M/S Sree Narayana Vidyapeetam ... vs Employees State Insurance ...
2023 Latest Caselaw 3383 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
  FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945


                 WP(C) NO. 10351 OF 2023

PETITIONER

         M/S SREE NARAYANA VIDYAPEETAM PUBLIC SCHOOL
         KOTTAPPURAM ROAD, FACT NAGAR, TRIPUNITHURA,
         ERNAKULAM, PIN - 682301, REPRESENTED BY ITS
         MANGER.,

         BY ADVS.
         P.G.JAYASHANKAR
         P.K.RESHMA (KALARICKAL)
         S.RAJEEV (K/001711/2019)
         SAJANA V.H
         VINITHA S.T.
         RUBY K. ROY


RESPONDENT:

         EMPLOYEES STATE INSURANCE CORPORATION
         SUB REGIONAL OFFICE, ERNAKULAM, BSNL BHAVAN,
         KALATHIPARAMBU ROAD, ERNAKULAM, PIN - 682016
         REPRESENTED BY ITS DEPUTY DIRECTOR,


         SRI TV AJAYAKUMAR, SC



     THIS WRIT PETITION     (CIVIL) HAVING COME UP      FOR
ADMISSION ON 24.03.2023,    THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.10351 of 2023

                                 2




                              JUDGMENT

The petitioner, M/s Sree Narayana Vidyapeetam Public School is

established in the year 1991 and run by M/s Sree Narayana Vidyapeetam,

a society registered under the provisions of the Travancore-Cochin

Literary, Scientific and Charitable Societies Registration Act, 1955. They

have approached this Court seeking to quash Ext.P1 and for a declaration

that the demand made by the respondent in Ext.P1 is unreasonable.

They have also sought for direction to the respondent not to proceed with

Ext.P1 demand.

2. According to the petitioner, Ext.P1 notice was issued by the

respondent purportedly by invoking the powers under Section 85 B of the

Employees State Insurance Act, 1948, read with Regulation 31C of the

ESI (General) Regulations, 1950. In the notice so issued, the petitioner

was informed that the petitioner has failed in making contributions within

the stipulated time and in the manner prescribed in ESI (General)

Regulations, 1950. It is contended that the demand raised in Ext.P1 W.P.(C) No.10351 of 2023

pertains to the period which is already covered under Exts.P2 and P3

notices and in respect of which amounts have been paid by the petitioner

herein. It is the case of the petitioner that though no time limit has been

prescribed in the Act or in the Regulations for invocation of powers under

85B, by applying general principles and the general period of limitation,

the respondent will not be justified in exercising powers in respect of

belated claims.

3. In response, the learned Standing counsel appearing for the

ESI Corporation submitted that Ext.P1, which is under challenge in this

writ petition, is merely a show cause notice issued in exercise of powers

under Section 85B (1) of the ESI Act. According to the learned counsel,

on receipt of Ext.P1 notice, the petitioner was afforded a personal hearing

on 12.01.2023, on which date the petitioner had appeared before the

officer and had sought for time. The matter was thereafter posted on

15.02.2023; however, no objection was filed. Later, the matter was

posted on 03.03.2023, on which date the petitioner again sought for time

to file an objection. According to the learned counsel, the provisions of W.P.(C) No.10351 of 2023

the Act mandate that before recovering the damages, the employer has to

be given a reasonable opportunity of being heard, and it is on the basis of

the above statutory provision that repeated notices were issued to the

petitioner herein. According to the learned standing counsel, all these

aspects have been suppressed while filing this writ petition. The learned

standing counsel has relied on the law laid down by the Apex Court in

The Executive Engineer, Bihar v. Ramesh Kumar Singh & Ors

[1996 SCC (1) 327], and it is argued that ordinarily, a writ petition cannot

be maintained against a show cause notice.

4. I have considered the submissions advanced by the learned

counsel appearing for the petitioner and the learned Standing Counsel

appearing for the respondent.

5. As rightly submitted by the learned standing counsel

appearing for the respondent, the vires of the statutory provision are not

under challenge in this writ petition. Ext.P1 dated 16.12.2022 is merely a

show cause notice. It is undisputed that the petitioner had responded to

the notice and had appeared before the officer concerned. The ESI Act is W.P.(C) No.10351 of 2023

a social welfare legislation, and if a notice alleging the failure of the

employer is issued by the officer concerned, it is for the petitioner to

appear and raise his contentions. The petitioner has no case that there

has been any infringement of the fundamental rights guaranteed by the

Constitution is alleged or proved. As the notice has been issued in

exercise of powers conferred on the officer under Section 85 of the Act, it

cannot be said that Ext. P-1 notice is ex facie a "nullity" or totally "without

jurisdiction." I am of the considered opinion that it is only appropriate that

the petitioner should appear before the authority concerned and take up

the objections which can be legitimately raised by them, either on facts or

on the law. I find no reason to invoke the extraordinary jurisdiction under

Article 226 of the Constitution of India to invalidate Ext.P1 show cause

notice.

6. At this stage, Sri. P. G. Jayashankar, the learned counsel

appearing for the petitioner, submits that the petitioner shall appear

before the respondent within a period of 15 days and furnish his

objection. It is submitted that all the legal contentions raised by the W.P.(C) No.10351 of 2023

petitioner be left open.

In view of the above submission, this writ petition is dismissed,

however, by leaving open all the contentions raised by the petitioner in

this writ petition. It would be open to the petitioner to appear before the

officer concerned and raise objections to the show cause notice. The

Officer shall consider the same untrammeled by any of the observations

made by this Court while disposing of this matter.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE IAP W.P.(C) No.10351 of 2023

APPENDIX OF WP(C) 10351/2023

PETITIONER'S EXHIBITS:

Exhibit P1                 A TRUE COPY OF THE NOTICE DATED
                           16.12.2022 ISSUED UNDER REG. 31C OF ESI
                           (GENERAL) REGULATIONS, 1950 READ WITH S.
                           85B (1) OF THE ESI ACT

Exhibit P2                 A TRUE COPY OF THE NOTICE DATED
                           24.07.2018 ISSUED TO THE PETITIONER

Exhibit P3                 A TRUE COPY OF THE NOTICE DATED
                           24.07.2018, DEMANDING THE INTEREST FROM
                           DECEMBER 2010 TO APRIL 2018

Exhibit P4                 A TRUE COPY OF THE CHELLAN NO.
                           04718128796883 DATED 17.09.2018

Exhibit P5                 A TRUE COPY OF THE DEMAND NOTICE DATED
                           21.09.2018 ISSUED TO THE PETITIONER

Exhibit P6                 A TRUE COPY OF THE CHELLAN DATED
                           05.10.2018