Madras High Court
Csi Jessie Moses Matric Higher ... vs E.S.I-Regional Corporation ... on 22 April, 2021
W.P.Nos.124 & 214 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.124 & 214 of 2021 and
WMP Nos.177, 274, 279 & 283 of 2021
CSI Jessie Moses Matric Higher Secondary School,
Represented by its Correspondent,
Z-183 V Avenue, Anna Nagar,
Chennai – 600 040. ... Petitioner in both W.Ps.
-vs-
1. E.S.I-Regional Corporation (Tamil Nadu)
Represented by its Regional Director,
143, Sterling Road,
Chennai – 600 034.
2. Employees' State Insurance Corporation,
Represented by Deputy Director,
143, Sterling Road,
Chennai – 600 034.
3. The Recovery Officer,
Office of the Recovery Officer,
ESI Corporation,
Panchdeep Bhawan,
143, Sterling Road,
Chennai – 600 034. ... Respondents in both W.Ps.
4. Chief Manager,
Indian Overseas Bank,
Town Branch, AH-I Perfect Towers,
Shanthi Colony, Anna Nagar West,
Chennnai – 600 040. ... Respondent in W.P.No.214 of 2021
https://www.mhc.tn.gov.in/judis/
W.P.Nos.124 & 214 of 2021
Prayer in W.P.Nos.124 of 2021: Writ Petition filed under Article 226 of the
Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus,
calling for the records pertaining to the impugned notice dated 29.10.2020 in No.51-00-
100379-000-1302/, on the file of the 2nd respondent in respect of the petitioner school
and quash the same, directing the respondents to consider the waiver of arrears of
contribution, Interest and Damages u/s. 91 C of ESI Act, 1948, in terms of the order
dated 29.07.2020 of the Full Bench of this Court in the batch of writ petitions in
W.P.No.34246 of 2019.
Prayer in W.P.Nos.214 of 2021: Writ Petition filed under Article 226 of the
Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus,
calling for the records pertaining to the impugned attachment order dated 10.11.2020, in
No.51-00-100379-000-1302/CCR 9572995731, on the file of the 3rd respondent and the
consequential letter dated 19.11.2020, on the file of the 4th respondent in respect of the
petitioner school and quash the same, directing the respondents 1 to 3 to consider the
waiver of arrears of contribution, Interest and Damages u/s. 91 C of ESI Act, 1948, in
terms of the order dated 29.07.2020 of the Full Bench of this Court in the batch of writ
petitions in W.P.No.34246 of 2019.
For Petitioner : Father Xavier Arulraj
For M/s.Father Xavier Associates
For Respondents : Mr.G.Bharadwaj, (R1 to R3)
Standing Counsel
COMMON ORDER
These Writ Petitions are filed, to quash the proceedings dated 29.10.2020 and
10.11.2020 passed by the 2nd and 3rd respondents respectively and for a consequential
direction to the respondents 1 to 3 to consider the waiver of arrears of contribution,
interest and damages under Section 91(C) of ESI Act, 1948, in terms of the order dated
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W.P.Nos.124 & 214 of 2021
29.07.2020 of the Full Bench of this Court in the batch of writ petitions in
W.P.No.34246 of 2019.
2. According to the Petitioner-School (hereinafter referred to as 'the School'), the
contribution has been paid along with interest and other charges to the ESI Corporation
and the interest amount and damages claimed has been paid without prejudice to the
rights of the School in W.P.No.124 of 2021. It is the case of the School that in terms of
the Full Bench Judgment of this Court in a batch of writ petitions in W.P.No.34246 of
2019 dated 29.07.2020, more particularly, Paragraph Nos.131 and 132 of the said
judgment, having reference to Section 91 C of the ESI Act, the School is entitled to
waiver of interest and damages.
3. It is further case of the School that insofar as the case in W.P.No.124 of 2021 is
concerned, a Show Cause Notice has been issued in Form C-18, asking the School to
pay the amount, failing which action would be initiated under various provisions of the
ESI Act. Even though several legal pleas have been raised in respect of W.P.No.214 of
2021, Mr.Father Xavier Arulraj, learned counsel appearing for the School submitted that
they are willing to pay the contributions and the School may be granted the benefit of
Section 91 (C) of the ESI Act, 1948, as stated supra.
4. Per contra, learned counsel appearing for the ESI Corporation draws the
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W.P.Nos.124 & 214 of 2021
attention of this Court to the communication issued by the ESI Corporation, instructing
the School to pay the entire amount due to ESI Corporation in W.P.No.124 of 2021 and
the School, at no point of time, demanded for waiver of interest and damages. The
submission put forth by the School, that the amount has been paid under protest and
without prejudice to their rights, is incorrect, as the entire amount has been paid without
any arrears and therefore, nothing survives in the Writ Petition in W.P.No.124 of 2021.
5. Learned counsel appearing for the ESI Corporation further contended that
insofar as W.P.No.214 of 2021 is concerned, it is actually a C-18 notice, asking the
petitioner to give the details and pay the contributions, failing which, appropriate
recovery proceedings would be initiated and it cannot be construed that recovery
proceedings had already commenced. It is also contended that as on date, the
contributions were not paid for the period in question in W.P.No.214 of 2021. It is the
contention of the ESI that Section 91(C) will not be attracted in the present situation,
more so, in the light of Rule 53 of the ESI (Central) Rules, 1950. For the sake of
convenience, Section 91(C) and Rule 53 are extracted hereunder:
“Section 91(C) - Writing off of losses Subject to the conditions as
may be prescribed by the Central Government, where the Corporation is of
opinion that the amount of contribution, interest and damages due to the
Corporation is irrecoverable, the Corporation may sanction the writing off
finally of the said amount.
Rule 53. Writing off of losses. — (1) Where the Corporation is of the
opinion that the amount of contribution, interest and damages due to the
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W.P.Nos.124 & 214 of 2021
Corporation has become irrecoverable, the Corporation or any other officer
authorised by it in this behalf may sanction the writing off of the said
amount, subject to the following conditions, namely :— (i) establishment or
factory has been closed for more than five years and the whereabouts of the
employer cannot be ascertained, despite all possible efforts ; (ii) decree
obtained by the Corporation could not be executed successfully for want of
sufficient assets of the defaulting employer ; or (iii) claim for contribution is
not fully met by — (a) the Official Liquidator in the event of
factories/establishments having gone into liquidation ; or (b) the
Commissioner, of payments in the event of unit being nationalised or taken
over by the Government.”
6. Heard the learned counsel on either side and perused the materials available on
record.
7. It is not in dispute that the entire amount has been paid for the period is
question in respect of the issue in W.P.No.124 of 2021 and therefore, nothing survives
for further adjudication, insofar the said Writ Petition, is concerned. From the records, it
could be seen that the School had not sought for waiver of interest and damages on
previous occasion. However, such a lackadaisical attitude of the School will not
preclude it from claiming waiver in future, more particularly in the light of the judgment
of the Full Bench of this Court.
8. It is needless to mention that the Respondents, bearing in mind the judgement
of the Full Bench of this Court shall consider the claim of the School and pass
S.VAIDYANATHAN,J.,
https://www.mhc.tn.gov.in/judis/
W.P.Nos.124 & 214 of 2021
vum
appropriate orders, taking into account the current Pandemic situation and the relevant
provisions of the Act and Rules made thereunder. It is open to the School to pay actual
contribution in future and if any instalments is sought for by the School, the same shall
be considered in view of the present Covid situation.
9. For the foregoing discussions and observations, the W.P.No.124 of 2021 is
dismissed as infructuous and W.P.No.214 of 2021 is disposed of. Consequently,
connected Miscellaneous Petitions are closed.
22.04.2021
Index: Yes / No
Speaking order /Non speaking order
vum
W.P.Nos.124 & 214 of 2021
https://www.mhc.tn.gov.in/judis/
