- (1.) THIS appeal is preferred by the Employees' State Insurance Corporation, Jaipur through its Regional Director against judgment dated April 27, 2000 passed by the learned single Judge of the Court in S. B. Civil Misc. Appeal No 159/2000. The said appeal was filed by the Corporation to declare the judgment and decree passed by the E. I. Court as illegal and to quash the same.
(2.) THE E. I. Court has held that the respondent is not a 'factory' as defined under Section 2 (12) of the Act of 1948 for the reason that ten or more employees were not in the employment of it as required by Sub-section (12) of Section 2 of the Act of 1948 for holding an establishment as a factory. This Court has also held that there was violation of the provisions of Section 45-A of the Act as no opportunity of hearing was given to the respondent-employer. It is the case of the appellant (herein) that sufficient opportunity was afforded to the employer, and, that Section 45-A has no application in the present controversy as it comes in operation where the employer does not cooperate with the E. S. I. Inspector by not providing necessary registers etc. Section 45-A reads thus: "45-A Determination of contributions in certain cases: (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of Section 44 or any Inspector or other official of the Corporation referred to in Sub-section (2) of Section 45 is prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment. Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in-charge of the factory or establishment has been given a reasonable opportunity of being heard. 2. An order made by the Corporation under Sub-section (1) shall be sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as an arrear of land revenue under Section 45-B (or the recovery under Section 45-C to Section 45-I)"
(3.) IT was argued before the learned single Judge that from a perusal of Section 45-A of the Act, the Corporation may, on the basis of the information available to it, determine the amount of contribution and that, for taking such an action, no opportunity need be given to the employer. It is further submitted that the Inspector of the Corporation inspected the establishment of the employer who placed the vouchers on record before the Inspector and, on the basis of those documents, the proceedings were initiated against the employer and, therefore, it is deemed that the employer co-operated with the Inspector and as such there was no necessity for proceeding according to the proviso to Section 45-A (1) of the Act of 1948.;