IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4488 of 2002 BINAY KUMAR PRASAD Versus 1 THE DISTRICT CERTIFICATE OFFICER, ROHTAS 2 THE RECOVERY OFFICER, EST CORPORATION, JHARKHAND AND BIHAR, PATNA 3 THE MANAGER, LOCAL OFFICE, ESI CORPORATION, DALMIANAGAR ----------- 3 18.11.2009. Heard learned counsel for the petitioner and respondent no.3. The petitioner has come to this Court against a notice dated 19.12.2001, sent by the Recovery officer, Employees State Insurance Corporation, Jharkhand and Bihar, respondent no.3 contained in annexure 2, by which he has been asked to show cause as to why a warrant of arrest be not issued against him. The aforesaid notice was issued in connection with Certificate no. 42- 2292-2nd dated 31.3.1997. The petitioner states that he is one of the partners of M/S Sone Valley Ice & Cold Storage, Station Road, Dehri, Police Station Dehri, Rohtas and earlier a requisition for initiating a certificate case was made to Collector, Patna by Regional Director of Employees State Insurance Corporation, Patna on 10.3.1986 which was transferred to District certificate officer, Rohtas under section 13(1) of the Bihar and Orissa Public Demand Act (in short the Public Demand Act) on 30.5.1986. The Certificate officer finally absolved the petitioner of any liability, whereafter the instant notice dated 19.12.2001 was issued by the Recovery officer after amendment in the year 1999 in section 45(1) of the Public Demand - 2 - Act. The petitioner has assailed the aforesaid notice on various grounds. Firstly, he submits that Recovery officer has stepped into the shoes of Certificate officer, as such, issuance of notice is bad in law and hit by principle of res judicata. Secondly, the Recovery officer would not have issued notice prior to the determination of the contribution amount under section 45A of the Employees State Insurance Act, 1948 (in short as the ESI Act). The petitioner by referring to section 2A of the ESI Act contends that his firm is not registered under the provisions of ESI Act which is as follows:- 2A. Registration of factories and establishments. Every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf. the aforesaid provision would not apply. With reference to counter affidavit filed by respondent numbers 2 and 3, it is stated that prior to amendment in the Act in the year 1989 the dues of the Corporation is to be recovered under the Public Demand Act. After amendment, the procedure has changed and interim arrangement for recovery has been incorporated. He submits by referring to annexure A, B & C to the counter affidavit that opportunity in past was given to the petitioner for paying the contributory amount determined earlier. It appears that the matter relates to year 1978 to 1981. Earlier a certificate proceeding was initiated against the petitioner which stood dropped in his favour. If the respondents want to proceed afresh after - 3 - amendment they are to satisfy the requirement of giving notice under section 45A of the ESI Act. The impugned notice dated 19.12.2001 is set aside and respondent authorities are directed to proceed with the matter afresh under section 45A of the ESI Act in order to give the petitioner an opportunity to meet his liability. The writ petition is allowed to the extent indicated above. Shashi. (Samarendra Pratap Singh,J.)