The Corporation is required to issue a show-cause notice and provide an opportunity for hearing to the employer before determining the amount of contribution payable under Sec. 45-A of the Act, even in cases where the employer has failed to include certain employees in the return filed.

K. A. SWAMI, C.J. :-

This writ appeal is preferred against the order dated July 19, 1993, passed by the learned single Judge in W.P. No. 12976 of 1993. At the state of admission of the writ appeal, the respondent is notified. Accordingly, he is represented through a counsel. Hence, the writ appeal is heard for final disposal.

2. In the writ petition, the petitioner-appellant sought for quashing the order dated June 28, 1993 passed by the respondent in his proceedings bearing No. 51-8718/11 INETV, directing the petitioner-appellant to pay the contribution in respect of certain employees, as stated in the impugned order. The respondent, in all, demanded a sum of Rs. 21, 803.79. The learned single Judge has rejected, the writ petition on the ground that it is open to the petitioner-appellant to approach the Court under Sec. 75 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act). Therefore, the learned single Judge has held that no interference is called for in the exercise of jurisdiction under Art. 226 of the Constitution of India.

3. It is submitted on behalf of the appellant/petitioner that the impugned order has been issued without following the procedure prescribed under Sec. 45-A of the Act. As per the report made by the Inspector, the petitioner-appellant had not included certain employees in its return in the matter of payment of employer's and employees' contribution to the Contribution. Therefore, it amounts to not filing a return. As such, notice under Sec. 45-A of the Act ought to have been issued to the petitioner-appellant to show cause as to why the report of the Inspector made in this regard should not be accepted and the employer should not be directed to pay the contribution. Employees State Insurance Corporation will hereinafter be referred to as the 'Corporation'.

4. On the contrary, it is contended on behalf of the respondent that Inspector of the Corporation is empowered under Sec. 45 of the Act to enter the office, establishment, factory or other premises occupied by the principal or immediate employer and require any person found in charge thereof to produce the records, or examine such account, books or other documents, relating to the employment and also ask the principal or immediate employer to producing registers relating to the employment and enquire into the correctness of any of the particulars stated in any return filed under Sec. 44 of the Act in order to ascertain as to whether the provisions of the Act have been properly complied with, that in exercise of this power, the Inspector of the Corporation entered into the office of the appellant and checked the necessary records and registers in the presence of the employer and made a report dated November 23, 1992, and that on the basis of that report, the demand dated June 28, 1993 has been issued. Therefore, in the event the appellant is aggrieved by the demand, it is open to it to invoke the jurisdiction of the Employees State Insurance Court under Sec. 75 of the Act; that as the demand has been made on the report made by the Inspector of the Corporation and as the returns are filed by the employer, Sec. 45 of the Act is not attracted.

5. In the light of these rival contentions, the following point arises for consideration;

"Whether, in the facts and circumstances of the case, Sec. 45-A of the Act is attracted".

6. Facts necessary for the purpose of deciding this question are no more in dispute. The appellant establishment is a covered establishment. It has been filing the return, paying the contribution of the employees' and also of the employers' regularly. However, on November 23, 1992, the Inspector of the Corporation inspected the records of the establishment and made a report under Sec. 45 of the Act, stating that certain persons who have been employed by the appellant establishment are not included in the return and the contribution payable by the employer in respect of these employees has also not been ma