Allahabad High Court
R.M.Dairy Product Llp vs State Of U.P. And 2 Others on 28 September, 2020
Bench: Manoj Kumar Gupta, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 35 Case :- WRIT - C No. - 12855 of 2020 Petitioner :- R.M.Dairy Product Llp Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ranjit Saxena Counsel for Respondent :- C.S.C. Hon'ble Manoj Kumar Gupta,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
Heard Sri Ranjit Saxena, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Sri Rajesh Tiwari for respondent nos. 2 and 3.
The instant writ petition has been filed challenging the notice dated 10.12.2018 issued by the Employees State Insurance Corporation, calling upon the petitioner establishment to deposit a sum of Rs. 1,12,372/- towards arrears of ESI amount under the Act, for the period January 2017 to May 2017, as well as the actual assessment order dated 29.8.2019 assessing a sum of Rs. 1,44,244/- as the defaulted amount.
The specific case of the petitioner is that the demand made by the notice was in respect of a factory set up in November, 2016 at Khasra No. 3452, Gram Sultanpur, Pargana, Tehsil Iglas, District Aligarh for manufacturing of milk products. The said unit is covered by the Circular dated 13.2.2017, which provides that the establishments registered in newly implemented area after 6.10.2016, i.e. date of notification, shall pay contribution at a reduced rate of 4% (3% employers share and 1% employees share) for a period of 2 years w.e.f. 6.10.2016. The other circular which is earlier in point of time dated 9.1.2017, specified the area, and it included Aligarh as well. The petitioner in response to notice dated 10.12.2018 submitted its reply and specifically placed reliance on the above two Circulars and claimed that it had already deposited 3% of employers share and 1% of employees share towards ESI contributions for the period in dispute. The respondent Corporation had wrongly calculated the amount @ 6.5% without extending the benefit of the above circulars and therefore the demand is wholly illegal. The respondent Corporation while passing the assessment order did not apply its mind at all to the objection of the petitioner in relation to the above Circulars. Thus, the impugned assessment order is a totally non-speaking order.
Learned counsel for the respondent corporation raised an objection that a statutory appeal under Section 75(1)(g) is available to the petitioner before the Employees Insurance Court and therefore this court should not entertain the instant petition.
However, as noted above, the impugned assessment order is a totally non-speaking order. It does not take into consideration the reply submitted by the petitioner unit in response to the show cause notice. The consideration of reply of the aggrieved person before passing an order entailing civil consequences is part of the doctrine of natural justice. Since the impugned order has been passed in gross violation of the principles of natural justice without adverting to the reply of the petitioner and therefore we do not consider it necessary to relegate the petitioner to the remedy of appeal. We therefore turn down the preliminary objection and quash the assessment order dated 29.8.2019, leaving it open to the respondent Corporation to pass a fresh order, after considering the reply submitted by the petitioner establishment.
The petition stands allowed to the extent indicated above.
(Manoj Kumar Gupta,J.) (Dr. Yogendra Kumar Srivastava,J.) Order Date :- 28.9.2020 Jaideep/-