HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.11088 of 2011 Date: April 21, 2011 Between: Guntur District Milk Producers Mutually Aided Co-operative Union Ltd., rep. By Its Labour Welfare Officer … Petitioner And The Joint Director, Employees State Insurance Corporation, Vijayawada. … Respondents This Court made the following: HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No.11088 of 2011 ORDER: This writ petition has been filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus declaring the action of the respondent in demanding the damages on the contributions payable for the year 2001 by proceedings No.AP/SRO.VJA/MEC/62/9091-02/68, dated 16.12.2010, as illegal, arbitrary and consequently direct the respondent to consider the case of the petitioner under Amnesty Scheme 2010 issued by the respondent-Employees’ State Insurance Corporation. 2. The case of the petitioner is that the petiiotner- M/s.Guntur District Milk Producers Mutually Aided Co-operative Union Ltd., which is a society registered under the Mutually Aided Co- operative Societies Act, 1995, is involved in the business of procurement of Milk and manufacturing of Milk Products. The petitioner Union submitted representation, dated 22.10.2001, to the Government seeking exemption of payments under Section 90 of the E.S.I.Act to all categories of its Employees. The Government in response to the representation issued a notification on 07.01.2005 initially exempting the regular employees from the provisions of the E.S.I.Act for a period of one year i.e., from 01.01.2001 to 31.12.2001. Thereafter, the petitioner made representations on 28.02.2005 and 27.07.2007 to the Government seeking exemption under Section 90 of the E.S.I.Act to all categories of its employees from 01.01.2002 to 31.03.2007. As there was no response from the Government, the petitioner-Union filed W.P.No.24879 of 2007 before this Court questioning the initiation of recovery proceedings. During pendency of the writ petition, the Government issued G.O.Rt.No.588, dated 15.03.2008, granting exemption upto 31.12.2007 for all categories of employees. In view of the exemption, W.P.No.24879 of 2007 was dismissed as withdrawn on 16.09.2009. There was no exemption insofar as the casual and contract employees for the year 2001 and there was also no demand from the E.S.I. Authorities. Subsequently, the petitioner was granted exemption to all categories of employees and the respondents never issued any notice demanding the interest on the contributions payable for the period from 01.01.2001 to 31.12.2001 till the issuance of the impugned demand notice. The respondent issued a notice dated 13.09.2010 demanding the contributions of Rs.1,28,700/- and interest of Rs.1,11,054/- for the period from 01.01.2001 to 31.12.2001, insofar as the contract and casual employees are concerned. The petitioner submitted a reply on 18.09.2010 stating that the Government granted exemption for all categories of employees on 15.03.2008 and the petitioner is not labile to pay any contributions. The respondent further issued another notice, dated 22.09.2010, demanding for payment of Rs.2,85,756/-. The petitioner submitted a reply, dated 28.09.2010, along with payment of contributions of Rs.1,28,700/- for the year 2001 and sought waiver of interest on the said amount as there was no lapse on the part of the petitioner as the matter was pending before the Government. The respondents without considering the reply submitted by the petitioner issued the final demand notice, dated 15.11.2010, for Rs.1,62,394/-. The respondents issued the demand notice after lapse of nine years for payment of the interest on the contributions payable for the year 2001 for no fault of petitioner. Thereafter, the respondent issued the impugned notice, dated 16.12.2010 served on the petitioner on 04.03.2011 claiming the damages of Rs.1,28,700/- U/s.85B of the E.S.I.Act. The respondent prepared the notice on 10.02.2011 i.e., after receipt of the order passed by this Court on 25.01.2011 and issued to the petitioner with back date on 04.03.2011. On receipt of the notice, the petitioner submitted a detailed reply on 15.03.2011 and the petitioner also submitted a representation to the respondent to waive the damages under Amnesty Scheme 2010. The respondent acknowledged the same, but however issued another letter, dated 07.04.2011, stating that the petitioner failed to submit the reply and again directed to submit the reply. Hence, the writ petition. 3. Learned counsel for the petitioner contended that the impugned notice is ante dated and served on the petitioner on 04.03.2011 and thereafter on 15.03.2011, he submitted a detailed reply to waive the damages under the Amnesty Scheme 2010. He further contended that without considering his explanation, the show cause notice has been issued and, therefore, he prays to set aside the same. 4. Admittedly, the impugned notice is only a show cause notice asking the petitioner as to why damages should not be imposed on him for non-payment of employers’ share of insurance for the period from 01.01.2001 to 31.12.2001. If the petitioner is aggrieved by the order, he can as well file a representation before the Joint/Assistant Director of Employees’ State Insurance Corporation. Further more, the impugned notice also indicates that the petitioner was directed to appear on 16.03.2011 at 11:00 AM with necessary documents, to explain his case. As seen from the affidavit filed in support of the writ petition, nowhere it is stated that in pursuance of the notice, any representative of petitioner was personally present on 16.03.2011 before the Joint/Assistant Director of Employees’ State Insurance Corporation and represented his case. Anyhow the petitioner stated to have submitted a detailed reply on 15.03.2011. If no orders have been passed as on today in pursuance of the impugned order, the respondents shall pass appropriate orders duly considering the representation filed by the petitioner and also after giving personal hearing to the petitioner. 6. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs. ______________ K.C. BHANU, J April 21, 2011. LMV