P.N. Ravindran, J.
1. The petitioner is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955. It is running schools and creches in different parts of the State of Kerala. When the Employees State Insurance Corporation (hereinafter referred to as the Corporation for – short) initiated proceedings against the petitioner society under the provisions of the Employees’ State Insurance Act, 1948 (hereinafter referred to as the Act for short), the petitioner filed Ext.P3 application before the State Government, the appropriate authority under the Act seeking exemption from the provisions of the Act. Earlier, the petitioner had filed a representation before the Hon’ble Minister for Labour seeking the same relief, but, pursuant to Ext.P2 letter dated 20.5.2010 received from the Government an application in the prescribed form, evidenced by Ext.P3, was submitted. When that representation was kept pending, the petitioner filed W.P.(C).No.1164 of 2011 in this Court. By Ext.P13 judgment delivered on 13.1.2011 this Court disposed of the said writ petition with a direction to the State Government, joined as the second respondent in the writ petition, to pass appropriate orders on Ext.P3 application after ascertaining the views of the Corporation and after affording the petitioner and a representative of the Corporation an opportunity of being heard. The Government thereafter passed Ext.P14 order dated 10.6.2011 rejecting the application. Hence this writ petition challenging Ext.P14 and seeking the following reliefs:-
i) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P14.
ii) a writ of mandamus or any other appropriate writ, order or direction commanding the first respondent to consider the petitioner’s request in Ext.P3 application afresh and pass orders thereon, after affording an opportunity of being heard.
iii) a writ of mandamus or any other appropriate writ, order or direction commanding the second respondent to desist from proceeding against the petitioner under the provisions of the Act until a decision is taken by the appropriate government, the first respondent, on Ext.P3 application of the petitioner Society under Sections 87 and 88 of the Act.
The main contention raised by the petitioner is that the Government, instead of rejecting the application on a technical ground, namely an incomplete entry in column 9 of the application, ought to have considered the petitioner’s application for exemption on the merits and taken a decision as to whether the order of exemption sought for should be granted. Various other contentions are also raised in the writ petition.
2. I heard Sri. Mohan Pulickkal, learned counsel appearing for the petitioner, Sri. Hanil Kumar, learned Government Pleader appearing for the State of Kerala, Sri. P. Sankarankutty Nair, learned standing counsel appearing for the Corporation and Sri. P. Parameswaran Nair, learned Assistant Solicitor General of India appearing for the third respondent.
3. The operative portion of the impugned order reads as follows:-
“4. In the Ext.P3 application submitted by the petitioner for exemption from the purview of ESI Act under section 87 and 88, the period for which exemption is required, has not been specifically indicated. The petitioner has sought exemption “with retrospective effect” without specifying the period of exemption.
5. As per section 91A of the ESI Act, 1948, as amended by the Act 18 of 2010, which came into force w.e.f. 1.6.2010, exemption can be granted only with prospective effect. Since there is no provision in this Act to exempt with retrospective effect the request of the petitioner cannot be considered and the Ext.P3 application for exemption is therefore rejected. The directions of the Hon’ble High Court in the judgment read above is thus-complied with.”
From a reading of the impugned order it is evidence that the Government was-mainly influenced by the entry made against column No.9 of the application which reads as follows:-
“9. (a) Section of the ESI Act under which exemption is sought : Section 87 and 88 of the ESI Act, 1948.
(b) The period for which the exemption is required : With retrospective effect.”
Against column 9(b) the petitioner had stated that the period for which exemption was required is “with retrospective effect”. The impugned order also proceeds to state that in view of Section 91A of the Act as amended by Act 18 of 2010 with effect from 1.6.2010, exemption can be granted only prospectively. The application submitted by the petitioner for exemption has been rejected on two grounds, namely, the period for which exemption was sought has not been specified and retrospective exemption cannot be granted.
4. Section 91A of the Act as it stood prior to 1.6.2010 reads as follows:-
“91 A. Exemptions to be either prospective or retrospective. – Any notification granting exemption under section 87, section 88, section 90 or section 91 may be issued so as to take effect either prospectively or retrospectively on such date as may be specified therein,”
Section 91 A of the Act as amended with effect from 1.6.2010 reads as follows:-
“91 A. Exemption to be prospectively. –
Any notification granting exemption u/s. 87, Section 88, Section 90 or Section 91 may be issued so as to take effect prospectively on such date as may be specified therein.”
As per the provisions in force prior to 1.6.2010 the State Government Could have granted exemption either prospectively or retrospectively with effect from such date as may be specified in the order of exemption. On and with effect from 1.6.2010 the exemption granted can only have prospective effect from such date as may be specified therein. In my opinion the word ‘prospectively’ occurring in Section 91 A of the Act as amended, with effect from 1.6.2010 cannot be interpreted to mean that an order of exemption can take effect only from the date on which it is granted. In a given case, the Government may have to spend some time on the application before granting an exemption. In another case, the Government ‘may be in a position to pass expeditious orders. In other words’, if the Government were to grant exemption with effect from the date of the application it cannot be said that such an order-of exemption is illegal. The words “may be issued so as to take effect prospectively on such date as may be specified therein” cannot be interpreted to mean that date can only be a future date. If that were the intention the Parliament would have stated that the notification granting exemption will take effect only from the date of the order. All that section 91 A as amended prohibits is the grant of retrospective exemption from an earlier date, anterior in point of time, to the application for exemption itself. In other words in view of the stipulations in Section 91 A as amended, an order of exemption cannot take effect from a date earlier than the date of the application. In the instant case the Government appears to have taken the stand that exemption can be granted only from “the date of the order. That apart, the Government have also declined to grant exemption on the ground that the date with effect from which the petitioner seeks exemption has not been specified. In my opinion, if the Government were of the opinion that the application was defective for want of details, it should have returned the application to the petitioner and directed the petitioner to rectify the defect and to resubmit the application. It is evidence “from” a-reading of the impugned order that it was because of the omission in the application that the Government rejected the application. Such being the situation, I am of the opinion that the Government should reconsider Ext.P3 application after giving the petitioner an opportunity to rectify the defect in it, namely the entry in column 9(b).
I accordingly allow the writ petition, quash Ext.P14 and direct the Government to reconsider Ext.P3 application after giving the petitioner an opportunity to correct the entry against column 9(b) of the application. The petitioner shall move the Government for such correction within two weeks from the date of receipt of a certified copy of this judgment. On the petitioner moving an application for correction, the Government shall consider Ext.P3 application afresh and pass appropriate orders thereon after notice to and affording the petitioner an opportunity of being heard. Needless to say the Government shall ascertain the views of the Corporation and shall, if necessary, afford an opportunity of being heard to the Corporation also. The Government shall pass revised orders on Ext.P3 application within three months from the date of receipt of the application for correction and shall after orders are passed communicate copies thereof to all the parties simultaneously. Until such time, the status quo as on today shall be maintained as regards the proceedings, if any, initiated by the Corporation against the petitioner/petitioner’s establishment.