Dismissed

Bharat Diamond Bourse v. the Deputy Director Employees State Insurance Corporation

Bombay HC21 Mar 2024WP/987/2024

Case brief

AI extract

What is this about?

This High Court of Bombay dismissed a writ petition challenging the Employees State Insurance Court's order rejecting an application for the appointment of a Court Commissioner. The court held that re-verification was unnecessary adjudication, as the petitioner could produce relevant material during the evidence phase.

What did the court decide?

Writ petition dismissed; no cost awarded to the petitioner.

Bharat Diamond Bourse Vs the Deputy Director Employees State Insurance Corporation — Bombay HC (2024) — LawSathi Research

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wp987-2024-Final.doc

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.987 OF 2024

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ATUL GANESH KULKARNI Digitally signed byATUL GANESH KULKARNI Date: 2024.03.21 17:01:19 +0530

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Bharat Diamond Bourse… Petitioner
V/s.
The Deputy Director, Employees
State Insurance Corporation… Respondent

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Mr. Pradhyuman M. Bhagat for the petitioner.
Mr. Shailesh S. Pathak for the respondent.

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CORAM :AMIT BORKAR, J.

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DATED :21 MARCH, 2024

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P.C.:

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1.By this writ petition under Article 227 of the Constitution of
India, the petitioner is challenging order dated 24 October 2023
passed by the Employees Insurance Court, Mumbai (“ESI Court”
for short) rejecting petitioner’s application bearing Application ESI
No.35 of 2018 for appointment of Court Commissioner for
carrying out inspection (re-verification) of the documents of the
petitioner in a proceeding under Section 75 of the Employees State
Insurance Act, 1948 (“the said Act” for short).

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2.The petitioner is a company incorporated to establish a
world-class Diamond Bourse for its members. It is not in dispute
that the petitioner is covered under the provisions of the said Act.
The Social Security Officer of the respondent/Corporation called

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wp987-2024-Final.doc

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upon the petitioner to submit records for the year 2011-2012, and
accordingly, the petitioner submitted a balance sheet and profit
and loss account for the financial year 2011-2012 and other
documents as required for verification.

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3. On 9 October 2015, the petitioner received a show-cause notice proposing to determine the ESI contribution amount of ₹ 25,41,77,923/- on several heads as stated in part B of the notice and called upon the petitioner to appear before the respondent on 26 October 2015. The petitioner appeared before the respondent and submitted several documents during the hearing. On 20 June 2016, the respondent passed an order under Section 45A of the said Act holding a contribution of ₹ 24,50,83,048/- for the financial year 2011-2012 from the petitioner.

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4.Aggrieved by the order passed under Section 45A of the said
Act, the petitioner applied Section 75 of the said Act. The
petitioner deposited 50% of the amount with the ESI Court.

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5.When the matter was fixed for evidence by the ESI Court,
the petitioner on 12 April 2023 filed an application seeking
direction to the respondent to carry out an inspection of
documents and records for the years 2009-2010, 2010-2011 and
2011-2012 and submit a report to the Court. The petitioner sought
inspection inter alia on the ground that to determine the
petitioner's liability; the petitioner must produce several
documents and records from the previous year. The petitioner will
need help to produce all the documents before the Court. Another
reason was that the expenses, based on which order under Section

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wp987-2024-Final.doc

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45A was passed, were incurred in the previous year; therefore, re-
inspection was necessary.

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6.The respondent contested the application by pointing out
that no provision enables the petitioner to file such an application.
All relevant records pertaining to the dispute are in the petitioner's
custody. The amount arrived at by the Corporation was based on
the best judgment assessment; therefore, the petitioner needs to
lead evidence before the Court.

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7.The ESI Court rejected the application by order dated 24
October 2023. Hence, the petitioner has filed the present writ
petition.

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8.The learned advocate for the petitioner submitted that it is
impossible for the petitioner to produce a voluminous record
before the Court. The respondent/Corporation failed to inspect
before arriving at a conclusion under Section 45A of the said Act.
The expenses referred to in the order under Section 45 had been
incurred in earlier years. He submitted that such expenses are
necessary in the interest of justice.

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9.Per contra, the learned advocate for the
respondent/Corporation submitted that there is no provision in the
said Act for appointing a Court Commissioner. The contribution
determination was made based on documents produced by the
petitioner during a personal hearing. The nature of jurisdiction
exercised by the ESI Court is original jurisdiction. Under the garb
of appointment of the Court Commissioner, the petitioner intends
to make a re-assessment, which is impermissible in law.

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wp987-2024-Final.doc

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10. I have heard advocates for both sides and considered the
material on record. It is not in dispute that the respondent/
Corporation passed an order under Section 45A of the said Act
after giving the petitioner an opportunity to hear. The petitioner
was represented by his representative, who furnished all relevant
material before the Corporation.

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11. The grounds mentioned in the application seeking re-
verification are (i) documents necessary for adjudication of dispute
are voluminous and (ii) the expenses based on which order under
Section 45A of the said Act was passed were incurred in the earlier
years.

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12. The grounds mentioned in the application are insufficient to
direct the re-verification of the documents in possession of the
petitioner. They will amount to adjudication of inquiry under
section 45A, which, in the facts of the case, is not necessary. The
petitioner shall have the opportunity to produce all relevant
material before the ESI Court in support of his contention that the
amount adjudicated in the exercise of power under section 45A is
not in accordance with the law as the matter is fixed for leading
evidence of the petitioner. Therefore, the ESI Court was justified in
rejecting the applications. No error is apparent on the face of the
record, nor does the impugned order suffer from any legal
infirmity.

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13. The writ petition accordingly stands dismissed. No costs.

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(AMIT BORKAR, J.)

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Bharat Diamond Bourse v. the Deputy Director Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

Bharat Diamond Bourse v. the Deputy Director Employees State Insurance Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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