Md. Naushad vs Employees State Insurance
2023 Latest Caselaw 102 Cal

04.01.2023
  Court
No.550
Item no.11                 WPA 21305 of 2022
  S.Ghosh


                              Md. Naushad
                                   Vs.
                       Employees State Insurance
                          Corporation & Ors.


             Mr. Barnamay Basak
             Mr. Swetank Rai
             Mr. Pranavl Sharma
                                      ..... for the petitioner

             Mr. Soumitra Banerjee,
             Ms. Tuli Sinha
                                      .... For the State


                   Affidavit-of-service filed in court today be kept on

             record.

                   The present writ application has been filed, inter

             alia, challenging the notice of show-cause dated 2 nd

             August, 2022 whereby and where under the petitioner

             had been asked to show cause as to why warrant of

             arrest shall not be issued against him.           On 16th

             September, 2022 when this writ application had come up

             for consideration, it was submitted on behalf of the

             petitioner that without any intimation of any nature or

             without the service of the order under Section 45A of the

             Employees    State   Insurance   Act,   1948   (hereinafter

             referred to as the said Act), the aforesaid show cause

             notice had been issued.      Since the learned Advocate

             representing the respondents could not demonstrate

service of the order under Section 45A of the said Act, nor

could he produce a copy thereof, I had entertained the

writ application since, in my view, the petitioner without

being afforded an opportunity to file an appeal was being

penalized.

Since, then the affidavits had been exchanged.

Learned Advocate representing the respondents by filing

an affidavit has disclosed the order dated 29 th August,

2013 passed under Section 45A of the said Act. He says

that the aforesaid order was attempted to be served on

the petitioner. By drawing attention of this Court to a

photocopy of an envelope which is at page 25 of the

affidavit-in-opposition, it is submitted that the postal

authorities had given intimation of the aforesaid postal

envelope to the petitioner. Unfortunately, since the

petitioner did not collect the same, the aforesaid envelope

containing the order was redirected and sent back to the

respondents by the postal authorities. He says it was the

obligation of the petitioner to collect the envelope once

intimation was sent by the postal authorities. He says

that petitioner was all along aware with regard to the

factum of passing of the aforesaid order.

The present application is utterly unmeritorious

and the same should be dismissed.

Mr. Basak, learned Advocate representing

petitioner in reply submits that the petitioner had never

been served with the aforesaid order. By referring to the

photocopy of the envelope, which is at page 25 of the

affidavit-in-opposition he says that apart from the

endorsement made by the postal authorities appearing on

the said envelope, there is no other document to establish

that the petitioner had been forwarded the copy of the

aforesaid order passed under Section 45A of the said Act.

He says that he has come to learn with regard to the

contents of the order passed under Section 45A of the

said Act, from the affidavit-in-opposition for the first

time. He says that he should be given an opportunity to

challenge the said order and the show cause notice

issued against the petitioner should be quashed.

Having heard the learned Advocates of the

respective parties and having considered the materials on

record I find that the respondents had certainly

attempted to serve the order on the petitioner. The fact

remains that despite making such attempt the order

ultimately could not be served on the petitioner. Apart

from the photocopy of the aforesaid envelope there is no

other documents to demonstrate that the aforesaid order

under Section 45A of the said Act was in fact forwarded

or served on the petitioner. Ordinarily an order passed

under section 45A of the said Act is the best-judgment

assessment which can be challenged in appeal and before

the Employees Insurance Court. In any event, since the

petitioner has expressed his willingness to challenge the

aforesaid order, in my view, it would be prudent to avoid

all controversies and permit the petitioner to prefer an

appeal under Section 45AA of the said Act. Since, the

petitioner has already received a copy of the aforesaid

order, the petitioner shall be at liberty to prefer an appeal

from the order under Section 45A of the said Act in

accordance with law. If such appeal is preferred within a

period of 30 days from the date, the Appellate Authority

under Section 45AA of the said Act shall hear out and

dispose of the said appeal on merits. Since, I have

granted liberty to the petitioner to prefer the appeal, the

show-cause notice dated 2nd August, 2022 which forms

the subject matter of challenge in the writ application

shall stand quashed.

With the aforesaid observations and directions the

writ application stands disposed of.

There shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

formalities.

(Raja Basu Chowdhury, J.)