S Ramathilagam, J.

This Civil Miscellaneous Appeal has been preferred against the decree and judgment of the City Civil Judge, Chennai passed in ESIOP No.24 of 1994.

2. The petitioner before the ESIOP is the Proprietor of Small Scale Industries Unit. The petitioner has stated that he is regularly complying the provisions of ESI Act from 1.6.1988 as the minimum number of employees required for coverage under the said Act. He had stated that on 22.7.1991, he received Form C-18 notice from the 1st respondent who is the Regional Director, Employees State Insurance Corporation to show cause as to why assessment should not be made as per the notice. The said notice also attached the calculation sheet. During the personal hearing, the petitioner has informed the respondent that he never employed 10 or more persons during the period from 26.10.1994 to 31.5.1988. Further, he could not produce the records such as Attendance Registers, Wages Registers and General Register for the said period as they were destroyed in the flood during the year 1989. But the balance sheet for the above said period was filed by the petitioner.

3. It is the grievance of the petitioner that these factors which are submitted before the 1st respondent was considered and it was found that he has to pay the dues of Rs. 44,688/- as contribution by calculating Rs. 880/- per month per employee and the 1st respondent has also initiated revenue recovery proceedings by way of claim.

4. It is also the grievance of the petitioner that the Industry has become a sick industry and not working for most of the time up to June 1988 and the fact was also informed to the 1st respondent to bring the petitioner's establishment under the said coverage. Whereas the 1st respondent has stated that the petitioner's Establishment was started on 1.6.1998. At the time of inspection on 9.7.1991, it was found that the petitioner has engaged 25 persons on the date of inspection for wages. Hence the petitioner was issued with Form C 18 notice calling for compliance, but even at the time of opportunity given for personal hearing, the factum of destruction of relevant documents were not stated before the 1st respondent. Hence the explanation by the petitioner that those documents were destroyed by floods was not considered by the 1st respondent. Hence the petitioner is to comply the demand.

5. Before the court below, the petitioner was examined as PW1. The show cause notice was marked as Ex.P.1, in which, the contribution of the petitioner was calculated from 26.10.1984 to 31.5.1988 for Rs. 51,329/-. The representation before the 1st respondent by the petitioner was that he never employed more than 5 persons beyond any date prior to 1.6.88. It is also the evidence of the petitioner that he claimed insurance on account of the damages to the factory due to floods, for which, he received compensation from the Insurance Company. It is also observed by the Court below that at no point of time, i.e., from 1.6.1988 more than 5 persons were employed in the said establishment before the Court below. PW1 was examined who inspected the petitioner premises on the date of inspection. Ex.R.2 is the Inspection report. The said inspection report was prepared by one Appar Sundaram, but he could not give evidence before the Court because of the total blindness for which, Ex.R1 Medical certificate was filed before the Court below . Hence regarding the report that was produced before the Court below, the petitioner was unable to cross examine the said witness with regard to Ex.R.1 and its details.

6. The factum of destruction of records, attendance Registers and wage Registers were destroyed in the year 1989 was proved by the petitioner by producing the insurance claim before the concerned authorities. Hence the Court below could not form an opinion that more than 10 persons were working in the establishment from October 1984 to 1988. Hence the proceedings under section 45(A) was passed without considering the