Calcutta High Court (Appellete Side)
Shivam Udyog vs Employees State Insurance on 25 September, 2025
25.09.2025
Ct. No. 30
SL No. 10
MKP
WPA 23393 of 2025
Shivam Udyog
Vs.
Employees State Insurance
Corporation And Anr.
Mr. Uddipan Banerjee
Mr. Subhrakanti Samanta
......for the Petitioner
Mr. Rajib Ray
......for the Respondent 1 & 2
1. Affidavit of service filed be kept with the record.
2. The writ application has been preferred challenging the Notice/Letter dated 20th August, 2025, Notice in Form C-19 dated 1st January, 2020.
3. It appears that vide the order dated August, 2019, the respondent/E.S.I.Authority has issued a show cause notice directing the petitioner to make payment as noted in the said notice.
4. It is submitted by the Learned Counsel for the petitioner that no proceedings was conducted under Section 45A of the E.S.I.Act and the petitioner was not even given an hearing. 2
5. The said notice is in violation of principle of natural justice. It is further stated that subsequently, by a notice dated 01.01.2020, the authority concerned has issued a notice to the Recovery Officer for recovery of the said amount and the petitioners bank account maintained by the Bank of Baroda Branch, Gurerbazar Branch,Howrah, has been attached.
6. The Learned Counsel for the petitioner has relied upon the judgment of the Calcutta High Court passed in Rajrani Exports Ltd Versus E.S.I. Corporation, wherein the Court has categorically held as follows:
"THUS, it appears that absence of giving hearing is a glaring infraction of statutory provisions or violation of the established principles of law as enshrined in the statute. In any event, the right of hearing or the principle of 'audi alteram partem is a principle implicit in many of the provisions where a civil right of the person is determined. In such a case, one can not be punished unheard of or penalised unheard or visited with civil consequences unheard. Even without the proviso it could have been said that such right is implicit in the provision itself. Section 45a, as it stood prior to the adding of the proviso, was 3 interpreted in Asian Paints (India) Ltd. v. ESIC 1981 Lab IC 514 (Bombay), wherein it was held that opportunity is required to be given before determination under section 45a is made. This view was affirmed by the apex Court in Royal Talkies Hyderabad v. ESIC AIR 1978 1476: 1978 Lab IC 1245: 1978 (II) LLJ 390, in order to enable the employer to point out errors or inconformity in the determination. Similar view was followed in Hedge and Golay Ltd. v. ESIC 1982 (1) LLJ 48 by Karnataka High Court.
However, the statute makes it clear in this case to that extent. When the statute ensures the principle of 'audi alteram partem', then the same can not be overlooked. Thus the provision of 'audi alteram partem' as enshrined in the statute itself having been overlooked, the writ petition cannot be thrown out on the ground of alternative remedy. The decision in Whirlpool Corporation. (supra) as held in paragraph 15 supports the above proposition, which is now a settled principles of law. The decision in Fenner Garments v. Deputy Regional Director ESIC Madras (supra) also holds good 4 having taken the same view to the extent that in case of non-filing of Return if the authority determines the amount or calculates the amount on the basis of the Report of the Inspector without issuing notice of show cause and without affording any opportunity of hearing, in that event, section 45a (1) is infracted."
7. Considering the fact, that there has been prima facie violation of principle of natural justice, let the matter be heard after Puja vacation and matter be listed in the monthly list of December, 2025.
8. Pending hearing the notice dated 20.08.2025 and the notice in letter dated August, 2019, notice dated 1st January, 2020, be stayed till 15th of December or until further orders, whichever is earlier.
9. Considering the case as made out by the petitioner, the petitioner/bank account maintained with the Bank of Baroda Branch, Gurerbazar Branch,Howrah, be de-freezed in the interim period, so that the petitioners/company will be able to run his establishment.
10. Matter be listed in the monthly list of December, 2025.
[Shampa Dutt (Paul). J]