PUSHPA SATHYANARAYANA, J.

ANITA SUMANTH, J.

AND P.T.ASHA, J.

The genesis for the constitution of this Full Bench is the conflict of views arising from the interpretation of a Notification under which the provisions of the Employees State Insurance Act,1948 was extended to cover educational institutions.

2. A notification dated 26.11.2010, comprising of G.O.Ms.No.237, Labour and Employment (K1) Department (G.O.), was issued by the Government of Tamilnadu, which extended the Employees' State Insurance Act, 1948 , (in short, " ESI Act ") to educational institutions, but excluding the Government and Government aided educational institutions. The said G.O. was challenged in a batch of writ petitions and was decided by a learned Single Judge in Maharaja College of Arts and Science and Others Vs. State of Tamil Nadu rep. by its Principal Secretary to Government and Others, 2011 Writ L.R. 332, dismissing those writ petitions upholding the G.O. The said judgement was put to challenge http://www.judis.nic.in Page No.3 of 90 W.P. No.34236 of 2019 etc. batch once again in batches of Writ Appeals, which were taken up by different Division Benches.

3. On 09.06.2015, a Division Bench of this Court disposed of a batch of writ appeals and petitions in Maharaja College of Arts and Science, rep. by its Chairman v. The State of Tamil Nadu [W.A.No.1233 of 2011] observing as below:

4. Similarly, on 16.06.2015, another co-ordinate Division Bench in the case of Tamil Nadu Nursery Primary Matriculation and Higher Secondary Schools Managements Association, rep. By its General Secretary, D.Christdass v. The State of Tamil Nadu, rep. By its http://www.judis.nic.in Page No.4 of 90 W.P. No.34236 of 2019 etc. batch Principal Secretary to Government, Labour and Employment Department, Fort St. George, Chennai – 600 009 and others, passed a similar order.

5. In addition to the two writ petitions giving rise to the aforesaid orders dated 09.06.2015 and 16.06.2015 several other educational institutions had also moved this Court by way of writ petitions, that had been dealt with by different benches, both single and Division Benches at different times. In a few cases, not satisfied with the orders passed by this Court, certain aggrieved institutions went before the Hon'ble Supreme court and invited order of dismissal at the SLP stage itself.

6. To appreciate the reference order properly, the said orders and appellate orders, if any, are tabulated below:

of Tamil Nadu http://www.judis.nic.in Page No.7 of 90 W.P. No.34236 of 2019 etc. batch The orders extracted above would clearly demonstrate that a totally divergent view to that of the orders of the Division Bench dated 09.06.2015 and 16.06.2015 has been taken by co-ordinate Benches as well as by the Single Judges. Apart from the writ petitions detailed above there were some more writ petitions pending decision.

9. It is also relevant to note that a Division Bench of Kerala High Court in CBSE School Management's Association Vs. State of Kerala, 2010-II-LLJ 240, held a similar notification to be valid, which was followed in Maharaja College case (cited supra). The Hon'ble Supreme Court dismissed the SLP preferred against the above said Kerala High Court judgement thereby upholding the notification.

10. Now, when a few of the writ petitions filed by different educational institutions (both colleges and schools) were grouped together and taken up by the Hon'ble First Bench for hearing, the counsels representing the private educational institutions have agreed that since the two Division Benches of co-ordinate strength had ordered that the matter shall await the decision of the Hon'ble Supreme Court to be decided by a Larger Bench, as decided in State of U.P. Vs. Jai Bir Singh , 2005 (5) SCC 1, propriety and consistency warrants that the same order may be passed. It was also pointed out that there was an apparent conflict of opinion between the Division Bench Orders and that it http://www.judis.nic.in Page No.8 of 90 W.P. No.34236 of 2019 etc. batch requires consideration by a Larger Bench. Further, the orders of the Division bench dated 09.06.2015 and 16.06.2015 were passed on the premise that the question of law that has been referred to the Larger Bench of the Supreme Court was whether the ESI Act would apply to educational institutions.

11. After hearing all the counsels and elaborate discussion, the First Division Bench, vide order dated 02.03.2020, had referred these writ petitions to be decided by a Full Bench formulating the following questions of reference:

12.As per the orders of the Hon'ble The Chief Justice of even date, this Full Bench was assigned with the said task.

13. Initially, before issuing the impugned notification dated 26.11.2010, the Labour and Employment Department, Government of Tamil Nadu, with an intent to include the educational institutions, excluding the Government and Government Aided educational institutions, which employ 20 or more persons within the purview of the ESI Act , issued a preliminary notification dated 11.05.2005 and the same reads as follows :

THE SCHEDULE Description of class of Areas in which the establishments establishments are situated (1) (2) Educational Institutions (excluding Areas where the Scheme has Government and Government already been brought into force Aided Institutions), run by under sub-section (3) of Section 1 individuals, trustees, societies or and sub-section (5) of Section 1 other organisations, wherein 20 of the Act.

or more persons are employed or were employed on any day of the preceding twelve months.

14. Admittedly, the private educational institutions, including the petitioners before us, have not filed any objections to the said notification and consequently, after the expiry of the statutory period of six months, and only on 26.11.2010, the impugned notification in G.O.Ms.No.237, extending the ESI Act to all private unaided educational institutions came http://www.judis.nic.in Page No.11 of 90 W.P. No.34236 of 2019 etc. batch to be issued by virtue of Section 1(5) of the ESI Act. Before extracting the said notification, it is apt to reproduce Section 1(5) of the ESI Act, which reads as follows:

Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State."

15. The impugned notification dated 26.11.2010 is usefully reproduced hereunder:

16. Aggrieved by the said notification, several writ petitions were filed by the bodies representing the private schools and self-financing colleges. As stated above, the said writ petitions were dismissed by the learned Single Judge in Maharaja College of Arts and Science case (supra).

17. The two exceptions taken by the learned Single Judge was that

(i) the challenge to the extension of the ESI Act to private educational institutions in Tamil Nadu cannot be done at the instance of association of private schools and self-financing colleges, as only the aggrieved institutions can challenge the same ; and (ii) the ESI Act coverage is for the benefit of employees, who also contribute towards subscription and that any decision that may be taken in their absence will not bind them and would seriously prejudice their rights. The Hon'ble Single Judge had placed reliance on the judgment of the Hon'ble Supreme Court in 2009 http://www.judis.nic.in Page No.13 of 90 W.P. No.34236 of 2019 etc. batch (9) SCC 485 (Fertilizers and Chemicals Travancore Pvt. Ltd. V. ESI Corporation) and also in 2009 (10) SCC 671 (ESI Corporation V. Bhakra Beas Management Board.

18. As indicated at the outset, assailing the order of the learned Single Judge in Maharaja College of Arts and Science case (cited supra), a batch of writ appeals were filed, which were heard along with a batch of writ petitions filed subsequent to the common judgment passed by the learned Single Judge, and the two separate judgments dated 09.06.2015 and 16.06.2015 referred to hereinabove came to be passed.

19. Mr.K.M.Vijayan, learned Senior Counsel argued that the disposal of the Writ Appeals by the Division Bench on 09.06.2015 and 16.06.2015 based on the judgment in Jai Bir Singh case (cited supra) is, perfectly correct, as the outcome of the Larger Bench decision will, certainly, have an impact on the case on hand. The learned Senior Counsel would further argue that since the ESI Act and the ID Act are inseperable the reference to the larger Bench in State of UP vs Jai Bir Singh assumes signification. The judgement in Bangalore Water Supply Board which has now been referred to the Larger Bench had given a wide interpretation to the definition “industry” by including “educational institutions” also within its http://www.judis.nic.in Page No.14 of 90 W.P. No.34236 of 2019 etc. batch ambit. He would, therefore, submit that propriety demands that this court awaits the decision of the Larger Bench of the Hon’ble Supreme Court so as to avoid multiplicity of judgments.

20. Another argument advanced by the Learned Senior Counsel was that the Amended ID Act has to treated as ‘law in force’ in the light of Art.13(3) (b) and Art.372(3) Explanation 1 and “existing law” as per Art.366(10) of the Constitution of India. Therefore since the Amended ID Act has excluded educational institutions from the purview of the definition of industry it is but prudent to await the judgment of the larger Bench of the Hon’ble Supreme Court. Reliance was placed on the following judgments:

21. It is specifically pointed out by Mr.K.M.Vijayan, learned Senior Counsel that the word 'establishment' is not defined under the ESI Act . http://www.judis.nic.in Page No.15 of 90 W.P. No.34236 of 2019 etc. batch The word 'establishment', as referred to in Section 1(5) has to be read as industrial, commercial, agricultural or otherwise an establishment. The ESI Act , wherever had not defined any word or expression, then reference may be had to the Industrial Disputes Act, 1947 (in short, "the ID Act "). Therefore, it was contended that both ESI Act and the ID Act failed to define the word 'establishment' separately, however, the word 'industrial establishment' is defined under the ID Act in section 2(ka) , which reads as follows :

http://www.judis.nic.in Page No.16 of 90 W.P. No.34236 of 2019 etc. batch He would, therefore, contend that the answer to reference No.i should be in the affirmative and consequently, the answer to reference No.ii would follow suit and propriety would demand that all the writ petitions should await the judgment of the Larger Bench of the Hon’ble Supreme Court.

22. Since the others arguing against the notification have, by and large, adopted the arguments of Mr. K.M.Vijayan, Senior Counsel we are only extracting the additional arguments made by them. Fr.Xavier Arulraj, Senior Counsel would make the following submissions:

23. Mr.Singaravelan, learned Senior Counsel for the Contempt Petitioner, besides adopting the arguments of the other learned Senior Counsels, also contended that the way in which, the authorities proceeded with the issue shows their deliberate conduct of scant regard to the orders of this Court and they are liable to be punished.

24. Mr.Shakespeare, learned counsel for the petitioner would argue on repugnancy. He would contend that when the Tamilnadu Recognised Private Schools (Regulation) Act enacted by the State of Tamilnadu having received the assent of the President of India, the impugned notification was intruding into the occupied field and therefore, in the light of Article 254 (2) of the Constitution of India, it is only the provisions of the Tamil Nadu Recognized Private Schools Act that would prevail.

25. The Learned Advocate General, arguing in favour of the notification and urging this Court to answer reference Nos.i and ii in the affirmative, made his submissions under the following heads:

26. While sailing with the arguments of the learned Advocate General, Mr.Ravindran, learned Senior Counsel for the ESI Corporation, made elaborate submissions, with supportive documents, qua the medical and monetary benefits extended by the ESI Corporation to the workmen and their families during the time of crisis. Alleging that the apprehension of the private educational institutions is misconceived, the learned Senior Counsel sought for sustaining the impugned notification and answering the reference accordingly.

27. Ironically, the notification has been challenged only by the Employers and the lone voice of the Employee was through Mr.Balan Haridas, who appeared and supported the notification. http://www.judis.nic.in Page No.20 of 90 W.P. No.34236 of 2019 etc. batch

28. At this juncture, it is pertinent to refer to the coverage of the ESI Act qua private educational institutions by various States in the country, the challenge to the same and relevant case-law in this regard.

29. A Division Bench of the Kerala High Court in CBSE School Management's Association (cited supra), dealt with Section 1(5) of the ESI Act and held as follows:

30. As stated above, the Special Leave Petitions (SLPs) were filed against the said order before the Hon'ble Supreme Court, which were heard along with other SLPs filed between 2009 and 2016, and the Hon'ble Apex Court by the order dated 15.03.2016 rejected all those SLPs in Kerala Unaided School Managements Association V. State of Kerala observing that "we do not find any legal and valid ground for interference. The Special Leave Petitions are dismissed".

31. A similar Notification dated 13.05.2011 issued by the Government of Karnataka under Section 1(5) of the ESI Act was put to challenge before the Karnataka High Court by the private schools. While dismissing the writ petitions upholding the notification, in the decision reported in ILR 2012 Kar 2664, Managements of Independent CBSE Schools Association, Karnataka and Others V. Union of India , the Karnataka High Court held as follows :

32. The Uttar Pradesh Government issued a similar notification on 22.08.2018, which was unsuccessfully questioned before the Allahabad High Court in Maharishi Shiksha Sansthan V. State of Uttar Pradesh , 2009 (1) LLN 381, wherein, it was held as follows :

http://www.judis.nic.in Page No.23 of 90 W.P. No.34236 of 2019 etc. batch

33. While dismissing the appeal preferred against the said order, a Division bench of the Allahabad High Court in the judgment reported in Maharishi Shiksha Sansthan V. State of Uttar Pradesh , 2009 (120) F.L.R. 332, observed as follows :

34. In the year 2009, the Punjab Government issued a similar notification on 02.06.2009, which was questioned in the Punjab and Haryana High Court. A learned Single Judge upheld the notification, which order was affirmed by a Division Bench in Seth Nand Lal Bajaj Educational Charitable Society, Chandigarh V. State of Punjab and Another, 2014 SCC OnLine P & H 25089, holding as hereunder:

(emphasis supplied)

35. The Gauhati High Court also upheld a similar notification issued by the Government of Assam on 06.01.2009 in All Assam English http://www.judis.nic.in Page No.26 of 90 W.P. No.34236 of 2019 etc. batch Medium Schools Association and Another v. The State of Assam & Others , 2016 SCC OnLine Gau 662 and held as follows:

http://www.judis.nic.in Page No.27 of 90 W.P. No.34236 of 2019 etc. batch

36. Though similar notifications dated 28.08.2006 and 10.02.2011 issued by the Government of West Bengal were set aside by a learned Single Judge of the Calcutta High Court, a Division Bench of the Calcultta High Court while reversing the said decision in the Principal Secretary, Department of Labour, Government of West Bengal V. Om Dayal Educational and Research Society and Others , 2019 SCC OnLine Cal 5174 held as follows:

37. The learned Senior Counsels and the learned counsels for the petitioners specifically pointed out that when the Division Benches of our Court had chosen to wait for the outcome of the Larger Bench reference, the other High Courts did not do so and pronounced judgements, as http://www.judis.nic.in Page No.28 of 90 W.P. No.34236 of 2019 etc. batch discussed above. In other words, according to the petitioners, the ESI Act has to refer to the ID Act , which is an exclusive labour legislation.

38. It was contended further by Mr.Singaravelan, learned Senior Counsel that the reference to the Larger Bench made by the Hon'ble Supreme Court assumes significance in deciding the legality of the impugned notification. It was, strenuously, contended that the reference to Larger Bench indicates that the Hon'ble Apex Court already felt that the educational institutions should be kept outside the purview of the word 'industry' and the said intention is clear while reading paragraphs 38 to 46 of the judgment of the Apex Court in Jai Bir Singh (supra).

39. Further, learned Senior Counsel pointed out that the Industrial Disputes Act, 1947 , was amended by an Amendment Act 46 of 1982, wherein, the legislature wanted to exclude certain fields, which have to be kept outside the purview of the definition of the word 'industry'. Accordingly, Educational, Scientific, Research and Training Institutions are not to be included within the definition of the word 'industry'. It is also worthy to note that the said amendment is yet to be notified and kept in dormant mode till today for the best reasons known. http://www.judis.nic.in Page No.29 of 90 W.P. No.34236 of 2019 etc. batch

40. In response, the Senior Counsel Mr.Ravindran, representing ESI Corporation argued that the subject matter in Jai Bir Singh (supra), is with respect to the definition of 'industry', as it occurs in Section 2(j) of the ID Act and is unconnected with the application of the ESI Act to educational institutions, as interpreted by the Division Bench in writ appeal orders dated 09.06.2015 and 16.06.2015. The Division Bench had passed the order as follows:

41. There is a misconception that Jai Bir Singh (supra) pertains to the application of the ESI Act to educational institutions. The I.D. Act is an Act to make provision for the investigation and the settlement of industrial disputes and for certain other purpose. The ESI Act is a social security legislation that provides for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto.

42. It was vehemently contended by the Senior Counsel that the term 'establishment' is not defined in the ID Act either. The ESI Act was enacted after the I.D. Act, 1947 . Therefore, if the intention of the Legislature was to restrict the application of the ESI Act only to industrial http://www.judis.nic.in Page No.30 of 90 W.P. No.34236 of 2019 etc. batch establishments, Section 1(5) would have indicated the same, instead, conscious of the fact that the ID Act was in existence, had deliberately omitted to add any qualitative word preceding the term 'establishment'. Instead, illustratively, a few examples are given followed by the term 'or otherwise'. Therefore, Section 1(5) of the ESI Act was worded in such a way to be inclusive of infinite possibilities and not as an exhaustive list. Now the executive has been entrusted with the task of including all and any establishment under the ESI Act , as and when need arises. Besides, any entity/establishment, which undertakes an organised activity and employs persons, would be covered under the term 'establishment'.

43. As mentioned above, the object of the ID Act is to ensure a balanced bargaining power between the employer and workmen in situation of unrest, such as layoff, retrenchment, closure or strike, when there is a dispute between the employer and workmen. The ID Act regulates the mode of dealing with such disputes.

44. However, the object of ESI Act operates on a completely different field, i.e., to provide various benefits towards sickness, maternity and employment injury to employees not just in industries but in other establishments as well.

http://www.judis.nic.in Page No.31 of 90 W.P. No.34236 of 2019 etc. batch

45. A reading of the Statement of Objects and Reasons appended to the ESI Act would go to show the purpose, for which it was enacted and the same reads as follows:

46. The Hon'ble Supreme Court explained the scope of the term 'employee', as envisaged in Section 2(9) of the ESI Act in Royal Talkies, Hyderabad and Others V. Employees State Insurance Corporation , 1978 (4) SCC 204, and held as follows :

47. A Division Bench of this Court in ESI Corporation v. S.Savitri and Others, 2003 (3) LLJ 250, explained the scope of the ESI Act in the following manner:

48. It is relevant to state that besides the Madras High Court many of the High Courts upheld the provisions of the ESI Act relying upon Part IV of the Constitution keeping in mind that the said Act is a pre- Constitutional enactment. After coming into effect of the Constitution, the objects of the said Act were applied to fulfil the Directive Principles of the State Policy enshrined under Part IV of the Constitution.

49. In the light of the above background, we proceed to answer the issues referred to us by the Division Bench as follows:

50. The questions of reference No.(i) and (ii), referred to us by the Division Bench are as follows :

51. As the issue No.(i) and (ii) are intertwined, we propose to deal with them together. It is to be noted that what is envisaged in Jai Bir Singh (supra) is an requirement under the ID Act . Even assuming that an educational institution is not an industry, it would still be an establishment. The teaching and non-teaching staff of educational institutions are the beneficiaries, as per the impugned G.O.Ms.No.237. Do they come under the definition "employee" or "workmen"? While the ESI Act, the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (EPF Act) and the Payment of Gratuity Act, 1972 employ the word "employees", the ID Act and the Workmen's Compensation Act employ the word "workman". The ID Act and the Workmen's Compensation Act, 1923 , are exclusive enactments for industrial establishments. The provisions of both are more or less in pari materia with each other and address workmen of industries. However the EPF, ESI and Payment of Gratuity Act apply to ‘establishments’, a term of wider import than ‘industries’. The sweep of the aforesaid enactments is thus greater and they address all ‘employees’ and not only ‘workmen’.

52. The interpretation of the term 'industry' as found in Section 2(j) of the ID Act was resolved by the Constitution Bench in Bangalore Water Supply and Sewerage Board V. A.Rajappa , 1978 (2) SCC http://www.judis.nic.in Page No.35 of 90 W.P. No.34236 of 2019 etc. batch

213. The opinion of Hon'ble Justice V.R.Krishna Iyer in that case became the unanimous opinion of the Seven-Judge bench. The following paragraphs from the said judgment make it clear that the term 'industry' should be defined to subserve the principle laid down in Part IV of the Constitution:

53. Subsequent to the above judgment of the Hon'ble Supreme Court, Section 2(j) was redefined vide Amendment Act 46/1982. Ironically, the amendment of the year 1982 is still dormant and yet to be brought into force.

54. While so, there were two conflicting decisions of a Three-Judge Bench in Chief Conservator of Forests V. Jagannath Maruthi Kondhare , 1996 (2) SCC 293, and a Two-Judge Bench in State of Gujarat V. Pratam Singh Narsingh Parmer , 2001 (9) SCC 713, which lead to the reference in State of U.P. Vs. Jai Bir Singh , 2005 (5) http://www.judis.nic.in Page No.37 of 90 W.P. No.34236 of 2019 etc. batch SCC 1. However, the Constitution Bench of the Supreme Court in Jai Bir Singh case (cited supra) also called for a reconsideration of the reasoning in the Bangalore Water Supply and Sewerage Board case (cited supra) and directed the matter to be placed before appropriate Bench observing as follows :

55. Though referred on 05.05.2005, the matter was placed before a seven judge Bench only in 2017. Since the judgement under reference had been passed by seven judges, the Bench felt that it would be appropriate that the matter be placed before nine judges and ordered so in the following terms on 02.01.2017 in State of U.P.v. Jai Bir Singh (2017) 3 SCC 311:

56. Again, referring to Jai Bir Singh case (cited supra), the Hon'ble Supreme Court held in paragraph 38 as follows:

57. The Five-Judge Bench also was in full agreement with the unanimous decision of Management of Safdarjung Hospital V. Kuldip Singh Sethi , 1970 (1) SCC 735, on the interpretation of the definition clause holding that 'industry' is accepted to mean only trade and business manufacture or undertaking analogous to trade or business for the production of material goods or wealth and material services.

58. Further, it was observed in paragraph 42 about the role and necessity of the service activities of the hospitals and educational institutions in the following manner:

59. It is, thus, apparent that the Hon’ble Bench intended to re- define an industry for the purposes of the ID Act .

60. It is in view of the above discussion that the issue of whether the reference to the Larger Bench will have any bearing on the impugned notification has to be seen.

61. Under Section 1(4) of the ESI Act, the provisions of the said Act automatically apply to all factories including Government Factories, other http://www.judis.nic.in Page No.41 of 90 W.P. No.34236 of 2019 etc. batch than seasonal factories with an inbuilt exemption clause. Whereas, under Section 1(5) , they have reserved power to the State Governments to extend the provisions of the said Act or any of them to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.

62. A plain reading of Sections 1(4) or 1(5) only go to show that all kinds of establishments can be covered through a notification by giving prior notice of six months. It is also relevant to note that all the cases decided by various High Courts challenging the Section 1(5) notifications covering educational institutions are after Jai Bir Singh (supra). The SLP against the Judgment of the Kerala High Court in CBSE School Management's Association V. State of Kerala, 2010-II-LLJ 240, was dismissed by the Hon'ble Supreme Court. Though orders dated 09.06.2015 and 16.06.2015 dispose the writ appeals finally, they are clearly of an interim nature. We are thus of the view that the challenge to the Notification may well be decided based on settled law. In this regard, reference is made to paragraphs 3 and 4 of the judgment of the Hon'ble Apex Court in State of Orissa Vs. Dandasi Sahu , 1988 (4) SCC 12, as follows:

63. When the Division Bench passed the orders referred to in Question No.(i), the reference in Jai Bir Singh was cited without pointing out the fact that the said reference was not under the ESI Act . A reading http://www.judis.nic.in Page No.43 of 90 W.P. No.34236 of 2019 etc. batch of the Division Bench order dated 09.06.2015 (supra), also goes to show that the submissions of the learned counsels were just recorded. Thus, the final orders of interim nature were invited by the learned counsels from the Division Bench of this Court.

64. The order of reference dated 02.03.2020 passed by the First Bench also has dealt with the same in paragraphs 32, 33 and 34, which are usefully extracted hereunder:

65. We are also in full agreement with the above views expressed by the First Bench in the reference order. Therefore, as referred supra in State of Orissa Vs. Dandasi Sahu , 1988 (4) SCC 12, the pendency of reference before a Larger Bench cannot be a ground to postpone the hearing for deciding the issue.

http://www.judis.nic.in Page No.45 of 90 W.P. No.34236 of 2019 etc. batch

66. At this juncture, it is relevant to note that the Hon'ble Apex Court has held that notwithstanding the reference pending before a Larger Bench, the interpretation of the term 'industry', as has been given in State of Maharashtra V. Sarva Shramik Sangh, Sangli and Others , 2013 (16) SCC 16 holds good and the same reads as follows :

67. In the light of the above discussion, we are inclined to hold that the decision in regard to the validity of the impugned notification issued under Section 1(5) of the ESI Act could well have been taken and the postponement of the same pending decision of the reference in Jai Bir Singh by the larger Bench, was not warranted. Therefore, question No.(i) is answered in the negative and hence, the necessity to answer question No.(ii) does not arise.

http://www.judis.nic.in Page No.46 of 90 W.P. No.34236 of 2019 etc. batch Question no.III :

68. Question No.(iii) of the Order of Reference reads as follows :

69. Mr.K.M.Vijayan, learned Senior Counsel submitted that this question cannot be argued now as this question goes to the core issue whether educational institutions are covered under the term 'industry', which is under reference by the Hon’ble Supreme Court.

70. The Senior Counsels appearing for the educational institutions endeavoured to impress upon us that the phrase "or otherwise" in Section 1(5) of the ESI Act must be interpreted "ejusdem generis". The rule of interpretation known as "ejusdem generis" rule has been discussed in several recent cases including the recent Division Bench Judgment of the Calcutta High Court in Principal Secretary, Department of Labour V. Om Dayal Educational & Research Society and Others , (2019) SCC OnLine Cal 5174. Paragraph 14 of the said judgment reads as follows:

http://www.judis.nic.in Page No.49 of 90 W.P. No.34236 of 2019 etc. batch

(v) there is no indication of a different legislative intent. Amar Chandra Chakraborty v. Colletor of Excise , (1972) 2 SCC 442 ; ACCE v. RamdevTabacco Co., 1991 (51) ELT 631 (SC)”

71. The rule may be explained as follows in the given context: If a general word follows particular and specific words of the same nature as itself, the general word takes its meaning from them and is held to be restricted to the same genus as those are more limited words, unless there be something to show that a wider sense is intended to be borne by the general word. "Ejusdem generis" rule is often useful or convenient, but it is merely a rule of construction.

72. When general words follow specific words in a statute, the general words are read to embrace only objects similar to those objects of the specific words. The rule recognizes and gives effect to both the specific and general words by using the class indicated by the specific words to extend the scope of the statute with the general words to exclude additional terms or objects within the class. The doctrine of ejusdem generis is only interpretative. While applying the same certain conditions are to be followed:

http://www.judis.nic.in Page No.50 of 90 W.P. No.34236 of 2019 etc. batch (3)The class is not exhausted by the enumeration; (4)A general reference supplementing the enumeration, usually following it;

(5)There is no clearly manifested intent that the general terms be given a broader meaning than the doctrine requires.

73. It is relevant to note the judgments of the Hon'ble Apex Court in K.K.Kochunni V. State of Madras, AIR 1960 SC 1080 and Bangalore Turf Club V. Regional Director, ESI Corporation , 2014 (9) SCC 657. In the above cases, holding that a dictionary meaning of a word cannot be looked at where the said word has been statutorily defined or judicially interpreted, but where there is no such definition or interpretation, the Court may take the aid of dictionaries to have the meaning of the word in common parlance and in Bangalore Turf Club held as follows:

74. Emphasizing the word "or otherwise", the learned AG submitted that these words give wider power to the Government to bring in any establishment, for example even an Advocate's office, which otherwise would not be an industry within the meaning of the ESI Act . That is the reason, there is no definition deliberately to what was "establishment" under the ESI Act giving widest possible interpretation and the Government has power to expand/extend it to any establishment.

75. There is no definition for the word "Establishment" in the ESI Act, and it has a completely different definition on the other Act, which was not referred to.

76. Section 1(6) of the ESI Act, which speaks that "A factory or an establishment to which this Act applies shall continue to be governed by the said Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of http://www.judis.nic.in Page No.53 of 90 W.P. No.34236 of 2019 etc. batch power." Thus, learned Advocate General submitted that once the factory or establishment is covered under the ESI Act , it would continue forever.

77. Section 2(9) of the ESI Act, which defines "employee" and submitted that it is of the widest possible definition, as it defines "any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere" and also emphasised that it does not limit the type of persons, who is employed and the exemption given is to the employees of the members of the three forces and the person whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government.

78. The wages presently fixed by the Central Government with effect from 01.01.2017 is Rs.21,000/-, in term of Rule 50 of the Employees' State Insurance (Central) Rules, 1950.

79. After referring Section 2(j) of the ID Act, 1947, which defines, "industry", the learned Advocate General drew the attention of this Court to Section 2(s) of the ID Act, which defines workman, as per which, the http://www.judis.nic.in Page No.54 of 90 W.P. No.34236 of 2019 etc. batch “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person.

80. Thus, it is submitted that to be a workman, (i) a person should be employed in an industry; and (ii) he should be doing manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. These words have to be read as part beyond genus and a teacher will neither be classified as manual, unskilled or even skilled, technical, operational, clerical or supervisory. That is the reason, they took teacher from workman. Though the teachers do certain number of activities, they will not come within any of these acts and therefore, will not be workmen within the meaning of the ID Act .

81. The Philosopher Aristotle says, "the one exclusive sign of thorough knowledge is the power of teaching. Teaching profession contributes to the elimination of poverty, significantly, through the http://www.judis.nic.in Page No.55 of 90 W.P. No.34236 of 2019 etc. batch provision of education. “vGj;jwptpj;jtd; ,iwtd; MFk;@ vd;fpwJ btw;wpntw;if (mjptPuuhk ghz;oau;). The teachers and their supporting staff in any educational institution should be given the utmost privileges in particular, any statutory benefit.

82. One has to look at the primary object of the Act and what is the definition under the Act. The ID Act is predominantly a labour law, it does not mean that the definition contained therein will automatically apply as the definition in the other Act. It is well settled that the definition in one Act cannot be used in the other Act automatically. In the instant case, the scope and object are entirely different. One is to provide regulation of industrial relations, resolution, adjudication, while the other is for medical insurance, health and maternity benefits, etc.

83. It is in the light of the above that Section 1(5) of the ESI Act has to be read. The ESI Act being a socio-economic welfare oriented legislation, it has brought with it the avowed objective of securing the social and economic justice and for upholding the human dignity and it is not a law regulating the education. Curiously, the vires of Section 1(5) of the ESI Act is not under challenge in any of the petitions. It is always the endeavour of the Courts that the social perspective must play upon the interpretative process. Therefore, the ESI Act can treat the private http://www.judis.nic.in Page No.56 of 90 W.P. No.34236 of 2019 etc. batch educational institutions as 'establishments' coming within the meaning of the Act and the term 'otherwise' has clearly been placed to specify that genus of establishments is not restricted to those organisations, which are industrial, commercial or agricultural only, but also includes organisations like educational institutions. The issue No.(iii) is answered accordingly. Question Nos.V and VI:

84. Before proceeding to deal with Question No.(iv), it is apt to delve into Questions of Reference No.(v) and (vi), which are usefully extracted hereunder:

occurring in Section 19 of the 1973 Act and a pari materia provision under the 1976 Act already covers insurance coverage of the teachers and other employees of schools and colleges ?

vi. Whether the notification dated 26.11.2010 can be enforced even without an amendment in the provisions as referred to in Question

85. The question is whether the State Government can extend the applicability of the ESI Act , a Central Act, to educational institutions, when the conditions of service in the field of education find place in two State enactments namely, the Private Schools Act, and the Tamil Nadu http://www.judis.nic.in Page No.57 of 90 W.P. No.34236 of 2019 etc. batch Private Colleges Regulation Act, 1976 (“1976 Act”), mentioned supra. The argument is that the field being occupied by the two State enactments, the ESI Act has no application. It appears that the legislative competence of the notification under the ESI Act, 1948 vis-a-vis the provisions of the Act 1973 was not argued before the learned Single Judge and has been raised for the first time before the Division Bench only.

86. The learned Advocate General submitted that the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 received assent of the Hon'ble President and the Tamil Nadu Private Colleges (Regulation) Act, 1976 was enacted by the President, when the Emergency was proclaimed and the State Legislature was suspended under Article 356 of the Constitution, in exercise of the power conferred under Article 356(1)(b) of the Constitution, after declaring that the power of the Legislature of the State shall be exercisable by or under the authority of the Parliament.

87. Having heard learned counsels in details, we are of the view that the arguments based on repugnancy under Article 254 of the Constitution are misplaced as there is no repugnancy between the two enactments.

88. When the State sends a Bill for assent of the Hon'ble President, the Note forwarded to the Hon'ble President by the State must not only http://www.judis.nic.in Page No.58 of 90 W.P. No.34236 of 2019 etc. batch show what is the repugnancy between the Central act and the State law, but must specify the laws in respect of which it seeks the assent of the Hon'ble President to overcome the potential repugnancy.

89. There is no material to show that at the time when the State sought Presidential assent in respect of the Private School Regulation Act, 1973, it intended to remove any potential repugnancy between the 1973 Act and the ESI Act, 1948 . Unless the Central Government is impleaded as a party and notice is served on the Central Government (Attorney General), it would remain a mystery as whether the Hon'ble President had been apprised of the repugnancy. The Hon'ble President while according assent to the 1973 Act, in pith and substance, has accorded assent only in relation to the subject matter of regulating of educational institutions and the conditions of service of the employees therein, as the Hon'ble President cannot be presumed to have considered a specific legislation of general application qua the benefits of health and insurance that stood covered under the ESI Act .

90. Though it is contended that the assent of the Hon'ble President to the subsequent state enactment, i.e., 1973 Act, cannot be equated with the assent to legislation under the 1948 Act, the same was not a subject matter before the Hon'ble President. It is also contended that there is no such material placed before this Court by the petitioners to http://www.judis.nic.in Page No.59 of 90 W.P. No.34236 of 2019 etc. batch substantiate the said argument, which has been taken only in rejoinder affidavit.

91. The further contention is that no amendment was required either under the ESI Act or under the 1973 Act or even the 1976 Act, as the State Government is empowered to issue the notification under the 1948 Act extending the benefits of health and insurance schemes under the ESI Act to the employees and teachers of the private educational institutions.

92. The learned Advocate General relied on Kaiser-I-Hind Pvt. Ltd V. National Textile Corporation , (2002) 8 SCC 182 ; Rajiv Sarin V. State of Uttarakhand , 2011 (8) SCC 708 ; and K.T.Plantation Private Limited V. State of Karnataka , 2011 (9) SCC 1 in this regard.

93. There is no pleading qua repugnancy by the petitioners. In the absence of proper pleadings and proper parties before this Court, the petitioners cannot urge the said ground before this Court and this Court cannot go into the question of repugnancy in this batch of cases.

94. The learned Advocate General emphasised the words in Section 1(4) of the ESI Act that "it shall apply, in the first instance, to all factories (including factories belonging to the Government other than seasonal http://www.judis.nic.in Page No.60 of 90 W.P. No.34236 of 2019 etc. batch factories..." and the proviso to Section 1(4) , which says "Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act. Thus, it is submitted that if a factory or establishment is belonging to or under the control of the Government and if their employees are in receipt of benefits, which are substantially similar or superior, they come out of the purview of the Act.

95. The learned Advocate General also contended that the Government would always stand on a different footing and thus, the employees and teachers of the Government and aided schools, who have been paid more, are not covered under the ESI Act and that is why, there is a discrimination between the Government and Aided school teachers and such discrimination is there in the Act itself. It is further contended that the proviso to Section 1(4) allows such discrimination and that is the reason also, the Reference Order does not refer to the discrimination.

96. The learned Advocate General also contended that there is no repugnancy between the ESI Act and the 1973 Act, as they are operating on the different field and relied upon the judgment of the Hon'ble Apex Court in Banatwala and Company V. LIC , 2011 (13) SCC 446, to http://www.judis.nic.in Page No.61 of 90 W.P. No.34236 of 2019 etc. batch substantiate his arguments. The following paragraphs of the said judgment are usefully extracted hereunder:

97. In the light of what was discussed hitherto, it is to be seen as to whether the ESI Act , the 1973 Act and the 1976 Act are operating in the same field?. As stated above, the ESI Act is a pre-constitutional law enacted in exercise of powers vested on the Federal Legislature in terms of Entry 27 of List III (Part II) of Schedule VII prescribed under Section 100 of the Government of India Act, 1935 (1935 Act). Schedule VII of the Constitution distributes powers between the State legislature and the Parliament. Under Section 100 of the 1935 Act, the power to legislate on the subject of insurance was vested with the Federal legislature in terms of Entry 37 of List I of Schedule VII. The reason being that the provincial assemblies are excluded from interfering with the Federal law, since several provincial assemblies had legislations covering insurance.

98. However, post framing of the Constitution, the power to legislate qua insurance is solely vested with the Parliament in terms of Entry 47 of List I of Schedule VII under Article 246. Whereas, Entry 25 of http://www.judis.nic.in Page No.63 of 90 W.P. No.34236 of 2019 etc. batch the Concurrent List deals with Education, while Entry 23 and 24 deal with "Social security and social insurance; employment and unemployment"

99. The 1973 Act is not intended to legislate the subjects covered under Entries 23 and 24, but only with respect to Entry 25, i.e., "education". In order to regulate the functioning of the private schools and the service conditions of teachers and other employees, it was enacted. It cannot be stated that it automatically excludes any other law covering the insurance under Entry 47 of List I or Entires 23 and 24 of List III, merely because Section 19 of the said Act refers to insurance. The natural corollary of the above discussion would be that there is no repugnancy between the provisions of the ESI Act and the 1973 Act, as they entire operate in different fields.

100. It is also to be stated that the State Government is yet to frame any insurance cover to the teachers of private unaided schools and even to the teachers working in self-finance stream in aided institutions. As narrated earlier, the employees could get sickness benefit, medical http://www.judis.nic.in Page No.64 of 90 W.P. No.34236 of 2019 etc. batch benefit, disability benefit, maternity benefit, death benefit and funeral benefit. The petitioner and other institutions have not even placed any material to impress upon this court that they have been extending similar benefits to their employees, leave alone the better scheme. On the other hand, it is disheartening to state that they have been prolonging the implementation of social welfare legislation for nearly a decade, by stalling the impugned notification, which would otherwise have benefited thousands of teachers and other employees.

101. Reliance was placed on the following decisions by the learned Advocate General in this regard:

http://www.judis.nic.in Page No.65 of 90 W.P. No.34236 of 2019 etc. batch

(vi) Maheshwari Fish Seed Farm V. T.N. Electricity Board, 2004 (4) SCC 705 ; and

( vii) Peddinti Venkata Murali Ranganatha Desika Iyengar V. Government of A.P. , 1996 (3) SCC 75. It is relevant to extract paragraphs 13 and 14 of the said judgement, which reads as hereunder:

102. The different decisions cited above would indicate that it is unsafe to construe a statute by a process of etymological analysis and http://www.judis.nic.in Page No.67 of 90 W.P. No.34236 of 2019 etc. batch separating words from their context to give each word some particular definition. What particular meaning should be attached to any word or phrase in an enactment should be gathered from the context, the nature of the subject matter, the purpose or the intention of the statute and the effect of giving them one or permissible meaning on the object to be achieved. The words/definitions are only to convey the idea of the Statute. Therefore, it should be so construed to fit in with the objects of the Statute.

103. The relevant provisions are Section 19 of the 1973 Act and Section 17 of the 1976 Act. Whether Section 19 read with Section 17 would be a bar to the impugned G.O.Ms.No.237, dated 26.11.2010.

104. The power under Section 1(5) of the ESI Act has been used by the State to implement what it had envisaged under Section 19 of the 1973 Act. Therefore, there is no illegality in the manner in which, the State has exercised its power, since the overriding provision itself allows for such an order to be made. The section does not restrict the rules and orders to be made within the said Act above. Perhaps instead of enacting a separate rule in terms of insurance, which would further delay the process, the State Government had thought it fit to extend the already overdue benefit to the employees of educational institutions by issuing the Government Order.

http://www.judis.nic.in Page No.68 of 90 W.P. No.34236 of 2019 etc. batch

105. Admittedly, there are no rules framed in respect of insurance for private schools employees till date and the private schools also have been keeping silent on the said issue from the date of enactment. Even assuming that the State Government had introduced a statute qua insurance under the 1973 Act, it would not lead to repugnancy between the said rule and the ESI Act in view of the proviso to Section 17 of the 1976 Act. A Government Order or enactment, whichever provides better scheme would survive, while the lesser one would automatically become inapplicable as per the proviso which entitles the employee of better benefits. Therefore, apparently there is no repugnancy between the 1973 Act and 1976 Act and the G.O.Ms.No.237 issued under Section1(5) of the ESI Act and hence, no amendment is required to be made either under the ESI Act or under the State Acts to implement/enforce the G.O.Ms.No.237, dated 26.11.2010.

106. In Krishna District Co-operative Marketing Society Limited Vs. N.V.Purnachandra Rao , 1987 (4) SCC 99, the Hon'ble Supreme Court has dealt with the aspect of repugnancy between a State law that has received assent and the Central Act in the following manner :

http://www.judis.nic.in Page No.71 of 90 W.P. No.34236 of 2019 etc. batch

107. Besides, Section 61 of the ESI Act bars benefit under other enactments as follows:

When the ESI Act has already excluded the operation of any other enactment in the field that is governed by the ESI Act , a State cannot enact any Act or rule providing benefits that are similar to the benefits provided under the ESI Act .

108. Even otherwise, Section 87 of the ESI Act provides for exemption for those employer providing better benefits to the employees of educational institutions and the said provision reads as follows:

109. If the petitioners' institutions are agreeable or acceptable for the enactment qua insurance by the State Government, it is not fair on their part to challenge the Government Order, which is not in the form acceptable to them. It is only a hyper-technical objection. The Central and State legislation only provide for certain benefits to the employees. Section 28 of the 1973 Act has been carefully worded in such a way that neither the mode of implementation nor the instrument granting the best benefit would be struck down merely because of the overriding provision.

110. Thus, the last phrase 'or otherwise' used in Section 1(5) of the ESI Act has wide amplitude. The legislature in exercise of its wisdom has empowered the Government to bring in not only industrial, commercial or agricultural establishments, but also other establishments, including education Institutions/establishments. It is argued that whether the provisions of the ESI Act can be made applicable for the self-financing unaided institutions. We do not find any legal impediment in bringing such institutions also within the purview of this Act. Section 1(5) of the ESI Act enables the State Government to extend the scheme to any http://www.judis.nic.in Page No.73 of 90 W.P. No.34236 of 2019 etc. batch establishments or class of establishments unaided educational institutions being no exception.

111. In Haryana Unrecognized Schools' Association V. State of Haryana , 1996 (4) SCC 235, the Hon'ble Supreme Court has held that the teachers will not come within the purview of the Minimum Wages Act and therefore, any notification fixing the minimum wages in respect of them will be invalid. It is relevant to refer the paragraph 11 of the said judgment in this regard :

112. Though we would not embark on the individual factual disputes before us, in the light of the above referred judgment and also there are substantial number of private educational institutions run by the religious minority having protection under Article 30(1) of the Constitution, which http://www.judis.nic.in Page No.74 of 90 W.P. No.34236 of 2019 etc. batch are represented by Fr.Xavier Arulraj, learned Senior Counsel before us, we would specifically deal with the same.

113. In Haryana Unrecognized Schools' Association, referred supra, the Hon'ble Apex Court placed reliance on the judgment in A.Sundarambal V. Government of Goa, Daman and Diu , 1988 (4) SCC 42, and held that the teachers would not come within the definition of the term 'employee' as found in the Minimum Wages Act . In Sundarambal 's case, it was found a teacher is not a 'workman' within the meaning of Section 2(s) of the ID Act, even though the educational institutions can be considered to be 'industry' in terms of Section 2(j) of the ID Act. As we have already held that the impugned notification issued under the ESI Act is an independent notification under Section 1(5) of the ESI Act and that the term 'industry', as defined in the ID Act need not be gone into once again. However, the teachers can be considered as employees so as to become 'insured persons' under the ESI Act .

114. In Christian Medical College Hospital Employees' Union and another V. Christian Medical College Vellore Association and Others , 1987 (4) SCC 691, it has been held that the labour welfare legislation will apply even to minority institutions, notwithstanding Article 30(1) of the Constitution and the relevant paragraph of the said judgment is as follows :

115. Fr.Xavier Arulraj, learned Senior Counsel also mentioned that many of the private educational institutions belonging to the religious minority, for whom he is representing, were already advised to contribute towards ESI and they have also either paid or agreed to pay the contribution, interest and also the damages, after obtaining appropriate orders in that regard and only seeks indulge of this Court in extending time to do so. Though the High Court under Article 226 of the Constitution cannot interfere and grant either extension of time, waiver, etc., it is open to the ESI Corporation authorities to take appropriate action, as and when such cases arise for their consideration.

116. Accordingly, question Nos.(v) and (vi) are answered, as above. http://www.judis.nic.in Page No.77 of 90 W.P. No.34236 of 2019 etc. batch Question No.IV :

117. The final question of reference to be decided, i.e., Question No.(iv), reads as follows:

118. It is submitted by the petitioners' counsels that the definition of private school, as per the Tamil Nadu Private Schools (Regulation) Act, 1973 , excludes both unaided and aided schools. In the absence of any other substitute of the ESI Act to the private aided schools, the discrimination is striking on the face of it and violative of Article 14.

119. After the advent of the Right of Children to Free and Compulsory Education Act, 2005 (in short, " RTE Act "), the question of aided or unaided goes, as all the schools are mandated to surrender 25% of their seats and get aid from the government for the Students admitted under the RTE Act . The proviso to Section 1(4) of the ESI Act came to be inserted with effect from 20.10.1989 by the Amendment Act 29/1989. http://www.judis.nic.in Page No.78 of 90 W.P. No.34236 of 2019 etc. batch After the said amendment, the applicability of the provisions of the ESI Act to the Government owned or controlled establishments are not automatic, when the Government is of the opinion that the benefits given to the employees under those establishments are substantially similar or superior to the benefits provided under the said Act.

120. However, it is now mentioned by the State that the notification No.II 2/LE/52/2013 dated 02.01.2013 issued by the State, has extended the provision of the ESI Act to public, private and aided educational institutions as well, which reads as follows :

121. According to the petitioner in Cont.P.No.1960 of 2019, they filed W.P.No.24612 of 2013 challenging the notification, which was disposed of by virtue of the common order dated 16.06.2015 in W.A.Nos.918 of 2013, etc. batch. While so, the Deputy Director, Sub Regional Office, ESI Corporation, had issued a notice in No.56001135390001302/9102019312, dated 10.09.2018 asking the members of the petitioner association to pay a sum of Rs.17,53,860/- towards the ESI Contribution, for which, the contempt petitioner also had suitably replied on 11.10.2019 mentioning about the interim order granted by this Court, which is still in force and till such time the matter is decided by the Hon'ble Supreme Court finally, any demand by the ESI Corporation would be contemptuous. Even after the receipt of the said reply, the ESI Corporation had issued another notice dated 22.10.2019 calling upon the contempt petitioner association to appear for an enquiry on 13.11.2019 for the purpose of determining the contribution for ESI. Aggrieved by the said demand, the contempt petition has been filed. http://www.judis.nic.in Page No.81 of 90 W.P. No.34236 of 2019 etc. batch

122. Mr.R.Singaravelan, learned Senior Counsel, is right in arguing that the ESI Corporation ought not to have proceeded with the demand notice, despite the order passed by the Division Bench being in force. The ESI Corporation also cannot be found fault with, as there were various orders passed by this Court, which caused confusion. Therefore, till such time, the orders were clarified, the ESI Corporation ought not to have issued the demand notice. However, it is now learnt that the Corporation has not taken any coercive steps for the recovery or levied any damages or interest for damages, in view of the filing of the contempt petition.

123. From the above, it is clear that the contempt petitioner cannot be said to be seriously prejudiced. Though the authorities issued the demand notice as a matter of routine, without taking into account the orders of this Court, according to us, the same need not be viewed seriously at this point of time. Accordingly, the Contempt Petition is closed.

124. Before parting with this matter, we would like to mention that ESI also should increase/improve their services and facilities in their hospitals to make them more preferred ones by the subscribers to the scheme.

http://www.judis.nic.in Page No.82 of 90 W.P. No.34236 of 2019 etc. batch

125. It appears that the Parliamentary Panel has suggested the Ministry of Labour to approach the Ministry of Health and Family Welfare to take over the ESIC Hospitals and develop them on the lines of All India Institutes of Medical Sciences (AIIMS).

126. With rising health-care costs, teachers have been expected to foot more of the bill for their health care. In order to efficiently utilize the infrastructure already created by the ESI Corporation and to ensure uniformity in standards of medical education across all Government run medical colleges, the Ministry of Health and Family Welfare may be approached to take over the colleges and medical education projects of the ESI Corporation and develop them akin to AIIMS. It cannot be a difficult task, as the ESI Corporation has both the capacity and mandate to run them.

127. Admittedly, ESI is functioning on the contributions of the insured persons or subscribers and their employers and cannot deny medical facilities to them on the pretext of shortage of staff. The ESI has to address the Ministry to provide staff in ESIC hospital and make them 100% functional. The Performance Audit Report of the ESI Corporation has revealed the following findings:

http://www.judis.nic.in Page No.83 of 90 W.P. No.34236 of 2019 etc. batch

ii) Initiate timely action to determine the dues to avoid being time-barred;

iii) Have a check on the persons availing the benefits from ESI dispensaries / hospitals without paying as it is only intended for those insured only.

128. The other areas of concern are:

129. Needless to state that by virtue of exercise of powers under Section 1(5) of the ESI Act, more and more educational institutions have been brought within the umbrella of the ESI Corporation to cater the needs of the subscribers. Therefore, it can no longer be stated that ESI dispensaries can be established only on the industrial belt catering the medical needs and allied services to the workers. As the nation itself is looking at 100% literacy, every town and village having sufficient number http://www.judis.nic.in Page No.84 of 90 W.P. No.34236 of 2019 etc. batch of schools and colleges, as per the norms fixed by the ESI Corporation, should, definitely, have ESI dispensaries or hospitals with all the facilities. It is mandatory on the part of the ESI Corporation to achieve the said milestone without any delay.

130. This matter was heard and reserved for orders just before the preparations for lock down of the Country on account of COVID–19 pandemic were announced. Thus, in addition to whatever we have stated above on the merits of the issue referred to us, we are also of the view that the present economic conditions necessitate some leeway and negotiations in the matter of settlement of arrears due by the Educational Institutions.

131. Section 91 C of the ESI Act comes to aid. Section 91 C provides for the writing off of loss and states as follows:

132. A provision is, thus, made for the Corporation to sanction the writing off of the contribution, interest and damages due to it if the Corporation is of the opinion that such amounts are irrecoverable from http://www.judis.nic.in Page No.85 of 90 W.P. No.34236 of 2019 etc. batch the Educational Institutions concerned. The pandemic has resulted in a situation where several Educational Institutions are reportedly unable to even pay regular salaries to their employees. The financial crunch faced by them, at this juncture, is a matter of public knowledge. The impugned Notification no doubt mandates certain contributions to be made and we have upheld the validity of the same. The contributions to be made under the Notification enure to the coffers of the Corporation and it is not the Corporation’s case that there are claims that have been made by the employees of the Educational Institutions that remain unfulfilled on account of the failure of the Institutions to make the contributions in the first place. No prejudice has thus been caused to the employees per se for the periods till date on account of such failure by the Educational Institutions.

133. We, thus, strongly recommend that the provisions of Section 91C be applied in letter and spirit by the Corporation in considering the case for reduction/waiver of pending arrears, if and when made by the Educational Institutions. Such requests, if and when made, shall be considered by the Corporation in line with the object and spirit of Section 91 C, particularly in the light of the present economic conditions.

134. To sum up, we answer the questions of reference as below:

(iii) The ESI Act can very well treat the private unaided educational institutions as 'establishments' within the meaning of the said Act and the term 'otherwise' has clearly been placed to specify that genus of establishments is not restricted to those organisations, which are industrial, commercial or agricultural only, but also includes organisations like educational institutions;

(iv) There is no discrimination between the private unaided educational institutions and the public and government aided http://www.judis.nic.in Page No.87 of 90 W.P. No.34236 of 2019 etc. batch private educational institutions, pursuant to the issuance of the notification No.II 2/LE/52/2013, dated 02.01.2013 ; and

(v) As far as question Nos.(v) and (vi) are concerned, no amendment is required to be made by the State or Central Government to implement the impugned notification.

135. In view of the above conclusion, there is no necessity to place these writ petitions before the Division Bench and accordingly, all these writ petitions are dismissed as devoid of merits. There will be no order as to costs.

136. Consequently, the contempt petition and the connected sub applications are closed.

137. As far as the Writ Appeals and Writ Petitions covered under the common orders dated 09.06.2015 and 16.06.2015, the same may be placed before this Bench for further orders, as per the order of the Hon'ble Chief Justice dated 13.03.2020.