IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4083 of 2025 FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE M. K. THAKKER ==========================================================

Approved for Reporting Yes No ✔

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DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION Versus M/S MMV STEEL INDUSTRIES ==========================================================

Appearance:

VIVAN T SHAH(7947) for the Appellant(s) No. 1 ==========================================================

CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER Date : 02/12/2025

ORAL JUDGMENT

1. The present appeal is filed under section 82(2) of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the ‘ESI Act’) challenging the judgment and award dated 12.11.2024 passed by learned ESI Court, Ahmedabad in ESI Application No.32 of 2014 whereby, the learned Court has allowed the application filed under section 75 of ESI Act and set aside the order passed under section 45-A and 45-AA by the learned Authority as well as the recovery notice issued under section C-19 dated 13.02.2014.

1.1. It is the case of the present appellant that the ad-hoc assessment came to be passed for the period of 01.04.2013 to 30.09.2013 assessing the amount of contribution of Rs.54,698/- on 23.10.2013 against which the application came to be filed under section 45-A which was also rejected on 18.12.2013 and had deposited 25% of amount assessed. Thereafter, appeal came to be filed under section 45-AA which was also rejected on the ground of delay. Challenging the said order, the ESI application came to be filed under section 75 of the ESI Act which came to be allowed and the same is subject matter of challenge before this Court.

2. Heard learned advocate Mr. Vivan Shah for the appellant-Corporation.

2.1. Learned advocate Mr.Vivan Shah submits that learned Court has committed error in not appreciating the statutory scheme of section 45-A of the ESI Act which permits best judgment assessment where the employer does not provide records. Learned advocate Mr.Vivan Shah submits that despite the opportunity given, the respondent failed to avail the same however, learned Court came to the conclusion that order was passed in violation of the principle of natural justice. Learned advocate Mr.Vivan Shah submits that the appeal which was filed under section 45-AA was also made for the period of 60 days and therefore, same came to be rejected however, considering the same, impugned order is passed and therefore, same is required to be set aside and this first appeal is required to be allowed.

3. Having considered the arguments made by learned advocate Mr.Shah and referring to the reasons assigned by the learned Court, in the opinion of this Court the first appeal does not require to be interfered with on following reasons:

(1) Prior to passing the orders, no record were obtained by the Authority.

(2) No visit note was produced on record to show that any visit was carried out and assessment was made.

(3) The salary of Rs.8250/- which was assessed and the strength of employee mentioned 17 was without any documentary evidence.

(4) The report of S.S.O. was also not produced before the learned Court.

(5) The order which was passed under section 45-A was only after giving one opportunity and appeal under section 45-AA which was filed after depositing 25% amount, was rejected on the ground of delay without considering the fact that appeal was filed within a period of limitation as per Exh.34.

3.1. In that background, the impugned judgment does not suffer from any infirmity. Hence, the first appeal being devoid of merits requires to be rejected. 4. Resultantly, this appeal is rejected.

(M. K. THAKKER,J)

ARCHANA S. PILLAI