IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.13149 and 13150 of 2004 & WPMP Nos.15361 and 15362 of 2004 KANNAPPAN IRON AND STEEL COMPANY PVT LTD REP. BY ITS MANAGER S.S.SANKARALINGAM [ PETITIONER IN BOTH W.Ps. ] Vs THE REGIONAL DIRECTOR REGIONAL OFFICE(ESIC) ESIC COMPLEX NO.148, BOUVANKARK STREET PONDICHERRY THE INSURANCE INSPECTOR DIVISION II, PONDICHERRY [ RESPONDENTS IN BOTH W.PS ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the entire records relating to the impugned C18 adhoc notice dated 2.4.2004 bearing Nos.55-21947-56/257 and 55-21947-56/258 issued by the 1st respondent and quash the same as illegal and unsustainable in law. For Petitioner :: Mr.C.P.Sivamohan For Respondents :: Mr.K.C.Ramalingam COMMON ORDER The petitioner is the one and the same person in both the Writ Petitions. The petitioner is running a Factory at T.R.Pattanam in R.S.No.10/1 at Nagoor Road, Vanjoor coming under Karaikal region of Union Territory of Puducherry. When the petitioner received Notices dated 2.4.2004 from the ESI Corporation directing them to recover from employees under the ESI Act for the period from 9/2000 to 3/03 and for the subsequent period from 4/203 to 9/03, the petitioner filed two Writ Petitions challenging the demand notices. https://hcservices.ecourts.gov.in/hcservices/ 2. The Writ Petitions were admitted on 5.5.2004. In respect of the 1st Writ Petition, this Court directed the petitioner to deposit Rs.40,000/- with the respondent ESI Corporation and in respect of the 2nd Writ Petition, the petitioner was directed to deposit Rs.10,000/-. It is now claimed by Mr.C.P.Siva Mohan, learned counsel for the petitioner that interim order has been complied with. 3. On notice from this Court in both the Writ Petitions, the respondents have filed a counter affidavit dated 29.6.2004. 4. The principal contention raised by the petitioner as can be seen from the affidavit was that the Government of India had not issued any Notification in consultation with the local State Government subsequent to the Notification dated 14.5.1976 of Government of India in respect of the implementation of the Scheme as required. In the absence of any follow up G.O, the demand claimed was illegal. It is also claimed that there is no subsequent Notification notifying T.R.Pattinam Commune as found in the other Gazette Notification. 5. In answer to the defence taken, in the counter affidavit in paragraph No.8, it was averred as follows: "As per Section 1(3) of the ESI Act, the said Act shall come into force on such date or dates as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of the said Act and for different States or for different parts thereof. Thus it has been provided that different parts of the State can be covered under ESI scheme on different dates. The ESI Scheme was first to implement in part of Pondicherry with effect from 2.10.1966. In Karaikal, which is a different part of Union Territory of Pondicherry, it has been brought into force with effect from 30.5.1976. Nowhere in the Act it has been provided that the ESI Scheme would be implemented on the basis of revenue villages. As per the notification issued implementing the scheme in Karaikkal Taluk with effect from 30.5.1976, the entire Karaikal Taluk will come under the purview of the ESI Scheme with effect from the said date. This includes, T.R.Pattinam, which was a part of Karaikal Taluk." https://hcservices.ecourts.gov.in/hcservices/ 6. Under Section 2-A of the ESI Act, every factory or establishment to which this Act applied shall be registered within the time and manner specified in the regulation. Subsequently under Section 38, all employees in the Factory or Establishment to which the Act applies shall insure in the manner provided under the Act. Under Section 1(5) of the ESI Act, appropriate Government has been given power to extend the provisions of the Act to the class of establishment. In terms of Section 1(3) of the Act, it come into force as the Central Government by a Notification in the Official Gazette appoint a date for bringing the scheme into operation. Pursuant to the power vested under Section 1(3) of the Act, the Government of India, Ministry of Labour by a Notification dated 14.5.1976 had issued the following Notification: "S.O. In exercise of the powers conferred by sub-section (3) of Section 1 of the Employees' State Insurance Act, 1948(24 of 1948), the Central Government hereby appoints the 30th May, 1976 as the date on which the provisions of Chapter IV (except sections 44 and 45 which have already been brought into force) and Chapters V and VI (except sub-section (1) of Section 76 and Sections 77, 78,79 and 81 which have already been brought into force) of the said Act shall come into force in the following areas in the Union Territory of Pondicherry, namely:/ "Area of the Karaikal Taluk of the Union Territory of Pondicherry" Therefore, it is clear that by such a Notification, the entire area comprising of all the Revenue Villages in Karaikkal Taluk is covered by the provisions of the Act. 7. According to the petitioner, they had established their company in September 2000 falling under the T.R.Pattiname commune. Therefore, they are automatically covered by the provisions of the Act. However, they sought for a clarification from the ESI Corporation by a letter dated 12.9.2002 and the ESI Corporation by reply dated 16.9.2002 informed the petitioner that the area T.R.Pattinam comes under the Karaikkal Taluk and therefore all revenue villages of Karaikkal are covered by the provisions of the Act. Notwithstanding the said clarification, the petitioner did not contribute the subscription and continue to say that no Gazette Notification has been issued so far covering T.R.Pattinam Revenue Village. The Scheme of the Act does not contemplate over the requirement of notifying each Revenue Village and after the Notification in consolidation with the said Village commune, https://hcservices.ecourts.gov.in/hcservices/ further orders were not required. Therefore, the stand taken by the respondent in the counter affidavit is perfectly in order and in tune with the provisions of the Act. 8. The attempt made by the petitioner to seek something which is not bound in terms of the provisions of the Act is intended to delay the implementation of the scheme, with such unfounded reasons, which are not available under the Act. 9. When the petitioner had a doubt and they also got a clarification from the respondents, their only intention as can be seen is clearly avoidance of the provisions of the Act, which they have successfully done for five years after making a paltry amount by way of interim order. These Writ Petitions are clear abuse of the process of this Court. Hence, both the Writ Petitions are dismissed with cost of Rs.5,000/- (Rupees five thousand only). Consequently, the connected Miscellaneous Petitions are closed. ajr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1 THE REGIONAL DIRECTOR REGIONAL OFFICE(ESIC) ESIC COMPLEX NO.148, BOUVANKARK STREET PONDICHERRY 2 THE INSURANCE INSPECTOR DIVISION II, PONDICHERRY + 1 cc to Mr. K.C. Ramalingam, Advocate SR No.2492 + 1 cc to Mr. C.P. Sivamohan, Advocate SR No.2252 MRD(CO) SR/1.2.2011 W.P.Nos.13149 and 13150 of 2004 https://hcservices.ecourts.gov.in/hcservices/