(Through Hybrid mode) v. Dy. Director Revenue, ESIC, BBSR

Mr. B. Das, Advocate CORAM: JUSTICE ARINDAM SINHA Order No. ORDER 26.06.2023

Mr. Mishra, learned advocate appears on behalf of petitioner and submits, impugned is order dated 28th June, 2022 purportedly made under section 45-A of Employees’ State Insurance Act, 1948 (annexure-5) carrying demand of Rs.16,16,596/- on alleged basis of 129 employees. He points out, the period is June, 2018 to December,

He draws attention to communication dated 13th March, 2020, whereby the authority had demanded Rs.1,62,913/- for the same period. He demonstrates that the amount was paid on 19th May,

2022. This demand was made on basis of 13 employees. Subsequent // 2 // thereto, without reference to his client, there was demand on basis of 129 employees resulting in impugned order. He seeks interference or at least interim protection.

He draws attention to earlier determination order dated 22nd November, 2013 for period October, 2013 to November, 2014 (14 months) taking into account 13 employees. This being the position the Corporation has purported to urge in its counter that there were 129 employees, based on an inspection made on 1st May, 2006. He submits, the number of employees allegedly found by the inspection also was not 129 but 99. However, the inspection report cannot be relied upon since, he reiterates, in earlier period but after the inspection, determination was made on the basis of 13 employees.

Referring to impugned order he draws attention to statement therein that Accounts Manager of his client had attended for personal hearing on 12th May, 2022. However, between that date and next date fixed on 20th May, 2022, the Accounts Manager resigned. Hence, his client went unrepresented at the determination and could not produce documents to show, in fact his client was employing only 13 persons. He submits, impugned order be set aside and quashed for opportunity being given, on a date fixed by Court, for // 3 // his client to appear with all documents and present its case on determination.

Mr. Das, learned advocate appears on behalf of Corporation. He draws attention to statements made in paragraph 7(H) in the counter, reproduced below. “The matter stands thus, it was found that the aforesaid C-18(Ad-hoc) Notice

03.02.2020/13.03.2020 was inadvertently issued only for 13 No. of employees when as per the petitioner’s records inspected on 27.09.2007, the number of employees were 116 for the month of 06/2007 and as per petitioner’s letter dated 01.04.2009, another 13 employees totaling to 129 employees were deployed. On the basis of such information available with the Opposite Party/Corporation, another C-18(Ad-hoc) Notice dated 16.02.2022 in suppression to the Notice in From C-18(Ad-hoc) dated 03.02.2020/13.03.2020 for the non-complying period from 6/2018 to 12/2019 was issued and the petitioner was offered the opportunity to appear on 15.03.2022 to show cause as to why the contribution proposed therein amounting to Rs.16,16,596.00 shall not be determined under Section 45-A of the Act.”

The Corporation has not been able to demonstrate with particulars that 129 employees were there with petitioner in period June, 2018 to December, 2019. The inspection on 1st May, 2006 // 4 // discovering 99 employees, as per the preliminary inspection/survey report, stands disclosed by the Corporation itself. In spite thereof, for successive subsequent periods determination was made taken into account 13 employees. In the circumstances, Court accepts petitioner’s contention of being given opportunity to fully present its case on the determination.

The writ petition is disposed of. (Arindam Sinha) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Designation: SENIOR STENO Reason: Authentication Location: OHC Date: 26-Jun-2023 19:30:44