Calcutta High Court (Appellete Side)
Sanju Ghosh vs Employee'S State Insurance ... on 19 September, 2024
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 67
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Gaurang Kanth
MAT 1191 of 2024
CAN 1 of 2024
Sanju Ghosh
Vs.
Employee's State Insurance Corporation
For the Appellant : Mr. Sanjib Dawn
Heard on : 19.09.2024
Judgment on : 19.09.2024
Joymalya Bagchi, J.:-
1.
Appellant contends order dated 15th January 2024 of the Deputy
Director, Employee's State Insurance Corporation was passed in
violation of principles of natural justice and ought to have been
interfered in writ jurisdiction by the Hon'ble Single Judge.
2. Factual matrix giving rise to the appeal is as follows :-
Appellant company was registered under the Employee's State
Insurance Corporation Act and was required to pay contribution in
terms of section 40 of the said Act read with Regulation 31 of ESI
(General) Regulations 1950. But the company failed to contribute
for the wage period from August, 2018 to March, 2022. Accordingly,
show cause notice was issued upon the company under section 45A
of the ESI Act calling upon it to show cause why a sum of Rs.
493589/- be not determined as payable under the said provision
and be recovered if not paid by the company.
3. Pursuant to notice the company appeared before the Deputy
Director and submitted the land on which the manufacturing
activity was undertaken had been taken over by the official
liquidator, High Court, Calcutta in terms of the direction of the
Hon'ble Supreme Court. In view of such submission the company
was called upon to submit the following documents :
i) Detailed records relating to vacating of factory premises
ii) Balance sheet, profit & loss accounts, ITR
acknowledgment with computation of income, salary
records, ledger, cash book, vouchers, EPFO ECR
copies, profession tax registration/return copies for the
C-18 (ad hoc) period.
4. In response, the company submitted copy of the order of the
Hon'ble Supreme Court in civil appeal no. 6564-6567 of 2016, letter
date 22.6.2017 sent by the office of the official liquidator, High
Court, Calcutta and possession certificate issued by the said official
liquidator dated 28.6.2017. In addition the company contended
since closure of the factory in 2018-2019 they have not filed ITR,
balance sheet, profit/loss account, salary records, books of account
etc.
5. Under such circumstances, the adjudicating authority called upon
the company to submit bank account statement of the firm, Form
26AS, EPFO ECR copies, GST return for the said period. Date was
fixed to submit the said document on 7.12.2023 but the company
failed to appear and submit the returns.
6. After considering the materials on record the authority concerned
determined the contribution due and payable at Rs. 430527/-and
directed the company to pay the said amount within 60 days of the
order failing which recovery proceedings were to be initiated.
7. The order came to be challenged before the Hon'ble Single Judge
who dismissed the writ petition in view of existence of statutory
appellate remedy.
8. Mr. Dawn for the appellant contends while hearing was given by the
erstwhile officer, impugned order came to be passed by his
successor. He further contends no opportunity was given to his
client to submit relevant documents to show no one was employed
to carry on manufacturing activity during the relevant period. It is
also contended that the contributions due and payable are barred
as per the second proviso to section 45A of the ESI Act.
9. We have given anxious consideration to Mr. Dawn's submissions.
With regard to the plea that the hearing was given by the erstwhile
officer and the order was passed by his successor, we note no
prejudice was suffered by his client. Records of the proceeding as
well as impugned order graphically sets out the manner in which
the appellant was given an opportunity to submit documents in the
course of hearing. Officer who passed the order noted though some
documents were submitted on behalf of the appellant, he inspite of
opportunity had failed to submit relevant documents like bank
account statements, Form 26AS, EPFO ECR, copy GST return etc.
10. Principles of natural justice do not constitute a strait jacket
formula. They are well established principles which would ensure
fairness in an adjudicatory exercise. Perusal of the records shows
the appellant was given repeated opportunities to produce
documents during hearing. He had failed to produce relevant
documents to probabilise his case and rebut the proposed liability.
On the other hand, pursuant to survey conducted by the social
security officer, appellant had been intimated in Form C-1 that his
establishment was covered under the ESI Act. Nothing is placed on
record to show the appellant had sought for cancellation of the said
coverage due to change in circumstances. Taking note of the
aforesaid facts and other materials on record the authority
concerned made the determination vis a vis ESI liability
11. As the impugned order was based on documents and not on
oral depositions during hearing, no prejudice can be said to have
been suffered by the appellant on the premise the said documents
were submitted before the erstwhile officer while order was passed
by his successor. It is also relevant on the last date of hearing, the
appellant inspite of opportunity had failed and/or neglected to
submit relevant documents. From the records it appears ample
opportunity had been given to the appellant to submit documents
on a number of dates and there is no breach of principles of natural
justice in the facts of the case.
12. Finally with regard to plea of limitation we note the entire
period between February 2018 to March 2019 and July 2019 to March
2022 is not barred by limitation. Even then such issue does not
pertain to patent lack of jurisdiction but would tantamount to mere
error of law amenable to appellate remedy.
13. In light of the aforesaid discussion we are of the view no
exceptional case falling within the time tested parameters, namely,
breach of natural justice, patent lack of jurisdiction or challenge to
vires of the statute have been made out necessitating interference
in writ jurisdiction in the face of existence of statutory appellate
remedy.
14. Appeal is accordingly dismissed.
15. There shall be no order as to costs.
16. Urgent Photostat certified copy of judgment, order if applied for be
given to the parties on compliance of all formalities.
I agree.
(Gaurang Kanth, J.) (Joymalya Bagchi, J.)
tkm
