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Judgment
The present INTRA-COURT appeal has been filed against the order of learned Single Judge dated 28.05.2016 passed in CWP No. 1252 of 2014.
The writ petition was filed challenging the order dated 18.11.2013 passed by Deputy Director, Employees State Insurance Corporation (for brevity
'ESI-Corp.'), Sub Regional Office, Gurgaon and order dated 31.12.2013 passed by the Appellate Authority-cum-Sub Regional Director, Employees
State Insurance Corporation, Gurgaon.
The appellant-firm was engaged in fabrication and export of garments and accessories. The premises of the appellant were inspected by the
vigilance team of ESI-Corp, Gurgaon on 24.09.2008, 12.01.2011 and 26.06.2012. In pursuant to inspection, a show cause notice was issued to the
appellant. The appellant was provided an opportunity of personal hearing and was, further, asked to furnish full particulars/statement of the actual
contributions payable by the appellant-firm. The vigilance team noted down the names, designations, wages etc. of the workers found in the factory
and obtained their signatures.
The appellant-firm filed a reply to the show cause notice. The representative of the appellant-firm appeared in the proceedings but the relevant and
necessary documents were not made available. Further, three opportunities of hearing were provided but the necessary material was not produced.
On 12.11.2013, an adjournment was sought on the ground that representative appearing earlier had fallen ill. A detailed order dated 18.11.2013 was
passed determining ESI contribution totaling Rs.43,26,095/- for the period from November 2008 to March, 2011.
Aggrieved of the order dated 18.11.2013, appellant preferred an appeal. The appeal was rejected vide order dated 31.12.2013, as the appellant
failed to comply with the condition of pre-deposit of 25% of the contribution assessed as per Section 45AA of Employee's State Insurance Act, 1948
(for short 'the Act').
Thereafter, appellant filed Civil Writ Petition contending that the order dated 18.11.2013 was passed without providing a reasonable opportunity and
is liable to be set aside on this ground alone. Further, grievance was raised that appellant authority failed to relax the pre-condition of deposit of 25%
of contribution assessed for entertainment of an appeal.
The learned Single Judge, considering Section 45-AA of the Act held that appellate authority has no power to waive off the condition of pre-deposit
of 25% of contribution assessed. It was furhter held that no case is made out for exercising jurisdiction under Article 226 of the Constitution of India,
as the plea raised by the appellant that order dated 18.11.2013 was passed without affording a proper opportunity is contrary to the facts and not
tenable. It was considered that even the record available with the appellant regarding service conditions of the employees wages register, attendance
register, contribution of ESI, Provident Fund etc., was not produced in order to prolong the proceedings.
Learned counsel for the appellant contended that the order was passed in violation of principles of natural justice i.e. without providing reasonable
opportunity, hence, existence of alternate remedy is not a bar and writ jurisdiction should have been invoked to set aside the order dated 18.11.2013.
The contention raised in the present appeal has already been dealt with by learned Single Judge, in detail holding that reasonable opportunities were
provided to appellant but in order to prolong the proceedings the material asked for was not produced. There is no error in the order of the learned
Single Judge dated 28.05.2016, accordingly, the appeal is dismissed.