WRIT PETITION NO. 2194 OF 2016

6th March 2019

Petitioner Counsel: Mr. T.D. Mandlekar
Respondent Counsel: Mrs. B.P. Maldhure
Act Name: Mines Act, 1952 Right to Information Act, 2005 Employees' State Insurance Act, 1948 Constitution of India, 1950

Section :
Section 1(6) Employees' State Insurance Act, 1948 Section 2(12) Employees' State Insurance Act, 1948 Section 2A Employees' State Insurance Act, 1948 Section 45A Employees' State Insurance Act, 1948 Section 45B Employees' State Insurance Act, 1948 Section 45AA Employees' State Insurance Act, 1948 Section 45A(1) Employees' State Insurance Act, 1948 Section 45C Employees' State Insurance Act, 1948 Section 45I Employees' State Insurance Act, 1948 Section 75 Employees' State Insurance Act, 1948 Section 75(2)(a) Employees' State Insurance Act, 1948 Section 76 Employees' State Insurance Act, 1948 Section 77 Employees' State Insurance Act, 1948 Section 77(1A)(b) Employees' State Insurance Act, 1948

Cases Cited :
Paras 7, 14, 16, 18: ESI Corpn. Vs. C.C.Santhakumar, (2007) 1 SCC 584
Para 7: State of Uttar Pradesh Vs. Singhara Singh and others, (1964) 4 SCR 485
Para 7: M/s. Hotel New Nalanda Vs. Regional Director, E.S.I.Corporation, (2009) 14 SCC 558

JUDGEMENT

1. Heard.

2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.

3. The petitioner, a proprietary concern, is aggrieved by orders passed by the respondent-Authorities under the provisions of the Employees' State Insurance Act, 1948 (hereinafter referred to as “ESI Act”), whereby the establishment run by the petitioner has been covered under the provisions of the ESI Act and the petitioner has been called upon to deposit contributions under the ESI Act. The petitioner is engaged in the business of preparing and selling sweets and snacks in the City of Nagpur. On 02/06/2009 an Inspector of the respondent-Authoritiy under the ESI Act conducted an inspection and prepared an inspection report, recording that eleven employees were working in the petitioner concern. On this basis, on 29/06/2009 the Assistant Director of the respondent-Authoritiy sent a letter to the petitioner, requesting it to furnish details in the enclosed form as regards the employees working with the petitioner. It was stated that if the information was not provided, the respondent-Authorities would be under an apprehension that the petitioner was coverable under section 2(12) of the ESI Act. On 27/07/2009, the petitioner submitted its reply to the said letter and stated that there were only five persons working in the petitioner concern. On 19/05/2010, the respondent-Authorities sent a notice to the petitioner to produce all records relating to the proprietary concern and thereafter on 14/12/2010 the respondent-Authorities sent a communication to the petitioner on the subject of implementation of the ESI Act and registration of employees of the establishment of the petitioner under section 2(12) of the ESI Act. In the said communication, reference was made to the inspection carried out on 02/06/2009 and code number was allotted to the petitioner concern.

4. The respondent-Authorities carried out another visit and inspection on 05/01/2012, wherein it was recorded that there were three persons found to be working with the petitioner concern and on 12/01/2012, a show cause notice was issued by respondent No.1 to the petitioner, calling upon the petitioner as to why it should not be prosecuted under the provisions of the ESI Act. Another inspection report dated 02/02/2012 recorded that there were seven persons found working in the petitionerconcern. On 10/06/2015, respondent No.1 sent a letter to the petitioner stating that contributions were payable from it under the ESI Act and that specific amounts were recoverable from the petitioner. The petitioner was informed that it was being granted an opportunity to show cause against the determination of recovery of amounts specified in the said communication. On 09/07/2015, the petitioner sent a reply to the said communication and denied any liability under the provisions of the ESI Act. According to the petitioner, it was able to procure certain documents under the Right to Information Act, 2005, showing that the internal communications of the respondent-Authorities had recorded that show cause notice issued against the petitioner had been rendered time barred. Yet on 18/01/2016, impugned order was passed by respondent No.1 under section 45A of the ESI Act, demanding contribution from the petitioner for the period from December, 2010 to March, 2015, failing which recovery would be made under sections 45C to 45I of the ESI Act.

5. The petitioner filed the present writ petition on 09/03/2016, challenging the said orders dated 14/12/2010, whereby registration code was alloted to the petitioner and order dated 18/01/2016 passed under section 45A of the ESI Act.

6. Mr. T. Mandlekar, learned counsel appearing for the petitioner, contended that the impugned orders were wholly unsustainable because the inspection reports on record demonstrated that the respondent-Authorities never had any material on record to show that the petitioner had ever employed more than ten employees in its establishment. It was contended that the inspection report dated 02/06/2009 mentioned names of only six employees and the others were not even named. In the subsequent inspection reports dated 05/01/2012 and 02/02/2012, the inspectors of the respondent-Authorities themselves had recorded that there were three and seven employees respectively found on the dates of inspection. On this basis, it was submitted that there was no reason why the respondent-Authorities were insisting upon coverage of the petitioner establishment under the provisions of the ESI Act. It was further submitted that even the first communication dated 14/12/2010, whereby the respondent-Authorities sought to allot registration code number and to cover the petitioner under the ESI Act, referred to inspection conducted on 02/06/2009. It was submitted that the limitation for recovering amounts under the ESI Act, under proviso to section 45A(1) of the ESI Act was a period of five years from the said date i.e. 02/06/2009. It was further submitted that even if the date 14/10/2012 was taken as the date on which the limitation period was triggered, the entire action of determination of contribution under section 45A of the ESI Act by impugned order dated 18/01/2016 was time barred. It was further submitted that the show cause notice dated 12/01/2012 issued by respondent No.1 was also bad-in-law and wholly unsustainable. The learned counsel submitted that the respondent-Authorities were required to strictly comply with the provisions of the ESI Act while seeking to take action against the petitioner and that the manner in which the respondent-Authorities had acted in the present case, was in violation of the settled principle recognized by the Hon'ble Supreme Court to the effect that when the statute confers power to act in a particular manner, the Authorities can act only in that manner and in no other manner.

7. It was further submitted that the inspection report in the present case did not contain details of the employees, therefore, the whole basis of the actions undertaken by the respondent-Authorities was unsustainable. The learned counsel relied upon certain guidelines sent by respondent No.1 and other Senior Authorities to the Regional Directors of the Employees' State Insurance Corporation as regards requirement of determining contributions by passing orders under section 45A of the ESI Act at the earliest so that the orders were not rendered time barred under proviso to section 45A(1) of the ESI Act. The learned counsel also placed reliance on the internal communications exchanged between the respondent-Authorities, wherein it was recorded that the period of show cause notice had become time barred. On this basis, it was submitted that the entire action of the respondents culminating in impugned order dated 18/01/2016, was without jurisdiction and that therefore the present writ petition was maintainable and that the impugned orders were required to be quashed and set aside. The learned counsel placed reliance on the judgments of the Hon'ble Supreme Court in the case of ESI Corpn. v. C.C.Santhakumar, (2007) 1 SCC 584, State of Uttar Pradesh v. Singhara Singh and others, (1964) 4 SCR 485 and M/s. Hotel New Nalanda v. Regional Director, E.S.I.Corporation, (2009) 14 SCC 558.

8. On the other hand, Mrs. B.P. Maldhure, learned counsel appearing for the respondents, submitted that the contentions raised on behalf of the petitioner were misplaced and unsustainable. It was submitted that the petitioner was not entitled to claim relief on the ground of names of only six out of eleven employees were mentioned in the inspection report dated 02/06/2009, because the details of the employees were within the knowledge of the petitioner and he could not take benefit of concealing such details from the respondent-Authorities. It was further submitted that even if the number of employees in subsequent inspection reports had dipped below ten, it would still not absolve the petitioner establishment, because under section 1(6) of the ESI Act, an establishment to which the said Act had applied would continue to be governed by the same, notwithstanding that the number of persons employed therein at any time fell below the limit specified under the Act. It was submitted that the petitioner was not justified in placing reliance on internal communications of the respondent-Authorities because the opinion of one of the officers that the action against the petitioner establishment was time barred, was overruled by the Higher Officer and order dated 18/01/2016 under section 45A of the ESI Act was issued against the petitioner. It was submitted that the petitioner was not entitled to challenge orders dated 14/12/2010 and 18/01/2016 passed by the respondents under the provisions of the ESI Act by filing the present writ petition, because alternative remedy was clearly available to the petitioner under the provisions of the very same Act. It was further submitted that the prayer in the writ petition for declaring that the petitioner had not employed requisite number of employees for being covered under the ESI Act, involved disputed questions of facts, which could not be gone into by this Court exercising writ jurisdiction.

9. As regards the contention of the petitioner that the impugned orders passed by the respondent-Authorities were without jurisdiction, on the basis of the second proviso to section 45A(1) of the ESI Act, it was submitted by the learned counsel appearing for the respondents that the petitioner was misreading the true import of the said proviso. It was pointed out that by application of the said proviso, all that the Corporation was mandated was to demand contribution determined under section 45A of the ESI Act, only for the period of five years from the date on which the contribution became payable. According to the learned counsel, applying the said proviso to the facts of the present case, at worst against the respondent-Authorities, they could recover contributions for a period limited to five years from 14/12/2010, when the ESI Act was applied to the petitioner establishment and code number was alloted. It was submitted that the impugned orders issued by the respondent could not be said to be without jurisdiction at all. In this context, the learned counsel also referred to sections 45AA, 75, 76 and 77 of the ESI Act to claim that there were alternative remedies available to the petitioner and that therefore, the present writ petition was not maintainable. The learned counsel also referred to section 2A of the ESI Act and Regulations 10B and 11 of the Regulations framed under the said Act to demonstrate that the action undertaken by the respondents for allotting registration code number to the petitioner establishment and passing order under section 45A of the ESI Act were clearly supported by the scheme envisaged under the ESI Act. On this basis, it was submitted that the writ petition deserved to be dismissed.

10. Heard learned counsel for the parties and perused the record. In order to examine the contentions raised on behalf of rival parties, it would be necessary to refer to the relevant provisions of the ESI Act, which read as follows :-

“1. Short title, extent, commencement and application.–
(6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.
2. Definitions.–
In this Act, unless there is anything repugnant in the subject or context,–
(12) “factory” means any premises including the precincts thereof whereon ten or more persons are employed or were employed on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a railway running shed;
[2-A. Registration of factories and establishments.—
Every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf.]
[45-A. Determination of contributions in certain cases.—
(1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of section 44 or any 4 [Social Security Officer] or other official of the Corporation referred to in sub-section (2) of section 45 is [prevented in any manner] by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment.]
[Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard.]
[Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contribution shall become payable.]
(2) An order made by the Corporation under sub-section (1) shall be sufficient proof of the claim of the Corporation under section 75 or for recovery of the amount determined by such order as an arrear of land revenue under section 45-B [or the recovery under section 45-C to section 45-I]
[45-AA. Appellate Authority.—
If an employer is not satisfied with the order referred to in section 45-A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent. of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the Corporation :
Provided that if the employer finally succeeds in the appeal, the Corporation shall refund such deposit to the employer together with such interest as may be specified in the regulation.]
75. Matters to be decided by Employees' Insurance Court
(1) If any question or dispute arises as to–
(a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee’s contribution, or
(b) the rate of wages or average daily wages of an employee for the purposes of this Act, or
(c) the rate of contribution payable by a principal employer in respect of any employee, or
(d) the person who is or was the principal employer in respect of any employee, or
(e) the right of any person to any benefit and as to the amount and duration thereof, or
[(ee) any direction issued by the Corporation under section 55A on a review of any payment of dependents’ benefits, or]
[(f) [x x x]
(g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, [or any other matter required to be or which may be decided by the Employees’ Insurance Court under this Act],
such question or dispute [subject to the provisions of sub-section (2A)], shall be decided by the Employees’ Insurance Court in accordance with the provisions of this Act.
(2) [Subject to the provisions of sub-section (2A), the following claims] shall be decided by the Employees’ Insurance Court, namely : –
(a) claim for the recovery of contribution from the principal employer;
(b) claim by a principal employer to recover contributions from any immediate employer;
(c) [x x x]
(d) claim against a principal employer under section 68;
(e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and
(f) any claim for the recovery of any benefit admissible under this Act.
[(2A) If in any proceedings before the Employees’ Insurance Court a disablement question arises and the decision of a Medical Board or a Medical Appeal Tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees’ Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the Medical Board or the Medical Appeal Tribunal, as the case may be, except where an appeal has been filed before the Employees’ Insurance Court under sub-section (2) of section 54A in which case the Employees’ Insurance Court may itself determine all the issues arising before it.]
[(2-B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees’ Insurance Court unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation:
Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.]
(3) No civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by [a Medical Board, or by a Medical Appeal Tribunal or by the Employees’ Insurance Court].
77. Commencement of proceedings
(1) The proceedings before an Employees’ Insurance Court shall be commenced by application.
[(1A) Every such application shall be made within a period of three years from the date on which the cause of action arose.
Explanation.—
For the purpose of this sub-section,—
(a) the cause of action in respect of a claim for benefit shall not be deemed to arise unless the insured person or in the case of dependents’ benefit, the dependents of the insured person claims or claim that benefit in accordance with the regulations made in that behalf within a period of twelve months after the claim became due or within such further period as the Employees’ Insurance Court may allow on grounds which appear to it to be reasonable ;
[(b) the cause of action in respect of a claim by the Corporation for recovering contributions (including interest and damages) from the principal employer shall be deemed to have arisen on the date on which such claim is made by the Corporation for the first time:
Provided that no claim shall be made by the Corporation after five years of the period to which the claim relates;
(c) the cause of action in respect of a claim by the principal employer for recovering contributions from an immediate employer shall not be deemed to arise till the date by which the evidence of contributions having been paid is due to be received by the Corporation under the regulations].
(2) Every such application shall be in such form and shall contain such particulars and shall be accompanied by such fee, if any, as may be prescribed by rules made by the State Government in consultation with the Corporation.”

11. The contention raised on behalf of the petitioner is that when the respondents had themselves made provisions of the said Act applicable to the petitioner establishment by order dated 14/12/2010 with effect from 02/06/2009, the impugned order dated 18/01/2016 passed under section 45A of the ESI Act determining the contribution payable by the petitioner, was barred by limitation contained in second proviso to section 45A(1) of the said Act. In this context, the learned counsel for the petitioner also relied upon proviso to section 77(1A) (b) of the ESI Act. It was contended that when the respondent-Authorities themselves made provisions of the ESI Act applicable to the petitioner establishment from 02/06/2009 or 14/12/2010, the impugned order dated 18/01/2016 passed by respondent No.1-Authority was beyond the period of five years from both the dates i.e. 02/06/2009 and 14/12/2010 and that therefore, it was barred under second proviso to section 45A(1) and proviso to section 77 (1A)(b) of the ESI Act. It was contended that if the order determining contribution under section 45A of the ESI Act had been passed within a period of five years from the said dates, the action of respondent No.2-Authority could have been sustainable. In the face of the fact that the impugned order was beyond the period of five years from the said dates, the said order was rendered without jurisdiction. In this context, it was submitted that the prayers made in the writ petition were sustainable and that it was required to be declared by this Court that the petitioner establishment could not be covered under the provisions of the ESI Act.

12. A perusal of the second proviso to section 45A(1) of the ESI Act shows that the Corporation would be disabled from passing an order under section 45A of the ESI Act in respect of period beyond five years from the date on which the contribution shall become payable. In this proviso, the date on which contribution becomes payable and the period of five years become crucial. The proviso to section 77(1A)(b) of the ESI Act states that the respondent-Authoritiy would be prohibited from making any claim towards recovering contributions from the employer after five years of the period to which the claim relates. The learned counsel for the respondents has contended that once the petitioner establishment was covered under section 2(12) of the ESI Act, it would continue to be governed by the provisions of the ESI Act, notwithstanding the number of persons employed by the petitioner establishment falling below the limits specified as per section 1(6) of the ESI Act. On this basis, it was contended that the effect of the second proviso to section 45A(1) and proviso to section 77(1A)(b) of the ESI Act was that the respondent-Authorities would be dis-entitled from determining contributions from the petitioner-establishment for a period beyond five years from the date of the impugned order dated 14/12/2010, whereby the petitioner establishment was allotted registration code number.

13. Therefore, it becomes crucial as to whether failure to pass an order for determination of contributions by the petitioner establishment under section 45A of the ESI Act within five years either from 02/06/2009 or from 14/12/2010 would have the result of dis-entitling the respondent-Authorities from claiming that contributions were payable by the petitioner-establishment by application of the ESI Act.

14. In this regard, the learned counsel appearing for the petitioner has placed much emphasis on judgment of the Hon'ble Supreme Court in the case of ESI Corporation v. C.C. Santhakumar (supra) to contend that amendment brought in the year 2010, whereby second proviso to section 45A(1) of the ESI Act was added, shows that the intention of the Legislature was to incorporate limitation of five years to passing of order under section 45A of the ESI Act, similar to the limitation of five years found in proviso to section 77 (1A)(b) of the ESI Act. In the said judgment of the Hon'ble Supreme Court, it has been noted that there is a difference in the nature of proceedings leading to determination of contribution payable under section 45A of the ESI Act, as compared to the assessment made under section 75 thereof. It has been held by the Hon'ble Supreme Court that the determination of contribution payable under section 75 of the ESI Act is based on analysis and assessment of the material placed on record by the establishment in question. In this context, the Hon'ble Supreme Court, at a time when the Amendment of 2010 was yet to be made in the ESI Act, held that while there was limitation of five years as per proviso to section 77(1A)(b) of the ESI Act regarding procedure initiated under section 75 thereof, there was no such limitation as regards determination of contribution under section 45A of the ESI Act. In this backdrop, the learned counsel for the petitioner has vehemently contended that when the second proviso to section 45A(1) of the ESI Act stood added by way of the Employees' State Insurance (Amendment) Act, 2010, even as regards proceedings for determination of contribution under section 45A of the ESI Act, the limitation of five years was clearly applicable and that therefore, in the facts of the present case, the impugned order passed by respondent No.1-Corporation was beyond the period of limitation and hence, it was without jurisdiction.

15. In order to appreciate the aforesaid contention raised on behalf of the petitioner, it would be necessary to take into consideration the words used in the proviso to section 77(1A)(b) of the ESI Act, and the second proviso to section 45A(1) thereof, added by the Amending Act, 2010. The proviso to section 77(1A) (b) of the ESI Act reads as follows:-

“Provided that no claim shall be made by the Corporation after five years of the period to which the claim relates.”
Second proviso added to section 45A(1) of the ESI Act by the Amending Act of 2010 reads as follows:-
“Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contribution shall become payable.”

16. In the said judgment, the Hon'ble Supreme Court in the case of ESI Corporation v. C.C.Santhakumar (supra), it has been categorically held that where records are produced by the establishment, assessment has to be made under section 75 (2)(a) of the ESI Act and that where there is failure in production of records and when there is no cooperation on the part of the establishment/employer, the respondent-Corporation can determine the amount under section 45A of the ESI Act and recover the same as arrears of land revenue under section 45B thereof. Thus, the nature of proceedings under section 45A of the ESI Act on one hand and section 75 read with section 77 thereof on the other hand, is clearly distinct and the two provisos quoted above need to be appreciated in the light of the said distinction in the said proceedings. In fact, the words used in the two provisos are also different. While the proviso to section 77(1A)(b) of the ESI Act specifies that the Corporation is prohibited from making a claim after five years of the period to which the claim relates, the second proviso to section 45A(1) of the ESI Act states that the Corporation is prohibited from passing an order determining contribution in respect of the period beyond five years from the date on which the contribution becomes payable. Therefore, the crucial question is, as to whether the Corporation would be completely prohibited from passing any order under section 45A of the ESI Act for determination of contribution on expiry of period of five years or that the Corporation would be prohibited from determining contribution and hence, claiming the same under section 45A and 45B of the ESI Act for a period beyond five years from the date when such contribution becomes payable. It is the specific contention of the learned counsel for the petitioner that the addition of second proviso to section 45A (1) of the ESI Act was brought about by the Amending Act of 2010, in view of the law laid down by the Hon'ble Supreme Court in the case of ESI Corporation v. C.C.Santhakumar (supra).

17. To appreciate the said contentions raised on behalf of the petitioner, it is necessary to look into the Statement of Objects and Reasons of the said Amending Act of 2010. A perusal of the same shows that the Statement of Objects and Reasons has referred to the need to provide for further machinery and powers to the Corporation to provide benefits to workers and to better implement the purpose of the ESI Act. The salient features of the Bill leading to the Amending Act have been stated in the Statement of Objects and Reasons of the Amending Act and they read as follows :-

“4. The salient features of the Bill are as follows:–
(i) it enhances the age limit from the existing eighteen years to twenty-one years for the purpose of giving benefits to dependents;
(ii) it includes an apprentice appointed under the standing orders as an employee for the purpose of this Act;
(iii) it provides benefits to workers for the accidents happening while commuting to the place of work and vice versa;
(iv) it enables the Central Government to make rules to decide dependency of the parents on the basis of income;
(v) it provides for a new definition of “factory” to provide that when then or more persons are employed or were employed in the preceding twelve months irrespective of the use of power;
(vi) it empowers the Central Government to include the Director General of Employees' State Insurance Corporation as the ex officio Chairman and Director General, Health Services as the ex officio Co-chairman in the Medical Benefit Council;
(vii) it provides for cessation of membership of the Employees' State Insurance Corporation for member of Parliament when he becomes Minister or Speaker or Deputy Speaker of the House of the People or Deputy Chairman of the Council of State or when he ceases to be a member of Parliament;
(viii) it enables the Employees' State Insurance Corporation to appoint consultants and specialists on contract without referring the matter to the Central Government for better delivery of superspeciality services;
(ix) it increases the Insurance Inspector as Social Security Officer;
(x) it re-designates the Insurance Inspector as Social Security Officer;
(xi) it simplifies the determination of employer's contribution;
(xii) it empowers the Central Government to specify by rules the other conditions for medical treatment of an insured person who retires under Voluntary Retirement Scheme or takes premature retirement;
(xiii) it empowers the Employees' State Insurance Corporation to enter into an agreement with any local authority, local body or private body for commissioning or running ESI hospitals through third party participation for providing medical treatment and attendance to insured persons; and
(xiv) it improves the quality of its service delivery and raise infrastructural facilities by opening medical colleges and training facilities in order to increase its medical and paramedical staff.
5. The Bill seeks to achieve the above objectives.”

18. A perusal of the same nowhere shows that the object of the Amending Act or the reason for which it was enacted, was to remove the liability of an establishment that was covered under the provisions of the ESI Act, when an order under section 45A of the ESI Act for determination of contribution was passed beyond period of five years. Therefore, the proper manner in which to read the introduction of second proviso to section 45A(1) of the ESI Act is to hold that the said proviso would restrict the power of the Corporation to pass an order for determination of contribution only for a period of five years from the date it became payable and not beyond that. It cannot be read to mean that if five years time period lapses, no order can be passed by the Corporation for determination of contribution under section 45A of the ESI Act. This is because, as held by the Hon'ble Supreme Court in the case of ESI Corporation v. C.C.Santhakumar (supra), an order passed under section 45A of the ESI Act is materially different from the one passed under section 75 of the said Act. An order under section 45A of the ESI Act is in the nature of the best judgment assessment particularly when the establishment/employer, as in the present case, refuses to give details and records, despite respondent No.1 demanding the same. In this light when the impugned order dated 18/01/2016 is perused, it becomes evident that the determination of contribution by respondent No.1 would be restricted only for a period of five years and that respondent No.1 would not be entitled to claim contribution beyond the said period. In the present case, the amount under proviso to section 45A(1) of the ESI Act became payable when order dated 14/12/2010 was passed by respondent No.1, when establishment of petitioner was allotted code number and it was covered under the ESI Act. The impugned order dated 18/01/2016 specifically records the period of default as December, 2010 to March, 2015 and since it covers a period less than five years from the date on which contribution became payable i.e. from order dated 14/12/2010, it cannot be said that the impugned order was hit by the proviso. It cannot be held that the impugned order dated 18/01/2016 could not be passed by respondent No.1 at all by applying second proviso to section 45A(1) of the ESI Act, or that it was rendered without jurisdiction.

19. Once it is so held, it becomes evident that the petitioner could have challenged the impugned order by filing an appeal under section 45AA of the ESI Act. The record shows that the petitioner, right from the beginning, failed to cooperate with respondent No.1-Corporation and despite order passed by respondent No.1 dated 14/12/2010, covering the petitioner under the provisions of the ESI Act, failed to provide any details or records to respondent No.1-Corporation. In such a situation, the petitioner cannot be permitted to take advantage of its own deliberate acts of stalling and non-cooperation in the proceedings initiated by respondent No.1-Corporation under the provisions of the ESI Act. Hence, it cannot be held that the impugned orders passed by respondent No.1-Corporation were without jurisdiction. This writ petition cannot be entertained by this Court for examining the merits of the quantum of contribution determined by respondent No.1. The prayer clause (2) of the writ petition wherein the petitioner has sought a declaration that the petitioner has not employed five or more employees for being covered under the ESI Act cannot be gone into in writ jurisdiction and, therefore, it is evident that the present writ petition is without any merits.

20. In view of the above, this Court finds that this petition cannot be entertained by this Court and that the petitioner ought to have invoked the remedy of appeal available under section 45AA of the ESI Act for seeking redressal of his grievances as regards the impugned orders passed by respondent No.1. The petitioner is granted liberty to do so. Since the petitioner filed the present writ petition on 09/03/2016 to challenge the impugned order dated 18/01/2016 and this Court issued notice on 07/04/2016 for final disposal, while directing that no coercive steps shall be taken in the meanwhile, it would be appropriate that the Appellate Authority under section 45AA of the ESI Act, considers the question of delay sympathetically if the petitioner prefers an appeal under section 45AA of the said Act to challenge the impugned order dated 18/01/2016, within four weeks from today.

21. Accordingly the writ petition is dismissed with the aforesaid liberty. Rule stands discharged. No costs.

Petition dismissed.