Indian Kanoon - Search engine for Indian Law

6. Consequently, the petitioner filed a contempt petition alleging wilful disobedience of the judgment dated 25.04.2016 passed in the aforesaid LPA No. 47/2013 by a coordinate Division Bench of this Court, whereby the respondent was directed to appropriately work out the disability benefit equivalent to the minimum wage or approximate amount as permissible. Although, the Ld. Single Bench of this Court dismissed the contempt petition on the ground that the ESIC calculated the disability benefit in accordance with the ESIC Rules, 4 "ESIC Rules"

13. The learned Counsel for Respondent No.1 submits that PDB is revised periodically to neutralize the increase in the All India Consumer Price Index (Industrial Workers) by the Corporation on the basis of actuarial reports and as per established procedures. He further contends that the authority to determine benefit rates and eligibility conditions lies exclusively with the Central Government under Section 95 of the ESI Act, and that the function of ESIC is solely administrative. He submits that Courts cannot issue directions requiring ESIC to act in contravention of the statutory scheme, as doing so would amount to judicial overreach. He further submits that PDBs are determined entirely by statute and relies on Section 51 to substantiate his contention. Therefore, it is the plea of Respondent No.1 that the Central Government, through the ESI Act, prescribed a fixed formula, based on standardized rates and average daily wages for the calculation of such benefits, without permitting any administrative deviation or enhancement by ESIC.

"99. Medical care for the families of insured persons - At any time when its funds so permit, the corporation may provide or contribute towards the cost of medical care for the families of insured persons."

26. So, the earlier provision for 'enhancement of benefit' stands substituted by 'Medical care for the families of insured persons'. Therefore, it is evident that the powers of ESIC under Section 99, after amendment have been absolutely changed from the power to enhance all benefits to only family medical care. Therefore, to say that ESIC could be directed to enhance the PDB or that ESIC should be directed to make the grant of PDB commensurate to the Minimum Wages Act, 1948 would be a misnomer and the power of judicial review cannot be expanded beyond what the legislation has now expressly provided.

33. With respect to the relief prayed as to the quashing of the impugned order dated 09.09.2016, the petitioner in their rejoinder, admitted that the PDB rate calculated by the Insurance Commissioner of ESIC is correct and justified, and therefore, we do not deem it necessary to delve into the merits of the order.

W.P.(C) 9748/2017

34. At this juncture, although we hold that the prayer of the petitioner declaring Rules 54 (non-existent), 57 & 60 of the ESI Rules, and all other provisions of the ESI Act and Rules as ultra vires and unconstitutional to the extent that they do not provide PDBs corresponding to the minimum wages cannot be granted in view of our reasoning in the foregoing paragraphs. However, we express and note our deep anguish and concern about the quantum of permanent disability benefits extended by the ESIC, which by any standards, are not commensurate to even buying a two-square meal for a single person, leave along the minimum wages as guaranteed in the Minimum Wages Act, 1948. We acknowledge the hardships faced by the petitioner, who is a 100% permanently disabled person and hence call upon both the ESIC and the Central Government to form a committee, which can be empowered on a biennium basis to recommend the ESIC to enhance/vary the PDB taking into account the prevailing market standards, inflation and actual cost of living, including the provisions of Minimum Wages Act, 1948 and other allied Act(s). However, the said committee in this regard, may not be bound or guided merely by the provisions of the Minimum Wages Act, 1948 and rather shall act independently in all fairness, reasonability and equity, keeping in mind the ambitious endeavour of the Government to provide social security to the sick and disabled as envisaged under the ESI Act.