Failure to challenge assessment orders under the ESI Act precludes the petitioner from contesting subsequent recovery proceedings, affirming that exclusive statutory remedies must be pursued.

JUDGMENT

Bhaskar Raj Pradhan, J. - The writ petition challenges demand notice dated 24.09.2020 issued by the Recovery Officer of the respondent no.1 for recovery of Rs.9,49,699/- as contribution arrears for the period May, 2017 to March, 2019 issued under section 45-C to 45-I of the Employees' State Insurance Act, 1948 (the ESI Act) read with Rule 2 of the II Schedule to the Income Tax Act, 1961 and Income Tax (Certificate Proceedings) 1962. It also challenges the consequential attachment order dated 19.04.2021/23.04.2021 under section 45-G of the ESI Act issued by the respondent no.1 to the respondent no.4, the petitioner's bankers, requiring it to transfer an amount of Rs.14,33,473/- along with further interest @ Rs.381.34 per day w.e.f. 28.01.2021 till the date of remittance. The petitioner's further grievance is that the amount so arrived at is also inflated.

2. Heard Mr. Thupden Youngda, learned Counsel for the petitioner and Mr. Rahul Rathi, learned Counsel for the respondent nos.1 to 3 and Mr. Yadev Sharma, learned Government Advocate for the respondent no.5.

3. The primary attack of the petitioner is that the impugned orders are discriminatory, abusive, high handed and amounts to harassing the petitioner. The petitioner is aggrieved by the fact that very little time for compliance was granted to them to pay the outstanding dues; they were misled by the authorities to accept that they had misplaced the official notices and communications, although, in fact, they had not received them. They allege that irreparable financial loss has occasioned the petitioner by the attachment of its current account and transfer of Rs.7,27,980/- from there. The petitioner is also aggrieved by the failure of the respondent no.5 to constitute the Employees' Insurance Courts (ESI Courts) in Sikkim as mandated under section 74 of the ESI Act.

4. On perusal of the counter affidavit filed by the respondent nos. 1 to 3, it is evident that prior to the recovery and attachment proceedings impugned by the petitioner, the respondent nos. 1 to 3 had first issued a show cause notice dated 20.05.2019 to them assessing its contribution at Rs.9,49,699/-. On their failure to appear for personal hearing granted on 21.06.2019, a further notice dated 22.07.2019 had been issued for its appearance on 22.08.2019. The petitioner was yet again given a further opportunity of personal hearing on 05.11.2019 by the respondent nos. 1 to 3 by issuing another notice dated 14.10.2019. The relevant tracking consignment report as well as the acknowledgment due cards of the postal authority have been filed by the respondent nos.1 to 3 to evidence receipt thereof. It transpires that when the petitioner failed to appear or show cause in spite of repeated opportunities an order dated 29.11.2019 under section 45-A of the ESI Act was passed confirming the ad-hoc assessment made and directing the petitioner to pay an amount of Rs.9,49,699/- within a period of 60 days. The order also mentioned that the petitioner could file an appeal against this order under section 45-AA of the ESI Act to the Appellate Authority within 60 days from the date of the order after depositing 25% of the contribution so ordered, or the contribution as per the petitioner's own assessment whichever is higher.

5. The order dated 29.11.2019 is the substantive order passed by the respondent nos. 1 to 3 assessing and confirming the liability of the petitioner under the ESI Act. This order, however, has not been challenged. The order dated 29.11.2019 can be challenged by way of a statutory appeal as provided under section 45-AA of the ESI Act. Under the scheme of the ESI Act the impugned order passed under sec