Chavara Vidya Bhavan Mat. v. The Government Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.01.2017 CORAM :

THE HON'BLE MR. JUSTICE T.RAJA W.P.No.1639 of 2017 and WMP.Nos.1609 and 1610 of 2017 Chavara Vidya Bhavan Matriculation Higher Secondary School Represented by its Correspondent, Post Box No.7303, Somayampalayam, Bharathiyar University Post, Coimbatore - 641 046.

... Petitioner vs.

1. The Government of Tamil Nadu Rep. by its Principal Secretary, Labour and Employment Department, Fort St. George, Chennai - 600 009.

2. E.S.I - Regional Corporation (Tamil Nadu) Represented by its Regional Director, 143, Sterling Road, Chennai - 600 034.

3. Deputy Director (Ins IV) E.S.I - Sub Regional Office (Tamil Nadu) Ramanathapuram, Coimbatore - 641 045.

4. Assistant Director (Inspection) E.S.I - Sub-Regional Office (Tamil Nadu) Ramanathapuram, Coimbatore - 641 045. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorari, calling for the records pertaining to the impugned G.O.(Ms).No.237, Labour and Employment (K1), dated 26.11.2010 issued by the first respondent and the consequential proceedings dated 25.10.2011 in Code No.56001113460001302 and the proceedings, dated 16.08.2016 in No.5600111346000302/Ins.IV and the proceedings, dated 17/18.11.2016 in No.56001113460001302/IV issued by the third respondent and quash the same in respect of the petitioner school.

For petitioner : Dr.Fr.A.Xavier Arul Raj, Senior counsel for M/s.A.Arul Mary For respondents : Mr.M.Elumalai, Govt. Advocate for R1 Mr.P.Chandrasekar for R2 to R4

ORDER

Chavara Vidya Bhavan Matriculation Higher Secondary School rep, by its Correspondent has brought this petition challenging the impugned G.O. (Ms). No.237 Labour and Employment (K1) dated 26.11.2010 issued by the Principal Secretary, Labour and Employment Department/first respondent herein and proceedings 25.10.2011 in Code No.56001113460001302 and the proceedings, dated 16.08.2016 in No.5600111346000302/Ins.IV and the proceedings, dated 17/18.11.2016 in No.56001113460001302/IV issued by the third respondent and quash the same in respect of the petitioner school.

2. Learned senior counsel for the petitioner would submit that the petitioner school is an un-aided Educational Institution and therefore, the said Educational Institution is not free to charge its own fee, since the same is fixed by the Fee Fixation Committee appointed as per the directions of the Hon'ble Supreme Court in Islamic Academy of Education reported in 2003 (6) SCC 697 and P.A.Inamdar reported in 2005 (6) SCC

537. He would further submit that since the Educational Institutions cannot charge over and above the fee fixed by the authorities, it will be impossible for the partly Aided Educational Institution to take the additional burden imposed by the Impugned Notification for payment of ESI Contribution. While

so, the G.O. Ms. No.237 Labour and Employment (K1) dated 26.11.2010 insisting upon the Minority Educational Institution to make contribution is arbitrary.

3. Learned counsel for ESI/second respondent would submit that when a batch of Special Leave Petitions were filed before the Hon'ble Apex Court by the Educational Institutions against the order of the Kerala High Court dated 03.07.2009 in W.P. No.20279 of 2008, taking a stand that they are also equally exempted from the said G.O., the Hon'ble Apex Court, repelling the said contention, dismissed the same. He would further submit that if any issue is pending before the Larger Bench of the Hon'ble Apex Court, the Court would not have dismissed any subsequent Special Leave Petitions, therefore dismissal of SLP shows that there is no issue pending before the Larger Bench.

4. When similar writ petitions were filed with regard to the extension of Insurance Scheme for Private Educational Institutions, the said writ petitions and writ appeals were clubbed together and decided in Writ Appeal No.918 of 2013 etc. batch, wherein the Hon'ble Division Bench of this Court by common judgment dated 16.06.2015, had disposed of the same on the following terms:

"2. In view of the aforesaid position, the writ appeals and the writ petitions are disposed of by agreement that the interim orders would continue till the disposal of the matter by the Honourable Supreme Court and the parties would naturally remain bound by the legal position enunciated by the Honourable Supreme Court on such decision being rendered. No costs. Consequently, connected Miscellaneous Petitions are closed."

5. Since the issue involved in this writ petition is identical to that of the case dealt with by the Hon'ble First Bench of this Court, this writ petition deserves to be disposed of in the same line.

6. If the second respondent takes any such decision, it is for him to move appropriate Review Application before the First Bench. Leaving that option, he cannot take a stand that the writ petition is not maintainable in view of the dismissal on 03.07.2009. As I am bound by the above order passed by the Hon'ble First Bench, this writ petition is disposed of on the basis of para 2 of the above order dated 16.06.2015 passed in Writ Appeal No.918 of 2013 etc. batch. No costs. Consequently,

connected W.M.Ps are closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To

1. The Principal Secretary Government of Tamil Nadu Labour and Employment Department, Fort St. George, Chennai - 600 009.

2. The Regional Director E.S.I - Regional Corporation (Tamil Nadu) 143, Sterling Road, Chennai - 600 034.

3. Deputy Director (Ins IV) E.S.I - Sub Regional Office (Tamil Nadu) Ramanathapuram, Coimbatore - 641 045.

4. Assistant Director (Inspection) E.S.I - Sub-Regional Office (Tamil Nadu) Ramanathapuram, Coimbatore - 641 045.

+2cc to Mr.A. Arul Mary, Advocate, S.R.No.4242 +1cc to the Government Pleader, S.R.No.4916 rk(CO) md(07/02/2017) W.P.No.1639 of 2017