Karnataka High Court
The Employees State Insurance ... vs Union Of India on 9 February, 2017
Bench: Jayant Patel, A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH FEBRUARY 2017
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION NO.1596/2017(S-CAT)
&
WP NOS.5760-81/2017
BETWEEN:
THE EMPLOYEES STATE INSURANCE CORPORATION
REPRESENTED BY ITS DIRECTOR GENERAL
PANCHADEEP BHAWAN
C I G MARG, NEW DELHI-110002
...PETITIONER
(BY SRI.NARASIMHA HOLLA V, ADVOCATE)
AND:
1. UNION OF INDIA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF LABOUR & EMPLOYMENT
MINISTRY OF LABOUR
EMPLOYEES STATE INSURANCE CORPORATION
NO.110, SHRAM SHAKTHI BHAVAN
RAFI MARG, NEW DELHI-110001
2
2. THE DIRECTOR
DIRECTORATE OF ESI SCHEME (MEDICAL)
SERVICES, RAJAJINAGAR II BLOCK
BANGALORE-560010
3. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
LABOUR DEPARTMENT
MULTI STORIED BUILDING
BANGALORE-560001
4. DR M G SHIVAKUMAR BABU
S/O LATE T GANGAIAH
AGED ABOUT 53 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
5. DR SUDHAMANI K
D/O K RAMESH KAMATH
AGED ABOUT 62 YEARS
CHIEF MEDICAL OFFICER (RETD)
RESIDING AT #1C, HIMAGIRI APTS, 4TH MAIN
15TH CROSS, MALLESHWARAM
BANGALORE-560556
6. DR P LEELAVATHI
W/O DR DHRUVARAJ
AGED ABOUT 62 YEARS
CHIEF MEDICAL OFFICER (RETD)
RESIDING AT NO.9, 4TH CROSS
VICTORIA LAYOUT, BANGALORE-560047
7. DR SRINIVASIAH
S/O MUDALAPPA
3
AGED ABOUT 59 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
8. DR C ASHA
W/O M K RAMAMURTHY
AGED ABOUT 61 YEARS
CHIEF MEDICAL OFFICER (RETD)
RESIDING AT NO.35, SMRUTHI, 6TH MAIN ROAD
WEST OF CHORD ROAD, 2ND STAGE
2ND PHASE, BANGALORE-560079
9. DR N GANGADHARAIAH
S/O NARASIMHAIAH
AGED ABOUT 61 YEARS
CHIEF MEDICAL OFFICER (RETD)
RESIDING AT NO.286, GF, 1ST STAGE
5TH MAIN ROAD, 4TH CROSS
KHB COLONY, BASAVESHWARANAGAR
BANGALORE-79
10. DR PRABHU DAS
S/O ESAIAH
AGED ABOUT 55 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
11. DR G A LATHA
W/O DR SATYAN B R
AGED ABOUT 58 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
4
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
12. DR MAYADEVI D K
W/O SARVOTTAM SWAMY
AGED ABOUT 50 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
13. DR J C PANCHASHEELAN
S/O CHANNABASAPPA A
AGED ABOUT 60 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
14. DR NAGARAJ A KAGALI
S/O LATE A T KAGALI
AGED ABOUT 54 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
15. DR NARAYANASWAMY T
S/O THIMMA SHETTY
AGED ABOUT 54 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
5
16. DR S T RAJAPPA
S/O THIMMAIAH
AGED ABOUT 56 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
17. DR SHANKARAPPA G C
S/O DODDACHIKKAPPA
AGED ABOUT 55 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
18. DR N LAKSHMINARAYANA
S/O LATE P NARAYANASWAMY
AGED ABOUT 58 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
19. DR R NARASIMHA MURTHY
S/O RAMAIAH
AGED ABOUT 58 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
20. DR ASHOK KUMAR
S/O A K APPUKUTTAN
AGED ABOUT 54 YEARS
CHIEF MEDICAL OFFICER
6
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
21. DR T V GIRI
S/O T V VENKATESHAIAH
AGED ABOUT 53 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
22. DR T S MURALIDHAR
S/O T M SATHYANARAYAN SHETTY
AGED ABOUT 51 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
23. DR SALMA JABEEN
W/O DR H T HUSSAIN
AGED ABOUT 44 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
24. DR S TRIVENI
W/O SATISH KUMAR
AGED ABOUT 43 YEARS
STAFF SURGEON (DENTAL)
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
7
25. DR KUMAR H C
S/O LATE H CHANDRASEKHAR
AGED ABOUT 44 YEARS
CHIEF MEDICAL OFFICER
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR
BANGALORE-560010
26. DR MANGALA GOWRI
D/O MAYANNA
AGED ABOUT 57 YEARS
SPECIALIST GR-I
EMPLOYEES STATE INSURANCE CORPORATION
MODEL HOSPITAL, RAJAJINAGAR,
BANGALORE-560010
...RESPONDENTS
(BY SRI.SHANKAR G PANDIT, ADVOCATE FOR C/R4;
SRI.D.NAGARAJ, AGA FOR R3)
THESE PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR THE RECORDS FROM THE HON'BLE CAT,
BANGALORE BENCH AND QUASH THE ORDER
DTD.16.10.2015 IN O.A.NO.809/2013 TO 831/2013 ON
THE FILE OF THE SAID HON'BLE CAT, BANGALORE
VIDE ANNEX-A AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, JAYANT PATEL J., PASSED THE
FOLLOWING:
8
ORDER
All petitions are directed against the order dated 16.10.2015 passed by the Tribunal whereby, the Tribunal, for the reasons recorded in the order, has set aside the communication issued by the petitioner-herein and has directed to treat the original-applicants private respondents herein as stood absorbed from 1.4.2003 and consequential benefits.
2. We have heard Mr.Narasimha Holla, learned counsel appearing for the petitioner and Mr.Shankar G.Pandit appearing by caveat for R4 and Mr.D.Nagaraj, learned AGA appearing for R-3.
3. The contention raised on behalf of the petitioner was that, by the impugned order the Tribunal considered the earlier correspondence between the State Government and ESI ultimately decided that the absorption shall be from 1.4.2003. The learned counsel 9 submitted that the absorption can be only when one has left the Government service. Until the resignation is accepted by the Government, ESI- petitioner could not absorb the private respondents. He submitted that offer was made prescribing various terms and conditions and the same was forwarded with the letter dated June 3, 2005. If the agreement is considered in totality, it would mean that the employee concerned has to leave the Government service and has to opt for ESI services. It is only after the Government servant has left, absorption can be considered and therefore date given on 1.1.2006 is correct and the Tribunal ought not have interfered with the same.
4. Whereas, learned counsel Mr.Shankar G.Pandit, appearing for private respondent no.4 by caveat submitted that in the last proposed draft agreement which was forwarded with the letter dated 10 3.6.2005, it is clear that the date was to be considered for absorption "whichever is earlier". Therefore, the date of resignation will be inconsequential. As per him, the Tribunal has rightly considered the matter and this Court may not interfere.
5. We further put a query to the learned counsel for the petitioner that whether the petitioner has granted seniority to the private respondents who are absorbed with ESI and if yes, from which date but learned counsel stated he has to get the information for the seniority given.
6. We may at the outset record that the Tribunal in the impugned order has also reproduced the relevant terms of the draft agreement which for ready reference reads as under:
"1) Option may be exercised by each employee for absorption in Corporation service or for repatriation to the State Govt.11
service. This option may be exercised by each employee who has a minimum of 2 year's service left in the lending Department as on 01.01.2006.
2) Mere exercising of option for absorption in Corporation service shall not confer any right on any employee to claim absorption and the decision of the Corporation in the matter would be final based on consideration of due screening.
3). An employee opting for absorption has to resign from Stat Govt. service and his absorption in Corporation service will take effect from the date of deputation in ESI Corporation or from the date he joins the duty in the ESI Corporation whichever is earlier (emphasis added)."
7. After considering the same, the Tribunal at para.19 observed thus:
"19. Having so condoned the delay in filing this application we now come to the main issue agitated by the applicants. We have carefully studied the pleadings of the both parties and considered the arguments of the learned Counsel for both sides. We note that the respondents themselves sought the acceptance by the applicants of paragraph 3 of the draft terms and conditions appended to 12 Annexure A4. This paragraph makes it clear that absorption in the service of the Corporation will take effect from the date of deputation or from the date of joining duty in the ESIC whichever is earlier. The Karnataka Employees State Insurance Corporation Model Hospital Welfare Association accepted this condition in its letter dated 1.8.2005 (Annexure A5). The respondents have informed us that this condition was subsequently amended in a circular adopted by ESIC (Resolution No.142 dated 22.2.2008); the words "whichever is earlier" were deleted, and only one date for absorption was provided in the new draft. This amendment took place almost three years after Annexure A4 was presented to the applicants for consideration. There is nothing to indicate that the subsequent resolution No.142 was ever the subject matter of discussion between the employees of the hospital and the management of the ESIC. There is nothing to indicate that this was the subject of discussion between the employees of hospital and Government of Karnataka either. It appears that the ESIC shifted the goal posts without keeping the applicants in the picture. This was nothing short of arbitrary. The applicants therefore could be pardoned for being under the impression that they would be regularized in the service of Corporation on 1.4.2003, the date from which they were deputation to the ESIC. The respondents argue that the applicants could not have been 13 absorbed into the ESIC until they had formally quit the GOK; we agree. The point is that since the order of absorption are dated 11.2.2010 (Annexure A15) and 7.7.2010 (Annexure A16) and take effect from 1.1.2006, the respondents cannot argue that the date of absorption cannot be further backdated."
8. The Tribunal has also taken note of the position prevailing in the other States for which of course, the learned counsel for the petitioner states that they were to be different situations. In our considered view, even if keeping aside fact situation prevailing in the other States and decision of the other Benches of the Tribunal, the matter is considered independently then also, we are unable to appreciate and accept the stand of the petitioner.
9. If absorption and seniority both are reconciled, the resultant effect would be that clause (3) of draft terms of absorption provides that once the employee has 14 opted for absorption and resigned from such service, his absorption in the Corporation will take effect from the date of deputation in ESI Corporation or from the date he joins the duty in ESI Corporation whichever is earlier. Therefore, for absorption, the requirement is that he has to resign from State Government service. But once he has opted to resign and the resignation is accepted, the date of absorption is to take effect from the date of deputation and the date on which he joins the ESI Corporation since it is with the words 'whichever is earlier'. Under the circumstances, it is not possible to interpret that until the resignation takes effect, the date of absorption can not be finalized. It is also not in dispute that the private respondents who were before the Tribunal did not join the services with ESI and deputation in any case on 1.4.2003. If the clause (3) is independently considered then also, the 15 date of deputation and joining services which ever is earlier is to be treated as the date of absorption.
10. So far as determination of seniority is concerned, clause (4) of terms of agreement (absorption) provides for preservation of the seniority existing in the State Government prior to the absorption and it also provides for the different method of maintaining institutional seniority or all India seniority. In our view, it has relevance only for the purpose of reservation of the seniority in the State Government and maintenance of the seniority in the institutional seniority list as well as all India seniority. Such points were not agitated before the Tribunal. Hence, the deemed absorption as observed by the Tribunal with effect from 1.4.2003 cannot be said to be erroneous view.
11. In view of the aforesaid read with the reasons recorded by the Tribunal, we do not find that a case is 16 made out for interference in exercise of power under Article 227 of the Constitution.
12. Under the circumstances, no case is made out for interference. Hence, the petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Sk/-