CYRIAC JOSEPH, J. ( 1 ) ACCORDING to the averments in the petition the petitioner is a private limitedcompany engaged in rendering consultancy and ancillary services to its clients in thepower sector. Even before the provisions of the Employees State Insurance Act,1946 were extended to the establishment of the petitioner, its employees had beengiven medical, maternity and other benefits which were more generous than thoseprovided under the E. S. I. Act. After the provisions of the E. S. l. Act were held to beapplicable to the petitioner, it had no option but to start making contributions inaccordance with provisions of the E. S. I. Act. Respondent No. 1 - the Deputy Director,regional Office, ESl Corporation passed an ex parte assessment order dated8. 8. 1997 against the petitioner under Section 45a of the ESl Act. No notice of thesaid proceedings had been received by the petitioner. Hence, the petitioner submittedan application (Annexure P1 dated 9. 4. 1998) to respondent No. 1 praying to setaside the ex parte order dated 8. 8. 97. However, no action was taken by the respondenton the said application for setting aside the ex parte order. The petitioner alsosubmitted an application (Annexure P2 dated 9. 4. 1998) to respondent No. 1 requestinghim to withdraw the recovery certificate issued on the-basis of the ex parte assessmentorder dated 8. 8. 1997 since the petitioner had filed an application for setting asidethe said ex parte order. The petitioner also submitted Annexure P3 application dated9. 4. 98 to respondent No. 5- Lt. Governor, NCT of Delhi - praying for retrospectiveexemption under the provisions of the E. S. I. Act for the period from 2. 10. 1988 to31. 7. 1996. No order was passed on Annexures P2 and P3 application also Copiesof Annexures P1, P2 and P3 applications were forwarded by the petitioner torespondent No. 3 - Recovery Officer, Regional Office, ESl Corporation - requestinghim not to take any coercive action on the basis of the ex parte assessment order tillthe said applications were disposed of. The petitioner also submitted on 23. 4. 1998praying for exemption under the provisions of the ESl Act. However, no action wastaken on the said application by the Labour Commissioner. The petitioner again sentletter dated 15. 5. 1998 to respondent No. 1 seeking action on Annexures P1 and P2applications. However, respondent No. 1 did not take any action or respond to thesaid letter. 4. 1998praying for exemption under the provisions of the ESl Act. However, no action wastaken on the said application by the Labour Commissioner. The petitioner again sentletter dated 15. 5. 1998 to respondent No. 1 seeking action on Annexures P1 and P2applications. However, respondent No. 1 did not take any action or respond to thesaid letter. In the mean while, respondent No. 3 - Recovery Officer - issued twonotices dated 6. 4. 1998 and 15. 4. 1998 requiring the General Manager (HRD) of thepetitioner to show cause as to why he should not be committed to the civil prison inexecution of the recovery certificate forwarded to him under Section 45 A (2) of theesi Act. In the above circumstances the petitioner filed this writ petition praying fordirection to the respondents to dispose of the petitioner s applications as per lawand for restraining respondents 3 and 4 from resorting to coercive process againstthe petitioner to enforce recovery of the dues on the basis of the ex parte assessmentorder till the expiry of a reasonable period after the disposal of the petitioner sapplications in accordance with law. ( 2 ) WHILE issuing notice to the respondents to show cause as to why the writ petitionshould not be admitted, this Court stayed the recovery proceedings against thepetitioner. A counter affidavit has been filed on behalf of respondents No. 1,3 and 4opposing the prayers in the writ petition. ( 3 ) ACCORDING to the averments in the counter affidavit filed on behalf of respondents1, 3 and 4 before passing the ex parte assessment order dated 8. 8. 1997 undersection 45 A of the ESI Act a show cause notice dated 28. 7. 97 had been issued tothe petitioner by respondent No. 4 calling upon the petitioner to show cause as to whyad hoc assessment be not made for its non compliance with the provisions ofsections 39 and 40 of the ESI Act and directing the petitioner to pay the contributionfor the period from 2. 10. 1988 till 31. 7. 1996. The petitioner was also given anopportunity to represent through its authorised representative for a personal hearingon 8. 8. 97. The said notice was duly served on the petitioner through registered A. D. post. However, no one appeared for the petitioner on 8. 8. 1997 and hence the adhocassessment was made final by the Deputy Regional Director, ESI Corporation. Theorder passed on 11. 9. 8. 97. The said notice was duly served on the petitioner through registered A. D. post. However, no one appeared for the petitioner on 8. 8. 1997 and hence the adhocassessment was made final by the Deputy Regional Director, ESI Corporation. Theorder passed on 11. 9. 1997 under Section 45 A of the ESI Act calling upon thepetitioner to pay a sum of Rs. 36,87,915. 40 was sent to the petitioner by Registeredpost and it was duly received by the petitioner on 19. 9. 1997 in his office. However,the petitioner did not deposit the amount in terms of the order passed under Section45a of the ESI Act and therefore on 17. 2. 1998 the ESI Corporation sent an applicationto the Recovery Officer in terms of Section 45-C to 45-I of the ESI Act. But thepetitioner failed to comply with the order passed under Section 45 C of the ESI Act. ( 4 ) IT is also stated in the counter affidavit that on 29. 1. 1998 the petitioner falselyrepresented that as its employees were working at sites and as medical facilitieswere not available at sites, the petitioner was not liable to pay any contribution andthat if the petitioner did not hear from the ESI Corporation, the petitioner shall ceaseto be covered by the provisions of the ESI. In response to the said letter dated29. 1. 1998 the respondent Corporation wrote a letter dated 20. 3. 1998 saying that themis-conception of the petitioner was not sustainable in the eyes of law and that thepetitioner was liable to pay contribution. It is also pointed out in the counter affidavitthat the petitioner has concealed the fact the petitioner had filed a case before theemployees Insurance Court and had also filed an exemption application after therecovery notice was sent to the petitioner. The case before the El Court was dismissedand a further application exemption was also rejected by the ESI Corporation. Therespondents have also pointed out that exemption can begranted in terms of Section87 of the ESI Act only when the benefits being provided by the employer are similar orhigher to those provided by the ESI Corporation. It is also pointed out that exemptioncan be granted only for one year and that application for exemption has to besubmitted in respect of each year. According to the respondents, the petitioner sapplication for retrospective exemption was not maintainable in the eyes of law. It is also pointed out that exemptioncan be granted only for one year and that application for exemption has to besubmitted in respect of each year. According to the respondents, the petitioner sapplication for retrospective exemption was not maintainable in the eyes of law. ( 5 ) IN the counter affidavit filed on behalf of respondents No. 1,3 and 4 the respondentshave admitted receipt of the applications stated to have been submitted by thepetitioner. But the respondents have denied that no action was taken on thoseapplications. According to the respondents the petitioner s applications were dulyconsidered and disposed of by passing appropriate orders. But the respondentshave not stated that the disposal of the petitioner s applications and the orderspassed thereon were communicated to the petitioner at any time. The respondentshave not placed on record any of the said orders stated to have been passed on thepetitioner s applications. The respondents did not offer to place the relevant filesbefore the Court to satisfy that the petitioner s applications had been disposed of. ( 6 ) WHEN the case came up for hearing, learned counsel for the petitioner confinedhis submissions to the question of validity of the recovery proceedings pursuant tothe ex parte assessment order passed under Section 45a of the ESI Act while thepetitioner s application for setting aside the ex parte assessment order was stillpending. According to the petitioner, no notice of the proceedings relating to the saidassessment had been served on the petitioner. According to the respondents a showcause notice dated 28. 7. 1997 (Annexure D to the counter affidavit) was served onthe petitioner through registered AD post. A photocopy of the acknowledgementcard has been placed on record. Learned counsel for the petitioner contended thatthe said notice was not received by the addressee or by any competent employee ofthe petitioner. He also contended that even the signature on the acknowledgementcard could not be identified. In paragraph 3 of Annexure P1 application for settingaside the ex parte assessment order, the petitioner had stated that the signature onthe acknowledgement card was not that of any principal officer of the company andthat the employees in the petitioner s office were not able to identify the signature orthe person who put the said signature. It was also stated that the said notice was notpassed on to any authorised or competent person by the person who acknowledgedreceipt of the notice. It was also stated that the said notice was notpassed on to any authorised or competent person by the person who acknowledgedreceipt of the notice. However, I do not propose to consider or decide whether thesaid notice was duly served on the petitioner, because, the said question was raisedby the petitioner before respondent No. 1 through Annexure P-1 application andrespondent No. 1 is expected to consider that question. According to the respondentsappropriate orders were passed on the petitioner s applications including Annexurep1. But it is not stated by the respondents that the said orders were communicated tothe petitioner. The petitioner has asserted that he has not received any order passedby the respondents on his applications including Annexure P1. If the applicationswere actually disposed of by passing appropriate orders, I fail to understand why therespondents could not communicate the orders to the petitioner. What is the use ifthe order is passed on the file and is not communicated to the party concerned ?even after the filing of this writ petition, the respondents did not choose to producethe orders stated to have been passed by them. ( 7 ) SECTION 45-A of the E. S. I. Act reads thus: 45-A. Determination of contributions in certain cases. (1) Where inrespect of a factory or establishment no returns, particulars, registers orrecords are submitted, furnished or maintained in accordance with theprovisions of Section 44 or any Inspector or other official of the Corporationreferred to in sub-section (2) of Section 45 is prevented in any manner by theprincipal or immediate employer or any other person, in exercising hisfunctions or discharging his duties under Section 45, the Corporation may,on the basis of information available to it, by order determine the amount ofcontributions payable in respect of the employees of that factory orestablishment:provided that no such order shall be passed by -the Corporation unless theprincipal or immediate employer or the person in charge of the factory orestablishment has been given a reasonable opportunity of being heard. (2) An order made by the Corporation under sub-section (1) shall be sufficientproof of the claim of the Corporation under Section 75 or for recovery of theamount determined by such order as an arrear of land revenue undersection 45-A or the recovery under Section 45-C to Section 45-1. (2) An order made by the Corporation under sub-section (1) shall be sufficientproof of the claim of the Corporation under Section 75 or for recovery of theamount determined by such order as an arrear of land revenue undersection 45-A or the recovery under Section 45-C to Section 45-1. An order under sub-section (1) of Section 45-A cannot be passed unless the principalor immediate employer or the person in charge of the factory or establishment hasbeen given a reasonable opportunity of being heard. Hence, if the aggrieved partyshows that he did not receive any notice issued under the Proviso to sub-section (1)of Section 45-A, the authority who passed the order under sub-section (1) is bound torecall or cancel the order already passed and to pass a fresh order after giving theparty a reasonable opportunity of being heard. The refusal to recall the order and topass a fresh order in such circumstances will amount to denial of valuable rightconferred by the Statute and violation of the principles of natural justice. But accordingto the learned counsel for the E. S. I. Corporation, the E. S. I. Act does not contain anyprovision which confers on an employer the right to make an application for settingaside the assessment/determination under sub-section (1) of Section 45-A andhence the respondents had no obligation to consider such an application. I am notinclined to accept this contention. If the said contention is accepted the proviso tosub-section (1) of Section 45-A will become redundant and useless. The powerunder sub-section (1) of 45-A of the ESI Act is coupled with a duty to consider anddispose of an application for setting aside the assessment/determination on theground that the employer did not receive the notice issued under the proviso to sub-section (1) and hence he could not respond to the notice. By virtue of the nature of theright to be heard under the Proviso to sub-section (1) of Section 45-A and in view ofthe scheme of the E. S. I. Act, the right to make such an application is only ancillary andincidental to the right conferred under the Proviso to sub-Section (1 ) of Section 45-A. No special provision is required to confer such a right. Hence, Annexure P-1application was liable to be considered by the respondents. It is not sufficient that thestatutory authority passes an order on his file disposing of an application tikeannexure P-1. Hence, Annexure P-1application was liable to be considered by the respondents. It is not sufficient that thestatutory authority passes an order on his file disposing of an application tikeannexure P-1. He should communicate his decision or order to the employerconcerned. Only if the decision on his application for setting aside the ex parteassessment/determination is known, the employer can take further action either tochallenge the assessment or to pay the contribution. Therefore, the respondent ESICorporation was bound to communicate to the petitioner the order stated to havebeen passed on the petitioner s application for setting aside the ex parte assessment. Since there is no averment in the counter affidavit that the order stated to have beenpassed on Annexure P1 application of the petitioner was communicated to thepetitioner, the respondent Corporation is liable to be directed by this Court tocommunicate to the petitioner the order, if any, passed by the statutory authority onthe petitioner s application for setting aside the ex parte assessment/determination. ( 8 ) LEARNED counsel for the ESI Corporation contended that if the employer wasaggrieved by an assessment or determination under sub-section (1) of Section 45-Aof the ESI Act, he had a statutory remedy of approaching the El Court under Section75 of the ESI Act and therefore an application for setting aside the ex parte orderunder Section 45-A was not maintainable. I am not inclined to accept this contentionalso. Notwithstanding any remedy available under Section 75 of the E. S. I. Act, a partyaggrieved by an ex parte assessment/determination under Section 45-A of the ESIAct, has every right to approach the authority which made such assessmentdetermination to show that he could not respond to the notice issued under theproviso to sub-section (1) of Section 45-A as it was not received by him and also torequest to recall the ex parte order and to pass fresh orders after giving to the saidparty a further opportunity of being heard. There is nothing in the provisions of the ESIAct to deny such a right to a party who is aggrieved by the assessment/determinationunder sub-section (1) of Section 45-A of the ESI Act. There is also no provision whichprohibits the statutory authority from entertaining any such application. Hence, Section75 of the ESI Act does not stand in the way of entertaining an application for settingaside the ex parte assessment order under Section 45 A of the ESI Act. There is also no provision whichprohibits the statutory authority from entertaining any such application. Hence, Section75 of the ESI Act does not stand in the way of entertaining an application for settingaside the ex parte assessment order under Section 45 A of the ESI Act. ( 9 ) THE next question is whether the recovery proceedings pursuant to an assessmentdetermination passed under sub-section (1) of Section 45-A of the ESI Act should bekept in abeyance on account of an application for recalling or setting aside the orderpassed under sub-section (1) of Section 45-A. It is not mendatory to do so. It is left tothe discretion of the authority concerned. However, it is only just and reasonable thatthe recovery proceedings are kept in abeyance, if the application for setting asidethe assessment order is filed immediately after coming to know of the assessmentorder and the application appears to be bona fide. In this case the assessment orderunder sub-section (1) of Section 45a was passed on 11. 9. 1997. It was sent to thepetitioner by registered AD post and it was received in the office of the petitioner on19. 9. 1997. But according to the petitioner it was not received by the petitioner or anycompetent employee of the petitioner. The petitioner filed the application dated9. 4. 1988 for setting aside the assessment order when recovery proceedings wereinitiated against the petitioner on the basis of the assessment order. Though therewas delay on the part of the petitioner in filing the application for setting aside theassessment order passed under Section 45-A the said delay was allegedly due tothe non receipt of the assessment order by the petitioner. In the facts and circumstancesof this case it is not necessary to decide whether the assessment order was actuallyserved on the petitioner on 19. 9. 97 as alleged in the counter affidavit. Since therecovery proceedings stood stayed during the pendency of this writ petition, noserious prejudice or injustice will be caused if the recovery proceeding are kept inabeyance till the respondents disposed of Annexure P1 application of the petitioner. ( 10 ) ADMITTEDLY no order disposing of Annexure P-1 application has beencommunicated to the petitioner so far. Since therecovery proceedings stood stayed during the pendency of this writ petition, noserious prejudice or injustice will be caused if the recovery proceeding are kept inabeyance till the respondents disposed of Annexure P1 application of the petitioner. ( 10 ) ADMITTEDLY no order disposing of Annexure P-1 application has beencommunicated to the petitioner so far. It is also not disputed that the petitioner wasnot given any opportunity to personally appear before the authority concerned toexplain with reference to the relevant files and to satisfy such authority that the noticeissued under the Proviso to sub-section (1) of Section 45-A was not received by thepetitioner. Hence, in the peculiar facts and circumstances of this case it is just andproper to direct the respondent to take a final decision on Annexure P-1 applicationafter giving an opportunity of personal hearing to the petitioner and to communicatesuch decision to the petitioner. ( 11 ) IN the light of the discussion above, the writ petition is disposed of with thefollowing directions: (I) The respondent ESI Corporation is directed to consider and dispose of thepetitioner s application (Annexure P. 1) for setting aside the assessment order passedunder Section 45a of the ESI Act, after giving a personal hearing to the petitioner andto communicate such decision to the petitioner in accordance with law. (II) The recovery proceedings pursuant to the assessment already made undersection 45a of the ESI Act shall be kept in abeyance till the expiry of a period of oneweek from the date of communication of the order on Annexure P-1 to the petitioner. (III) If the assessment made under Section 45a is recalled or set aside by therespondent, no recovery shall be effected from the petitioner without making a freshassessment/determination in accordance with law. (IV) If the application Annexure P. 1 is rejected by the respondent, it will be opento the respondent to enforce the recovery of the amounts due under the assessmentalready made under Section 45 A of the ESI Act, after the expiry of a period of oneweek from the date of communication of the order rejecting the said application. THE writ petition stands allowed to the aboveextent. The parties are left to bear theirown costs.