Kerala High Court
Paveena Pradeep vs The Regional Director Employees 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. 28359 of 2016 (T)
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PETITIONER(S):
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1. PAVEENA PRADEEP,
AGED 19 YEARS, D/O PRADEEP,
MANGAYIL HOUSE, CHANNARIKKADU P.O, KOTTAYAM.
2. O.K. PRADEEP,
AGED 48 YEARS, S/O KUNJAPPAN, MANGAYIL HOUSE,
CHANNARIKKADU P.O., KOTTAYAM.
BY ADVS.SRI.SIRAJ KAROLY
SRI.R.PARAMESWARA IYER
RESPONDENT(S):
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1. THE REGIONAL DIRECTOR EMPLOYEES,
STATE INSURANCE CORPORATION, KALOOR, KOCHI 17.
2. THE DIRECTOR GENERAL,
ESI CORPORATION, HEAD QUARTERS OFFICE,
PACHEEP BHAVAN, C.I.G MARG, NEW DELHI 110002
3. THE PRINCIPAL,
E.S MEDICAL COLLEGE, COIMBATORE, TAMILNADU 641 001.
4. THE PRINCIPAL,
ESI MEDICAL COLLEGE, GULBERGA, KARNATAKA 585 104.
5. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF LABOUR AND EMPLOYMENT, NEW DELHI 1.
R1 & R2 BY ADVS. SRI.SANDESH RAJA, SC
SRI.P.SANKARANKUTTY NAIR, SC
R5 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SMT.C.G.PREETHA, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-09-2016 ALONG WITH WPC. 28765/2016 AND CONNECTED
CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 28359 of 2016 (T)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 17-08-2016
EXHIBIT P2 TRUE COPY OF THE RESULT SHEET DATED 16-08-2016
EXHIBIT P3 TRUE COPY OF THE LETTER ADDRESSED BY THE UNION TO THE
MINISTER DATED 11-02-2013
EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY OF THE
UNION SHOWING THE DETAILS OF THE DISCUSSIONS WITH THE
MINISTER DATED 21-05-2013.
EXHIBIT P4(A) TRUE COPY OF THE NOTICE ISSUED BY THE UNION
DATED 25-05-2013.
EXHIBIT P4(B) TRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY
SHOWING THE DETAILS OF THE DISCUSSION
DATED 09-07-2013.
EXHIBIT P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT DATED 18-08-2016.
EXHIBIT P6 TRUE COPY OF THE CERTIFICATE ISSUED BY THE EMPLOYER
SHOWING THE CONTRIBUTION PERIOD BETWEEN 2010 TO 2015
DTD.18.8.2016.
EXHIBIT P7 TRUE COPY OF THE WAGE SLIP OF THE 2ND PETITIONER
SHOWING IN WAGE PERIOD FROM 1.6.2016 TO 30.6.2016.
EXHIBIT P8 TRUE COPY OF THE IDENTITY CARD OF THE 2ND PETITIONER.
EXHIBIT P9 TRUE COPY OF THE LETTER ADDRESSED TO THE DISTRICT
LABOUR OFFICER DTD.27.8.2016.
EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT
LABOUR OFFICER, KOTTAYAM DTD.27.8.2016.
EXHIBIT P11 TRUE COPY OF THE CERTIFICATE DTD.31.8.2016.
EXHIBIT P12 TRUE COPY OF THE ADMISSION LETTER ISSUED BY THE
COLLEGE DTD.20.9.2016.
EXHIBIT P13 TRUE COPY OF THE RECEIPT SHOWING THE REMITTANCE OF
COURSE OF RS.24,000/- DTD.14.9.2016.
Msv/
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WP(C).No. 28359 of 2016 (T)
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EXHIBIT P14 TRUE COPY OF THE RECEIPTS SHOWING THE REMITTANCE OF
CAUTION DEPOSIT, HOSTEL FEES AND MESS FEES.
RESPONDENT(S)' EXHIBITS
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EXT.R1: TRUE COPY OF THE DETAILS OF CONTRIBUTORY PARTICULARS
IN RESPECT OF 2ND PETITIONER INS. NO.4702737474
DTD.18.8.2016.
//TRUE COPY//
P.S.TO JUDGE
Msv/
SHAJI P. CHALY, J.
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W.P.(C) Nos.28359, 28573, 28765 &
30540 of 2016
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Dated this the 28th day of September, 2016
JUDGMENT
The captioned writ petitions are materially connected, in respect of denial of MBBS admission to 'Wards of Insured Employees quota' in the ESI Medical Colleges, and therefore they are heard together and dispose of by a common judgment. In order to have a proper disposal and to avoid confusion with respect to the contentions raised, I think it is only appropriate that brief facts of each case are recited. W.P.(C) No.28359 of 2016
2. First petitioner is the student, who is the daughter of the 2nd petitioner, insured employee. According to the petitioners, 1st petitioner is eligible for MBBS admission under 'Insured Persons Quota'. First petitioner attended the National Eligibility-cum-Entrance Test' [hereinafter called 'NEET'], which is evident from Ext.P2 result sheet. Second petitioner is an employee of Mary Engineering Works, Vadavathoor, Kottayam, which is a sub-contract concern of MRF, Rubber Works. The industrial concern in which the 2nd petitioner is employed and W.P.(C) No.28359/2016 & conn. cases 2 the MRF Rubber Works, are situated in the same compound. During April 2013 and September 2013, there occurred a strike in the company, MRF Rubber Works, demanding hike in salary and other emoluments. Though the petitioner has not supported the strike, he was not permitted to enter into the factory premises. So, he could not attend the employment regularly. Ext.P3 is the letter addressed by the Union to the Minister concerned and Ext.P4 is the letter issued by the Secretary of the Union showing the details of the discussions with the Minister. So also, Ext.P4(a) is the strike notice issued by the Union and Ext.P4(b) is yet another notice issued by the Secretary of the Union showing the details of discussion held on 09.07.2013.
3. Even according to the petitioners, 2nd petitioner has a shortage of 12 days contribution, which according to the petitioners, is not due to their mistake but consequent on the strike declared by the workers of the MRF Rubber Works, which prevented the 2nd petitioner from entering the factory premises.
W.P.(C) No.28359/2016 & conn. cases 3
4. However, petitioner has submitted an application to the 1st respondent for forwarding the same to the 2nd respondent in order to claim the benefit of quota in question, evident from Ext.P5. That apart, it is contended that, the salary of the petitioner is going to be hiked after two or three months during this year, and thereupon the eligibility of the 2nd petitioner, under the quota earmarked, will not be available to the 1st petitioner, as per the provisions of the ESI Act. Therefore, 2nd petitioner has no further option in order to secure an admission for his ward, namely the 1st petitioner. It is in this background, the said writ petition is filed claiming the benefits of clause 8 of Ext.P1, which is extracted hereunder.
"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 W.P.(C) No.28359/2016 & conn. cases 4 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 above would not be counted towards the 05 year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota."
W.P.(C) No.28573 of 2016
5. Petitioner, consequent to the invitation of applications by the ESI Corporation under the 'Wards of Insured Persons' quota for the MBBS Course for the academic session, 2016-17, has submitted an application. Petitioner has succeeded in the NEET, result of which is produced as Ext.P2. Petitioner belongs to Other Backward Community (OBC) - Muslim. According to the petitioner, there are 217 seats available under the insured persons quota. Petitioner's father W.P.(C) No.28359/2016 & conn. cases 5 is an insured person under the Corporation as he has been in continuous insurable employment for a period of 5 years as on 01.01.2016, evident from Ext.P3 certificate issued by the Bharat Petroleum Corporation Ltd., Kochi. Petitioner, along with her father approached the ESI Corporation's Sub Regional Office at Kochi for getting Ext.P3 certificate countersigned by the 4th respondent. But the 4th respondent refused to certify the same on the ground that insured employee has not paid contribution for at least 78 days in one of the contribution periods, namely the period from 01.04.2011 to 30.09.2011. According to the respondents, petitioner is not qualified to secure admission under the quota earmarked for want of requisite qualification as provided under clause 8 of the admission policy. It is in this background, seeking appropriate direction, this writ petition is filed.
W.P.(C) No.28765 of 2016
6. First petitioner is the insured employee, who is a widow and the 2nd petitioner is her daughter who have sought admission under the quota. First petitioner is working in the 3rd respondent establishment covered under the ESI Scheme. First petitioner has secured job in 3rd respondent establishment W.P.(C) No.28359/2016 & conn. cases 6 during February, 2011 after the death of her husband in a motor vehicle accident on 25.05.2010. First petitioner's husband was also an employee of the 3rd respondent since 1994 and was registered under the ESI Scheme before the 2nd respondent on 01.04.1994, evident from Ext.P1. First petitioner after joining the 3rd respondent on 25.02.2011 also got registered under the ESI Scheme before the 2nd respondent, evident from Ext.P2. According to the 1st petitioner, she has been in continuous insurable employment and has been paying contribution in accordance with the provisions of the ESI Act. Thus, the 1st petitioner being an insured person and the daughter of the 1st petitioner being the dependant of the insured person are entitled to all the benefits provided under the Act.
7. Second petitioner successfully completed her Higher Secondary education and secured eligibility in the NEET, which is evident from Ext.P3 result sheet. Thereafter, petitioner submitted application form in order to obtain Annexure-II 'ward of insured person certificate' and secured Ext.P5 certificate from the employer. Accordingly, Ext.P5 certificate was produced before the 2nd respondent in order to obtain W.P.(C) No.28359/2016 & conn. cases 7 'ward of insured person certificate' along with Ext.P6 covering letter. However, same was declined, stating that 1st petitioner is not qualified since she has not completed 5 years as provided under clause 8 of the admission policy. Even though 2nd petitioner has submitted Ext.P7 representation, no action was initiated. It is in this background, seeking appropriate direction, the said writ petition is filed seeking to secure admission to the 2nd petitioner.
W.P.(C) No.30540 of 2016
8. In this writ petition also, 1st petitioner is an employee with Insurance No.4702814379 in the records of the 3rd respondent. Second petitioner is the daughter of the 1st petitioner. Evident from Ext.P3 NEET result, petitioner has become qualified to secure admission to MBBS Course. However, in spite of earnest efforts of the petitioners, respondents have denied to issue 'certificate of ward of insured person'. According to the petitioners, even students lower in rank in the NEET result were provided admission under the quota. However, it is admitted in the writ petition that from 1st April, 2013 to 30th September, 2013 petitioner has worked only for 77 days, thus one day less the prescribed period. It is W.P.(C) No.28359/2016 & conn. cases 8 in this background, seeking appropriate direction, this writ petition is filed.
9. Respondents have filed counter affidavits in all the writ petitions separately, basically contending that the petitioners are not entitled to secure admission in the quota earmarked for ward of insured persons, for the reason that, they are not having sufficient qualification as provided under clause 8 of the admission policy, with respect to 78 days of contribution during the five year period mentioned thereunder.
10. Heard learned counsel for the petitioners and learned Standing Counsel for the respondents, and perused the documents on record and the respective pleadings.
11. On a reading of clause 8 of policy guideline extracted supra, it is specific and clear that the 5 year period prescribed thereunder is further qualified with a stipulation that the employee should have at least 78 days of paid contribution period and in none of the writ petitions, the insured employees are having the said qualification, and therefore the petitioners are not entitled to get admission in the quota earmarked for the 'ward of insured employees'. It is an admitted fact that the employees are not having 78 days W.P.(C) No.28359/2016 & conn. cases 9 paid contribution period for the entire 5 year period, thus enabling the petitioners to seek admission to the academic session, 2016-17, as per clause 8. It is a well settled proposition of law that when an exception is carved out from the general category, the stipulations contained to secure benefits of the same shall be scrupulously and strictly followed. Since the petitioners are not having sufficient qualification as prescribed under clause 8, in my considered opinion, petitioners are not entitled to get admission to the MBBS Course in the earmarked quota.
12. Learned counsel for the petitioners have invited my attention to various judgments to canvass the proposition that the petitioners could not secure 78 days paid contribution period for the reasons beyond their control. It is true, in W.P. (C) No.28359 of 2016, petitioners have produced notices with respect to the strike declared during the contribution period which prevented the 2nd petitioner from entering the factory premises and work. However, mere production of notices will not suffice the situation. There are no enabling or established circumstances before me to enter into a conclusive finding that the 2nd petitioner in the said writ petition could not enter into W.P.(C) No.28359/2016 & conn. cases 10 the factory premises in order to work, or to ascertain whether the employee abstained from work wilfully, or the employee was prevented from entering into the factory premises. Therefore, merely by producing photocopy of notices, there is no established case from the side of the petitioners in order to enable them to contend that they are innocent in the matter with respect to the paid contribution period of 78 days. Therefore, in that regard also, petitioners are not entitled to succeed.
13. Learned counsel has invited my attention to the provisions of the Industrial Disputes Act and contended that, if an employee could not work in an establishment without any laxity on his part, then the contribution period is to be counted as provided under the ESI Act. However, as stated above, there is no established case before me to arrive at such a finding by resorting to the provisions of the ID Act also.
14. In W.P.(C) No.28765 of 2016, learned counsel for the petitioner has also a distinct contention that the 1st petitioner's husband had sufficient qualification as provided under clause 8, calculating the period up to his date of death. However, from the records and the arguments put forth by the W.P.(C) No.28359/2016 & conn. cases 11 respective counsel, I find that there should be a continuous 5 year period of employment as on the 1st January of the relevant academic session. After the death of the 1st petitioner's husband, admittedly there is a gap in enrolling the 1st petitioner in the Scheme interfering with the continuous employment for a period of 5 years stipulated in clause 8 referred to supra. Therefore, admittedly, there is no continuous period of 5 years prior to the academic session, 2016-17. Therefore, that contention raised also is not a sustainable one.
15. I also find force in the contention raised by learned Standing Counsel for the respondent Corporation that similarly situated persons may not have applied for admission under the quota earmarked for want of qualification as prescribed under clause 8 of the admission policy. Therefore, if the petitioners are provided admission in spite of their disqualification, the same will be a patent arbitrariness on the part of the Corporation.
16. In all these cases, except in W.P.(C) No.30540 of 2016, interim orders were passed by this Court to issue the certificate sought for by the petitioners provisionally, and to W.P.(C) No.28359/2016 & conn. cases 12 consider the applications submitted by the petitioners. Admittedly, certain proceedings were taken pursuant to the interim orders passed by this Court, however, in view of the conclusive finding rendered by me above, petitioners are not entitled to succeed in these writ petitions.
17. In the light of the foregoing discussion, I am of the considered opinion that petitioners have failed to establish that they are entitled to admission, as provided under clause 8 of the admission policy.
18. Sequel to the above discussion is, there is no illegality, arbitrariness or other legal infirmities on the part of the respondents, declining 'Ward of Insured Certificate' to the employees enrolled under the Scheme. Therefore, writ petitions fail and accordingly they are dismissed.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
29.09.2016