The National Educational Society vs The Employees State Insurance ...
2023 Latest Caselaw 1753 Gua

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GAHC010001012022




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

                             Case No. : WA/19/2022

         THE NATIONAL EDUCATIONAL SOCIETY
         AMINGAON, BONDA, NARENGI, GHY-28, ASSAM OWNER OF NATIONAL
         SCHOOL, AMGAON, BORDA, NARENGI, GHY-28, DIST- KAMRUP METRO,
         ASSAM, REP. BY ITS SECRETARY



         VERSUS

         THE EMPLOYEES STATE INSURANCE CORPORATION AND 2 ORS.
         NORTH EASTERN REGION, BAMUNIMAIDAM, GUWAHATI-26, DIST-
         KAMRUP METRO, ASSAM

         2:THE ASSISTANT DIRECTOR

          AUTHORIZED OFFICER
          EMPLOYEES STATE INSURANCE CORPORATION
          NORTH EASTERN REGION
          BAMUNIMAIDAM
          GUWAHATI-26
          DIST- KAMRUP METRO
          ASSAM

         3:THE RECOVERY OFFICER

          AUTHORIZED OFFICER
          EMPLOYEES STATE INSURANCE CORPORATION
          NORTH EASTERN REGION
          BAMUNIMAIDAM
          GUWAHATI-26
          DIST- KAMRUP METRO
          ASSA

For the Appellant(s)     :    Mr. O.P. Bhati, Adv.,
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                                  Mr. S.K. Gupta, Adv.


For the Respondent(s)       :   Mr. M. Smith, SC, ESIC.



                                   BEFORE
                      HON'BLE THE CHIEF JUSTICE
             HON'BLE MRS. JUSTICE MITALI THAKURIA


                                      ORDER

03.05.2023

Issue notice to the respondents.

Mr. M. Smith, learned counsel appears for all the respondents.

In response to the observation made by this Court on the previous date of hearing, learned counsel Mr. O.P. Bhati urged that the instant appeal has been filed with a prayer to give benefit of the judgment rendered by a coordinate bench of this Court in WP(C) No.4121/2009. However, as the learned Single Bench has concluded that the said judgment would not be applicable to the appellant, it would not serve any purpose if the appellant is relegated to approach the ESI Court constituted under Section 74 of the ESI Act.

Mr. O.P. Bhati, learned counsel for the appellant has referred to the order dated 28.01.2016 passed by the learned Single Bench of this Court in WP(C) No.4121/2009 whereby, the notification dated 06.01.2009 covering the educational institutions under the ESI Act was affirmed. But a direction was given to apply the same prospectively to the educational institutions in view of the fact that the notification was stayed during pendency of the said writ Page No.# 3/3

petition.

Learned counsel submits that in view of the aforesaid pronouncement of this Court, the appellant herein could not have been subjugated to the effect of the notification because the recovery which has been demanded under the impugned notice pertains to the period between June, 2011 to September, 2014, which is impermissible by virtue of the above judgment.

The matter requires consideration. Thus, the respondents' counsel are given liberty to file their affidavits in this appeal because no pleadings were filed on their behalf in the writ petition.

In the meanwhile, recovery shall not be effected from the appellant pursuant to the order dated 30.06.2015 (Annexure-B of the writ petition).

List after 4(four) weeks.

                 Sd/- Mitali Thakuria          Sd/- Sandeep Mehta
                         JUDGE                    CHIEF JUSTICE



Comparing Assistant