Madras High Court
Csi Ewart Matriculation Higher ... vs The Government Of Tamil Nadu on 28 March, 2022
W.P.No.7040 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.7040 of 2022
and
W.M.P.No.7075, 7076, 7077 of 2022
CSI Ewart Matriculation Higher Secondary School,
Plot No.22/1, Soundarya Colony,
Anna Nagar, West Extension, Chennai 100 101. ... Petitioner
vs.
1.The Government of Tamil Nadu
Rep. by its Principal Secretary,
Labour and Employment Department,
Fort St.George, Chennai – 600 009.
2.ESI Regional Corporation (Tamil Nadu),
Rep. by its Regional Director,
143, Sterling Road, Chennai – 600 034.
3.ESI Regional Corporation (Tamil Nadu),
Rep. by its Deputy Director,
143, Sterling Road, Chennai – 600 034.
4. ESI Regional Corporation (Tamil Nadu),
Rep. by its Recovery Officer,
143, Sterling Road, Chennai – 600 034. ...Respondents
1/9
https://www.mhc.tn.gov.in/judis
W.P.No.7040 of 2022
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, calling for the
records pertaining to the impugned notice dated 12.10.2021 in
No.51001007190001302/CP/452509 CCR-105281 on the file of 4th
respondent, in respect of the petitioner school and quash the same, directing
the respondents to waiver of interest.
For Petitioner : Dr. Father Xavier Arul, Senior Counsel
for Father Xavier Associates
For Respondents : Mr.S.Prabhakaran, Govt.Advocate for R1
Mr.G.Bharadwaj, Standing Counse for R2.
ORDER
By consent of both the counsels, this writ petition is taken up for final
disposal at the admission stage itself.
2. This writ petition has been filed seeking to issue a Writ of
Certiorarified Mandamus quashing the impugned notice of demand to
defaulter dated 12.10.2021 and also directing the respondents to waiver of
interest.
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W.P.No.7040 of 2022
3. The case of the petitioner in brief:
The petitioner school was established and is being administered by the
Church of South India, Diocese of Madras and it is an unaided School and
they collecting fees from the students, as determined by the Tamil Nadu
Private Schools Fee-Determination Committee. While that being so, the
Government of Tamilnadu has issued a G.O.(MS)No.237 Labour and
Employment(K1) Department dated 26.11.2010, extending ESI coverage to
unaided/self financing educations institutions. The above G.O. was
challenged by petitioner and by various institutions and thereafter, the batch
cases were referred to the Full Bench of this Court. The Full Bench of this
court vide its order dated 29.07.2020 in W.P.No.34246 of 2019, had extended
the ESI contribution to the private Education Institutions Also.
3.1. After delivering of Judgment by the Full Bench of this Court, the
third respondent had issued show cause notice dated 22.10.2020, to pay a
sum of Rs.20,95,316/- and it was challenged by the petitioner by filing writ
petition in W.P.No.18899 of 2020. This court vide order dated 21.12.2020
has passed order in W.P.No.18890 of 2020 and batch, thereby remanded back
the matters to ESI Corporation for reconsideration and also gave further
directions. Challenging the above order, the ESI Corporation has filed appeal
https://www.mhc.tn.gov.in/judis
W.P.No.7040 of 2022
in W.A.No.1444 of 2021 and it is still pending.
3.2. Subsequently, the fourth respondent issued impugned notice of
demand to pay a sum of Rs.23,69,551/- towards contribution, interest and
costs. The above notice is highly untenable, in the light of the orders passed
by the Full Bench of this Court. While disposing the case, the Full Bench of
this Court has directed the ESI Corporation to consider the cases in respect of
all pending arrears of contribution, interest and damages for waiver and right
off losses, inview of the pandeic lock down and the ensuingeconomic melt
down. Further more, demanding payment of arrears of contribution with
interest for the period from 12/2010 to 10/2020 up to 28/09/2021 is illegal.
Hence this writ petition.
4. Heard the counsel for the petitioner and the counsel for the
respondents.
5. In the impugned notice of demand dated 12.10.021, the following
amounts are demanded by the 4th respondent, as extracted hereunder.
https://www.mhc.tn.gov.in/judis
W.P.No.7040 of 2022
1 Contribution Amount from 12/2010 to Rs.14,07,939
12/2020
2 Interest up to 28/09/2021 Rs. 9,61,547
39(5) of ESI Act
4 Cost Rs. 65
5 Further interest @462.88 per day
w.e.f.29.09.2021 till
date of payment
Total Rs.23,69,551
6. The learned counsel appearing for the petitioner submitted that,
inview of the pandemic situation, the petitioner is not able to mobilize the
huge amount of Rs.23,69,551/- as demanded by the fourth respondent within
a short period and hence, seeks time to make the above amount in monthly
installments.
7. The learned counsels appearing for the respondents submitted that
though the petitioner has challenged the impugned notice of demand dated
12.10.2021, they showed their bonafide intention to pay the amounts by way
of installments. Therefore, if any orders passed by this court to pay the
demanded amount in installments, it will be accepted by the authorities,
subject to the condition that in default to pay even one installment, the
respondent is at liberty to proceed further, in accordance with law. He has
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W.P.No.7040 of 2022
also relied upon a decision of the Hon'ble Supreme Court in C.A.No.8432 of
2001, dated 07.07.2008, , wherein, it is stated as follows:
6. As there was delay in making the payment of the contribution, the
Corporation had issued notice on 29.06.1990 at the first instance
and thereafter, the order passed under Section 45(A) of the Act on
23.07.1992. The same was challenged before the ESI Court, in
which an interim Stay was granted on 09.10.1992. During the
pendency of the matter, there was re-verification and the quantum
payable by the payment was worked out. The liability to pay
interest is statutory. There is no power of waiver. The question of
any compromise or settlement does not really arise. Even
otherwise the order of the ESI Court referred to and relied upon by
the appellant is of no assistance to the appellant. It only noted
statement of the appellant that he had deposited contribution
payable. The reference to " no further due" is obviously relatable to
the contribution payable and nothing beyond that.
Therefore, in the light of the above decision of the Apex Court, the petitioner
has to pay the statutory interest. He further submitted that, earlier show
cause notice dated 22.10.2020 to pay a sum of Rs.20,95,316/- was challenged
by the petitioner in W.P.No.18890 of 2020, wherein, this court had passed
order on 21.12.2020. Challenging the order passed in the above writ petition,
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W.P.No.7040 of 2022
the ESI Corporation has filed W.A.No.1444 of 2021 and the same is pending.
8. In view of the above and taking into account the submission of the
counsel for the petitioner that inview of the present Pandemic Situation, the
petitioner cannot able to mobilize the huge amount of demand, within a short
time, this court is inclined to grant time to repay the amount in 10 equal
monthly installments. The learned counsel for the respondents also has no
serious objection.
9. Accordingly, it is ordered as follows:
i) The petitioner is directed to pay a sum of Rs.23,69,551/- (Rupees
twenty three lakhs sixty nine thousand five hundred and fifty one) in ten
equal monthly instalments commencing from April 2022.
ii) The first instalment shall commence from 10.04.2022 and the
petitioner is directed to pay the remaining nine installments, on or before
10th day of every succeeding calender months.
iii) If the petitioner is failed to pay even one installment, the fourth
respondent is at liberty to proceed further, in accordance with law.
iv) This order is passed, subject to the out come of W.A.No.1444 of
2021.
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W.P.No.7040 of 2022
10. With the above direction, this writ petition is disposed of. No
costs. Consequently, connected miscellaneous petition is are closed.
28.03.2022
Index : Yes / No
Internet : Yes / No
mst
To
1.The Principal Secretary to Government,
State of Tamil Nadu
Labour and Employment Department,
Fort St.George, Chennai – 600 009.
2. The Regional Director,
ESI Regional Corporation (Tamil Nadu),
143, Sterling Road, Chennai – 600 034.
3.The Deputy Director,
ESI Regional Corporation (Tamil Nadu),
143, Sterling Road, Chennai – 600 034.
4. The Recovery Officer,
ESI Regional Corporation (Tamil Nadu),
143, Sterling Road, Chennai – 600 034.
https://www.mhc.tn.gov.in/judis
W.P.No.7040 of 2022
D.KRISHNAKUMAR. J
mst
W.P.No.7040 of 2022
28.03.2022
https://www.mhc.tn.gov.in/judis
