Item No. S-3. DJ/- SBCWP NO. 7275/2010 M/s Hotel Arvind Vs. The Regional Director & Ors. Order dt: 03rd August, 2010 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S. B. Civil Writ Petition No. 7275/2010 M/s Hotel Arvind Vs. The Regional Director & Ors. DATE OF ORDER ::: 03rd August, 2010 P R E S E N T HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Manish Patel, for the petitioner. --- 1. Heard learned counsel for the petitioner. 2. The petitioner by this writ petition has challenged its converge under the provisions of Employees State Insurance Act, 1948 (for short, hereinafter referred to as 'ESI Act'). 3. Learned counsel for the petitioner submits that upon survey conducted by the authorities under the ESI Act, a representation was made to the Assistant Director, ESI Corporation vide Annex-7 dated 29.04.2010 contending therein that for the reasons given in said representation, the petitioner was not liable to be covered under the provisions of the said Act. Thereupon, Annex-8 order dated 09.07.2010 was sent to the petitioner by the Assistant Item No. S-3. DJ/- SBCWP NO. 7275/2010 M/s Hotel Arvind Vs. The Regional Director & Ors. Order dt: 03rd August, 2010 2/5 Director, ESI Corporation, Jodhpur calling upon the petitioner to pay a sum of Rs. 44,415/- in respect of ESI contributions of its employees for the period 18.07.2008 to 31.07.2009. In the said order issued under Section 45-A of ESI Act dated 09.07.2010, the concerned authority has observed that they have considered the representation of the petitioner-company on the basis of material available on record and the petitioner's unit was found to be covered under the provisions of ESI Act and, therefore, said sum was determined and asked to be paid by the petitioner-company. 3. The said order was passed under the provisions of Section 45-A of the Act, which is reproduced hereunder: “45A. Determination of contributions in certain cases: (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of Section 44 or any Inspector or other official of the Corporation referred to in sub-Section (2) of Section 45 is [prevented in any manner] by the principal immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment: 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. (2) An order made by the Corporation under sub- Item No. S-3. DJ/- SBCWP NO. 7275/2010 M/s Hotel Arvind Vs. The Regional Director & Ors. Order dt: 03rd August, 2010 3/5 section (1) shall be sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as an arrear of land revenue under section 45B [or the recovery under sections 45C to 45-I]". 4. A bare perusal of the aforesaid provision indicates where in respect of a factory or establishment where no returns, particulars, register or records are submitted, the Corporation may on the basis of information available to it, by an order determine the amount of contribution payable in respect of employees of that factory or establishment. The order made under Section 45-A is considered to be sufficient proof of claim of the Corporation under Section 75 of the Act or for recovery of amount determined under such order as an arrear of rent. 5. However, vide Annex-9 dated 15.07.2010 it appears that Joint Director, In-charge of the said ESI Corporation has again served the petitioner with a show cause notice as to why the petitioner- company should not be held liable to pay the contributions in question, a Principal Employer in respect of employees found to be working at the time of survey for the said period 18.07.2008 to 31.07.2010. 6. From the record, it does not appear that the petitioner has submitted any reply to the said show cause notice dated 15.07.2010 but has straightway filed this writ petition challenging not only Annex-8 determination order dated 09.07.2010 under Section 45-A of the Act but said show cause notice Annex-9 dated Item No. S-3. DJ/- SBCWP NO. 7275/2010 M/s Hotel Arvind Vs. The Regional Director & Ors. Order dt: 03rd August, 2010 4/5 15.07.2010 also. The ESI Act, 1948 provides a complete method/procedure of determination of the disputes by the competent adjudicating authority subject to dispute being raised under Section 75 of the ESI Act before the Employees' Insurance Court with further remedy under Section 81 by way of reference to High Court and Section 82 by way of appeal to High Court on a substantial question of law. 7. In view of the fact that the petitioner has not availed the above alternative remedy and as of now, only a determination order under Section 45-A of the ESI Act has been passed against it, and thereupon a show cause notice Annex-9 dated 15.07.2010 has been served upon her calling upon the petitioner to pay ESI contributions in question, in the opinion of this Court, the petitioner is still free to contest before the said authority the question of its coverage and payability of the ESI contributions by it in respect of employees which can be decided by the said authority. The adjudicating authority is bound to go into all these questions of fact which can be adjudicated by giving proper findings of fact which are subject to further adjudication by the ESI Court under Section 75 of the ESI Act, and later on by High Court upon appeal or reference, as the case may be. 8. In view of this matter, it is premature for the petitioner to approach this Court by way of present writ petition against the impugned order dated 09.07.2010 (Annex-8) and show cause notice dated 15.07.2010 (Annex-9). Accordingly, the writ petition stands Item No. S-3. DJ/- SBCWP NO. 7275/2010 M/s Hotel Arvind Vs. The Regional Director & Ors. Order dt: 03rd August, 2010 5/5 dismissed. The petitioner will be at liberty to pursue its case before the appropriate authority and further avail alternative remedy under the ESI Act. Copy of this order be sent to the respondents immediately. (DR. VINEET KOTHARI), J. DJ/- S-3