IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1024 OF 2006 Between: M/s. Theatre Radha A/C. ..... APPELLANT AND Employees State Insurance Corporation and another ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.1024 OF 2006 JUDGMENT: This Civil Miscellaneous Appeal, under Section 82 of the Employees State Insurance Act, 1948, (for short, “the Act”) is directed against the order, dated 20.09.2006, in E.I.Case No.82 of 2002, on the file of the Employees Insurance Court and Chairman Industrial Tribunal – I, Hyderabad, whereunder and whereby, the petition under Section 75 (1) (g) of the Act for setting aside the order, dated 21.11.2001, bearing No.AP/INS.V/51-1793-121, demanding the petitioner to pay the balance amount of Rs.1,74,046/-, after deducting a sum of Rs.68,825/- out of Rs.2,42,871/-, was dismissed. 2. For better appreciation of facts, the parties hereinafter are referred to as they were arrayed in the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The petitioner is a theatre employed with 20 employees and a code No.51-1793-121 was given to it. It is stated that the petitioner has been remitting the ESI contributions regularly without any default. Due to paucity of funds and huge loss, payment of contributions by the petitioner was delayed for the periods from 01/97 to 09/99. It is further stated that during that period the petitioner employed less than 21 employees and was paying the contributions for them. Though the Inspector of respondent No.1 corporation visited the theatre and collected cheque for an amount of Rs.68,825/- from the petitioner for the period from 01.01.1997 to 30.09.2000, the respondent corporation filed a false and fabricated case against the petitioner under Section 85(a) of the Act, alleging that the petitioner committed default in paying the contribution amount for the period from 01/97 to 09/99 for an amount of Rs.1,61,036/- on Adhoc basis in P.C.No.142 of 2001, on the file of Employees Insurance Court, which is pending. It is further stated that the allegations made by the ESI Corporation were without issuing notices to the petitioner and that the respondent corporation did not file any acknowledgement for serving C-18 notice, show-cause notice etc. It is further stated that the ESI Corporation without verifying the records sent a letter to the petitioner vide No.AP/INS.V/51-1793- 121, dated 21.11.2001, to pay the balance amount of Rs.1,74,046/- i.e, (Rs.2,42,821/- – 68,825/-) for the period from 01/97 to 03/00. It is further stated that the petitioner paid all the contribution amounts including the above said period and submitted returns accordingly, and hence, it prays to set aside the impugned order. 4. Respondent No.1 filed the written statement stating that when the Inspector of respondent No.1 Corporation visited the theatre he found not less than 20 persons, and hence, the establishment was covered under Section 1(5) of the Act. The factum of coverage was informed to the petitioner in the month of September, 1998, by way of a letter, and the same was duly received by the employer and thereafter issued show-cause notice on 07.02.2000, calling upon the petitioner to show cause as to why an amount of Rs.1,61,036/- should not be determined as contributions due from him, within 15 days. The petitioner was also given opportunity of personal hearing on 14.04.2000, but it failed to respond without any reasons and failed to avail the opportunity of personal hearing. Therefore, the corporation determined the liability of the petitioner under Section 45A of the Act for the period from 01/97 to 09/99, payable with interest at 15% and hence, there are no grounds to interfere with the impugned order. 5. Basing on the above pleadings, the following issues have been framed for trial: “1. Whether the order dated 21.11.2001 for an amount of Rs.1,74,046/- issued by the Deputy Director, ESI Corporation is liable to be set aside? 2. Whether an amount of Rs.68,825/- paid by the petitioner on actual basis is true and correct? 3. To what relief?” 6. The trial Court after considering the evidence available on record came to the conclusion that the petitioner is liable to pay the contributions for the period from 01/97 to 09/99 and the liability of the petitioner to pay the contributions under Section 45A of the Act was determined to a tune of Rs.2,42,821/-, and that after deducting the cheque amount of Rs.68,825/- the petitioner is liable to the balance amount of Rs.1,74,046/- and hence, the impugned order does not require any interference and accordingly, dismissed the same. Challenging the same the present appeal is filed. 7. Learned counsel for the petitioner contended that Criminal Court acquitted the petitioner observing that it was not a case of total failure of payment of contributions; and that no ample opportunity was given to the petitioner so as to prove the case and there is no evidence to show that the show-cause notice was served on the petitioner and hence, he prays to set aside the impugned order. 8. On the other hand, learned counsel for the respondent contended that the show-cause notice was issued to the petitioner and the same was acknowledged by the petitioner; and that an opportunity for personal hearing was also given, and that as the petitioner failed to turn up to the personal hearing and failed to respond to the show-cause notice, the final order determining the liability of the petitioner with regard to the contributions under the Act has been determined by passing an order under Section 45A of the Act; that after elaborate consideration of evidence available on record, the trial Court dismissed the case and there are no grounds to interfere with the same. 9. The dispute is with regard to payment of contribution along with the interest for the period from 01.01.1997 to 30.09.2000. Admittedly, a show-cause notice, dated 07.02.2000 was issued to the petitioner to show cause as to why the contributions due for the period from 01/1997 to 09/1999 should not be determined at Rs.1,61,036/- and also the corporation has given an opportunity to the petitioner of personal hearing on 14.04.2000. As the petitioner failed to avail the said opportunity, the said order under Section 45A of the Act was passed. 10. It is not in dispute that a Wage Register is being maintained and the number of employees who work on every day is reflected in the Attendance Register. The payments made to the employees are being mentioned in the wage register. It is also not in dispute that several workers were working in the cinema theatre in three shifts. Therefore, when the petitioner is maintaining documents like Wage Register, Attendance Register etc., it is the duty of the petitioner to produce those documents to show the number of employees working in the theatre previously. They have not been produced by PW.1, who is the Managing Partner of the petitioner – theater, and no explanation of whatsoever was given as to why they were not produced. Therefore, an adverse inference can be drawn under Section 114(g) of the Indian Evidence Act, 1872. If the petitioner produced the documents, the truth would have come out. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted. Similarly, the petitioner has not filed any document to show that it paid all the contributions to the corporation in respect of those employees working in the theatre. Though it is contended by the learned counsel for the petitioner that no notice was served on it, as seen from exhibits, the petitioner filed the demand notice – Ex.P4, which is C19 notice, dated 15.11.2001 and Ex.P5 – ESI CP-2 demand notice, which clearly reveal about petitioner receiving the same and it has not given any explanation for the show-cause notice. Even though an opportunity for personal hearing was given, the petitioner has not availed the same. In spite of giving ample opportunity, the petitioner failed to establish or prove his case. So, it cannot be said that the order under Section 45A of the Act has been made behind back of the petitioner. Even assuming for a moment that no demand notice has been issued and no opportunity was given to the petitioner, still it can as well produce such evidence which is necessary to determine its liability before the ESI Court. It has not produced any record to show that it has been regularly paying any contributions to the ESI and there is no liability for it to pay the amount. The petitioner failed to produce all the documents before the ESI Court, which are relevant for the purpose of resolving the issue, except the original challan and cheque said to have been given by it. Admittedly, the petitioner has paid an amount of Rs.68,825/- by way of cheque on 25.05.2001 i.e., long after the determination of the liability. Therefore, the trial Court after elaborate consideration of evidence on record rightly held that there are no grounds to set aside the recovery notice, and the said order requires, no interference by this Court. Hence, the appeal is devoid of merit and is liable to be dismissed. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J April 09, 2010 MD