The condition for invoking section 45A of the ESI Act is satisfied if the employer neither submits the return nor furnishes the particulars nor maintains the register of record as required by law. The requirement of hearing before passing an order under section 45A cannot be read into the statute, as the employer has already been given a full opportunity to participate in the inquiry and has deliberately chosen not to do so.

( 1 ) THIS is a Letters Patent Appeal against the judgment of the learned Single Judge by which he allowed the appeal, set aside the order of the Employees Insurance Court and remanded the matter to determine the true liability of the respondents in accordance with the provisions of law.

( 2 ) SECTION 38 of the Employees State Insurance Act (hereinafter to be called the Act) provides that all employees in factories or establishments to which this Act applies shall be insured in the manner provided by the Act. Section 39 provides for contribution to be payable under the Act in respect of employees by the employer. Section 44 provides that the principal and immediate employer shall submit to the Corporation such return in such form and containing particulars relating to persons employed by him or to any factory or establishment in respect of which is the principal or immediate employer. Where the Corporation has reason to believe that a return should have been submitted but has not been so submitted it may require any person to furnish such particulars as it may consider necessary tor enabling the Corporation. to decide whether the factory or establishment is a factory or establishment to which this Act applies. Section 45 empowers the Corporation to appoint persons as inspectors who are entitled to inspect the books in order to enquire into the correctness of any particulars stated in any return referred to in section 44. Section 45a provides that where no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Inspector is obstructed by the principal employer. . . . . in exercising his function or discharging his duty under section 45, the Corporation may on the basis of information available to it by order determine the amount of contribution payable in respect of the employees of that factory or establishment.

( 3 ) A demand of Rs. 6950. 54 was created by the respondents under section 45-A of the Act. The respondent being aggrieved by the said demand took the matter before the Employees Insurance Court under section 77 of the Act. The court found that the Corporation was within its rights to compute the employee s special contribution as no record or register was made available to the Corporation. It, therefore dismissed the petition filed by the employer. Thereafter, an appeal under section 82 (2) of the Act was filed which has been allowed as mentioned above.

( 4 ) THE learned single judge appears to have held that proper opportunity was not given to the employer to meet the case. He was also not satisfied that there was any material justifying the corporation to make an ad hoc determination of the liability on the employer. He. therefore, set aside the order of the court and remanded the matter back for further enquiry- We have gone through the judgment ; so far as the ultimate direction of the learned single judge remitting the matter for reconsidera-tion is concerned, we cannot find that he has committed any error of principle of law so as to interfere with that direction in appeal. To be fair to Mr. Oberoi. the learned counsel for the appellant, he fairly stated that if it was only a question of further enquiry the corporation would not have filed this appeal because it is quite strong on the merits and will be able lo satisfy the Employees Insurance Court that its demand was justified. The reason for filing the appeal, according to Mr. Oberoi was because of certain interpretation given to section 45a of the Act which according to the counsel would create and very serious problem in the actual working of the Act. This has reference to the finding of the learned judge that the condition for the applicability of section 45a would only be satisfied if the employer neither submitted the return nor furnished the particulars nor maintained the register of record as required by law. Counsel criticises this approach and save tha