Kerala High Court
M/S.Bhagheeratha Engineering Ltd vs State Of Kerala on 10 August, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935
WP(C).No. 14224 of 2013 (C)
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PETITIONER(S):
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M/S.BHAGHEERATHA ENGINEERING LTD.,
II FLOOR, BHAGEERATHA RESIDENCY,
BANERJEE ROAD, KOCHI-682 018,
REPRESENTED BY ITS DEPUTY GENERAL MANAGER;
MR.CHANDRASEKHARAN. K.
BY ADVS.SRI.BOBY MATHEW,
SMT.K.MEERA.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LABOUR & REHABILITATION (B) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. EMPLOYEES STATE INSURANCE CORPORATION,
REGIONAL OFFICE (KERALA),
REPRESENTED BY ITS REGIONAL DIRECTOR,
'PANCHADEEP BHAVAN', NORTH SWARAJ ROUND,
THRISSUR - 680 020.
3. THE INSURANCE INSPECTOR,
ESI CORPORATION, SUB REGIONAL OFFICE,
ERNAKULAM MALU'S COMPLEX,
ST.FRANCIS CHURCH ROAD,
KALOOR, KOCHI-682 017.
R1 BY SR. GOVT. PLEADER MR.RAMPRASAD UNNI.
R2 & R3 BY ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05-09-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 14224 of 2013 (C)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1: TRUE COPY OF THE ORDER OF EXEMPTION DATED 10.08.2001
BEARING G.O (RT) NO:2467/2001/LBR GRANTED TO THE
PETITIONER COMPANY IN RESPECT OF THE YEAR 2001-2002.
EXHIBIT P1A: TRUE COPY OF THE ORDER OF EXEMPTION DATED 17.09.2002
BEARING G.O (RT) NO:2769/2002/LBR GRANTED TO THE
PETITIONER COMPANY IN RESPECT OF THE YEAR 2002-2003.
EXHIBIT P1B: TRUE COPY OF THE ORDER OF EXEMPTION DATED 01.07.2003
BEARING G.O (RT) NO:1776/2003/LBR GRANTED TO THE
PETITIONER COMPANY IN RESPECT OF THE YEAR 2003-2004.
EXHIBIT P2: TRUE COPY OF THE APPLICATION DATED 12.02.2004 ALONG
WITH THE SUPPORTING DOCUMENTS SUBMITTED BY THE
PETITIONER COMPANY BEFORE THE 1ST RESPONDENT
REQUESTING FOR EXEMPTION UNDER SECTION 87 OF
THE ESI ACT IN RESPECT OF THE YEAR 2004-05.
EXHIBIT P3: TRUE COPY OF THE ORDER DATED 07.07.2004 BEARING
NO:3971/B3/2003/LBR ISSUED BY THE 1ST RESPONDENT
REJECTING EXT.P2 APPLICATION OF THE PETITIONER
COMPANY.
EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 24.07.2004
SUBMITTED TO THE 1ST RESPONDENT BY ALL THE 30
EMPLOYEES OF THE PETITIONER COMPANY,SEEKING
EXEMPTION FOR THE PETITIONER COMPANY FROM THE
PROVISIONS OF THE ESI ACT.
EXHIBIT P5: TRUE COPY OF THE REVIEW PETITION DATED 28.07.2004 FILED
BY THE PETITIONER COMPANY SEEKING TO REVIEW EXT.P3
ORDER.
EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 29.11.2011 PASSED BY
THIS HON'BLE COURT IN W.P.(C) NO. 6169 OF 2005.
EXHIBIT P7: TRUE COPY OF THE JUDGMENT DATED 29.03.2012 PASSED BY
THIS HON'BLE COURT IN W.A. NO. 195 OF 2012.
EXHIBIT P8: TRUE COPY OF THE SHOW CAUSE NOTICE DATED 30.01.2013
BEARING NO:47000113680000606 ISSUED BY THE DEPUTY
DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM OF THE
2ND RESPONDENT TO THE PETITIONER.
WP(C).No. 14224 of 2013 (C)
EXHIBIT P9: TRUE COPY OF THE LETTER DATED 28.02.2013 BEARING
NO: 47000113680000606 ISSUED BY THE DEPUTY DIRECTOR,
SUB REGIONAL OFFICE, ERNAKULAM OF THE
2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P10: TRUE COPY OF THE STATEMENT DATED 03.04.2013 BEARING
NO: HOK: R:P & A:P/69 SUBMITTED BY THE PETITIONER BEFORE
THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM
OF THE 2ND RESPONDENT.
EXHIBIT P11: TRUE COPY OF THE COVERING LETTER DATED 12.04.2013
BEARING NO: 47000113680000606 - REV; SENT BY THE DEPUTY
DIRECTOR, SUB REGIONAL OFFICE, ERNAKULAM OF THE
2ND RESPONDENT TO THE PETITIONER.
EXHIBIT P12: TRUE COPY OF THE ORDER G.O (RT.) NO: 1472/2012/LBR
DATED 18.09.2012 ISSUED BY THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE.
rs.
A.M.SHAFFIQUE,J.
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W.P.(C).No.14224 OF 2013
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Dated this the 5th day of September, 2013
JUDGMENT
Petitioner challenges Ext.P12 inter alia contending that the said order had been passed without hearing the petitioner and without stating the reasons as held by this Court in the judgment in Kancor Ingredients Ltd. v. Regional Director (Kerala) and others (2012(1) KHC 504). Corresponding judgment is in 2012(1) KLT 575.
2. A perusal of the impugned order would show that the Government formed an opinion that a sub committee of the Regional Board of ESI Corporation has examined the request of the petitioner for exemption under Section 87 of the Employees State Insurance Act 1948 and has found that the benefits provided by the petitioner were neither similar nor superior to that of the benefits provided under the ESI scheme. According to the petitioner, the benefits that they are giving to the employees are much superior to that of the benefits that are provided under the ESI Act and the scheme framed thereunder. The workers employed by the petitioner had also given Ext.P4 representation inter alia stating that they are getting much better benefits. That apart it is W.P.(C).No.14224 OF 2013 2 contended that Ext.P12 had been issued without hearing the petitioner and without reference to the law on the point.
3. Though the learned Government Pleader was called upon to get instructions, it is submitted that no instructions were received from the Government in this regard. Counter affidavit is filed by respondents 2 and 3 inter alia supporting the stand taken by the Government. According to them, the benefit of ESI Amendment Act, 2010 which came into force on 1.6.2010 has no retrospective effect as the said benefit will not be available to the petitioner. Petitioner had filed similar applications for the periods during 2005-2006 up to 2011-2012 and by Ext.P6 judgment, the Government was directed to consider the exemption application with reference to the said period as well.
4. The only question to be considered in this writ petition is whether Ext.P12 order had been issued in accordance with the procedure prescribed. Ext.P2 is the application submitted by the petitioner seeking exemption for the period from 1.4.2004 to 31.3.2005. It is not in dispute that the said application has to be considered in the light of the factual situation and the law prevailing during the said period. Ext.P4 is the letter issued by the employees engaged by the petitioner W.P.(C).No.14224 OF 2013 3 stating that they were getting much better benefits than what is provided under the scheme. The learned Single Judge of this Court had held in Kancor Ingredients Ltd. case as follows:
"6. A reading of Ext.P20 order denying exemption in the instant case would reveal that no reasons have been assigned to justify the conclusion arrived at. It would not be sufficient to merely state mechanically that the benefits under the ESI Scheme are far more superior and beneficial. The various benefits extended by the petitioner and the Employees' State Insurance Corporation have to be analysed item wise. A detailed order is warranted while granting or disallowing exemption under S.87 of the Act. This is especially so since the interest of a large section of workers are involved whose representative also deserves to be heard in the exercise. The principal beneficiary of the Act is the employees who have a right to be heard as held in Fertilizer & Chemicals Travancore Ltd. v. ESI Corporation, 2009 KHC 5061 : 2009(9) SCC 485 : 2009(3) KLT 946 : 2009 (3) CLR 327 : 2009 (123) FLR
491. It needs no mention that exemption under S.87 of the Act could be granted either prospectively or retrospectively under S.91A of the Act."
5. A similar situation had arisen in this case. Government in Ext.P12 order has only indicated that the committee had come to such a conclusion. The report of the committee is not forming part of Ext.P12. That apart there is nothing to indicate that the petitioner was heard in the matter. No doubt the petitioner may not have a legal right to insist for W.P.(C).No.14224 OF 2013 4 exemption. But while considering an application under Section 87 of the ESI Act the Government is bound to consider as to whether the petitioner is granting better benefits to their employees other than what is provided under the ESI scheme. This is the very purport of the judgment referred above. In that view of the matter, I am of the view that this is an issue which has to be reconsidered and accordingly, this writ petition is disposed as follows:
a) Ext.P12 is set aside.
b) The first respondent is directed to reconsider the applications submitted by the petitioner for exemption under Section 87 of the ESI Act after giving an opportunity to the petitioner to make additional submissions and in the light of the judgment of this Court as referred in Kancor Ingredients Ltd. case. This shall be done within a period of three months from the date of receipt of a copy of this judgment. Until such time any proceedings for recovering any amount from the petitioner in this regard shall be kept in abeyance.
A.M.SHAFFIQUE, JUDGE cms