The central legal point established in the judgment is the requirement of a formal order determining the contribution under Section 45A(1) of the ESI Act and the necessity of providing a reasonable opportunity of being heard before imposing any liability on an employer.

1. The interlocutory application has been filed for amending the prayer made in the writ application so as to seek quashing of the entire recovery proceedings as also the demand for realization of Rs. 41,845/- and previous demand of Rs. 32,587/-, as contained in Annexures-1 and 2 to the writ application.

2. It is submitted by learned counsel for the petitioner that all the facts are already on the record of the writ application but due to inadvertence the proper relief has not been sought.

3. in the facts and circumstances of the case, the prayer for amendment is allowed.

4. I.A. No. 1231/2009 is accordingly disposed of.

5. Heard learned counsel for the parties.

6. The petitioner seeks quashing of the demand of Rs. 41,845/- and the previous demand of Rs. 32,587/- as respectively raised by order dated 16.9.2008 (Annexure-1) and stated in the requisition dated 3.2.2001 issued by the Revenue Recovery Officer, Employees State insurance Corporation (Annexure-2) and also for quashing the entire recovery proceedings under the said Act in relation to the contribution for the period from 20.11.1979 to 26.2.1983.

7. The petitioner claims to have started business of power looms in small scale industry in the year 1979 which was running as a family business with two power looms. It is submitted that 4-5 family members were working in the same. The business lasted for oniy three years and due to financial crisis it had to be shut down. The petitioner claims to be an old man of 85 years and suddenly he learnt about issuance of a warrant of arrest dated 16.9.2008 for the recovery of arrears under the Employees State Insurance Scheme amounting Rs. 41,845/-. The petitioner claims complete lack of knowledge about such arrears/outstanding since the business had been liquidated from early 1980s itself. On enquiry from the ESI Corporation Office, Patna, he was informed that the arrear of Rs. 41,845/- was due on account of contributions payable by him as an employer for the period from 20.11.1979 to 26.2.1983 and a copy of a notice dated 14.1.2002 was also supplied which showed a liability towards contribution of Rs. 10,325/- and rest amount was the interest.

8. The petitioner claims that no notice was ever issued to him before the said liability was created against him and, as a matter of fact, the petitioner is not liable for any contribution as he never employed any one in the said factory. It is stated that everything has been done behind his back without providing him reasonable opportunity of being heard.

9. In the counter affidavit filed on behalf of the respondent-ESI Corporation, the stand taken is that the Insurance Inspector of the Corporation had made a survey report of the petitioners establishment on 20.11.1979 and found that 11 persons were employed for wages with the use of power in the said unit and thus the unit became liable for coverage under the ESI Act. On the basis of such survey report, ESI Code was issued and the advice in Form C-11 was also served upon the petitioner. For the said reasons, it is submitted that the petitioner is a defaulter under the Act and the ESI Corporation has rightly started the certificate proceedings for recovery of the amount on his failure to pay the contribution.

10. Learned counsel for the petitioner relies upon the provisions of Section 45A(1) of the ESI Act, 1948 which is in the following terms:

"45A. Determination of contributions in certain cases.(1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of Section 44 or any Inspector or other official of the Corporation referred to in sub-section (2) of Section 45 is [prevented in any manner] by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may: on the basis of information available to it, by order, determine the amount of co