Compliance with principles of natural justice and the requirement to afford an opportunity of hearing before passing assessment orders under Section 45-A of the Employees' State Insurance Act, 1948.

JUDGMENT

Manoj Kumar Ohri, J. (Oral)

CM.APPL. 55191/2022 in FAO 328/2022,

CM.APPL. 55048/2022 in FAO 326/2022

Allowed, subject to all just exceptions.

The applications stand disposed of.

CM.APPL. 55190/2022 in FAO 328/2022 (Delay),

CM.APPL. 55047/2022 in FAO 326/2022 (Delay)

1. The present applications have been filed under Section 5 of the Limitation Act on behalf of the appellants seeking condonation of delay of 45 days in filing the present appeals.

2. Issue notice.

3. Mr. Jitender Kumar, learned counsel for the respondent, accepts notice and fairly does not oppose the grant of the prayer made in the present applications.

4. For the reasons stated in the applications as well as no-objection given on behalf of the respondent, the applications are allowed and the delay of 45 days in filing the present appeals is condoned.

5. The applications stand disposed of.

FAO 328/2022 and FAO 326/2022

6. The present appeals have been filed under Section 82 of the Employees' State Insurance Act, 1948 (hereinafter, referred to as the 'ESI Act') on behalf of the appellants (respondents below) seeking setting aside of the separate judgments dated 27.08.2022 passed by the learned Senior Civil Judge-cum-Rent Controller, New Delhi District, Patiala House Courts, New Delhi in ESIC Case Nos.1-2/2017, whereby the respondent's challenge to assessment orders passed in its respect under Section 45-A of the ESI Act for different periods was allowed. As the present appeals involve common facts, they are being disposed of by way of a common judgment.

7. Brief facts, in nutshell, are that the respondent had received ex-parte assessment order dated 31.03.2016 passed under Section 45-A of the ESI Act, wherein it was stated that it had failed to reply to an earlier notice. Reportedly, the said assessment order was for the period May, 2011 to June, 2012. The respondent assailed it before the Appellate Authority, which upheld the same vide order dated 15.09.2017 passed under Section 45-AA of the ESI Act, and enhanced the amount determined by way of order dated 31.03.2016.

While proceedings before the Appellate Authority were still pending, a second ex-parte assessment order dated 01.09.2017 was received by the respondent for the period July, 2012 to October, 2013. Subsequently, recovery notices dated 13.11.2017 and 07.12.2017 were also issued by the appellant.

The proceedings in relation to both the assessment orders, and the recovery notices, were challenged before the Trial Court, which vide separate judgments dated 27.08.2022, set aside the same as well as the order dated 15.09.2017 of the Appellate Authority while granting liberty to the appellants to re-assess the respondent's contribution after affording an opportunity of personal hearing to it.

8. Mr. K.P. Mavi, learned counsel for the appellants, assailed the impugned orders by contending that ad-hoc notices were issued to the respondent at the e-mail address provided by it. It was further contended that the Trial Court failed to appreciate that a mere assertion regarding violation of principles of natural justice, without any prejudice being shown to have been caused to the respondent, was not sufficient to set aside the assessment orders.

9. Per contra, the respondent's case is that prior to passing of the assessment orders, no such notices were received by it.

10. I have heard learned counsels for the parties and also perused the material placed on record.

11. A perusal of the case records would show that in the alleged Show Cause Notices, it was claimed that the respondent being the principal employer of the factory/establishment had failed to pay contribution in terms of the ESI Act.

12. When the matter reached the Trial Court, the appellants argued that in spite of the Show Cause Notices issued to the respondent calling it to provide details of employer's as well as employees' contribution, no explanation/reply was filed by it.

Both the parties led their respective evidence before the Court and