AJOY NATH RAY, ASHOK BHUSHAN, J. - (1.) We are in respectful agreement with the reasoning given and the order passed by an Hon'ble single Judge on the March 7, 2006.
(2.) The brief facts are that on or about January 6, of this year, an assessment order was passed under Section 45-A of the E.S.I. Act, 1948. The amount of contribution was a little above Rs. 801 lacs. The amount of interest at the rate of 12% under Section 39, sub-section 5(a) came to a little under Rs. 50 lacs and as such the total amount was about Rs. 1.31 crores. The assessment was not in respect of ordinary employer's contribution but was made notionally on labour value of 25% in respect of certain repair and other works done on the writ petitioner's factory machinery. On the February 6, 2006 a notice was served upon the respondent-writ petitioner for payment of the total amount. The notice mentioned a period of 15 days as the period allowed for payment. On February 21, 2006 the account of the writ petitioner in an H.D.F.C. Bank was attached and a banker's cheque was obtained for an amount, which was a little above Rs. 1.1 crore. The balance amount to make up for the deficit of Rs. 1.31 crores was taken away on February 22, 2006. The Hon'ble single Judge has ruled that the taking of action on February 21, 2006 was not authorised by law as 15 days from the date of service of notice had not elapsed by then.
(3.) We are of the opinion that the mere mention of 15 days in the notice, which was served on February 6, 2006 did not by itself cast any legal obligation on the appellant to withhold action for 15 days. The mandatory requirement for allowing 15 days to elapse arises on a joint reading of Section 45-H of the E.S.I. Act which makes, inter alia, the provisions of the second schedule of the I.T. Act, 1961 applicable, and the clauses in Part-I of the said Schedule-II. Under Clause-2 of Part-I notice is to be issued by the Tax Recovery Officer specifying requirement of payment within 15 days, and Clause-3 states that "No step in execution of a certificate shall be taken until the period of 15 days has elapsed since the date of the service of the notice required by the preceding rule.";