Calcutta High Court (Appellete Side)
M/S. Bee Pee Jay Finance Ltd vs Employees State Insurance Corporation on 3 March, 2025
03.03.2025
Item No.201
Ct. No. 30
Aloke
C.O. 3993 of 2024
M/s. Bee Pee Jay Finance Ltd.
Vs
Employees State Insurance Corporation
Mr. Rachit Lakshmani
Mr. Uddipan Banerjee
Mr. Subhrakanti Samanta
... for the petitioner
Mr. Mihir Kundu
... for the ESI Corporation
The present civil revisional application has
been preferred against order no. 30 dated 16th April,
2024 passed by the learned Judge, Employees
Insurance Court, Calcutta in Tender Case No. 24 of
2019.
By the said order under challenge the
Judge, Employees Insurance Court, Calcutta has
been pleased to reject the petitioner's application
under Section 75(2B) of the ESI Act, 1948 but has
been pleased to grant an order of injunction against
the opposite party/Corporation from taking any
coercive action against the applicant/petitioner
herein.
In course of hearing the opposite party-ESI
Corporation has submitted copies of documents in
support of their contention that an order under
Section 45A of the ESI Act has been passed by the
appropriate authority on 18/24 May, 2012. A copy
2
has been placed before the Court along with other
the documents.
Learned counsel for the petitioner submits
that the said order was never served upon the
petitioner. The petitioner became aware of the said
order only when the recovery notice dated
15/24/04/2019
was served upon them. In their
application which was disposed of by the order
challenged herein the petitioner had again raised the
issue that no proceedings under Section 45A of the
ESI Act was either conducted nor was any order
served upon them.
Learned counsel for the ESI Corporation
has filed certain documents in support of his
contention that proper notice in respect of the
proceedings under Section 45A EPF Act was served
upon the petitioner herein who failed to appear for
hearing and the order passed was also duly served.
As such, the order under challenge being in
accordance with law requires no interference.
Exception to the said documents has been filed by
the petitioner herein.
On hearing the parties and considering the
materials on record it appears from the document at
page 54/55 of the application which is an order
dated 26.12.2014 in Tender Case No.73 of 2012 that
it was recorded by the Judge of the ESI Court while
dismissing an application under Section 75(2B) of
3
the Act, that it was premature. The specific finding
of the Court in respect of the application being
premature is as follows :
“Ld. Advocate for the OP/ESI Corporation has
submitted their the present tender case is
premataure one and no cause of action arose. He
pointed out the Section 77 of the ESI Act. “The
cause of action in respect of a claim by the
corporation for recovering contribution (Including
interest and damages) from the principal
employer shall be deemed to have arisen on the
date on which such claim is made by the ESI
Corporation first time.” He candidly admits
that no order U/s 45A of the ESI Act has
been passed by the OP/ESI Corporation. He
therefore urged that the applications filed
by applicant should be rejected.
Considering the facts of the case and having
regard to materials on record I find from the
record tht the OP/ESIC issued a notice in form C-
18 ad hoc basis dated 16/01/12 vide annexure
„A‟ claiming contribution to the tune of
Rs.1,49,078/- and fixing a date of hearing on
15/3/2012. On 15/3/12 the applicant appeared
before the hearing officer and submitted all
relevant documents but the hearing officer
has passed no final order U/s 45A against
the applicant till now.
In view of above made discussions, I am
constrained to hold that the present tender case
is premature as there is no cause of action
and same should be dismissed. No effective
orders is passed in respect of the injunction
petition and the petition U/s 75(2B).
Hence it is
Ordered
4that the present tender case is premature
one and same should be dismissed. At the same
time the notices C-18 ad hoc basis and CRO 164
dated 16/01/2012 are considered and rejected.”
It appears that the said order is
dated 26.12.2014 whereas the order under
Section 45A of the ESI Act is dated
18/24.05.2012. It is thus clear that the
submission made in the tender case no. 73 of
2012 made by the ESI Corporation was not
correct and this supports the case of the
petitioner that neither the proceedings under
Section 45A of the ESI Act was done in
presence of the petitioner nor was the order
under Section 45A of the ESI Act served upon
the petitioner.
The petitioner’s case that he first
came to know about such proceeding only when
the recovery notice was issued in the year 2019
and he challenged the same before the Court by
an application which was disposed of by the
order under challenge is prima facie correct.
In the said order the Court has also
recorded that the applicant has stated that no
order was served by the claimant.
The learned counsel for the ESI
Corporation submits that the order under
Section 45A is appealable under Section 45AA
5
of the Act and the petitioner should approach
the proper forum for relief.
Considering the said admitted facts on
record, this Court finds that the petitioner has
prima facie proved before this Court that the
order under Section 45A of the ESI Act was
never served upon him.
In the order dated 26.12.2014 it
appears that ESI Corporation submitted that no
order under Section 45A of the ESI Act has
been passed whereas it appears that on
14/24.05.2012 an order under Section 45A of
the Act has already been passed.
Considering the said facts the recovery
notice dated 24.03.2019 is also not in
accordance with law being in violation of the
principle of natural justice and is thus set
aside.
The petitioner is granted leave to
prefer an appeal under Section 45AA of the ESI
Act against the order passed under Section 45A
of the ESI Act within 30 days from the date of
this order on deposit of only 25% of the amount
under demand/claimed.
Be it be noted that the said 25% shall be,
only in respect of the total demand made and
the same shall not include any interest, till the
period of 30 days from the date of this order, in
6
view of the fact that the total delay and leches
herein is due to the conduct of the ESI
Corporation.
Considering the directions above, the
Tender Case 24 of 2019 also stands disposed of.
C.O. 3993 of 2024 is accordingly disposed
of.
There will be no order as to costs.
All connected applications, if any, stand
disposed of.
Interim order, if any, stands vacated.
Urgent photostat certified copy of this
order, if applied for, be supplied to the parties upon
compliance with all requisite formalities.
(Shampa Dutt (Paul), J.)
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