THE REGIONAL DIRECTOR Vs. DIVYA EXPORTS ENTERPRISES

JUDGEMENT

(1.) AGGRIEVED by judgment dated 16.07.2012 passed by the Employees' Insurance Court, Alappuzha, the respondents therein have come up in appeal.

(2.) THE case of the appellants is that there was a short fall in the payment of contribution for a particular period, amounts to 61,352/ - by the respondent herein. Consequently, they have issued Ext. A4 notice dated 26.09.2007 claiming the said balance contribution. The respondent approached the court below alleging that Ext. A4 as such was not legally sustainable. The E.I. Court, after perusing the documentary evidence produced by either side, has come to the conclusion that Ext. A4 is illegal and unsustainable. Consequently, it was found that all the steps taken by the appellants were legally unsustainable.

(3.) THE learned counsel for the respondent has pointed out that the appellants have made an assessment of contribution in the case merely based on some surmises and conjectures without caring to arrive at the actuals. It is the specific case of the respondent that the Corporation has made the assessment without verifying any of the account books and even without having recourse to the provisions of Section 45(a) of the Employees State Insurance Act, 1948 (hereinafter referred to as "ESI Act"). It has been fairly conceded by the learned counsel for the appellants that there was procedural lapse on the part of the Corporation in making the assessment in the particular case, because of the lapse from the part of some of the employees of the Corporation. It has clearly come out that the Corporation has failed to comply with the mandatory provisions contained in Section 45(a) in making the assessment. Ext. A4 itself is self speaking that any of the account books were not verified. It clearly reveals that no opportunity of being heard was extended to the respondent in the matter. It seems that the first proviso to Section 45(a) has given a go by and an assessment was made merely by considering the returns of some other cashew factories.