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2011 Supreme(Mad) 21
High Court of Judicature at Madras
K. CHANDRU
Muthu Rathina Arangam Matriculation school, Kundanpalayam, represented by its Principal V. Balakrishnan & Others
Versus
The Government of Pondicherry, represented by Additional Secretary to Government (Labour) & Others
W.P.NOs. 2471, 3234, 30509 & 16273 of 2007, 10131, 17326 & 24350 to 24352 of 2008, 6287 & 19395 of 2009, 10028, 21034 & 24691 of 2010 & M.P.NOS.2,2 & 2 OF 2007, 2,2,2,2,3,3 & 3 of 2008, 2,1 & 2 of 2009, 2, 2 & 2 of 2010
Decided on : 04-01-2011
For the Petitioners:P.V.S. Giridhar Associates, Satish Parasaran, G. Masilamani, SC for M/s. G.M. Mani Associates, Advocates.
For the Respondents:R1 - Ms. N. Mala, GA(Puducherry), Ms. A.S. Bharathi, GA(Puducherry), R2 - A. Paramasivam, Mrs. Jayakumari, S. Vaidyanathan, G. Bharadwaj, Advocate.
Headnote:
EMPLOYEES STATE INSURANCE ACT, 1948 - SECTION 1(5) - NOTIFICATION - EDUCATIONAL INSTITUTIONS - COVERAGE - VALIDITY - APPROPRIATE GOVERNMENT - UNION TERRITORY - ADMINISTRATOR - LEGISLATIVE POWER - DELEGATION - ESTABLISHMENT - INTERPRETATION - EJSUDEM GENERIS - INDUSTRY - OTHER ESTABLISHMENTS - PAYMENT OF GRATUITY ACT, 1972 - SECTION 1(3)(B) - SHOPS AND ESTABLISHMENTS ACT - APPLICABILITY - ESI COURT - JURISDICTION - DISPUTES - RECOVERY OF CONTRIBUTIONS - SECTION 45-A - SECTION 75 - SECTION 45-B - SECTION 68(2) - SECTIONS 45-C TO 45-I - LIMITATION - REGULATIONS - WRIT PETITION - MANDAMUS - RELIEF - DISOBEDIENCE OF LAW.
Fact of the Case:
Writ petitions challenging the notification issued by the Lieutenant Governor of Union Territory of Puducherry under Section 1(5) of the Employees' State Insurance Act, 1948 (ESI Act) extending the provisions of the Act to educational institutions. Petitioners contended that the Lieutenant Governor lacked legislative sanction for the issuance of the notification and that educational institutions were not "establishments" within the meaning of Section 1(5).
Finding of the Court:
1. The Lieutenant Governor of the Union Territory of Puducherry, acting on behalf of the President of India under Article 239 of the Constitution, had the authority to issue the notification under Section 1(5) of the ESI Act. The impugned notifications do not suffer from want of legislative sanction by the ESI Act. 2. The term "establishment" under Section 1(5) of the ESI Act is not limited to industrial, commercial, or agricultural establishments. It can include other types of establishments, including educational institutions.
Issues: 1. Whether the Lieutenant Governor of the Union Territory of Puducherry had the legislative sanction to issue the notification under Section 1(5) of the ESI Act? 2. Whether educational institutions are "establishments" within the meaning of Section 1(5) of the ESI Act?
Ratio Decidendi: 1. The Administrator of the Union Territory is a delegate of the President and the notification issued by him is valid in law. The impugned notifications do not suffer from want of legislative sanction by the ESI Act. 2. The term "establishment" under Section 1(5) of the ESI Act is not limited to industrial, commercial, or agricultural establishments. It can include other types of establishments, including educational institutions.
Final Decision: All the writ petitions were dismissed.
1. Except in W.P.No.30509 of 2007 filed by Sri Lakshmi Narayana Institute of Medical Sciences, in all other writ petitions, the challenge is to the order passed by the Lieutenant Governor of Union Territory of Puducherry under Section 1(5) of the Employees' State Insurance Act, 1948 (for short ESI Act) in notifying the educational institutions including public, private, aided or partially aided employees run by individuals, trustees, societies or other organisations, wherein 20 or more persons are employed or were employed for wages on any day of the preceding twelve months to be covered by the provisions of the ESI Act by a notification, dated 24.6.2005.
2. Before issuance of the said notification, they issued a preliminary notification, dated 24.9.2004. The preliminary notification dated 24.9.2004 reads as follows:
GOVERNMENT OF PONDICHERRY Labour Department No.6563/Lab./K/2004Pondicherry, the 24th September, 2004. NOTIFICATION In exercise of the powers conferred by sub-section (5) of section 1 of the Employees State Insurance Act, 1948, the Lieutenant-Governor, Pondicherry in consultation with the Employees State Insurance Corporation and with the approval of the Central Government, is hereby pleased to notify his intention to extend the provisions of the said Act to the classes of establishments specified in the schedule annexed hereunder, on expiry of 6 months from the date of publication of this notification in the official gazette of Pondicherry, namely:- SCHEDULE -------------------------------------------------------
-------------------------------- Description of Area in which the establishments are situated (1)
(2) --------------------------------------------------------------------------------------- Educational
institutions (including The whole or the Union public, private, aided or partially Territory of Pondicherry. aided) run by individuals, trustees, societies or other organisations, wherein 20 or more persons are employed or were employed on any day of the preceding twelve months. ----------------------------------------------------------------------------------
---- (By order of the Lieutenant-Governor) (Emphasis added)
3. Subsequently, the Lieutenant Governor of Union Territory of Puducherry issued a final notification, dated 24.6.2005, which reads as follows: GOVERNMENT OF PONDICHERRY LABOUR DEPARTMENT No.6563/Lab./K/2004, Pondicherry, the 24th June 2005. NOTIFICATION In exercise of the powers conferred by sub-section (5) of section 1 of the Employees' State Insurance Act, 1948 (Central Act 34 of 1948), the Lieutenant- Governor, Pondicherry, having already given six months' notice as required thereunder vide Notification No.6563/Lab./K/2004, dated 24-9-2004 of the Labour Department, Pondicherry and published in the Official Gazette No.41, dated 12.10.2004, hereby appoints the date of publication of this notification in the official gazette as the date on which all the provisions of the said Act shall extent to the establishments specified under column (1) of the Schedule below and within the area specified under column (2) of the said Schedule, namely:- SCHEDULE ----------------------------------------------------------
-------------------------------- Description of Area in which the establishments are situated (1)
(2) ------------------------------------------------------------------------------------------ Educational institutions (includingThe whole or the Union public, private, aided or partiallyTerritory of Pondicherry. aided) run by individuals, trustees, societies or other organisations, wherein 20 or more persons are employed or were employed for wages on any day of the preceding twelve months. -----------------------------------------------------------------------------
------------- (By order of the Lieutenant-Governor) (Emphasis added)
4. After the issuance of the notification, the respondent ESI sent notices to the petitioners and directed them to cover their employees under the Act. In
