Employees State Insurance Corporation v Illahia College of Engineering and Technology and Ruby K.P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 10TH DAY OF JULY 2017/19TH ASHADHA, 1939** ## **INS.APP.NO. 2 OF 2016 () -------------------------** **AGAINST THE JUDGMENT IN I.C.NO.29/2013 OF EMPLOYEES INSURANCE COURT, ALAPPUZHA DATED 25-06-2015** **--------------------------** **APPELLANT(S)/1ST & 2ND RESPONDENTS :** **-----------------------------------** **1. EMPLOYEES STATE INSURANCE CORPORATION REPRESENTED BY ITS REGIONAL DIRECTOR, ROUND NORTH, THRISSUR-680 020.** **2. THE ASSISTANT DIRECTOR,** - **SUB REGIONAL OFFICE, ESI CORPORATION, MALU'S COMPLEX, ST.FRANCIS CHURCH ROAD, KALOOR, KOCHI-682 017.** **BY ADV. SRI.K.SANDESH RAJA** ## **RESPONDENT(S)/APPLICANT/3RD RESPONDENT :** ## **----------------------------------------** **1. ILLAHIA COLLEGE OF ENGINEERING AND TECHNOLOGY MULAVOOR P.O., MUVATTUPUZHA-686 673, REPRESENTED BY ITS CHAIRMAN, K.M.PAREETH.** **2. RUBY K.P.** - **ILAHIA COLLEGE OF ENGINEERING & TECHNOLOGY, MULAVOOR P.O., MUVATTUPUZHA-686 673.** **R1 BY ADVS.SRI.K.JAJU BABU (SR.)** **SMT.M.U.VIJAYALAKSHMI** **THIS INSURANCE APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------Ins. Appl. No.2 of 2016 ---------------------------------Dated this the 10[th] day of July, 2017** ## **J U D G M E N T** This appeal is preferred against the judgment in I.C. No.29 of 2013 of the Employees Insurance Court (E.I. Court), Alappuzha by the Employees State Insurance Corporation (respondents in the above case). The 1[st] respondent filed the above application for declaration that his college is not covered under the provisions of Employees State Insurance Act (for short, E.S.I. Act) on the ground that the establishment is functioning under the control of the Central Government through All India Council for Technical Education (AICTE). The appellant corporation filed a detailed written objection before the E.I. Court. The learned Judge, after considering the rival contentions, held that the 1[st] respondent is not covered under the provisions of the E.S.I Act. Being aggrieved by that, they preferred this appeal. 2. The learned counsel appearing for the appellants submitted that under Sec.1(5) of the E.S.I. Act Ins. Appl. No.2 of 2016 2 the appropriate Government may, in consultation with the Corporation, after giving one month's notice of its intention of doing, by notification in the official gazette, extend the provisions of the Act of the establishment or class of establishments, industrial, commercial and agricultural or otherwise. In this case, the State Government, after consultation with the Corporation and due approval of the Central Government, issued the above notification and the Court below exceeded its jurisdiction and adjudicated the matter without considering the above provision. 3. Learned counsel appearing for the 1[st] respondent submitted that since it is a minority institution, appropriate Government would be the Central Government for answering the above issue. Therefore the notification issued by the State Government in violation of the direction of the AICTE amounts to an illegality and no interference is necessary in the finding of the E.I. Court. 4. In this context, I have considered Sec.1(5) of the E.S.I. Act which reads as follows: Ins. Appl. No.2 of 2016 3 1(5) The appropriate Government may, in consultation with the Corporation and where the appropriate Government is a State Government, with the approval of the Central Government, after giving one months' notice of its intention of so doing by notification in the Official Gazette, extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. 5. A perusal of the above Section shows that appropriate Government, in consultation with the Corporation where the appropriate Government is the State Government with the approval of the Central Government after giving one months' notice of its intention of doing so, by notification in the official gazette extend the provisions of the Act or any of them, to any other establishment or of class of establishments, industrial, commercial, agricultural or otherwise. Where the provisions of this Act has been brought into force in any part of the State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of the State. Appropriate Ins. Appl. No.2 of 2016 4 Government is defined under Sec.2(1) of the E.S.I. Act as follows: 2.(1) “ appropriate Government” means, in respect of establishments under the control of the Central Government or a railway administration or a major post or a mine or oilfield, the Central Government, and in all other case, the State Government; Therefore, the State Government after consultation with the Central and in consultation with the Employees State Insurance Corporation (for short, E.S.I. Corporation) issues any notification which is valid. 6. In this context, the Government Order G.O.(P)No.135/2007 LBR dated 08.10.2007 has to be considered. The above order reads as follows: “ GOVERNMENT OF KERALA Labour and rehabilitation (F) Department ## Notification G.O.(P) No.69/2008/LBR Thiruvananthapuram 8[th] October 2007 “ In exercise of the powers conferred by sub-section (5) of section 1 of the Employees' State Insurance Act, 1948 (Central Act 34 of 1948), the Government of Kerala in consultation with the Employees' State Insurance Corporation and with the approval of the Central Government, and after having given six months notice Ins. Appl. No.2 of 2016 5 of its intention so to do, hereby extend the provisions of the said Act to the classes of establishments, specified in column(2) thereof with immediate effect. ## Schedule _____________________________________________________________________ Description of Establishments Areas in which the establishments are situated _____________________________________________________________________ (1) (2) Educational institutions (including Areas where the Scheme has public, private, aided or partially already been bought into aided) run by individual, trustees, force under Sub-sections(3) societies or other organizations, Act. wherein 20 or more persons are employed or were employed on any day of the preceding twelve months. _____________________________________________________________________ By order of the Governor C.K.VISWANATHAN, Secretary to Government. ## Explanatory note (This does not form part of the notification, but is intended to indicate its general purport) The Government in consultation with the Employees' State Insurance Corporation and with the approval of Central Government, have decided to extend the provisions of the Employees' State Insurance Act, 1948 under sub-section (5) of section 1 of the said Act to the Educational institutions (including public, private, aided or partially aided) run by individuals, trustees, societies or other organizations, wherein 20 or more persons are employed or were employed on any day of the preceding twelve months, in the areas where the scheme has already been brought into force under sub-sections(3) and (5) of section 1 of the said Act. A notification of the intention has already been published as per G.O.(P) No.34/2007/LBR dated the 20[th] March, 2007 in the Kerala Gazette Extraordinary No.600, dated the 26[th] March 2007. This notification is intended to achieve the above Ins. Appl. No.2 of 2016 6 purpose”. AICTE was established to advise the Central and State Government for ensuring development of technical education in accordance with approved standards in all States in India. As far as the provisions of E.S.I. Act is concerned, it provide benefits to the employees in case of sickness, maternity and employment injury on the basis of the social security. 7. The Division Bench of this Court in **C.B.S.E.** ## **School Management's Association** v. **State of Kerala [2009 (3) KLT 421]** held as follows: The appropriate Government can extend the provisions of the Act “ to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise”. A plain reading of the above provision leaves no doubt in our mind, that the appropriate Government can do that. The notification under S.1(5) of the E.S.I. Act can cover an educational institution for two reasons: -Our first reason is that, the educational institutions like schools are industrial establishments. If that be so, the only possible view that could be taken taken in the face of the words contained in S.1(5) of the Ins. Appl. No.2 of 2016 7 E.S.I Act is that educational institutions are also covered by the expression 'industrial establishment'. The main thrust of the argument of the writ petitioners was that educational institution is not an industry. In view of the binding precedent mentioned above, we cannot accept that contention. Further, the interpretation of the definition of “industry” in S.2(j) of the Industrial Disputes Act is applicable to the interpretation of the word “industrial” in S.1(5) of the E.S.I. Act, in view of S.2(24) of the latter Act. The words employed ' or otherwise' should be given the widest possible meaning and therefore, they will cover the educational institutions also. The petitioners contend that the words ' or otherwise' should be given a restricted meaning, following the principle of ejusdem generis. Whether the words should be given a restricted meaning will depend upon the context in which they are used. There cannot be any principle of universal application concerning this. Further, having regard to the words employed in the above sub-section, the principle of ejusdem generis cannot be pressed into service. There is nothing in common between industrial establishment and agricultural establishment. They do not belong to the same genus. The doctrine of ejusdem generis is applied where the words of the Ins. Appl. No.2 of 2016 8 same category are used, followed by general words. In that context, the meaning of the general words can be read down to mean only something similar to the category mentioned preceding them. For the above reasons, the contentions of the writ petitioners that this Court should give a restricted meaning to the words 'or otherwise' cannot be upheld. This Court is bound to take a liberal view and beneficial construction should be employed while interpreting the laws enacted for the benefit of the weaker sections of the society.” In view of the above discussion there are sufficient materials to interfere in the finding of the Court below. The order of the Court below is set aside and the matter is remanded to the trial court for fresh consideration as per law. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge