Gauhati High Court
Mrs. Reeta Dutta Hazorika vs Employee State Insurance ... on 24 November, 2021
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GAHC010017332015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4041/2015
MRS. REETA DUTTA HAZORIKA
I/C PRINCIPAL NARENGI ANCHALIK MAHAVIDYALAYA W/O SRI SANJEEV
HAZORIKA R/O WIRELESS, DISPUR, GUWAHATI-6.
VERSUS
EMPLOYEE STATE INSURANCE CORPORATION and 3 ORS.
REP. BY THE ASSISTANT DIRECTOR EMPLOYEE STATE INSURANCE
CORPORATION, REGIONAL OFFICE BAMUNIMAIDAN, GUWAHATI-21.
2:RECOVERY OFICER
EMPLOYEE STATE INSURANCE CORPORATION
REGIONAL OFFICE BAMUNIMAIDAN
GUWAHATI-21
3:THE DIRECTOR OF HIGHER EDUCATION
KAHILIPARA
GUWAHATI-21.
4:THE BRANCH MANAGER
UCO BANK
BONDA BRANCH
NARENGI
GUWAHATI-26
ASSAM
Advocate for the Petitioner : MR.A BAISHYA
Advocate for the Respondent : SC, HIGHER EDUCATIONR3
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BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 24-11-2021
Heard Mr. A. C. Sarma, learned senior counsel for the petitioner.
Also heard Mr. K. K. Nandi, learned Standing counsel for respondents
no. 1 and 2 and Ms. P. B. Mahanta, learned counsel for respondent
no.3. None appears for the respondent no.4.
2. This writ petition has been filed by the petitioner, who is the in-
charge Principal of the Narengi Anchalik Mahabidyalaya assailing the
communication dated 21.04.2015 issued by the respondent no.2
demanding an amount of Rs.706678/- (Rupees Seven lakh Six
Thousand Six hundred Seventy Eight) only as the employer's arrear
contribution under to the ESI scheme. The petitioners were
aggrieved by the impugned demand of appears raised by the (ESIC).
The college was established in the year 1991 and is situated at
Narengi, Guwahati. Initially the college was running as a venture
college with financial help from the local people. Thereafter from the
year 2002 it received grants-in-Aid from the Government. And
thereafter the Government of Assam vide Gazette Notification dated
05.09.2011 had provincialised the college with effect from
01.01.2013. The college is imparting education in two streams i.e.
Arts and Commerce and there are about 1700 students and 38
teaching staff and 15 office staff at present.
3. The learned Senior counsel for the petitioner submits that the
college teachers and staff do not come under the purview of the ESI
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Act, hence the college is not liable for payment of any arrear amount
towards the contribution of ESI Scheme.
4. Per contra, Mr. K. K. Nandi, learned standing counsel for the
ESI submits that the vide notification dated 06.01.2009, issued by
the Government of Assam under Section 1 sub-Section 5 of the ESI
Act, 1948. It was notified that educational institutions including
private/public aided or partially aided run by Individuals, Trustees,
Societies or other Organization wherein 20(twenty) or more persons
are employed or were employed on any day in the preceeding
12(twelve) months, will come within the purview of the ESI Act.
5. Mr. Nandi, learned standing counsel further refers to the
Judgement of the Co-ordinate Bench of this Court in All Assam
English Medium Schools Association and Ors. -Vs- State of Assam &
Ors., reported in 2016 (2) GLT 495 to submit that the issue involved
in the present proceeding is squarely covered by the said Judgment.
6. Having heard the learned counsels for the parties and also
having perused the pleadings on record, this Court finds that the
notification dated 06.01.2009 has brought All Educational
Institutions under the purview of the ESI Act. That being the case of
the petitioner institution being an education institution will also came
within the purview of "Establishment" under the ESI Act. It is not
disputed that the numbers of persons employed under the School in
the previous year also exceeds more than 20(Twenty). The
Notification dated 6th January, 2009 is extracted below:-
"The 6th January, 2009
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No. GLR.214/2005/94.- In exercise of the powers conferred by sub-
section (5) of the Section 1 of the Employees State Insurance Act, 1948 (34
of 1948), the Government of Assam having already given six months notice
as required thereunder vide Government of Assam Notification No. GLR
214/2005/84, dated 3rd December, 2007 published in the Gazette of Assam
dated 9th April, 2008 hereby appoints with effect from 1 st January, 2009 as
the date on which all the provisions of the said Act shall extend to all the
establishments and in areas as specified in the Schedule annexed hereto-
SCHEDULE
Description of Establishments Areas in which the establishments are situated
(1) (2)
Educational Institutions (including public, Areas where the scheme under the
private, aided or partially aided) run by Employees' State Insurance Act, 1948 has
individuals trustees, Societies or other already been brought into force under
organizations, wherein 20 or more persons Section 1 (3) and 1 (5) in the State of Assam.
are employed or were employed for wages
on any day of the proceding twelve months.
7. We have carefully perused the Judgement dated 28.01.2016 passed
in WP(C) No. 4121/2009 by the Co-ordinate Bench of this Court. It is seen
that the said Judgment deals with the issue as to whether an education
institution can be included or is included within the definition of
"Establishment" as provided ESI Act, 1948.
8. The Co-ordinate Bench of this Court vide the said judgment after
elaborately discussing various case laws, rejected the contentions of the
petitioner therein that they were excluded from the purview of ESI Act,
and thereupon came to a finding that all education institutions including
the petitioner therein are included within the purview of the definition of
establishment as provided under ESI Act. It is also stated in the Bar that
there was no appeal against the Judgment and the same has attained
finality as on date.
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9. Having perused the Judgment carefully, this Court finds that the issue
involved in the present proceedings had already been decided by a Co-
ordinate Bench as is reveal from the Judgment dated 28.01.2016 passed
in WP(C) No. 4121/2009. This Court respectfully concurs with the findings
of the Co-ordinate Bench held in 28.01.2016 passed in WP(C) No.
4121/2009 and, therefore, holds that the Judgment rendered by this Court
in 28.01.2016 passed in WP(C) No. 4121/2009 will also cover the issues
raised in the present proceedings. Accordingly, the contentions of the
petitioner and the prayers made in the present proceeding cannot be
accepted. It is held that the petitioner is an educational institution will be
included within the definition of "Establishment" and is therefore covered
under the purview of ESI Act, 1948. However, direction of the Co-ordinate
Bench in the aforesaid Judgment that the notification will be applied
prospectively is a direction which perhaps was given in the facts and
circumstances of that case and in the absence of any reasons therfor the
same cannot be made applicable in all cases including the present
proceedings.
10. In view of the above, the writ petition is dismissed. No order as to
costs.
JUDGE
Comparing Assistant
