KERALA STATE EX-SERVICE LEAGUE, MALAPPURAM DISTRICT COMMITTEE v. E.S.I. CORPORATION & THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **TUESDAY, THE 14TH DAY OF AUGUST 2012/23RD SRAVANA 1934** ## **WP(C).No. 32105 of 2007 (V)** **---------------------------------------** **PETITIONER:** ## **-------------------** **KERALA STATE EX-SERVICE LEAGUE, MALAPPURAM DISTRICT COMMITTEE, VIMUKTHABHADA BHAVAN, JUBILEE RAOD, MALAPPURAM, REPRESENTED BY ITS PRESIDENT COL.P.M.HAMEED, SM (RETD.).** **BY ADV. SRI.P.RAMAKRISHNAN.** **RESPONDENTS:** **------------------------** **1. E.S.I. CORPORATION, PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, P.B.NO.2, THRISSUR, REPRESENTED BY ITS REGIONAL DIRECTOR.** **2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR AND REHABILITATION, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN, S.C, R2 BY GOVERNMENT PLEADER SRI. V. VIJULAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.32105/2007-V:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE NOTIFICATION DTD. 28/04/03 ISSUED BY THE R.2.** **EXT.P.2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.3: COPY OF THE LETTER DTD. 19/07/07 FROM THE R.2. TO THE PETITIONER.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.32105 of 2007** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of August, 2012** ## **J U D G M E N T** The petitioner is an establishment coming within the purview of Employees State Insurance Act, 1948. On the ground that they are providing better benefits to their employees under the Ex-servicemen Contributory Health Service Scheme started by the Government of India, Ministry of Defence, the petitioner applied for exemption from the purview of the provisions of the Employees State Insurance Act. As evidenced by Ext.P1, the petitioner was being given exemption from year to year from the provisions of the ESI Act. The same was given up to December 2005. The petitioner filed Ext.P2 application for exemption for the period from 01.01.2006 to 31.12.2007. In that application, the petitioner specifically gave the following as the reasons for seeking exemption: “As per the latest outcome all ESM are covered under ExServiceman Contributory Health Scheme (ECHS) started by Govt. of India Ministry of Defence vide their letter No. 22(I)/ 01/JS/D(Res) dated 30 Dec.2002. In Kerala alone 11 poly clinics W.P.(C)No.32105 of 2007 **-2-** are in each District has been sanctioned and started functioning. As many as 14 super speciality Hospitals are panelled. Another 15 Super Speciality Hospitals are being panelled in 2005. Every ESM has the option to get full treatment for himself, wife, dependent children, dependant parents and including divorced/widowed daughters for life. Hence it is submitted that the facilities offered are the best in India.” But by Ext.P3 (2 line order) the Government rejected the request on the ground that the facilities provided by the establishment are not similar or superior to the facilities provided under the ESI Scheme. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: - “a) Issue a writ of certiorari or other appropriate writ, order quashing and setting aside Ext.P-3. - b) A writ of mandamus or any other appropriate writ, order directing the 2[nd] respondent to exempt the petitioner from the provisions of the ESI Act for the period 1/1/06 to 31/12/07, - c) hold that the petitioner is entitled to exemption from the provisions of the ESI Act in view of the benefits available to its members under the ECH Scheme.” 2. The petitioner's contention is that Ext.P3 is a non- speaking order. According to them, no reasons are mentioned in Ext.P3 except a bald statement that the facilities provided by the establishment are not similar or superior to the facilities provided under the ESI Scheme. W.P.(C)No.32105 of 2007 **-3-** According to the petitioner, for coming to that conclusion, the Government should first compare the two facilities. The petitioner submits that the following are the facilities provided under the Ex-Servicemen Contributory Health Scheme. “7. It is submitted that membership in the scheme is granted on a one-time contribution ranging from Rs.1,800/- to Rs.18,000/- depending on the rank of the personal. The advantages of becoming a member of Ex-servicemen Contributory Health Scheme as provided in the scheme is as follows:- - a) The scheme will provide comprehensive medicare to all ESM pensioners, their widows and authorized dependants and is within easy reach, - b) It will cover complete spectrum of ESM setted in far flung areas through a network of polyclinics in Military and non-Military stations. - c) The scheme is fully financed by the Government, - d) There will be a network of 227 polyclinics, ie. 104 Military and 123 Non-Military Stations Polyclinics, based entirely on density of ESM in various regions. The number of Polyclinics may increase in subsequent years. - e) This arrangement will reduce load on Service Hospitals as there will be an exclusive facility located along side service hospitals. - f) There will be civil empanelled hospitals, diagnostic centers and consultants to provide in patient treatment/consultancy, in addition to service hospitals. - g) The doctors at Polyclinics will provide required outpatient treatment and medicines, free of cost. W.P.(C)No.32105 of 2007 **-4-** - h) For further treatment, an ECHS patient will be referred initially to a service hospital and, in case of non availability of bedspace/treatment, he will then be sent to a civil empanelled hospital. The ECHS member will be provided treatment, medicines and ward facilities as per entitlement. - j) The procedure for dealing with an ECHS member of his/her dependants in service hospitals will be the same as for serving soldiers and their dependants, - k) The ECHS patient can also be referred to the desired empanelled hospital/diagnostic center/consultant as per choice of the ECHS patient in case of non-availability of treatment in service hospital. The ECHS member alone will have the right to make the selection of desired civil empanelled hospital and will not be influenced by any doctor. - l) An ECHS member does not have to clear bills or make payment (except for dietary charges) either on admission or when discharged from the empanelled hospital. The empanelled hospitals will be paid directly by the concerned Station headquarters on behalf of ECHS. - m) It covers all diseases. - n) An ECHS member who possesses a valid Smart Card can avail of treatment at any ECHS Polyclinic any where in India. - o) There is no restriction on age or medical condition at the time of seeking membership of the scheme.” The petitioner submits that these facilities are at least similar to the facilities provided under the ESI scheme. Therefore, according to the petitioner, Ext.P3 order is clearly unsustainable. W.P.(C)No.32105 of 2007 **-5-** 3. A counter affidavit has been filed by the 2[nd] respondent supporting the impugned order. According ## to the 2[nd] respondent, the following are the facilities provided under the ESI scheme. “6. The ESI (Medical) Scheme provides full range of medical care, namely-(i) Out Patient Services (ii) Specialist Services and (iii) Hospital Service through a net work of Dispensaries, Diagnostic Centres and ESI Hospitals etc. Super Specialities are provided to the beneficiaries through out the country's most advanced medical institutions for which payment is directly made by ESI Corporation to the Institutions concerned. There is no caption expenditure on medical benefits. The comprehensive medical care package provided under the scheme consists of: - i. Out patient treatment. - ii. Domiciliary treatment - iii. Specialist Consultation - iv. In-patient treatment - v. Free supply of Drugs, dressings and artificial limbs aids and appliances. - vi. X-ray and Laboratory investigations. - vii. Vaccination and preventive inoculations. - viii. Anti-natal care, confinement and post-natal care. - ix. Ambulance Service or conveyance charges for going to Hospitals, Diagnostic Centres, etc. - x. Family Welfare Service and other National Health Programme Services - xi. Medical Certifications and - xii. Special provisions. W.P.(C)No.32105 of 2007 **-6-** 7. The cash benefits provided under the scheme comprises of:- - i. Sickness benefit equivalent to 50% of wages for 91 days in two consecutive benefit periods. - ii. Extended sickness benefit for 29 specified long term diseases is provided at the rate of about 70% of wages for a maximum up to 2 years. - iii. Enhanced Sickness Benefit for 7/14 days is provided for family welfare operations at the rate of about full wages. - iv. Temporary Disablement Benefit at about 70% of wages is provided without any contributory conditions. - v. Permanent Disablement Benefit is provided at the rate of 70% of wages as a percentage of Disablement Benefit rate depending upon loss of earning capacity without any contributory conditions. - vi. In case of death of the worker due to employment injury, dependant benefit at the rate of about 70% of wages is provided to widow and dependant children. - vii. Maternity Benefit is provided to Insured Women at the rate of Full Wages for three months which is extendable by further one month for sickness arising out of pregnancy subject to payment of contribution for 80 days in the immediately proceeding two contribution periods. 8. Apart from the above ESI Scheme provides inter- alia the following reliefs to its beneficiaries; - a) Funeral expenses of Rs.2,500/- to the eldest surviving member of the family. - b) Confinement expenses of Rs.1,000/- per case to an Insured woman and Insured person in respect of his wife as provided under Rule 56 A. - c) Vocational Rehabilitation scheme for permanently disabled insured persons, etc.” ## W.P.(C)No.32105 of 2007 **-7-** The 2[nd] contention of the 2[nd] respondent is that the petitioner is not providing facilities equal or superior to those facilities provided under the ESI scheme. 4. I have considered the rival contentions in detail. 5. For deciding the question as to whether the facilities provided by the establishment are not similar or superior to the facilities provided under the ESI scheme, what the Government has to do is to compare the two. But that need not be with mathematical exactitude. If generally both are similar facilities, then the petitioner would be entitled to exemption. But for that, the first thing the 2[nd] respondent should do is to compare the two. Apart from narrating the benefits under the ESI scheme, they have not stated that they have compared the facilities provided under the Scheme of the Central Government to Ex-servicemen, to come to the conclusion that the facilities provided under that scheme are not similar or superior to those facilities granted under the ESI scheme. Therefore, I am of opinion that the Government has not considered the matter in the ## W.P.(C)No.32105 of 2007 **-8-** right perspective. For that reason, Ext.P3 is liable to be quashed. I do so. The 2[nd] respondent is directed to reconsider the matter in the light of the observations made above, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. 6. At the time of admission, I passed the following interim order on 30.10.2007: “Admit. Sri. T.P. Ibrahim Khan takes notice on behalf of the first respondent. Issue notice by speed post to the 2[nd] respondent. The petitioner shall keep the contributions payable, both employers and employees shares in a separate account in a nationalised bank under intimation to the 1[st] respondent from which no withdrawals shall be made. On that condition the first respondent shall not require the petitioner to pay contributions.” That interim order would continue to be in force until further orders are passed by the 2[nd] respondent as directed above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/