IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.10.2021 CORAM THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU W.P. No. 34525 of 2012 and M.P. No. 2 of 2012 V.Naaharaj ... Petitioner -vs-

1. The Recovery Officer, Employees' State Insurance Corporation, 39/57, Theerthamalai Vaniga Valagam, Three Roads, Salem - 636 009 2. The Manager, Bank of Baroda, Attur Branch, 1250, Salem - Cuddalore Main Road, Attur – 636 102, Salem District. ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India, 1950, praying to issue a Writ of Certiorari, praying to call for the records relating to proceeding No. SLM/ESI/Recy/CP-3/63-22093/RR Cell dated

05.06.2012 on the file of the First Respondent herein and quash the same.

For Petitioner : Mr. D.Sathya for Mrs. Zeenath Begum For Respondents : Mr. T.N.C.Kaushik (for R1)

No appearance (for R2)

O R D E R

(through video conference)

Heard Mr. D.Sathya, Learned Counsel for the Petitioner and Mr. T.N.C.Kaushik, Learned Counsel for the First Respondent and perused the materials placed on record, apart from the pleadings of the parties.

2. The Writ Petition impeaches the Prohibitory Order No. SLM/ESI/Recy/ CP-3/63-22093/RR Cell dated 05.06.2012 passed by the First Respondent under Rule 26(1) of the Second Schedule to the Income Tax Act, 1961 read with Section 45-H of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act' for short). Though the impugned order mentions that the Petitioner has failed to pay the arrears due with interest in respect of the Certificate bearing No. SLM/INS/63-22093/C19 dated 'various' in Form No. C-19/C-19(INT)/D-19 forwarded by the Authorized Officer, Employee State Insurance Corporation, Salem Sub-Region, Salem amounting to Rs. 4,52,326/- (Rupees Four Lakh Fifty Two Thousand Three Hundred and Twenty Six only) and the interest payable under Sub-Section 5(1) of Section 39 of the ESI Act (as amended) for the period commencing immediately after the dates specified therein, the details of the assessment of contribution towards the employees insurance dues and the relevant periods for which it is claimed has not been reflected either in the impugned order or in the Counter-Affidavit dated 20.11.2019 that has been filed.

3. In reply to the queries raised in that regard during the earlier hearing on 24.08.2021, the First Respondent has filed an additional counter-affidavit dated 27.09.2021 stating that the amount claimed in the impugned order pertains to assessments made for various periods under Section 45-A of the ESI Act which had culminated in the orders dated 11.04.1988, 04.06.1993, 27.04.2001 and 20.06.2001, the receipts of which are said to have been acknowledged by the Petitioner. In this context, it must be recapitulated here that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise as ruled by the Constitutional Bench of the Hon'ble Supreme Court of India in Mohindhr Singh Gill -vs- Chief Election Commissioner, New Delhi [(1978) 1 SCC 405]. Moreover, the Petitioner has raised a factual contention in the affidavit filed in support of the Writ Petition and has produced documents to show that there have been remittance of contribution towards employees insurance dues when demanded. In other words, there are disputes between the parties as to the existence and calculation of the arrears of the employees insurance dues, which is sought to be recovered by the impugned order prohibiting the Petitioner from operating its bank account with the Second Respondent. Further, there is also considerable force in the grievance ventilated by the Petitioner regarding the hasty manner in which the First Respondent has proceeded with recovery action in contravention of the relevant statutory provisions governing the recovery process.

4. It must, at once, be pointed out that the authorities un