The court upheld the ESI Court's decision, affirming that a mandatory deposit of 50% is required under Section 75(2-B) unless waived for valid reasons, which were not established by the petitioner.

JUDGMENT :

Ajoy Kumar Mukherjee, J. 

1. Assailing order dated 23rd December, 2019 passed by Employees State Insurance (in short ESI) court, West Bengal Kolkata in Tender Case no. 08 of 2019, present application has been preferred by the petitioner under article 227 of the Constitution of India. By the order impugned learned court below rejected petitioners application under section 75(2-B) of the Employees State Insurance Act 1948 (in short Act of 1948).

2. Being aggrieved by that order petitioner herein submits that the petitioners set up a small kindergarten school for imparting education upto Class IV standard, principally among the students of the rehabilitation colony of the locality and the total number of students in the school is about 170 and the total number of teaching and non-teaching staff at present is 7. Said employees hails from the locality and largely render almost voluntary service and only the conveyance allowance is paid on monthly basis to the teaching and non teaching staff.

3. The petitioners aforesaid institution is covered under the Act of 1948 and all the employees employed by the petitioner’s institution for wages are duly insured as “employees” under section 2(9) of the Act of 1948 and their contribution under the Act has been duly paid on the actual remuneration received by them, which would be evident from the pay register maintained by the petitioner.

4. The petitioner was served with a notice on 6th July, 2017 from the opposite party claiming contribution of ten employees amounting to Rs. 2,94,938/- for the period from June 2012 to December, 2016, on the basis of the assumed notional wages of Rs. 8250/- per month per employee. Petitioner alleged that the said recoverable amount is much higher than that reckoned as per the salary register of the employee from 2012 to 2016. Petitioner further alleged that on 7th May, 2012 the school security officer of the opposite party checked and verified the attendance register and wage register and he also put his signature approving the contents of both the documents but surprisingly opposite party (OP) computed the contribution on the basis of assumed average wage and not on the basis of the actual wages and as such aforesaid claim of the opposite party is not just or legal and in fact is without jurisdiction.

5. Thereafter on 16th November, 2012 the Assistant Director of ESI Corporation passed an order under section 45A of the Act of 1948 claiming Rs. 2,73,488/- for the period of 01.10.2012 to 31.12.2016 as due contribution on an assumed monthly average wage at the rate of 8250/- per month per employee. Thereafter on 16.03.2018 notice was issued to the petitioner by the opposite party demanding Rs. 3,78,720/- after imposing interest on recoverable amount. The petitioner contended that the contribution for the period from October, 2012 to December, 2016 has already been paid by the petitioner.

6. In the above background the petitioner herein filed an application on 31st January, 2019 before the ESI Court below, under section 75(1) (g) along with an application under section 75 (2-B) praying interalia to pass such order to invalidate the said impugned notices and also from restraining the opposite parties from realizing the alleged amount of Rs. 3,78,785/- and to waive the condition for keeping the deposit of 50% of the claim amount as envisaged under section 75 (2-B) of the Act of 1948, along with a further prayer for temporary injunction. Learned court below by the order impugned rejected petitioners both the aforesaid applications filed under the aforesaid provisions under the Act of 1948.

7. Being aggrieved by that order Mr. Mazumder Learned counsel appearing on behalf of the petitioner submits that the petitioner somehow manages to run that school primarily for the education of slum dwellers children and for the children of the inhabitants of rehabilitation colony and the tuition fees charged are very meager. The monthly remuneration paid to the employees is a