Kerala High Court
Smitha Rajendran vs Employees State Insurance Corporation on 8 February, 2021
Equivalent citations: AIRONLINE 2021 KER 761
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942
WP(C).No.28767 OF 2020(U)
PETITIONER:
SMITHA RAJENDRAN
AGED 39 YEARS
W/O.RAJENDRAN, CHENATHU HOUSE, ERUVA WEST,
KAREELAKULANGARA P.O., KAYAMKULAM,
ALAPPUZHA - 690 502.
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
RESPONDENTS:
1 EMPLOYEES STATE INSURANCE CORPORATION
REGIONAL OFFICE, PANCHDEEP BHAVAN, NORTH SWARAJ
ROUND, THRISSUR - 680 020, REPRESENTED BY ITS
REGIONAL DIRECTOR.
2 THE DEPUTY DIRECTOR
SUB REGIONAL OFFICE, KOLLAM EMPLOYEES STATE INSURANCE
CORPORATION, PANCHDEEP BHAVAN, ASRAMAM,
KOLLAM - 691 002.
3 EMPLOYEES STATE INSURANCE CORPORATION
BRANCH OFFICE, KAYAMKULAM, KAYAMKULAM P.O.,
ALAPPUZHA - 690 502.
4 KIT ENGLISH HIGH SCHOOL
KAREELAKULANGARA, KAYAMKULAM, ALAPPUZHA - 690 502,
REPRESENTED BY ITS PRINCIPAL.
R1-R3 BY SRI.T.V.AJAYAKUMAR, SC, ESI CORPN.
R1-R3 BY ADV. KUM.P.H.RIMJU
R4 BY ADV. SRI.MATHEW JAMES
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-02-2021, THE COURT ON 08-02-2021 DELIVERED THE FOLLOWING:
W.P.(C) No.28767/2020 2
JUDGMENT
Dated this the 8th day of February 2021 By this writ petition, the petitioner has prayed for the following reliefs:
i. Issue a writ of certiorari or other appropriate writ, order or direction to call for the records leading to Exhibit P6 and quash the same. ii. Issue a writ of certiorari or other appropriate writ, order or direction to call for the records leading to the entitlement status of super specialty for IP as well as for Family as 'NO' in Exhibit P5 and quash the same to that extent; iii. To declare that the petitioner as well as her husband R. Rajendran entitled to get the super specialty medical benefits under the Employees State Insurance Act with Insurance Number 4810399074;
iv. Issue a writ of mandamus or other appropriate writ, order or direction by directing the respondents 1 to 3 to immediately disburse the medical benefits against the Super specialty for IP as well as Super specialty for Family in connection with the donation of the kidney by the petitioner and for the renal transplantation for R. Ranjendran, the husband of the petitioner.
2. Heard the learned counsel appearing for the petitioner. Learned counsel argued that the petitioner is working as a W.P.(C) No.28767/2020 3 Teacher with the 4th respondent-school from June 2010 and is an insured person as defined by Section 2(14) of the Employee's State Insurance Act, 1948 (hereinafter referred to as 'the ESI Act'). According to the learned counsel for the petitioner, the contribution as per the provisions of the ESI Act is being regularly deducted from the salary of the petitioner right from her joining the 4th respondent-school as a Teacher in June 2010 and this fact is reflected from the certificate dated 01.12.2020, Ext.P2. Even e-Pehchan card, Ext.P3, is issued in favour of the petitioner by respondents 1 to 3 which shows that the petitioner is an insured person and her husband Sri.Rajendran R apart from her two sons are her dependents. In submission of the learned counsel for the petitioner, the petitioner as well as her dependents including her husband, Sri.Rajendran R, are entitled for medical benefits as provided under Section 56 of the ESI Act. The husband of the petitioner is suffering from end stage renal disease and he is advised to undergo renal transplantation. The petitioner is willing to donate her kidney to her husband Sri.Rajendran R and is found to be a suitable donor. The petitioner intends to undergo kidney transplantation for her husband Sri.Rajendran R in ASTER W.P.(C) No.28767/2020 4 Medcity Hospital. My attention is drawn to the certificate at Ext.P4 issued by the Department of Nephrology of the ASTER Medcity Hospital for pointing out that the husband of the petitioner is advised to undergo renal transplantation. Learned counsel for the petitioner contended that when the petitioner approached the 1st respondent-ESI Corporation for seeking medical benefits for her husband Sri.Rajendran R, she came to know that her employer has not remitted employer's contribution to the ESI Corporation and therefore, she is not entitled for medical benefits for renal transplantation of her husband. She came across report, Ext.P5, issued by the respondent-ESI Corporation showing that she is not entitled for super specialty treatment of her husband Sri.Rajendran R for the reason that she has not completed six months of service from the date of registration and contribution is less than 78 days in a contribution period. The Branch Manager of the respondent- Corporation vide communication at Ext.P6 has informed that as online contribution particulars for the contribution periods April 2019 to September 2019 and October 2019 to March 2020 are showing "no records", the family of the petitioner is not eligible for super specialty treatment for the W.P.(C) No.28767/2020 5 benefit period 01.07.2020 to 31.12.2020. With this, learned counsel for the petitioner urged that failure to remit contribution by the employer of the insured person is not a criteria to deny medical benefits to the dependents of the insured person. The ESI Act, 1948 provides for machinery to recover contribution and dues with penalty and therefore, in submission of the learned counsel for the petitioner, the action of denying super specialty treatment to the husband of the petitioner by respondents 1 to 3 is per se illegal.
3. So far as invocation of writ jurisdiction of this Court is concerned, learned counsel for the petitioner has relied on the judgments of the Hon'ble Apex Court in the matter of Commissioner of Income Tax and others vs. Chhabil Dass Agarwal reported in 2013 KHC 4619 and also in Maharashtra Chess Association vs. Union of India and Others reported in 2019 KHC 6725 for contending that, as the respondent-ESI Corporation has not acted in accordance with the provisions of the enactment, the petitioner is entitled to avail writ jurisdiction of this Court.
4. Learned counsel appearing for the 4th respondent- employer, relying on the counter affidavit, argued that the W.P.(C) No.28767/2020 6 petitioner is in employment of the 4th respondent from June 2010 and since then, till date, from time to time, the contribution payable under the ESI Act has been deducted from her salary and therefore, she is an insured person. It is further argued that the 4th respondent-school could not remit the ESI contribution for the period from April 2019 to March 2020 because of severe flood. The office of the school was shifted because of the flood, files were missing, fees collection was affected and Covid-19 pandemic resulted in lockdown. Therefore, the employer could not remit the amount of contribution. Learned counsel for the 4th respondent, by relying on the letter dated 01.12.2020, Ext.R4(a), submitted that the 4th respondent vide this communication had shown its readiness to remit balance amount of contribution and requested the ESI Corporation to take necessary steps for accepting the same. It is further urged that the respondent- ESI Corporation had resorted to issuing garnishee order on 07.10.2020 and accordingly, the banker of the 4th respondent had remitted an amount of Rs.65,682 /- to the respondent-ESI Corporation. My attention is drawn to the communication at Ext.R4(b) issued by the respondent-ESI Corporation W.P.(C) No.28767/2020 7 acknowledging receipt of amount of Rs.65,682/- from the banker of the 4th respondent.
5. The respondent-ESI Corporation opposed the writ petition by filing two counter affidavits. Relying on the averments made in those counter affidavits, learned counsel for respondents 1 to 3 argued that there is no provision for providing super specialty medical treatment in the ESI Act. However, to avoid and mitigate the hardship faced by the insured person, few private hospitals rendering super specialty treatment, which is not available in the ESI hospital, are empanelled by the ESI Corporation. This facility of super specialty medical treatment is provided by virtue of the enabling provisions of Section 19 of the ESI Act for promoting measures for the improvement of health and welfare of the insured person. By drawing my attention to Ext.R1(a), Office Memorandum dated 29/10/2018, learned counsel for the respondent-ESI Corporation argued that the said Corporation, in its 175th meeting, approved revised eligibility criteria for giving super specialty treatment to the insured persons and their family members. Learned counsel placed reliance on instruction Nos.1 to 3 contained in the Office memorandum W.P.(C) No.28767/2020 8 dated 29.10.2018 at Ext.R1(a) which reads thus:
"1. The Insured Person who has contributed for 78 days in a contribution period be allowed to avail super specialty treatment provided he/she has completed minimum of six months of insurable employment i.e. from the date of registration on IP Portal.
2. The members of the family of the Insured Person be allowed super specialty treatment if the Insured Person has contributed 156 days (78 days in each contribution period) and have completed minimum one year of insurable employment from the date of registration.
3. In both the above cases, the employer should have filed the monthly contribution as per section 44 read with regulation 26(a) failing which Regulation 31 of the ESI (General) Regulation, 1950".
6. With the aid of provisions of the Office Memorandum at Ext.R1(a), learned counsel for the respondent-ESI Corporation argued that the petitioner has not paid contribution during the contribution period from April 2019 to September 2019, October 2019 to March 2020 and from April 2020 to September 2020. The petitioner had made contribution only upto 31.03.2019 and thereafter, there is no contribution from 01.04.2019. As conditions of the Office Memorandum at W.P.(C) No.28767/2020 9 Ext.R1(a) are not satisfied, the petitioner is not eligible for reimbursement of expenses of super specialty medical treatment of her husband Sri.Rajendran R. It is also argued that deduction of ESI contribution without remitting the same to the insurance fund is an illegal act. According to the learned counsel for the respondent-ESI Corporation, the communication of the employer for remitting the contribution and reasons for non-paying the same in due time is a belated attempt to avoid liability. The employer had failed to send returns of contribution as per Regulation 26(a) of the Employees' State Insurance (General) Regulations, 1950 and also to remit the contribution. The reasons for not remitting the contribution in the prescribed period are not convincing. It is further argued that one time opportunity was given to the employer to pay contribution by the Director General of the respondent-ESI Corporation and till 15.01.2021, the employers were allowed to file returns. By the garnishee order for June 2010 to March 2017, the dues came to be recovered and the Corporation has claimed Rs.54,479/- for the period from April 2019 to March 2020 after filing of the writ petition. With this, it is argued that the employer purposefully omitted to pay W.P.(C) No.28767/2020 10 contribution and therefore, the petitioner is not entitled for any relief.
7. By relying on the judgment of the Hon'ble Supreme Court in the matter of Punjab National Bank and Others vs. Athmanand Singh and Others reported in (2020) 6 SCC 256, learned counsel for the respondent-ESI Corporation argued that Section 75 of the ESI Act provides for alternate, most efficacious and statutory remedy of approaching the Employees' Insurance Court and therefore, the writ petition, as framed and filed, is not maintainable.
8. I have considered the submissions so advanced and perused the materials placed before me including the counter affidavits filed by the parties.
9. The petitioner is claiming reliefs relying on the provisions of the ESI Act. Undoubtedly, the ESI Act is a piece of social security legislation. It is stated that the social security legislation is a pragmatic instrument of social order. It is well settled that a piece of social security legislation intended to confer specified benefits on employees or dependents of the employee to whom it applies should not be construed in a technical or narrow sense. Such welfare legislation should always receive a liberal and W.P.(C) No.28767/2020 11 beneficent construction from the court. Keeping in mind these principles, if one peruses the ESI Act, then it is clear that the same is legislated for the benefit of employees. Section 26 of the said Act creates an Employees' State Insurance Fund comprising of contributions paid under the said Act and other money received thereunder. Grants, donations and gifts received by the ESI Corporation are also included in such insurance fund. The purposes on which the amount under such fund can be spent are found in the provisions of Section 28 of the ESI Act. Among other purposes, the prominent purpose for creation of this insurance fund is to spend the amount under the fund for payment of benefits and provision of medical treatment and attendance to the insured persons and where the medical benefit is extended to their families. The expenses incurred on such medical benefits can be defrayed from the insurance fund. The insurance fund is mainly derived from contributions from employers and employees. The ESI Act provides for several benefits to employees including sickness benefit, maternity benefit, disablement and dependents' benefit, so also medical benefits in the form of medical care and treatment of the insured person as well as his dependents. The scope of this welfare legislation came to be increased from time to W.P.(C) No.28767/2020 12 time for providing more benefits to employees. By amendments made from time to time, provision for grant of funeral benefits, enlargement of medical benefits, enhancement of age of dependent children and inclusion of infirm children for benefit without any age restriction is done. Even apprentices appointed under standing orders are included in the definition of the employees for granting benefits conferred by this Act to them. Provision for benefits to workers for the accidents happening while commuting to the place of work and vice versa is also made by suitably amending the ESI Act.
10. In the wake of contention of the learned counsel appearing for the ESI Corporation that there is no provision for super specialty medical treatment in the ESI Act and that due to non-payment of contribution of the petitioner, the husband of the petitioner is not entitled for expenses for renal transplantation by the respondent-ESI Corporation, let us put on record the relevant provisions of the ESI Act for better understanding of the controversy involved in the instant case. However, at the same time, it needs to be noted that the respondent-ESI Corporation has not disputed the fact that the 4 th respondent is an insurable establishment to which the ESI Act is applicable. It has also not W.P.(C) No.28767/2020 13 disputed the fact that the petitioner is an insured person as defined by Section 2(14) of the ESI Act. The contention of the respondent-ESI Corporation is limited to the extent that the contribution of the petitioner and her employer is not remitted to the insurance fund, thereby making the petitioner disentitled for claiming the medical benefit. As has been stated earlier, the insurance fund mainly comprises of contribution of the employer and employees. Section 39 of the ESI Act deals with contribution payable under the ESI Act by the employer as well as the employee and Section 40 makes it clear that any sum deducted by the principal employer from the wages of the employee shall be deemed to have been entrusted to the employer by the employee for the purpose of paying the contribution in respect of which such sum is deducted. Thus the employer is relegated to the position of a trustee when he deducts employees' contribution payable under the ESI Act. The liability to remit his contribution as well as the employees' contribution to the insurance fund is that of the employer. With this, following are the provisions of relevant Sections under the ESI Act dealing with liability to pay compensation and its remittance to the ESI Corporation as well as the mode of recovery of such contribution W.P.(C) No.28767/2020 14 by the ESI Corporation from the employer.
Section 39 reads thus:
"39. Contributions.- (1) The contribution payable under this Act in respect of an employee shall comprise contribution payable by the employer (hereinafter referred to as the employer s contribution) and contribution payable by the employee (hereinafter referred to as the employee s contribution) and shall be paid to the Corporation.
(2) The contribution shall be paid at such rates as may be prescribed by the Central Government:
Provided that the rates so prescribed shall not be more than the rates which were in force immediately before the commencement of the Employees State Insurance (Amendment) Act, 1989.] (3) The wage period in relation to an employee shall be the unit in respect of which all contributions shall be payable under this Act.
(4) The contributions payable in respect of each wage period shall ordinarily fall due on the last day of the wage period, and where an employee is employed for part of the wage period, or is employed under two or more employers during the same wage period, the contributions shall fall due on such days as may be specified in the regulations.
(5) (a) If any contribution payable under this Act is not paid by the principal employer on the date on which such contribution has become due, he shall be liable to pay simple interest at the rate of W.P.(C) No.28767/2020 15 twelve per cent. per annum or at such higher rate as may be specified in the regulations till the date of its actual payment:
Provided that higher interest specified in the regulations shall not exceed the lending rate of interest charged by any scheduled bank. (emphasis supplied)
(b) Any interest recoverable under clause (a) may be recovered as an arrear of land revenue or under section 45C to section 45-I. Explanation. In this sub-section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934)".
Section 45 B reads thus:
"45B.Recovery of contributions.-Any contribution payable under this Act may be recovered as an arrear of land revenue". (emphasis supplied) Section 45G reads thus:
45G. Other modes of recovery.-
(1) Notwithstanding the issue of a certificate to the Recovery Officer under section 45C, the Director General or any other officer authorised by the Corporation may recover the amount by any one or more of the modes provided in this section.
(2) If any amount is due from any person to any W.P.(C) No.28767/2020 16 factory or establishment or, as the case may be, the principal or immediate employer who is in arrears, the Director General or any other officer authorised by the Corporation in this behalf may require such person to deduct from the said amount the arrears due from such factory or establishment or, as the case may be, the principal or immediate employer under this Act and such person shall comply with any such requisition and shall pay the sum so deduct ed to the credit of the Corporation:
Provided that nothing in this sub-section shall apply to any part of the amount exempt from attachment in execution of a decree of a civil court under section 60 of the Code of Civil Procedure, 1908 (5 of 1908).
(3) (i) The Director General or any other officer authorised by the Corporation in this behalf may, at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the factory or establishment or, as the case may be, the principal or immediate employer or any person who holds or may subsequently hold money for or on account of the factory or establishment or, as the case may be, the principal or immediate employer, to pay to the Director General either forthwith upon the money becoming due or being held or at or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due from the factory or establishment or, as the case may be, the principal or W.P.(C) No.28767/2020 17 immediate employer in respect of arrears or the whole of the money when it is equal to or less than that amount...".
(emphasis supplied).
Section 68 reads thus:
"68. Corporations rights where a principal employer fails or neglects to pay any contribution.-
(1) If any principal employer fails or neglects to pay any contribution which under this Act he is liable to pay in respect of any employee and by reason thereof such person becomes disentitled to any benefit or entitled to a benefit on a lower scale, the Corporation may, on being satisfied that the contribution should have been paid by the principal employer, pay to the person the benefit at the rate to which he would have been entitled if the failure or neglect had not oc curred and the Corporation shall be entitled to recover from the principal employer either.- (i) the difference between the amount of benefit which is paid by the Corporation to the said person and the amount of the benefit which would have been payable on the basis of the contributions which were in fact paid by the employer; or
(ii) twice the amount of the contribution which the employer failed or neglected to pay, whichever is greater.
(2) The amount recoverable under this section may be recovered as if it were an arrear of land-revenue or under section 45C to section 45-I". (emphasis supplied)
11. The above provisions of the ESI Act makes it clear that it is the duty of the employer to pay his part of contribution as W.P.(C) No.28767/2020 18 well as that of the employees to the ESI Corporation and if he fails to do so, the same can be recovered from him by the ESI Corporation as per the modes of recovery prescribed in the statute. The employer is also made liable to pay prescribed interest for delayed payment of contribution to the insurance fund. The amount payable under the ESI Act can be recovered as arrears of land revenue from the employer of the insurable establishment. The ESI Corporation can resort to garnishee proceedings for recovery of any amount due and payable as contribution from the employer or any other person.
12. The most important provision in this social security legislation is that under Section 68 of the ESI Act. It deals with the contingency when the principal employer fails or neglects to pay any contribution to the insurance fund. As per this provision, in such contingency, if any insured person becomes disentitled to any benefit or becomes entitled to a benefit on a lower scale, then the respondent-ESI Corporation is duty bound to pay such insured person the benefit at the rate to which he would have been entitled if the failure or neglect had not occurred. The respondent- ESI Corporation in such eventuality can recover from the principal employer the difference between the amount of benefit which is W.P.(C) No.28767/2020 19 paid by the Corporation to such person and the amount of benefit which would have been payable on the basis of the contributions which were in fact paid by the employer. The employer can be penalised by recovering twice the amount of contribution which the employer failed or neglected to pay, provided it is greater than the difference.
13. At this stage, it is also relevant to note that the term 'insured person' as defined by Section 2(14) of the ESI Act covers an employee in respect of which contributions were payable meaning thereby that only because of non-remittance of contribution of such employee, he cannot be made disentitled to the benefit available for the insured person. Thus, these provisions and importantly the provisions of Section 68 of the ESI Act unerringly points out that even if the employer fails or neglects to pay any contribution, as a social security measure, the ESI Corporation is duty bound to provide the benefits accrued under the Act to the insured person, albeit reserving its rights to effect necessary recovery from the principal employer. Thus it does not lie in the mouth of the ESI Corporation that in case the contribution payable to the insurance fund is not paid or remitted by the employee or the employer, then even though, such W.P.(C) No.28767/2020 20 employee is an insured person under the scheme of the ESI Act, he shall become disentitled for the benefits prescribed by the ESI Act. Once a person becomes an employee of the insurable establishment to which the provisions of the ESI Act becomes applicable and when such person becomes an employee in respect of whose contributions are or were payable under the Act, such insured person is bound to get benefits prescribed by the ESI Act irrespective of actual remittance of contribution by the employer to the insurance fund.
14. In the case in hand, the 4 th respondent in its duly sworn testimony has candidly accepted the fact that the contribution of the petitioner payable under the ESI Act has been recovered by them right from June 2010 upto date. There is a certificate to that effect which is at Ext.P2. If the same along with employer's contribution is not remitted by the employer to the respondent- ESI Corporation, then it becomes the duty of the respondent-ESI Corporation to resort to the steps prescribed by the ESI Act for recovery of the contribution from the employer. In fact the respondent-ESI Corporation has resorted to garnishee proceedings and has recovered part of the contribution payable by the employer from the Banker of the employer as seen from W.P.(C) No.28767/2020 21 Ext.R4(b) communication issued by the recovery officer of the respondent-ESI Corporation acknowledging the receipt of Rs.65,682/-from the banker of the employer and revoking the garnishee order. Even in the additional counter affidavit of the respondent-ESI Corporation, there is a statement to the effect that it has claimed Rs.54,479/- from April 2019 to March 2020 from the employer, after filing of the writ petition. The ESI Act empowers the ESI Corporation to take steps for recovery of contribution as well as interest on delayed payment of contribution by resorting to the recovery and other proceedings. The inaction on the part of the respondent-ESI Corporation in not resorting to or belatedly resorting to the steps for recovery of contribution from the employer at any rate cannot make the insured person or his dependents disentitled for the benefits provided by the ESI Act in view of the provisions of Section 68 of the ESI Act. Hence I see no merit in the contention of the learned counsel for the respondent-ESI Corporation that because of non payment of contribution and in view of provisions of clauses 1 to 3 of the Office Memorandum dated 29.10.2018, Ext.R1(a), the petitioner is not entitled for claiming medical benefits for the renal ailment of her husband. The provisions of the Office W.P.(C) No.28767/2020 22 Memorandum at any rate cannot supersede the statutory provisions engrafted in Section 68 of the welfare statute i.e. the ESI Act.
15. Now let us examine the merits of the submissions made by the respondent-ESI Corporation that the husband of the petitioner is not entitled for super specialty medical treatment for renal transplantation. Section 19 of the ESI Act deals with powers of the ESI Corporation to promote the measures for health and welfare of insured persons. In addition to the benefits specified in the ESI Act, the respondent-ESI Corporation is empowered to incur expenditure from the insurance fund for promoting measures for the improvement of health and welfare of the insured person. The welfare of the insured person encompasses in its scope the medical treatment for dependent family members of such insured person. That is how, even as admitted by the respondent-ESI Corporation, it has framed policy reflected in the Office Memorandum at Ext.R1(a) for granting benefits of super specialty treatment to the insured persons and their family members. In this view of the matter, the husband of the petitioner becomes entitled for super specialty medical treatment for his renal transplantation by accepting the kidney offered by W.P.(C) No.28767/2020 23 the petitioner as donor. I have already held that non recovery of compensation by the ESI Corporation from the employer would not disentitle the petitioner for claiming this benefit in view of the provisions of Section 68 of the ESI Act. It is apposite to quote the relevant provisions of Sections 19, 46, 56 and 57 of the ESI Act which reads thus:
Section 19 reads thus:
"19. Corporations power to promote measures for health, etc., of insured persons.-The Corporation may, in addition to the scheme of benefits specified in this Act, promote measures for the improvement of the health and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured and may incur in respect of such measure expenditure from the funds of the Corporation within such limits as may be prescribed by the Central Government".
Section 46 reads thus:
"46. Benefits.- (1) Subject to the provisions of this Act, the insured persons, their dependants or the persons hereinafter mentioned, as the case may be, shall be entitled to the following benefits, namely:-
(a) xxx
(b) xxx
(c) xxx
(d) xxx
W.P.(C) No.28767/2020 24
(e) medical treatment for and attendance on
insured persons (hereinafter referred to as medical benefit ....."
Section 56 reads thus:
"56. Medical benefit .- (1) An insured person or (where such medical benefit is extended to his family) a member of his family whose condition requires medical treatment and attendance shall be entitled to receive medical benefit.
(2) Such medical benefit may be given either in the form of out-patient treatment and attendance in a hospital or dispensary, clinic or other institution or by visits to the home of the insured person or treatment as in-patient in a hospital or other institution.
(3) A person shall be entitled to medical benefit during any [period] for which contributions are payable in respect of him or in which he is qualified to claim sickness benefit or maternity benefit or is in receipt of such disablement benefit as does not disentitle him to medical benefit under the regulations:
Provided that a person in respect of whom contribution ceases to be payable under this Act may be allowed medical benefit for such period and of such nature as may be provided under the regulations:
Provided further that an insured person who ceases to be in insurable employment on account of permanent disablement shall continue, subject to payment of contribution and such other conditions as may be prescribed by the Central Government, to receive medical W.P.(C) No.28767/2020 25 benefit till the date on which he would have vacated the employment on attaining the age of superannuation had he not sustained such permanent disablement:
Provided also that an insured person who has attained the age of superannuation, a person who retires under a Voluntary Retirement Scheme or takes premature retirement, and his spouse shall be eligible to receive medical benefits subject to payment of contribution and such other conditions as may be prescribed by the Central Government.
Explanation. In this section, "superannuation", in relation to an insured person, means the attainment by that person of such age as is fixed in the contract or conditions of service as the age on the attainment of which he shall vacate the insurable employment or the age of sixty years where no such age is fixed and the person is no more in the insurable employment".
Section 57 reads thus:
"57. Scale of medical benefit.- (1) An insured person and (where such medical benefit is extended to his family) his family shall be entitled to receive medical benefit only of such kind and on such scale as may be provided by the State Government or by the Corporation, and an insured person or, where such medical benefit is extended to his family, his family shall not have a right to claim any medical treatment except such as is provided by the dispensary, hospital, clinic or other institution to which he or his family is allotted, or as may be provided by the regulations.
(2) Nothing in this Act shall entitle an insured W.P.(C) No.28767/2020 26 person and (where such medical benefit is extended to his family) his family to claim reimbursement from the Corporation of any expenses incurred in respect of any medical treatment, except as may be provided by the regulations".
16. A bare perusal of the provisions of Section 56 makes it clear that the respondent-ESI Corporation is duty bound to provide medical benefits to a member of family of the insured person whose condition requires medical treatment and attendance. This provision does not exclude super specialty medical treatment. All super specialty medical treatments certainly and essentially comes under the purview of the term medical treatment. The Office Memorandum at Ext.R1(a) has certainly made husband of the petitioner entitled to receive the benefits of super specialty medical treatment with regard to renal transplantation by accepting kidney from the donor.
17. Now the question which falls for consideration is whether the writ petition, as framed and filed, is maintainable in the wake of alternate and most efficacious remedy of approaching the Insurance Court under Section 75 of the ESI Act. The case in hand is in respect of medical treatment of dependent family member of the insured person who is suffering from end stage W.P.(C) No.28767/2020 27 renal disease requiring immediate renal transplantation. The claim for super specialty medical treatment of her husband made by the insured person is refuted by the so called caretaker of the social security scheme with a reason that the contribution payable to the fund is not remitted. An attempt is made to make it as a fault of the petitioner because in the counter affidavits, the respondent- ESI Corporation has repeatedly stated that the petitioner has not paid the contribution during the contribution period. It cannot be said that the authorities of the ESI Corporation are oblivious of the fact that it is the employer who is to deduct employees' share and then to remit it along with his own share to the Insurance Fund of the ESI Corporation. Oblivious to the statutory provisions of Section 68 so also other relevant Sections of the ESI Act, the impugned action of declaring the family of the petitioner-insured person as non eligible for super specialty treatment is taken by the respondent-ESI Corporation by the communication dated 02.12.2020, Ext.P6. In the matter of Chhabil Dass Agarwal (supra), following are the observations of the Hon'ble Supreme Court found in paragraph 15, laying down the law as to when despite availability of alternate remedy this Court can exercise its writ jurisdiction.
W.P.(C) No.28767/2020 28
"15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation".
18. In the case in hand, the respondent-statutory authority i.e. the ESI Corporation has failed to act in accordance with the provisions of the ESI Act making this as a fit case to exercise its writ jurisdiction by this Court. Ultimately, this Court has to take a holistic view of the facts as submitted in the writ petition because declining to exercise writ jurisdiction in the wake of availability of alternate remedy is nothing but a self imposed restriction.
19. In the matter of Punjab National Bank and Others (supra), the Hon'ble Apex Court has examined several rulings for W.P.(C) No.28767/2020 29 deciding whether the High Court had entertained the writ petition correctly or not despite availability of alternate remedy. It is held therein that the plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or instrumentality of the State is arbitrary and unreasonable so as to violate constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. In the case in hand, the family member of the insured person is in immediate need of medical treatment because of end stage renal disease. The act of the respondent-ESI Corporation is totally contrary and in utter disregard to the provisions of the ESI Act and violating the provisions of Article 14 of the Constitution of India. The alternate remedy of approaching the Insurance Court cannot be termed as efficacious remedy because of the delay caused in determination of cases by such Tribunals. In this view of the matter, it cannot be said that the writ petition, as framed and filed, is not maintainable.
In the result, this writ petition is allowed in terms of the prayer clauses made by the petitioner. The action of W.P.(C) No.28767/2020 30 respondents 1 to 3 in declaring the family of the petitioner i.e. husband as not eligible for super specialty treatment for renal transplantation is declared as illegal and consequently, the communication at Ext.P6 is quashed and set aside. It is hereby declared that the petitioner as well as her husband Sri.Rajendran R are entitled to get super specialty medical benefits under the ESI Act in respect of renal transplantation. Respondents 1 to 3 should take immediate steps for providing super specialty medical benefits to the petitioner and her husband Sri.Ranjendran.R in connection with renal transplantation forthwith.
Sd/-
A.M.BADAR JUDGE smp W.P.(C) No.28767/2020 31 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 19/11/2020.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 01/12/2020 SHOWING THE DEDUCTION TOWARDS THE ESI CONTRIBUTION FROM THE PETITIONER.
EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE E-PEHCHAN CARD OF THE PETITIONER WITH INSURANCE NO.4810399074.
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE DEPARTMENT OF NEPHROLOGY, ASTER MEDICITY, DATED 20/11/2020.
EXHIBIT P5 THE REPORT GENERATED AS AGAINST LOGIN USER 4810399074 DATED 10/11/2020.
EXHIBIT P6 TRUE PHOTOCOPY OF THE INTIMATION OF THE 3RD RESPONDENT, DATED 2/12/2020.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE OFFICE MEMORANDUM No.V-
14/11/5/2018-MED.I(SST) DTD.29.10.2018 ISSUED BY DIRECTOR GENERAL, ESI CORPORATION.
EXHIBIT R1(b) TRUE COPY OF THE CONTRIBUTION DETAILS OF THE PETITIONER FURNISHED IN THE ESIC PORTAL.
EXHIBIT R1(c) TRUE COPY OF THE NOTICE DATED 16-3-2020 ISSUED BY THE INSURANCE COMMISSIONER (REV).
EXHIBIT R1(d) TRUE COPY OF THE LETTER DATED 18-3-2020 OF THE DIRECTOR GENERAL OF THE ESI CORPORATION.
EXHIBITR1(e) TRUE COPY OF THE NOTICE DATED 13-4-2020 ISSUED BY THE INSURANCE COMMISSIONER.
W.P.(C) No.28767/2020 32EXHIBIT R1(f) TRUE COPY OF THE LETTER DATED 18-5-2020 ISSUED BY THE ESIC HEADQUARTERS ADDRESSED TO ALL REGIONAL DIRECTOR, JDs/DDs(i/c).
EXHIBIT R1(g) TRUE COPY OF THE LETTER NO.P-
11/12Misc./SST Misuse/2019-Rev.II DATED 1-1-2021 OF THE ESIC HEADQUARTERS.
EXHIBIT R1(h) TRUE COPY OF THE GARNISHEE ORDER DATED 7-10-2020 ISSUED BY THE ESI CORPORATION.
EXHIBIT R1(i) TRUE COPY OF THE C-6 REGISTER.
EXHIBIT R4(a) TRUE COPY OF LETTER DTD.1.12.2020 SENT BY CHAIRMAN OF 4TH RESPONDENT SCHOOL TO THE 2ND RESPONDENT.
EXHIBIT R4(b) TRUE COPY OF LETTER
No.48000346060001302/RECOVERY DTD.
5.11.2020 OF 2ND RESPONDENT.
True Copy
P.S to Judge
smp