Heard learned counsel for  both the sides.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

3.                   The  case of the complainant, in nutshell is that the complainant   is a  co-operative society and they have only got the sundry plant which has been given on lease  to Smt. P.Vijaya Kumari at Amalabhatta. According to the complainant the plant runs  5 to 6 months  in a year  and there is no regular worker  and Section-2(12) and Section 1(5)  of Employees State  Insurance Act(ESIA) is not applicable  to Sundry plant. They also submitted that the plant has got engagement of 5-6 persons   when the plant runs in full swing and there is no regular workmen under  Section-2 (12) (a)  of the ESI Act,1948 in  the sundry plant.    It is alleged inter-alia  that the OP without having jurisdiction issued notice    showing that  the plants are covered under  ESI Act. Since, there is illegal demand  of Rs.2,31,686/- by the OP to pay same on or before 30.06.2013,the complainant filed the complaint showing deficiency in service  and unfair trade practice on the part  of the OP.

4.            Per contra, the OP filed written version stating that the consumer complaint is not maintainable because of Section-75(1)(g)  of the ESI Act. Since, there is no compliance of Govt. Notification by the complainant,  they have issue order under ESI Act  for non-payment of dues of workmen. They have visited  the factory premises   on 05.04.2001 and accordingly took action against the complainant. It is further averred that the Society has got workmen and absolutely they are   covered under  the ESI Act and accordingly they have demand  of Rs.2,31,686/- upon the complainant. Therefore, there  is no deficiency in service on the part of the OP.  

5.                       After hearing both the parties, learned District Forum   passed the following order:-

               Xxxx              xxxx              xxxx

                                “ The petition  of the complainant is allowed with a clear direction to the Ops that the demand made by the Ops are found to be illegal not establishes legality. Hence, the said demand is hereby quashed with a direction to the Ops to establish the claim legally as per rules.”

6.               Learned counsel for the appellant submitted that    the consumer complaint is not maintainable in view of the provision of law  under Section-75(1)(g) of the ESI Act, the complainant  Society has committed violation of the provision  of the ESI Act,1948. He relied upon the  decision reported in AIR 2004 SC 4778 Bharat Petroleum Corporation Ltd. & another-Vrs- N.R. Vairamani and another   in support of  his submission that the Courts should not   place reliance on decisions without  discussing as to how the factual situation fits in which the fact situation of the decision on which reliance is placed. He also relied on the decision reported in III (1998) CPJ 11 (NC)  where they have   held that due to bar under  Section-75 of the ESI Act   consumer complaint can not be entertained under  the Consumer Protection Act in their  respective Fora. Further he submitted that when action have been taken under  Sectio-75 of the ESI Act,1948  whether it is appropriate  or not, it is for the authority under ESI Act  to decide but not the Consumer Fora under  Consumer Protection Act. He also submitted  that they have  collected the information  and action has been taken under ESI Act. In such  circumstances, learned District Forum ought  not to have passed the impugned order. Therefore, he submitted to set-aside the impugned order by allowing the appeal.

 7.             Learned counsel for respondent submitted the consumer complaint is maintainable in view of the decision reported in  AIR 2007 Supreme Court 1819   Kishori Lal-Vrs- Chairman ESI Corporation.  She  also submitted that in the instant case Authority under  ESI Act have abused  the power  by imposing fine of Rs.2,31,686/-  and recovery of the same. According to her the necessary Co-operative Society is not indulged in such  matter which is  cognizable  by the ESI Act,1948. She submitted that when the Authorities have not acted upon in accordance with law, there is deficiency in service on the part of the OP. Therefore, learned District Forum has rightly passed the impugned order. she supports the impugned order.

8.               Considered the submission of learned counsel for the parties,  perused the DFR and impugned order.

 9.                       It is admitted fact that the complainant has got a co-operative society and undertook the different activities including establishment of sundry plant. It appears from the  complaint that the purpose of such sundry plant is  manufacturing of forms without any commercial purpose.  There is only issue whether the consumer complaint is maintainable under the C.P.Act.

10.                 No doubt  complainant has onus to prove that the OP has committed  deficiency in service in their part.  

11.                       The decision relied on by the learned counsel for the appellant with regard to the decision of AIR 2004 SC 4778 Bharat Petroleum Corporation Ltd. & another(Supra) held  about the manner of relying on the decisions of the Hon’ble Supreme Court of India. He also relied on the decision reported in (1997) SC 625 Employees’ State Insurance Corporation-Vrs- F.Fibre Bangalore(P) Ltd.  Where  Their Lordship held “Though Section-75 of the ESI Act does not envisage as to who has to approach the Employees’ Insurance Court, by necessary implication when the employer denies  the liability or applicability of the provisions of the Act or the quantum of the contribution to be deposited by him, it is for the employer to approach the Insurance Court and seek adjudication. It is not for the Corporation in each case whenever there is a dispute, to go to the Employees’ Insurance Court and have the dispute adjudicated. Otherwise the Act would become unworkable and defeat its object and purpose.”

12.                    With due regard to the aforesaid decision we are of view that  allegation of the employer upon establishment can be agitated before the ESI Court. But this case has not discussed about the C.P.Act,1986. But there is  another  decision of the Hon’ble National Commission  1998 CPJ 11  where Their Lordship relied on the aforesaid decision held that the Consumer For a can not entertain such case which is covered under the ESI Act. On the otherhand,  the Hon’ble Supreme Court in Kishorilal (Supra) clearly held at para-20 that Section-75 of the ESI Act does not oust  the application of the Consumer Protection Act if there is deficiency in  service or unfair trade practice  under the C.P.Act.

13.                   With due regard to the aforesaid decision the Hon’ble Supreme Court,we are of view that inaction under  ESI Act can be  challengable  under  the Consumer Protection Act. Therefore,consumer complaint in the instant case is maintainable.

14.              So far merit of the case is concerned, learned District Forum has dealt the matter in detail. In the instant case the only point   is to be decided whether the  demand by the OP  against the complainant is to  show the deficiency in service on the part of the OP. No doubt the complainant has proved all the notices etc. as required under ESI Act and finally they have issued the notice  on 25.05.2001,22.05.2001 to complainant.  The Inspector of ESI has also  made detailed enquiry after which they have issued notice and the entire observation of the OP   is with regard to flour mill. They have clearly  stated that the complainant has no relationship with the flour mill and they have no any business and they have only 15 persons on Society record. It appears that the Inspector under ESI Act has directed to comply the provision of law and  prepared the detailed chart with regard to the amount demanded. But the papers supporting those such documents are not available. Finally they have issued notice on 17.08.2013 imposing  penalty of Rs.2,31,686/- under ESI Act,1948.

15.            When there is no sufficient opportunity given and the grievance of the present  complainant put up, it is for the OP to consider same and pass  speaking order  keeping in mind of the judicial propriety.    It is not the order of the ESI Court but the Authority engaged   under the ESI Act. Since there is sufficient compliance of provision of law by asking the complainant to raise the objection,  which has not been raised being lacks of application given, same  amounts to deficiency in service. It is not a fact  that  the ESI has no power  under the ESI  Act to inspect any establishment but we are  of view   that the authority of the ESI  should  exercise power properly under the ESI Act. Any shotcoming or defect in exercise of  the power  under ESI Act undoubtedly  approachable to the ESI Court   as per  decision of the Hon’ble Supreme Court in (1997) SC 625 Employees’ State Insurance Corporation-Vrs- F.Fibre Bangalore(P) Ltd.(Supra)   but  Section-3 of the C.P.Act  is  clear to show  that  in addition to provision  under ESI Act, the Consumer Forum can be approached  the Consumer Fora can not  close  their doors to protect the  interest  of the consumer. It is needless to say that U/S-2(b) of the Act, the Co-operative Society is a consumer.

16.              In view of aforesaid discussion, we are of the view that  there is deficiency in service  proved by the complainant.

17.             It appears that learned District Forum has passed the order by declaring the demand made by the OP is not proved and  not established. But  such order can not  stand because for removing deficiency in service   any order can not be allowed as  the authority under ESI Act has to exercise their  power. Hence, while confirming the finding of the learned District Forum, we hereby modify  the impugned order  by directing the appellant to remove deficiency in service by re-investigation to the establishment of the complainant and if found the allegation of the complainant are true, they will not insist such demand and to find out whether  the respondent is coming under the ESI Act, and in the event they would confirm same they would exercise power as per law. This direction is to be complied  within a period of 45 days from today.  The cost of Rs.10,000/- is payable by the appellant to the respondent within  the above period also.  

                     The appeal is disposed of accordingly.

                     Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.  

                      DFR be sent back forthwith.