Madras High Court
R.C.Diocese Of Kottar vs The Director on 6 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
Rev.aplc(MD).No.163 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 04.04.2025
JUDGMENT PRONOUNDED ON : 09.04.2025
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
REV.APLC(MD)No.163 of 2024
in
CMA(MD).No.1438 of 2012
R.C.Diocese of Kottar
Through its Financial Administrator Fr.Francis Xavier
R.C.Diocese of Kottar Bishop's House
Post Box No.17,
Nagercoil 629 001 ....Review Petitioner/Appellant
Vs
1.The Director
Employees State Insurance Corporation
Sub-Regional Office-Madurai
2.The Assistant Director Cum Recovery Officer
Employees State Insurance Corporation
Sub-Regional Office Tirunelveli ....Respondents/Respondents
(Cause title is accepted vide Court order dated 06.09.2024)
Prayer:- Review Application filed under Order XLVII, Rule 1 & 2 of the
C.P.C, 1908, to all the review petition and set aside the order dated
09.06.2023 in CMA.(MD).No.1438 of 2023 and allow the same.
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Rev.aplc(MD).No.163 of 2024
For Appellant : Mr.A.Irudayam
For Respondents : Mr.C.Karthick
Standing Counsel
JUDGMENT
The instant review petition has been filed seeking to review the order passed by this Court on 09.06.2023 in CMA(MD).No.1438 of 2012.
2.The review petitioner is Roman Catholic Diocese of Kottar. The said institution has suffered an order under Section 45-A of the Employees State Insurance Act 1948 on 02.08.2006.
3.The review petitioner herein had filed E.S.I.O.P.No.8 of 2006 under Section 77 of Employees' State Insurance Act seeking a declaration that they are not coverable under ESI Act 1948. This petition was dismissed by Labour Court, Tirunelveli by an order dated 10.10.2012. Challenging the said order, the institution has filed the above appeal.
4.This Court by an order dated 09.06.2023 had dismissed the appeal with the observation that the institution is already covered under P.F.Act and therefore, there cannot be any objection for being covered under ESI Act on the ground that they are a religious and charitable institution. 2/8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 03:01:22 pm ) Rev.aplc(MD).No.163 of 2024
5.It was further observed that only the administrative staff who are working in the Bishop's house and who are involved in the administration of Church properties, Educational Institution, Hospital, Home for aged, Home for mentally retarded persons, Orphanage, Counselling Centre, Dispensaries and other social religious and service related activities are covered.
6.This Court has also referred to the judgment of the Hon'ble Supreme Court reported in (1997) 4 SCC 606 (Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others Vs. State of Utter Pradesh and others) wherein it is held that the secular activities of a temple would be subject to statutory control. Seeking to review the above said order, the present review petition has been filed.
7.The review petition has been filed primarily raising the following two grounds:
a) The petitioner institution is a charitable and religious institution. Unless a specific notification is issued as contemplated under Section 1(5) of E.S.I.Act, the Institution cannot be covered under ESI Act.
b) Merely because the employees of the said institution have been brought under EPF Act, the same institution cannot be brought under ESI Act automatically.3/8
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8.The learned counsel for the review petitioner had further contended that they have sought for information from ESI Corporation under Right to Information Act, whether the Christian Charitable Institution in Tamil Nadu has been brought under Section 1(5) of ESI Act. For the said query, they have replied that the said institutions are not covered. Therefore, it is clear that unless a notification is issued under Section 1(5) of the ESI Act, a Charitable and Religious Institution like that of the review petitioner, cannot be covered under ESI Act. This fact has not been brought to the notice of the Court at the time of hearing. The information and RTI Act has been furnished only on 08.07.2024, after the disposal of the appeal. When a new and important matter has been discovered, a review application is maintainable under Order 47 Rule 1 of C.P.C.
9.Per contra, the learned Standing Counsel appearing for the ESI Corporation had contended that this Court has not dismissed the appeal on the ground that the institution is already covered under Employees' Provident Fund Act. It is only an observation made by the Court. He had further contended that this Court has not given any finding that a religious and charitable institution is covered under ESI Act. This Court has only arrived at a finding that the secular activities of the petitioner institution can 4/8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 03:01:22 pm ) Rev.aplc(MD).No.163 of 2024 be regulated by the statute. The secular activities like running hospital, dispensaries, educational institution etc., are all administered by the staff working in the Bishop's house.
10.In such circumstances, the petitioner establishment cannot contend that the religious and charitable activities of the Church cannot be brought under the purview of ESI Act. The learned Standing Counsel had further contended that the staff working in these institutions which are located elsewhere are already covered under ESI Act. What is now sought to be covered is the staff who are administering these institutions from the head office, namely Bishop's house. He had further contended that no grounds have been made out for entertaining a review application.
11.Heard both sides and perused the material records.
12.It is an admitted fact that the petitioner institution is running various hospitals, dispensaries, educational institutions, administering the Church properties etc., These institutions are located outside the Bishop's house and the employees therein are already covered under ESI Act. Overall administration and management of these institutions are being taken care of by the staff employed in the Bishop's house and attendance register and wage register is also maintained of the said staff.
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13.This Court has relied upon a judgment of the Hon'ble Supreme Court reported in (1997) 4 SCC 606 (Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others Vs. State of Utter Pradesh and others) where the Hon'ble Supreme Court has categorically held that the secular activities of a temple could be subject to the statutory control. In such circumstances, this Court has taken a view that the administrative staff functioning from the Bishop's house who are taking care of various secular activities are liable to be covered under ESI Act. Only if the persons connected with religious activities are sought to be covered under the ESI Act, a notification under Section 1(5) of the ESI Act is necessary.
14.On the other hand, when the ground level staff of the secular activities are already covered under ESI Act and only the administrative staff working from the Bishop's house are not sought to be covered, a notification under Section 1(5) of the said act is not necessary.
15.The rejection of the appeal filed by R.C.Diocese of Kottar was only based upon the above said legal interpretation. Only as a passing reference, it was pointed out that the same staff are also covered under Employees' Provident Funds Act. Even assuming that there was an error in comparing E.P.F. and E.S.I Act and the said observations is deleted, even 6/8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 03:01:22 pm ) Rev.aplc(MD).No.163 of 2024 then the final order relating to the coverage of administrative staff, would not get altered. Therefore, there is no error apparent on the face of the record.
16.The Hon'ble Supreme Court in a catena of decisions has held that a review is not an appeal in disguise. The arguments that were advanced during hearing of the appeal, cannot be reargued. Even if it is an erroneous order, the same does not fall within the purview of Order 47 Rule 1 of C.P.C. In such circumstances, this Court does not find any reason to entertain the review application.
17.In view of the above said deliberations, there are no merits in the review petition and the review petition stands dismissed. No costs.
09.04.2025 Index: Yes/No Internet: Yes/No NCC : Yes/No msa 7/8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 03:01:22 pm ) Rev.aplc(MD).No.163 of 2024 R.VIJAYAKUMAR, J.
msa REV.APLC(MD)No.163 of 2024 in CMA(MD).No.1438 of 2012 09.04.2025 8/8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/04/2025 03:01:22 pm )