Circular No.11/2002-03 has been issued for standardization of procedure for issuance of demand under Section 12(3) of the EOB Act, 1976. According to the law, there can be following situations for assessment of contribution under the above Section:-

i) Where assessment is made on the basis of information furnished by the employer or books of accounts and the employer raises no objection.

ii) Where the employer raises objection to the proposed assessment but settlement/agreement is arrived at after confrontation of facts and evidence coming to light through checking of books of accounts and discussion held on the issues involved.

iii) Where the employer contests the assessment and does not agree with the liability determined by the authorized officer on factual or legal grounds.

iv) Where the employer fails to provide information as well as books of accounts and the authorized officer has to pass assessment order on the basis of evidence available with him under Section 12(3) of the EOB Act, 1976.

1.1     In the first situation, the authorized officer determines contribution on the basis of information called by him and no dispute is raised hence, it may be called an "Admitted Assessment" where no objection is raised. For such assessment format 002.1 has been prescribed.

1.2     Where the employer objects to the assessment but agrees after confrontation of evidence and checking of books of accounts, brief Order signed by both parties as per format SL-002.2 will meet the ends of justice.

1.3     In the last two situations, where assessment is contested on the basis of factual or legal grounds or the employer fails to provide information and books of accounts, a detailed Speaking Order fulfilling the requirement of natural justice has to be passed.

2. Following guidelines are, therefore, issued to enable the authorized officer to pass fool-proof order elaborating facts and stressing legal provision to substantiate his assessment and determination of contribution after giving due opportunity of being heard in adherence to principles of natural justice. 3. Both in case of disagreement and ex-parte decision, Show Cause Notice under Section 12(3) is necessary to confront the employer with the evidence and relevant provisions of statute and case law to justify authorized officer's decision for applicability of the Act and accuracy in determination of contribution. A good order should be structured on the following format:-

a)  INTRODUCTION:

In the opening paragraph of the order, basic facts about the business such as nature, location, history, status etc. should be discussed to justify the applicability of EOB Act 1976 to the establishment or industry as defined in Section 2(e) and 2(g) of the EOB Act-1976.

b) CONFRONTATION OF EVIDENCE THROUGH SHOW CAUSE NOTICE UNDER SECTION 12(3) OF THE EOB ACT, 1976.

Section 12(3) specifically states that contribution should be assessed on the basis of such evidence as the Institution may find satisfactory. The onus of proving applicability of the Act and the accuracy of assessment of contribution lies on the authorized officer. The law of natural justice demands that the employer should be confronted with the evidence relied upon by the authorized officer. It is, therefore, imperative that the authorized officer discusses the contents of Show Cause Notice briefly highlighting the evidence relied upon by him. An extract from Show Cause Notice served on the employer may be reproduced in the second part of the order.

c) RECORDING EMPLOYER'S REBUTTAL IN THE ORDER U/S 12(3):

Employer's rebuttal should be faithfully recorded in the order. If warranted by facts of the case, relevant extract from rebuttal to Show Cause may be reproduced.

d) APPRAISAL OF EVIDENCE:

Authorized Officer after statement of facts and evidence confronted through Show Cause Notice and its rebuttal, should give dispassionate appraisal of evidence and evaluation of rebuttal given by the employer.

e) DISCUSSION OF LEGAL ISSUES:

Where a legal issue is involved the case law quoted by the employer should be analyzed with reference to relevancy and application to the case under consideration. The update law on the subject should be located with the help of Law Officer and after proper comprehension of the cases reported in relevant Law Journals. The case law in favour of the authorized officer should be discussed to arrive at a correct legal interpretation.

f) CORROBORATING EVIDENCE:

The accuracy of evidence relied upon by the authorized office should be highlighted with reference to consistent and corroborating facts and evidence. Parallel cases in support of the authorized officer's decision may be quoted both in the Show Cause Notice and in appraisal of evidence and rebuttal of employer's contention.

g) JUDICIOUSNESS:

The judiciousness in framing of assessment and determination of contribution is of paramount importance for restoration of confidence of the employer in the credibility of the Institution. Prompt dispensation of justice at the assessment stage is likely to encourage the employers to make correct payment of contribution and improve compliance thereby increasing viability of the Institution and reduction in cost. The success of the Institution in contested Adjudication cases u/s 33, 34 & 35 shall establish the capability of the authorized officers to determine correct amount of contribution, which is upheld by judicial foura.

h. CONCLUSION:

After detailed discussion of full facts, the authorized officer should give the basis of his assessment and determination of contribution alongwith proper reasoning.

                                                                                                              (Muhammad Shafi Malik)
                                                                                                                          Chairman