IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.14307 of 2009 M/s.Saravana Agencies Vedal Village, Bangalore High Road Enathur, Kancheepuram ..Petitioner Vs. The Assistant Director Employees State Insurance Corporation Regional Office 143, Sterling Road, Chennai-600 034 .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the entire records in connection with the impugned order of the respondent under Section 45-A of the ESI Act in No.TN/Ins.VIII/51-85715-41 dated 18.11.2008 and the consequential demand dated 14.05.2009 in No.TN/RECY/CP-1/51-85715-C.C.R.No.42800 and quash the said proceedings and consequently forbear the respondent from determining the contribution in making any demand without giving a reasonable opportunity of being heard. For Petitioner :: Mr.M.Venkatachalapathy, Senior Counsel for Mr.M.Sriram For Respondent :: Mr.K.C.Ramalingam O R D E R The petitioner is a dealer of Petroleum and having a Bunk at Ennathur, Kancheepuram. They filed the present writ petition challenging the order dated 18.11.2008 passed under Section 45-A of the ESI as well as the consequential recovery notice dated 14.05.2009. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petition was admitted on 24.07.2009. Pending the writ petition, this court granted an interim stay of recovery. 3. On notice from this court, the respondent has filed a counter affidavit dated 09.10.2009. 4. The only contention raised by the petitioner was before passing the order under Section 45-A of the ESI Act, the petitioner was not given reasonable opportunity of putting forth its defence before the authorities. 5. Initially, the respondent issued a notice on 11.02.2008 and 14.10.2008 to appear for an enquiry. The petitioner sent a letter dated 14.10.2008 seeking for further time for the personal hearing. Accepting the stand of the petitioner, the matter was directed to be posted on 21.11.2008. However, it transpires that even on 18.11.2008 itself, the order under Section 45-A of the ESI Act came to be passed by the respondent. It was stated in the order that despite opportunity of personal hearing to be present was given to the petitioner with all records on 14.05-2008, 04.07.2008 and 13.08.2008, the petitioner was not present, but they have sent a letter asking for further opportunity and the opportunity was fixed on 14.10.2008 and the matter was published in the newspapers "The Hindu" and "The Daily Thanti" on 14.10.2008 ; but since the petitioner did not appear on that date, the impugned order came to be passed. 6. The above finding recorded in the order passed under Section 45-A of the ESI Act was contrary to the material on record including the adjournment letter sent by the ESI conceding the request of the petitioner and also giving further opportunity on 21.11.2008. It is rather unfortunate having adjourned the matter and intimating the petitioner, the respondent had passed the impugned order ever before that date. A perusal of the order clearly shows that the order itself has been prepared even before the grant of adjournment. In the counter affidavit, in paragraph 4, the fact of grant of adjournment was accepted and in paragraph 4 and 5, it was stated as follows:- " 4. It is submitted that finally, the petitioner was given opportunity on 14.10.2008 vide advertisement in 'Hindu' newspaper. In response to the advertisement, the petitioner vide letter dated 14.10.2008 sought one more opportunity. As per the request of the petitioner another opportunity was afforded on 22.11.2008 vide letter 21.11.2008. https://hcservices.ecourts.gov.in/hcservices/ 5. It is submitted that but, inadvertently order under Section 45 A of the Act was passed on 18.11.2008 determining contribution of Rs.86,731/- for the period 08/06 to 09/07." 7. In normal circumstances, an order under Section 45 is liable to be challenged only by making an application before the ESI Court under Section 75 of the ESI Act. But that cannot become an universal factor especially when the respondent had not given appropriate opportunity before passing order under Section 45-A. In fact the proviso of Section 45-A introduced by Act 29/89 with effect from 20.10.1989 reads as follows:- " Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard." 8. Therefore, it is a clear case, where the respondent had violated the statutory mandate prescribed under proviso 29 to the Section 45-A of the ESI Act. In such circumstances, it is an appropriate case, where the impugned order has to be set aside. Accordingly, the impugned order stands set aside and the writ petition stands allowed with a costs of Rs.5,000/- (Rupees Five thousand only) payable to the petitioner. This is because the careless attitude of the respondent in passing such mechanical orders. Liberty is given to the respondent ESI to issue fresh notice for hearing and pass appropriate orders in accordance with law. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nvsri To The Assistant Director Employees State Insurance Corporation Regional Office 143, Sterling Road,Chennai-600 034 + 1 cc to Mr.M. Sriram, Advocate SR.11659 + 1 cc to Mr.K.c. Ramalingam, Advocate Sr.11939 W.P.No.14307 of 2009 RSY(CO) EU 3.3.11 https://hcservices.ecourts.gov.in/hcservices/