The central legal point established in the judgment is the need to consider the impact of the Fee Determination Committee's decisions and the COVID-19 pandemic on the institution's financial situation in the context of waiver and write-off under Section 91C of the ESI Act.

JUDGMENT :

(Prayer: Writ Petition under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari to call for the records pertaining to the proceedings in No.56-00-113539-000-1302/INS.IV/SRO/ dated 19.10.2020 on the file of the 2nd respondent and quash the same as illegal, incompetent and ultravires.)

1. The prayer sought for herein is to call for the records pertaining to the proceedings in No.56-00-113539-000-1302/INS.IV/SRO/ dated 19.10.2020 on the file of the 2nd respondent and quash the same as illegal, incompetent and ultravires.

2. With the consent of the learned counsel for both parties, this writ petition is disposed of at the admission stage itself.

3. The petitioner is a recognized private unaided matriculation higher secondary school. Initially educational institutions were not under the purview of the provisions of ESI Act and subsequently by virtue of the Notification issued in this regard by the State Government in the year 2010, the provisions of the ESI Act had been extended to private unaided recognized educational institutions.

4. The said Notification was under challenge in at least three rounds of litigation for several years from 2010 to 2020. Ultimately, the issue had been given a quietus by a Full Bench of this Court in “All India Private Educational Institutions Association represented by its General Secretary -Vs- State of Tamil Nadu represented by Principal Secretary to Government, Labour and Employment Department, Chennai-9 and others” reported in “2020 (5) CTC 93” , where the Full Bench, having upheld the Notification issued in this regard by the State Government bringing these institutions under the purview of the provisions of the ESI Act, has held that the notices already given by the ESI authorities to various educational institutions can be pursued.

5. The petitioner herein is one such case where the ESI authorities have passed the determination order under Section 45A of the ESI Act by order dated 19.10.2020. Though this order dated 19.10.2020 had been passed subsequent to the Full Bench judgment it seems that, this order has been passed ex-parte, which has been stated by the respondents in the very order itself and the relevant portion to that effect reads thus,

“As there was non-production of records and non-submission of any oral or written representation by the employer, the order has been passed on ex-parte basis which is valid in law. The relevant order in the present case has been passed on ad hoc basis as per the “Best Judgment Assessment”. Such a method is valid and justified as ruled by the Supreme Court in ESI Corporation Vs. M/s. F.Fibre, Bangalore AIR 1997 SC 2441 and by the Karnataka High Court in a similar case in ESIC Bangalore Vs. New Forge Company, Bangalore 2010 (4) LLN.669 (Kar).”

6. Pursuant to the same the petitioner, challenging the impugned order dated 19.10.2020, has filed this writ petition, where Mr. R.Jayaprakash, learned counsel for the petitioner has primarily raised two grounds. Firstly he submits that, under the provisions of the ESI Act, if at all the petitioner School is liable to pay the contribution to the ESI, the same can be recovered from the School as arrears only for five years period in view of the limitation, as beyond five years no such claim can be made by the ESI authorities. Secondly the learned counsel would contend that, in view of Section 91C of the Act, where the educational institution is not in a position to make contribution for the past arrears, in view of the factors such as

a) that the fee determination committee has fixed the fee ie., Tuition Fee to be recovered from the students, beyond which no amount can be recovered from the students under the head ESI contribution, and

b) that the Full Bench also having taken note of the COVID-19 situation has given some solatium or directed to give some solatium to these schools and that has been mentioned in the Full Bench judgment in its paragraph 129 to 133.

Waiver can be