Sec. 45 AA and the Questions of Mr.Hiren Chheda!

Mr. Hiren Chhedha has raised the following questions with reference to Sec. 45 AA of the ESI Act, 1948. He is awaiting reply to these questions under the Right to Information Act, 2005. As many of the issues raised by him are relevant to all the employers, his write-up is hosted here as a separate Post for the benefit of all. (Upadate on 12 05.2013: Mr. Hiren Chheda has forwarded the reply received by him from the Regional Office, Mumbai. That is also uploaded here in this thread for the benefit of the readers).

Now, the text of what Mr. Hiren Chheda has written:

1. If an appeal u/s 45-AA is submitted after 60 days from the issuance of the Order u/s 45-A whether the Appellate Authority is empowered to entertain the same? a. If the answer to the above query is affirmative please provide me the copy of the instructions issued. b. If yes is the reply to the above query, is it mandatory to file an application for condoning the delay? ====================================================

2. In case, if the deposit of 25% of the assessed amount u/s 45-A of the ESI Act is deposited along with appeal u/s 45-AA after 60 days from the issuance of the Order u/s 45-A than the Appellate Authority has power for forfeiture of the amount deposited while issuing the order u/s 45-AA where in impugned order was set aside? If the reply is yes, kindly provide me the copy of the provisions or instructions in this regard. a. Whether RO Mumbai has intimated to HQ of any such forfeiture of the amount deposited by the employer u/s 45-AA. I enclosed (Annexure A 1 ) herewith the copy of the Order u/s 45-AA dated 13.02.2012 where in the impugned order u/s 45-A was set aside but the deposit was forfeited by the Appellate Authority of RO Mumbai. b. I would like to know where the forfeited amount does is booked by the RO Mumbai and under which account head it is reflected in the annual financial statement of the ESIC. Please provide me the duly certified copy of the same. c. Please provide me the copy of the certified provisions of the ESI Act where in such power is delegated to the Appellate Authority for forfeiture of amount deposited by employer under the trust incorporated under the section 45-AA of the Act. d. If no power is delegated under the ESI Act to the Appellate Authority for forfeiture of amount deposited by employer, does the issuance of order referred at supra dated 13.02.2012 amounts to mental harassment to the employer and does it amounts misconduct under service rules or not? What steps have been taken by the corporation to alleviate these fears of the Employers? e. Please provide me the certified copy from Office the Financial Commissioner stating under which rules & provisions the noble ESIC department can hold the said amount. If the said deposit with interest is returnable to the Employer than who will bear the cost of the interest for the default on the part of the Officer? Please inform me the correct rules in this regard. f. If above act on the part of the Senior Officer of the noble ESI Corporation is against the norms & provisions under the ESI Act, whether remedies are available for the employer to register his grievances against such high handiness of the said officer. Please provide me the procedure as well as the name and address of the authority with whom the grievance should be registered for redressal. Is the officer guilty of violating rules and hence guilty of misconduct under conduct rules? Please give a copy of their conduct rule, which they have violated by violating the above mentioned rule. g. The said authority of RO Mumbai has caused serious mental agony/injury by making the employer to run helter-skelter around all the way. Is said officer is guilty of causing mental harassment to the Employer/public or not? h. What actions can be taken initiated against the officer for violating the rules and for causing mental agony to the Employer/public? Is any time-frame fixed by the Department for initiating action against such Officer? Please state in crystal clear terms. =================================================

3. I enclose (Annexure A 2 ) herewith the order passed u/s 45-A & 45-AA by the officer of the RO Mumbai in respect of the Establishment whose code number is 31001010500001001/Pin-07 along with a letter addressed to the IC dated 24.04.2012 and request you to provide me the following information. i. Whether the Appellate Authority u/s 45-AA has the power to enhance the period sue-motto for which the order u/s 45-A was issued? ii. Whether the Appellate Authority u/s 45-AA can revert back to the date of coverage of the establishment when said issue was not covered under the Order u/s 45-A of the Act or rose by the Appellant in his appeal? iii. Are there any instructions issued by the Head Office to claim the ESI contributions on labour charges RECEIVED by the employer? If so please provide me the copy of such instructions. iv. What is the present status of the employer letter dated 24.04.12 (copy enclosed) at the Office of the IC and RO Mumbai, please inform. v. Can the Appellate Authority u/s 45-AA enhance the amount of contributions determined under the Order u/s 45-A without issuing fresh notice or revising the Notice to the Employer to submit his pleadings on the issues rose? vi. Whether the actions of the RO Mumbai are justified in recovering the amount by following coercive and harsh measures from Woman employer without replying to the humble submissions made by her? vii. Is it not mandatory on the part of the Officer concerned to reply to the grievance of the employer at least on recovery of money, to pay attention and redress the grievance by way of reply quoting the rule book? =================================================

4.        As per the instruction of the ESIC Head Office on the issue of the outside labour charges specific directions are issued to the inspecting authorities to bring out in their reports details of their observations which could establish supervision on those jobs or otherwise and then only to claim contributions. However, some of the inspecting authorities do not adhere to the said directions. Are these officials guilty of violating these rules and hence guilty of misconduct under their conduct rules. Please provide me a copy of their conduct rule, which they have violated by violating the above mentioned rule. What actions can be taken against concerned officers for not adhering the instructions of the Head Office? ================================================

5. Is there any circular issued by the ESIC Head Office to claim the contributions on outside labour charges even though the inspecting authority failed to discharge its duty in accordance with the instructions of the ESI HQ. If yes, than please provide me the copy of the same. ================================================

6. Do the authorised officer u/s 45-A has the power to cancel his own order passed u/s 45-A without prior approval of the higher officers? If so under what circumstances? Please state and explain the circumstances. If such provision exists kindly provide me the copy of the instruction. In case no such provision exists cancelling the order issued u/s 45-A without jurisdiction will amount to misconduct in accordance to service rules or not? ===============================================

7. As per the instruction of the Head Office the burden to prove the supervision in case of outside labour charges is on the inspecting officer. Can this burden be shifted to employer under proceeding u/s 45-A of the Act? If yes, please provide the circular instructions on the issue making responsible the employer to prove that no supervision by him in case of outside labour charges. ===============================================

8. Is it correct on the part of the Authorised Officer to determine the contributions on the total amount paid to other establishment which is duly covered under the ESI Act for getting job work done from its premises? If the answer is no, than is it not misconduct on the part of the authorized officer. [In case you require more details in this regard you may please refer to file of RO Mumbai bearing code number 31000090450000108 Pin-25] ===============================================

9. What is the reasonable time limit to issue order under Section 45-A of the ESI Act 1948 from the date of conclusion of the final hearing u/s 45-A? Please specify the time limit prescribed by the department. In case no order is passed within the stipulated time schedule what actions are initiated by the department who violated the time schedule? In case no such instructions are existing prescribing time limit for issuance of order on completion of hearing/inquiry, can the authorized officer pass the order after lapse of 6 months from the date of last hearing? ==============================================

10. Under which circumstances or parameters a Corrigendum to an order passed under section 45-A can be issued? ===============================================

11. Does is it require to call for hearing before issuance of the Corrigendum to the order issued? Whether officer who has not issued the order can issue the Corrigendum? Is it necessary to record the reasons for issuance of the Corrigendum in the corrigendum order? ===============================================

12. Under which provision of the ESI Act, Corrigendum to order u/s 85-B can be issued? Kindly provide the extract of same and also ESIC HQ directions on the issue. ===============================================

13. Are there any instructions issued by HQ office OR any provisions under the ESI Act to issue the Order u/s 45-A of the Act on mere presumptions of the authorized officer? If yes, please provide me the copy of such instructions. If the answer is ‘no’, whether the actions of the Authorized Officer shall be treated as misconduct for harassing the employer? ================================================

14. Does the Recovery Officer has the power to issue the Order u/s 45-A while discharging duty as Recovery Officer but not holding any charge of the insurance branch? If the answer is yes, than please provide me the copy of the Notification or delegation of powers. ===============================================

15. Is it a right or not that an employer to get a copy of the inspection report based on which the show cause notice u/s 45-A was issued? Whether the Authorized Officer can reject the request made by the employer to provide the copy of the inspection report during the proceedings under section 45-A? Please state the rule position. ==============================================

16. What are the remedies available with the employer, if the Authorized Officer does not provide the copy of the report of SSO relied in issuance of the Notice (C-18)? Please furnish the details thereof. ===============================================

17. After issuance of the Order u/s 45-A of the Act, can another Order u/s 45-A for the same period is permitted? If reply is no to the above query, whether any instructions were issued on the issue, and if so please provide me the copy of the same. ===============================================

18. Please provide me the certified copy of full set of the Special Leave to Appeal (Civil) No(s).4746/2006 filed in the Hon Supreme Court of India in case of ESIC V/s WESTERN INDIA PLYWOOD LTD along with final order dated 24.03.2006. ===============================================

19. Does ESIC have filed any Appeal to the Apex Court after losing at the Hon High Court of Bombay in case of ESIC v/s Hotel Suresh (FA 2284 of 2005) and H. Fillunger and Co. Pvt. Ltd vs. ESIC? If not filed than is it correct that it amount to acceptances of the question of law declared by the Hon High Court by the ESIC? ================================================

20. Can the authorized officer pass an order under section under 45-A for an amount higher than the amount proposed in the notice (C-18) without revising the show cause Notice or calling for objections from the employer?=========

Mr. Hiren Chheda has received the reply from the Regional Office, Mumbai with reference to his application under the RTI Act, 2005. The reply in Pdf. format is posted here. Readers may please click on the following link to download the pdf. file and read the contents. RTI reply to Mr. Hiren Chheda from the Regional Office, Mumbai The same file in pdf format has been converted into png. format and displayed here.

While many issues raised by Mr. Chheda pertain to the errors and omissions on the part of individual officers, the questions of law raised by him have been replied to in various other posts. Wherever there is deficiency in the Amendment of 2010, the same had been taken to the knowledge of the authorities also, as could be seen from the relevant posts, although the authorities at New Delhi have not exhibited any involvement, to set matters right.

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