M/S.SAI PLUS TWO SCIENCE RESIDENTIAL COLLEGE vs DEPUTY DIRECTOR (REVENUE) ESIC, BBSR

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.25256 of 2025
CNR No.ODHC010646092025

An application under Articles 226 and 227of the Constitution
of India

M/s. Sai +2 Science Residential …. Petitioner
College, Baripada,
Mayurbhanj

Versus
Deputy Director (Revenue), …. Opposite Parties
ESI Corporation,
Bhubaneswar and others

Advocates appeared in the case :

For Petitioner : Mr. Somanath Mishra, Advocate

For Opp. Parties: Mr. Sk. Ruplal, Advocate,
(for Opp. Party Nos.1 and 2)
Mr. Manoj Kumar Routray, Advocate
(for Opp. Party No.3)

CORAM:
THE HON’BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO

J U D G M E N T

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Date of hearings: 21.09.2026 & 24.09.2026 and Judgment: 29.10.2026
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MRUGANKA SEKHAR SAHOO, J.

1. The petitioner an educational institution imparting +2
Science course, is before this Court seeking intervention
under Articles 226 and 227 of the Constitution of India,
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challenging the Garnishee Order dated 18.08.2025 (Annexure-
3 to the writ petition) issued under Section 45G of the
Employees’ State Insurance(ESI) Act, 1948 by the Recovery
Officer.
2. Learned counsel for the petitioner refers to Annexure-1
series to the writ petition: letter dated 07.04.2017 issued by
the ESI Authority, the period of demand being October, 2014
to January, 2016; the next notice is for the period from
February, 2016 to January, 2017. Learned counsel refers to
the page-23 of the counter affidavit which is an ‘ad-hoc C-18’
notice for the period from May, 2013 to September, 2014.
It is submitted: that from the notices issued by the
authority it is apparent that the period starts from May, 2013
and ends January, 2017.
3. Learned counsel for petitioner referring to page-40 of
the counter affidavit i.e. letter dated 28.05.2025 submits that
the said letter indicates that the demand is for the period from
February, 2017 to March, 2018 and May, 2018 to August,
2022. Accordingly, it is submitted that the records of the
opposite parties-ESI authorities itself go to show that though
the notices can at best be for the period from May, 2013 to
January, 2017 but the period of contribution demanded is
from February, 2017 to March, 2018 and May, 2018 to
August, 2022.
4. Learned counsel further refers to the counter affidavit
filed by the opposite parties-Corporation and refers to the
aspect that the counter affidavit does not specifically deal with
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the averments and submissions made in the writ petition,
para wise.
Referring to the Annexure-1 to the writ petition, it is
submitted that the date of hearing was fixed to 04.05.2017.
The written response was submitted on 01.05.2017.
Thereafter, there has been no hearing, nor there is anything
indicated in the counter to show that on any date any hearing
was made.
5. Learned counsel for the petitioner submits that after
2018, in response to the letter issued by the petitioner,
response of the ESI authorities has come in the year 2025.
Thereafter, the garnishee order under Section 45-G has been
issued. Learned counsel reiterates his submissions that only
from the Bank where the petitioner maintains it’s account it
has come to know about the order passed U/s.45-G. It is
submitted: direction issued by this Court by order dated
09.09.2026 to show before the Court that order has been
passed U/s.45-A, has not been complied with by the opposite
parties.
6. It is submitted by the learned counsel for the petitioner
that after the garnishee order came to the notice of the
petitioner, it applied to the authorities for providing the
documents on 03.09.2025. In response certain documents
have been supplied, copies of which have been annexed to the
writ petition marked as Annexure-5 series.
7. Mr. Ruplal, learned counsel appearing for the opposite
parties-Corporation is apprised of the order dated 09.09.2026
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passed by the coordinate Bench. The learned counsel has
gone through the said order.
The order dated 09.09.2026 is reproduced herein:
“ 1. Heard Mr. S. Mishra, learned counsel for the
Petitioner. The main submission of Mr. Mishra is that
without passing any order under Section 45-A of the
ESI Act and affording reasonable opportunity of
hearing to the Petitioner, demand has been made
pursuant to which a Garnishee order has also been
passed.
2. Mr. Sk. Ruplal, learned counsel appearing on
behalf of Opposite Party No.1 and 2 after arguing for
some time and taking the Court to different
averments in his counter affidavit and different pages
of the Annexures is unable to point out the order
passed under Section 45-A or any averment to that
effect that any order under Section 45-A has been
passed. Thereafter, he seeks for some time to obtain
instructions.
3. Considering his prayer, list this matter on
11.09.2026 as prayed for by Mr. Sk. Ruplal, learned
counsel for Opposite Party No.1 and 2.”

8. In response to the observations made in the order
dated 09.09.2026, it is submitted by the learned counsel that
no order under Section 45-A has been passed.
Learned counsel for the opposite parties-Corporation
has further responded that order is not necessary to be
passed under Section 45-A.
It is submitted that order under Section 45-A is issued
when contribution ‘is not disputed’.
Accordingly, the learned counsel was also requested to
apprise by saying ‘contribution’, what is referred to; the
answer is ‘contribution by the employer to ESI’.
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9. Referring to the Annexure-A series at page-12 of the
writ petition, it is submitted by the learned counsel for
opposite party that notice in form C-11 dated 19.11.2014 has
been issued for implementation of the contribution from
01.05.2013.
Now it is submitted that for non-compliance of the
notice dated 06.06.2016, copy of which has been annexed to
the counter affidavit filed by opposite party nos.1 and 2
marked as part of Annexure-A series, notice under Form-C-18
on ad hoc basis was issued on 07.04.2017.
10. The learned counsel for the authorities was asked
under which provision notice dated 06.06.2016 was issued, in
response, it is submitted the show cause notice does not refer
to any particular provision under which it is issued, however,
it is captioned “subject: Show Cause Notice for Non-
Compliance with the provisions of the ESI Act, 1948 and
Regulations framed there under as amended up to date”.
11. It is submitted that in response to the notice issued
under Form-C-18, the petitioner’s reply dated 01.05.2017 has
been received by the authority with month wise statement; the
notice and order under Section 45-A is not necessary.
Referring to pages 29 to 35 of counter, it is submitted by the
learned counsel for the opposite parties-Corporation that the
petitioner has ‘admitted’ the ‘contribution’ after which the
petitioner has not paid.
12. It is submitted that the petitioner by letter dated
07.12.2018 has intimated the ESI Authority for correction of
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e-mail ID and password to pay the contribution. The learned
counsel refers to certain documents which are not supported
by any affidavit. He filed the documents along with a memo.
Copy of those documents with the memo is served on the
learned counsel for the petitioner. Thereafter affidavit dated
23.09.2026 has been filed enclosing the documents and
served on learned counsel for petitioner which are letter dated
18.09.2026 issued by Deputy Director (Rev-II) addressed to
the Legal Branch, Regional Office, ESI Corporation,
Bhubaneswar.
13. It is submitted by the learned counsel for the opposite
parties-Corporation that notice dated 28.05.2025 was issued
which forms part of Annexures-C and D series addressed to
the petitioner under the subject ‘Compliance under the ESI
Act, 1948 (As amended)-reg.”
Then the learned counsel refers to page-36 of the
counter i.e. letter dated 09.01.2018 marked as Annexure-B
series which he states to be Form-C-18(ACTUAL basis).
Referring to the said letter dated 09.01.2018, it is submitted
that the petitioner has ‘admitted the actual contribution’.
It is contended that the petitioner has admitted the
amount in letter dated 09.01.2018.
14. Since the learned counsel for the opposite parties-
Corporation repeatedly argues: “the petitioner has admitted”
learned counsel was requested to find out a page from the
documents available on record, where and by which
communication the petitioner has admitted. The learned
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counsel in response refers to page-29 of counter filed by
opposite party nos.1 and 2 i.e. letter dated 01.05.2017 which
reads thus:
“To
The Deputy Director (Revenue)’
E.S.I. Corporation, Regional Office,
Bhubaneswar.
Ref.; Your letter No: OR/44000128470001303/REV-
ll/285 dtd.7.4.17
Sub.; Assessment of Contribution for the period
05/2013 to 09/2014
Dear Sir,
In reference to your above letter we are attaching a
month-wise statement showing the details of wages
paid during the period as mentioned above, along with
the Xerox copy of Aquittance Roll, for your perusal.
We request your good self to kindly go through the
information provided by us and ascertain the actual
contribution payable.”

15. On being again asked to go through the above quoted
letter, the learned counsel refers to part of the sentence ‘ We
request your good self to kindly go through the information
provided by us and ascertain the actual contribution payable ’
and submits that this sentence amounts to admission by the
petitioner.
16. Thereafter, the learned counsel refers to page 38 of
counter which is part of Annexure-B series, letter dated
07.02.2018, sub-paragraph: ‘ We, therefore, request you to
kindly arrange for changing our Password so as to enable us to
open our Portal and deposit the contribution regularly. Please
also arrange to change our mail ID as provided below. … ’ and
submits that this is the admission by the petitioner.
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It is further contended that after the letter dated
07.02.2018 was received by the authority (page-38), the
request of the petitioner has been acceded to, the authorities
have corrected e-mail id and password of the petitioner-
institution after which the petitioner has not paid.
17. Copy of notice dated 28.05.2025 as at page-40 of the
counter affidavit filed on behalf of the opposite party nos.1
and 2 (part of Annexure-C and D series) is referred to, ‘for
compliance of the contribution giving 15 days time’. The
learned counsel then refers to the letter dated 28.05.2025
(copy of which has been annexed to the counter as part of
Annexure-C and D series at page-41) which is purportedly
notice in form C-19, sent to the Recovery Officer and page-42
of the counter affidavit which indicates that the letter has
been served on the petitioner.
18. The learned counsel for opposite party nos.1 and 2
refers to the Form No.ESI CP-2 ‘demand notice’ dated
11.06.2025 issued to the petitioner for the period from May,
2013 to January, 2017; interest has been calculated up to
27.05.2025, the total amount being Rs.5,26,696/-. It is
submitted as the amount has not been paid, the garnishee
order dated 18.08.2025 as per the Appendix-18 of the ESI Act
has been issued.
Lastly, it is submitted that the recovery process was
started on 08.09.2025 and copy has been served to the
petitioner and the bank has been served on 09.09.2025.
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19. Referring to the submissions as noted above which has
been termed as ‘admission of the petitioner’, it is submitted by
the learned counsel for the petitioner that by any stretch of
imagination the statements made by the petitioner intimating
the facts to the authorities cannot be treated as admissions
much less it can be contended that the said statements form
the basis of order passed by the ESI authority.
It is submitted by the learned counsel for the petitioner
as a matter of fact it is abundantly clear that no order under
Section 45-A has been passed.
20. It is submitted by the learned counsel for the opposite
parties-Corporation that the petitioner has stated certain
aspects in rejoinder which was not part of the writ petition
paragraphs. In response the learned counsel for the petitioner
submits that rejoinder is in response to the counter affidavit
filed by opposite party nos.1 and 2. He again reiterates that
the opposite party nos.1 and 2 have not given any specific
answer to the para-wise contentions and averments in the writ
petition.
21. Learned counsel for the opposite parties-Corporation
submits that as per the provisions contained in Section 75 of
ESI Act, the writ petition is not maintainable. In response, it is
submitted by the learned counsel for the petitioner that the
petitioner alleges procedural irregularity in passing the
impugned order and non-compliance of the principles of
natural justice and the authorities have already stated that no
order has been passed under Section 45-A of the ESI Act.
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22. The learned counsel for the opposite parties-
Corporation relies upon decision of this Court in W.P.(C)
No.15182 of 2026: M/s. A.B.S. Engineering, Jagatsinghpur
v. Employees’ State Insurance Corporation, (E.S.I.C.),
Bhubaneswar and others disposed of on 15.05.2026 and
decision of the Gauhati High Court by a co-equal bench in
WP(C)/6469/2019: M/s. Hotel Brideway and another v. The
Union of India and 3 others , (Verdictum.in print) to contend
that the writ petition is not maintainable.
23. The reliance upon the decisions rendered in M/s.
A.B.S. Engineering, Jagatsinghpur ( supra ) and M/s. Hotel
Birdeway ( supra ) would not come to the aid of the opposite
parties as the fact matrix of those cases are miles away from
the facts of the present case. The opposite parties have been
fair to the extent in stating/submitting that there is no order
passed by the authority under Section 45-A as mandated by
the statute. Effort has been made to justify the action of
authorities in not passing order under Section 45-A and
passing the order under 45-G.
24. It hardly needs to be stated that a decision is an
authority for the proposition laid down in a given fact matrix,
and not for all that, that would be logically following from
what has been so laid down. So said Lord Halsbury more than
1

Quinn v. Leathem. :
a century ago in , and quoted herein
“Now before discussing the case of Allen v. Flood,
[1898] AC 1 and what was decided therein, there

1
[1901] UKHL 2 : 3 [1901] AC 495
W.P. (C) No.25256 of 2025
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are two observations of a general character which I
wish to make, and one is to repeat what I have
very often said before, that every judgment must be
read as applicable to the particular facts proved, or
assumed to be proved, since the generality of the
expressions which may be found there are not
intended to be expositions of the whole law, but
governed and qualified by the particular facts of
the case in which such expressions are to be found.
The other is that a case is only an authority for
what it actually decides. I entirely deny that it can
be quoted for a proposition that may seem to follow
logically from it. Such a mode of reasoning
assumes that the law is necessarily a logical code,
whereas every lawyer must acknowledge that the
law is not always logical at all.”

25. In Whirlpool Corporation vs. Registrar of Trade
Marks, Mumbai and others; AIR 1999 SC 22:1998 (8)
SCC 1 at paragraphs 14, 15, 16, 17,18, 19, 20 and 21 the
Hon’ble Supreme Court have observed thus:
“ 14. The power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for
issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to
entertain or not to entertain a writ petition. But the High
Court has imposed upon itself certain restrictions one of
which is that if an effective and efficacious remedy is
available, the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar in
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at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation
of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires
of an Act is challenged. There is a plethora of case-law
on this point but to cut down this circle of forensic
whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still
hold the field.
16.Rashid Ahmed v. Municipal Board, Kairana [1950
SCC 221 : AIR 1950 SC 163 : 1950 SCR 566] laid down
that existence of an adequate legal remedy was a factor
to be taken into consideration in the matter of granting
writs. This was followed by another Rashid case,
namely, K.S. Rashid & Son v. Income Tax Investigation
Commission [AIR 1954 SC 207 : (1954) 25 ITR 167]
which reiterated the above proposition and held that
where alternative remedy existed, it would be a sound
exercise of discretion to refuse to interfere in a petition
under Article 226. This proposition was, however,
qualified by the significant words, “unless there are
good grounds therefor”, which indicated that alternative
remedy would not operate as an absolute bar and that
writ petition under Article 226 could still be entertained
in exceptional circumstances.
17. A specific and clear rule was laid down in State of
U.P. v. Mohd. Nooh [AIR 1958 SC 86 : 1958 SCR 595] as
under:
“But this rule requiring the exhaustion of statutory
remedies before the writ will be granted is a rule
of policy, convenience and discretion rather than a
rule of law and instances are numerous where a
writ of certiorari has been issued in spite of the
fact that the aggrieved party had other adequate
legal remedies.”

18. This proposition was considered by a Constitution
Bench of this Court in A.V. Venkateswaran, Collector of
Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC
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1506 : (1962) 1 SCR 753] and was affirmed and
followed in the following words:
“The passages in the judgments of this Court we
have extracted would indicate (1) that the two
exceptions which the learned Solicitor General
formulated to the normal rule as to the effect of the
existence of an adequate alternative remedy were
by no means exhaustive, and (2) that even beyond
them a discretion vested in the High Court to have
entertained the petition and granted the petitioner
relief notwithstanding the existence of an
alternative remedy. We need only add that the
broad lines of the general principles on which the
Court should act having been clearly laid down,
their application to the facts of each particular
case must necessarily be dependent on a variety
of individual facts which must govern the proper
exercise of the discretion of the Court, and that in
a matter which is thus pre-eminently one of
discretion, it is not possible or even if it were, it
would not be desirable to lay down inflexible rules
which should be applied with rigidity in every
case which comes up before the Court.”
19. Another Constitution Bench decision in Calcutta
Discount Co. Ltd. v. ITO, Companies Distt. I [AIR 1961
SC 372 : (1961) 41 ITR 191] laid down:
“Though the writ of prohibition or certiorari will not
issue against an executive authority, the High
Courts have power to issue in a fit case an order
prohibiting an executive authority from acting
without jurisdiction. Where such action of an
executive authority acting without jurisdiction
subjects or is likely to subject a person to lengthy
proceedings and unnecessary harassment, the
High Courts will issue appropriate orders or
directions to prevent such consequences. Writ of
certiorari and prohibition can issue against the
Income Tax Officer acting without jurisdiction
under Section 34, Income Tax Act.”
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20. Much water has since flown under the bridge, but
there has been no corrosive effect on these decisions
which, though old, continue to hold the field with the
result that law as to the jurisdiction of the High Court in
entertaining a writ petition under Article 226 of the
Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the
authority against whom the writ is filed is shown to
have had no jurisdiction or had purported to usurp
jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in
dismissing the writ petition at the initial stage without
examining the contention that the show-cause notice
issued to the appellant was wholly without jurisdiction
and that the Registrar, in the circumstances of the case,
was not justified in acting as the “Tribunal”.”

[Underlined to supply emphasis]
26. This Court comes to a conclusion after analysis of the
facts and circumstances of the present case that there are
procedural irregularity in passing the impugned order as the
authorities have not passed any order under Section 45-A and
effective opportunity of hearing was not granted to the
petitioner to put forth his case before the adjudicating
authority. On scrutiny of the orders passed by the opposite
party authorities it is found that the orders passed are
arbitrary and do not satisfy the test of reasonableness. The
principles applied by the authority in their series of decisions
are not based on statutory principles nor they satisfy
reasonableness.
27. Applying the principles laid down in Whirlpool
Corporation ( supra ) relying on the earlier decision rendered
by Constitution Benches in A.V. Venkanteswaran, Collector
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of Customs v. Ramchand Sobhraj Wadhwani and
another: AIR 1961 SC 1506 and Calcutta Discount
Company Ltd. v. Income-Tax Officer, Companies District I:
AIR 1961 SC 372 , and by applying the principles laid down
in Subodh Kumar Singh Rathour v. Kolkata Metropolitan
Development Authority: (2024) 15 SCC 461, the orders
enclosed to as part of Annexure-5 series of the writ petition
and impugned i.e.Order No.44000128470001303/REV-II-
15956/59 dated 28.05.2025, Order No.OR/
44000128470001303/Revenue-II/668 to 670 dated
09.01.2018 and the garnishee order dated 18.08.2025
(Annexure-3) passed under Section 45G of the Employees’
State Insurance (ESI) Act, 1948 are set aside and quashed.
Any amount appropriated from bank account of the petitioner
pursuant to the orders those have been quashed shall be
reverted to the bank account forthwith.
28. The writ petition is allowed and disposed of.
No costs.

(Mruganka Sekhar Sahoo)
Judge






Orissa High Court, Cuttack
th
The 29 October, 2026/Jyostna


Signature Not Verified
Digitally Signed
Signed by: JYOSTNARANI MAJHEE
Reason: Authentication
Location: OHC
Date: 29-Oct-2026 18:19:41
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