1 fa1964 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1964 OF 2010 Employees State Insurance Corporation ...Appellant vs. M/s.Atlas Copco (India) Ltd. ...Respondent Mr.P.M.Palshikar for the appellant Mr.K.S.Bapat i/b M/s.Desai & Desai Associates for the respondent CORAM : A.S.OKA,J. DATE : APRIL 19,2011 P.C.: 1 Considering the nature of controversy, taken up for final hearing. Heard learned counsel for the appellant and the learned counsel for the respondent. 2 The appeal arises out of order passed on application under section 75 of the Employees State Insurance Act, 1948 (hereinafter referred to as the said Act). The challenge in the application was to the order passed on 31st August 2006 under section 45-A of the said Act. By the said order, the respondent was directed to pay contribution totally amounting to Rs.33,790/- for the period from 1st April 1996 to 30th September 1998. The said order was passed on the basis of the show cause notice dated 19th April 2000. By the said show cause notice, the respondent was called upon to show cause as to why assessment should not be made as proposed in the said notice for the period between 1st April 1996 to 30th September 1998. In the order dated 31st August 2006, liability of the respondent has been fixed in the sum of Rs.33,790/- for the period from 1st April 1996 to 30th September 1998. By the impugned order, the learned trial 2 fa1964 Judge observed that for the period mentioned in the order dated 31st August 2006, an order under section 45-A of the said Act was already made on 4th August 2004 and for challenging the same a separate application being ESI Application no.6 of 2004 under section 75 of the said Act is pending. On this ground, the learned trial Judge has set aside both the show cause notice dated 19th April 2000 and the order dated 31st August 2006. 2 I have heard the learned counsel for the parties. Perusal of the additional compilation filed by the appellant show that there is an earlier order dated 4th August 2004 passed under section 45-A of the said Act based on a different show cause notice which is dated 4th February 2003. By the said order dated 4th August 2004, a demand for contribution has been adjudicated upon for the three distinct periods viz; (i) 1988-1992, (ii)1st April 1992 to 31st December 1996 and (iii) 1st January 1997 to 31st March 1997. The application bearing no.ESI 6 of 2004 is pending for challenging the said order dated 4th August 2004. The said order covers the period ending with 31st March 1997. As far as the order dated 31st August 2006 which is the subject matter of the present appeal is concerned, it covers the adjudication of the amount payable for period from 1st April 1996 to 31st March 1997 which is subject matter of the aforesaid earlier order dated 4th August 2004. The said order dated 31st August 2006 also makes adjudication for the period from 1st April 1997 till 30th September 1998. For the said period from 1st April 1997 to 30th September 1998, there is no adjudication made by the earlier order dated 4th August 2004. It must be also stated here that in the order dated 4th August 2004, the contribution claimed for the period from 1st January 1997 to 31st March 1997 is Rs.4922.60 and in the order dated 31st August 3 fa1964 2006, the contribution for the said period is set down as Rs.4409/-. Prima facie, it appears that even for the period from 1st April 1996 to 31st December 1996, the amount claimed under the order dated 31st August 2006 appears to be less than what is claimed in earlier order dated 4th August 2004. 3 All these factual aspects have been completely brushed aside by the trial Court. The trial Court has completely ignored that in the earlier order which is subject matter of challenge in the separate application there is no demand made covering the period from 1st April 1997 to 30th September 1998. The Trial Court has merely observed that the Appellant cannot recover the contribution under section 45-A as per the order dated 31st August 2006 as the same claim has been made under the order dated 4th August 2004. The said observation is factually incorrect. Hence, there is non application of mind on the part of the learned trial Judge. Hence, impugned order will have to be quashed and set aside and the matter will have to be remitted. 4 Hence, I pass the following order : i) Impugned order dated 27th August 2009 is quashed and set aside and the application (ESI) no.5 of 2006 is restored to the file of the trial Court. ii)The learned trial Judge will proceed to decide the said application afresh in the light of the observations made by this Court. iii)All contentions of the parties on merits are kept open. iv)Appeal is partly allowed in above terms with no order as to costs. JUDGE