PRANAB HAZARIKA Vs. EMPLOYEE STATE INSURANCE CORPN

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner has prayed for a writ of Certiorari quashing the demand of contribution under the Employees' State Insurance Act 1948, (for short, 'the Act, 1948) made against the petitioner and for setting aside the Bakijai proceeding in Bakijai Case No. 11/91 drawn up against him for recovery of the said contribution amounting to Rs. 9,088.00.

(2.) The facts briefly are that the petitioner runs a hotel under the name and style 'Hotel Hill View' located at Jugal Bazar, Ganeshguri, Guwahati. The said Hotel is registered under the Shop & Establishment Act, and the Rules made thereunder. The case of the petitioner is that he has only 9 employees in the said Hotel and therefore the aforesaid establishment of the petitioner is not required to be registered under the Act, 1948; but the petitioner recieved a show cause notice dated 4.11.96 from the Regional Office : North Eastern Region. Employees' State Insurance Corporation, Guwahati, asking him to show cause as to why assessment should not be made determining the ESI contribution at Rs. 8,894.00 as payable by him under the Act, 1948 in respect of 14 employees said to be working under the said establishment of the petitioner. The pititioner in his show cause reply dated 27.11.96 stated that he had only 9 employees and that he had no could storage and L.P.G. for cooking, and that the establishment was not covered by the Act, 1948. Notwithstanding his aforesaid show cause reply, the Regional Director, North Eastern Region Employees' State Insurance Corporation, sent an application under Section 5 of the Revenue Recovery Act, 1890, to the Collector, Dist'rict-Kamrup (Assam), Guwahati, for recovery of the aforesaid contribution of Rs. 8,894,00 plus interest @ 12% per day from 1,11.95 from the petitioner under Section 45-B of the Act, 1948. and pursuant to the said application, the Bakijai & Certificate Officer, Guwahati, has issued a certificate of Public Demand for recovery of Rs. 9,088.00 from the petitioner in Bakijai Case No. 11/97.

(3.) Mr. K.K. Mahanta, learned counsel appearing for the petitioner, referred to the copies of the certificate of Registration granted to the petitioner under the Shops and Establishment Act, 1971, which have been annexed to the writ petition as Annexure - 'A' & 'B', and submitted that the said Certiifcates would show that the establishment of the petitioner had only 9 employees. He further contended that the language of Section 2(12) of the Act, 1948, would show that the expression 'factory' means any premises whereon ten or more persons are employed or were employed for wages on any date of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on. According to Mr. Mahanta, since only 9 persons are employed in the establishment of the petitioner, it is not a 'factory' within the meaning of Section 2(12) of the Act, 1948, and, therefore, the establishment of the petitioner is not covered under the said Act, 1948. Mr. Mahanta further contended that the proviso to Section 45-A of- the Act, 1948, made it clear that before the Corporation passes an order determining the ESI contribution payable in respect of the employees of a factory or establishment, the principal or immediate employer or the person in charge of the factory or establishment has to be given a reasonable opportunity of being heard. In the present case, no such opportunity has been given to the petitioner before initiating the proceeding for recovery of contribution of Rs. 8,894/-. Mr. Mahanta further contended that in fact the petitioner has not been served with any order determining the amount of contribution under Section 45-A of the Act, 1948.