D.K.Seth, J. - (1.) By a notice in form 'C' - 10874 the petitioner was intimated that sum of Rs. 9606 is due on account of its contribution for Employees State Insurance Corporation, contribution for the period October, 2000 to December 2000. On receipt of the said notice the petitioner had disputed the amount through its letter dated 23rd April, 2001 and submitted the calculation showing its liability at Rs. 6786/-. Despite receipt of this letter the ESI Corporation issued a notice dated 13th June, 2001 seeking to recover the said amount together with interest. The petitioner had sent another letter on 5th July, 2001 seeking clarification with respect to calculation and requested to stay recovery. On 18th June, 2001 a Recovery proceeding was initiated and the notice contained in annexure P-6 was issued. These have given rise to the cause of action of the petitioner to move this writ petition.
(2.) The learned counsel for the petitioner contend that the petitioner did not submit any return on the initial belief that the petitioner was not liable under the ESI Act, 1948 but after the determination is made he is no more disputing the applicability of this Act in his establishment. Therefore, this is not a case under section 75 clause (a) of the said Act. According to him the case falls squarely under section 45A of the Act which postulates giving of hearing through proviso to sub-section (1). According to him, whenever no Return is submitted, section 45A is attracted. It is also attracted when Inspector's men are prevented from inspection. Therefore, on account of denial of hearing there has been a clear violation of the provision of law as well as principles of natural justice and equity which was sought to be projected by incorporating the proviso to section 45A. In such a case, the alternative remedy under section 75 can not stand as a bar in exercise of writ jurisdiction. The counsel for the petitioner had relied on a decision in Whirlpoor Corporation v. Registrar of Trade Marks (1998) 8 SCCI He has also relied on the decision in Fenner Garments v. Deputy Regional Director, ESIC Madras, of 1994 (2) LLJ 754 (Mad).
(3.) Mr. Subol Kr. Moitra, learned counsel for the respondents, on the other hand, contends that under section 40 the employer is liable to deposit the contribution. If there is any default, in that event, it can be calculated by the authority concerned by sending its Inspector under sub-section (2) of section 45. In such a case, section 45A is not applicable since it is not a question of determination but question of calculation. He further contends that section 45A is attracted when it is a cause of non-submission of Return and prevention of Inspector from inspection. Unless both these grounds are satisfied, section 45A is not attracted. When it is a case of simple calculation, there is no right of hearing, so far as the employer is concerned. Dispute covered under sub-section (a) to (g) of section 75 can be raised before the ESI Court. The remedy is equally efficacious. Therefore, the petitioner can not maintain this writ petition on the ground that no hearing was given, since hearing is not postulated in view of section 39 and section 40 of the said Act which is the liability of the employer since been calculated by the authority. Since there was no determination and power under section 45A was not exercised, therefore, neither the proviso to section 45A or 45E can be attracted.;