Delhi High Court
M/S Hotel Vasundhara Inn & Ors. vs Employees State Insurance ... on 22 September, 2015
Author: Sunil Gaur
I-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 22 , 2015
+ W.P.(C) 9126/2015 & C.M.Nos. 20753-54/2015
M/S HOTEL VASUNDHARA INN & ORS. ..... Petitioners
Through: Mr. Akshay Chandra, Advocate
versus
EMPLOYEES STATE INSURANCE CORP. ..... Respondent
Through: Mr. K.P. Mavi, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Vide summons issued on 21st July, 2015 (Annexure P-2),
petitioners have been summoned as defaulters under Sections 45-C to 45-
I of The Employees' State Insurance Act, 1948 (henceforth referred to as
the 'The ESI Act'), which requires petitioners to deposit ESI dues of
`3,36,110/- with interest. The aforesaid summon (Annexure P-2) is
impugned in this petition on the ground that without affording an
opportunity of hearing to petitioners, the statutory appeal is dismissed on
26th February, 2013 on account of default on the part of petitioners to
deposit amount of `2,52,038/-.
Learned counsel for petitioners submits that petitioners had already
deposited `7,00,000/- with the authorities concerned and so, petitioners
were under bona fide belief that there was no requirement of further
deposit of 50% of contribution and had expected that petitioners' appeal
would be decided after putting petitioners to notice but it has not been
done and there is violation of principal of natural justice and so,
jurisdiction of this Court under Article 227 of Constitution of India is
invoked.
At the hearing, learned counsel for petitioners had drawn attention
of this Court to petitioners' Communication of 15 th January, 2014
(Annexure P-15) to the Appellate Authority to point out that since
liability of petitioners was nil, so 25% of contribution was not deposited
but still petitioner had enclosed 25% of the purported demand and had
sought hearing of statutory appeal on merits. It was submitted on behalf
of petitioners that order under Section 45A of The ESI Act has been
passed by the Assistant Director whereas in terms of Section 45A of The
ESI Act, the authority competent to pass the assessment order is Regional
Director and not Assistant Director and so, it is a fit case where the court
ought to direct the Appellate Authority to decide petitioners' statutory
appeal on merits.
Learned counsel for respondent opposes this petition by submitting
that under Section 75 of The ESI Act, petitioners have to approach the ESI
Court and so, this writ petition ought not be entertained. To submit that
ESI Court is empowered to determine the contribution payable and to
check the validity of the order of Appellate Authority, reliance was
placed upon Apex Court's decision in Employees' State Insurance
Corporation Vs. F. Fibre Banglore (P) Ltd. (1997) 1 SCC 625.
To controvert the jurisdictional issue, learned counsel for
petitioners relies upon decision in C.D. Securities Services Network Ltd.
Vs. Employees State Insurance Corporation 2010 (4) AD (Delhi) 394.
Upon hearing and on perusal of the impugned summons, order of
the Appellate Authority, material on record and the decisions cited, I find
that to invoke Section 75 of The ESI Act, statutory appeal is to be
decided on merits and not otherwise. Since petitioners' appeal has been
dismissed at the threshold due to non-deposit of 25% of the contribution,
therefore, on this limited aspect this petition is being entertained.
In the facts and circumstances of this case and while taking into
consideration petitioners' Communication of 15th January, 2014
(Annexure P-15), wherein it is asserted that pre-deposit amount already
stands deposited, I direct that without going into this aspect any further,
let petitioners' appeal be decided on merits after affording an opportunity
of personal hearing to petitioners. Considering that order under Section
45A of The ESI Act has been passed by the Assistant Director and not
Regional Director, Appellate Court's order of 26th December, 2013
(Annexure P-1 colly) is hereby set aside with direction that petitioners'
statutory appeal be heard and expeditiously decided on merits and till
decision on petitioners' appeal, no coercive steps be taken against
petitioners.
With aforesaid directions, this petition and applications are
disposed of.
Dasti.
(SUNIL GAUR)
JUDGE
September 22, 2015
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