IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 16979 of 2009(N) -------------------------- PETITIONER(S): ----------------- P.V. MINI, EXECUTIVE DIRECTOR, P.V.S. MEMORAIAL HOSPITAL LTD., KALOOR, KOCHI -17. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): ------------------- 1. THE DEPUTY LABOUR OFFICER & ASSESSING OFFICER, OFFICE OF THE DISTRICT LABOUR OFFICER, CIVIL STATION, KAKKANAD, KOCHI -30. 2. TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM, KOCHI -11. 3. DEPUTY TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM. 4. KUNNEL ENGINEERS & CONTRACTORS PVT LTD., 2ND FLOOR, MAREENA BUILDINGS, M.G. ROAD, RAVIPURAM, KOCHI -16. GOVT.PLEADER SRI.K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 16979 OF 2009 (N) ===================== Dated this the 22nd day of June, 2009 J U D G M E N T Petitioner is aggrieved by Exts.P4, P8 and P9. Petitioner is in the process of constructing an additional block to their hospital building and according to the petitioner, work has been entrusted to the 4th respondent, a contractor. It is stated that demanding the dues under the Building and Other Construction Workers' Welfare Cess Act, 1996, notice was issued to the petitioner. According to the petitioner, since the work is entrusted to the 4th respondent Contractor, the 4th respondent is the employer as defined under the said Act and therefore, the notice was forwarded to the 4th respondent for suitable action. 2. It is stated that the 4th respondent gave Ext.P1 reply, but however, Ext.P2 notice of assessment was issued to the petitioner calling upon them to appear before the 1st respondent on 30/1/2009. It is the case of the petitioner that on 30/1/2009, though she appeared before the 1st respondent, in view of his non availability in office, the petitioner could not meet the 1st respondent. According to the petitioner, immediately thereafter, WPC 16979/09 :2 : on the 2nd of February, 2009 petitioner submitted Ext.P3 to the 1st respondent informing that in view of his non availability in office on 30/1/2009, she will meet the 1st respondent before 9th of February, 2009. It is stated that on Ext.P3 itself, the office of the 1st respondent has acknowledged its receipt on 2/2/2009 itself. 3. It is stated that despite having sought an opportunity as per Ext.P3, on 2/2/2009 itself, Ext.P4 order of assessment was passed rendering the petitioner liable to pay an amount of Rs.11,44,851/- under the Cess Act referred to above. It is stated that, Ext.P4 was followed by Ext.P5 show cause notice which was replied by Ext.P6. However, rejecting the same by Ext.P7, revenue recovery proceedings have been initiated by Exts.P8 and P9. It is in these circumstances, the writ petition has been filed. 4. The contention that is raised before me by the counsel for the petitioner is mainly regarding the invalidity of Ext.P4 in as much as according to the petitioner, the same was passed ignoring the request that was made by Ext.P3. 5. I have considered the submissions made by the counsel for the petitioner and also the learned Government Pleader on behalf of the respondents. WPC 16979/09 :3 : 6. As rightly pointed out by the learned Government Pleader, the petitioner has a right of appeal under Section 11 of the Act. However, as already noticed, what is pleaded is one of violation of the principles of natural justice and if so, the availability of an alternate remedy of appeal is no reason to reject the writ petition. See in this connection Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others {(1998) 8 SCC 1}. As already stated, the case of the petitioner is that in response to Ext.P2 assessment notice, when the petitioner appeared before the 1st respondent, 1st respondent was not available in the office. It is their case that on 2/2/2009 itself, by Ext.P3, petitioner offered to meet the 1st respondent to explain their case before 9th of February, 2009. Ext.P3 is the letter that was given and this letter carries the endorsement of the office of the 1st respondent which evidences that the same was delivered in their office on 2/2/2009 itself. Such being the case, in my view, there is absolutely no justification for the 1st respondent to have passed Ext.P4 order, without giving an opportunity to the petitioner, to explain their case. 7. Therefore, I am satisfied that there is violation of the WPC 16979/09 :4 : principles of natural justice in passing Ext.P4. I feel the petitioner has made out a case for a remand and a direction to the 1st respondent to pass fresh orders extending the petitioner an opportunity of hearing and also to produce their materials to substantiate their case that the petitioner is not the employer as defined in the Act. For that limited purpose, I quash Ext.P4 assessment order and also Exts.P8 and P9 revenue recovery proceedings initiated to realise the amount. 8. The 1st respondent shall afford the petitioner an opportunity of hearing and in the light of the materials produced, shall decide as to whether the petitioner is the employer as defined in the Act. On the basis of the revised orders so passed alone, fresh proceedings shall be initiated. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp