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M/s Sri Ganapathy Motor Service v. Employees State Insurance Corporation - C.M.A. NO.117 of 1996  RD-TN 26 (29 January 2004)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR. JUSTICE P.SATHASIVAM
THE HON'BLE MR. JUSTICE S.R.SINGHARAVELU
C.M.A. NO.117 of 1996
M/s Sri Ganapathy Motor Service
2-A High Road, Tirunelveli represented
by Managing Partner Kuppuswamy.
Employees State Insurance Corporation
represented by the Joint Regional
Appeal filed under Section 82 of the Employees' State Insurance Act, 1948 against the order of the Employees' State Insurance Court( District Judge) Tirunelveli dated 7.3.1995 made in ESIOP No.9/91. For appellant .. Mr. R.Yashodvaradhan
For respondent .. Ms. Radha Srinivasan
( Judgment of the Court was delivered by P.SATHASIVAM,J.,) M/s Sri Ganapathy Motor Service, Tirunelveli is the appellant in the above appeal. The appellant herein, aggrieved by the proceedings dated 9.7.1991 issued under Section 75(1) and 77 of the Employees' State Insurance Act, 1948, has filed ESIOP No.9/91 before the Employees' State Insurance Court ( District Judge) Tirunelveli on various grounds. Before the Court below, two documents viz., Ex. P.1 and P.2 were marked on the side of the petitioner and the ESI Corporation has also produced and marked Exs. R1 and R2. The Court below on consideration of the materials, after finding that there is no merit in the claim made by the petitioner, dismissed the said ESIOP. Hence, the present appeal.
2. Heard the learned counsel for the appellant as well as the respondent.
3. Though several contentions have been raised with reference to the merits of the order under challenge, among those contentions, the first and foremost contention is that the petitioner was not given show cause notice a per proviso to Sub-section 1 of Section 45A of the Employees' State Insurance Act, 1948. It is the contention of the appellant that in the absence of show cause notice, giving opportunity of being heard, instead of going into the merits of the order, the same is liable to be set aside on the ground of non-compliance of the said provision. In support of the above contention, the learned counsel for the appellant also relied on a Division Bench decision of this Court reported in FENNER GARMETS VS DEPUTY REGIONAL DIRECTOR, ESI CORPORATION, MADRAS (1994 (II) LLN 171). There is no dispute that before determining the contribution in terms of the provisions of the Employees' State Insurance Act, before passing any order, it is incumbent on the part of the Corporation to provide reasonable opportunity of being heard to the Principal or immediate employer or the person in charge of the factory or establishment. This is clear from the proviso to Sub-Section 1 of Section 45A of the Act. While considering the very same provision,a Division Bench of this Court in FENNER GARMETS VS DEPUTY REGIONAL DIRECTOR, ESI CORPORATION, MADRAS (1994 (II) LLN 171 ), has held that demand notice on the basis of Inspector's report without issuance of show cause notice and giving reasonable opportunity of being heard, cannot be sustained. The said decision is directly on the point with reference to the proviso referred to above and the same is applicable to the case on hand. As stated earlier, there is no dispute that the appellant herein and the petitioner therein was not given an opportunity before issuance of the proceedings dated 9.7.1 991. On this ground, without going into the merits of the claim made by both parties, the order passed by the Employees' State Insurance Court (District Judge) Tirunelveli dated 7.3.1995 made in ESIOP No.9/9 1 is set aside. However, liberty is given to the respondent/ Employees' State Insurance Corporation to proceed further if they so desire, by compliance of the mandatory provision referred above. Accordingly, the appeal is allowed to the extent indicated above. No costs.
1. The Joint Regional Director
Employees' State Insurance Corporation
1-B, Post Office Road
2. The Sub Assistant Registrar
VR Section, High Court, Madras.
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