Kerala High Court
Raja Raja Varma Thampuran A.K. vs Regional Director, E.S.I. Corporation on 7 December, 2005
Equivalent citations: (2006)3LLJ81KER
Author: J.M. James
Bench: J.M. James
JUDGMENT J.M. James, J.
1. The question that arises for consideration in this appeal is, whether an employee under the Employees' State Insurance Act, 1948, in short 'the Act', is entitled for the benefit of extended sickness, even when such an employee, due to the wage limit, had gone out of the insurance contribution coverage, for a particular period, because of the application of Rule 50 of the Employees' State Insurance (Central) Rules, 1950, in short 'the Rules'.
2. The brief facts of the case are that the appellant was an Assistant Spinning Master in Eurospin Industries Ltd., at Chelembra, Kozhikode District. He was an insured employee under the ESI Scheme from June 8, 1993. However, he had gone out of the Insurance coverage from April 1, 1995 to December 31, 1996. Thus, there was no contribution made by him towards the ESI Scheme, and hence, he is not entitled for any benefit. On January 1, 1997, he came within the insurance coverage by virtue of application of Rule 50 of the Rules, and paid the contribution for 60 days, which is for the period ended on March 31, 1997, and for 173 days for the contribution period ended on September 30, 1997. The appellant was diagnosed as having Myocardial Infraction on October 29, 1997. He was referred to the Medical College Hospital from the ESI Hospital, and the Medical Referee opined that the case of the appellant was an old ailment of AWMI with Angina, and was not a case for Extended Sickness Benefit (ESB). Since the disease of the appellant did not fall under any of the occupational diseases of Third Schedule of the E.S.I., Act, he was not entitled to the Temporary Disablement Benefit (TDB) claim, for occupational diseases. Accordingly, the appellant was not paid any amount under TDB and ESB. It was submitted by the ESI Corporation that the disease of the appellant was not the one attributable to the peculiar nature of his employment, and was not considered as having caused due to his employment. Further, he was also not within the insurable employment for a continuous period of two years, immediately preceding the date on which sickness entitling him for such benefit was diagnosed, i.e., on October 29, 1997.
3. The appellant filed an application before the Employees' Insurance Court, Kozhikode, as E.I.C. No. 2/1999. After appreciating the oral evidence of the appellant as PW. 1 and Exhibits P1 to P6, together with Exhibits D1 to D3 of the Corporation, the Insurance Court had dismissed the application. Hence, this appeal by the applicant/appellant before this Court.
4. I heard both sides. The facts that are admitted by both sides are that the appellant was under the ESI coverage from June 8, 1993. He went out of the ESI coverage from April 1, 1995 to December 31, 1996. He re-entered into the insurance coverage with effect from January 1, 1997. He was diagnosed as having myocardial infraction on October 29, 1997. He entered on leave with effect from November 3, 1997.
5. The "Appointed Day" as defined under Regulation 2(b) of the Employees' State Insurance (General) Regulations, 1950, in short 'the Regulations', means with reference to an area, factory or establishment, the day from which whole Chapter IV (Sections 38 to 45 of the Act, dealing with Contributions to the ESI Scheme), and Chapter V (Sections 46 to 73 of the Act dealing with various benefits due to the Employees) of the Act, applying to such area, factory or establishment, as the case may be. It is clarified by the counsel for the Corporation that Eurospin Industries Ltd., had come within the coverage, with effect from May 21, 1965, and, therefore, the appointed day in respect of that establishment is May 21, 1965. Though Section 46 of the Act onwards are dealing with various benefits, and Section 49 of the Act, about the sickness benefit, no provision is dealing on ESB, under Act. However, the resolution passed by the Corporation under Section 99 of the Act is dealing with the Extended Sickness Benefits in respect of some listed diseases therein.
6. Counsel for the Corporation had produced Annexure R l(a), the extract of: Resolution passed by the ESI Corporation at its meeting held on February 28, 1976. As per this Resolution, SI. No. 11, Myocardial infraction, is stated as one of the diseases for which ESB is paid initially for 124 days. However, paragraph 2 of the said resolution stipulate that,
2. To be entitled to the ESB an insured person should have been at the beginning of a spell of sickness in which the disease is diagnosed, in continuous employment for a period of two years or more in a factory or establishment to which the benefit provisions of the Act apply.
Provided that where a person fails to qualify for ESB in any subsequent spell of disease if he can satisfy two year continuous service with reference to that spell.
Under the explanation, it is stated that, Explanation Employment shall be held to be continuous:
(a) for period preceding 'A Day', if the person was in continuous service as defined in Section 25 -B of the Industrial Disputes Act, 1947, as amended by Act 36 of 1964;
(b) for periods after 'A Day', if the insured person has completed 4 contribution periods immediately preceding the relevant date and has fulfilled the contributory conditions for sickness benefit in any three contribution periods out of the aforesaid four contribution periods.
7. 'A Day' is the appointed day. As discussed above, the appointed day of the establishment in which the appellant worked was May 21, 1965. Thus, under the explanation (b), if the appellant had completed 4 contribution periods, immediately preceding the diagnosis, October 29, 1997, and had fulfilled the contributory conditions for the sickness benefits in any three contribution periods, out of the 4 contribution periods mentioned, then alone the appellant would be entitled for the ESB as having been in continuous period of employment of two years. Admittedly, appellant paid the insurance contribution for 60 days, for the contribution period ending March 31, 1997 and 173 day for the contribution period ending on September 30, 1997. Thus, computing the period of two years preceding the relevant date, October 29, 1997, the appellant was out of insurance coverage period. Nor did he fulfil the contributory conditions for sickness benefit in any three contribution periods, out of the four contribution periods stated in Explanation (b) to paragraph 2 of the Resolution dated February 28, 1976.
8. A Division Bench of this Court had an occasion to consider a similar fact situation in Regional Director, ESI Corporation, Thrissur, v. K.K. Surendra Babu, M.F.A. No.621 of 1986, decided on March 27, 1991. The Court held that if a person was an employee as defined in Section 2(9) of the Act, during a particular Contribution period, he would be entitled to benefit in regard to any accident which takes place during that period. If a person was not an employee during a particular contribution period, and an accident had taken place, during such period, he could not be entitled to ESI benefits.
9. Counsel for the Corporation had placed reliance on Employees' State Insurance Corporation, (rep. by Regional Director) Chennai, v. M. Ganesan 2003-II-LLJ-895 (Mad)) to emphasise the point that though the Act is a piece of beneficial legislation, an employee cannot be provided with the benefit, which that employee is not intended to be provided with.
10. In view of the above discussions on facts and law, it is clear that though the Acts, Rules and Regulations, do not deal with the Extended Sickness Benefit, the descriptions and explanations contained in the extract of resolution of the Corporation, dated February 28, 1976, until further varied, shall be applicable in providing Extended Sickness Benefits. In the case at hand, the appellant had come out of the insurance coverage from April 1, 1995 to December 31, 1996. He also did not make the required insurance contributions, as contained in the Resolution of the Corporation. Hence, he is not entitled for the Extended Sickness Benefit as found by the Insurance Court. Therefore, I hold that there is no merit in this appeal. Hence, the same is dismissed.