Kerala High Court
Kerala Cbse School Management'S vs State Of Kerala Represented By on 3 July, 2009
Bench: K.Balakrishnan Nair, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5986 of 2008(K)
1. KERALA CBSE SCHOOL MANAGEMENT'S
... Petitioner
2. TOC-H PUBLIC SCHOOL, REPRESENTED BY
3. RANI PUBLIC SCHOOL, REPRESENTED BY
4. AL-AMEEN PUBLIC SCHOOL, REPRESENTED BY
5. CRESCENT PUBLIC SCHOOL, REPRESENTED BY
6. HOLY GRACE ACADEMY, REPRESENTED BY
7. COCHIN PUBLIC SCHOOL, REPRESENTED BY
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. UNION OF INDIA REPRESENTED ITS SECRETARY
3. EMPLOYEES' STATE INSURANCE CORPORATION
4. ASSISTANT DIRECTOR
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent :SMT.A.SREEKALA, ADDL.CGSC
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :03/07/2009
O R D E R
K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.
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W.P(C). Nos.5986 of 2008
36972/07, 37172/07,
7344/08, 7644/08, 8016/08, 8052/08, 8474/08,
8783/08, 8957/08, 9894/08, 10884/08, 11425/08,
11858/08, 11991/08, 12032/08, 13861/08,
13453/08, 14824/08, 15102/08, 15110/08, 15111/08,
15152/08, 15154/08, 15177/08, 16928/08, 18242/08,
18307/08, 18317/08, 18793/08, 18797/08, 18798/08,
18804/08, 19149/08, 19163/08, 19171/08, 19255/08,
19446/08, 19480/08, 19537/08, 20279/08, 21011/08,
21291/08, 22866/08, 22902/08, 23328/08, 23424/08,
24107/08, 24510/08, 24706/08, 24719/08, 24772/08,
25349/08, 25422/08, 26954/08, 27260/08, 27578/08,
28064/08, 28065/08, 28149/08, 28823/08, 29103/08,
29261/08, 29418/08, 30223/08, 31457/08, 31731/08,
31767/08, 32270/08, 32585/08, 33489/08, 33501/08,
34859/08, 35309/08, 35336/08, 36531/08, 36553/08,
36560/08, 36687/08, 36975/08, 37227/08, 37915/08,
581/09, 655/09, 676/09, 679/09, 754/09,
1152/09, 1691/09, 2137/09, 2142/09, 4218/09,
4348/09, 4503/09, 4656/09, 5361/09, 5879/09,
6020/09, 6129/09, 6183/09, 6337/09, 8053/09,
8087/09, 9567/09, 9829/09, 10509/09, 10577/09,
11985/09, 12284/09, 12314/09, 12398/09, 12906/09,
13015/09, 13053/09, 13058/09, 13115/09, 13611/09,
13938/09, 14084/09, 14132/09, and 14462/09.
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Dated, this the 3rd day of July, 2009
JUDGMENT
Balakrishnan Nair, J.
The point that arises for decision in these cases is whether the notification dated 8.10.2007, issued by the Kerala Government under Section 1(5) of the Employees State Insurance Act, 1948, extending the provisions of the said Act WPC No.5986/08 and connected cases
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to educational institutions, is valid or not. The petitioners in these cases represent the managements of schools affiliated to CBSE, ICSE and also unaided but recognised schools under the Kerala Education Rules. Some of the Self Financing Colleges are also before us.
2. W.P.(C) No.5986/2008 is treated as the main case, for the purpose of referring to the exhibits. The writ petitions, as mentioned earlier, are filed challenging the notification, G.O.(P) No.135/2007/LBR dated 8.10.2007, issued by the State Government under Section 1(5) of the Employees State Insurance Act, 1948 (for short, referred to as "ESI Act"). By the said notification, which is produced as Ext.P1, the provisions of ESI Act have been made applicable to educational institutions (including public, private, aided or partially aided) run by individuals, trustees, societies or other organisations, wherein twenty or more persons are employed or were employed on any day in the preceding 12 months and which are working in the areas where the scheme under the WPC No.5986/08 and connected cases
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ESI Act has already been brought into force under sub-sections (3) and (5) of Section 1 of the Act. After the issuance of the above notification, the Government have issued G.O.(P) No.69/2008/LBR dated 5.5.2008, produced as Ext.R1(a) by the Government along with its counter affidavit, modifying Ext.P1 notification, by excluding public and aided schools from the purview of the said notification. The reason given is that, the staff of public and aided educational institutions enjoy service benefits applicable to Government Servants and, therefore, it was unnecessary to extend the provisions of the Act to such institutions.
3. The petitioners attack Ext.P1 notification, mainly, on the following ground: "By issuing Ext.P1, the Government have exceeded its powers conferred under Section 1(5) of the ESI Act. In other words, Ext.P1 is ultra vires and unauthorised by the said section , and therefore, ab initio void". This ground of attack is sought to be sustained relying on the following reasons:
WPC No.5986/08 and connected cases
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(a) The educational institutions not being establishments similar to industrial, commercial or agricultural establishments, are not covered by the words 'or otherwise' used in Sec. 1 (5). The meaning of the words 'or otherwise' should be read down in the light of the principle of ejusdem generis and the notification can cover only establishments engaged in activities similar to industrial, commercial or agricultural activities.
(b) The schools affiliated to CBSE are under the control of the Central Government and therefore, the appropriate Government to issue the notification under Section 1(5) of the Act is the Central Government and not the State Government. For that reason also, Ext.P1 is ultra vires and therefore, unenforceable.
4. The first respondent State, which is the author of Ext.P1 notification, has filed a counter affidavit in WP(C) No.19149 of 2008. By filing memos, the said affidavit has been adopted in other cases also. In W.P.(C) No.5986 of 2008, the State has filed an additional statement. It fully supports Ext.P1. According to it, the Government have necessary WPC No.5986/08 and connected cases
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competence to issue a notification in the nature of Ext.P1. The words 'or otherwise' employed are wide enough to cover all other establishments other than industrial, commercial or agricultural. Since the words "industrial, commercial or agricultural" belong to different categories, the meaning of the general words 'or otherwise' cannot be read down by applying the principle of ejusdem generis. Even assuming, it is to be so read down, according to the State, since educational institutions have been held to be industrial establishments by the Supreme Court in Bangalore Water Supply and Sewerage Board v. A.Rajappa (1978) 2 SCC 213, the notification does not suffer from any infirmity. It also submits that though the CBSE is controlled by the Central Government, it cannot be said that the schools affiliated to CBSE are also controlled by the Central Government. So, the State prayed for dismissing the writ petition.
5. The E.S.I. Corporation has filed counter affidavits in all the writ petitions, supporting the validity of the WPC No.5986/08 and connected cases
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notification. In some cases, the petitioners have challenged the consequential action taken against them pursuant to Ext.P1. But, in this case, we propose to confine our decision to the validity of Ext.P1 notification only. If we strike down Ext.P1, all consequential actions taken pursuant to Ext.P1 would also collapse. If we uphold Ext.P1, the petitioners have statutory remedies against the actions taken against them, under the provisions of the ESI Act.
6. We heard learned Senior Counsel, Sri.O.V.Radhakrishnan, who appeared for the petitioner in WP (C) No.5986 of 2008, which is Kerala CBSE Management Association. We also heard Sri.Govind K. Bharathan (Sr.), Sri.K.R.B.Kaimal (Sr.), Smt. V.P. Seemandini (Sr.), Sri. V.K. Beeran (Sr.), Sri.U.K. Ramakrishnan (Sr.), Sri.V.M.Kurian, Sri.P.S.Sreedharan Pillai, Sri.P.M.Pareeth, Sri.Wilson Urmese, Sri.Augustine Joseph, Sri. V.V. Asokan, Sri.T.K.Ajith Kumar, Smt. Jishamol Cleetus, Sri.N.Nagaresh, Sri.R.V.Sreejith, Sri.Johnson P.John, Sri.V.A.Muhammed, Sri.V.A.Shaji, WPC No.5986/08 and connected cases
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Sri.K.B.Gangesh, Smt.P.Shyni, Smt.Lekha Suresh, Smt.P.K.Priya, Smt.M.A.Vaheeda Babu, Sri.A.X.Xavier, Sri.N. Subramaniam, Sri.Harish R.Menon, Sri.A.V.Ramakrishna Panicker, Sri.A. Rajasimhan, Sri.M.A. Thomas Kutty, Sri.A.Mohamed Mustaque, Sri.Ghosh Yohannan, Sri.K.M.Mohammed Kunhi, Sri.K.Karthikeya Panicker, Sri.G.Sreekumar (Chelur), Smt.S.Karthika, Sri.L.Aloysius Thomas, Sri.K.S. Hariharaputhran, Sri.Manoj Ramaswamy, Sri.P.V.Baby, Sri.M.Mohamed Navaz, Sri.V.Ramkumar Nambiar, learned counsel who appeared for the petitioners in the connected writ petitions. On behalf of the State, we heard Sri.Benny Gervasis, learned Senior Government Pleader. We also had the benefit of hearing Smt.T.D.Rajalekshmy and Sri.T.V.Ajayakumar, who appeared for the E.S.I. Corporation.
7. The learned Senior Counsel, Sri. O.V.Radhakrishnan, submitted that the words 'or otherwise' used in Section 1(5) of the E..S.I. Act should be understood with reference to the words employed preceding them. The WPC No.5986/08 and connected cases
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activity which could be covered by a notification should be similar to industrial, commercial or agricultural activities. The principle of ejusdem generis will squarely apply to the interpretation of the words 'or otherwise' employed in Sec.1 (5). Though, for the purpose of Industrial Disputes Act, educational institutions have been held to be industry, the said artificial meaning contained in the Industrial Disputes Act cannot be extended to the word 'industrial' employed in Section 1(5) of the E.S.I. Act. The learned Senior Counsel, in support of his submissions, relied on the decisions of the Apex Court in Controller of Estate Duty v. Parvathy Ammal, AIR 1975 SC 435; Controller of Estate Duty v.
R.V.Viswanathan, AIR 1977 SC 463; Parakh Food Limited v. State of U.P., (2008) 4 SCC 584; Dabur India Limited v. K.R.Industries, (2008) 10 SCC 595; N. Parameswaran Pillai v. Union of India, (2002) 4 SCC 497; Ruth Soren v. Managing Committee, East I.S.S.D.A. and others (2001) 2 SCC 115. The learned Senior Counsel also referred to the decisions of the Apex Court in T.M.A. Pai WPC No.5986/08 and connected cases
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Foundation's case (2002) 8 SCC 481 and P.A.Inamdar's case (2005) 6 SCC 537, wherein it was held that the running of an educational institution is an activity covered under Article 19(1)
(g) of the Constitution of India.
8. The learned Senior Counsel Sri.Govind K.Bharathan, submitted that as far as the schools affiliated to CBSE are concerned, the appropriate Government is the Central Government. According to the learned Senior Counsel the Central Government have got deep and pervasive control over the affairs of the CBSE. The schools affiliated to the CBSE are under the strict control and guidance of the said Board. Therefore, it should be taken that the said schools are also under the control of the Central Government. Therefore, the appropriate Government which could have issued a notification in the nature of Ext.P1 in relation to schools affiliated to CBSE is the Central Government. So, the notification Ext.P1 is issued without jurisdiction. The learned Senior Counsel also relied on the decision of this Court in Spencer & Company Ltd., WPC No.5986/08 and connected cases
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Ernakulam v. E.S.I. Corporation, Trichur, 1989 (2) ILR
360. In support of his submission, the learned Senior Counsel brought to our notice the observation of this Court that State has no connection with CBSE schools, in the said decision.
9. Sri.P.M. Pareeth, learned counsel submitted that in view of Ext.R1 (a) amendment modifying the coverage of Ext.P1, the implementation of Ext.P1 now is arbitrary and discriminatory. If aided and public schools are left out, there is no reason why other schools should also not be excluded.
10. Smt.S.Karthika, learned counsel, referred to the order of the Five Judge Bench of the Apex Court in State of U.P. v. Jai Bir Singh (2005) 5 SCC 1, and submitted that the decision in Bangalore Water Supply and Sewerage Board's case (supra) no longer lays down the correct legal position concerning the interpretation of 'industry' as defined under Section 2(j) of the Industrial Disputes Act. WPC No.5986/08 and connected cases
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11. Sri. Benny Gervasis, learned Senior Government Pleader, supported Ext.P1 notification. According to him, the principle of ejusdem generis has no application for interpreting Section 1(5) of the ESI Act. The words "industrial, commercial and agricultural" denote different genera. There is nothing common among them. Therefore, the words 'or otherwise' used in the section should be given the widest possible meaning. Acceptance of restricted meaning will defeat the intention of the Parliament. The learned Senior Government Pleader also pointed out that decision of the Seven Judge Bench of Apex Court, reported in Bangalore Water Supply and Sewerage Board's case (supra) has clearly stated that educational institutions will come under the purview of the industry, as defined under Section 2(j) of the Industrial Disputes Act, 1948. The said decision even now holds the field, though a few Benches of the Supreme Court of lesser strength have expressed the view that the said decision requires reconsideration.
WPC No.5986/08 and connected cases
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12. Smt. T.D. Rajalekshmi, who appeared for the ESI Corporation, submitted that the ESI Act being a welfare legislation, the court should adopt a liberal construction of its provisions, so as to advance the object of the Act. She relied on the following decisions in support of her submissions:-
M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd., Goa AIR 1993 SC 1014, S.R. Bommai and Others v. Union of India 1994 (3) SCC 1, Commissioner of Income Tax v. K.F.C.,1992 (2) KLT 576.
13. Mr. T.V.Ajayakumar, who also appeared for the ESI Corporation, supported Ext.P1 notification. He submitted that employing the principle of ejusdem generis, the scope of the words 'or otherwise' used in Section 1(5) cannot be restricted. Widest possible meaning should be given to them, as intended by the legislature. In support of his submission, the learned counsel relied on the decisions in Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., AIR 1964 SC 1260, Transport Corporation of India v. Employees Insurance WPC No.5986/08 and connected cases
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Corporation, 2000 (1) SCC 332, Smt.Lila Vati Bai v. State of Bombay, AIR 1957 SC 521, Sundar Paper Box Co. v. State of Orissa, 1977 Lab.I.C. 1213, Mumbai Kamgar Sabha v. State of Maharashtra, 1991 Lab.I.C. 1206, Physical Research Laboratory v. K.G.Sharma (1997) 4 SCC 257, E.S.I. Corporation v. Hyderabad Race Club, (2004) 6 SCC 191, and Parakh Food Limited v. State of U.P., 2008 (4) SCC 584.
14. We have gone through the relevant statutory provisions and also the decisions cited at the Bar and other materials on record. Section 1 (5) of the ESI Act reads as follows:
"1(5) The appropriate Government may, in consultation with the corporation and where the appropriate Government is a State Government, with the approval of the Central Government after giving six months' notice of its intention of so doing by notification in the Official Gazette, extend the provisions of this Act or any of them, to WPC No.5986/08 and connected cases
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any other establishment or class of establishments, industrial, commercial, agricultural or otherwise:
Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State."
(emphasis supplied) Following the procedure prescribed in the above sub-section, the appropriate Government can extend the provisions of the Act "to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise". The point to be answered is, whether the above provision empowers the appropriate Government to extend the provisions of the Act to educational institutions. A plain reading of the above provision leaves no doubt in our mind, that the appropriate Government can do that. No direct authority of the Apex Court on this point WPC No.5986/08 and connected cases
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has been brought to our notice, but there are a few decisions of other High Courts directly in point.
15. The Allahabad High Court in Maharishi Shiksha Sansthan, New Delhi v. State of U.P., 2009 (1) A.L.J. 654, upheld the notification under Section 1(5), covering educational institutions. The relevant portion of the said judgment reads as follows:
"6. In my opinion, the word "otherwise" is of wide amplitude covering all establishments including educational institutions.
7. In this case, learned counsel for the respondents has cited an authority of this Court and another authority of Rajasthan High Court, which are quoted below.
1.Civil Misc. Writ Petition No.44821 of 2008, St.Joseph's College and others (decided on 1-9-2008)
2. S.B. Civil Writ Petition No.2291 of 2005, Bhopalwal Arya Higher Secondary Managing Committee, Sriganganagar v. State of Rajasthan and others (decided on 12-5-2008).
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8. In the said authorities, it has been held that educational institution can be brought under the umbrella of the Act. Moreover, the Act is beneficial legislation and in case of any ambiguity it requires to be interpreted in favour of those, who are to be benefitted by the application of the Act. 9. In this regard, reference may also made to the Supreme Court authority reported in AIR 2004 SC 3972 'E.S.I. Corpn. v. Hyderabad Race Club' and the authorities mentioned therein. In the said authority, it was held that race club was establishment and could be brought under Act through notice under the aforesaid provision.
10. Learned counsel for the petitioner has argued that the word 'establishment' must have some relation with factory and educational institution is not even remotely connected with the activity, which is carried out in factories. This argument is not tenable for the reason that under Section 1(5), there is no such restriction. Thereafter, learned counsel for the petitioner has argued that the aforesaid sub-section suffers from the vice of excessive delegation as the WPC No.5986/08 and connected cases
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power to bring any establishment under the Act has been conferred upon the Government without providing any guidelines.
11. This argument is also not acceptable. The purpose of the Act is to confer certain benefits upon the employees and employees of any establishment may deserve such benefits. This question has also been considered in the Supreme Court authority reported in AIR 1987 SC 1166, "Hindu Jea Band, M/s.Jaipur v. Regional Director, Employees' State Insurance Corporation, Jaipur." Learned counsel has, in the end, argued that in the case of judgment of St.Joseph's College's case (supra), notification was not challenged. However, in the said authority, it was argued that the said provision could not be applied on minority educational institutions. In the said judgment, it was held that educational institution including minority educational institution could be brought under the Act.".
16. Interpreting the words "or otherwise" in Section 1(5) of the E.S.I Act, The Bombay High Court in Mumbai Kamgar Sabha v. State of Maharashtra, 1991 WPC No.5986/08 and connected cases
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LAB.I.C. 1206, held as follows:
"...The government can extend the Act or any portion thereof. It can do so vide any other establishment (in contra distinction to factories other than seasonal factories) or class of establishments. The class contemplated may be industrial, commercial, agricultural or otherwise. That there can be establishments of a character other than industrial, commercial or agricultural cannot be disputed. An example of this a travel agency. That being the position, it will be erroneous to hold that the words "or otherwise"
are to be read in a restricted sense and take their colour from the three words preceding them. These preceding words cannot supply the idea of a genus. Indeed the genus lies in the words "any other establishment or class of establishment". The three words which follow each represent a specie. But the legislature did not want to restrict the operation of the Act to these 3 species and therefore used the catch-all words "or otherwise".".
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We are of the opinion that the view taken by the Allahabad High Court regarding the extension of the provisions of the ESI Act to educational institutions and the interpretation given to the words "or otherwise" by the Bombay High Court lay down the correct legal position.
17. We hold that the notification under Section 1(5) of the ESI Act can cover an educational institution for two reasons:- Our first reason is that, the educational institutions like schools are industrial establishments, in view of the decision of the Apex Court in Bangalore Water Supply and Sewerage Board's case, (supra). Though a few Benches of lesser strength have expressed the necessity for reconsidering the dictum in Bangalore Water Supply and Sewerage Board's case, (supra), until such a reconsideration is done by a larger Bench, we are absolutely bound by the decision of the Apex Court in Bangalore Water Supply and Sewerage Board's case, (supra). If that be so, the only possible view that could be taken in the face of the words WPC No.5986/08 and connected cases
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contained in Section 1(5) of the ESI Act is that educational institutions are also covered by the expression 'industrial establishment'. The main thrust of the argument of the writ petitioners was that educational institution is not an industry. In view of the binding precedent mentioned above, we cannot accept that contention. Further, the interpretation of the definition of "industry" in Section 2(j) of the Industrial Disputes Act is applicable to the interpretation of the word "industrial" in Section 1(5) of the E.S.I. Act, in view of Section 2(24) of the latter Act which reads as follows:
"2. Definitions:-
xxx xxx xxx (24) all other words and expressions used but not defined in this Act and defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.".
18. Our second reason is that, the words employed 'or otherwise' should be given the widest possible meaning and WPC No.5986/08 and connected cases
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therefore, they will cover the educational institutions also. The petitioners contend that the words 'or otherwise' should be given a restricted meaning, following the principle of ejusdem generis. Whether the words should be given a restricted meaning will depend upon the context in which they are used. There cannot be any principle of universal application concerning this. The learned author, Sri.G.P.Singh, in his book, Principles of Statutory Interpretation, 10th Edition, 2006, points out that the words "or otherwise" are not usually considered ejusdem generis. The learned author has stated as follows:
"It also appears that the words 'or otherwise' have not been usually considered ejusdem generis. They are words of wide import, but context may limit their scope.".
The learned author has stated the above principle, referring to various decisions of the Apex Court. The decisions cited by the learned counsel for the petitioners to persuade this Court to WPC No.5986/08 and connected cases
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give a restricted meaning, applying ejusdem generis cannot be upheld, having regard to the context in which the words "or otherwise" are used. We are not referring to each and every decision cited by the petitioners, but we would point out that those are decisions which are rendered under various other enactments and do not lay down any binding precedent to be followed in this case. Further, having regard to the words employed in the above sub-section, the principle of ejusdem generis cannot be pressed into service. There is nothing in common between industrial establishment and agricultural establishment. They do not belong to the same genus. The doctrine of ejusdem generis is applied where the words of the same category are used, followed by general words. In that context, the meaning of the general words can be read down to mean only something similar to the category mentioned preceding them. For the above reasons, the contentions of the writ petitioners that this Court should give a restricted meaning to the words 'or otherwise' cannot be upheld. WPC No.5986/08 and connected cases
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19. We are also not referring to the decisions cited by the respondents in great detail, as it is unnecessary for the disposal of these cases. But, we would agree with their contention that this Court is bound to take a liberal view and beneficial construction should be employed while interpreting the laws enacted for the benefit of the weaker sections of the society.
20. The Apex Court in U.P. State Electricity Board v. Hari Shanker, AIR 1979 SC 65, stated as follows:
"Before examining the rival contentions, we remind ourselves that the Constitution has expressed a deep concern for the welfare of workers and has provided in Art.42 that the State shall make provision for securing just and humane conditions of work and in Art.43 that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure etc. These are among the "Directive Principles of State Policy". The mandate of Art.37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are WPC No.5986/08 and connected cases
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'nevertheless fundamental in the governance of the country' and 'it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy."
The Apex Court in Cochin Shipping Company v. ESI Corporation, 1992 (2) KLT 576, held as follows:
"14. The Employees State Insurance Act is an Act to provide certain benefits to employees in case of sickness, maternity and employment injury and make provision for certain other matters in relation thereto. The Act is an outcome of a policy to provide remedy for the widespread evils arising from the consequences of national poverty. Indeed it is a piece of social security.
15. Under S.1(4), in the first instance, it is made applicable to all factories. The Act envisages the extension of benefit to the WPC No.5986/08 and connected cases
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employees in other establishments or class of establishments, industrial, commercial, agricultural or otherwise. The extension of benefit is to be done by means of a notification by the appropriate Government. Thus the benefits conferred by the Act cover a large area of employees than what the Factories Act and the akin legislations intended. The conclusion is inescapable that it is a welfare legislation. The endeavour of the Court should be to place a liberal construction so as to promote its objects to which a reference has been made.".
Again, the Apex Court in Whirlpool of India Ltd. v. E.S.I.Corporation, (2000) 3 SCC 185, held as follows:
"5. The Act is a social legislation enacted to provide benefits to employees in case of sickness, maternity and employment injury and to make a provision for certain other matters in relation thereto. Broadly, this is the purpose for which the Corporation has been established under Section 3 of the Act. The main source of the Employees' State Insurance Fund is the contributions paid to WPC No.5986/08 and connected cases
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the Corporation (Section 26). The benefits to be provided to insured persons and others are as provided in Chapter V, in particular, Section 46 thereof. The words and expressions used but not defined in the Act and defined in the Industrial Disputes Act, 1947, are to have the meaning respectively assigned to them in the Industrial Disputes Act. Undoubtedly, any provision of which two interpretations may be possible would deserve such construction as would be beneficial to the working class but, at the same time, we cannot give a go-by to the plain language of a provision."
In view of the above principles laid down by the Apex Court, the High Court is bound to construe the Act liberally to advance its object.
21. The charge of discrimination raised, relying on Ext.R1(a) amendment to Ext.P1, is also unsustainable. The choice of establishments to be covered is a matter within the discretion of the Government. The contention that exclusion of WPC No.5986/08 and connected cases
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public and aided schools will make the notification (Ext.P1) discriminatory, is plainly untenable.
22. Now, the only point which remains to be considered is the contention raised by learned Senior Counsel Sri.Govind K. Bharathan, to the effect that State Government is not the appropriate Government authorised to issue the notification under Section 1(5). The definition of the words "appropriate Government" under Section 2(1) of ESI Act reads as follows:
"2 (1). appropriate Government means, in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government."
Referring to the above definition, the learned senior counsel submitted that the CBSE schools are establishments under the control of the Central Government. The contention of the WPC No.5986/08 and connected cases
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learned senior counsel, which we have already noted earlier, is that since the Central Government have pervasive control over the CBSE, the schools affiliated to it are also to be treated as establishments under the control of the Central Government. The schools before us are not established by the Central Government. They are established and administered by various Trusts, either private or public. The students in the schools can take the CBSE Examinations, if only they get affiliation from the said Board. So, complying with the affiliation bye-laws of the CBSE, the schools have obtained affiliation. The provisions of affiliation bye-laws are made to ensure that proper standards of instruction are maintained in the schools in accordance with the norms prescribed. Provisions are also there, to ensure that the schools are having necessary infrastructure and also qualified teachers. The CBSE can disaffiliate the schools, if the norms prescribed under the affiliation bye-laws concerning the above matters are not observed. In view of the above position, the claim of the petitioners that the schools affiliated to the CBSE are under the WPC No.5986/08 and connected cases
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control of the Central Government, is plainly untenable. The decision in Spencer & Company Ltd., Ernakulam v. E.S.I. Corporation, Trichur (supra) has no application to the facts of the case. Even if the State Government have no connection with the CBSE schools, still it can the "appropriate Government" under the Act.
23. In view of the above position, we find that no ground has been made out, warranting interference with Ext.P1 notification, as modified by Ext.R1(a). In the result, the writ petitions fail and they are accordingly dismissed. No costs.
Sd/-
K. BALAKRISHNAN NAIR, JUDGE.
Sd/-
C.T. RAVIKUMAR, JUDGE.
DK.
(True copy)