JUDGMENT I.A. Ansari, J. 1. Apart from the fact that these writ petitions involve substantially identical facts, all these writ petitions are inextricably interlinked and have, therefore, been heard and are being disposed of by this common judgment and order. 2. I have heard Mr. K.N. Choudhury, learned senior counsel, appearing on behalf of the petitioners, in W.P. (C) No. 2633/2009, W.P. (C) No. 2638/2009, and W.P. (C) No. 2845/2009, and Mr. A.K. Goswami, learned senior counsel, appearing on behalf of the petitioner, in W.P. (C) No. 2337/2009. I have 1 also heard Mr. K.K. Nandi, learned counsel, appearing on behalf of the Employees State Insurance Corporation, and Mr. S.N. Sarma, learned senior counsel, appearing on behalf of the remaining respondents. 3. Hindusthan Paper Corporations Limited (in short, HPCL') is a Government of India undertaking, which owns Nagaon Paper Mill as one of its manufacturing units. By a notification, dated August 30/31, 1994, issued by the Employees' State Insurance Corporation (in short, 'ESIC'), which is established under Section 3 of the Employees State Insurance Act, 1948 (in short, 'ESI Act'), 'for administering the scheme of the Employees' State Insurance,' informed the Management of the HPCL that the provisions of the ESI Act were applicable to the 'manufacturing process' carried on at the said paper mill and consequently, the employees working, either directly under: the HPCL, or the contractors of the HPCL, were to make contributions from their wages along with the contributions of the HPCL as the 'principal employer' and by the HPCL's contractors, if any, as 'immediate employer'. Acting upon the notification, dated August 30/31, 1994, HPCL too issued a circular, dated November 26,1994, informing, amongst others, its contractors and also the employees, working under its contractors, that the ESI Act was applicable to the employees, working in the 'manufacturing process' at the said paper mill, and in terms of the provisions of the ESI Act, contributions were required to be made in terms of the provisions of the ESI Act by the employees as well as by the contractors working under the HPCL. By filing a writ petition under Article 226 of the Constitution of India, which gave rise to Civil Rule No. 4966/1994, application of the ESI scheme was put challenge by some of the contractors of the HPCL and, on the strength of an order, passed by this Court, the operation of the said circular, issued by the Management of the HPCL, was suspended. 4. By a circular, dated March 3, 2009, the Management of the HPCL, however, informed its contractors and employees working under these contractors that the said writ petition had been withdrawn on March 8, 2004 and, hence, the provisions of the ESI Act had become retrospectively applicable and that the Regional Director, North-eastern Region, ESIC, had, in the meantime, issued notices to the Management of the HPCL for recovery of contribution retrospectively or else, proceedings for not making contributions would be initiated under the ESI Act and, hence, the Management of the HPCL had deposited the contributions for two financial years, namely, 2006-07 and 2007-08, based on the records of the contractors available with the Management, subject to recovery of the amounts, so paid, from the bills of the respective contractors. By the circular, dated March 3, 2009, aforementioned, the HPCL, further informed its contractors that they shall effect recovery of contribution @ 1.75% from the wages of the employees, engaged by the contractors, at the time of disbursement of their respective wages from the month of February, 2009, onwards along with an amount equivalent to 4.75% of the wages as employers contribution, the total contribution, thus, being to the extent of 6.5% and this contribution shall be deposited with the State Bank of India, Jagiroad Branch. 5. The petitioner in W.P. (C) No. 2638/2009, namely, Peom Trading Company, which is a partnership firm, addressed a letter, on March 9, 2009, to the HPCL stating to the effect, inter alia, that the said firm, i.e. the petitioner if W.P. (C) No. 2638/2009, was unaware of the pendency of any case and/or about the application of the ESI Act to the establishment of the said petitioner as contractor of the HPCL and that while issuing work orders to this petitioner, it had not been mentioned by the HPCL that the ESI Act would be applicable to the functioning of the petitioner-firm as contractor of the HPCL. This apart, the petitioner also made it clear in its 1 letter, dated March 9, 2009, that while quoting the rates, (pursuant to the NIT, which had been issued before allotment of the contract by the HPCL to the petitioner), the fact, that the contractor would have to make the contribution, 1 had not been taken into account by the petitioner-firm and that the HPCL was seeking to recover the said amount as contribution of the contractor in respect of a period, when the petitioner-firm had not even worked as a contractor under the HPCL. 6. Notwithstanding the resistance, which the said petitioner-firm had given, HPCL issued another letter, dated March 24, 2009, stating, inter alia, that the ESI Act having been made applicable, contributions, as provided under the ESI Act, have to be made and since the said petitioner-firm had been working as a contractor for execution of the contract work of the HPCL, the provisions of the ESI Act were applicable to the said petitioner as contractor. By this letter, March 24, 2009, HPCL further asked the said petitioner-firm to take step for registration of the workers, who had been working under the said petitioner-firm, and for depositing the contributions of the petitioners-firm as the 'immediate employer' and the said petitioner's workmen as the employees under the ESI Act. 7. By filing a writ petition under Article 226 of the Constitution of India, which has given rise to W.P. (C) No. 2683/2009, the said petitioner-firm not only put to challenge the legality and validity, amongst others, of not only the circular, dated August 30/31, 1994, issued by the ESI Act, HPCL's letter, dated November 26, 1994, and the circular, dated March 3, 2009, of the HPCL, but also of the HPCL's letter, March 24, 2009, aforementioned. As far as the petitioners, in the three other writ petitions, are concerned, they have put to challenge the ESI's notification aforementioned as well as the HPCL's circulars, dated November 26,1994 and March 3,2009, aforementioned. 8. As far as the petitioners, in the three other writ petitions, are concerned, they have put to challenge the ESI's notification aforementioned as well as the HPCL's circulars, dated November 26,1994 and March 3,2009, aforementioned. 8. Before coming to the merit of the present writ petitions, what needs to be pointed out, at the very out set, is that the applicability of the ESI Act to the premises of Nagaon Paper Mill is not in dispute inasmuch as it is not contended, in any of the writ petitions, that the Management of the Nagaon Paper Mill has not been carrying 'manufacturing process' within the meaning of the ESI Act and/or that the 'premises', where such activities are being carried out by the Nagaon Paper Mill, do not fall within the meaning of the expression, 'factory', as defined in the ESI Act. Bearing this position in mind, this Court is now required to determine the merit of the present writ petitions. 9. Before proceeding further, it may also be pointed out that in terms of the provisions of Sub-section (4) of Section 1 of the ESI Act, the ESI Act applies to all factories (including the factories belonging to Government) other seasonal factories except when the factory or establishment belongs to, or is under the control of, the Government, whose employees are, otherwise also, in receipt of the benefits substantially similar or superior to the benefits provided under the ESI Act. Sub-section (5) of Section 1 makes it clear that the appropriate Government may, in consultation with the ESIC and where the appropriate Government is a State Government, with the approval of the Central Government, extend the provisions of ESI Act to any other establishments or class of establishments, industrial, commercial, agricultural or otherwise by giving six months notice of its intention to do so by a notification in the official Gazette. 10. 10. A 'factory', according to Section 2(12), means any premises including the precincts thereof: (a) whereon ten or more persons are employed or were employed for wages on any day of the presiding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35/1952) or a railway shed. 11. Coupled with the above, 'manufacturing process', according to Section 2(14AA), shall have the meaning assigned to it in the Factories Act, 1948. 12. Section 2(13) defines an 'immediate, employer' as: 'immediate employer', in relation to employees employed by or through him, means a person, who has undertaken the execution, on the premises of a factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, of the whole or any part of any word, which is, ordinarily, part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer and includes a contractor. 13. A close examination of the definition of 'immediate employer', appearing in Section 2(13), shows that a person, who undertakes execution, on the premises of a factory or an establishment to which ESI Act applies or under the supervision of the 'principal employer' or his agent, of the whole or any part of any work, which is, ordinarily, a part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, shall be regarded as an 'immediate employer' in relation to employees employed by or through him. 14. 14. The principal employer', as defined in Section 2(17), means: (i) in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased-owner or occupier, and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named; (ii) in any establishment under the control of any department of any Government in India, the authority appointed, by such Government in this behalf or where, no authority is so appointed, the head of the department; (iii) in any other establishment, any person responsible for the supervision and control of the establishment. 15. In the backdrop of the facts, as set out above, what becomes clear is that these writ petitions have raised, broadly speaking, two distinct questions, namely, (i) Whether the premises, where the petitioners, as contractors, have been executing the said paper mill's works, with the help of its own workers, fall within the expression, 'on the premises of a factory', which appears in the definition clause of the 'immediate employer' under Section 2(13) of the ESI Act and (ii) Whether the petitioners, as contractors, have been executing works, which are preliminary to the manufacturing process, which the Nagaon Paper Mill carries on at their establishment, in question, or the execution of the work by the petitioners, as contractors, at the said premises, are incidental to the purpose of the manufacturing process, which is carried on by Nagaon Paper Mill. 16. While considering the present writ petitions, it needs to be borne in mind, as already indicated above, that it is not in dispute that as far as the management of the HPCL or the Nagaon Paper Mill, as the case may be, is concerned, they fall within the definition of 'principal employer' as given in Section 2(17). The question, which, however, arises for determination, in the context of the facts as narrated above, is as to whether the petitioners as contractors, fall within the definition of the term 'immediate employer'. The question, which, however, arises for determination, in the context of the facts as narrated above, is as to whether the petitioners as contractors, fall within the definition of the term 'immediate employer'. For the purpose of determination of the question as to whether the petitioners fall within the term, 'immediate employer', what is necessary to be determined is as to whether the execution works, which the petitioners have undertaken, are being carried out by the petitioners, as contractors, on the premises of the factory or establishment of Nagaon Paper Mill or whether the petitioners have been working under the supervision of the Management of Nagaon Paper Mill or their agent as an ordinary part of the work of the factory or establishment of the 'principal employer' of the execution of work, undertaken by the petitioners, as contractors, is preliminary to the work carried on in, or incidental to the purpose of the factory or establishment of the 'principal employer'. Yet another question, which these writ petitions have raised is whether the liability, which the Management of the HPCL seeks to impose on the petitioners, as contractors, is tenable in law inasmuch as it is the contention of the petitioners that recovery are sought to be made by the Management of the HPCL in respect of the periods during which the petitioners have not been working as contractors and, secondly, the petitioners having not been informed that ESI Act would apply to the execution of the works allotted to the petitioners, the petitioners had not taken this aspect into account, while quoting their respective rates at which they had come forward to execute the works. Yet another question, which is, undoubtedly, the most important, is: Whether the petitioners can be saddled With the liability to make deduction from the wages of their employees and also make contribution from their own end as an 'immediate employer', in terms of the scheme, as envisaged under the ESI Act, without any opportunity of hearing having been given to the petitioners by the ESIC? 17. 17. While considering, therefore, the present set of writ petitions, it is necessary to note that at the root of these writ petitions lies the controversy as to whether the petitioners; who have been treated as 'immediate employer' within the meaning of the ESI Act, ought to have been granted reasonable opportunity of hearing before it was directed by the ESIC that the contractors and their Workers, at the premises of the establishment of Nagaon Paper Mill, are governed by the provisions of the ESI Act. 18. For the purpose of a clear understanding of the case of the petitioners, the provisions, embodied in Section 45A(1) of the ESI Act, need also to be considered. Section 45A(1) is, therefore, reproduced below: 45-A. Determination of contribution in 5 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 inspector 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 5 given a reasonable opportunity of being heard. 19. It may be noted that the proviso to Section 45A makes it clear that no order can be passed by the ESIC unless the 'principal employer' or the 'immediate employer' of the employees/workers, governed by the ESI Act, is given reasonable opportunity of being heard. Though the language of the proviso itself is clear that no liability, under the ESI Act, can be imposed on a person, as principal or immediate employer, unless he is accorded a reasonable opportunity of hearing, the petitioners herein, (who have been treated as the 'immediate employer',) have, admittedly, not been heard by the ESIC, yet the petitioners have been the saddled with the liabilities as indicated hereinbefore. 20. In Bharat Heavy Electrical Ltd. v. Employees' State Insurance Corporation 2008-II-LLJ-302 (SC) it was held thus at pp. 20. In Bharat Heavy Electrical Ltd. v. Employees' State Insurance Corporation 2008-II-LLJ-302 (SC) it was held thus at pp. 304, 307 & 308: 9. ...Chapter IV of the Act provides for mandatory insurance of all the employees in the manner provided for therein. Section 39 provides for payment of contribution. Section 40 provides for the principal employer to pay contribution in the first instance, whereas an enabling provision has been enacted for recovery of the contribution from the employee directly if he is employed by the principal employer directly. Section 41 empowers the principal employer to recover the amount of the contribution so paid from the immediate employer either by deduction from any amount payable to him by the principal employer under any contract or as a debt payable by the immediate employer. Sub-section (1-A) of Section 41 mandates that the immediate employer shall maintain a register of employees employed by or through him as provided for in the Regulations and submit the same to the principal employer before the settlement of any amount payable under Sub-section (1) XXX XXX XXX XXX XXX XXX XXX XXX 73. ... Section 45A of the Act enables the appropriate authority to recover such dues 3 both from the principal as also the immediate employer. It provides for an opportunity of hearing to both of them.... 13. ... An order passed under Section 45A of the Act has a serious civil and/or financial consequence as the amount so determined is liable to be recovered as arrears of land revenue.... 15. ...In proceedings under Section 45A, not only the applicability of the Act but also the quantum thereof which may be held to be payable may be the subject-matter of determination. 17. Determination of the exact liability on the part of the contractors is necessary keeping in view the fact that they or some of them may not be under the control of the principal employer having regard to the fact that the contract has come to an end. It will I bear repetition to state that the principal employers have a statutory right to recover the dues from the contractors/immediate employers. 18. It appears that the determining authority did not give an opportunity of hearing to the petitioner in regard to the names and other particulars of the contractors. The impugned judgment, therefore, cannot be sustained... 21. It will I bear repetition to state that the principal employers have a statutory right to recover the dues from the contractors/immediate employers. 18. It appears that the determining authority did not give an opportunity of hearing to the petitioner in regard to the names and other particulars of the contractors. The impugned judgment, therefore, cannot be sustained... 21. It, thus, no longer remains res Integra, in the light of the decision, in Bharat Heavy Electricals Ltd. v. ESI Corporation (supra) that the proviso to Section 45A of the ESI Act empowers the appropriate authority to recover, from the 'principal employer' and also the 'immediate employer', the dues, in respect of the contributions, under the ESI Act, and that the proviso to Sub-section (1) of Section 45mandates a reasonable opportunity of hearing to be given to both the 'principal employer' as well as 'immediate employer'. 22. In the light of the above position of law, as discussed above, there can be no escape from the conclusion that when the petitioners have, admittedly, not been heard by the ESIC before fastening them with the liability to make payment of their alleged dues, it logically follows that no liability, forcing them to make contribution, in terms of the provisions of the ESI Act, could have been imposed nor any recovery of any payment already made, on their behalf, by the Manager of HPCL, could have been made unless they were heard by the ESI in terms of the proviso to Sub-section (1) of Section 45A. 23. Considering, therefore, the matter in its entirety and in the interest of justice, the impugned order, dated March 24, 2009, which stands impugned in W.P. (C) No. 2638/2009, is hereby set aside and quashed. The respondents, particularly, the ESIC and the HPCL, are hereby directed not to deduct, or cause to be deducted, any sum(s), from the bills of the petitioners unless the petitioners are given reasonable opportunity of being heard with regard to the question as to whether the provisions of the ESI Act are applicable to the petitioners or not and if the same are found to be applicable, the extent of the respective liabilities of the petitioners, as contractors executing works under the 'immediate employer', shall be determined. 24. Mr. 24. Mr. Nandi, learned Standing counsel, appearing on behalf of the ESIC, submits that the ESI will issue notices to the present petitioners, within two weeks from today, for the purpose of giving them opportunity of hearing, as contemplated under Section 45A of the ESI Act, and then, act upon the result of such hearing in accordance with law. 25. Situated thus, all these writ petitions are disposed of with direction to the respondents, particularly, the ESIC and the HPCL, as already indicated above, not to make any deduction from the bills of the petitioners, as contractors of the said paper mill, without determination of their liability in terms of the provisions of Section 45A of the ESI Act. 26. It is hereby made clear that if, as a result of the hearing, as aforesaid, it is found that the petitioners are not governed by the provisions of the ESI Act, the whole of the amounts, already deducted by the HPCL from the petitioners' bills, shall be refunded to the petitioners and in case it is found that the 0 petitioners are governed by the ESI Act, the amounts, already deducted from the petitioners' bills, shall be adjusted against their respective liabilities. 27. With the above observations and directions, these writ petitions shall stand disposed of. 28. No order as to costs. 29. Furnish a copy of this order to the learned Standing counsel. ESIC.