quasi-judicially, but does not constitute a court in the technical sense.”( Engineering Mazdoor Sabha Vs. Hind Cycles Ltd. -AIR 1963 SC 874, 978 ). Tribunals can, thus, be quasi- judicial ones too.

“According to the doctrines of constitutional and administrative law, these (quasi-judicial) authorities are regarded as bound by the rules of natural justice” (Para 5. 5 – 104th Report of the Law Commission of India -1984). “Natural justice is based upon the innate moral feeling of mankind”. “Particular form of legal procedure may not be necessary”. But, the “decision must be in accordance with the principles of substantial justice”. (Rulings under Sec. 10 (1), Industrial Disputes Act, 1947). The Recovery Officer must ensure that his action falls within these parameters.

The recovery procedure enunciated in (a) the Second Schedule to the Income Tax Act, 1961 and (b) the Income Tax (Certificate Proceedings) Rules, 1962 is complete enough and comprehensive in itself. These provisions clearly specify the fora for the defaulters to seek remedy against the actions taken by the Recovery Officer. The Rule 9, Rule 11 (6) and Rule 16 (1) are relevant in the context.

Specific appellate provisions to seek remedy against the actions taken by the Recovery Officers under the Second Schedule to the Income Tax Act, 1961 are incorporated in the same Schedule under Rule 86 read with Rule 55-A and 55-B of the Income Tax (Certificate Proceedings) Rules, 1962. “When a statute gives a special and particular remedy to the aggrieved party, the remedy provided by that statute must be followed”. (Page 709 – Employees’ State Insurance Act, 1948 – K.D. Srivastava – Fifth Edition) These appellate provisions can neither be ignored nor be made redundant by projecting only Sec. 74 – 83 of the ESI Act, 1948.

The issue whether the E.I. Courts, which are “domestic Tribunals” (ESIC Vs. Ram Lakhan, AIR 1960 Punjab 559) constituted under Section 74 of the E.S.I. Act, can stay the action taken by the Recovery Officer is not dealt with here. Nor is the fact that the E I Courts are not civil courts but have only a trapping of civil courts elaborated here. But, the E.I. Courts are not made aware of these appellate provisions. Nor are they informed that the jurisdiction of even the Civil Courts must be

deemed to have been excluded to the extent indicated in Rule 9, Rule 11(6), Rule 16(1) of the Second Schedule to the Income Tax Act, 1961 and also in Rule 47 of the I.T. (Certificate proceedings) Rules, 1962. [Malabar Produce and Rubber Co. Ltd. Vs. TRO [1990 – 184 – ITR – 275, 282, (Ker.)].

Bar on civil courts

Rule 9 of the Second Schedule to the I.T. Act makes it very clear that every question arising between the Recovery Officer and the defaulter relating to

(a)  theexecutionofacertificate;

(b)  thedischargeofacertificate;

©  the satisfaction of a certificate;

(d)  the confirmation of a sale held in the execution of such certificates; and

(e)  setting aside a sale held in the execution of such certificates

shall be determined not by suit, but by order of the Recovery officer before whom such question arises.

The provision, does not, however, preclude a Civil Court in respect of any such question upon the ground of fraud. It implies that the Civil Court is not expected to interfere in the recovery of ESI dues, when there is no allegation of fraud. A suit can be filed in a Civil Court only if fraud is alleged. [Hari Prasad Vs. TRO (1984) 145-ITR-48, 54 (All.); Ayesha Khatoon Vs. Union of India (1980) 126 – ITR 489 (Cal.); Shamboo Prasad Bajraria Vs. Union of India (1979) 120 ITR 782 (Cal.); Milan Kumar Mukherjee Vs. Union of India (1984) 149 ITR 730 (Cal.)]. The word ‘suit’ means a proceeding instituted in a civil court by the presentation of a plaint.

In Radha Kishan Vs. Ludhiana Municipal Council, the Supreme Court observed: “Under Sec. 9 of the Code of Civil Procedure, the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is expressly or impliedly barred” (AIR – 1963 –SC- 1547). “Where there is an express bar of jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy of the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of civil court” (Dhulabhai Vs. State – AIR-1969-SC -78)

In spite of the existence of the bar under Rule 9 in the Second Schedule to the Income Tax Act, 1961 and in spite of the abovementioned rulings by the higher Courts, the E.I. Courts grant ex-parte stay in an indiscriminate manner. As a result the recovery process gets scuttled.

Stay orders for the mere asking

The Supreme Court has, in Assistant Collector of Central Excise Vs. Dunlop India Ltd., and others (SLP (Civil) No.s – 12312-13, dated 30.11.1984) observed thus: “It is indeed a great pity and, we wish we did not have to say it but we are afraid we will be signally failing in our duty if we do not do so. Some courts, of late, appear to have developed an unwarranted tendency to grant interim orders – interim orders with a great potential for public mischief – for mere asking. We feel greatly disturbed. We find it more distressing that such interim orders, often ex-parte and non-speaking, are made even by the High Courts while entertaining writ petitions under Art. 226 of the Constitution and in the Calcutta High Court, on oral application too. In several cases, Siliguri Municipalilty Vs. Amalendu Dass, Paper Mills Co. Ltd. Vs. State of Orissa, Union of India Vs. Oswal Woollen Mills Ltd., Union of India Vs. Jain Shudh Vanaspathi Ltd., this Court was forced to point out how wrong it was to make interim orders as soon as an application was presented……. We have come across cases where the collection of public revenue has been seriously jeopardised and budgets of Governments, and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by Courts”.

In this case, the learned single judge of the High Court had taken the view that a prima facie case had been made out in favour of the company and, therefore, by an interim order, allowed the benefit of the exemption and directed the goods to be released on the Bank Guarantee being furnished. The Division Bench of the Calcutta High Court had also confirmed the order of the learned single judge. But, the Supreme Court allowed the appeal with costs saying, “ We do not have the slightest doubt that the orders of the learned single judge as well as Division Bench are wholly unsustainable and should never have been made”.

Take these facts to the notice of the courts

These facts must be brought to the notice of the relevant courts, in an appropriate manner, by the Recovery Officers or the Insurance Branch Officers, as the case may be, whenever the defaulters seek the intercession of the Courts, especially the E. I. Courts and obtain stay.

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Appellate Authority u/s 45 AA of the ESI Act – Part I

The following are excerpts from the application sent by Mr. P. Ramar on 10.10.2009 to the Ministry of Law on the amendment then proposed for having an Appellate Authority under the ESI Act:

  1. Sec. 74 of the Principal Act provides for a full-time domestic tribunal as part of the ESI Corporation exclusively for deciding the cases pertaining to the ESI Corporation. The expenditure pertaining to that Tribunal was intended to be met from the ESI Fund as per Sec. 28 (vii) of the ESI Act, 1948 which authorises that the ESI Fund shall be expended for “defraying the cost (including all expenses) of the Employees’ Insurance Courts set up under this Act”. Accordingly, full time E.I.Courts had been set-up and were functioning upto the mid-seventies, although the expenditure of such E.I.Courts had been met only by the concerned State Governments. At that time, the disposal of the cases was fast and the E.I.Courts functioned as specialized institutions on matters pertaining to the ESI Act.

2. Now, all of a sudden a provision is attempted to be made for having an Appellate Authority with reference to the orders issued under Sec. 45-A pertaining to Contribution. The Statement of Objects and Reasons for the Bill do not explain the problems, if any, faced by the organization for want of such an Appellate Authority and the necessity for such an amendment.

3. The Bill is totally silent with reference to Sec. 85-B under which the same ESI Authorities issue orders regarding Damages by exercising the same powers and extending the same opportunity to the employers as per the principles of natural justice.

4. The fact is that there is no need for an internal appellate authority under Sec. 45 and the present proposal as per Clause 9 is only intended to preclude the E.I.Courts from playing their legitimate role.

5. All that the ESIC has to do, under Sec. 74 is

  1. a)to ask the State Governments to make the E.I. Courts as full-time courts to attend only to the cases pertaining to the ESI matters;
  2. b)to ask the State Governments to nominate judges for these courts with reference to the EI Court rules already framed by them,
  3. c)to inform the State Governments that the ESI Corporation would meet the entire cost of running the courts from the ESI Fund.

6. But, the ESI Corporation had, over a period of time, simply left it to the concerned State Governments to do whatever they pleased. No money has been spent from the ESI Fund for running the E.I. Courts. So, the State Governments have, instead of appointing full-time EI Courts simply allotted the work to the Labour Courts. The judges of the Labour Courts, overloaded already with their main work, began to consider the ESI work as a part of their other works. Because of this overload, there is significant delay in the disposal of cases.

7. The prime factor for consideration is that the authors of the Principal Act had very wisely understood the need for having an appellate authority who will not be a civil court but in-house tribunal. But, later, because of the ignorance and inaction of the ESI Authorities of the nuances of the subject-matter, the State Governments had not been informed of the financial assistance available to them as per Sec. 28 (viii). As a result, the ESI Corporation had been suffering all along because of the delay in the disposal of cases.

8. Delay in the disposal of cases cannot, therefore, be a reason for moving an amendment as per Clause 9 of the ESI (Amendment) Bill, 2009. Proper understanding of the significance behind Sec. 74 and Sec. 28 would help set-up full-time EI Courts and clear the arrears. The present amendment is an attempt to make things chaotic without enforcing Sec. 28.

The Clause 9 of the ESI (Amendment) Bill, 2009 introduced in the Lok Sabha is reproduced below:
9. After section 45A of the principal Act, the following section shall be inserted, namely:—

“45AA. 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 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:

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.”.

Para 2 of the Memorandum Regarding Delegated Legislation is reproduced below:

2. Clause 9 of the Bill seeks to empower the Employees’ State Insurance Corporation to provide an appellate authority by regulation for hearing appeal from an employer against the determination of contribution payable in respect of employees and to specify the interest on the deposit made by the employer in case the employer is finally succeeds in the appeal.

Para 5 of the Memorandum Regarding Delegated Legislation is reproduced below:

5. The matters in respect of which the rules or regulations, as the case may be, to be made, are of administrative and procedural details and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.

9. There is no provision in the Bill to provide for a Section similar to Sec. 45 – A (2) to make the orders of the Appellate Authority enforceable.

10. Moreover, the Amendment Bill seeks to vest the power in the ESI Corporation to decide the (a) Constitution and appointment of Appellate Authority, (b) Powers and (c) procedure to be followed by the said authority. These matters have been left to the purview of delegated legislation.

11. If the ESI Authorities had moved the proposal by giving the impression that the EI Court is a Civil Court and that there is a requirement for an intra-departmental remedy for reviewing the orders issued under Sec. 45 A, their contention is wrong.

  1. a)“The E.I. Court is not a Civil Court but a domestic tribunal specially constituted for the purposes of deciding any controversy that may arise and the matters enumerable in Sec. 73 A”. (ESIC Vs. Zeckra 1969 (36) FJR 110.).
  2. b)Punjab High Court has held that the E.I. Court is not an ordinary civil court but a domestic tribunal specially constituted for the purpose of deciding any controversy that may arise in the matters enumerated in Sec. 75 of the Act.(ESIC Vs. Ram Lakhan, AIR 1960 Punj.559). The Bombay High Court has described the E.I.Court as a persona designate.
  3. c)In Virendra Kumar Vs. State of Punjab (AIR 1956 SC 153), the Supreme Court has made the following observations: “It is a familiar feature of modern legislation to set up bodies and tribunals and entrust them with the work of judicial character, but they are not courts in the accepted sense of that term though they may possess some of the trappings of a Court.”
  4. d)The mere fact that a judicial officer presiding over a Civil Court is appointed a judge would not, while he is performing his functions as a judge of the E.I. court, make him a civil court. “All the powers of a Civil Court cannot be exercised by an E.I. Court and only such power has been conferred by sub-section 1 of Section 78 upon it as are common with the powers of a civil court.” (ESIC vs. Shashi Kant Arc Khandi and another 1983 (47) FLR 269). There are only deeming premises made by Sec.78 (4) for the enforcement of orders of the EI Court in the same manner as done for the orders of Civil Court.

12. The “Commentaries on ESI Act, 1948” by M.R. Mallick published by the Eastern Law House, Kolkata in the year 1974 analyses the issue in depth and you could find more references in that book. It would thus become clear that the Principal Act has already placed a Domestic Tribunal for immediate remedy with reference to any issue that may arise between the employers and the ESI Corporation.

13. There is, therefore, no need for an additional departmental authority to become an appellate authority to decide any issue that may arise between the employers and the ESI Corporation under Sec. 45A. Yet, the Ministry of Law has become a party to the decision to vest some arbitrary powers in the ESI authorities to nominate the Appellate Authorities even without examining the fact that the ESI Corporation is not utilizing the powers vested in it to establish a full-time Tribunal under Sec. 74 meeting the required expenditure for it under Sec. 28.

14. The present bill aims at obtaining the approval of the Hon’ble Members of the Parliament to appoint an Appellate Authority in the ESI Corporation for the purpose of revising and reconsidering the orders under Sec. 45-A without informing the Hon’ble Members the manner in which such Appellate Authority is going to be appointed. The Bill aims at delegating arbitrary power to the Corporation to do as it pleases in such an important quasi-judicial matter.

  1. 1.Please, therefore, intimate, with reference to your office records, the details of the difficulties faced by the ESI Corporation, at present, because of the absence of any departmental officer to function as an Appellate Authority.
  2. 2.Please intimate whether the Ministry of Law had actually examined beforehand the manner in which the ESI Corporation is going to frame the delegated legislation regarding the appointment and powers of the proposed Appellate Authority.
  3. 3.Please intimate whether an Appellate Authority can be appointed and vested with powers as per Delegated Legislation when the Inspector and the Quasi-Judicial Authority and the E.I. Courts are appointed under Sec. 45 and Sec. 74 respectively and are deriving powers as per the Principal Act.
  4. 4.Please intimate whether the Ministry of Law is aware that the same officers who pass the orders under Sec.45-A regarding contribution happen to pass orders under Sec. 85-B regarding damages also following the same principles of affording the opportunity of principles of natural justice. In that case, please intimate whether you had examined the reason behind the fact that the ESI Authorities did not bother themselves about having the same Appellate Machinery regarding the Damages ordered under Sec. 85-B of the ESI Act, 1948.
  1. 5.Please intimate whether the orders of the proposed Appellate Authority under Sec. 45 AA are enforceable without there being any provision under the said Sec. 45 AA, corresponding to the Sec. 45-A (2) available under Sec. 45 A.

A sum of Rs.10 towards fee under the Right to Information Act,2005 has been paid in the form of Indian Postal Order for Rs.10/- drawn in favour of Secretary, Ministry of Law payable at New Delhi the details of which are asunder:

 

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Filed under Administration, Benefits, E I courts, For Trainees, Inspections