Kerala High Court
Anusree.V vs The Director General on 17 August, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938
WP(C).No. 28442 of 2016 (E)
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PETITIONER(S):
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ANUSREE.V, AGED 18 YEARS,
D/O HAREENDRAN M, MUNDAYAT HOUSE,
VELLUR P.O, PAYYANNUR, KANNUR DISTRICT.
BY ADVS.SRI.M.SASINDRAN
SRI.V.VENUGOPAL
RESPONDENT(S):
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1. THE DIRECTOR GENERAL
PANCHDEEP BHAWAN, ESI CORPORATION HQ OFFICE,
C.I.G. MARG, NEW DELHI 110 002.
2. THE REGIONAL DIRECTOR,
SUB REGIONAL OFFICE, ESI CORPORATION,
KOZHIKODE 673 002
3. THE BRANCH MANAGER,
ESI CORPORATION, PAYYANNUR 670 307,
KANNUR DISTRICT.
4. THE EMPLOYEES STATE INSURANCE CORPORATION ,
PANCHDEEP BHAWAN,ESI CORPORATION
HQ OFFICE, C.I.G. MARG,NEW DELHI 110 002,
REPRESENTED BY THE DIRECTOR GENERAL.
*ADDL.R5 IMPLEADED :
5. THE PRINCIPAL, ESI MEDICAL COLLEGE,
UPPILIPALAYAM, COIMBATORE, TAMIL NADU,
PIN 641005.
*ADDL. R5 IS IMPLEADED AS PER ORDER DT 28/9/2016
IN IA NO.14872/2016
R1 TO R4 BY ADV. SRI.P.SANKARANKUTTY NAIR, SC,
SRI.K.SANDESH RAJA, SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-09-2016,THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bp
WP(C).No. 28442 of 2016 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: A TRUE COPY OF THE RELEVANT EXTRACTS FROM THE
ADMISSION NOTICE INVITING APPLICATION FOR
ADMISSION FOR WARDS OF INSURED PERSONS IN ESI
MEDICAL COLLEGES, DATED 17-08-2016
EXHIBIT P2: A TRUE COPY OF THE CONTRIBUTION HISTORY OF
NOVEMBER 2010, IN RESPECT OF THE EMPLOYER OF
THE PETITIONER'S FATHER.
EXHIBIT P3: A TRUE COPY OF THE FILLED IN APPLICATION FORM
OF THE PETITIONER ALONG WITH THE REQUIRED
DOCUMENTS FOR ADMISSION UNDER THE INSURED
PERSON QUOTA.
EXHIBIT P4: TRUE COPY OF THE TEMPORARY IDENTITY
CERTIFICATE ALONG WITH THE ANNEXURE I AND II
CERTIFICATES.
EXHIBIT P4(A): A TRUE COPY OF THE FORM V RETURN OF
CONTRIBUTION TO THE ESI CORPORATION.
EXHIBIT P5: A TRUE COPY OF THE ANNEXURE II IN WHICH THE
CERTIFICATE IS TO BE ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P6: COPY OF THE WARD OF INSURANCE PERSON
CERTIFICATE DT 26/8/2016 ISSUED TO THE
PETITIONER.
EXHIBIT P7: COPY OF THE NOTIFICATION D T 7/9/2016 ALONG
WITH THE MERIT LIST OF PROVISIONALLY ELIGIBLE
CONDIDATES.
EXHIBIT P8: COPY OF THE ALLOTMENT LETTER ISSUED TO THE
PETITIONER, GRANTING ALLOTMENT TO THE ESI
MEDICAL COLLEGE, COIMBATORE.
EXHIBIT P9: COPY OF THE RECEIPT OF DD FOR RS 24.000/-
RESPONDENT(S)' EXHIBITS :
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EXT.R1: COPY OF THE CERTIFICATE ISSUED BY BRANCH
MANGER, PAYYANNUR.
EXT.R1(A): COPY OF THE MONTHLY CONTRIBUTION HISTORY OF
THE EMPLOYER FOR THE MONTH OF APRIL 2016.
//true copy//
p.s.to judge
bp
SHAJI P. CHALY, J.
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W.P.(C) No.28442 of 2016
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Dated this the 28th day of September, 2016
JUDGMENT
Petitioner is the daughter of one Hareendran M., who is an employee enrolled in the Employees' State Insurance Scheme [hereinafter called the 'ESI Scheme'], in November, 2010. This writ petition is filed by the petitioner seeking direction to the 2nd respondent to issue 'Ward of Insured Persons Certificate' to the petitioner forthwith, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:
2. The ESI Corporation is running Medical Colleges in different States. There is a quota prescribed for employees insured under the ESI Corporation, which is the ESIC management quota. For the purpose of getting admission in the insured persons quota, the wards of the employees enrolled in the ESI will have to submit a separate application to the ESI Corporation, along with the details regarding qualification in the National Eligibility-cum-Entrance Test [hereinafter called 'NEET']. In order to become eligible for the W.P.(C) No.28442 of 2016 2 purpose of admission in the insured persons quota, Clause 8 of Ext.P1 Admission Notice is the appropriate criteria. Clause 8 of Ext.P1 read thus:
"8. Insured person for the purpose of availing benefit of Insured Persons (IPs) Quota for his/her wards shall be, as under "The 'Insured Person' shall be an 'employee' as defined in the ESI Act; and he/she should have been in continuous insurable employment for a minimum period of five years as on 1st January of the year of admission and should have paid at least 78 days of contribution in each Contribution Period, during this five year period. The 5 year period would be counted from the date of entry into the ESI Scheme. For employees who entered the Scheme prior to 9th June, 2011, the date of entry into the Scheme for the purpose of availing benefit of Insured Persons (IPs) Quota for his/her wards would be the date of submission of 'Declaration Form' by the employer in respect of the employee concerned at the Branch Office or another appropriate office of the ESIC. For employees who entered the Scheme after 9th June, 2011, the date of entry into the Scheme for the above purpose would be the date of registration available in the IP database of the ESIC. In case there is default or delay on the part of the employer in getting itself of the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay. Any period prior to the date of entry described W.P.(C) No.28442 of 2016 3 above would not be counted towards the 05 year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota."
3. Therefore, the date of commencement of the period would be the date of submission of declaration form by the employer if the employee entered the scheme prior to 9th June, 2011.
4. Petitioner's father entered service of the Janatha Charitable Society, Velloor, Kannur District, an institution covered by the ESI Act. Petitioner's father was enrolled in the ESI Corporation and commenced payment of contribution from 01.11.2010, which, according to the petitioner, is evident from Ext.P2 contribution history of November, 2010, in respect of the employer of petitioner's father. Ext.P2 would show that contribution payment commenced from November, 2010 itself. Petitioner's father completed 5 years period after enrollment in ESI before 01.01.2016 and according to the petitioner, petitioner is eligible for admission under the 'Insured Persons Quota', since she is sufficiently qualified as provided under clause 8 extracted above.
W.P.(C) No.28442 of 2016 4
5. Petitioner has passed Plus Two course and qualified in the NEET examination. As per Ext.P1, a certificate namely "Ward of Insured Person Certificate" is to be submitted along with the application. Petitioner's application for admission under the quota has been submitted before the 3rd respondent for verification, and after verification of the particulars by the Branch Manager of the ESIC, the application form was submitted before the 2nd respondent for the purpose of 'Ward of Insured Persons Certificate', evident from Ext.P3. For the purpose of issuance of certificate, petitioner has submitted an application along with the certificate issued by the Branch Manager, which would show that the declaration form in respect of petitioner's father's enrollment was received in the Branch Office before 01.01.2011 and that he was an employee under the ESI Act as on 01.01.2016. A true copy of the temporary identity certificate along with Annexure-I and II certificates are produced as Ext.P4. Form V Return of Contribution to the ESI Corporation is produced as Ext.P4(a). Therefore, according to the petitioner, petitioner satisfies the condition regarding number of days of contribution during the 5 year period as contemplated in clause 8, and on submission W.P.(C) No.28442 of 2016 5 of details, 2nd respondent will have to issue a certificate in Annexure-II form, a true copy of which is produced as Ext.P5.
6. Petitioner when approached for the certificate, 2nd respondent refused to issue certificate stating that the date of registration in the IP data base of the ESIC in respect of petitioner's father is 20.01.2011 and therefore petitioner's father does not satisfy the condition of 5 year period prescribed to become eligible for 'Ward of Insured Persons Certificate'. According to the petitioner, as evident from Annexure-I, for those who entered the scheme prior to 09.06.2011, the 5 year period would commence from the date of declaration form and the registration date available in the IP data base is applicable to only those who entered the scheme after 09.06.2011. Therefore, according to the petitioner, the refusal on the part of the 2nd respondent to issue the certificate is absolutely illegal. It is in this background, this writ petition is filed.
7. Respondents have filed a counter affidavit denying the allegations and claims and demands raised by the petitioner. That apart, it is basically contended that even though petitioner's father is appointed on 01.11.2010, he is W.P.(C) No.28442 of 2016 6 enrolled under the scheme only on 20.01.2011 with Insurance No.5403409700 which obviously prove that the declaration form in respect of petitioner's father was not submitted by the employer before Branch Office, Payyannur before 01.01.2011. It is also stated, the contention raised in the writ petition that the declaration form was submitted before the Branch Office prior to 01.01.2011 is not tenable. The Branch Manager, Payyannur has certified that the employer has not submitted any manual Declaration Form in respect of petitioner's father so as to entail him for issuance of 'Ward of Insured Persons Certificate', evident from Ext.R1 communication. In order to secure an admission for MBBS Course in the quota for the academic session 2016-17, one of the conditions stipulated for admission is fulfilment of the conditions laid down in paragraph 8 of Annexure-I attached to the admission notice. According to the respondents, as per the conditions stipulated above, for employees who entered the scheme prior to 9th June, 2011, the date of entry to the scheme for the purpose of availing benefit of Insured Persons Quota for his/her wards would be the date of submission of 'Declaration Form' by the employer in respect of the employee concerned at the Branch Office or W.P.(C) No.28442 of 2016 7 at the appropriate office of the ESIC. Petitioner's father is appointed on 01.11.2010 and as such, his declaration form ought to have been submitted before the respondents for counting the five year period and issuance of 'Ward of Insured Persons Certificate'. However, the Branch Manager, Payyannur has categorically stated that manual Declaration Form in respect of the insured person has not been submitted before him. Petitioner has no case that petitioner's father has submitted the declaration form before any other offices of ESI Corporation. Therefore, according to the respondents, evident from Ext.P4, petitioner's father is enrolled in the scheme on 20.01.2011 and does not satisfy the condition of 5 years as on 1st January, 2016.
8. Respondents have also filed an additional counter affidavit contending that clause 8 of Ext.P1 admission notice clearly stipulates that the insured person shall be an 'employee' as defined under the ESI Act and petitioner's father Harindran is not an employee as defined under the Act with effect from 1st April, 2016, on account of the fact that he has crossed his gross wages above the wage limit of Rs.15,000/- prescribed under the ESI Act. The said fact is evidenced from W.P.(C) No.28442 of 2016 8 the computer generated monthly contribution history of the employer for the month of April, 2016, and the petitioner has suppressed the above fact from this Court, which is evident from Ext.R1(a) contribution history of the employer for the month of April, 2016. Therefore it is contended that, in that regard also, petitioner is not entitled to get admission under the quota in question earmarked for wards of employees.
9. Along with I.A.No.14872 of 2016, petitioner has produced Ext.P7, wherein the petitioner was included in the list of candidates in the quota for the academic session 2016-17, subject to further orders in this writ petition. So also, Ext.P8 is produced, allotting seat to the petitioner in the ESI Medical College, Coimbatore, Tamil Nadu, and the NEET rank of the petitioner shown therein as '16742'. Fees was also received from the petitioner, evident from Ext.P9.
10. Consequent to the interim order passed by this Court directing the 1st respondent to accept Ext.P3 application submitted by the petitioner for admission to MBBS Course without insisting for the 'Ward of Insured Persons Certificate', petitioner was admitted and consequential developments took place evident from Exts.P7 to P9. Due to the developments W.P.(C) No.28442 of 2016 9 occurred, petitioner has also filed an impleading petition to implead the Principal of the ESI Medical College, Uppilipalayam, Coimbatore, which was allowed and impleaded the said respondent as additional 5th respondent and consequential amendments were also filed seeking appropriate direction to the additional 5th respondent, and also stating, even though the salary of the petitioner's father exceeded Rs.15,000/- by virtue of the provisions of the ESI Act and the same may not have consequence overriding the provisions of clause 8 of Ext.P1.
11. Heard learned counsel for the petitioner and learned Standing Counsel for the ESI Corporation. Perused the documents on record and the pleadings put forth by the respective parties.
12. The question to be decided in this case is whether the petitioner is entitled to get admission to MBBS Course under 'Ward of Insured Persons' quota, as provided under clause 8 of Ext.P1. The certificate was refused by the respondents basically on two grounds: (1) the date of enrollment of the petitioner, evident from Ext.P4 is 20.01.2011 whereas in order to qualify as per clause 8, the insured person W.P.(C) No.28442 of 2016 10 should have completed 5 years as on 01.01.2016 in order to secure the admission in the academic session 2016-17, and (2) the petitioner's father is not an insured person since the salary of the petitioner's father exceeded Rs.15,000/-, as provided under the Act.
13. Learned counsel for the petitioner has invited my attention to Ext.P2, wherein the date of admission of the petitioner's father to the insurance scheme is shown as November, 2010, wherein also all other details of contribution, monthly wages etc. are provided. Therefore, according to learned counsel for the petitioner, Ext.P2 is an enabling document to show that petitioner was enrolled in the scheme during November, 2010 itself. Learned counsel has also invited my attention to Ext.P4, which is a temporary identity certificate wherein the date of appointment of the petitioner's father is shown as 01.11.2010. However, the date of registration is shown as 20.01.2011. Learned counsel for the petitioner has invited my attention to Sec.2(14) of the ESI Act, where "insured person" is defined, "means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is by reason thereof, entitled W.P.(C) No.28442 of 2016 11 to any of the benefits provided by this Act". Learned counsel has also invited my attention to Regulation 15 of the Employees' State Insurance (General) Regulations, 1950 [hereinafter called the 'Regulations'], which read thus:
"15. Allotment of Insurance Number.-- On receipt of the return required under regulation 14, the appropriate Office shall promptly allot an Insurance Number to each person in respect of whom the Declaration Form has been received unless it finds that the person had already been allotted an Insurance Number. The temporary Identification Certificate with Insurance Numbers marked thereon shall be detached and returned to the employer along with one copy of Form 3. The employer shall deliver the Temporary Identification Certificate to the employee to whom it relates, after obtaining his signature or thumb- impression thereon except in the case of an employee to whom a certificate of employment has been issued under regulation 17A. The Insurance Number allotted by the Regional Office to an employee and indicated in the copy of Form 3 returned to the employer, shall be entered by the employer on the register of employees [Form 6] and return of contributions".
14. On a reading of Regulation 15, it is evident that on receipt of the return required under regulation 14, the appropriate Office shall promptly allot an Insurance Number to each person in respect of whom the Declaration Form has been W.P.(C) No.28442 of 2016 12 received unless it finds that the person had already been allotted an Insurance Number. Relying on the said provision, it is the contention of the learned counsel for the petitioner that without allotting the number, no contribution can be received for and on behalf of an employee. Therefore, according to the counsel, it is a clear, strong and powerful indicative factor to show that while receiving the contribution as per Ext.P2, during November, 2010, already a number was allotted to the petitioner's father. Therefore, even if the date of registration is shown as 20.01.2011, an Insurance Number was allotted to the petitioner and accordingly as provided under Regulation 15, petitioner's father is entitled to be considered as a registered employee on and with effect from November, 2010.
15. That apart, it is also contended that, going by the tenor of clause 8 of Ext.P1 extracted supra, so far as an employee who has entered the scheme prior to June, 2011, the date of entry into the scheme for the purpose of availing benefits of 'Insured Persons Quota' would be the date of submission of Declaration Form by the employer in respect of the employee concerned at the Branch Office or other appropriate office of the ESIC. According to the learned W.P.(C) No.28442 of 2016 13 counsel, on a conceptual reading of Sec.2(14) of the ESI Act, Regulations 15 of Regulations, 1950 along with clause 8, it is distinctively clear that petitioner was enrolled as a member of the Scheme during November, 2010. Therefore, it is the contention of the learned counsel that, the stand adopted by the respondents that petitioner's father has not completed 5 years period enabling the petitioner to secure admission for the academic session, 2016-17 cannot be sustained in view of the fact that 5 year was completed by the petitioner's father during 2015 itself, taking the date of enrollment of the petitioner's father in the Scheme during November, 2010. I find force in the contention advanced by learned counsel for the petitioner taking into account clause 8 of Ext.P1, Sec.2(14) of the ESI Act and Regulation 15 of Regulations, 1950. Therefore, I am of the considered opinion that the said stand adopted by the respondents in that regard cannot be sustained under law and facts.
16. The second issue raised by the respondents is with respect to the enhancement of salary of the petitioner's father from 1st April, 2016 by which the limit prescribed under the Act viz., Rs.15,000/- is exceeded. It is true, evident from Ext.R1 W.P.(C) No.28442 of 2016 14
(a), salary of the petitioner's father was enhanced and accordingly he went out of insurance coverage. In order to meet the said contention raised by the respondents, learned counsel for the petitioner has invited my attention to the term 'employee' defined under Sec. 2(9) of the Act, which read thus: "employee' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies. Clause (b) thereunder reads: "any person so employed whose wages (excluding remuneration for overtime work) exceed (such wages as may be prescribed by the Central Government) a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed (such wages as may be prescribed by the Central Government) at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period.
17. Taking cue from the said provision, Rule 50 of the Employees State Insurance (Central) Rules, 1950 is pressed into service, which read thus: "the wage limit for coverage of an employee under sub-clause (b) of clause 9 of section 2 of the Act shall be fifteen thousand rupees a month; "provided W.P.(C) No.28442 of 2016 15 that an employee whose wages (excluding remuneration for overtime work) exceed fifteen thousand rupees a month at any time after and not before the beginning of the contribution period, shall continue to be an employee until the end of that period. So also, learned counsel has invited my attention to Regulation 4 of the Regulations, 1950, wherein contribution and benefit periods are described, which read thus:
"4. Contribution and benefit periods.-- Contribution periods and the corresponding benefit periods shall be as under:
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Contribution period Corresponding benefit period
---------------------------------------------------------------------- 1st April to 30th September 1st January of the year following to 30th June 1st October to 31st March 1st July to 31st December of the year following
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Provided that in the case of a person who becomes an employee within the meaning of the Act for the first time, the contribution period shall commence from the date of such employment in the contribution period current on that day and the corresponding benefit period for him shall commence on the expiry of the period of nine months from the date of such employment."
18. Therefore, it is the contention of the learned counsel for the petitioner that reading the said provisions along with clause 8, it is categoric and clear that even though the salary W.P.(C) No.28442 of 2016 16 of the petitioner's father was enhanced on 1st April, 2016, by virtue of the said provisions contained under the Act, Rules and the Regulations, a member shall continue to be an employee until the end of the contribution period. So, according to the learned counsel, merely by increasing the salary, petitioner's father has not gone out of the scheme, since only on the end of contribution period, the employee loses the benefit which according to Regulation 4 is 30th September and benefit period, 1st January of the year following the 30th June. Therefore, it is the contention of the learned counsel for the petitioner that the stand adopted by the respondents in that regard also cannot be sustained.
19. The foregoing discussion with respect to the contentions raised by the respondents shows that the stand adopted by the respondents that the petitioner's father is not qualified as prescribed under clause 8 of Ext.P1, in my considered opinion, cannot be sustained under law.
20. Resultantly, petitioner is entitled to succeed in this writ petition, and accordingly writ petition is allowed. Respondents are directed to complete all the formalities ensuring permission to the petitioner to attend the classes for W.P.(C) No.28442 of 2016 17 MBBS Course, following the procedures adopted by the 5th respondent as per Exts.P7 to P9, without fail.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
29.09.2016