Court No. - 47
Case :- WRIT - C No. - 14577 of 2019 Petitioner :- M/S M.Q.M. Memorial Convent Nursery Primary School Respondent :- Employees State Insurance Corporation Regional And 2 Others Counsel for Petitioner :- Adya Swaroop Pandey Counsel for Respondent :- Rajesh Tewari
Hon'ble J.J. Munir,J.
Heard Sri A.S. Pandey, learned counsel for the petitioner and Sri Rajesh Tiwari, learned counsel appearing for respondent nos. 1,2 and 3, that is to say, the Employees State Insurance Corporation and its various officers arrayed as respondent nos. 2 and 3.
Sri Rajesh Tiwari has submitted that the petitioner has equally efficacious remedy by way of appeal under Section 45 AA before the Appellate Authority and Section 75 (2)(g) of the Employees State Insurance Act before the E.S.I. Court. This Court, has considered the aforesaid plea and finds that the case of the petitioner being based essentially on a denial of opportunity where the petitioner, according to the allegations made out has not at all been heard, a forum of appeal may not act as a bar to this writ petition being entertained. Alternative remedy is always a rule of convenience and not one of ouster. The impugned order passed on whatever account is one passed without hearing the petitioner. Thus, in effect the order passed is one in violation of principle of nature justice. That is a reputed exception to the rule of alternative remedy. The plea of alternative remedy is, accordingly, not accepted.
The petitioner is aggrieved by an order dated 30.10.2018 passed by respondent no. 2, assessing the E.S.I. contribution payable by the petitioner with regard to the employees' working in their establishment at a sum of Rs. 71,062/- for the period 26th August, 2015 to June, 2016, and further issuing a recovery certificate dated 06.02.2019. The petitioner also challenges orders dated 15.02.2019 and 26.02.2019, restraining operation of the petitioner's bank account. There is a prayer at the tail end of the relief clause, asking for a mandamus to the second respondent to re-adjudicate the matter after proper inspection of records for the period of assessment. Shortly put, the grievance of the petitioner is that the assessment order dated 30.10.2018 has been passed by respondent no. 2, without affording adequate opportunity of hearing to them.
Sri Rajesh Tiwari disputes the fact that opportunity was not provided to the petitioner and submits that ample opportunity was given to appear and show cause before the second respondent. It is another matter, according to Sri Tiwari, that the petitioner did not avail that opportunity.
This Court has gone through the records and on the issue of affording opportunity, there are conflicting allegations, evidence on both sides, that contradicts the other. In the opinion of this Court, much valuable time would be saved if the aforesaid issue is determined in favour of granting the petitioner one wholesome opportunity to show cause in the matter that would enable the second respondent to thoroughly consider the matter on a hearing held, with the petitioner participating.
Admit.
Sri Rajesh Tiwari waives service of notice of hearing and his right to file a return in the matter. Accordingly, this writ petition is being heard and disposed of forthwith.
Considering the entire facts and circumstances on record and the fact that the petitioner emphatically pleads that they have not been heard, this Court thinks that ends of justice would be served if the petitioner is ordered to appear before respondent no. 2 on 15.05.2019 and represent their case with a written reply, and whatever evidence the petitioner wishes to lead in support of that case. It will be open to the second respondent to hear the matter on the said date or on some other date, according to respondent-authority's convenience. The respondent-authority will proceed to decide the matter relating to assessment of employers/employees contribution, as also the liability of the petitioner to be assessable, as that too is disputed by the petitioner, within a period of two months from the first date fixed before the Authority, that is to say, 15.05.2019. The second respondent will pass orders, in the first place, pronouncing upon the petitioner being amenable to the E.S.I. Scheme, and in the event they are so found amenable, the quantification of that liability for the relevant period.
It is further provided that the aforesaid right to appear and show cause before the second respondent shall be subject to the petitioner furnishing before the second respondent, on or before the 15th May, 2019, a bank guarantee purchased from a nationalized bank in favour of the E.S.I. Corporation worth Rs. 96,404/- (the basic assessment of E.S.I. contribution + interest determined by the ex parte order dated 30.10.2018). The encashability of the bank guarantee will depend upon the event before second respondent, or in further appeal, if any, by the petitioner and whatever orders may be passed by the appellate or higher fora regarding the manner in which the bank guarantee is to be dealt.
In view of what has been held above, this writ petition is allowed. The impugned orders dated 30.10.2018 passed by the respondent no. 2 and the consequential recovery certificate dated 06.02.2019 and further orders dated 15.02.2019/26.02.2019 passed by respondent no. 3 are hereby quashed. The matter is stands remitted to the second respondent to be determined afresh after hearing the petitioner, subject to fulfilment of conditions regarding furnishing of bank guarantee, indicated hereinabove. In the event of default on the petitioner's part, either in appearance on the dates fixed, or in furnishing the bank guarantee as above directed, within the time allowed, the impugned orders shall automatically revive.
Order Date :- 26.4.2019 BKM/-