The Digboi District Council For ... vs Employees' State Insurance ...
2021 Latest Caselaw 2885 Gua

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GAHC010020102016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4119/2016

            THE DIGBOI DISTRICT COUNCIL FOR CHILD WELFARE
            UNIT- SHISHU NIKETAN SCHOOL, DIGBOI, A SOCIETY REGD. UNDER THE
            SOCIETIES REGISTRATION ACT, HAVING ITS REGD. OFFICE AT
            BALBHAVAN, CMH AREA, MULIABARI, DIGBOI, TINSUKIA- 786171, REP.
            BY ITS GENERAL SECY., SRI ABU HUSSAIN



            VERSUS

            EMPLOYEES' STATE INSURANCE CORPORATION and 2 ORS.
            HEADQUARTERS OF ESIC IS LOCATED AT NEW DELHI, INDIA, ESI
            CORPORATION, KOTLA ROAD, NEW DELHI-2

            2:THE REGIONAL DIRECTOR
             EMPLOYEES' STATE INSURANCE CORPORATION
             PANCHDEEP BHAWAN
             REGIONAL OFFICE
             N.E. REGION
             BAMUNIMAIDAN
             GHY-21

            3:THE ASSTT. DIRECTOR
             EMPLOYEES' STATE INSURANCE CORPORATION
             PANCHDEEP BHAWAN
             REGIONAL OFFICE
             N.E. REGION
             BAMUNIMAIDAN
             GHY-2

Advocate for the Petitioner   : MR.S K SINGH

Advocate for the Respondent : SC, ESIC
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                                 BEFORE
                       HONOURABLE MR. JUSTICE K. SEMA

                                     ORDER

Date : 15-11-2021

Heard Mr. S.K. Singh, learned counsel for the petitioner and also heard Mr. K.K Nandi, learned counsel appearing for all the respondents.

Since there is already the judgment & order dated 28.01.2016, passed by this Court in W.P.(C) No. 4121/2009 and other linked cases on the same issue raised in the writ petition. This Court with the consent of the learned counsel appearing for the parties proposed to dispose of the present writ petition.

The petitioner is a registered society and the proprietor of the Higher Secondary School namely, Shishu Niketan, Digboi, situated at CHM Area, Mukhiabari, Digboi, Tinusukia.

The case of the petitioner is that the respondent No.3 on 10.08.2015 issued a show cause notice under section 40 read with section 39 of the Employees' State Insurance Act, 1948 (hereinafter referred to as ESI Act) to the petitioner to show cause within 30 days as to why the proposed demand of contribution of Rs. 11,79,750/- for the period from August, 2010 to June, 2015 should not be recovered from the petitioner.

The petitioner appeared before the respondent No.3 on 19.01.2016 and submitted a preliminary written submission along with documents. However, the respondent No.3 by his order dated 20.01.2016 held that the petitioner is liable to pay the contribution of Rs. 11,79,750/- for the period from December, 2010 to June, 2015.

That aggrieved by the order passed by the respondent No.3, the petitioner Page No.# 3/4

preferred an appeal before the respondent No.2 by making the payment of the statutory deposit of 25% amounting to Rs. 2,94,938/-. The respondent No.2 after hearing the petitioner by order dated 05.05.2016, assessed the contribution payable by the petitioner at Rs. 5,45,870/- for the period from 12/2010 to 06/2015. The order dated 05.05.2016 was passed under section 45- AA of the ESI, Act, 1948. It is however, the case of the petitioner that while passing the order, the respondent No.2 did not take into consideration the judgment & order dated 28.01.2016, passed by this Court in W.P.(C) No. 4121/2009. Paragraph-21 of the judgment & order dated 28.01.2016 read as follows;

"21. In the backdrop of the above reasoning, the extension of ESI Act, to cover the educational institutions through the impugned notification dated 06.01.2009 is found to be in order and accordingly the contention raised by the petitioners to the contrary, are rejected. However, since the operation of the impugned notification was stayed by this Court, it should be applied prospectively to the educational institutions and no school be forced to subjugate themselves retrospectively, under the ESI Act. It is ordered thus. "

From the observations made by this Court, it is clear that the extension of ESI Act, to cover the educational institutions through the impugned notification dated 06.01.2009 was found to be in order and accordingly the contention raised by the petitioners therein has been rejected. However, the Court has observed that since the operation of the impugned notification was stayed by this Court, it should be applied prospectively to the educational institutions and no school be forced to subjugate themselves retrospectively, under the ESI Act. It is ordered thus.

In view of the order passed by this Court, it is clear that the contribution under the ESI Act in respect of the educational institution should be assessed Page No.# 4/4

prospectively i.e. post 28.01.2016.

Accordingly, the order passed by the Regional Director/Appellate authority under section 45-AA of the ESI Act, 1948, dated 05.05.2016 directing the petitioner to contributed Rs. 5, 54,870/- for the period from 12/2010 to 06/2015 is hereby set aside. The respondents shall however, assess the contribution to be made by the petitioner, under the ESI Act w.e.f. 01.02.2016. The statutory deposit of 25% amounting to Rs. 2,94,938/- which was deposited by the petitioner for preferring an appeal under section 45-AA of the ESI Act, 1948 shall not be refunded to the petitioner but shall be adjusted against the assessment of contribution w.e.f. 01.02.2016.

With the above observations, the writ petition is disposed of. No order as to cost.

JUDGE

Comparing Assistant