Jharkhand High Court
Gopal Krishna Bagaria vs Employees State Insurance Corp on 25 September, 2012
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.1407 of 2011
Gopal Krishna Bagaria ...... Petitioner
-Versus-
Employees State Insurance
Corporation & Ors. ......Respondents.
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CORAM : HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
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For the petitioner : Mr. A.K. Sahani, Advocate
For the Respondents : Mr. Rajan Raj, Advocate
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3/25.09.2012: In this writ petition, the petitioner has prayed for quashing the demand notice dated 14.1.2011, contained in Annexure-8, whereby the petitioner has been directed to pay a sum of Rs.1,18,676/- and on failure is to be made liable for recovery under Section 45(c) to 45(i) of the Employees State Insurance Act, 1948 (hereinafter to be referred as the said Act).
2. The order has been challenged mainly on the ground that the order has been passed without giving proper opportunity of hearing to the petitioner and the order is not based on any material or evidence on record and is wholly perverse and illegal.
3. It has been submitted that the provisions of the said Act are applicable where more than ten persons are employed in a factory or establishment. There is nothing on record to show that more than ten persons were employed in the petitioner's establishment.
4. It has been stated that a notice to show-cause was issued to the petitioner. In response to the notice, he had appeared and prayed for time by filing an application dated 23.8.2007 (Annexure-4). His application was not rejected. The petitioner was in the hope that a date of hearing shall be fixed thereafter and he -2- shall be given opportunity of hearing. However, no information was given to the petitioner fixing any date of hearing. After a long lapse of time of about three years, the matter was suddenly taken up and the impugned order has been passed behind the back of the petitioner without giving him any opportunity of representation/hearing.
5. Learned counsel appearing on behalf of the petitioner submitted that the impugned order is contrary to the mandatory provisions of the proviso to Section 45A of the said Act as well as is violation of the principle of natural justice and is liable to be quashed.
6. The petition has been opposed by the respondents. However, despite the time granted at their request, no counter affidavit, has been filed by them. Learned counsel for the respondents submitted that the petitioner was given sufficient opportunity in accordance with the provision of Section 45A of the said Act. The order has been passed considering the facts and materials on record. There is no illegality or infirmity in the order. He further submitted that the petitioner has got alternative remedy of filing an application under Section 75 of the said Act before the Employees Insurance Court and in view of the availability of the said alternative remedy, the writ petition is not maintainable. He relied on a decision of the Supreme Court in Employees State Insurance Corporation vs. F. Fibre, Bangalore (P) Ltd. [reported in 1997(1) SCC 625] as also an order of High Court of Madras in Tuticorin Thermal Power Station Industrial -3- Cooperative Society Ltd., Tuticorin vs. Deputy Regional Director, E.S.I. Corporation, Madurai [reported in 2005-LAWS (MAD)-4-15, equivalent to 2005 LLJ 2, page 1143].
7. I have heard learned counsel for the parties and considered their respective submissions.
8. The grievance of the petitioner is that though notice was issued to him under Section 45A, his prayer for time was rejected. The petitioner was in the hope that a date shall be fixed for hearing but no such date was ever communicated to the petitioner. Suddenly, after a lapse of about three years the impugned order has been passed behind his back. The petitioner has not been given opportunity of representation or being heard as has been provided in the proviso to Section 45A of the said Act.
9. The said contention of the petitioner, has not been denied by the respondents. No affidavit in opposition has been filed by them.
10. Section 45A of the Employees State Insurance Act, 1948 reads as follows :-
"45A. Determination of contribution in certain cases.-- (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Social Security Officer or other official of the Corporation referred to in sub-section (2) of section 45 is prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contribution payable in respect of the employees of that factory or establishment:-4-
Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard:
Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contribution shall become payable.
(2) An order made by the Corporation under sub-
section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for recovery of the amount determined by such order as an arrear of land revenue under section 45B or the recovery under Section 45C to 45-I." (emphasis supplied)
11. On going through the proviso to Section 45A, it is clear that mandatory provision has been made for giving a reasonable opportunity of hearing to the employer or the person in charge of the factory before passing any order.
12. Admittedly, no such opportunity was given to the petitioner. The petitioner had appeared on 23.8.2007 and filed petition for time. The petition was neither rejected nor further date was fixed in his presence for hearing. Suddenly, after a lapse of several years, the matter was taken up and the impugned order has been passed.
13. I, therefore, find substance in the grievance/submissions of the petitioner that the said order has been passed in violation of the mandatory provisions of Section 45A as also without following the principle of natural justice.
14. Though there is alternative remedy for filing an application under Section 75 of the Employees' State Insurance Act, 1948 -5- before the Employees Insurance Court, since the order has been passed violating the principle of natural justice and mandatory provisions of law, the writ petition cannot be rejected on that ground. The decisions referred to and relied upon by the respondents in Employees State Insurance Corporation and Tuticorin Thermal Power Station Industrial Cooperative Society Ltd., Tuticorin (supra) do not deal with such fact and are not applicable to the facts of the instant case.
15. In view of the above, the impugned order dated 14.1.2011 is held to be not sustainable and is hereby quashed.
16. This writ petition is allowed.
(Narendra Nath Tiwari, J.) Shamim/