Madras High Court
Csi Ewart Matriculation Higher ... vs The Government Of Tamil Nadu on 28 March, 2022
Author: D.Krishnakumar
Bench: D.Krishnakumar
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
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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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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 3/9 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. 4/9 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 3 Damages under Section 0 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 5/9 https://www.mhc.tn.gov.in/judis 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, 6/9 https://www.mhc.tn.gov.in/judis 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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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.
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W.P.No.7040 of 2022
D.KRISHNAKUMAR. J
mst
W.P.No.7040 of 2022
28.03.2022
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