: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.803 OF 2009 Rambhai N. Mor .. Appellant V/s. The Employees State Insurance Corporation .. Respondent ..... Mr. P.M.Bhagat for the appellant Mr. P.M. Palshikar for the respondent ..... CORAM : R.Y. GANOO, J. DATE : 16TH JULY, 2009. P.C. : 1. The appellant herein runs a proprietary firm by name M/s. Rambhai N. Mor. According to the appellant, the appellant had hired the premises of one organization by name M/s. Poonit Diamonds situate at Manikpur, Vasai and the business was being carried out at the said premises. According to the appellant as of today, the said premises have been surrendered to M/s. Poonit Diamonds. According to the appellant : 2 : whatever communications were addressed to the appellant he could not be receive the same. One visit was paid by the Officer of the Corporation only in 1993 and subsequently the appellant could not produce any record before the Officer in the absence of proper communication from the respondent. 2. It is seen that respondent, Deputy Director has passed an order dated 9th May, 2002 calling upon the appellant to pay a sum of Rs.1,02,033.36 being the amount for the period 9th March, 1993 to 31st March, 1998, which figure came to be determined alongwith the interest upto 28th February, 2002. The said order also speaks of liability to pay the interest. According to respondent, this order was not complied with by the appellant and that is why warrant of arrest came to be issued by the respondent on 1st February, 2006 asking the appellant to deposit a sum of Rs.2,31,857/- alongwith the interest at the rate of 12% as per the provisions of Section 39(5) of E.S.I. Act, 1948. A statement is made across the bar by the learned advocate for the appellant that a part of the amount has been deposited. : 3 : 3. After these developments, the appellant filed an application under Section 75 of the E.S.I. Act in the E.S.I. Court being Application No.(ESI) 22 of 2006 for reliefs viz. the decision to call the appellant to pay a sum of Rs.1,74,202/- should be revoked and for cancellation of warrant and for other appropriate reliefs. This application came to be rejected. Hence, this first appeal is filed. 4. I have heard learned advocate on both sides. On hearing the learned advocates on both sides, it is apparent that the appellant admits that he was running a firm by name M/s. Rambhai N. Mor and that the appellant in a way has admitted that his firm is liable to be covered under the provisions of E.S.I. Act. A grievance was made before this Court that the appellant could not get enough opportunity to place his record before the Officer of the respondent to enable the Officer of the respondent to arrive at proper figures primarily because there was a communication gap on account of non-receipt of letters by the appellant. : 4 : 5. In the aforesaid circumstances, I am inclined to observe that it would be proper if the appellant is given an opportunity to appear before the concerned Officer of the respondent and present his material / documents to justify his case so that the Officer of the respondent would be able to pass an appropriate order in regard to the liability covered by order dated 9th May, 2002 and if the appellant is aggrieved by the said order, he would be able to challenge the said order. Of course, this facility will be available to the appellant if the appellant deposits a sum of Rs.2,31,857/- that is to say the amount mentioned in the warrant dated 1st February, 2006. 6. In my view, the aforesaid arrangement will meet the ends of justice. Needless to mention that some time will have to be given to the appellant to make up the amount of Rs.2,31,857/- and if the said amount is not deposited by the appellant, in that case the warrant of arrest which has been already issued can be revived as if the appellant has nothing to say about the total liability. : 5 : 7. Keeping in view the aforesaid discussion, the first appeal can be disposed of by passing following order. Hence, the order. ORDER . The appellant is directed to deposit in all a sum of Rs.2,31,857/- on or before 7th August, 2009 in the office of the respondents. If any amount is already deposited, the appellant shall get a credit for that. Upon depositing the amount, the appellant shall communicate to the concerned Officer about the fact of deposit of a sum of Rs.2,31,857/-. If the appellant deposits Rs.2,31,857/- on or before 7th August, 2009, the concerned Officer of the respondent shall fix the date of hearing on which date the appellant shall appear before the concerned Officer and produce all the record which he may like to produce in support of his case. If any additional record is called by the concerned Officer, the appellant shall also produce the said record. After production of all the record by the appellant within a reasonable time, concerned officer shall hear the appellant or his advocate and pass an order fixing the liability of the appellant for the period set out in the order dated 9th May, : 6 : 2002. If the appellant is aggrieved by the said order, appellant will be free to challenge it before the appropriate forum. . If the appellant fails to deposit with the respondent total sum of Rs.2,31,857/- on or before 7th August, 2009, it will be taken that the appellant is not interested in producing the documents before the concerned Officer and receive hearing and in that case the respondent will be free to execute warrant of arrest issued by the respondent dated 1st February, 2006 for the amount which remains unpaid as on 7th August, 2009. The appellant shall communicate to the respondent the address on which the Officers of the respondent shall send the communication for further correspondence. This be done within 3 days from today. . It is clarified that no views are expressed on merits of the matter. All the contentions are left open. The observations made by the learned E.S.I. Court contained in order dated 27th February, 2009 cannot be used by either the appellant or the respondents. . The first appeal is disposed of in the above terms. There shall be no order as to costs. : 7 : . Civil Application No.2310 of 2009 is disposed of with no order as to costs in view of disposal of first appeal. 8. After the aforesaid order is passed, learned advocate Mr. Bhagat informed the Court that appellant had deposited certain amounts in the account of Poonit Diamonds . The appellant shall inform to the Officer of the respondent the details of the amount which are deposited from time to time and which have been credited to the account of Poonit Diamonds so that the Officers of the Corporation shall give credit to the appellant towards that amount as mentioned aforesaid. (R.Y. Ganoo, J.)