THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.1220 OF 2003 DATED:25-10-2010. Between M/ Sri Gopal Service Station, Rep. by its Prop. Smt.Chandrakanta Bung … Appellant And 1.ESI Corporation, rep. by its Regional Director, Hyderabad and another …Respondents THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO.1220 OF 2003 JUDGMENT: This Civil Miscellaneous Appeal is filed against the order, dated 20-11-2002 passed by the E.S.I. Court in E.I.C.No.146 of 2000, in confirming the order, dated 11-10-2000, under Section 45-A of the Employees’ State Insurance Act, 1948 (for short ‘the Act’) passed by the 1st respondent herein for payment of contribution of Rs.48,799/-. 2. The averments of the petition in brief are that the 1st respondent herein grossly erred in holding that the petitioner- appellant by its own admission and declaration made in Form No. I, dated 23-07-1998, had employed ten persons for wages on 01- 07-1998, but no such declaration was given. Therefore, the respondent came to a wrong conclusion with respect to the applicability of the Act. In the show cause notice, the respondent has not fixed any date of hearing, as such, the action is against the cardinal principles of natural justice. The petitioner submitted a reply on 15-08-2000 that the respondent has not considered properly and failed to apply his mind while passing the order and it is specifically stated that the petitioner employed only six persons and as such the order passed by the 1st respondent is bad in law and seems to be preconceived and predetermined. Hence, he prays to set aside the order of the 1st respondent and declare that the provisions of Act are not applicable. 3. The respondent filed counter stating that at the time of inspection of the Inspector on 23-07-1998, the petitioner submitted Form I stating that it engaged in manufacture of petrol pumping with the aid of power and employed not less than 10 persons for wages on 01-07-1998. Hence, it attracts provisions of Section 2 (12) of the Act as a ‘factory’. The respondent issued intimation for compliance, but the petitioner failed to comply with the provisions of the Act. Therefore, show cause notice, dated 03-07-2000 was issued calling upon the petitioner to show cause as to why an amount of Rs.48,799/- should not be determined as contribution for the period from 01-07-1998 to 31-03-2000. The petitioner also given 15 days time to represent its case and also afforded an opportunity of personal hearing on 17-08-2000. The respondent sent a letter on 15-08-2000 disputing the coverage and has not attended the personal hearing or produced any record in proof of his contention. Therefore, the respondent issued final order on 11- 10-2000 determining the contribution of Rs.48,799/- for the period from 01-07-1998 to 31-03-2000 along with interest. Hence, the respondent prays to dismiss the petition. 4. Basing on the above pleadings, the ESI Court framed the following issues: 1. Whether the petitioner-Service Station is not liable to be covered under the ESI Act as it engaged only 6 persons? 2. Whether the petitioner is not liable to pay any amount as demanded in the order, dated 11th October, 2000? 3. To what relief? 5. On behalf of the petitioner, P.W.1 was examined and Exs. P1 to P5 were marked. On behalf of the respondents, R.Ws. 1 and 2 were examined and Exs.R1 to R4 were marked. 6. The ESI Court, after considering both oral and documentary evidence on record, dismissed the petition confirming the order under Section 45-A of the Act and directed the petitioner to pay contribution of Rs.48,799/- as demanded in Ex.P3 order within three months from the date of order, failing which, the respondent is entitled to claim interest as per statute after period of three months is over. Challenging the said order, the petitioner preferred this appeal. 7. Learned counsel appearing for the appellant contended that the appellant was not given an opportunity of hearing as required under Section 45-A of the Act and hence, he prays to set aside the order. 8. On the other hand, learned counsel appearing for the respondents contended that after inspection of the premises in question, show cause notice was issued to the appellant to show cause as to why necessary orders under Section 45-A of the Act has not been passed and therefore, clear opportunity was given to the appellant for personal hearing, but he has not availed the same before the concerned authority and hence, he prays to dismiss the appeal. 9. Now the point for determination is whether the orders of both the Courts below are correct, legal and proper? 10. The factual matrix is not in dispute. The appellant allegedly given a declaration in Form No. I on 23-07-1998 stating that he employed 10 persons for payment of wages w.e.f. 01-07- 1998. Thereafter, a show cause notice was issued to the appellant, for which, the appellant submitted a reply on 15-08-2000 and without hearing the appellant, the order under Section 45-A of the Act has been passed. One of the principles of natural justice is no man should be condemned of his opportunity of being heard. That principle is built under proviso to Section 45-A of the Act, which reads that 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. A perusal of the above provision makes it clear that an opportunity of personal hearing should be given. As seen from Ex.P3 order, it is clear that it does not indicate about giving of personal hearing so as to represent the case. Similarly, no evidence was adduced by the respondent herein in the trial Court to show that the competent authority has given a date to the appellant for personal hearing of the case. So, in the absence of any evidence on record, both the Courts below came to a wrong conclusion treating show cause notice, dated 03-07-2000 as notice of personal hearing, but the same cannot be said to be notice of personal hearing because it does not contain any date directing the appellant to argue the case. Therefore, in the absence of any evidence on record, it is a clear case where the competent authority has violated proviso to Section 45-A of the Act. Therefore, the impugned order is liable to be set aside. 11. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the order, dated 20-11-2002 passed by the E.S.I. Court in E.I.C.No.146 of 2000. However, the matter is remanded to the Primary Authority to give personal hearing of the matter and pass necessary orders thereafter in accordance with law. No order as to costs. _______________ K.C. BHANU, J DATED:25.10.2010 Hsd