D.K.Seth, J. - (1.) Mr. Tarun Agrawal, learned Advocate has while supporting the writ petition assailed the impugned order contained in Annexure 5 to the writ petition on the ground that the same is not an assessment order under Section 45-A of the Employees' State Insurance Act, 1948 (hereinafter referred to as the 'Act'). Even if for argument sake the impugned order is said to be an assessment order in that event it was passed in contradiction to the proviso to Section 45-A namely without any opportunity of being heard, therefore, the same is invalid. He contends further that no demand could be made in respect of a period of five years prior to the date of the claim as provided in the proviso to Sub-section (1-A) of Section 77 of the Act, therefore, in the present case the claim having been made in the year 1986 for the period between 1971 to 1983 could not be sustained so far as period prior to 1981 which is beyond five years of 1986. His other contention is that respondents did not take into consideration the reply given by him on the basis of show cause notice which is Annexure 1 to the writ petition issued to them on September 18, 1986, therefore, the impugned order suffers from infirmity and perversity. According to him unless a valid assessment under Section 45-A is made, no procedure for recovery could be initiated under Section 45-B. He contends further that the dues which are claimed have already been paid up by the petitioner which is apparent from the relevant record produced by him showing deposit of those amounts.
(2.) Mr. P.K. Asthana holding brief of Mr. B.N. Asthana, learned standing counsel appearing on behalf of Employees' State Insurance Corporation, contends that the claim was made long before in the inquiry report of different dates the particulars of which have been disclosed in para 9 of the counter affidavit and, therefore, the question of limitation of five years as provided in proviso to Sub-section (1-A) of Section 77 cannot be attracted in as much as the claims were made immediately with regard to the respective periods after respective inspections were carried on and the reports were submitted which find mention in para 9 of the counter affidavit. According to him regarding the claim in dispute the petitioner had initiated a proceeding being case No. 23 of 1976 which was decided finally in the first appeal from order against the petitioner whereas he has also filed Civil Misc. Writ Petition No. 5200 of 1974 which was ultimately dismissed on November 10, 1981, therefore, the claim was made before mischief period of five years as mentioned in Sub-section (1-A) of Section 77 of the Act. Therefore, according to him the said contention of Mr. Agrawal cannot be sustained. Mr. Asthana further contends that the assessment order is contained in Annexure 3 which is dated November 13, 1986 which order was passed after considering the petitioner's reply pursuant to the notice dated September 18, 1986 as contained in Annexure 1 to the writ petition. The order dated April 2, 1987 as contained in Annexure 6 was being initiated of recovery proceedings under Section 45-B after serving a notice dated March 31, 1987 whereby it was pointed out that despite asking the petitioner to deposit the amount he did not deposit the said amount. It appears from Annexure 5 which is dated April 27, 1987 that the petitioner had been asking for further time for tracing out the documents and records because the matter related to old period and therefore, the recovery should be postponed. This also goes to show that dues were claimed earlier. According to Mr. Asthana there is an order dated November 13, 1986 which is the order of assessment and, therefore, the petitioner cannot contend that there is no order of assessment. The question of hearing according to him was dependent on the facts and circumstances of the case whether the petitioner had submitted his reply as alleged by him but no reply is being shown to have been submitted by the petitioner before November 13, 1986 which is apparent from the reply as contained in Annexure 2 dated October 8, 1987. But Mr. Agrawal submits that it was a typing mistake, it must be October 8, 1986 as it appears that through the said letter the petitioner asked for time and furnishing full details to enable to reply them properly. The other reply which was given by the petitioner is dated April 27, 1987 whereby he had again asked for time. Therefore, there was no reply which is effective for being considered and as such there cannot be any infirmity in the order dated November 13, 1986 for the alleged non-consideration of the reply of the petitioner. Since the petitioner had not put up any effective reply, therefore, there is no question of petitioner being heard. The question of hearing arises only when serious contention is raised. He contends further that in view of Section 75 (1) (g) of Act, it was open to the petitioner to raise the dispute before Employees' Insurance Court within three years when the claim was made. The petitioner has wasted his chance because the demands were made from time to time and the matter was proceeded continuously but the petitioner did not raise such dispute within the time specified and as such it is not open to him to have a relief which he is otherwise precluded from claiming by reason of expressed provision of Section 45-A of the Act. The petitioner has not shown anything as to how the order of assessment is not an assessment and that he has submitted his reply and that he has not been afforded any opportunity of being heard.
(3.) I have heard both Mr. Tarun Agrawal and Mr. Asthana at length. From the perusal of records of proceedings before this Court to which my attention has been drawn, by Mr. Agrawal and Mr. Asthana respectively, it appears that a proposal for assessment was issued through notice contained in Annexure-1 on September 18, 1986 asking the petitioner to show cause why the proposed assessment should not be made. As contended by Mr. Agrawal through letter dated October 8, 1986 which is Annexure 2, the petitioner had asked for time for furnishing full details but by no stretch of imagination it can be said to be an effective reply to the notice contained in Annexure 1. The entire records are available to the petitioner himself as to what was the deduction or contribution the petitioner has made from the employees and furnished to the Employees' State Insurance Corporation and from such record it was open to the petitioner to show that what was the amount paid and what amount was liable to be paid from the records maintained by it instead of asking for further information from the Corporation. The information which was asked for was supposed to be maintained by the petitioner himself. It can even be pointed out from his record that this was the number of employees working and this was the period during which the quantum of employer's contribution and employees' contribution have been effected and the dues have been deposited.;