The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.9524 of 2023 M/s R.S. Engineering Works ....... Petitioner Kalinga Nagar Industrial Complex, Dist. Jajpur -Versus- Deputy Director, ESI ……. Opposite Parties Corporation, Bhubaneswar and others For Petitioner : Mr. Somanath Mishra, Advocate For Opp. Parties : Mr. A.P. Ray, Advocate ----- CORAM: JUSTICE SANJAY KUMAR MISHRA _______________________________________________________________ Date of Hearing and Judgment: 15.04.2024 _______________________________________________________________ S.K. MISHRA, J. 1. The Petitioner-Establishment has preferred this Writ Petition challenging the order dated 18/19.11.2019 passed under section 45-A of the Employees’ State Insurance Act, 1948, shortly, “the Act, 1948”, passed by the Dy. Director, ESI Corporation, Bhubaneswar, as at Annexure-7, so also Garnishee Order dated 19.01.2023 passed under section 45-G of the Act, 1948 by the Recovery Officer, ESI Corporation, Bhubaneswar, as at Annexure-5, W.P.(C) No.9524 of 2023 Page 1 of 8 with a prayer to set aside both orders and afford an opportunity of hearing to the Petitioner to have its say in the 45-A proceeding solely on the ground that the Petitioner was never noticed by the Authority concerned before passing of the said orders. 2. The brief back ground facts, which led to filing of this Writ Petition, are that the Petitioner got a work order dated 09.03.2013 from M/s. Neelachal Ispat Nigam Limited, shortly, (NINL), Kalinga Nagar Industrial Complex, Dhuburi for spillage cleaning, for shift operation and general shift cleaning and minor mechanical maintenance activities in R.M.H.S. inside the factory premises of the said industrial establishment. Pursuant to the said order, the Petitioner undertook the said job and also filed Returns, as required under the Act, 1948, with regard to contribution of employees for the month of June, 2013 to August, 2013. Thereafter, NINL, vide its letter dated 01.11.2013, found some deficiency in the performance of the Petitioner-Establishment and directed it to comply with all the contractual obligations within a week, failing which it was warned that NINL may resort to take necessary action as per contractual provisions. It is further case of the Petitioner that during the said period, the Proprietor of the Petitioner-Establishment was bed ridden and could not comply with all the contractual obligations within the stipulated period. For that W.P.(C) No.9524 of 2023 Page 2 of 8 reason, the NINL terminated the contract/work order of the Petitioner, vide letter dated 15.11.2013. The said termination caused a great set back to the Petitioner and all its dream and financial aspect were completely shattered. Finding no other alternative, the Proprietor of the Petitioner-Establishment left for his village to earn his livelihood and for that reason, he remained away from his native place in most of the time and his Establishment at Kalinga Nagar in the rented house was also closed. When the matter stood thus, the Petitioner came to know about the Garnishee Order dated 19.01.2023 from the Bank and managed to get a copy of the same, which was issued by the Recovery Officer, E.S.I. Corporation (Opposite Party No.2) demanding a sum of Rs.52,02,344/-. After receipt of the copy of the Garnishee Order dated 19.01.2023, the Petitioner approached the Corporation and informed about stoppage of work since November, 2013 and requested ESI Authority to cancel the Garnishee Order. However, the Petitioner was told that nothing can be done at Corporation level and if the Court directs, it’s case can be considered. As the Petitioner has not received any notice, letter or order from the Office of the Opposite Parties-Corporation, it was advised to get the copy of the order passed under section 45-A of the W.P.(C) No.9524 of 2023 Page 3 of 8 Act, 1948, basing on which the Garnishee Order, as at Annexure-5, was issued. Accordingly, the Petitioner, vide letter dated 23.03.2023, requested the Opposite Party No.1 to give a copy of the order passed in the 45-A proceeding. On being so asked, the Petitioner was supplied with a copy of the order dated 18/19.11.2019 on the very same day. After getting the same, it came to the knowledge of the Petitioner that the said order has been passed against it without giving any opportunity of notice to have its say, as required under section 45-A of the Act, 1948. Hence, this Writ Petition. 3. It is further case of the Proprietor of the Petitioner- Establishment that he being an under matric, was under an impression that as his contractual job was cancelled on 15.11.2013 by the Principal Employer i.e. NINL, it was not to pay the ESI Contribution and for that reason, it failed to intimate the ESI Authority regarding cancellation of its contract and stoppage of work in NINL. Hence, the determination of the ESI dues for the period from 11/14 to 5/19 for 86 employees on assumed wages with an astronomical figure is wholly illegal, without jurisdiction and the impugned order, as at Annexure-7, is liable to be quashed directing the Opposite Party No.1 to afford an opportunity of hearing to the Petitioner to have its say in the said matter. W.P.(C) No.9524 of 2023 Page 4 of 8 4. Being noticed, the Opposite Party Nos. 1 and 2- Corporation have filed a Counter denying the averments made in the Writ Petition. That apart, a stand has been taken in the Counter as to availability of alternative remedy under section 45-AA so also section 75 of the Act, 1948. 5. However, in response to the Counter filed by the Corporation, a Rejoinder has been filed by the Petitioner. Paragraphs 4 to 6 of the Rejoinder, being relevant for proper adjudication of the present lis, are extracted below: “ 4. That the Opp.parties have filed counter affidavit in this case on distorted and irrelevant fact and have not been able rather failed to demonstrate the compliance of the principle of natural justice while passing the impugned order U/s.45-A as at Annexure-7 and also while issuing the garnishee order as at Annexure-5 and hence Annexure-5 and Annexure-7 are to be quashed. 5. That it is humbly submitted that in the order dt.19.11.2019 passed U/s. 45-A of the Act the Opp.party No.1 has mentioned three dates of hearing viz, 26.07.2019, 27.08.2019 and 26.09.2019 but the petitioner has not been noticed for the said three date and the Opp.parties have failed to demonstrate in their counter regarding receipt of notice by the petitioner. 6. That, it is respectfully submitted that C-18 Adhoc notice dt.27.06.2019 fixing the date to 26.07.2019 was not received by the petitioner so also the notice dt.06.08.2019 fixing the hearing to 27.08.2019 was not received by the petitioner and the counter is silent about the date of hearing fixing to 26.09.2019. One A/D card has been annexed to the counter which has not been signed by the petitioner and also does not relate to any letter regarding fixing of hearing U/s. 45-A of the Act.” (Emphasis supplied) W.P.(C) No.9524 of 2023 Page 5 of 8 6. In view of the specific allegation of the Petitioner- Establishment so also the stand taken in its Rejoinder, as detailed above, this Court, vide order dated 11.12.2023, directed the learned Counsel for the Corporation to produce the original record pertaining to present lis.
Legal Reasoning
After taking several adjournments, the learned Counsel for the Corporation produced the original record today in the Court. On perusal of the said record, it is ascertained that in the order under section 45-A proceeding of the Act, 1948 dated 18/19.11.2019, there is a mention regarding the date of hearing to be held on 26.07.2019, 27.08.2019 and 26.09.2019 and alleged receipt of notice vide acknowledgement due card, which is on record. On verification of the original record, it is further ascertained that though the copy of the alleged notices are on record, there is no A.D. card or any tracking report on record to substantiate the stand of the Corporation that those notices were duly served on the Petitioner-Establishment before the final order was passed in the 45-A proceeding. That apart, on perusal of the original A.D. card available on record, which has been annexed to the Counter along with letter dated 04/05.09.2019, the same does not bear the signature of the person, who took delivery of the postal article. Rather, on the reverse of the A.D. card, a signature of one “Rupashree Deo” is appearing and has been put by the postal W.P.(C) No.9524 of 2023 Page 6 of 8 Authority on dated 16.09.2019 and the said A.D. card is pertaining to the letter addressed to the Recovery Officer for realization of amount and not pertaining to the notice given in the 45-A proceeding. 7. In view of the admitted facts, as borne out from the original record produced by the Corporation, even though there is an alternative remedy available under the Act, 1948, as pointed out in
Decision
the Counter questioning the maintainability of the Writ Petition, this Court is of the view that, in view of the specific stand taken in the Writ Petition by the Petitioner-Establishment and termination of its contractual job by the Principal Employer i.e. NINL, vide letter dated 15.11.2013, which has not been denied or disputed by the Corporation in its Counter so also violation of the principles of natural justice as to not giving any notice to the Petitioner- Establishment to have its say denying its liability beyond 15.11.2013, the impugned order passed under Section 45-A proceeding, followed by the Garnishee Order dated 19.01.2023 passed under Section 45-G of the Act, 1948 are bad and liable to be set aside. Accordingly, the impugned order dated 19.01.2023 (Annexure-5) so also order dated 18/19.11.2019 (Annexure-7) are hereby set aside. 8. The matter is remitted back to the Opposite Party No.1 to rehear and re-determine the 45-A proceeding by giving an opportunity of hearing to the Petitioner-Establishment to produce the relevant W.P.(C) No.9524 of 2023 Page 7 of 8 documents and record to substantiate its stand as to termination of job contract in NINL and stoppage of the contractual activities beyond 15.11.2013. 9. In order to avoid further delay, the Petitioner is directed to appear before the Opposite Party No.1 on 13.05.2024 along with the certified copy of this order. On so appearing, the Opposite Party No.1 (Deputy Director, ESI Corporation) shall do well to fix a date for submitting the written response of the Petitioner-Establishment so also producing documents/records to substantiate the plea to be taken in its statement and thereafter, proceed further in accordance with law and conclude the said proceeding within a period of three months thereafter. 10. With the said observation, the Writ Petition stands disposed of. (S.K. MISHRA) JUDGE Orissa High Court, Cuttack Dated, 15th April, 2024/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: orissa high court, cuttack Date: 24-Apr-2024 12:52:55 W.P.(C) No.9524 of 2023 Page 8 of 8