Writ petition dismissed for suppressing facts on hearing attendance; alternative remedy available under ESI Act Sections 75/77.

JUDGMENT

The petitioner has approached this Court challenging the recovery proceedings initiated against the petitioner to recover the amounts due in terms of an order issued under Section 45-A of the Employees State Insurance Act, 1948 (hereinafter referred to as ‘the Act’).

2. According to the petitioner, the petitioner had issued with a communication by the 1^st respondent on 10.03.2023, informing the petitioner that contributions for the period from 08.02.2019 to 31.01.2023, amounting to Rs.8,16,051/- along with interest, is due from him. The petitioner contends that on receipt of the notice [which is on record as Exhibit P1], the petitioner attended the office of the 1st respondent and convinced him that the notice is based on data prior to the Covid-19 pandemic and as on the date of the issuance of Exhibit P1 notice, the number of employees were much below, in respect of whom the contribution had been determined. It is the case of the petitioner that the 1^st respondent was prima facie convinced with the case put forth by the petitioner and he informed the petitioner that the notice was issued in a casual manner and he will visit the business premises of the petitioner and conduct physical verification. It is the case of the petitioner that, thereafter, the petitioner had not received any communication until recovery proceedings were initiated by proceeding against the bank account of the petitioner. The petitioner has filed Exhibit P3 representation against Exhibit P2 garnishee proceedings and has approached this Court seeking the following reliefs:-

‘’1. Call for the records relating the issuance exhibit P2 communication regarding the garnishee order issued by the 1^st respondent and the same may be quashed on the ground it be illegal, arbitrary and violative of fundamental rights and natural justice principle.

2. Issue a writ of mandamus or other appropriate writ order or direction compelling the 2nd respondent to permit the petitioner to operate his bank account ignoring the garnishee order issued by the 1st respondent. 3. Grant such other and further reliefs deem just and fit under the facts and circumstance of this writ petition.

4. Award the cost of writ petition.’’

3. A counter affidavit has been filed by the Social Security Officer, ESI Corporation, Sub Regional Office, Ernakulam . A perusal of the counter affidavit will indicate that, according to the respondent, on 02.06.2023, a notice was issued to the petitioner calling upon him to attend a personal hearing regarding the determination of the contribution payable by the petitioner. Such hearing was scheduled on 23.06.2023 at 04.00 pm. Exhibit R1(b) document also shows that on 20.06.2023, the petitioner along with another individual, namely, Abdul Javad, [claiming to be partners of the firm] appeared before the 1st respondent and sought one month time to produce the documents. Accordingly, the hearing was adjourned to 21.07.2023. The proceedings sheet forming part of Exhibit R1(b) contains the signature of one Abdul Javad as also the signature of the petitioner herein. Exhibit R1(b) also shows that, on 21.07.2023, the petitioner did not attend the personal hearing and accordingly, Exhibit R1(c) order was passed under Section 45-A of the Act, determining the contribution payable. Exhibit R1(d) shows that Exhibit R1(c) order was communicated to the petitioner through registered post acknowledgment due. It is thereafter that the recovery proceedings have been initiated to recover the amounts determined as due from the petitioner through Exhibit R1(c).

4. Learned counsel appearing for the petitioner would submit, in reply, that the petitioner did not receive Exhibit R1(c) order. It is also submitted t