Recovery of ESI contribution cannot precede the decision on the issue of coverage.

( 1 ) HEARD Sri R. P. Yadav, counsel for the petitioner and Sri Rajesh Tiwari appearing for the respondents. Contention of the counsel for petitioner is that petitioner is principal employer of the Unit M/s. Paper packaging Company, Mohatsim Ganj, Allahabad which is basically engaged in making small paper packets for different purposes such as containing medicines etc. It is urged that on inspection being made, the Inspector under ESI found that working in the petitioner establishment is done manually and strength of the establishment is not more than 8 employees. However, respondent No. 3. Deputy director/recovery officer, ESI, Kanpur is laid to have issued a notice demanding Rs. 67428 towards ESI contribution without considering the record and a recovery certificate in this regard has also been issued for recovery of the aforesaid amount with interest.

( 2 ) IT is contended by counsel for the petitioner that the petitioner had filed a representation dated 3. 6. 2008 before the authority concerned but without deciding it the notice/letter dated 10. 6. 2008 appended as Annexure-10 to the writ petition has been issued, from which it is clear that 4. 8. 2008 was the date fixed in the matter for hearing by the dy. Director/recovery Officer on the representation of the petitioner. The petitioner by this notice has further been directed to come with proof of deposit of the amount with interest on the date fixed i. e. , 4. 8. 2008 otherwise coercive action for recovery, against him would be taken,

( 3 ) COUNSEL for the respondent-corporation Sri rajesh Tiwari has drawn attention of the Court to annexure-1 which is copy of the visit note of the Inspection. He has also urged that the petitioner had not appeared before the authority on 4. 8. 2008 as directed in the letter dated 10. 6. 2008, as such is not entitled to any relief in the writ petition. This argument appears to have no force for the reason that the impugned order cannot precede the order of coverage.

( 4 ) IN my opinion, this could not have been done by the Corporation. They cannot direct the establishment to deposit the amount and come with the proof of deposit on the date fixed for hearing on their representation/objection regarding coverage, it is only after decision is taken by the authority regarding coverage that proceedings for recovery of the amount can be made.

( 5 ) IT appears from the visit note that on scrutiny of record of the establishment it has been found that machines are operated manually and not by power. The Inspector has also noted in the aforesaid visit note that even if ten employees are working, it will not be covered. At this stage, Counsel for the petitioner states that petitioner never evaded to appear before the Dy. Director/recovery Officer and will appear before the authority with all records regarding coverage on any date which may be fixed by the Court.

( 6 ) HENCE, it is ordered that if the petitioner appears before the authority concerned on 28. 8. 2008, the issue regarding coverage shall be decided and till decision on the issue of coverage, recovery against the petitioner pursuant to Impugned notice dated 16. 5. 2008 and subsequent order dated 10. 6. 2008, shall be kept in abeyance. With the aforesaid observations, this petition stands finally disposed of. Petition Disposed of.

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