Allahabad High Court
New Parivartan Sahkari Shram ... vs The Employees ' State Insurance ... on 4 September, 2015
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 2
Case :- WRIT - C No. - 48775 of 2015
Petitioner :- New Parivartan Sahkari Shram Samvida Samiti
Respondent :- The Employees ' State Insurance Corp. And 2 Others
Counsel for Petitioner :- R.K. Misra,U.K. Misra
Counsel for Respondent :- Rajesh Tiwari
Hon'ble Suneet Kumar,J.
The petitioner is a cooperative society registered under the U.P. Cooperative Societies Act, 1965. Employees State Insurance Act 19481 is applicable upon the petitioner society from 1 April 2007. Contribution was made to the ESI fund by the petitioner for the period April 2010 to March 2013. The second respondent Deputy Director, Employees' State Insurance Corporation, Kanpur by the impugned order dated 22 July 2015 determined ESI contribution for the aforementioned period. Consequently, the third respondent Recovery Officer issued recovery notice on 24 July 2015 for recovery of Rs. 9,44,422/-. Petitioner is assailing the aforementioned orders in writ jurisdiction.
Submission of learned counsel for the petitioner is that the respondents have not passed an order under Section 45-A of the ESI Act which provides that before an order is passed the affected person or the establishment is required to be given an opportunity of being heard. In support of his submission reliance has been placed on a decision rendered in Rajrani Exports Ltd. and another Versus Employees' State Insurance Corporation and others2.
Learned counsel appearing for the respondents would submit that the impugned order has been passed for recovery of contribution under Section 45-C to 45-I of the Act. The amount of contribution payable has been determined after notice and reasonable enquiry on the basis of records available with the corporation, hence, the content for the order is appealable under Section 75.
In the facts of the present case, Section 45A is not applicable since it is not a question of determination, but of calculation on the basis of record available with the corporation. Petitioner admits that the petitioner had made contribution for the period 2012 to 2013. By the impugned order, calculations have been made by the respondent corporation for the same period, thereafter determined the short fall and the consequent interest payable thereon. Therefore, it is not a determination under Section 45A. The ratio of Rajrani Exports Ltd would not apply in the present case. In the facts of that case, petitioner therein did not submit any return under the ESI Act. The Court observed as follows:-
"6. Application of Section 45(2) does not preclude application of Section 45A. Non-submission of return is a non-compliance of provisions of the Act, in a case where the Act applies. In terms of Sub-section (2) of Section 45, if provisions of the Act are not complied with, then inspection can be made. If such inspection Is made under Sub-section (2) of Section 45 and amount is determined on the basis of such inspection, in the absence of any Return submitted by the employer, it would be a case covered under Section 45A. Inasmuch as it will be a case of determination of the amount on the basis of the information available with the ESI Corporation where no return is submitted. Section 45 does not postulate determination. It postulates appointment of inspectors and inspection by them. Thus, the provisions of Section 45E would be attracted as soon the calculation or determination is made on the basis of materials available to the authority."
In the facts of the present case, returns were submitted by the petitioner, thereupon calculation has been made by the corporation for the period for which returns were submitted by the petitioner. When it is a case of simple calculation, there is no right of hearing, so far as the employer is concerned. Dispute covered under clauses (a) to (g) of sub-section (1) of Section 75 can be raised before the ESI Court. The remedy is equally efficacious. Therefore, the petitioner cannot maintain this writ petition on the ground that no hearing was given, since hearing is not postulated in view of Section 39 and Section 40 of the ESI Act which is the liability of the employer since been calculated by the authority. Since there is no determination and power under Section 45A was not exercised, therefore, neither the proviso to Section 45A or Section 45E can be attracted. Section 45-A contemplates two contingencies. First that no return is submitted or particular Register or Records are not maintained in terms of Section 44. Secondly, the Inspector or any authorised officer was prevented from making any inspection.
Having due regard to the facts and circumstances of the case, the writ petition being devoid of merit is, accordingly, dismissed on the ground of alternative remedy.
No order as to costs.
Order Date :- 4.9.2015
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