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2003 DIGILAW 1297 (JHR)

Parmeshwar Singh v. State Of Jharkhand

2003-11-17

M.Y.EQBAL

body2003
JUDGMENT M.Y. Eqbal, J. 1. Heard Mr. P.P.N. Roy, learned counsel appearing for the petitioner and Mr. S.N. Das learned counsel appearing for the contesting respondents. 2. The petitioner has challenged the notice dated 18.9.02 issued by the Recovery Officer (Bihar and Jharkhand), Employees State Insurance Corporation for the recovery of the amount and also for quashing the certificates dated 1.3.93 and 25.5.93 by which the liability of the petitioner was determined. 3. The contention of the petitioner is that before determining the liability and issuing the certificates neither any notice was issued by the respondents nor opportunity of hearing was given. The respondents case on the other hand is that notice was issued to the petitioner but it was returned back by the postal authority unserved. It is useful to refer para 8 of the counter affidavit which reads as under. "That it is further stated that further opportunity for personal hearing of petitioner was also given by notice in form C.P. 26, by letter dated 12.8.2002 (Letter No. P/R/42-3884/11, 130 and 131) from the office of Recovery Officer. The date for personal hearing was fixed on 10th September, 2002. The aforesaid notice in form C.P. 26 was sent to the employee as well as to the firm and both were returned back by the Postal authority with the note "Not met" returned to the sender and "not known". The Xerox copies of such report and the notice are annexed herewith which were sent to M/s Patliputra Refractories and Minerals and to Sri Ram Chandra Prasad Singh partner". 4. It is well settled that if a notice is returned unserved with the endorsement "Not met" or "Not known" then such notices cannot be presumed to have been duly served unless notice is returned with the endorsement of refusal. It is therefore, clear that notice was not validly served nor opportunity of hearing was given to the petitioners before determining the liability and issuing the certificate which is mandatory requirement of Section 45A of the Employees State Insurance Act 1948. Consequently the proceeding initiated by the Recovery Officer for the recovery of the amount is wholly unjustified. 5. Mr. S.N. Das learned counsel appearing for the respondents submitted that the petitioners are actually not cooperating with the respondents and only because of their non cooperation the liability was not determined in their presence. 6. Consequently the proceeding initiated by the Recovery Officer for the recovery of the amount is wholly unjustified. 5. Mr. S.N. Das learned counsel appearing for the respondents submitted that the petitioners are actually not cooperating with the respondents and only because of their non cooperation the liability was not determined in their presence. 6. In the facts and circumstances of the case I allow this writ application and quash the recovery proceeding. Howeverthis will be the subject to the condition that the petitioners shall appear before the respondents No. 2 within two weeks from today and file their objection and produce all the documents In support of their case. On receipt of the objection the respondent No. 2 shall fix a date for hearing and the petitioner shall participate in the hearing and thereafter respondent No. 2 shall dispose of the claim by determining the liability in accordance with law by passing a reasoned order.