Judgment :

1. The First Appeal has been preferred under Section 82 of the Employees’ State Insurance Act, 1948 [for short, “ESI Act”] impugning the judgment dated 11th October, 2023 passed by the Employees’ State

Insurance Court, Mumbai in an Application filed under Section 75 read with Section 77 of the ESI Act, challenging the legality and validity of the order dated 11th September, 2019 passed under Section 45AA and order dated 20th May, 2019 passed under Section 45A of the ESI Act, by which the Application came to be dismissed.

2. The facts as discerned from record is that Appellant is a Private Limited Company, which is covered under the provisions of ESI Act. On 22nd October, 2018, show cause notice in Form C-18 (Ad hoc) was received by Appellant from the Employees’ State Insurance Corporation proposing to claim contribution amounting to Rs. 20,18,15,174/- for the financial years 2014-2016. The Appellant’s Representative attended the hearing and produced the account ledger, bills/vouchers, invoices and bank payment acknowledgment, etc. before Employees’ State Insurance Corporation. Appellant made oral as well as written submissions objecting the proposed claim on expenses, which according to Appellant do not fall within the definition of ‘wages’ under the ESI Act. Considering the voluminous record, which was produced during the hearing, the Employees’ State Insurance Corporation constituted a committee of two Social Security Officers on 13th February, 2019 to verify the record. Due to some administrative reason, the earlier committee was replaced with another committee on 19th March, 2019 comprising of three Social Security Officers who

examined the record and submitted its report on 8th May, 2019. Considering the report and the submissions made by the Appellant, the Employees’ State Insurance Corporation passed an order under Section 45A of the ESI Act on 20th May, 2019, assessing the contribution of omitted wages under various heads of accounts by holding that the same are in nature of ‘wages’ as defined under Section 2 (22) of ESI Act and determined compensation of Rs. 74,93,436/- to be recovered from Appellant.

3. The Appellant filed an Appeal against order dated 20th May, 2019 before the Appellate Authority under Section 45AA of the ESI Act. On 11th September, 2019, the Appellate Authority addressed a communication to Appellant contending that Appeal has been received by their office on 24th July, 2019, i.e. after 60 days from the date of receipt of Section 45A order passed on 20th May, 2019 and requested the Appellant to produce the documentary evidence to show that conditions of Appeal are satisfied. The said communication came to be responded by Appellant vide communication dated 25th September, 2019 contending that order was received by Appellant only on 27th May, 2019 and copy of acknowledgment evidencing the receipt of order was produced along with the communication. By communication dated 26th September, 2019, the Appellate Authority informed the Appellant that their Appeal cannot be admitted as according to their

office record, order under Section 45A was received by Appellant on 24th May, 2019 and the Appeal has been filed beyond the period of sixty days.

4. The Appellant approached the Employees’ State Insurance Court under Section 75 read with Section 77 of the ESI Act challenging the order dated 20th May, 2019 passed under Section 45A of the ESI Act and to stay the implementation of letter dated 11th September, 2019 issued by the Employees’ State Insurance-Corporation. In proceedings before the Employees’ State Insurance Court [for short, “ESI Court”], an Application was filed below Exhibit-9 by Appellant to direct the Appellate Authority, i.e. ESI-Corporation to produce the proceedings/noting sheets as well as the Inspection Reports, which came to be allowed in view of