IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE5H DAY OF SEPTEMBER201314TH BHADRA, 1935 WP(C).No. 14224 of 2013 (C) ---------------------------- PETITIONER(S): -------------------------- M/S.BHAGHEERATHA ENGINEERING LTD., II FLOOR, BHAGEERATHA RESIDENCY, BANERJEE ROAD, KOCHI-682 018, REPRESENTED BY ITS DEPUTY GENERAL MANAGER; MR.CHANDRASEKHARAN. K. BY ADVS.SRI.BOBY MATHEW, SMT.K.MEERA. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION (B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. EMPLOYEES STATE INSURANCE CORPORATION, REGIONAL OFFICE (KERALA), REPRESENTED BY ITS REGIONAL DIRECTOR, 'PANCHADEEP BHAVAN', NORTH SWARAJ ROUND, THRISSUR - 680 020.
3. THE INSURANCE INSPECTOR, ESI CORPORATION, SUB REGIONAL OFFICE, ERNAKULAM MALU'S COMPLEX, ST.FRANCIS CHURCH ROAD, KALOOR, KOCHI-682 017. R1 BY SR. GOVT. PLEADER MR.RAMPRASAD UNNI. R2 & R3 BY ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON0509-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 14224 of 2013 (C) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF THE ORDER
OF EXEMPTION DATED1008.2001 BEARING G.O (RT) NO:2467/2001/LBR GRANTED TO THE PETITIONER COMPANY IN RESPECT OF THE YEAR20012002. EXHIBIT P1A: TRUE COPY OF THE ORDER
OF EXEMPTION DATED1709.2002 BEARING G.O (RT) NO:2769/2002/LBR GRANTED TO THE PETITIONER COMPANY IN RESPECT OF THE YEAR20022003. EXHIBIT P1B: TRUE COPY OF THE ORDER
OF EXEMPTION DATED0107.2003 BEARING G.O (RT) NO:1776/2003/LBR GRANTED TO THE PETITIONER COMPANY IN RESPECT OF THE YEAR20032004. EXHIBIT P2: TRUE COPY OF THE APPLICATION DATED1202.2004 ALONG WITH THE SUPPORTING DOCUMENTS SUBMITTED BY THE PETITIONER COMPANY BEFORE THE1T RESPONDENT REQUESTING FOR EXEMPTION UNDER SECTION87OF THE ESI ACT IN RESPECT OF THE YEAR200405. EXHIBIT P3: TRUE COPY OF THE ORDER
DATED0707.2004 BEARING NO:3971/B3/2003/LBR ISSUED BY THE1T RESPONDENT REJECTING EXT.P2 APPLICATION OF THE PETITIONER COMPANY. EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED2407.2004 SUBMITTED TO THE1T RESPONDENT BY ALL THE30EMPLOYEES OF THE PETITIONER COMPANY,SEEKING EXEMPTION FOR THE PETITIONER COMPANY FROM THE PROVISIONS OF THE ESI ACT. EXHIBIT P5: TRUE COPY OF THE REVIEW PETITION DATED2807.2004 FILED BY THE PETITIONER COMPANY SEEKING TO REVIEW EXT.P3 ORDER
. EXHIBIT P6: TRUE COPY OF THE JUDGMENT
DATED2911.2011 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO. 6169 OF2005 EXHIBIT P7: TRUE COPY OF THE JUDGMENT
DATED2903.2012 PASSED BY THIS HON'BLE COURT IN W.A. NO. 195 OF2012 EXHIBIT P8: TRUE COPY OF THE SHOW CAUSE NOTICE DATED3001.2013 BEARING NO:47000113680000606 ISSUED BY THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM OF THE2D RESPONDENT TO THE PETITIONER. WP(C).No. 14224 of 2013 (C) EXHIBIT P9: TRUE COPY OF THE LETTER DATED2802.2013 BEARING NO:
47000. 13680000606 ISSUED BY THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM OF THE2D RESPONDENT TO THE PETITIONER. EXHIBIT P10: TRUE COPY OF THE STATEMENT DATED0304.2013 BEARING NO: HOK: R:P & A:P/69 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM OF THE2D RESPONDENT. EXHIBIT P11: TRUE COPY OF THE COVERING LETTER DATED1204.2013 BEARING NO:
47000. 13680000606 - REV; SENT BY THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM OF THE2D RESPONDENT TO THE PETITIONER. EXHIBIT P12: TRUE COPY OF THE ORDER
G.O (RT.) NO:
1472. 2012/LBR DATED1809.2012 ISSUED BY THE1T RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE. rs. A.M.SHAFFIQUE,J.
--------------------------- W.P.(C).No.14224 OF2013---------------------------- Dated this the 5th day of September, 2013 JUDGMENT
Petitioner challenges Ext.P12 inter alia contending that the said order had been passed without hearing the petitioner and without stating the reasons as held by this Court in the judgment in Kancor Ingredients Ltd. v. Regional Director (Kerala) and others (2012(1) KHC504. Corresponding judgment is in 2012(1) KLT575 2. A perusal of the impugned order would show that the Government formed an opinion that a sub committee of the Regional Board of ESI Corporation has examined the request of the petitioner for exemption under Section 87 of the Employees State Insurance Act 1948 and has found that the benefits provided by the petitioner were neither similar nor superior to that of the benefits provided under the ESI scheme. According to the petitioner, the benefits that they are giving to the employees are much superior to that of the benefits that are provided under the ESI Act and the scheme framed thereunder. The workers employed by the petitioner had also given Ext.P4 representation inter alia stating that they are getting much better benefits. That apart it is W.P.(C).No.14224 OF20132 contended that Ext.P12 had been issued without hearing the petitioner and without reference to the law on the point.
3. Though the learned Government Pleader was called upon to get instructions, it is submitted that no instructions were received from the Government in this regard. Counter affidavit is filed by respondents 2 and 3 inter alia supporting the stand taken by the Government. According to them, the benefit of ESI Amendment Act, 2010 which came into force on 1.6.2010 has no retrospective effect as the said benefit will not be available to the petitioner. Petitioner had filed similar applications for the periods during 2005-2006 up to 2011-2012 and by Ext.P6 judgment, the Government was directed to consider the exemption application with reference to the said period as well.
4. The only question to be considered in this writ petition is whether Ext.P12 order had been issued in accordance with the procedure prescribed. Ext.P2 is the application submitted by the petitioner seeking exemption for the period from 1.4.2004 to 31.3.2005. It is not in dispute that the said application has to be considered in the light of the factual situation and the law prevailing during the said period. Ext.P4 is the letter issued by the employees engaged by the petitioner W.P.(C).No.14224 OF20133 stating that they were getting much better benefits than what is provided under the scheme. The learned Single Judge of this Court had held in Kancor Ingredients Ltd. case as follows: "6. A reading of Ext.P20 order denying exemption in the instant case would reveal that no reasons have been assigned to justify the conclusion arrived at. It would not be sufficient to merely state mechanically that the benefits under the ESI Scheme are far more superior and beneficial. The various benefits extended by the petitioner and the Employees' State Insurance Corporation have to be analysed item wise. A detailed order is warranted while granting or disallowing exemption under S.87 of the Act. This is especially so since the interest of a large section of workers are involved whose representative also deserves to be heard in the exercise. The principal beneficiary of the Act is the employees who have a right to be heard as held in Fertilizer & Chemicals Travancore Ltd. v. ESI Corporation, 2009 KHC5061:
2009. 9) SCC485:
2009. 3) KLT946:
2009. (3) CLR327:
2009. (123) FLR491 It needs no mention that exemption under S.87 of the Act could be granted either prospectively or retrospectively under S.91A of the Act." 5. A similar situation had arisen in this case. Government in Ext.P12 order has only indicated that the committee had come to such a conclusion. The report of the committee is not forming part of Ext.P12. That apart there is nothing to indicate that the petitioner was heard in the matter. No doubt the petitioner may not have a legal right to insist for W.P.(C).No.14224 OF20134 exemption. But while considering an application under Section 87 of the ESI Act the Government is bound to consider as to whether the petitioner is granting better benefits to their employees other than what is provided under the ESI scheme. This is the very purport of the judgment referred above. In that view of the matter, I am of the view that this is an issue which has to be reconsidered and accordingly, this writ petition is disposed as follows: a) Ext.P12 is set aside. b) The first respondent is directed to reconsider the applications submitted by the petitioner for exemption under Section 87 of the ESI Act after giving an opportunity to the petitioner to make additional submissions and in the light of the judgment of this Court as referred in Kancor Ingredients Ltd. case. This shall be done within a period of three months from the date of receipt of a copy of this judgment. Until such time any proceedings for recovering any amount from the petitioner in this regard shall be kept in abeyance. A.M.SHAFFIQUE, JUDGE cms