Gayathri B.S. and Biji A.R. v Employees' State Insurance Corporation and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **WP(C).No. 18541 of 2018** ## **----------------------** ## **PETITIONERS:** ## **-----------** **1. GAYATHRI B.S, AGED 19 YEARS, D/O.BIJI.A.R, 'SOUPARNIKA', VELINALLOOR, OYUR P O, KOLLAM-691510.** **2. BIJI A.R, 'SOUPARNIKA', VELINALLOOR, OYUR P O, KOLLAM-691510.** **BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL SRI.S.SHYAM KUMAR** **RESPONDENTS:** - **------------** **1. THE EMPLOYEES STATE INSURANCE CORPORATION, 'PANCHADEEP BHAWAN, ESI CORPORATION HQ OFFICE, C.I.G. MARG, NEW DELHI-110002, REPRESENTED BY THE DIRECTOR GENERAL.** **2. THE REGIONAL DIRECTOR,** **SUB REGIONAL OFFICE, EST CORPORATION, KOLLAM-691001.** **3. THE BRANCH MANAGER, ESI CORPORATION, BRANCH OFFICE, CHATHANNUR, KOLLAM DISTRICT-691001.** **4. THE DIRECTOR GENERAL,** **'PANCHADEEP BHAWAN', ESI CORPORATION HQ OFFICE, C.I.G.MARG, NEW DELHI-110002.** **5. MINI MUTHOOT NIDHI KERALA LTD., CORPORATE OFFICE, MUTHOOT BUILDING, KOZHENCHERY-689641, PATHANAMTHITTA, REPRESENTED BY ITS CHAIRMAN.** **R1 TO R4 BY SRI.P.SANKARANKUTTY NAIR, SC SRI.SANDESH RAJA R5 BY ADVS. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SRI.AJIT G.ANJARLEKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 18541 of 2018 (P) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS: ----------------------** |**EXHIBIT P1 A TRUE COPY OF THE ADMIT CARD FOR THE NEET**| |---| |**EXAMINATION UNDERTAKEN BY THE IST PETITIONER.**| |**EXHIBIT P2 A TRUE COPY OF THE IDENTITY CARD OF THE 2ND PETITIONER.**| |**EXHIBIT P3 A TRUE COPY OF THE ADMISSION NOTICE DATED 9.5.2018.**| |**EXHIBIT P4 A TRUE COPY OF THE DETAILS OF THE PAYMENT IN**| |**RESPECT OF THE 2ND PETITIONER UNDER THE ESI**| |**SCHEME DOWNLOADED FROM THE WEBSITE OF THE ESI.**| |**EXHIBIT P5 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE**| |**IST PETITIONER FOR WARD OF IP CERTIFICATE BEFORE**| |**THE 2ND RESPONDENT.**| |**EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 30.5.2018 ISSUED**| |**BY THE 2ND RESPONDENT.**| |**EXHIBIT P7 A TRUE COPY OF THE INCOME CERTIFICATE.**| |**RESPONDENTS' EXHIBITS:**<br>**NIL**| |**----------------------**| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 12.07.2018.** ## **DAMA SESHADRI NAIDU, J.** ------------------------------------------ W.P.(C) No. 18541 of 2018 (P) -----------------------------------------Dated: 12[th] July 2018 ## **J U D G M E N T** The petitioners are daughter and father; 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. He continues to be so as along as his salary remains within the statutory ceiling. 2. The employee’s daughter secured a rank in the NEET entrance. To get his daughter admitted in a medical college for the undergraduate course (MBBS/BDS) under the ESI quota, the employee claimed “Ward of Insured Person Certificate” but could not get it. As a result, both the petitioners are before this Court. 3. The Corporation admits that the employer registered the employee’s name under the ESI scheme on 16.05.2002. The W.P.(C) No.18541/2018 2 Corporation's principle objection, however, concerns nonpayment of contribution from June 2015 to December 2016. But from January 2017 onwards, the employer resumed the contributions. So for two contribution periods—that is from 30th March 2016 to 30th September 2016—there were no contributions; nor was there, evidently, any attendance. In the contribution period ending September 2015, the employee worked only for 60 days against the minimum required 78 days. On these grounds, the Corporation rejected the employee’s claim. 4. Heard the learned Counsel for the petitioners and the learned Standing Counsel for the Corporation. 5. As seen from the records, and as emerges from the rival submissions, the employee went out of the reckoning for two contribution periods. Under clause 4.5 of the admission policy, the Insured Person must have worked for minimum 78 days in each of the nine contribution periods. He could fall short of 78 days in any two contribution periods, though, "on account of W.P.(C) No.18541/2018 3 exigency/exigencies beyond the control of the IP". Then, two immediately preceding contributions could be counted in: 9+2. In other words, out of 11 contribution periods, the employee should have the minimum attendance and contributions for nine periods. 6. Here, even the Corporation admits that the employee could take advantage of this “exigency clause” because the immediate two preceding contribution periods have the minimum number of working days and contributions. 7. But the Corporation also asserts that, besides these two exigencies, the employee worked for only 60 days in the contribution period ending on 30th September 2015. The employee, on the other hand, has contended that after 60 days in that period, he went out of the ceiling. He went out of reckoning because his salary was enhanced beyond the ceiling limit. But soon, with the ceiling limit increased, the employee again came back into the ESI fold by January 2017. W.P.(C) No.18541/2018 4 8. We may examine Section 2(9) which defines an 'employee'. The definition also contains which classes of employees have been excluded from the purview of the Act. Section 2(9)(iii)(b) mandates thus: (9) "employee" means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and-- . . . but does not include-- (a) . . . [(b) any person so employed whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government a month: Provided that an employee whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period; 9. As seen from the above extract, the proviso keeps the employee within the fold of the Act if his or her salary crosses the sealing limit after the contribution period begins. Here the employee in that contribution period was drawing salary within the ceiling for sixty days. Put it differently, the employee involuntarily, as a matter of statutory compulsion, went off the scheme in the middle of one W.P.(C) No.18541/2018 5 contribution period. So for that period, under Section 2(9)(iii)(b), it must be reckoned as if the employee had continued to be within ceiling. 10. This Court in _Bindu Radhakrishnan v. ESI Corporation[1]_ has held that if an employee goes out of the reckoning because of wage revision but is again brought back into the scheme with the enhanced minimum ceiling, that employee ought to be treated as if he had continued to be an employee all through. This proposition of law remains undisturbed. 11. So on the nonpayment for two contribution periods, the petitioner could take advantage of the exigency provided under clause 4.5 of the policy. And on his working in another contribution period for only 60 days, the proviso to Section 2(9)(iii)(b) takes care. 12. I, therefore, hold that the employee is entitled to have the “Ward of Insured Person Certificate under Group I". 1 2017 (4) KHC 876 W.P.(C) No.18541/2018 6 As a result, I allow the writ petition, directing the Corporation to issue 'Ward of Insured Person Certificate' to the employee under Group I. No order on costs. Sd/DAMA SESHADRI NAIDU JUDGE jjj 12/07/2018