The court established that determinations under the Employees’ State Insurance Act must be based on current and relevant information, emphasizing the need for fairness in quasi-judicial actions.

JUDGMENT :

ARINDAM SINHA, J.

1. Mr. Mishra, learned advocate appears on behalf of petitioner. He submits, his client runs a college. By letter dated 30^th March, 2017 (annexure-1) his client was told that the establishment falls within purview of section 1(5) in Employees’ State Insurance Act, 1948 with effect from 30^th March, 2017. By the letter petitioner was also told, inter alia, number of employees are 13.

2. The corporation issued impugned orders, both dated 6^th November, 2018 under section 45-A pursuant to notices issued beginning with notice dated 9^th July, 2018. His client though attended two hearings, admittedly did not attend subsequent hearings. He was not aware of the orders passed under section 45-A. The corporation initiated recovery proceedings and issued garnishee order on his banker, to recover in excess of Rs.50 lakhs. It is then petitioner came to know of and was able to obtain impugned determination orders, under challenge.

3. He submits, the corporation has filed counter. In it is disclosed inspection report dated 26^th August, 2011 alleging 101 employees. This was purported basis for impugned determination orders, resulting in finding that contribution of Rs.21,12,289/- for period 10/2013 to 12/2016 and Rs.12,13,212 for period 01/2017 to 04/2018, were finally determined. He reiterates, it being an admitted position his client did not attend the hearing on subsequent noticed dates, thereafter, not only has the demand been recovered, the recovery proceeding dropped and the garnishee order lifted. Petitioner also suffered bereavement of losing his only son in COVID-19 pandemic. Hence, his client’s prayer that there be direction for fresh determination on actuals upon setting aside and quashing impugned determination orders.

4. Mr. Ray, learned advocate appears on behalf of the corporation and submits, coverage notice dated 22^nd December, 2011, giving number of employees at 101 was duly served on petitioner. He was given sufficient opportunity, not availed. On conclusion of recovery proceedings there has been initiated proceeding under section 85-B, for damages. He refers to paragraph 9 in the counter to submit, dispute stands raised regarding annexure-1 in the writ petition.

5. Mr. Ray, relies on judgment of the Supreme Court in E.S.I.C. vs. C. C. Santhakumar , 2007 LAB. I. C. 597. Relied upon passage in paragraph 29, is reproduced below.

“29. The Legislature has provided for a special remedy to deal with special cases. The determination of the claim is left to the Corporation, which is based on the information available to it. It shows whether information is sufficient or not or the Corporation is able to get information from the employer or not, on the available records, the Corporation could determine the arrears. xxx xxx xxx”

(emphasis supplied)

He submits, the writ petition be dismissed.

6. The corporation disputes letter dated 30^th March, 2017 alleged by petitioner to have been issued by it for implementation of registration of employees, giving number of employees at 13. Keeping aside the dispute, it does appear that the determination was initiated by notice dated 9^th July, 2018 for period 10/2013 to 4/2018, covered by impugned orders both dated 6^th November, 2018. At this stage, Mr. Ray points out from annexures ‘C’ and ‘C’/1 that there stood issued show-cause notice dated 5^th November, 2012 covering period 8/2011 to 3/2012. This period could not be included in impugned determination orders as had to be excluded on amendment made to the Act barring claim beyond period of five years.

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