Anjali Pradeep and Baby Latha TV v Employees' State Insurance Corporation and Kadachira English Medium School

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940 WP(C).No. 18656 of 2018** ## **PETITIONER(S)** **------------** **1 ANJALI PRADEEP, D/O PRADEEP M, AGED 18 YEARS, RESIDING AT KAUSTHUBHAM, KADACHIRA PO, KADACHIRA HIGH SCHOOL BUS STOP, KANNUR-670621.** **2 BABY LATHA T.V, W/O PRADEEP M, AGED 50 YEARS, RESIDING AT KAUSTHUBHAM, KADACHIRA PO, KADACHIRA HIGH SCHOOL BUS STOP, KANNUR-670621.** **BY ADVS.SRI.MILLU DANDAPANI SRI.S.VISHNU (V-736)** ## **RESPONDENT(S):** ## **-------------** **1. EMPLOYEES STATE INSURANCE CORPORATION, HEADQUARTER'S OFFICE, PANCHDEEP BHAVAN, CIG ROAD, NEW DELHI-110002.** **2. THE EMPLOYEES STATE INSURANCE CORPORATION, SUB REGIONAL OFFICE, SHASTHRI NAGAR, HOUSE FED COMPLEX, PO, ERANHIPALAM, CALICUT-673006.** **3. KADACHIRA ENGLISH MEDIUM SCHOOL, REPRESENTED BY ITS MANAGER, P.O KADACHIRA, EDAKKAD, KANNUR-670621.** **R1 & R2 BY ADVS. SRI.K.SANDESH RAJA** **SRI.P.SANKARANKUTTY NAIR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 18656 of 2018 (F) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ------------------------** **EXHIBIT P1 TRUE COPY OF THE NEET-UG SCORE SHEET PUBLISHED ON 04.06.2018 ON THE WEBSITE CBSCNEET.NIC.IN. EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND PETITIONER AND FAMILY BY THE EMPLOYEES STATE INSURANCE CORPORATION. EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE ADMISSION NOTICE BEARING NO.L-11/12/3/UG ADMISSION 2018-19/MEC DATED 09.5.2018. EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE EMPLOYEES STATE INSURANCE CORPORATION'S THROUGH THE 2ND RESPONDENT BEARING APPLICATION NO.ESIC 000795. EXHIBIT P5 TRUE COPY OF THE ORDER REJECTING THE APPLICATION BEARING NO.72ZA.21.12.2018 ADM.SRO.KZ DTD. 29.5.2018. EXHIBIT P6 TRUE COPY OF THE LETTER DTD.28.5.2018 ISSUED BY THE PRINCIPAL OF THE 3RD RESPONDENT EMPLOYER TO THE ESI OFFICE, KOZHIKODE REQUESTING HIM TO CONDONE THE DELAY CAUSED IN FILING THE ESI CONTRIBUTION. EXHIBIT P7 TRUE COPY OF THE ENTITLEMENT CERTIFICATE ISSUED BY THE INSURANCE MEDICAL OFFICER, ESI DISPENSARY, MELE CHOVVA DATED 28.12.2012.** **RESPONDENT(S)'EXHIBITS - NIL** **-----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 12.07.2018** ## **DAMA SESHADRI NAIDU, J.** -----------------------------------------W.P.(C) No. 18656 of 2018 (F) -----------------------------------------Dated: 11[th] July 2018 ## **J U D G M E N T** The petitioners are daughter and mother; the second petitioner is an employee within the protective cover of the ESI Corporation (“the Corporation). Under the Employees’ State Insurance Act, 1948, the employee is an insured person. 2. The employee’s daughter secured a rank in the NEET entrance. To get her daughter admitted in a medical college for the undergraduate course (MBBS/BDS) under the ESI quota, the employee claimed “Ward of Insured Person Certificate.” The request rejected, the petitioners seek a direction to the Corporation to issue the certificate under Group I, that is fiveyear slab. W.P.(C) No.18656/2018 2 3. It is not in dispute that the second petitioner's employer registered her name with the Corporation before 01.01.2012. And the employer paid the contributions till 30.09.2017, the last contribution period before 01.01.2018. The payment schedule is as follows: |Sl.No.|Contribution Period|No of days<br>contribution<br>paid|Delay/In time [at<br>least 78 days of<br>contribution paid<br>in time or delay]| |---|---|---|---| |(i)|01.4.2013 - 30.09.2012|162|In time| |(ii)|1.10.2012 - 31.3.2013|0|In time| |1|1.4.2013 - 30.9.2013|30|In time| |2|1.10.2013 - 31.03.2014|0|In time| |3|1.4.2014 - 30.09.2014|122|In time| |4|1.10.2014 - 31.03.2015|182|In time| |5|1.4.2015 - 30.09.2015|183|Delay| |6|1.10.2015 - 31.03.2016|183|In time| |7|1.4.2016 - 30.09.2016|183|In time| |8|1.10.2016 - 31.03.2017|182|In time| |9|1.4.2017 - 30.09.2017|183|In time| 4. As seen from the above table, for the periods of October 2012 to March 2013 and October 2013 to March 2014, W.P.(C) No.18656/2018 3 the employer paid no contributions, nor did the employee work for minimum 78 days. For the contribution period from April 2013 to September 2013, the contribution was for only 30 days. That means, the employee worked for 30 days. To be eligible under Group I, for obtaining the 'Ward of Insured Persons' certificate, the employee must have had nine continuous payment periods with minimum of 78 days in each period. Moving backwards from 30.09.2017, the employee has around 180 days in every contribution period up to April 2014. For the next two periods, there wasn't much contribution. 5. The petitioners' counsel has drawn my attention to _Remya Krishnan R. v. Employees' State Insurance Corporation_[1] to contend that this Court earlier held that no employee should be deprived of a benefit just because she or he had been—say, for illness—prevented from completing the minimum prescribed days in a particular slab. 1 2013 (4) KLT SN 64 W.P.(C) No.18656/2018 4 ## 6. This Court, _per_ a learned Single Judge, has held as ## follows: "A stalemate has been created because of the mechanical incorporation/reproduction of the Clause (as it appears in Rule 55) when it came to be incorporated under paragraph '8' of Annexure I in Ext.P3 Admission Policy. The consequence resulted because of such mechanical application, is quite disastrous, as evident from the instant case, whereby, the petitioner, by virtue of her merits, ought to have been placed in front of the queue, but came to be omitted so as to give way to '61' other persons who were standing far behind on merit, who were fortunate that their parent did not suffer any Sickness and came to be included in the select list out of '62' candidates declared as eligible. The remaining 100 seats admittedly could not be filled up and the same had to be surrendered to the respective States, which course has defeated the purpose of reservation provided to the "Ward of the Insured Person", intended to serve as a welfare measure to be given to the deserving lot, i.e., the beneficiaries of a welfare legislation. 15. After hearing both the sides, this Court finds that, a meritorious candidate like the petitioner ought not to have been left out and the deficit of '3' days in respect of a single wage period from 1.4.2009 to 30.09.2009, ought to have been supplemented with the days covered by Ext.P8 reckoned by the respondent/ESI Corporation for granting the 'Sickness benefit' under Section 46 of the Act r/w Rule 55 of the Rules. This Court earnestly hopes that, necessary correction/modification as to the relevant Clause in the Prospectus would be effected by the respondent Corporation from the next year onwards, so as to have clarity and transparency and to make available the desired benefit to the deserving lot." W.P.(C) No.18656/2018 5 7. As seen from Ext.P7, the employee had been suffering from breast cancer and was permitted to have super-specialty treatment. Besides, the petitioners have also, now, produced a communication dated 27.06.2018 issued by the Corporation. It reveals that the Corporation treated the employee’s absence from 29.01.2013 to 26.01.2014 as sick-leave and extended all sickness benefits to her. 8. The ratio of _Remya Krishnan R._ binds me. I hold that if the employer did not contribute only because of the employee's absence traceable, say, to illness, and if that period otherwise stands regularized, the employee could not be deprived of any benefit. 9. Ext.P5 order of rejection also mentions about delayed filing of return for one contribution period. But this Court in judgment, dated 04.07.2018, in W.P.(C) No.17305 of 2018 and W.P.(C) No.18656/2018 6 connected cases, has held that delayed contribution cannot affect the employee's rights to any benefit. 10. I, therefore, hold that the petitioners are entitled to the “Ward of Insured Person Certificate under Group I" because the first petitioner could complete five years of continuous insurable service. To the extent mentioned above, the writ petition stands allowed. Sd/DAMA SESHADRI NAIDU JUDGE jjj 11/07/2018