Judgment:
Barin Ghosh, J.
1. The subject matter of challenge in the instant writ petition is the order dated October 21/23, 1979 whereby a claim had been put forward on account of Employees' State Insurance for the period July 1, 1973 to September 23, 1973 and December 17, 1974 to January 14, 1975 as well as the order dated October 22, 1979 whereby a demand was made for payment of Rs. 10.072.50 on account of outstanding contribution towards Employees Provident Fund for the period July 1, 1973 to September 23, 1973 and December 16, 1974 to January 14, 1975 as well as the certificate issued by the Collector, 24-Parganas on November 29, 1979 for recovery of the said dues together with assessed interest of Rs. 3352/- and further interest on the principal at the rate of 6% per annum. In paragraph 7 of the writ petition it has been contended by the petitioner that the claim on account of principal to the tune of Rs. 1072.50 is highly inflated and in point of fact for the period in question the liability was only to the extent of Rs. 1277.40. The petitioner, in paragraph 7 of the writ petition, sought leave to produce the original pay sheets in order to substantiate the contention of the petitioner that the claim is inflated and that the same must be reduced to Rs. 1277.40. There is no statement in the body of the petition or in the contemporaneous letter of the petitioner written through his Advocate to the effect that any of the part of the admitted claim of Rs. 1277/- had been paid by the petitioner. In the circumstances, while restraining the respondent from enforcing the certificate, this Court directed the petitioner to furnish a Bank Guarantee to the tune of Rs. 1200/-. The records do not show mat any such Bank Guarantee has been furnished. Even if such Bank Guarantee was furnished that was not within the time, that was allowed by Court to furnish the same. The matter was dealt with in 1987 when the Court fixed the date of hearing of the matter and at the same time being prima facie satisfied with the case continued the order of restraint upon the petitioner's undertaking to pay the amount when called upon to do so. At the hearing the learned counsel for the petitioner has not been able to produce any original pay sheet justifying that the correct claim for the period in question could not exceed Rs. 1277.40. The learned counsel also submitted that in point of fact payment has been made. He further submitted that there are challans showing deposit of amount. Inasmuch as there is no such assertion the body of the petition, it would not be proper on my part to take note of such payment.
2. The learned counsel for the petitioner has submitted that the facts and circumstances of the case do not permit invocation of the provisions of Section 45A of the Act. The said section permits determination of the amount of contribution on two contingencies, i.e., when no return is filed in accordance with Section 44 or when any Inspector is prevented or obstructed from discharging his duties. There is not even a whisper in the body of the petition that the petitioner ever filed any return. Therefore, on the pleadings itself the first contingency for invocation of the power under Section 45A of the Act is satisfied. In the affidavit-in-opposition filed on behalf of the respondent Nos. 1 to 3, it has been specifically stated that the Inspector visited the factory as well as the residence of the petitioner on December 30, 1976, March 8, 1978, September 14, 1978, September 18, 1978 and March 12, 1979 for reassessment since July 1, 1973 but records could not be checked due to the non-co-operation of the petitioner and because no arrangement was made for the production of the records and that even the petitioner did not respond to the office letter dated July 29, 1978, whereby the petitioner was requested to clear off the dues. In paragraph 8 of the affidavit-in-reply, paragraph 7 of the affidavit-in- opposition has been dealt with in the manner as follows:
'That with regard to the statement made in, para 7 of the affidavit-in-opposition, I deny emphatically all that has be stated there. I say that there was no basis for the issue of the impugned certificates as the respondent No. 1 did not determine the arrears of E.S.I. Contribution payable by the petitioner upon legal notice served upon the petitioner and as such the petitioner is not legally bound to pay any amount that is asked to be paid by the respondent No. 1 through the certificate referred to in the writ petition.'
3. In that view of the matter, there is no denial of the fact that inspections were carried out, the Inspectors were prevented from checking the records and that petitioner did receive a letter by which he was asked to clear all his dues. The second limb of Section 45A, therefore, has squarely been complied with in the facts and circumstances of the case.
4. For the reasons aforesaid, this writ petition is dismissed. There shall be no order as to costs.