M/S PRATIBHA CHINA STATE JOINT VENTURE (A UNIT OF PRATIBHA INDUSTRIES LTD.), THROUGH ITS MANAGER SRI DILIP KUMAR MISHRA, S/O SRI BINDESHWAR MISHRA, R/O MOHALLA Vs. THE STATE OF BIHAR THROUGH THE SECRETARY OF LABOUR DEPARTMENT, BIHAR

JUDGEMENT

(1.) Heard Mr. Deepak Kumar Singh, learned senior counsel assisted by Mr. Rajnish Chandra, learned counsel for the petitioner, Dr. Anshuman, learned counsel for the Employees State Insurance Corporation and Mr. Ajay Kumar Rastogi, learned A.A.G. 10 for the State.

(2.) The petitioner is aggrieved by the order dated 14.07.2016, passed by the respondent no. 2, by which he has been called upon to pay Rs. 99,34,568.00 on the basis of treating it to be the period of default of 59 months i.e., from June, 2011 to April, 2016, on the basis of inspection made and the authorities coming to the finding that there were 314 employees. Learned counsel for the petitioner submitted that they are not the principal employer from whom the authorities under the Employees State Insurance Act, 1948 (hereinafter referred to as the "Act") can order for any recovery and secondly that the employees who may be covered under the said Act, as far as the petitioner is concerned, would be only with effect from Aug., 2015. Learned counsel submitted that they are the contractors for the "principal employer" and thus, are "intermediate employer" and the responsibility to pay rests with the "principal employer" against whom the authorities under the Act can take action for recovery. It was submitted that the petitioner is a construction contractor and the employees are only engaged with regard to actual construction at the construction site and, thus, they cannot be saddled with the demand under the Act for the period prior to Aug., 2015. Learned counsel has taken a categorical stand that he shall pay for the employees at the construction site, who are working under him, with effect from Aug., 2015 when the Act has been made applicable to such employees. Learned counsel further submitted that even the order impugned suffers from violation of the principles of natural justice which would be ex-facie apparent from the fact that the show cause notice dated 30.06.2016 was issued calling upon the petitioner to show cause, within 15 days from the date of receipt of the letter, as to why they should not be prosecuted. Learned counsel submitted that in view of such notice, 15 days time was required to be given from the date of receipt of the show cause notice, and in any view of the matter, even if it is assumed that the said show cause notice was served on the same day i.e., 30.06.2016, the 15 days period would have been over on 15.07.2016 and only thereafter any order could have been passed by the authorities under the Act.

(3.) Learned counsel for the State and the respondents no. 2 and 3 submitted that it is a matter of fact as to whether prior to Aug., 2015, the petitioner had an office establishment employing persons with regard to whom they would be liable under the Act. However, they are not in a position to defend the fact that the show cause notice dated 30.06.2016 granting 15 days time, the impugned order has been passed on the 14th day itself.