IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 OP.No. 18289 of 1996(B) ------------------------------- PETITIONERS: --------------------- K.K. PARAMESWARAN, KOLLERITHARA HOUSE, B.T.S. ROAD, EDAPPALLY NORTH ERNAKULAM BY ADVS. SRI.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENTS: ------------------------ 1. THE EMPLOYEES STATE INSURANCE CORPORATION REPRESENTED BY THE REGIONAL DIRECTOR, E.S.I. CORPORATION THRISSUR 2. THE DEPUTY REGIONAL DIRECTOR, E.S.I. CORPORATION, PANCHADWEEP BHAVAN, NORTH SWARAJ ROAD, THRISSUR 3. THE RECOVERY OFFICER, E.S.I. CORPORATION, OFFICE OF THE RECOVERY OFFICER, PANCHADWEEP BHAVAN NORTH SWARAJ ROAD, THRISSUR ADV. SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN. GOVERNMENT PLEADER SRI. BASANT BALAJI THIS ORIGINAL PETITION HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 18289 of 1996(B) -------------------------------------- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTICE NO. 54.5797-102/mV DT. 23.10.96 EXT.P2 : COPY OF THE NOTICE NO. 54.5760-102/mV DT. 23.10.96 EXT.P3 : COPY OF THE NOTICE NO. 54.5761-102/mV DT. 23.10.96 EXT.P4 : COPY OF THE NOTICE NO. 54.5785-102/mV DT. 23.10.96 EXT.P5 : COPY OF THE NOTICE NO. 54.5798-102/mV DT. 23.10.96 EXT.P6 : COPY OF THE NOTICE NO. 54.5755-102/mV DT. 23.10.96 EXT.P7 : COPY OF THE NOTICE NO. 54.5796-102/mV DT. 23.10.96 EXT.P8 : COPY OF THE NOTICE NO. 54.5832-102/mV DT. 23.10.96 RESPONDENT'S EXHIBITS: NIL // TRUE COPY // PA TO JUDGE smt P.N.RAVINDRAN, J. ---------------------------------- O.P.No. 18289 OF 1996 --------------------------------------------- Dated this the 8th day of June, 2011 J U D G M E N T Exts.P1 to P8 orders issued by the second respondent under section 45A of the Employees State Insurance Act, 1948 (hereinafter referred to as 'the Act' for short) are under challenge in this writ petition. The brief facts of the case are as follows:- 2. The petitioner was the licensee of a large number of toddy shops in Ernakulam range during the period from 01.04.1994 to 31.03.1996. All the toddy shops were admittedly covered under the provisions of the Act. The petitioner challenges the impugned orders mainly on the ground that before they were passed, he was not put on notice or heard. The next contention raised is that as the period for which contribution was demanded, namely, the period from 01.04.1994 to 31.03.1996 has expired and medical facilities were not extended to workmen during the said period, contribution from the employer cannot be demanded. O.P.No. 18289 of 1996 2 3. The respondents have filed a counter affidavit, wherein, with particular reference to each of the toddy shops in question namely toddy shop Nos.13, 16, 17, 20, 21, 30, 41, 70, 71 of Ernakulam range, it is contended that though all the shops were covered under the Act with effect from 01.04.1985, the petitioner, the licensee of the shops, failed to remit the contribution during the disputed period. It is also stated that though registered notices were issued and served on the petitioner, the petitioner did not respond and therefore the provisional assessments were finalized by issuing the impugned orders. The respondents have also produced Ext.R1 (a), (c), (e), (g), (i), (k), (m) and (o) notices and Exts. R1 (b), (d), (f), (h), (j), (l), (n) and (p), postal acknowledgment cards to substantiate their contention that the orders were passed after pre- assessment notices were duly served on the petitioner. 4. I heard Sri.K.P.Satheesan, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. The learned counsel appearing for the petitioner contended that even assuming that pre-assessment notices had been served on the petitioner in time, the second O.P.No. 18289 of 1996 3 respondent should have conducted an inspection for the purpose of ascertaining the number of employees in the shops and also the amount of contribution payable by the petitioner and that having not been done, the impugned orders are liable to be se aside. The learned counsel also contended that as the demand is for a period during which none of the employees claimed any benefit under the Act, the demand is unsustainable. The contention raised by the petitioner that no demand can be made long after the period of coverage has expired is no longer res- integra and is covered against the petitioner by the decision of the Apex Court in Employees State Insurance Corporation v. Hotel Kalpaka International 1993 LAB 1C 416. The Apex Court held that by force of the statutory provisions contained in the Act, the employer had a duty to deduct the employees share of the contribution from the wages of the employees and to remit it together with the employer's share of the contribution and that the employer cannot contend that the employees have gone away and therefore there is no liability to contribute. It was held that a construction which will thwart the very object of the Act cannot be placed on the Act. O.P.No. 18289 of 1996 4 5. As regards the next contention also, I am of the opinion that the petitioner is not entitled to succeed. The respondents have positively averred that the impugned orders were passed after service of notice on the petitioner. The postal acknowledgment cards duly signed by the petitioner have also been produced. Section 45(A) of the Act does not envisage a further inspection of the factory or the establishment by the Inspector of the Corporation in cases where the employer fails to respond to the pre-assessment notice. Section 45(A)of the Act only stipulates that before an order of determination of the contribution payable in respect of an establishment is passed, the employer shall be given a reasonable opportunity of being heard. In the instant case, the procedural requirements have been complied with and notices served on the petitioner. The petitioner did not however appear for the hearing. Such being the situation, I am of the opinion that no relief can be granted in the writ petition. 6. Though towards the conclusion of the arguments, the learned counsel appearing for the petitioner prayed for an opportunity to the petitioner to move the Employees State O.P.No. 18289 of 1996 5 Insurance Court in terms of section 75 of the Act and he relied on the averments in paragraph-15 of the counter affidavit filed on behalf of the respondents in support of the said request, I am of the opinion that at this distance of time nearly 15 years after the cause of action arose for moving the Employees State Insurance Court, this Court exercising jurisdiction under Article 226 of Constitution of India should permit the petitioner to avail the alternative remedy. Section 77 of the Act stipulates that applications before the Employees State Insurance Court shall be made within a period of three years from the date on which the cause of action arises. Such being the situation, I am not inclined to entertain that request also. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. P.N.RAVINDRAN, JUDGE dmb