Narayan Chandra Sil

( 1 ) THIS revisional application under Article 227 of the Constitution of India is directed against Order No. 5 dated 16th December, 2003 passed by Shri M. P. Srivastava, the learned Judge, Employees' Insurance Court, Calcutta, West bengal in Tender Case No. 102 of 2003.

( 2 ) IT appears from the order impugned that a petition under section 75 (2b)of the ESI Act along with a petition for temporary injunction were taken up for consideration. The petitioner in that case prayed for exemption from depositing 50% of the demanded sum of Rs. 27,98,718/- The applicant there filed a case under section 75 (l) (g) of the ESI Act (hereinafter referred to as an "act" only ). It is observed by the learned Judge that depositing of 50% demanded sum is a condition precedent for filing a case under section 75 (1) (g) of the Act. The learned judge appears to have dealt with the proviso to section 75 (2b ). It is clearly observed by the learned Judge, "the points raised in the main application are to be decided after evidences (sic) are (sic) adduced by the parties. The learned judge directed the applicant to deposit a sum of Rs. 1,00,000/- by 16. 1. 04 with the O. P.-E. S. I. Corporation directing the Corporation to hold the same in trust and ultimate appropriation thereof shall abide by the final decision of the case". The learned Judge was also pleased to allow the prayer for temporary injunction. This order is challenged in the present revisional application under Article 227 of the Constitution of India.

( 3 ) THE petitioner i. e. Employees' State Insurance Corporation (hereinafter referred to as "corporation" only) has stated in this revisional application that the O. P. No. 1 is a private limited company carrying on hotel business. The principal employers of the O. P. No. 1 failed to pay ESI contribution and other dues under the Act despite repeated demands for such payment made by the corporation and thus the amount of dues including the arrears came up to Rs. 27,98,718/- For such repeated demands the O. P. No. 1 filed the application under section 75 (1 ) (g) of the Act before the Employees' Insurance Court, West bengal. In that application another application under section 75 (23) of the Act was filed by the O. P. No. 1 as petitioner before the Insurance Court for waiver of the amount required to be deposited.

( 4 ) IT is stated in the petition that the learned Judge acted illegally with material irregularity in directing the O. P. No. 1 to deposit a sum of Rs. 1,00,000/-by fixing the said amount arbitrarily, and without any basis at all and without recording any proper reason. It is also taken in the petition that the learned judge also failed to exercise his discretion lawfully, judiciously and fairly and thereby made the mandatory provision of section 75 (2b) of the Act a nugatory by passing the order impugned.

( 5 ) THE O. Ps. have contested the application by filing an affidavit-in-opposition wherein all the material allegations are denied. In paragraph 11 of the affidavitin-opposition it is stated that the demands of the Corporation were not tenable mainly on the following grounds :" (a) The demand Notices have been issued in violation of the principle of natural justice. (b) Since the demands have been determined in violation of principles of natural justice, the same are nullity in the eye of law. (c) Recovery Notices have been issued violating first proviso to section 45a of the Employees' State Insurance Act, 1948. (d) Since the demands have been made in violation of first proviso to section 45a and in violation of the principles of natural justice, all the notices demanding payment are nullity in the eye of law. (e) The demand Notices dated 27th June, 2003, 1. 08. 2003, 1. 08. 2003 6. 08. 2003 petitioners have failed to appreciate that as per Share Purchase agreement-A read with Balance-sheet for the accounting year 2000-2001 leaves no manner of doubt that no liability prior to the closing date i. e.

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