Dharam Paul Aggarwal and ors. Vs. the State of Punjab and ors.

Decided On : Apr-24-2009

Court : Punjab and Haryana

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			'casenote' => 'Service - Medical Reimbursement - Section 1(5) of Employees State Insurance Act, 1948 - Petitioners are government employees - Respondent-state government issued notice under Section 1(5) of Act that provisions of Act to be made applicable to government factories - Notice mentioned that government employees will not entitled to get medical imbursement anymore - Petitioners moved application for exemption from operation of Act - Respondent rejected application on basis of law - Hence, present Petition for providing medical reimbursement - Held, no provision for providing fixed medical reimbursement - Petitioners are not legally entitled to medical reimbursement after coming into force of Act - Respondent adopted policy after taking into account all facts and situations - Petitions dismissed -  -  251. 4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal.',
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			'judgement' => '<p style="text-align: justify;">Satish Kumar Mittal, J.</p><p style="text-align: justify;">1. This order shall dispose of CWP Nos. 6111, 5239, 5552, 6159 and 650 of 1986. In these petitions, the petitioners are employees/workers of the Punjab State Co-operative Milk Producers' Federation (hereinafter referred to as 'the MILKFED'). The Punjab Government vide Notification issued under Section 1(5) of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') made applicable the provisions of the said Act to the Government factories including the MILKFED. The petitioners, who were receiving wages between Rs. 1,000/- to Rs. 1,600/- per month came within the purview of the said Act w.e.f. 27.1.1985. Undisputedly, prior to 27.1.1985 the petitioners were receiving an amount of Rs.SO/- per month towards medical reimbursement under Clause (3) of the Services Rules, which is reproduced as under:</p><p style="text-align: justify;">Clause 3:- Medical Reimbursement.- The fixed medical allowance of Rs. 15/- [later on enhanced to Rs. 50/-] will only be paid to Employees/workmen who were not covered by the ESI Act/Scheme.</p><p style="text-align: justify;">2. When the provisions of the ESI Act were extended to the MILKFED, the petitioners Employees' Union moved an application for exemption from the operation of the ESI Act to the appropriate Government. Vide order dated 13.8.1986 (Annexure P3) the State Government rejected the said prayer while observing that the benefits provided by the employer are much inferior as compared to the benefits provided to the workman in ESI Act. In these petitions, the petitioners have challenged the said order. A prayer has also been made to issue direction to the MILKFED to pay medical allowance of Rs. 50/-per month to the petitioners irrespective of the fact whether the ESI Scheme prepared under the ESI Act has been made applicable on them or not.</p><p style="text-align: justify;">3. During the course of hearing, counsel for the petitioners stated that the petitioners do not want to press the prayer of quashing the order dated 13.8.1986 (Annexure P3). However, he submitted that in view of Section 72 of the ESI Act the respondent-MILK-FED cannot discontinue the medical reimbursement of Rs. 50/- which was available to the petitioners under the conditions of their service. He submitted that the benefits provided by the employer prior to the enforcement of ESI Act can be discontinued or reduced only if so provided under Section 97(1) of the ESI Act. According to the learned Counsel, the benefits provided under the ESI Act are supplementary to the medical benefits received by the petitioners under the service conditions and the same cannot be discontinued on coming into force of the ESI Act. In support of his contention, learned Counsel for the petitioners relied upon the decisions of the Supreme Court in Bareilly Holdings Ltd. v. Their Workmen : (1979)3 S.C.C. 257, Calcutta Electric Supply Corporation Ltd v. Calcutta Electric Supply Workers' Union and Ors. : (1994)6 S.C.C. 548, Workmen of Rohtas Industries Ltd v. K. Choudhri and Ors. : A.I.R. 1965 Patna 127 and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd. 1998 L.L.R. 251.</p><p style="text-align: justify;">4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- would only be paid to the employees/workmen who were not covered by the ESI Act/ESI Scheme. Therefore, those employees, who are covered under the ESI Scheme, would not be entitled to the said allowance which in itself was a condition of their service. Learned Counsel further argued that Section 72 of the Act does not apply in the facts and circumstances of the instant case as the benefits of medical reimbursement earlier provided under Clause (3) of the Service Rules are not similar to the benefits conferred by the ESI Act. He further submitted that only those benefits could not be discontinued or reduced which were payable to the employees/workmen under the condition of their service and are similar to the benefits conferred by the ESI Act. He submitted that since the Service Rules itself provide that the medical reimbursement of Rs. 50/- per month will be paid to only those workmen who were not covered by the Act/ESI Scheme, therefore, the petitioners, who were getting the said benefit under the said Rule will not be entitled for the said benefit on their becoming members of the ESI Scheme. He further submitted that in view of Section 61 of the ESI Act, the petitioners are also not entitled to the medical reimbursement of Rs. 50/- per month as the said Section provides that when a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.</p><p style="text-align: justify;">5. I have heard the learned Counsel for the parties in detail.</p><p style="text-align: justify;">6. The only question to be determined in these petitions is whether the medical benefits i.e. medical reimbursement of an amount of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners?</p><p style="text-align: justify;">Section 72 of the ESI Act is reproduced as under:</p><p style="text-align: justify;">Employer not to reduce wages, etc.- No employer by reason only of his liability for any contributions payable under this Act shall, directly or indirectly reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act.</p><p style="text-align: justify;">7. A bare reading of the aforesaid provisions shows that merely because an employer is liable to make any contribution under the ESI Act will not entitle him directly or indirectly to reduce the wages of any employee or insofar as the regulations permit, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the Act. The general purpose of Section 72 of the Act is to deny to the employers the right or power to reduce or discontinue the benefits payable to the workmen under their conditions of service on the ground that the benefits available under the conditions of service and under the ESI Act/ESI Scheme being similar the workmen would not be entitled to a double benefit. Section 72 of the ESI Act contains two parts. The first part provides that no employer by reason of his liability for his contribution payable under the ESI Act shall, directly or indirectly reduce the wages of any employee, and the second part provides that no such employer shall, except as provided by the regulations, discontinue or reduce the benefits payable to him under the conditions of his service which are similar to the benefits conferred by the ESI Act. In my view, the facts of the instant case do not fall under first part of the Section as the medical reimbursement does not cover by the definition of wages. Section 2(22) of the ESI Act defines 'wages', which is reproduced as under:</p><p style="text-align: justify;">'wages' means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include-</p><p style="text-align: justify;">(a) any contribution paid by the employer to any pension fund or provided fund, or under this Act;</p><p style="text-align: justify;">(b) any traveling allowance or the value of any traveling concession;</p><p style="text-align: justify;">(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or</p><p style="text-align: justify;">(d) any gratuity payable on discharge.</p><p style="text-align: justify;">8. Clause (c) of the aforesaid sub-section specifically excludes any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment It also includes the Medical reimbursement.</p><p style="text-align: justify;">9. As far as second part of Section 72 of the ESI Act is concerned, it provides that no employer shall directly or indirectly reduce or discontinue, except as provided by the regulations, any benefits payable to the employee under the condition of his service which are similar to the benefits conferred by the ESI Act. To attract the rigor of these provisions, two conditions must be fulfilled. Firstly that the benefits payable to the employee must be under the condition of his service, and secondly those benefits must be similar to the benefits conferred by the ESI Act. In my opinion, in the instant case, both the conditions have not been fulfilled. The benefits of Rs. 50/- as medical reimbursement under Clause (3) of the Service Rules was payable only to those employees/workmen who were not covered by the ESI Act/ESI Scheme. As per the said Clause, the benefit of Rs. 50/- per month as medical reimbursement will automatically cease to operate on coming into force of the ESI Act. When the Service Rules itself provide for reimbursement of this amount only to those employees who are not covered by the ESI Scheme, then it cannot be said that the petitioners were entitled to the said benefit under the conditions of their service. If the Service Rules of the employee itself prohibits him from receiving the said benefit on his becoming member of the ESI Scheme, it cannot be said that he can continue with the same benefit even after becoming member of the ESI Scheme. Secondly, the benefit granted under Clause (3) was of medical reimbursement to the extent of Rs. 50/- per month. No such benefit is being granted under the ESI Scheme/ESI Act. Therefore, it cannot be said that the benefit granted by the employer under Clause (3) of the Service Rules is similar to the benefit granted under the ESI Scheme/ESI Act.</p><p style="text-align: justify;">10. In Bareilly Holdings Ltd's case (supra), the question for consideration was whether the action of the employer in deducting of half wages corresponding to the sickness benefit to which the workmen were entitled under the ESI Act in the event of the workmen not availing the services of the ESI, was legal and justified? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal. In the said award, the workmen were entitled to 15 days sick leave on full wages as a condition of their service. With the enforcement of the ESI Act, the workmen also became entitled to sickness benefits under the ESI Scheme. When the employer deducted half wages to the extent of a half-day's wages in respect of employees availing of sick leave, the said action was challenged. The Industrial Tribunal set aside the said deduction made by the employer. While upholding the decision of the Industrial Tribunal, it has been observed that Section 72 of the ESI Act provides in terms that the mere circumstance that an employer is liable to make a contribution under the ESI Act will not entitle him, directly or indirectly, to reduce the wages of an employee or, insofar as the Regulation permits, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the ESI Act. The purpose of the provision of the ESI Act is evidently to discourage employers from using the benefits provided under the Act as an excuse or justification for reducing or discontinuing the benefits available to the workmen under their conditions of service on the ground of similarity between the two types of benefits. In that case the dispute was pertaining to the discontinuation of the benefit of sick leave which was a condition of the services of workmen. But in the instant case the benefit of medical reimbursement of Rs. 50/- per month was not a condition of service of the workmen. Therefore, the ratio in that case is not applicable to the facts of the instant case.</p><p style="text-align: justify;">11. In Calcutta Electric Supply Corporation Ltd's case (supra), the question was whether the employer was entitled to withdraw the medical benefits which were already given by it to the employees prior to the coming into force of the ESI Act? In that case the employees were entitled for hospitalization in a private nursing home in case of illness and reimbursement of the medical expenses incurred for such hospitalization. When the management wanted to withdraw the said benefit after coming into force of the ESI Act, the workers went to the Industrial Tribunal where the withdrawal of the said benefit was held to be illegal in view of Section 72 of the ESI Act. Again in the said judgment the decision of the Industrial Tribunal was upheld while observing that 'the benefits which have become a part of the service conditions are not intended to be affected by the provisions of the ESI Act and its scheme except to the extent permitted by Regulation 97 and on the conditions mentioned therein'. Similarly, in Workmen of Rohtas Industries Ltd's case (supra), the management had established an hospital and was providing medical facilities to the workmen as a part of their service conditions. Subsequently, when more than 83% workers came under the ESI Scheme, the management decided to terminate the services of certain doctors and nurses. In those facts, it was held that the management was providing customary benefits to its employees which amounts to conditions of their service and, therefore, with the introduction of the ESI Scheme the said benefit could not have been withdrawn in view of Section 72 of the ESI Act. The facts of the said care are different to the facts of the instant case where the benefit of Rs. 50/- per month as medical reimbursement prior to the coming into force of the ESI Act/ESI Scheme cannot be said to be the part of the service conditions of the petitioners. Further the benefit of Rs. 50/- per month as medical reimbursement cannot be held to be as customary benefit to its employees amounting to condition of their service. Once it is found that the medical facilities provided to the workmen are not part of their service conditions, then they have no right to object to the curtailment 6f the said benefit by -the employer by invoking the provisions of Section 72 of the ESI Act.</p><p style="text-align: justify;">12. In Seshasayee Paper Mills' case (supra), prior to the coming into force of the ESI Scheme, the employees were getting medical allowance before the enforcement of the ESI Act/Scheme. The said medical allowance was a part of their salary. Each workman was extended a sum of Rs. 200/- to Rs. 400/- depending upon their basic salary. In that case, it was held that such medical allowance has become a part of the workmen salary and the same was paid to them as a condition of their service. Therefore, in view of Section 72 of the ESI Act, the said benefit, which was a part of the workmen wages/salary, could not have been reduced or withdrawn on coming into force of the ESI Act. The facts of the said case are also different. Therefore, the ratio laid down in that judgment is not applicable in the instant case.</p><p style="text-align: justify;">13. Thus, in my opinion, the provisions of Section 72 of the ESI Act will be attracted only if two conditions are fulfilled. Firstly that the benefit payable to the employees prior to the coming into force of the ESI Act must be under the condition of their service; and secondly that the said benefit must be similar to the benefit conferred by the ESI Act. There is no provision in the ESI Act which permits tampering of the service conditions on account of the operation of the Act. Unless that Act or any other law permits the employer to effect a change in the service conditions of the employees, any change effected has to be held as illegal. As far as Section 61 is concerned, it debars a person entitled to any of the benefits provided by the ESI Act from being entitled to receive any similar benefits admissible under any other enactment, but does not debar him to receive similar benefits, to which the workman may be entitled under his service conditions. In the instant case, the fixed medical reimbursement of Rs. 50/- per month was only to be paid to the employees and workers who were not governed by the ESI Act/Scheme. Since on coming into force of the ESI Act, the petitioners were governed by the provisions of the ESI Act, they were not entitled to the benefit of medical reimbursement of Rs. 50/- per month under the conditions of their service. Therefore, the restriction imposed by Section 72 of the ESI Act is not attracted in the instant case. The intention behind the enactment of Section 72 was that with the implementation of the ESI Act an employee should not be deprived of a benefit which he was getting from his employer under the conditions of his service. For instance if an employee by virtue of the conditions of his service was entitled to treatment in a private hospital then the said benefit could not be denied to him on the ground that under the ESI Act only the treatment, in a government hospital is allowed. This is what the legislature was intended so as to estop an employer from denying similar benefit granted under the Act. But in the present case the benefit granted by the employer was not similar as in the instant case under the ESI Act there was no provision for providing fixed medical reimbursement.</p><p style="text-align: justify;">14. In view of the above, in my opinion, the petitioners are legally not entitled to the medical reimbursement of Rs. 50/- per month after coming into force of the ESI Act under Regulation 3 of the Service Rules being condition of their service. Therefore, no such direction as prayed by the petitioners, can be issued to respondent No. 2. Hence, all the five petitions are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Dharam Paul Aggarwal and ors.',
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		'casename' => 'Dharam Paul Aggarwal and ors. Vs. the State of Punjab and ors.',
		'casenote' => 'Service - Medical Reimbursement - Section 1(5) of Employees State Insurance Act, 1948 - Petitioners are government employees - Respondent-state government issued notice under Section 1(5) of Act that provisions of Act to be made applicable to government factories - Notice mentioned that government employees will not entitled to get medical imbursement anymore - Petitioners moved application for exemption from operation of Act - Respondent rejected application on basis of law - Hence, present Petition for providing medical reimbursement - Held, no provision for providing fixed medical reimbursement - Petitioners are not legally entitled to medical reimbursement after coming into force of Act - Respondent adopted policy after taking into account all facts and situations - Petitions dismissed -  -  251. 4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal.',
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		'casesref' => ' and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd.;',
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		'court' => 'Punjab and Haryana',
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		'decidedon' => '2009-04-24',
		'deposition' => 'Petition dismissed',
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		'judge' => ' Satish Kumar Mittal, J.',
		'judgement' => '<p style="text-align: justify;">Satish Kumar Mittal, J.</p><p style="text-align: justify;">1. This order shall dispose of CWP Nos. 6111, 5239, 5552, 6159 and 650 of 1986. In these petitions, the petitioners are employees/workers of the Punjab State Co-operative Milk Producers' Federation (hereinafter referred to as 'the MILKFED'). The Punjab Government vide Notification issued under Section 1(5) of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') made applicable the provisions of the said Act to the Government factories including the MILKFED. The petitioners, who were receiving wages between Rs. 1,000/- to Rs. 1,600/- per month came within the purview of the said Act w.e.f. 27.1.1985. Undisputedly, prior to 27.1.1985 the petitioners were receiving an amount of Rs.SO/- per month towards medical reimbursement under Clause (3) of the Services Rules, which is reproduced as under:</p><p style="text-align: justify;">Clause 3:- Medical Reimbursement.- The fixed medical allowance of Rs. 15/- [later on enhanced to Rs. 50/-] will only be paid to Employees/workmen who were not covered by the ESI Act/Scheme.</p><p style="text-align: justify;">2. When the provisions of the ESI Act were extended to the MILKFED, the petitioners Employees' Union moved an application for exemption from the operation of the ESI Act to the appropriate Government. Vide order dated 13.8.1986 (Annexure P3) the State Government rejected the said prayer while observing that the benefits provided by the employer are much inferior as compared to the benefits provided to the workman in ESI Act. In these petitions, the petitioners have challenged the said order. A prayer has also been made to issue direction to the MILKFED to pay medical allowance of Rs. 50/-per month to the petitioners irrespective of the fact whether the ESI Scheme prepared under the ESI Act has been made applicable on them or not.</p><p style="text-align: justify;">3. During the course of hearing, counsel for the petitioners stated that the petitioners do not want to press the prayer of quashing the order dated 13.8.1986 (Annexure P3). However, he submitted that in view of Section 72 of the ESI Act the respondent-MILK-FED cannot discontinue the medical reimbursement of Rs. 50/- which was available to the petitioners under the conditions of their service. He submitted that the benefits provided by the employer prior to the enforcement of ESI Act can be discontinued or reduced only if so provided under Section 97(1) of the ESI Act. According to the learned Counsel, the benefits provided under the ESI Act are supplementary to the medical benefits received by the petitioners under the service conditions and the same cannot be discontinued on coming into force of the ESI Act. In support of his contention, learned Counsel for the petitioners relied upon the decisions of the Supreme Court in Bareilly Holdings Ltd. v. Their Workmen : (1979)3 S.C.C. 257, Calcutta Electric Supply Corporation Ltd v. Calcutta Electric Supply Workers' Union and Ors. : (1994)6 S.C.C. 548, Workmen of Rohtas Industries Ltd v. K. Choudhri and Ors. : A.I.R. 1965 Patna 127 and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd. 1998 L.L.R. 251.</p><p style="text-align: justify;">4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- would only be paid to the employees/workmen who were not covered by the ESI Act/ESI Scheme. Therefore, those employees, who are covered under the ESI Scheme, would not be entitled to the said allowance which in itself was a condition of their service. Learned Counsel further argued that Section 72 of the Act does not apply in the facts and circumstances of the instant case as the benefits of medical reimbursement earlier provided under Clause (3) of the Service Rules are not similar to the benefits conferred by the ESI Act. He further submitted that only those benefits could not be discontinued or reduced which were payable to the employees/workmen under the condition of their service and are similar to the benefits conferred by the ESI Act. He submitted that since the Service Rules itself provide that the medical reimbursement of Rs. 50/- per month will be paid to only those workmen who were not covered by the Act/ESI Scheme, therefore, the petitioners, who were getting the said benefit under the said Rule will not be entitled for the said benefit on their becoming members of the ESI Scheme. He further submitted that in view of Section 61 of the ESI Act, the petitioners are also not entitled to the medical reimbursement of Rs. 50/- per month as the said Section provides that when a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.</p><p style="text-align: justify;">5. I have heard the learned Counsel for the parties in detail.</p><p style="text-align: justify;">6. The only question to be determined in these petitions is whether the medical benefits i.e. medical reimbursement of an amount of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners?</p><p style="text-align: justify;">Section 72 of the ESI Act is reproduced as under:</p><p style="text-align: justify;">Employer not to reduce wages, etc.- No employer by reason only of his liability for any contributions payable under this Act shall, directly or indirectly reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act.</p><p style="text-align: justify;">7. A bare reading of the aforesaid provisions shows that merely because an employer is liable to make any contribution under the ESI Act will not entitle him directly or indirectly to reduce the wages of any employee or insofar as the regulations permit, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the Act. The general purpose of Section 72 of the Act is to deny to the employers the right or power to reduce or discontinue the benefits payable to the workmen under their conditions of service on the ground that the benefits available under the conditions of service and under the ESI Act/ESI Scheme being similar the workmen would not be entitled to a double benefit. Section 72 of the ESI Act contains two parts. The first part provides that no employer by reason of his liability for his contribution payable under the ESI Act shall, directly or indirectly reduce the wages of any employee, and the second part provides that no such employer shall, except as provided by the regulations, discontinue or reduce the benefits payable to him under the conditions of his service which are similar to the benefits conferred by the ESI Act. In my view, the facts of the instant case do not fall under first part of the Section as the medical reimbursement does not cover by the definition of wages. Section 2(22) of the ESI Act defines 'wages', which is reproduced as under:</p><p style="text-align: justify;">'wages' means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include-</p><p style="text-align: justify;">(a) any contribution paid by the employer to any pension fund or provided fund, or under this Act;</p><p style="text-align: justify;">(b) any traveling allowance or the value of any traveling concession;</p><p style="text-align: justify;">(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or</p><p style="text-align: justify;">(d) any gratuity payable on discharge.</p><p style="text-align: justify;">8. Clause (c) of the aforesaid sub-section specifically excludes any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment It also includes the Medical reimbursement.</p><p style="text-align: justify;">9. As far as second part of Section 72 of the ESI Act is concerned, it provides that no employer shall directly or indirectly reduce or discontinue, except as provided by the regulations, any benefits payable to the employee under the condition of his service which are similar to the benefits conferred by the ESI Act. To attract the rigor of these provisions, two conditions must be fulfilled. Firstly that the benefits payable to the employee must be under the condition of his service, and secondly those benefits must be similar to the benefits conferred by the ESI Act. In my opinion, in the instant case, both the conditions have not been fulfilled. The benefits of Rs. 50/- as medical reimbursement under Clause (3) of the Service Rules was payable only to those employees/workmen who were not covered by the ESI Act/ESI Scheme. As per the said Clause, the benefit of Rs. 50/- per month as medical reimbursement will automatically cease to operate on coming into force of the ESI Act. When the Service Rules itself provide for reimbursement of this amount only to those employees who are not covered by the ESI Scheme, then it cannot be said that the petitioners were entitled to the said benefit under the conditions of their service. If the Service Rules of the employee itself prohibits him from receiving the said benefit on his becoming member of the ESI Scheme, it cannot be said that he can continue with the same benefit even after becoming member of the ESI Scheme. Secondly, the benefit granted under Clause (3) was of medical reimbursement to the extent of Rs. 50/- per month. No such benefit is being granted under the ESI Scheme/ESI Act. Therefore, it cannot be said that the benefit granted by the employer under Clause (3) of the Service Rules is similar to the benefit granted under the ESI Scheme/ESI Act.</p><p style="text-align: justify;">10. In Bareilly Holdings Ltd's case (supra), the question for consideration was whether the action of the employer in deducting of half wages corresponding to the sickness benefit to which the workmen were entitled under the ESI Act in the event of the workmen not availing the services of the ESI, was legal and justified? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal. In the said award, the workmen were entitled to 15 days sick leave on full wages as a condition of their service. With the enforcement of the ESI Act, the workmen also became entitled to sickness benefits under the ESI Scheme. When the employer deducted half wages to the extent of a half-day's wages in respect of employees availing of sick leave, the said action was challenged. The Industrial Tribunal set aside the said deduction made by the employer. While upholding the decision of the Industrial Tribunal, it has been observed that Section 72 of the ESI Act provides in terms that the mere circumstance that an employer is liable to make a contribution under the ESI Act will not entitle him, directly or indirectly, to reduce the wages of an employee or, insofar as the Regulation permits, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the ESI Act. The purpose of the provision of the ESI Act is evidently to discourage employers from using the benefits provided under the Act as an excuse or justification for reducing or discontinuing the benefits available to the workmen under their conditions of service on the ground of similarity between the two types of benefits. In that case the dispute was pertaining to the discontinuation of the benefit of sick leave which was a condition of the services of workmen. But in the instant case the benefit of medical reimbursement of Rs. 50/- per month was not a condition of service of the workmen. Therefore, the ratio in that case is not applicable to the facts of the instant case.</p><p style="text-align: justify;">11. In Calcutta Electric Supply Corporation Ltd's case (supra), the question was whether the employer was entitled to withdraw the medical benefits which were already given by it to the employees prior to the coming into force of the ESI Act? In that case the employees were entitled for hospitalization in a private nursing home in case of illness and reimbursement of the medical expenses incurred for such hospitalization. When the management wanted to withdraw the said benefit after coming into force of the ESI Act, the workers went to the Industrial Tribunal where the withdrawal of the said benefit was held to be illegal in view of Section 72 of the ESI Act. Again in the said judgment the decision of the Industrial Tribunal was upheld while observing that 'the benefits which have become a part of the service conditions are not intended to be affected by the provisions of the ESI Act and its scheme except to the extent permitted by Regulation 97 and on the conditions mentioned therein'. Similarly, in Workmen of Rohtas Industries Ltd's case (supra), the management had established an hospital and was providing medical facilities to the workmen as a part of their service conditions. Subsequently, when more than 83% workers came under the ESI Scheme, the management decided to terminate the services of certain doctors and nurses. In those facts, it was held that the management was providing customary benefits to its employees which amounts to conditions of their service and, therefore, with the introduction of the ESI Scheme the said benefit could not have been withdrawn in view of Section 72 of the ESI Act. The facts of the said care are different to the facts of the instant case where the benefit of Rs. 50/- per month as medical reimbursement prior to the coming into force of the ESI Act/ESI Scheme cannot be said to be the part of the service conditions of the petitioners. Further the benefit of Rs. 50/- per month as medical reimbursement cannot be held to be as customary benefit to its employees amounting to condition of their service. Once it is found that the medical facilities provided to the workmen are not part of their service conditions, then they have no right to object to the curtailment 6f the said benefit by -the employer by invoking the provisions of Section 72 of the ESI Act.</p><p style="text-align: justify;">12. In Seshasayee Paper Mills' case (supra), prior to the coming into force of the ESI Scheme, the employees were getting medical allowance before the enforcement of the ESI Act/Scheme. The said medical allowance was a part of their salary. Each workman was extended a sum of Rs. 200/- to Rs. 400/- depending upon their basic salary. In that case, it was held that such medical allowance has become a part of the workmen salary and the same was paid to them as a condition of their service. Therefore, in view of Section 72 of the ESI Act, the said benefit, which was a part of the workmen wages/salary, could not have been reduced or withdrawn on coming into force of the ESI Act. The facts of the said case are also different. Therefore, the ratio laid down in that judgment is not applicable in the instant case.</p><p style="text-align: justify;">13. Thus, in my opinion, the provisions of Section 72 of the ESI Act will be attracted only if two conditions are fulfilled. Firstly that the benefit payable to the employees prior to the coming into force of the ESI Act must be under the condition of their service; and secondly that the said benefit must be similar to the benefit conferred by the ESI Act. There is no provision in the ESI Act which permits tampering of the service conditions on account of the operation of the Act. Unless that Act or any other law permits the employer to effect a change in the service conditions of the employees, any change effected has to be held as illegal. As far as Section 61 is concerned, it debars a person entitled to any of the benefits provided by the ESI Act from being entitled to receive any similar benefits admissible under any other enactment, but does not debar him to receive similar benefits, to which the workman may be entitled under his service conditions. In the instant case, the fixed medical reimbursement of Rs. 50/- per month was only to be paid to the employees and workers who were not governed by the ESI Act/Scheme. Since on coming into force of the ESI Act, the petitioners were governed by the provisions of the ESI Act, they were not entitled to the benefit of medical reimbursement of Rs. 50/- per month under the conditions of their service. Therefore, the restriction imposed by Section 72 of the ESI Act is not attracted in the instant case. The intention behind the enactment of Section 72 was that with the implementation of the ESI Act an employee should not be deprived of a benefit which he was getting from his employer under the conditions of his service. For instance if an employee by virtue of the conditions of his service was entitled to treatment in a private hospital then the said benefit could not be denied to him on the ground that under the ESI Act only the treatment, in a government hospital is allowed. This is what the legislature was intended so as to estop an employer from denying similar benefit granted under the Act. But in the present case the benefit granted by the employer was not similar as in the instant case under the ESI Act there was no provision for providing fixed medical reimbursement.</p><p style="text-align: justify;">14. In view of the above, in my opinion, the petitioners are legally not entitled to the medical reimbursement of Rs. 50/- per month after coming into force of the ESI Act under Regulation 3 of the Service Rules being condition of their service. Therefore, no such direction as prayed by the petitioners, can be issued to respondent No. 2. Hence, all the five petitions are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'id' => '631222',
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			'appellant' => 'Dharam Paul Aggarwal and ors.',
			'authreffered' => '',
			'casename' => 'Dharam Paul Aggarwal and ors. Vs. the State of Punjab and ors.',
			'casenote' => 'Service - Medical Reimbursement - Section 1(5) of Employees State Insurance Act, 1948 - Petitioners are government employees - Respondent-state government issued notice under Section 1(5) of Act that provisions of Act to be made applicable to government factories - Notice mentioned that government employees will not entitled to get medical imbursement anymore - Petitioners moved application for exemption from operation of Act - Respondent rejected application on basis of law - Hence, present Petition for providing medical reimbursement - Held, no provision for providing fixed medical reimbursement - Petitioners are not legally entitled to medical reimbursement after coming into force of Act - Respondent adopted policy after taking into account all facts and situations - Petitions dismissed -  -  251. 4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal.',
			'caseanalysis' => null,
			'casesref' => ' and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd.;',
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			'court' => 'Punjab and Haryana',
			'court_type' => 'HC',
			'decidedon' => '2009-04-24',
			'deposition' => 'Petition dismissed',
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			'judge' => ' Satish Kumar Mittal, J.',
			'judgement' => '<p style="text-align: justify;">Satish Kumar Mittal, J.</p><p style="text-align: justify;">1. This order shall dispose of CWP Nos. 6111, 5239, 5552, 6159 and 650 of 1986. In these petitions, the petitioners are employees/workers of the Punjab State Co-operative Milk Producers' Federation (hereinafter referred to as 'the MILKFED'). The Punjab Government vide Notification issued under Section 1(5) of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') made applicable the provisions of the said Act to the Government factories including the MILKFED. The petitioners, who were receiving wages between Rs. 1,000/- to Rs. 1,600/- per month came within the purview of the said Act w.e.f. 27.1.1985. Undisputedly, prior to 27.1.1985 the petitioners were receiving an amount of Rs.SO/- per month towards medical reimbursement under Clause (3) of the Services Rules, which is reproduced as under:</p><p style="text-align: justify;">Clause 3:- Medical Reimbursement.- The fixed medical allowance of Rs. 15/- [later on enhanced to Rs. 50/-] will only be paid to Employees/workmen who were not covered by the ESI Act/Scheme.</p><p style="text-align: justify;">2. When the provisions of the ESI Act were extended to the MILKFED, the petitioners Employees' Union moved an application for exemption from the operation of the ESI Act to the appropriate Government. Vide order dated 13.8.1986 (Annexure P3) the State Government rejected the said prayer while observing that the benefits provided by the employer are much inferior as compared to the benefits provided to the workman in ESI Act. In these petitions, the petitioners have challenged the said order. A prayer has also been made to issue direction to the MILKFED to pay medical allowance of Rs. 50/-per month to the petitioners irrespective of the fact whether the ESI Scheme prepared under the ESI Act has been made applicable on them or not.</p><p style="text-align: justify;">3. During the course of hearing, counsel for the petitioners stated that the petitioners do not want to press the prayer of quashing the order dated 13.8.1986 (Annexure P3). However, he submitted that in view of Section 72 of the ESI Act the respondent-MILK-FED cannot discontinue the medical reimbursement of Rs. 50/- which was available to the petitioners under the conditions of their service. He submitted that the benefits provided by the employer prior to the enforcement of ESI Act can be discontinued or reduced only if so provided under Section 97(1) of the ESI Act. According to the learned Counsel, the benefits provided under the ESI Act are supplementary to the medical benefits received by the petitioners under the service conditions and the same cannot be discontinued on coming into force of the ESI Act. In support of his contention, learned Counsel for the petitioners relied upon the decisions of the Supreme Court in Bareilly Holdings Ltd. v. Their Workmen : (1979)3 S.C.C. 257, Calcutta Electric Supply Corporation Ltd v. Calcutta Electric Supply Workers' Union and Ors. : (1994)6 S.C.C. 548, Workmen of Rohtas Industries Ltd v. K. Choudhri and Ors. : A.I.R. 1965 Patna 127 and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd. 1998 L.L.R. 251.</p><p style="text-align: justify;">4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- would only be paid to the employees/workmen who were not covered by the ESI Act/ESI Scheme. Therefore, those employees, who are covered under the ESI Scheme, would not be entitled to the said allowance which in itself was a condition of their service. Learned Counsel further argued that Section 72 of the Act does not apply in the facts and circumstances of the instant case as the benefits of medical reimbursement earlier provided under Clause (3) of the Service Rules are not similar to the benefits conferred by the ESI Act. He further submitted that only those benefits could not be discontinued or reduced which were payable to the employees/workmen under the condition of their service and are similar to the benefits conferred by the ESI Act. He submitted that since the Service Rules itself provide that the medical reimbursement of Rs. 50/- per month will be paid to only those workmen who were not covered by the Act/ESI Scheme, therefore, the petitioners, who were getting the said benefit under the said Rule will not be entitled for the said benefit on their becoming members of the ESI Scheme. He further submitted that in view of Section 61 of the ESI Act, the petitioners are also not entitled to the medical reimbursement of Rs. 50/- per month as the said Section provides that when a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.</p><p style="text-align: justify;">5. I have heard the learned Counsel for the parties in detail.</p><p style="text-align: justify;">6. The only question to be determined in these petitions is whether the medical benefits i.e. medical reimbursement of an amount of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners?</p><p style="text-align: justify;">Section 72 of the ESI Act is reproduced as under:</p><p style="text-align: justify;">Employer not to reduce wages, etc.- No employer by reason only of his liability for any contributions payable under this Act shall, directly or indirectly reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act.</p><p style="text-align: justify;">7. A bare reading of the aforesaid provisions shows that merely because an employer is liable to make any contribution under the ESI Act will not entitle him directly or indirectly to reduce the wages of any employee or insofar as the regulations permit, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the Act. The general purpose of Section 72 of the Act is to deny to the employers the right or power to reduce or discontinue the benefits payable to the workmen under their conditions of service on the ground that the benefits available under the conditions of service and under the ESI Act/ESI Scheme being similar the workmen would not be entitled to a double benefit. Section 72 of the ESI Act contains two parts. The first part provides that no employer by reason of his liability for his contribution payable under the ESI Act shall, directly or indirectly reduce the wages of any employee, and the second part provides that no such employer shall, except as provided by the regulations, discontinue or reduce the benefits payable to him under the conditions of his service which are similar to the benefits conferred by the ESI Act. In my view, the facts of the instant case do not fall under first part of the Section as the medical reimbursement does not cover by the definition of wages. Section 2(22) of the ESI Act defines 'wages', which is reproduced as under:</p><p style="text-align: justify;">'wages' means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include-</p><p style="text-align: justify;">(a) any contribution paid by the employer to any pension fund or provided fund, or under this Act;</p><p style="text-align: justify;">(b) any traveling allowance or the value of any traveling concession;</p><p style="text-align: justify;">(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or</p><p style="text-align: justify;">(d) any gratuity payable on discharge.</p><p style="text-align: justify;">8. Clause (c) of the aforesaid sub-section specifically excludes any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment It also includes the Medical reimbursement.</p><p style="text-align: justify;">9. As far as second part of Section 72 of the ESI Act is concerned, it provides that no employer shall directly or indirectly reduce or discontinue, except as provided by the regulations, any benefits payable to the employee under the condition of his service which are similar to the benefits conferred by the ESI Act. To attract the rigor of these provisions, two conditions must be fulfilled. Firstly that the benefits payable to the employee must be under the condition of his service, and secondly those benefits must be similar to the benefits conferred by the ESI Act. In my opinion, in the instant case, both the conditions have not been fulfilled. The benefits of Rs. 50/- as medical reimbursement under Clause (3) of the Service Rules was payable only to those employees/workmen who were not covered by the ESI Act/ESI Scheme. As per the said Clause, the benefit of Rs. 50/- per month as medical reimbursement will automatically cease to operate on coming into force of the ESI Act. When the Service Rules itself provide for reimbursement of this amount only to those employees who are not covered by the ESI Scheme, then it cannot be said that the petitioners were entitled to the said benefit under the conditions of their service. If the Service Rules of the employee itself prohibits him from receiving the said benefit on his becoming member of the ESI Scheme, it cannot be said that he can continue with the same benefit even after becoming member of the ESI Scheme. Secondly, the benefit granted under Clause (3) was of medical reimbursement to the extent of Rs. 50/- per month. No such benefit is being granted under the ESI Scheme/ESI Act. Therefore, it cannot be said that the benefit granted by the employer under Clause (3) of the Service Rules is similar to the benefit granted under the ESI Scheme/ESI Act.</p><p style="text-align: justify;">10. In Bareilly Holdings Ltd's case (supra), the question for consideration was whether the action of the employer in deducting of half wages corresponding to the sickness benefit to which the workmen were entitled under the ESI Act in the event of the workmen not availing the services of the ESI, was legal and justified? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal. In the said award, the workmen were entitled to 15 days sick leave on full wages as a condition of their service. With the enforcement of the ESI Act, the workmen also became entitled to sickness benefits under the ESI Scheme. When the employer deducted half wages to the extent of a half-day's wages in respect of employees availing of sick leave, the said action was challenged. The Industrial Tribunal set aside the said deduction made by the employer. While upholding the decision of the Industrial Tribunal, it has been observed that Section 72 of the ESI Act provides in terms that the mere circumstance that an employer is liable to make a contribution under the ESI Act will not entitle him, directly or indirectly, to reduce the wages of an employee or, insofar as the Regulation permits, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the ESI Act. The purpose of the provision of the ESI Act is evidently to discourage employers from using the benefits provided under the Act as an excuse or justification for reducing or discontinuing the benefits available to the workmen under their conditions of service on the ground of similarity between the two types of benefits. In that case the dispute was pertaining to the discontinuation of the benefit of sick leave which was a condition of the services of workmen. But in the instant case the benefit of medical reimbursement of Rs. 50/- per month was not a condition of service of the workmen. Therefore, the ratio in that case is not applicable to the facts of the instant case.</p><p style="text-align: justify;">11. In Calcutta Electric Supply Corporation Ltd's case (supra), the question was whether the employer was entitled to withdraw the medical benefits which were already given by it to the employees prior to the coming into force of the ESI Act? In that case the employees were entitled for hospitalization in a private nursing home in case of illness and reimbursement of the medical expenses incurred for such hospitalization. When the management wanted to withdraw the said benefit after coming into force of the ESI Act, the workers went to the Industrial Tribunal where the withdrawal of the said benefit was held to be illegal in view of Section 72 of the ESI Act. Again in the said judgment the decision of the Industrial Tribunal was upheld while observing that 'the benefits which have become a part of the service conditions are not intended to be affected by the provisions of the ESI Act and its scheme except to the extent permitted by Regulation 97 and on the conditions mentioned therein'. Similarly, in Workmen of Rohtas Industries Ltd's case (supra), the management had established an hospital and was providing medical facilities to the workmen as a part of their service conditions. Subsequently, when more than 83% workers came under the ESI Scheme, the management decided to terminate the services of certain doctors and nurses. In those facts, it was held that the management was providing customary benefits to its employees which amounts to conditions of their service and, therefore, with the introduction of the ESI Scheme the said benefit could not have been withdrawn in view of Section 72 of the ESI Act. The facts of the said care are different to the facts of the instant case where the benefit of Rs. 50/- per month as medical reimbursement prior to the coming into force of the ESI Act/ESI Scheme cannot be said to be the part of the service conditions of the petitioners. Further the benefit of Rs. 50/- per month as medical reimbursement cannot be held to be as customary benefit to its employees amounting to condition of their service. Once it is found that the medical facilities provided to the workmen are not part of their service conditions, then they have no right to object to the curtailment 6f the said benefit by -the employer by invoking the provisions of Section 72 of the ESI Act.</p><p style="text-align: justify;">12. In Seshasayee Paper Mills' case (supra), prior to the coming into force of the ESI Scheme, the employees were getting medical allowance before the enforcement of the ESI Act/Scheme. The said medical allowance was a part of their salary. Each workman was extended a sum of Rs. 200/- to Rs. 400/- depending upon their basic salary. In that case, it was held that such medical allowance has become a part of the workmen salary and the same was paid to them as a condition of their service. Therefore, in view of Section 72 of the ESI Act, the said benefit, which was a part of the workmen wages/salary, could not have been reduced or withdrawn on coming into force of the ESI Act. The facts of the said case are also different. Therefore, the ratio laid down in that judgment is not applicable in the instant case.</p><p style="text-align: justify;">13. Thus, in my opinion, the provisions of Section 72 of the ESI Act will be attracted only if two conditions are fulfilled. Firstly that the benefit payable to the employees prior to the coming into force of the ESI Act must be under the condition of their service; and secondly that the said benefit must be similar to the benefit conferred by the ESI Act. There is no provision in the ESI Act which permits tampering of the service conditions on account of the operation of the Act. Unless that Act or any other law permits the employer to effect a change in the service conditions of the employees, any change effected has to be held as illegal. As far as Section 61 is concerned, it debars a person entitled to any of the benefits provided by the ESI Act from being entitled to receive any similar benefits admissible under any other enactment, but does not debar him to receive similar benefits, to which the workman may be entitled under his service conditions. In the instant case, the fixed medical reimbursement of Rs. 50/- per month was only to be paid to the employees and workers who were not governed by the ESI Act/Scheme. Since on coming into force of the ESI Act, the petitioners were governed by the provisions of the ESI Act, they were not entitled to the benefit of medical reimbursement of Rs. 50/- per month under the conditions of their service. Therefore, the restriction imposed by Section 72 of the ESI Act is not attracted in the instant case. The intention behind the enactment of Section 72 was that with the implementation of the ESI Act an employee should not be deprived of a benefit which he was getting from his employer under the conditions of his service. For instance if an employee by virtue of the conditions of his service was entitled to treatment in a private hospital then the said benefit could not be denied to him on the ground that under the ESI Act only the treatment, in a government hospital is allowed. This is what the legislature was intended so as to estop an employer from denying similar benefit granted under the Act. But in the present case the benefit granted by the employer was not similar as in the instant case under the ESI Act there was no provision for providing fixed medical reimbursement.</p><p style="text-align: justify;">14. In view of the above, in my opinion, the petitioners are legally not entitled to the medical reimbursement of Rs. 50/- per month after coming into force of the ESI Act under Regulation 3 of the Service Rules being condition of their service. Therefore, no such direction as prayed by the petitioners, can be issued to respondent No. 2. Hence, all the five petitions are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(2009)156PLR231',
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		'id' => '631222',
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		'appealno' => '',
		'appellant' => 'Dharam Paul Aggarwal and ors.',
		'authreffered' => '',
		'casename' => 'Dharam Paul Aggarwal and ors. Vs. the State of Punjab and ors.',
		'casenote' => 'Service - Medical Reimbursement - Section 1(5) of Employees State Insurance Act, 1948 - Petitioners are government employees - Respondent-state government issued notice under Section 1(5) of Act that provisions of Act to be made applicable to government factories - Notice mentioned that government employees will not entitled to get medical imbursement anymore - Petitioners moved application for exemption from operation of Act - Respondent rejected application on basis of law - Hence, present Petition for providing medical reimbursement - Held, no provision for providing fixed medical reimbursement - Petitioners are not legally entitled to medical reimbursement after coming into force of Act - Respondent adopted policy after taking into account all facts and situations - Petitions dismissed -  -  251. 4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal.',
		'caseanalysis' => null,
		'casesref' => ' and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd.;',
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		'court' => 'Punjab and Haryana',
		'court_type' => 'HC',
		'decidedon' => '2009-04-24',
		'deposition' => 'Petition dismissed',
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		'judge' => ' Satish Kumar Mittal, J.',
		'judgement' => '<p style="text-align: justify;">Satish Kumar Mittal, J.</p><p style="text-align: justify;">1. This order shall dispose of CWP Nos. 6111, 5239, 5552, 6159 and 650 of 1986. In these petitions, the petitioners are employees/workers of the Punjab State Co-operative Milk Producers' Federation (hereinafter referred to as 'the MILKFED'). The Punjab Government vide Notification issued under Section 1(5) of the Employees' State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act') made applicable the provisions of the said Act to the Government factories including the MILKFED. The petitioners, who were receiving wages between Rs. 1,000/- to Rs. 1,600/- per month came within the purview of the said Act w.e.f. 27.1.1985. Undisputedly, prior to 27.1.1985 the petitioners were receiving an amount of Rs.SO/- per month towards medical reimbursement under Clause (3) of the Services Rules, which is reproduced as under:</p><p style="text-align: justify;">Clause 3:- Medical Reimbursement.- The fixed medical allowance of Rs. 15/- [later on enhanced to Rs. 50/-] will only be paid to Employees/workmen who were not covered by the ESI Act/Scheme.</p><p style="text-align: justify;">2. When the provisions of the ESI Act were extended to the MILKFED, the petitioners Employees' Union moved an application for exemption from the operation of the ESI Act to the appropriate Government. Vide order dated 13.8.1986 (Annexure P3) the State Government rejected the said prayer while observing that the benefits provided by the employer are much inferior as compared to the benefits provided to the workman in ESI Act. In these petitions, the petitioners have challenged the said order. A prayer has also been made to issue direction to the MILKFED to pay medical allowance of Rs. 50/-per month to the petitioners irrespective of the fact whether the ESI Scheme prepared under the ESI Act has been made applicable on them or not.</p><p style="text-align: justify;">3. During the course of hearing, counsel for the petitioners stated that the petitioners do not want to press the prayer of quashing the order dated 13.8.1986 (Annexure P3). However, he submitted that in view of Section 72 of the ESI Act the respondent-MILK-FED cannot discontinue the medical reimbursement of Rs. 50/- which was available to the petitioners under the conditions of their service. He submitted that the benefits provided by the employer prior to the enforcement of ESI Act can be discontinued or reduced only if so provided under Section 97(1) of the ESI Act. According to the learned Counsel, the benefits provided under the ESI Act are supplementary to the medical benefits received by the petitioners under the service conditions and the same cannot be discontinued on coming into force of the ESI Act. In support of his contention, learned Counsel for the petitioners relied upon the decisions of the Supreme Court in Bareilly Holdings Ltd. v. Their Workmen : (1979)3 S.C.C. 257, Calcutta Electric Supply Corporation Ltd v. Calcutta Electric Supply Workers' Union and Ors. : (1994)6 S.C.C. 548, Workmen of Rohtas Industries Ltd v. K. Choudhri and Ors. : A.I.R. 1965 Patna 127 and Seshasayee Paper Mill and Ors. v. Seshasayee Paper and Boards Ltd. 1998 L.L.R. 251.</p><p style="text-align: justify;">4. On the other hand, learned Counsel for the respondents submitted that Regulation (3) of the Service Rules clearly provides that medical reimbursement of Rs. 50/- would only be paid to the employees/workmen who were not covered by the ESI Act/ESI Scheme. Therefore, those employees, who are covered under the ESI Scheme, would not be entitled to the said allowance which in itself was a condition of their service. Learned Counsel further argued that Section 72 of the Act does not apply in the facts and circumstances of the instant case as the benefits of medical reimbursement earlier provided under Clause (3) of the Service Rules are not similar to the benefits conferred by the ESI Act. He further submitted that only those benefits could not be discontinued or reduced which were payable to the employees/workmen under the condition of their service and are similar to the benefits conferred by the ESI Act. He submitted that since the Service Rules itself provide that the medical reimbursement of Rs. 50/- per month will be paid to only those workmen who were not covered by the Act/ESI Scheme, therefore, the petitioners, who were getting the said benefit under the said Rule will not be entitled for the said benefit on their becoming members of the ESI Scheme. He further submitted that in view of Section 61 of the ESI Act, the petitioners are also not entitled to the medical reimbursement of Rs. 50/- per month as the said Section provides that when a person is entitled to any of the benefits provided by this Act, he shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.</p><p style="text-align: justify;">5. I have heard the learned Counsel for the parties in detail.</p><p style="text-align: justify;">6. The only question to be determined in these petitions is whether the medical benefits i.e. medical reimbursement of an amount of Rs. 50/- per month, already extended by the MILKFED under Clause (3) of the Service Rules and enjoyed by the petitioners, can be discontinued on application of the ESI Act, ESI Scheme to the petitioners?</p><p style="text-align: justify;">Section 72 of the ESI Act is reproduced as under:</p><p style="text-align: justify;">Employer not to reduce wages, etc.- No employer by reason only of his liability for any contributions payable under this Act shall, directly or indirectly reduce the wages of any employee, or except as provided by the regulations, discontinue or reduce benefits payable to him under the conditions of his service which are similar to the benefits conferred by this Act.</p><p style="text-align: justify;">7. A bare reading of the aforesaid provisions shows that merely because an employer is liable to make any contribution under the ESI Act will not entitle him directly or indirectly to reduce the wages of any employee or insofar as the regulations permit, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the Act. The general purpose of Section 72 of the Act is to deny to the employers the right or power to reduce or discontinue the benefits payable to the workmen under their conditions of service on the ground that the benefits available under the conditions of service and under the ESI Act/ESI Scheme being similar the workmen would not be entitled to a double benefit. Section 72 of the ESI Act contains two parts. The first part provides that no employer by reason of his liability for his contribution payable under the ESI Act shall, directly or indirectly reduce the wages of any employee, and the second part provides that no such employer shall, except as provided by the regulations, discontinue or reduce the benefits payable to him under the conditions of his service which are similar to the benefits conferred by the ESI Act. In my view, the facts of the instant case do not fall under first part of the Section as the medical reimbursement does not cover by the definition of wages. Section 2(22) of the ESI Act defines 'wages', which is reproduced as under:</p><p style="text-align: justify;">'wages' means all remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled and includes any payment to an employee in respect of any period of authorised leave, lock-out, strike which is not illegal or lay-off and other additional remuneration, if any, paid at intervals not exceeding two months, but does not include-</p><p style="text-align: justify;">(a) any contribution paid by the employer to any pension fund or provided fund, or under this Act;</p><p style="text-align: justify;">(b) any traveling allowance or the value of any traveling concession;</p><p style="text-align: justify;">(c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or</p><p style="text-align: justify;">(d) any gratuity payable on discharge.</p><p style="text-align: justify;">8. Clause (c) of the aforesaid sub-section specifically excludes any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment It also includes the Medical reimbursement.</p><p style="text-align: justify;">9. As far as second part of Section 72 of the ESI Act is concerned, it provides that no employer shall directly or indirectly reduce or discontinue, except as provided by the regulations, any benefits payable to the employee under the condition of his service which are similar to the benefits conferred by the ESI Act. To attract the rigor of these provisions, two conditions must be fulfilled. Firstly that the benefits payable to the employee must be under the condition of his service, and secondly those benefits must be similar to the benefits conferred by the ESI Act. In my opinion, in the instant case, both the conditions have not been fulfilled. The benefits of Rs. 50/- as medical reimbursement under Clause (3) of the Service Rules was payable only to those employees/workmen who were not covered by the ESI Act/ESI Scheme. As per the said Clause, the benefit of Rs. 50/- per month as medical reimbursement will automatically cease to operate on coming into force of the ESI Act. When the Service Rules itself provide for reimbursement of this amount only to those employees who are not covered by the ESI Scheme, then it cannot be said that the petitioners were entitled to the said benefit under the conditions of their service. If the Service Rules of the employee itself prohibits him from receiving the said benefit on his becoming member of the ESI Scheme, it cannot be said that he can continue with the same benefit even after becoming member of the ESI Scheme. Secondly, the benefit granted under Clause (3) was of medical reimbursement to the extent of Rs. 50/- per month. No such benefit is being granted under the ESI Scheme/ESI Act. Therefore, it cannot be said that the benefit granted by the employer under Clause (3) of the Service Rules is similar to the benefit granted under the ESI Scheme/ESI Act.</p><p style="text-align: justify;">10. In Bareilly Holdings Ltd's case (supra), the question for consideration was whether the action of the employer in deducting of half wages corresponding to the sickness benefit to which the workmen were entitled under the ESI Act in the event of the workmen not availing the services of the ESI, was legal and justified? In that case, prior to 1957, the workmen of the said company used to enjoy 15 says sick leave with full wages every year in accordance with the terms of an award given by the State Tribunal. In the said award, the workmen were entitled to 15 days sick leave on full wages as a condition of their service. With the enforcement of the ESI Act, the workmen also became entitled to sickness benefits under the ESI Scheme. When the employer deducted half wages to the extent of a half-day's wages in respect of employees availing of sick leave, the said action was challenged. The Industrial Tribunal set aside the said deduction made by the employer. While upholding the decision of the Industrial Tribunal, it has been observed that Section 72 of the ESI Act provides in terms that the mere circumstance that an employer is liable to make a contribution under the ESI Act will not entitle him, directly or indirectly, to reduce the wages of an employee or, insofar as the Regulation permits, discontinue or reduce the benefits payable to him under the conditions of his service even if those benefits are similar to the benefits conferred by the ESI Act. The purpose of the provision of the ESI Act is evidently to discourage employers from using the benefits provided under the Act as an excuse or justification for reducing or discontinuing the benefits available to the workmen under their conditions of service on the ground of similarity between the two types of benefits. In that case the dispute was pertaining to the discontinuation of the benefit of sick leave which was a condition of the services of workmen. But in the instant case the benefit of medical reimbursement of Rs. 50/- per month was not a condition of service of the workmen. Therefore, the ratio in that case is not applicable to the facts of the instant case.</p><p style="text-align: justify;">11. In Calcutta Electric Supply Corporation Ltd's case (supra), the question was whether the employer was entitled to withdraw the medical benefits which were already given by it to the employees prior to the coming into force of the ESI Act? In that case the employees were entitled for hospitalization in a private nursing home in case of illness and reimbursement of the medical expenses incurred for such hospitalization. When the management wanted to withdraw the said benefit after coming into force of the ESI Act, the workers went to the Industrial Tribunal where the withdrawal of the said benefit was held to be illegal in view of Section 72 of the ESI Act. Again in the said judgment the decision of the Industrial Tribunal was upheld while observing that 'the benefits which have become a part of the service conditions are not intended to be affected by the provisions of the ESI Act and its scheme except to the extent permitted by Regulation 97 and on the conditions mentioned therein'. Similarly, in Workmen of Rohtas Industries Ltd's case (supra), the management had established an hospital and was providing medical facilities to the workmen as a part of their service conditions. Subsequently, when more than 83% workers came under the ESI Scheme, the management decided to terminate the services of certain doctors and nurses. In those facts, it was held that the management was providing customary benefits to its employees which amounts to conditions of their service and, therefore, with the introduction of the ESI Scheme the said benefit could not have been withdrawn in view of Section 72 of the ESI Act. The facts of the said care are different to the facts of the instant case where the benefit of Rs. 50/- per month as medical reimbursement prior to the coming into force of the ESI Act/ESI Scheme cannot be said to be the part of the service conditions of the petitioners. Further the benefit of Rs. 50/- per month as medical reimbursement cannot be held to be as customary benefit to its employees amounting to condition of their service. Once it is found that the medical facilities provided to the workmen are not part of their service conditions, then they have no right to object to the curtailment 6f the said benefit by -the employer by invoking the provisions of Section 72 of the ESI Act.</p><p style="text-align: justify;">12. In Seshasayee Paper Mills' case (supra), prior to the coming into force of the ESI Scheme, the employees were getting medical allowance before the enforcement of the ESI Act/Scheme. The said medical allowance was a part of their salary. Each workman was extended a sum of Rs. 200/- to Rs. 400/- depending upon their basic salary. In that case, it was held that such medical allowance has become a part of the workmen salary and the same was paid to them as a condition of their service. Therefore, in view of Section 72 of the ESI Act, the said benefit, which was a part of the workmen wages/salary, could not have been reduced or withdrawn on coming into force of the ESI Act. The facts of the said case are also different. Therefore, the ratio laid down in that judgment is not applicable in the instant case.</p><p style="text-align: justify;">13. Thus, in my opinion, the provisions of Section 72 of the ESI Act will be attracted only if two conditions are fulfilled. Firstly that the benefit payable to the employees prior to the coming into force of the ESI Act must be under the condition of their service; and secondly that the said benefit must be similar to the benefit conferred by the ESI Act. There is no provision in the ESI Act which permits tampering of the service conditions on account of the operation of the Act. Unless that Act or any other law permits the employer to effect a change in the service conditions of the employees, any change effected has to be held as illegal. As far as Section 61 is concerned, it debars a person entitled to any of the benefits provided by the ESI Act from being entitled to receive any similar benefits admissible under any other enactment, but does not debar him to receive similar benefits, to which the workman may be entitled under his service conditions. In the instant case, the fixed medical reimbursement of Rs. 50/- per month was only to be paid to the employees and workers who were not governed by the ESI Act/Scheme. Since on coming into force of the ESI Act, the petitioners were governed by the provisions of the ESI Act, they were not entitled to the benefit of medical reimbursement of Rs. 50/- per month under the conditions of their service. Therefore, the restriction imposed by Section 72 of the ESI Act is not attracted in the instant case. The intention behind the enactment of Section 72 was that with the implementation of the ESI Act an employee should not be deprived of a benefit which he was getting from his employer under the conditions of his service. For instance if an employee by virtue of the conditions of his service was entitled to treatment in a private hospital then the said benefit could not be denied to him on the ground that under the ESI Act only the treatment, in a government hospital is allowed. This is what the legislature was intended so as to estop an employer from denying similar benefit granted under the Act. But in the present case the benefit granted by the employer was not similar as in the instant case under the ESI Act there was no provision for providing fixed medical reimbursement.</p><p style="text-align: justify;">14. In view of the above, in my opinion, the petitioners are legally not entitled to the medical reimbursement of Rs. 50/- per month after coming into force of the ESI Act under Regulation 3 of the Service Rules being condition of their service. Therefore, no such direction as prayed by the petitioners, can be issued to respondent No. 2. Hence, all the five petitions are dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 1(5, the ESI Act', the ESI Act, the ESI Act, the ESI Act, the ESI Act, Section 72, the ESI Act, Section 97(1, the ESI Act, the ESI Act, the ESI Act, the ESI Act/ESI Scheme, Section 72, the ESI Act, the ESI Act, Section 61, the ESI Act, the ESI Act, the ESI Act, the ESI Act, Section 72 of the Act, the ESI Act/ESI Scheme, Section 72, the ESI Act, Section 72, the ESI Act, the ESI Act, the ESI Act, the ESI Act/ESI Scheme, the ESI Act, the ESI Act, the ESI Act, Section 72, the ESI Act, the ESI Act, the ESI Act, the ESI Act, the ESI Act, the ESI Act, Section 72, the ESI Act, the ESI Act, Regulation 97, Section 72, the ESI Act, the ESI Act/ESI Scheme, Section 72, the ESI Act/Scheme, Section 72, the ESI Act, the ESI Act, Section 72, the ESI Act, the ESI Act, Section 61, the ESI Act, the ESI Act/Scheme, the ESI Act, the ESI Act, Section 72, the ESI Act, Section 72, the ESI Act, the ESI Act

NORP: Satish, J.1

PERSON: Kumar Mittal, CWP Nos, SO/-, Counsel, v. K. Choudhri, Counsel, Rule

DATE: 5239, 5552, 6159, 1986, 1948, 1,600/- per month, 13.8.1986, 50/-per month, 13.8.1986, A.I.R. 1965, 1998, 50/- per month, 50/- per month, 50/- per month, two months, 50/- per month, 50/- per month, 1957, every year, 15 days, a half-day's, 50/- per month, 50/- per month, 50/- per month, 50/- per month, 50/- per month, 50/- per month

CARDINAL: 650, 1,000/-, 27.1.1985, 27.1.1985, 3, 50/-, 50/-, 1979)3, 257, 1994)6, 548, 3, 50/-, 3, 3, 72, two, two, 50/-, 3, 3, 3, half, 15, half, two, 6f, 400/-, two, 2, five

ORG: the Punjab State Co-operative Milk Producers' Federation, Punjab Government, Government, the Services Rules, MILKFED, Employees' Union, the State Government, ESI Act, the Supreme Court, Bareilly Holdings Ltd., Calcutta Electric Supply Corporation Ltd, Calcutta Electric Supply Workers', Workmen of Rohtas Industries Ltd, Patna 127, Ors, Seshasayee Paper and Boards Ltd., L.L.R. 251.4, the ESI Scheme, Learned Counsel, the Service Rules, the ESI Scheme, enactment.5, detail.6, the Service Rules, ESI Scheme, or(d, the Service Rules, the ESI Scheme, the Service Rules, the ESI Scheme, the ESI Scheme, the ESI Scheme/ESI Act, the Service Rules, the ESI Scheme/ESI Act.10, Bareilly Holdings Ltd's, ESI, the State Tribunal, The Industrial Tribunal, the Industrial Tribunal, Regulation, Calcutta Electric Supply Corporation Ltd's, the Industrial Tribunal, the Industrial Tribunal, Rohtas Industries Ltd's, the ESI Scheme, the ESI Scheme, the ESI Scheme

GPE: Counsel, S.C.C., Seshasayee, Act.7, Workmen, Seshasayee

TIME: under this Act

ORDINAL: first, second, first, second, Firstly, secondly, Secondly, Firstly, secondly

PERCENT: more than 83%