D. K. SETH, J. ( 1 ) BY a notice in form 'c' - 10874 the petitioner was intimated that sum of Rs. 9606 is due on account of its contribution for Employees State Insurance Corporation, contribution for the period October, 2000 to December 2000. On receipt of the said notice the petitioner had disputed the amount through its letter dated 23rd April, 2001 and submitted the calculation showing its liability at Rs. 6786/ -. Despite receipt of this letter the ESI Corporation issued a notice dated 13th June, 2001 seeking to recover the said amount together with interest. The petitioner had sent another letter on 5th July, 2001 seeking clarification with respect to calculation and requested to stay recovery. On 18th June, 2001 a Recovery proceeding was initiated and the notice contained in annexure P-6 was issued. These have given rise to the cause of action of the petitioner to move this writ petition. ( 2 ) THE learned counsel for the petitioner contend that the petitioner did not submit any return on the initial belief that the petitioner was not liable under the ESI Act, 1948 but after the determination is made he is no more disputing the applicability of this Act in his establishment. Therefore, this is not a case under section 75 clause (a) of the said Act. According to him the case falls squarely under section 45a of the Act which postulates giving of hearing through proviso to sub-section (1 ). According to him, whenever no Return is submitted, section 45a is attracted. It is also attracted when Inspector's men are prevented from inspection. Therefore, on account of denial of hearing there has been a clear violation of the provision of law as well as principles of natural justice and equity which was sought to be projected by incorporating the proviso to section 45a. In such a case, the alternative remedy under section 75 can not stand as a bar in exercise of writ jurisdiction. The counsel for the petitioner had relied on a decision in Whirlpoor Corporation v. Registrar of Trade Marks (1998) 8 SCCI He has also relied on the decision in Fenner Garments v. Deputy Regional Director, ESIC Madras, of 1994 (2) LLJ 754 (Mad ). ( 3 ) MR. Subol Kr. The counsel for the petitioner had relied on a decision in Whirlpoor Corporation v. Registrar of Trade Marks (1998) 8 SCCI He has also relied on the decision in Fenner Garments v. Deputy Regional Director, ESIC Madras, of 1994 (2) LLJ 754 (Mad ). ( 3 ) MR. Subol Kr. Moitra, learned counsel for the respondents, on the other hand, contends that under section 40 the employer is liable to deposit the contribution. If there is any default, in that event, it can be calculated by the authority concerned by sending its Inspector under sub-section (2) of section 45. In such a case, section 45a is not applicable since it is not a question of determination but question of calculation. He further contends that section 45a is attracted when it is a cause of non-submission of Return and prevention of Inspector from inspection. Unless both these grounds are satisfied, section 45a is not attracted. When it is a case of simple calculation, there is no right of hearing, so far as the employer is concerned. Dispute covered under sub-section (a) to (g) of section 75 can be raised before the ESI Court. The remedy is equally efficacious. Therefore, the petitioner can not maintain this writ petition on the ground that no hearing was given, since hearing is not postulated in view of section 39 and section 40 of the said Act which is the liability of the employer since been calculated by the authority. Since there was no determination and power under section 45a was not exercised, therefore, neither the proviso to section 45a or 45e can be attracted. ( 4 ) THE learned counsel for the petitioner, on the other hand, contends that as soon as a certificate is issued petitioner is precluded from challenging the validity of the order or the recovery. Therefore, since his right or hearing has been taken away, writ petition is maintainable. This Court should, therefore, intervene. The counsel for the petitioner contends further that it is not a case that the petitioner is shy of depositing 50% of the amount as is required under sub-section 2b of section 75, His client is ready to deposit it. It is a pure question of law taking away statutory right and as such, there has been glaring infraction of law and the principle of law which he wants to assert. It is a pure question of law taking away statutory right and as such, there has been glaring infraction of law and the principle of law which he wants to assert. ( 5 ) I have heard the respective counsel at length. ( 6 ) SECTIONS 39 and 40 read together makes it incumbent on the employer to make contribution and deposit the same under the regulation and the employer is liable to submit Return with regard thereto. Under section 45 (2) the Corporation is free to make inspection through its Inspector or through other authorised person, persons with regard to the correctness of the particulars stated in the Return under section 44 or for the purpose of ascertaining whether the provisions of the Act is complied with or not. In the present case, the Inspector had inspected and has found that the provisions of the Act was not complied with. Admittedly, no Return was submitted and as such, there was no scope for ascertaining the correctness of the Return. Section 45 (2) includes cases where Return is submitted or where the provisions of the Act has not been complied with. It may also include the case where the employer might contend that the Act is not applicable in his establishment. Whereas, section 45a contemplates two contingencies. First that no Return is submitted or particular Register or Records are not maintained in terms of section 44. Secondly the Inspector or any authorised officer was prevented from making any inspection. Mr. Moitra had contended that both these conditions are required to be fulfilled in order to attract section 45a. This contention is disputed by the learned counsel for the petitioner. A plain reading of section 45a clearly indicates that section 45a is attracted where no Return as contemplated under section 44 is submitted or in a case where the particulars, Register or records required to be maintained or where Inspector is prevented from making inspection. The expression that has been used in section 45a clearly includes that in case of infarction of any one of the contingencies as indicated above, section 45a is attracted. In as much as if the legislature had intended that all these conditions are to be fulfilled, then it would have used 'and' instead of 'or'. The expression that has been used in section 45a clearly includes that in case of infarction of any one of the contingencies as indicated above, section 45a is attracted. In as much as if the legislature had intended that all these conditions are to be fulfilled, then it would have used 'and' instead of 'or'. The use of the expression 'or' makes the condition disjunctive and evidently makes it clear that on infraction of any one of the conditions section 45a is attracted. ( 7 ) IN the present case, it is not alleged that the particulars, Registers or records are not maintained. It is also not alleged that the Inspectors were prevented from inspecting the particulars, Registers or records. But, admittedly, the Return was not submitted. Therefore, it was a case where section 45 (2) can be resorted to. ( 8 ) APPLICATION of section 45 (2) does not preclude application of section 45a. Non-submission of return is a non-compliance of provisions of the Act, in a case where the Act applies. In terms of sub-section (2) of section 45, if provisions of the Act are not complied with, then inspection can be made. If such inspection is made under sub-section (2) of section 45 and amount is determined on the basis of such inspection, in the absence of any Return submitted by the employer, it would be a case covered under section 45a. Inasmuch as it will be a case of determination of the amount on the basis of the information available with the ESI Corporation where no return is submitted. Section 45 does not postulate determination. It postulates appointment of inspectors and inspection by them. Thus, the provisions of section 45e would be attracted as soon the calculation or determination is made on the basis of materials available to the authority. ( 9 ) IN fact, through the inspection under sub-section (2) of section 45 the authority had collected the information on the basis where of the determination or calculation has been made in the absence of any Return. Such determination is made only under section 45a and not otherwise. But there is no scope for calculation without determination where no return is submitted. Mr. Moitra only contended that it is a calculation and not a determination. Such determination affects the employer. It brings about a civil consequence. Such determination is made only under section 45a and not otherwise. But there is no scope for calculation without determination where no return is submitted. Mr. Moitra only contended that it is a calculation and not a determination. Such determination affects the employer. It brings about a civil consequence. It affects the right of the employer in the matter of recovery. Before the Recovery Authority the employer has no right to challenge the same. ( 10 ) HE has, however, right to challenge it under section 75 which is, admittedly, an alternative remedy. As it appears from the provisions contained in section 75 it is an efficacious remedy about which there is no dispute or doubt. The petitioner can raise all these disputes before the ESI Court under any of the clauses (a) to (g) of sub-section (1) of section 75. The embargo provided in sub-section (2) of section 75 that 50% amount has to deposited is not a bar for treating the alternative remedy as an efficacious remedy. ( 11 ) BE that as it may, the proviso to sub-section (1) of section 45a provides for giving of hearing. The statute makes a provision for giving hearing whenever such determination is made. It is a right conferred by the statute. While exercising power under section 45a, the authority can not say that it will exercise its power in terms of sub-section (1) but it may overlook the proviso. When a particular power is conferred on a particular authority, in that event, it has to act within the ambit of such power so conferred. It can not overlook the other part of the power conferred by the statute while exercising powers under one part. The power has since been conferred under section 45a has been narrowed down to the extent as is provided under the proviso. The proviso is very much part of section 45a and the power provided under sub-section (1) is subject to the proviso and can be exercised as narrowed down by it. It can not overlook the proviso and then contend that employer has no right of hearing and that in the guise of efficacious remedy such hearing can be had before the ESI Court. It can not overlook the proviso and then contend that employer has no right of hearing and that in the guise of efficacious remedy such hearing can be had before the ESI Court. When statute provides a particular right, the same can not be denied simply because alternative remedy even very efficacious, is available to a person, to whom such right is available by reason of statute. ( 12 ) THUS, it appears that absence of giving hearing is a glaring infraction of statutory provisions or violation of the established principles of law as enshrined in the statute. In any event, the right of hearing or the principle of 'audi alteram partem' is a principle implicit in many of the provisions where a civil right of the person is determined. In such a case, one can not be punished unheard of or penalised unheard or visited with civil consequences unheard. Even without the proviso it could have been said that such right is implicit in the provision itself. Section 45a, as it stood prior to the adding of the proviso, was interpreted in Asian Paints (India) Ltd. v. ESIC 1981 Lab IC 514 (Bombay), wherein it was held that opportunity is required to be given before determination under section 45a is made. This view was affirmed by the apex Court in Royal Talkies Hyderabad v. ESIC AIR 1978 1476: 1978 Lab IC 1245 : 1978 (II) LLJ 390 , in order to enable the employer to point out errors or inconformity in the determination. Similar view was followed in Hedge and Golay Ltd. v. ESIC 1982 (I) LLJ 48 by Karnataka High Court. However, the statute makes it clear in this case to that extent. When the statute ensures the principle of 'audi alteram partem', then the same can not be overlooked. Thus the provision of 'audi alteram partem' as enshrined in the statute itself having been overlooked, the writ petition cannot be thrown out on the ground of alternative remedy. The decision in Whirpoor Corporation. (supra) as held in paragraph 15 supports the above proposition, which is now a settled principles of law. Thus the provision of 'audi alteram partem' as enshrined in the statute itself having been overlooked, the writ petition cannot be thrown out on the ground of alternative remedy. The decision in Whirpoor Corporation. (supra) as held in paragraph 15 supports the above proposition, which is now a settled principles of law. The decision in Fenner Garments v. Deputy Regional Director ESIC Madras (supra) also holds good having taken the same view to the extent that in case of non-filing of Return if the authority determines the amount or calculates the amount on the basis of the Report of the Inspector without issuing notice of show cause and without affording any opportunity of hearing, in that event, section 45a (1) is infracted. ( 13 ) IN the circumstances, the writ petition succeeds and is allowed. ( 14 ) AS contended, in his usual fairness, by the learned counsel for the petitioner, the petitioner will deposit the entire amount as calculated being the sum of Rs. 10,018/- (Rupees ten thousand and eighteen only) within a period of fortnight with the ESI Corporation without prejudice to its rights and contentions and subject to the determination of the case afresh by ESI Corporation who will determine or reassess or recalculate the amount after giving opportunity to the petitioner in accordance with the provisions of section 45 A (1) of the said Act, within a period of four weeks from the date of deposit of such amount. ( 15 ) IN default, the authority shall not be bound to give any opportunity of reassess the quantum, in that case, petitioner shall be at liberty to go for relief under section 75 of the said Act and not otherwise. ( 16 ) IN case the amount is deposited within the time. The Corporation shall give notice communicating the date of hearing on which day the petitioner shall be free to submit all proofs with regard to its claims that it is liable only for a sum of Rs. 6,780 (Rupees six thousand seven hundred and eighty only ). ( 16 ) IN case the amount is deposited within the time. The Corporation shall give notice communicating the date of hearing on which day the petitioner shall be free to submit all proofs with regard to its claims that it is liable only for a sum of Rs. 6,780 (Rupees six thousand seven hundred and eighty only ). ( 17 ) THE authority shall be free to charge interest on the defaulted amount, if any, as may be calculated in accordance with law by the authority concerned in terms of this order and the amount so determined shall be adjusted against the amount so deposited and it will be open to the authority concerned as well as the petitioner either to refund or adjust the balance amount with the future contribution, as the case may be, after it is so determined. There will be no order as to costs. Urgent xerox certified copy, if applied, be supplied within 7 days. Petition alloweD.