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Anondita Health Care v/s Employees State Insurance Corp. & Others

    Civil Misc. Writ Petition No. 68621 of 2015
    Decided On, 22 December 2015
    At, High Court of Judicature at Allahabad
    For the Appellant: Chandra Kumar Rai, Advocate. For the Respondents: Pramod Kumar Pandey, Advocate.

Judgment Text
1. Heard Sri Chandra Kumar Rai, learned counsel for the petitioner and Sri Pramod Kumar Pandey, learned counsel appearing for the respondents. This writ petition has been filed for issuing a writ of certiorari quashing the orders dated 24.9.2015 and 7.11.2015/9.12.2015 passed by the Regional Director (Appellate Authority), Employees State Insurance Corporation, Kanpur and order dated 15/10.4.2014 passed by the Deputy Director/Authorized Officer, Employees State Insurance Corporation, Kanpur.

2. The petitioner happens to be a factory and the respondent No. 3, while exercising the power vested in him under Section 25A of the Employees' State Insurance Act, 1948 (in short, the Act"), determined the amount of contribution of the employees to the tune of Rs. 3,53,990/-. Before determining the amount, a show-cause notice was served upon the petitioner on 16.5.2012. Pursuant thereto, the petitioner filed its reply on 26.6.2012 stating therein that the provisions of the Act were not attracted at the relevant time, but without taking into consideration, the order under Section 45A of the Act was passed by the respondent No. 3 on 15/10.4.2014.

3. Aggrieved by the aforesaid order, the petitioner herein filed an appeal after completing the formality of deposit of 25% amount as required under Section 45AA of the Act before the respondent No. 2. The appellate authority entertained the appeal by passing a detailed order with the direction to the petitioner (employer) to produce all relevant records, i.e., wages register, ledger, cash book, profit and loss account, etc. before the Social Security Officer (in short, 'SSO") and the SSO was required to submit a report, who in turn, after examining the record, has submitted the report on 14.11.2014 recording that the Act would be applicable with effect from 1.5.2011 and not prior to that. The appellate authority thereafter passed the impugned order dated 24.9.2015 without taking into considerating the report.

4. The petitioner herein thereafter filed an application seeking recall of the order dated 24.9.2015 on the ground that while passing the order, the report of the SSO, which was submitted pursuant to the order of the appellate authority, has not been considered. The recall application of the petitioner has also been rejected without addressing on the point of the report submitted by the SSO.

5. In the submissions of learned counsel for the petitioner, this kind of order will fall in the ambit of ah order which suffers from breach of principle of natural justice.

6. Learned counsel for the respondents submits that the petitioner has remedy under Section 75(1)(g) of the Act against the impugned order of appellate authority dated 24.9.2015 and the petitioner may avail the same.

7. On being confronted as to whether either while passing the order dated 24.9.2015 or 7.11.2015/9.12.2015 on the recall application, the respondent No. 2 has taken into consideration the report submitted by the SSO pursuant to the order of the appellate authority itself, learned counsel for the respondents from the perusal of the record could not show that the report filed by the SSO has been taken into consideration while passing the impugned orders.

8. In my opinion, once the appellate authority had given an opportunity to the petitioner to produce the wages register, ledger, cash book, profit and loss account, etc. before the SSO, Mathura and that has been submitted and in turn, the report was submitted by the SSO, Mathura, after scrutinizing the same, then in that eventuality it was a necessary material piece which ought to have been considered before passing the final order in the appeal or even when the order was passed on recall application, therefore, it amounts to denial of proper opportunity of hearing.

9. The Apex Court in the case of D.K. Yadav v. J.M.A. Industries Ltd., , 1993 SCC 259, has made the following observations:

"The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person."

10. In State of Orissa v. (Miss) Birapani Dei, , AIR 1967 SC 1269, Hon'ble Apex Court has held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice.

11. In Maneka Gandhi v. Union of India, , (1978) 1 SCC 248: (1978) 2 SCR 621, a Bench of seven judges of the Apex Court has held that the substantive and procedural laws and action taken under them will have to pass the test under article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the Junction to be performed by the authority which has the power to take punitive or damaging action Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice.

12. This view has consistently been followed by the Hon'ble Apex Court in number of cases namely, Whirlpool Corporation v. Registrar of Trade Marks, , 1998 (8) SCC 1, Canara Bank v. V.K. Awasthy, , 2005 (6) SCC 321, Bidhannagar (Salt Lake) Welfare Ass. v. Central Valuation Broad and others, , (2007) 6 SCC 668 and Devdutt v. Union of India and others, 2008(3) ESC 433 (SC) as well as this Court in Suresh Singh v. Board of Revenue and others, , 2014(5) ADJ 697.

13. In view of the fact that the impugned order has been passed in breach of principles of natural justice, taking note of the decision of the Hon'ble Apex Court in the case of Whirlpool Corporation. Registrar of Trade Marks, , 1998 (8) SCC 1, wherein it has been held that in case an order has been passed without jurisdiction or the same has been passed in breach of principles of natural justice, the writ petition should not be thrown on the ground of alternative remedy, I overrule the objection of learned counsel for the respondents to relegate the petitioner to avail the remedy as provided under Section 75(1)(g) of the Act and entertain the writ petition.

14. In view of the foregoing discussions, as would appear from the record and the observations made herein above, the order dated 24.9.2015 pas

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sed by the Regional Director (Appellate Authority), Employees State Insurance Corporation, Kanpur suffers from non-consideration of the relevant report submitted by the SSO, therefore, it amounts to denial of proper opportunity of hearing and it cannot be sustained in the eye of law. 15. In the result, the writ petition succeeds and is allowed. The impugned order dated 24.9.2015 passed by the Regional Director (Appellate Authority), Employees State Insurance Corporation, Kanpur is hereby quashed. The appellate authority is directed to pass a fresh order in accordance with law after considering the report of the SSO expeditiously after hearing all concerned. It may be clarified that I have not addressed myself on the merit of the matter and it is in the sole domain of the appellate authority to pass an independent order in accordance with law.