ESI contribution on probable percentage basis upheld where wage records existed but were not produced in enquiry

The circular dated 26.06.1982, restricting contribution to 25% of the bill amount, was treated as a clarification applicable only where the employer could not produce relevant records showing the wage elements in contractors' bills. Because the principal employer had maintained separate records but did not produce them during the enquiry, the case did not fall within that limited exception. Earlier orders applying the 25% basis were confined to their own facts and did not create a universal rule. The Corporation and the Labour Court were therefore justified in assessing ESI contribution on a probable percentage basis, and the assessment was upheld.

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Issues: Whether the assessment of ESI contribution on probable percentage basis was justified and whether the 26.06.1982 circular restricting contribution to 25% of the bill amount applied to the case.

Analysis: The circular of 26.06.1982 was in the nature of a clarification for cases where the principal employer was unable to produce relevant records showing the wage elements in the contractors' bills. The materials on record showed that the principal employer had maintained separate records and the case was not one of total inability to furnish particulars, but those records were not produced before the Corporation during enquiry. The earlier orders applying the 25% basis were held to be confined to their own facts and not to create a universal rule for every year or every assessment. In these circumstances, the Corporation and the Labour Court were justified in adopting the probable percentage theory for determining the contribution.

Conclusion: The 25% circular was held inapplicable and the assessment on probable percentage basis was upheld.

Final Conclusion: The appeal failed and the dismissal of the ESIOP was sustained, with the liability fixed at the assessed contribution for the relevant period.

Ratio Decidendi: A circular permitting assessment on a fixed percentage basis applies only where the employer cannot produce relevant records of wage elements, and where records exist but are not produced, the authority may assess contribution on a probable percentage basis.

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