Kerala High Court
Cini Peter vs Esi Corporation on 13 February, 2017
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 17TH DAYOF JULY 2017/26TH ASHADHA, 1939
WP(C).No. 20271 of 2017 (H)
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PETITIONER:
--------------------
CINI PETER,
W/O. PAULSON K.JOHN, AGED 43,
KANDAKKOTTU HOUSE, MEKKADAMPU. P.O,
MUVATTUPUZHA.
BY ADVS.SRI.ALEXANDER JOSEPH,
SRI.M.V.SABU,
SRI.T.P.JOSEPH.
RESPONDENTS:
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1. ESI CORPORATION,
REPRESENTED BY THE REGIONAL DIRECTOR,
REGIONAL OFFICE,TRICHUR-20.
2. THE DEPUTY DIRECTOR,
SUB REGIONAL OFFICE, ESI CORPORATION,
KALOOR, KOCHI-682 017.
BY SRI.SANDESH RAJA, SC.
SRI.P.SANKARANKUTTY NAIR, SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17-07-2017, ALONG WITH WP(C). NO.20558 OF 2017 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 20271 of 2017 (H)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 TRUE COPY OF THE ELIGIBILITY DETAILS ISSUED BY THE
2ND RESPONDENT.
EXT.P2 TRUE COPY OF THE MEMORANDUM DATED 13.02.2017.
EXT.P3 TRUE COPY OF THE LETTER DATED 24.05.2017 ISSUED BY THE
DEPUTY MEDICAL COMMISSIONER TO REGIONAL DIRECTORS.
EXT.P4 TRUE COPY OF THE APPLICATION OF THE PETITIONER.
EXT.P5 TRUE COPY OF THE LETTER DATED 12.06.2017 OF THE
2ND RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NOS.20271, 20558, 21402, 21938, 22018, 22297,
22364, 22369, 22397, 22399, 22439, 22444, 22537, 22588,
22590, 22609, 22719, 22722, 22731, 22740, 22744, 22747,
22751, 22765, 22868, 22896, 23059, 23086, 23108, 23196,
23246, 23266 & 23432 OF 2017
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Dated this the 17th day of July, 2017
J U D G M E N T
As all these writ petitions involve the same issue, concerning the entitlement of wards of insured persons, under the Employees' State Insurance Act, 1948 [hereinafter referred to as the 'ESI Act'], to seats in Medical/Dental colleges administered by the ESI Corporation, under the quota earmarked for the eligible among them, they are taken up together for consideration, and disposed by this common judgment.
2. The ESI Corporation is a body corporate established under the ESI Act and entrusted with the primary function of holding and administering the ESI fund, generated from the contributions received from employers and employees, as well as other sources, for the purposes specified in Section 28 of the ESI Act. The benefits, to which an employee falling under the coverage of the ESI Act are entitled to, W.P.(C).No.20271/2017 & con. Cases 2 are spelt out in Chapter V of the said Act. Aside from this, Section 59B of the ESI Act enables the ESI Corporation to establish medical colleges, nursing colleges and training institutes for its para-medical staff and other employees with a view to improving the quality of services provided under the ESI Scheme. The Medical/Dental Colleges, to which admissions are sought by the writ petitioners herein, or their wards, are those established by the ESI Corporation in terms of the aforementioned provision. It would appear that the ESI Corporation has deemed it fit to reserve a percentage of the total seats in the medical/dental colleges administered by them, to be filled annually, by wards of persons who are insured under the ESI Act. This year too, a quota has been reserved for allocation to wards of insured persons, and the said quota allocation is to be after the allocation of seats to an All India Quota and a State Government Quota in which the seats would be filled up through merit and based on the policy, including reservation policy and procedures, of the Central and State Governments respectively. The admission policy notified by the ESI Corporation for the current year (2017-18) reads as follows:
ADMISSION POLICY FOR UNDER GRADUATE (MBBS/BDS) ADMISSIONS Admission procedure for under graduate courses (MBBS and BDS) in ESIC Medical Education institutions shall be as follows:W.P.(C).No.20271/2017 & con. Cases 3
1. All India Quota: 'All India Quota' will be 15% of total available seats in each of its Medical Institutions, Or, All India Quota will be as per the prevailing Central Government's [i.e. Ministry of H & FW] directives for the said quota, from time to time. It will be filled up as per policy, including reservation policy, and procedures of the Central Government.
2. State Government Quota: Based on the location of the ESI's Medical Education Institution, a 'State Government Quota' will be as per the policy of respective States applicable to un-aided non-minority Institutions, or in the absence thereof, as may be mutually agreed to, between the respective State Government and the ESI Corporation from time to time. The Admissions to these seats will be made according to the policy, including reservation policy, and procedures of the State Government concerned, and these seats will be filled up accordingly.
3. Insured Persons (IPs) Quota: The remaining seats after allocation to All India Quota and the State Govt. Quota shall be treated as "Insured Persons (IPs) Quota". It shall comprise of seats 'pooled' together on All India basis from various ESIC Medical/Dental Colleges, as the case may be. The seats shall be allotted to the "Wards of Insured Persons" (IPs) on All India basis and shall be filled-up through merit cum preference basis, following due process specified below or as may be specified by ESIC from time to time.
4. Methodology for filling up of Insured Persons (IPs) Quota: Available seats of "Insured Persons (IPs) Quota" in various States will be pooled on 'All India Basis' and allotted, among the wards of Insured persons (IPs). The 'guiding principles' for filling up of 'Insured Persons Quota' will be as under:-
4.1 The Insured Persons (IPs) Quota seats will be filled through merit cum preference basis.
4.2 Reservation policy of the Central Government will be followed, within the Insured Persons (IPs) Quota enumerated above.
4.3 Candidates seeking admission under 'Insured Persons (IPs) Quota' will have to fulfill the following eligibility criteria:
4.3.1 Minimum eligibility criteria for admission will be as per MCI regulations 4.3.2 Submit "Ward of Insured Person" certificate issued by Competent/designated Authority for the purpose of ESIC.
4.4 Prospective/desirous and eligible candidates will be required to appear in an All India competitive examinations in force or any other similar equivalent approved Central entrance test as may be specified from time to time by ESIC.
4.5 After qualifying in such Centralized test, candidates have to respond to the advertisement by the ESIC and, apply for admission under the Insured Persons (IPs) Quota, along with the marks/merit obtained in the said Centralized Entrance Test, their preference and supportive documents, etc. under three Groups, as follows:
Group-I: IPs who have been in continuous insurable employment for a W.P.(C).No.20271/2017 & con. Cases 4 minimum period of five years as on 1st January of the year of admission and have paid at least 78 days of contribution in each Contribution Period (09), during this five year period.
Group-II: IPs who have been in continuous insurable employment for a minimum period of four years as on 1st January of the year of admission and have paid at least 78 days of contribution in each Contribution Period (07), during this four year period.
Group-III: IPs who have been in continuous insurable employment for a minimum period of three years as on 1st January of the year of admission and have paid at least 78 days of contribution in each Contribution Period (05), during this three year period.
4.6 ESIC will then prepare a merit list for each Group, i.e. Group-I, Group-II; and Group-III, based on the rank/marks of eligible applicants in the specified test/merit list for the year, consistent with the reservation policy of the Central Government for preparation of category-wise inter-se merit.
4.7 Candidates will be allotted the seats, based on their merit cum preference of Institution and category, through a centralized counseling to be conducted by ESIC for the Insured Persons (IPs) Quota, as under:
1st Counselling - Candidates belonging to Group-I would be considered for allotment of available seats first, based on their merit cum preference of Institution and reservation status.
2nd Counselling - Candidates belonging to Group-II would be considered for allotment of unfilled/leftover seats after the 1st counselling, if any, after the specified cut-off date. The seats would be allotted, based on their merit cum preference of Institution and reservation status.
3rd Counselling - Candidates belonging to Group-III would be considered for allotment of unfilled/leftover seats after the 2nd counselling, if any, after the specified cut-off date. The seats would be allotted, based on their merit cum preference of Institution and reservation status.
4th Counselling - Seats falling vacant / remaining unfilled/leftover, due to any reason / after the deadline for joining the medical college, would be offered to balance candidates left out from Group I; II; and III and the allotment of these seats would be based on merit cum preference of Institution. The merit list for this counselling would be prepared from the pool of balance candidates, Group- wise, and the order of allotment of these seats would be to Group-I, Group-II; and Group-III candidates, in that order. The 2nd; 3rd; and 4th counseling would be conducted as per requirement. Any seats left vacant after the 4th counseling would be surrendered to the respective State Governments for filling up.
5. Unfilled/leftover seats, if any , after all the counsellings as above, will be surrendered to the respective State Government as per the time schedule given by the regulatory body, i.e. of Medical / Dental Council of India (MCI/DCI), for inclusion in the State Government Quota,to be filled up as per W.P.(C).No.20271/2017 & con. Cases 5 policy, including reservation policy, and procedures of the State Government.
6. Fee structure Stipulation:
Fee structure (Tuition fee & other approved fee) in ESIC Medical Education Institutions will be as may be approved by ESIC from time to time. There will be no capitation fee or profiteering in any form.
7. Execution of Bond for Service All Candidates seeking admission to any ESIC Medical Education Institution will have to execute a bond, to serve any ESIC / ESI Scheme (ESIS institution run by State Government) for a period of 03 years, as may be specified, from time to time. Period of rural service, if any, as per police of the Central or State Government, will be inclusive in the three year period of the bond.
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 / four / three 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 / four / three year period. The Insured Person for the said purpose shall be grouped as Group-I / II / III respectively. The 05 / 04 / 03 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 f '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 or 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 above would not be counted towards the 05 / 04/ 03 year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota."
9. 'Ward of Insured Person' will be a legitimate natural born child who is wholly dependent on the earnings of the insured person and who is-
(i) receiving education, till he or she attains the age of twenty-one years,
(ii) or an unmarried legitimate natural born daughter.
10. Regional Director/Other Officer/Authority/Committee under ESIC as may be specified by ESIC from time to time shall be the Competent Authority to issue the "Ward of Insured Person" certificate. The specified Competent Authority of ESIC will issue the certificate, Group-wise. The Group under which the certificate is issued would be displayed prominently on the certificate.
W.P.(C).No.20271/2017 & con. Cases 6
3. It will be seen from a perusal of the admission policy extracted above that, to qualify as an insured person for the purposes of availing the benefit of the Insured Persons quota for his /her ward, the insured person has to satisfy the following conditions namely;
(i) He/She has to be an employee as defined under the ESI Act;
(ii) He/She should have been in continuous insurable employment for a minimum period of five/four/three years as on 1st January of the year of admission; and
(iii) He/She should have paid at least 78 days of contribution in each contribution period, during this five/four/three year period, the period of five/four/three years being counted from the date of entry into the ESI Scheme.
4. It is clarified in the policy that, for employees who entered the scheme prior to 09th June 2011, the date of entry into the scheme, for the purposes of the admission policy, 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 ESI Corporation. For those employees who entered the scheme after 09th June 2011, however, the corresponding date would W.P.(C).No.20271/2017 & con. Cases 7 be the date of registration available in the IP database of the ESI Corporation.
5. To understand the sense in which the words "employee", "insurable employment" and "contribution period" are used in the admission policy, one has to refer to the statutory provisions under the ESI Act, Rules and Regulations and the relevant provisions read as under:
ESI Act:
2: Definitions:
(9) " employee " means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and --
(i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or
(ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or
(iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service;
[and includes any person employed for wages on any work W.P.(C).No.20271/2017 & con. Cases 8 connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment; [or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), [and includes such person engaged as apprentice whose training period is extended to any length of time] but does not include] --
(a) any member of [the Indian] naval, military or air forces; or [(b) 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 ;] (13A): "insurable employment " means an employment in a factory or establishment to which this Act applies ;] Section 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 contributions 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 W.P.(C).No.20271/2017 & con. Cases 9 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 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.
(b) Any interest recoverable under clause (a) may be recovered as an arrear of land revenue or under section 45-C 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 40: Principal employer to pay contributions in the first instance. --
(1) The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employer's contribution and the employee's contribution.
(2) Notwithstanding anything contained in any other enactment but subject to the provisions of this Act and the regulations, if any, made thereunder, the principal employer shall, in the case of an employee directly employed by him (not being an exempted employee), be entitled to recover from the employee the employee's W.P.(C).No.20271/2017 & con. Cases 10 contribution by reduction from his wages and not otherwise :
PROVIDED that no such deduction shall be made from any wages other than such as relate to the period or part of the period in respect of which the contribution is payable] or in excess of the sum representing the employee's contribution for the period.
(3) Notwithstanding any contract to the contrary, neither the principal employer nor the immediate employer shall be entitled to deduct the employer's contribution from any wages payable to an employee or otherwise to recover it from him.
(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted.
(5) The principal employer shall bear the expenses of remitting the contributions to the Corporation.
ESI (Central) Rules, 1950:
Rule 50: Wage limit for coverage of an employee under the Act. --
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 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:
PROVIDED further that the wage limit for coverage of an employee who is a person with disability under the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (1 of 1996), and W.P.(C).No.20271/2017 & con. Cases 11 under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999) respectively, shall be twenty-five thousand rupees a month.
ESI (General) Regulations, 1950:
Regulation 4: Contribution and Benefit periods. --
Contribution periods and the corresponding benefit periods shall be as under:
Contribution period Corresponding benefit period 1st April to 30th September 1st January of the year following to 30th June 1st October to 31st March of the 1st July to 31st December. year following PROVIDED that in the case of a person who becomes an employee within the meaning of the Act for the first time, the first 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 9 months from the date of such employment.
6. In these writ petitions, while there is no dispute that the insured person concerned is an employee under the ESI as on 01.01.2017, their wards have been refused the "Ward of Insured Person Certificate" for different reasons. The writ petitions are, therefore, categorized into the following categories for the purposes of this judgment;
W.P.(C).No.20271/2017 & con. Cases 12 Category A: Where the employee concerned is in insurable employment as on 01.01.2017 but has not paid the necessary contribution to the fund for a brief period from October to December, 2016, on account of receiving wages that were above Rs.15000 per month, the ceiling limit imposed for coverage during the said period. The said persons came back under the coverage of the scheme with effect from 01.01.2017 consequent to an enhancement of the ceiling limit to Rs. 21,000/- with effect from the said date. The following writ petitions come under this category:
W.P.(C).No.22018/2017, 22364/2017, 22399/2017, 22439/2017, 22444/2017 and 22722/2017.
Category B: Where the employee concerned is in insurable employment as on 01.01.2017, but has not paid the necessary contribution to the fund for some period in the past on account of their wages having gone above the ceiling limit for coverage during the said period. The said persons too came back under the coverage of the scheme with effect from 01.01.2017 consequent to an enhancement of the ceiling limit to Rs.21,000/- with effect from the W.P.(C).No.20271/2017 & con. Cases 13 said date. The following writ petitions come under this category:
W.P.(C).Nos.20558/2017, 21402/2017, 21938/2017, 22297/2017, 22537/2017, 22588/2017, 22590/2017, 22609/2017, 22719/2017, 22740/2017, 22744/2017, 22747/2017, 22751/2017, 22765/2017, 22868/2017, 22896/2017, 23059/2017, 23086/2017, 23108/2017, 23196/2017, 23246/2017, 23266/2017 and 23432/2017.
Category C: Where the employee concerned is in insurable employment as on 01.01.2017 and his/her ward has been granted a "Ward of Insured Person Certificate" but he/she is aggrieved by the categorization of the ward concerned in the said certificate. The following writ petitions come under this category:
W.P.(C).Nos.22397/2017, and 22369/2017
7. I have heard Sri. K.P.Rajeevan, Sri. Alexander Joseph, Sri. G.Sreekumar (Chelur), Sri. Aadithyan S. Mannali, Sri. P.C.Sasidharan, Sri. P.Ramakrishnan, Sri. P.V.Kunhikrishnan, Sri. M.Sasindran, Sri. George A. Cherian, Sri. ASP. Kurup, Sri. Philip T. Varghese, Sri. S.Ramesh, Smt. Jayasree Manoj, Sri. D.Kishore, Sri. A.C.Devy, Sri. W.P.(C).No.20271/2017 & con. Cases 14 S.Prasanth (Ayyappankavu), Sri. M.R.Sarin and Sri. P.Sreekumar, the learned Counsel appearing for the petitioners in all these writ petitions and Sri. Sandesh Raja, learned Standing counsel for the ESI Corporation.
8. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that the notified admission policy is intended to benefit those meritorious students, who have emerged successful in a national level test conducted for admission to medical/dental courses in the country, who are also wards of persons insured under the ESI Act. The benefit conferred is of allotment to seats in medical/dental colleges administered by the ESI Corporation, against a quota earmarked for such students in the said institutions. The intention clearly seems to be to confer the benefit on the wards of those employees who are, and have been, in continuous insurable employment under the ESI Act, as on 01.01.2017. Among those found eligible, preferential allotment is granted based on the length of continuous insurable employment that the employee concerned has, as on 01.01.2017, with the ward of a person having 5 years of such continuous insurable employment W.P.(C).No.20271/2017 & con. Cases 15 getting preferential allotment over the ward of a person having only four or three years continuous insurable employment and so on. The important aspect to be noted, however, is that it is not just any continuous insurable employment of 5/4/3 years, prior to 01.01.2017, that qualifies the employee for the benefit, as contended on behalf of some of the writ petitioners. The continuous employment must be proximate in time to, and determined as on, 01.01.2017, and the employee concerned should have also effected contributions during the contribution periods in the said prescribed continuous period. The said intention becomes clear when we notice the usage of the phrase "continuous" in conjunction with "as on 01.01.2017" when defining the insurable employment of the employee that qualifies for the benefit. If it were just any continuous insurable period, of the prescribed duration, that was intended, the words "as on 01.01.2017"
would not have been used. "Prior to 01.01.2017" would have been the preferred usage if such was the intention. The clarification, in the later part of the eligibility clause, that states that the date of entry into the ESI Scheme shall be the starting point for the computation of the period of five/four/three years of continuous insurable employment is only for the purposes of determining the W.P.(C).No.20271/2017 & con. Cases 16 commencement date, of a period of continuous insurable employment that must necessarily end with 01.01.2017, for the purposes of the scheme. This aspect has been clarified by a Division Bench decision of this Court in Director General, ESIc, New Delhi and Others v. Jemin Elizabeth Mathew and Others - [2014 KHC 706], which also clarified that the reference to five/four/three years in the Policy must be taken as a reference to calender years.
9. Given that an employee has to have five/four/three years of continuous insurable employment as on 01.01.2017, for being considered for the benefits under the scheme, the question that then arises is whether, such an employee can be denied the benefit if he fails to make the required minimum contribution to the fund, during the contribution periods in the five/four/three year period referred to above? It is not in dispute, in the cases covered by Categories A and B, that the employee concerned did not make contributions to the fund for certain periods, ranging from a few months to a couple of years, during the stipulated period of continuous insurable employment. The reason for not making the contributions to the fund was that the employee concerned came out of the coverage of the ESI W.P.(C).No.20271/2017 & con. Cases 17 Act, consequent to his wages exceeding the ceiling limit for coverage under the Act, during the said period. It is also not in dispute that they came back under the coverage of the scheme with effect from 01.01.2017. Here, a distinction may be noticed in respect of those cases covered under Category A. In these cases, the employee concerned, who had continuous insurable employment for the minimum prescribed duration as on 01.01.2017, had also paid part of the contribution for the year 2016-17, by making payment for the contribution period from April to September, 2016 and thereby become entitled for the coverage of the ESI Act, and the statutory benefits envisaged therein, for the period between 01.01.2017 and 30.06.2017, the benefit period stipulated under Regulation 4 of the ESI (General) Regulations, 1950, for the said contribution period. Further, these employees, although they did not make the minimum required contribution to the fund, for the period from October, 2016 to December, 2016, they started paying the required contributions with effect from January 2017, mid-way through the second contribution period [October 2016 to March 2017] for the year 2016-
17. In the case of such employees, I am of the view that the mere non-payment of the required contributions for a couple of months, in W.P.(C).No.20271/2017 & con. Cases 18 the statutorily prescribed contribution period, that too on account of a legal embargo, cannot be held against them for the purposes of a scheme intended to benefit their wards, more so when they were within the coverage of the Act, at least for the receipt of the statutory benefits envisaged therein for the said period. It is also relevant to note that in the prescribed format of the certificate to be issued, as appended to the Admission notice, the contribution period contemplated for the year 2016-17 is only the period from 1st April, 2016 - 30th September, 2016. It is clear, therefore, that even as per the Admission notice, the Insured employee was not expected to make contributions between the period from October to December, 2016 for getting the benefits envisaged therein.
10. As regards the cases covered under Category B, however, I find that the break, in making the required contributions, is for a substantially longer period and, during the said period, the employee in question stood outside the coverage of the ESI Act, for making the required contributions thereunder. Such employees cannot be seen as having a continuous insurable employment, as on 01.01.2017, during which they were making the required contributions in the respective W.P.(C).No.20271/2017 & con. Cases 19 contribution periods. Such persons were not contemplated for the benefits envisaged under the Admission Policy. The benefit under the admission policy, it must be noted, is not a benefit that is contemplated under the ESI Act, to warrant a liberal interpretation of the policy in favour of those who were not covered under the Act for the specified period. The admission policy requires one to ascertain the status of the beneficiary in praesenti, and as on 01.01.2017. On that date, the employee in question should have satisfied the criteria of having the prescribed minimum period of continuous insurable employment [5/4/3 years], and should have made the necessary contributions during the contribution periods comprised therein. The intention of the admission policy being to grant benefits to the wards of those employees who were under continuous coverage under the ESI Scheme, while effecting contributions for the prescribed period, and the policy itself being one that grants a preference to a student in the matter of admission to an educational institution where merit is the foremost criterion, I am of the view that a strict interpretation of the admission policy is called for while identifying the beneficiaries of the policy. I might add, at this juncture, that the scheme of the ESI Act itself is one that contemplates the making of contributions during W.P.(C).No.20271/2017 & con. Cases 20 defined contribution periods and the grant of benefits during equally well-defined benefit periods corresponding to those contribution periods. The Act does not envisage any retrospective coverage, as and when the limits for coverage are enhanced in respect of employees, by making contributions for the said past periods. The question of making a retrospective contribution, for a past contribution period, does not arise because the Act does not contemplate a retrospective grant of benefits for a benefit period that corresponds to a past contribution period. I am, therefore, of the view that those employees, who do not have continuous insurable employment of the prescribed minimum duration, as on 01.01.2017 during which they were making contributions for the prescribed number of days, on account of their salary exceeding the ceiling limit for making contributions under the ESI Act, are not entitled to a "Ward of Insured Person Certificate" in respect of their wards.
11. Coming now to the cases in Category C, the contention of counsel for the writ petitioners in these cases is essentially that the 5 year/4 year/3 year period of continuous insurable employment as on 01.01.2017 must be taken as referring to the corresponding years W.P.(C).No.20271/2017 & con. Cases 21 when they were making the required contributions during the respective contribution periods. It is stated that, although the date of registration under the Scheme may be a later date, inasmuch as the respondent Corporation had accepted their contributions for a contribution period that preceded the actual date of registration under the Scheme, the continuous period of insurable employment must be reckoned from the date of commencement of contributions. It is further contended that the period of continuous insurable employment must be deemed as ending with the last date of the last contribution period in which the employee concerned made contributions. I am afraid I cannot accept the said contention of the learned counsel for the petitioners in these cases. As already noticed, the provisions of the admission policy are to be strictly construed and when so done, the requirement of having the prescribed length of continuous insurable employment, together with payment of contributions, must be seen as established between the date of registration under the Scheme and 01.01.2017. There cannot be any extrapolation of these termini when the mandate of the policy is unambiguously clear. The decisions of this Court in Director General, ESIC, New Delhi and Others v. Jemin Elizabeth W.P.(C).No.20271/2017 & con. Cases 22 Mathew and Others - [2014 KHC 706] and Geetha v. Employees' State Insurance Corporation - [2016 (4) KLT 203] clearly lay down that such a construction cannot be placed on the provisions of the admission policy. I therefore find against the writ petitioners on this issue.
12. Two other writ petitions viz. W.P.(C).Nos.20271/2017 and 22731/2017, have also been taken up with the aforementioned batch of writ petitions and they can be disposed in this judgment. The insured employee in the said writ petitions obtained registration under the ESI Act only in 2016. Although the petitioners would contend that they had effected contributions for the prior contribution periods also, in view of the specific provision in the admission policy that prescribes the date that has to be taken as the date of entry into the scheme, I am of the view that the insured persons in these writ petitions do not satisfy the requirement of continuous insurable employment for the prescribed minimum number of years and hence, cannot aspire for a "Wards of Insured Person Certificate" in respect of their wards.
W.P.(C).No.20271/2017 & con. Cases 23
13. The upshot of the aforesaid discussions is that; The writ petitions in Category A viz. W.P.(C).No.22018/2017, 22364/2017, 22399/2017, 22439/2017, 22444/2017 and 22722/2017, are allowed by declaring that the petitioners, or their wards, as the case may be, are entitled to receive the necessary ward of insured persons certificate for the period of continuous insurable employment that the insured employee has, as on 01.01.2017.
The writ petitions in Category B viz. W.P.(C).Nos.20558/2017, 21402/2017, 21938/2017, 22297/2017, 22537/2017, 22588/2017, 22590/2017, 22609/2017, 22719/2017, 22740/2017, 22744/2017, 22747/2017, 22751/2017, 22765/2017, 22868/2017, 22896/2017, 23059/2017, 23086/2017, 23108/2017, 23196/2017, 23246/2017, 23266/2017 and 23432/2017 are dismissed, holding that the petitioners are not entitled to the reliefs sought for in the writ petition.
The writ petitions in Category C viz. W.P.(C).Nos.22369/2017 and 22397/2017, are dismissed holding that, the petitioners are not entitled to the reliefs sought for in the writ petition. W.P.(C).No.20271/2017 & con. Cases 24
W.P.(C).Nos.20271/2017 and 22731/2017 are dismissed finding that the insured persons therein do not have the prescribed minimum period of continuous insurable employment as envisaged under the admission policy in question, and are therefore not entitled to the reliefs sought for in the writ petitions.
A.K.JAYASANKARAN NAMBIAR JUDGE prp/