2016 Supreme(Jhk) 571
IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, J.
H.N. Pareek & Company - Petitioner
Vs.
The State of Jharkhand through the Secretary, Dept. of Labour, Employment & Training & Ors. - Respondents
W.P.(C) No. 3358 of 2016
Decided On : 04-07-2016
For the Petitioner: M/s V.P. Singh, Arun Kr. Singh, A.K. Das, Rashmi Kumar
For the ESIC : Mr. Ashutosh Anand
For the State : M/s Rajiv Anand, Shyam Narsaria
Headnote:Employees State Insurance Act, 1948 – Sections 45 – AA and 45 – A – Petition challenges the direction of Recovery Officer, ESIC to remit ESI dues from account of petitioner and also order initiating certificate proceeding for recovery of ESI dues – u/s 45 – AA – Statutory alternative remedy available to the petitioner against any order of assessment u/s 45 – A or recovery proceeding – Liberty is given to the petitioner to approach appellate authority – Petition disposed of.
Heard learned counsel for the parties.
2. The order dated 14.6.2016 (Annexure-13) passed by the Recovery Officer, Employees State Insurance Corporation, Ranchi (herein after referred to as ESIC) is under challenge in the present writ petition where under the General Manager (ER,W &CSR) M/s Tata Motors Limited (Contractor Cell), Jamshedpur has been asked to remit an amount of Rs.1,64,69,615/- from the account of petitioner towards ESI dues. The order dated 31.5.2016 (Annexure-12) issued by the Recovery Officer has also been impugned which restrains the General Manager (ER,W &CSR) M/s Tata Motors Limited (Contractor Cell), Jamshedpur from delivering any bill to the petitioner. The order of the same date 31.5.2016 (Annexure-10) addressed to the petitioner has also been impugned where under he has been informed about the initiation of certificate proceeding on the request made by the ESIC Officials for recovery of an amount of Rs.1,64,46,460/- towards ESI dues for the period July 2010 to May 2015 and interest up to 24.5.2016.
3. Conspectus of background facts borne out of the pleadings are as follows:-
In W.P.C. No. 6970 of 2006 vide judgment dated 11.1.2007 (Annexure-1), the learned Single Judge of this Court was pleased to direct the respondent-Corporation to reconsider petitioner's prayer for allotment of independent registration and code number and pass appropriate reasoned order in accordance with law. A direction was also issued upon the respondent-State of Jharkhand to consider the petitioner's application for exemption from the application of the provisions of ESI Act by passing speaking order within stipulated period. It was also observed that until final order is passed on petitioner's representation, no coercive action shall be taken against the petitioner for realization of the amount as contained in impugned Annexure-7 thereof dated 17.10.2006, where under he had been directed to pay the employees contribution to the tune of Rs. 31,92,750/- for the period from November, 2004. In L.P.A. No. 70 of 2007 preferred by the respondent-ESIC and others being aggrieved against the said judgment dated 11.1.2007 passed in W.P.C. No. 6970 of 2006 learned Division Bench declined to interfere finding no merit there in vide order dated 19.6.2008 (Annexure-2). Petitioner was allotted an independent code thereafter. The exemption application of the petitioner was rejected by the respondent-Department on 26.5.2009. It was assailed in W.P.C. No. 122 of 2010 on the ground that the Officer who heard the petitioner did not pass the final order rather the Principal Secretary passed the order rejecting petitioner's application for exemption. The said writ petition was disposed of quashing the order of rejection dated 26.5.2009 vide judgment dated 24.11.2011 (Annexure-9) remitting the matter to the Principal Secretary, Labour, Employment and Training Department to pass a fresh order after hearing the parties in accordance with law within a stipulated period of 3 months.
4. As is evident from of the statements of the petitioner through the supplementary affidavit; the exemption application i.e., subject matter of the earlier two writ petitions was for the period from 2004 to 2006 filed on 31.10.2006. Petitioner has thereafter also, as per the statement made in para 12 of the supplementary affidavit, filed exemption application for the period 2007 to 2012 on 17.9.2012 and for the period 2013 to 2016 on 1.7.2016. Learned counsel for the petitioner has tried to make out a case that when exemption application have not been decided by the competent authority under the Department of Labour, Employment and Training, the respondent-Corporation should not have proceeded to levy a demand and seek recovery of the same for the period July 2010 to May 2015. Arguments have been advanced that petitioner did not have adequate service of notice in the assessment proceeding and was completely in dark thereof. In that sense, the principles of natural justice h