JUDGMENT AND ORDER

Heard Mr. A. Goyal, learned counsel for the petitioners. Also heard Mr. K. Gogoi, learned CGC, appearing for the respondent No.1 and Mr. M. Smith, learned standing counsel, ESIC, appearing for the respondent Nos.2 to 4.

2. By means of the present writ petition instituted under Article 226 of the Constitution of India, the petitioners have called in question the show-cause notice dated 31.08.2018 issued by the respondent No. 2 under Sections 39 and 40 of the Employees’ State Insurance Act, 1948 (hereinafter referred to as “the Act”), the consequential order dated 31.01.2019 passed under Section 45A of the Act determining contribution payable by the petitioners, the appellate order dated 18.06.2019 passed under Section 45AA affirming the said determination, and the consequential recovery proceedings initiated thereafter.

3. The essential facts, shorn of unnecessary detail, are that petitioner No. 1 is a proprietorship establishment stated to be running a 10-bedded lodging house under a trade licence issued by the Agartala Municipal Corporation. According to the petitioners, while carrying on their business, they were served with a show-cause notice dated 31.08.2018 requiring them to explain as to why assessment ought not to be made against them for payment of contribution under the provisions of the Act, alleging liability in respect of ten employees.

4. In response thereto, instead of furnishing substantive particulars or records, the petitioners sought time by communication dated 22.01.2019. Thereafter, the competent authority proceeded to pass an order dated 31.01.2019 under Section 45A of the Act determining contribution payable by the petitioners.

5. Aggrieved thereby, the petitioners preferred an appeal under Section 45AA of the Act, which came to be dismissed by order dated 18.06.2019. Consequential recovery proceedings having thereafter been initiated, the present writ petition has been instituted.

6. Mr. Goyal, learned counsel for the petitioners, has principally contended that the initiation of proceedings itself was without jurisdiction. According to him, the foundational preconditions necessary for invoking the machinery under Sections 44 and 45A of the Act were absent. It is submitted that no lawful material existed to justify formation of the requisite satisfaction that the establishment was liable under the Act or that returns, which were otherwise legally required, had not been furnished.

7. It is further argued that the impugned proceedings are founded upon a survey report of the year 2010, whereas the assessment pertains to a subsequent period, thereby rendering the very factual foundation stale, arbitrary and legally unsustainable.

8. On the aforesaid basis, it is urged that the impugned proceedings are wholly without jurisdiction and, therefore, the existence of an alternate statutory remedy would not operate as a bar to maintainability of the present writ petition.

9. In support of the above submissions, reliance has been placed upon the below mentioned decisions, wherein the Apex Court as well as other High Courts of Co-ordinate Benches have laid down the principle that where assumption of jurisdiction itself is under challenge, the existence of an alternate remedy does not oust writ jurisdiction.

(i) Joti Parshad v. State of Haryana, reported in 1993 Supp (2) SCC 497 (Para-5);

(ii) Durga Enterprises (P) Ltd. and another v. Principal Secretary, Govt. of U.P. and others, reported in (2004) 13 SCC 665 (Para-3);

(iii) Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I Calcutta and another, reported in AIR 1961 SC 372 (Para-28);

(iv) M/s. Chhugamal Rajpal v. S.P. Chaliha and others, reported in (1971) 1 SCC 453 (Para-4);

(v) M/s. S. Ganga Saran and Sons (Pvt.) Ltd., Calcutta v. Income Tax Officer and others, reported in (1981) 3 SCC 143 (Para-6);

(vi) Income Tax Officer and others v. M/s. Madnani Engineering Works Ltd., Calcutta, reported in (1979) 2 SCC 455 (Para-4); and