Judgment:
ORDER
R.S. Mongia, J.
1. This judgment will dispose of this writ petition as well as Civil Writ Petitions No. 881, 967, 1022, 1024, 1116, 1170, 1224, 1223, 1212, 1260, 1917, 2641, 1839, 1225, 1235, 1247, 1332, 1406, 1412, 1439, I486, 1493, 1496, 1522, 1600, 1616, 1628, 1629, 1612, 1680, 1724, 1730, 1777, 1838, 1912, 1994, 1999, 2034, 2082, 2136, 2159, 2164, 2230, 2447, 2697, 2702, 2802, all of the year 1997.
2. All the aforesaid writ petitions were dismissed on February 28, 1997, but it was observed that the reasons will be recorded later on. We proceed to give reasons.
3. In all these writ petitions, the grievance made is that the Notification dated December 23, 1996, copy Annexure P-5 in C.W.P.No.739 of 1996, issued by the Government of India in the Ministry of Labour is wholly arbitrary and is not based on any reasonable objective and is not in consonance with the object of the original enactment i.e. the Employees' State Insurance Act (in short 'The Act'). This Notification has been issued u/Sec. 15 of the Act. By virtue of this notification, amendment has been made in the Rules known as Employees' State Insurance (Central) Rules, 1950, amending Rules 50, 51 and 54, which have come into force from January 1, 1997, by which the wage ceiling for coverage under the Act has been enhanced from Rs. 3,000/- to Rs.6,500/- per month and the employer's contribution has been raised from 4% to 4 3/4 % of the wages of the employees and the employees' contribution from 1 /2 % to 1 3A %. The effect of the amendment is that the persons who were and are getting wages excluding remuneration for over time work in the region of Rs.3,000/- and above up to Rs. 6,500/- per month were also required to be covered under the Employees' State Insurance Scheme. These writ petitions have been filed by the Unions and their employees whose wages are between 3,000/- and Rs.6,500/- per month. Even prior to issuance of this Notification, employees whose wages were up to Rs.3,000/- were already covered under the Act and the scheme made thereunder. The main ground for challenge in the writ petition is that these employees are already getting better medical treatment and enjoy better medical facilities in the establishments where they are working by virtue of some settlements/agreements between such employees and the management but bringing into fold such employees who are in receipt of wages between Rs.3,000/- and Rs.6,500/- they would be deprived of those better medical facilities and will have to get the facilities whatever available under the E.S.I. Scheme by compulsion. The medical facilities under the E.S.I. Scheme are so meagre and scanty that by brining in more employees under the umbrella of the Scheme, i.e. employees getting wages upto Rs.6,500/-per mensem, the employees who are already getting medical facilities would also be deprived of the facilities as without increasing or developing the facilities already available, more people have been brought in the ambit of the E.S.I. Scheme without even going into these facts whether the already existing facilities were sufficient to cater to the needs of the employees already under the fold of the scheme. According to the petitioners, the E.S.I. Corporation by arbitrary action cannot deny the benefits enjoyed by them through their employers and thrust upon them the so called benefits under the Act and the scheme. An invidious discrimination has also been created between the employees covered under the Scheme and the employees left out of the scheme as the employees left out would be getting much better facilities and benefits through the negotiated settlements with the employers. This, according to the petitioners is wholly arbitrary and violative of Article 14 of the Constitution of India. It was submitted that if the petitioners are getting and enjoying substantially similar or superior benefits provided under the Act and the Scheme, the same should not be made applicable to them. It was also submitted that earlier when the limit was raised from Rs.1,600/- to Rs.3,000/- to bring under the coverage such employees who were getting wages upto Rs.3,000/- per month, writ petitions were filed in this Court which stand admitted. According to the petitioner, some survey should have been done before issuance of the Notification so that data could be collected as to whether the facilities already being enjoyed by the employees through the negotiated settlement with the employers were better or under the scheme were better. Further it should have been found out as to whether the existing dispensaries etc. would be able to cope up and cater to the needs of the employees who were sought to be brought in under the scheme by the impugned Notification.
4. Notice of motion was issued. Reply has been filed on behalf of the respondents. It has been, inter alia, averred in the reply that if the employees of any establishment are of the view that the existing facilities provided by the employer are better they may apply to the appropriate Government for exemption under Sections 87 to 91-A of the Act. The Scheme under the Act provides for comprehensive medical cover and cash benefits in contingencies of sickness, maternity, disablement and death due to injury while in employment. Initially under the Act, the wage ceiling for coverage of employees under the Scheme was Rs.400 per month. The said wage ceiling was raised from time to time. In 1968 it was raised to Rs.500/- in 1975 to Rs. 1,000/- and in 1985 to Rs. 1,600/-. Then by amending the Rules, the Central Government fixed the wage ceiling at Rs.3,000/- and w.e.f. February 1, 1991, and now the said Rules 50 to 62 have been further amended by the impugned Notification fixing the wage ceiling limit at Rs.6,500/- per month. This was because of frequent revision in the wage ceiling limit of the employees and due to general inflatory trend. It is averred that during the year 1993-1994, as many as 64,000 employees went outside the purview of the Act and the Scheme despite raising the wage ceiling from Rs. 1,600/- to Rs.3,000/- in 1982 as by that time the wages of the employees had been increased because of decline in the money value and because of the inflationary trend. Besides inflation and upward revision of wages, the other relevant factors are taken into consideration to decide the question of revision of the wage ceiling. The Standing Committee prepares the proposals, which are placed before the E.S.I. Corporation. Thereafter the decision of the Corporation is placed before both the Houses of Parliament as required u/Sec.95(4) of the Act. Further it has been averred that the Notification raising the wage limit from Rs.1,600/- to Rs.3,000/- which was challenged on similar grounds as in the present petition was upheld by the Kerala High Court and Karnataka High Court and the decision of the Kerala High Court was even upheld by the Apex Court. The judgment of the Single Bench of the Kerala High Court is reported in Tata Employees Union v. U.O.L (1993-I-LLJ-580). The Letters Patent Appeal against the aforesaid judgment was also dismissed.
5. After hearing learned counsel for the parties, we are of the view that there is no merit in these writ petitions. The Employees' State Insurance Corporation is the best Judge to see the wage ceiling of the employees who are to be covered under the E.S.I. Scheme. The Draft Rules for making amendment regarding the wage ceiling for covering the employees under the Scheme were duly published inviting objections. It was after objections were received and considered with due deliberations that the amendment was made. It is a well known fact that because of the inflationary trend and because of other similar considerations the employer raises the wages of the employees and if simultaneously the matter is not considered by the E.S.I. Corporation, many employees who are covered under the E.S.I. Scheme would be taken out of the same because of the raise in their wages. If the employees are of the view that the medical facilities and other benefits which are being provided by the employer are better than the one they would get under the Scheme, it is for them to claim exemption under Sections 87 to 91 read with Section 1(iv) - proviso of the Act by making application to the appropriate Government or obtain a suitable declaration from the Insurance Court under Sections 75 to 78 read with Section 1(iv) proviso of the Act. The amendment made had been placed before both the Houses of Parliament. It is not that over night the E.S.I. Corporation thought of raising the wage ceiling, The petitioner before us represents only a fraction of the employees. As observed above, if any of one of them considers the facilities already available to them to be superior, they may approach the appropriate Government/Insurance Court to get out of the scheme. Though, in the reply, it has been averred that the facilities provided under the E.S.I. Scheme are better and the dispensaries etc. would be able to cater to the needs of the employees who are being brought under the Scheme but these are all questions of fact which cannot be gone into under Articles 226/227 of the Constitution of India. Be that as it may, it is for the employees who may feel aggrieved to approach the appropriate Government/Insurance Court and establish that the facilities already being enjoyed by them are superior to the one under the E.S.I. Scheme. The E.S.I. Scheme does not only provide medical facilities but it provides other benefits of leave etc. in connection with family planning operation, invalid pension, permanent disability benefit, funeral expenses and comprehensive medical care. When the matter is considered by the Standing Committee of the Employees* State Insurance Corporation, the representatives of the employers and employees are there to express their view points. This was the precise view taken by the learned Single Judge of the Kerala High Court in Tola Employees' Unfonczse (supra). It may be observed here that the Notification which was under challenge before the Kerala High Court was the one raising the wage ceiling to Rs.3,000/- i.e. the employees falling within the wage of Rs. 1,6007- to Rs.3,000/-. The learned single Judge while dismissing the writ petition had observed that the Notification under challenge shall be operative from November 1, 1992, and not from April 1, 1992, from which date it was sought to be enforced by the Central Government. The Division Bench upheld the judgment of the learned single Judge. The Supreme Court also upheld the judgment in Civil Appeal No.5527-28 of 1993, rendered on October 11, 1983, but upset the directions of the High Court by which the Notification was sought to be enforced from November 1, 1992, instead of April 1, 1992. The Apex Court held that the Notification would be enforced w.e.f. April 1, 1992. It may be observed here that similar view as of the Kerala High Court was also taken by the Karnataka High Court in judgment reported as Workmen of Bharat Heavy Electrical Ltd. v. Union of India (1993-I-LLJ-833).
6. A similar matter came up for consideration before the Delhi High Court in C.W.Ps.No.1643 of 1992 and 1409 of 1992, which were dismissed on May 25, 1992, by a Division Bench of that Court. It was observed by the Division Bench of Delhi High Court that 'the question whether the existing medical benefits available to the petitioners are more beneficial than what would be available under the Scheme is not something which can be gone into by this Court because it raises- disputed questions of fact. In any event, there is a provision under the Scheme itself which provides for applications for exemption from operation of the Act. If the petitioners are aggrieved, they can always approach the appropriate Government under Section 87 of the Act for grant of exemption from the Scheme.
7. For the foregoing reasons, we find no merit in these writ petitions, which are hereby dismissed. However, we leave it open to the petitioners or any other employees to approach the appropriate Government/Insurance Court, if so advised, under the Act, for the grant of exemption or for any other relief to which they may be entitled. We do hope that if any such applications are made, the appropriate Government/Insurance Court would take a decision thereon expeditiously.