Ebenezer Marcus Matriculation Higher Secondary School v. The E.S.I.Corporation
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.10.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE and WMP Nos.25814 and 25815 of 2022 Ebenezer Marcus Matriculation Higher Secondary School, Represented by its Correspondent, JT Marcus, No.4, Ebenezer Street, West Banu Nagar, Pudur, Ambattur, Chennai-600 053.
... Petitioner
Versus
1. The E.S.I Corporation, Regional Office (T.N.) Rep by its Regional Director, Panchdeep Bhavan, No.143, Sterling Road, Chennai-600 034.
2. The Assistant/Deputy Director, Regional Office (Tamil Nadu), Employees State Insurance Corporation, No.143, Sterling Road, Chennai-600 034.
... Respondents Petition filed under Article 226 of the Constitution of India praying this Court to issue a writ of Certiorarified Mandamus to call for the records relating to the order of the 2nd respondent passed in Ins.VIII/51-00-100222-0001303/C-18 Adhoc-367/21 dated 27.07.2022 demanding contribution for the period from 29.12.2010 to August 2021 totalling a sum of Rs.69,82,220/- and the consequential rejection of the request seeking writing of the dues by the 2nd respondent passed in his order No.51/INS8/51-00-100222-0001303/dated 1/5
18.08.2022 quash the same and direct the respondents not to demand any ESI Contribution till October 2016 as there was the stay of the GO upto the date of the Full Bench Judgment dated 29.07.2020 i.e., the date of upholding of the Government Order issued in G.O.Ms.No.237 Labour and Employment (K1)Department dated 26.11.2010.
For Petitioner : Mr.P.Ebenezer Paul For Respondents : Mr.S.P.Srinivasan Standing Counsel
ORDER
In this writ petition, the petitioner has challenged the following orders:- a) The order dated 21.07.2022, under which a demand has been made for payment of ESI contribution from the petitioner Institution from 29.12.2010 to August 2021 totalling to a sum of Rs.69,82,220/- based on a determination made under Section 45A of Employees State Insurance Act, 1948 (hereinafter referred to as "ESI Act" ); and b) The order dated 18.08.2022 passed by the second respondent rejecting the petitioner's application, seeking for writing off the dues under 2/5
Section 91C of ESI Act.
2. Admittedly, as against the impugned orders, the petitioner has to avail statutory alternate appellate remedies, viz., one under Section 45AA of ESI Act or under Section 75 of ESI Act.. The petitioner has raised several grounds in this writ petition for challenging the above mentioned impugned orders. They can very well raise the same before the appellate authority. Since the petitioner has chosen a wrong forum, instead of exercising the statutory appellate remedy, the present writ petition is not maintainable. In case, the petitioner, being an Educational Institution, is unable to make mandatory pre-deposit amount for filing statutory appeal under Section 45AA of ESI Act, there is also another alternate appellate remedy available to the petitioner under Section 75 of ESI Act before the concerned ESI Court.
3. The petitioner is also empowered to seek waiver of the mandatory pre-deposit amount if the petitioner is able to show sufficient reasons for the same before the ESI Court as per the provisions of Section 75(2)(b) of ESI Act.
4. For the foregoing reasons, this writ petition is disposed of by directing the appellant to exercise its statutory appellate remedy as stated supra 3/5
under the ESI Act within a period of two weeks from the date of receipt of a ABDUL QUDDHOSE, J.
sr copy of this order. If the statutory appellate remedy is filed by the petitioner before the ESI Court, the said Court shall consider the waiver application as per the provisions of Section 75(2)(b) of ESI Act, if the same is filed by the petitioner, on merits and in accordance with law by exercising its discretion. No costs. Consequently, the connected miscellaneous petitions are closed.
18.10.202 sr Index: Yes/No Speaking Order/Non-Speaking Order To
1. The Regional Director, E.S.I Corporation, Regional Office (T.N.),Panchdeep Bhavan, No.143, Sterling Road, Chennai-600 034.
2. The Assistant/Deputy Director, Regional Office (Tamil Nadu), Employees State Insurance Corporation, No.143, Sterling Road, Chennai-600 034.
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