The determination of the amount of contribution payable by an employer under the Employees' State Insurance Act 1948 must be done through an order passed under Section 45A, and the recovery proceedings cannot be initiated without such an order.

Heard Mr Arun Babu learned Counsel for the petitioner, and Ms A K Preetha learned Standing Counsel for the ESI Corporation.

2. The present writ petition has been filed impugning the recovery proceedings in Ext.P2 for short payment of the employee’s insurance contributions under the Employees’ State Insurance Act 1948 (for short, ‘the Act’) by the petitioner.

3. Learned Counsel for the petitioner submits that unpaid/short-paid contributions have to be determined by the 1st respondent under Section 45A , which contemplates an order passed by the Corporation for unpaid/short-paid contributions. In the present case, no such order was passed, and recovery action has been initiated vide Ext.P2 under Section 45C of the Act.

3.1 Learned Counsel for the petitioner further submits that the order passed under Section 45A is an appealable order under A . The petitioner’s right to appeal has been denied in the absence of an order under . It is further stated that no recovery can be effected from an employer unless and until an order is passed under determining the unpaid/short-paid contribution.

4. On the other hand, the learned Counsel for the respondent corporation submits that the petitioner was issued notice for detected short payment in the contribution. The petitioner did not respond to the said notice nor furnished the requisite documents. However, after some time, they submitted their audited balance sheet. The said balance sheet would show that the petitioner had not paid the correct contribution and had paid the short contribution. Therefore, there was no requirement for passing an order under Section 45A before taking the recovery action under Section 45B/45C of the Act.

4.1 Learned Counsel for the respondent further submits that, based on the documents submitted by the petitioner himself, the amount of short-paid contribution has been determined, and a specific order has not been passed under Section 45A as there is no requirement for passing such an order.

5. I have considered the submissions advanced by the learned Counsel for the petitioner and respondent.

6. Section 45A empowers the Corporation to determine the amount of contribution payable in respect of the employees of a factory or establishment. The proviso contemplates an order under to be passed by the Corporation while determining the amount of contribution payable in respect of the employees. on reproduction would read as under:

“45A. Determination of contributions in certain cases.— (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any Social Security Officer or other official of the Corporation referred to in sub-section (2) of section 45 is prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of infor- mation available to it, by order, determine the amount of con- tributions payable in respect of the employees of that factory or establishment:

Provided that no such order shall be passed by the Corpora- tion unless the principal or immediate employer or the per- son in charge of the factory or establishment has been given a reasonable opportunity of being heard.

Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contribution shall become payable.

(2) An order made by the Corporation under sub-sec- tion (1) shall be sufficient proof of the claim of the Corpora- tion under section 75 or for recovery of the amount deter- mined by such order as an arrear of land revenue under sec- tion 45B or the recovery under section 45C to section 45-I.”

Therefore, a contribution payable has to be determined by an order passed by the Corporation.

7. In the present case, it appears that the Corporation has n