Pallikkal Educational Co-Operative Society Ltd. v. Joint Registrar of Co-operative Societies (G), Malappuram; Recovery Officer, Regional Office of Employees' State Insurance Corporation; Employees' State Insurance Corporation, Regional Office (Kerala); Deputy Director, Sub Regional Office, Employees' State Insurance Corporation; Secretary to Government, Labour and Rehabilitation (B) Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 30TH DAY OF AUGUST 2016/20168TH BHADRA, 1938** ## **WP(C).No. 26136 of 2015 (N)** **----------------------------** **PETITIONER:** - **--------------------** **THE PALLIKKAL EDUCATIONAL CO-OPERATIVE SOCIETY LTD NO. M 576., CALICUT UNIVERSITY P.O., MALAPPURAM, REPRESENTED BY ITS SECRETARY.** ## **BY ADV. SRI.P.P.JACOB** **RESPONDENTS:** - **-----------------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), MALAPPURAM, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCITIES (G), MALAPPURAM, PIN-676 505.** **2. THE RECOVERY OFFICER,** - **REGIONAL OFFICE OF THE EMPLOYEES STATE INSURANCE CORPORATION, REGIONAL OFFICE (KERALA), PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, POST BAG NO.2, THRISSUR, PIN-680 020.** **3. THE EMPLOYEES STATE INSURANCE CORPORATION, REGIONAL OFFICE (KERALA), PANCHDEEP BHAVAN,** **NORTH SWARAJ ROUND, POST BAG NO.2, TRISSUR, PIN-680 020, REPRESENTED BY ITS REGIONAL DIRETOR.** **4. THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE,** **EMPLOYEES STATE INSURANCE CORPORATION, HOUSE FED COMPLEX, KOZHIKODE, PIN-673 001.** **5. THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION (B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **R1 & R5 BY SR GOVERNMENT PLEADER SRI.SAIGY JOSEPH PALATTY R2 TO R4 BY ADV. SRI.P.SANKARANKUTTY NAIR,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 26136 of 2015 (N)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------------------------** **EXHIBIT P1- TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER DATED 26-6-99.** **EXHIBIT P2- TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE BYELAW PAGES 1 & 2 OF THE PETITIONER.** **EXHIBIT P3- TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE FOURTH RESPONDENT TO THE PETITIONER DATED 9-3-2015.** **EXHIBIT P4- TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FOURTH RESPONDENT TO THE SECOND RESPONDENT DATED 21-5-2015.** **EXHIBIT P5- TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER DATED 24-7-2015.** **EXHIBIT P6- TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER DATED 4-8-2015.** **EXHIBIT P7- TRUE PHOTOCOPY OF THE NOTIFICATION BEARING NO. G.O.(P) 135/2007/LBR DATED 8-10-2007 ISSUED BY SECOND RESPONDENT.** **RESPONDENT(S)' EXHIBITS:** ## **NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 26136 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of August, 2016 ## J U D G M E N T The petitioner, an Educational Co-operative Society challenge the coverage attempted by the respondent ESI Corporation, of the employees of the petitioner society based on Ext.P7 notification issued by the Government. The petitioners contentions are manifold. First it is contented that the reference to societies in Ext.P7 notification is only with respect to the societies registered under the Societies Registration Act, 1860. To advance this contention, the petitioner refers to the entries in List I and List II of the Seventh schedule to the Constitution of India. Entry 43 of List I is referred, to argue that the Co-operative Societies have been specifically excluded there under, while Entry 32 of List II includes Societies and also specifically Co-operative Societies which WPC.No.26136/2015 : 2 : clearly brings out the distinction; is the contention. 2. Further, it is claimed that the petitioner is an Educational Co-operative Society formed as such, and categorized under item No.8 of Rule 15 of the Kerala Co-operative Societies Rules, 1969. The Kerala Co-operative Societies Act, 1969; which statute is the source of power for creation of the society, confers by Section 80, power on the Government to make Rules regarding the recruitment and conditions of service of employees of societies. The Government is said to have issued pay revision orders by which the reimbursement of medical facilities have also been granted to its employees. The petitioner also contends that the benefits applicable under the ESI Act is being paid to the employees of the respondent Corporation, as per the pay revision orders. 3. The learned Standing Counsel appearing for the respondent Corporation however would contend that the coverage extended by Ext.P7 is not to societies, but to Educational WPC.No.26136/2015 : 3 : Institutions carried on by any organisations. Reliance is also placed on 2009(3) KLT 421 (Kerala CBSE School Managements Association and others v. State of Kerala and others) and ILR 2016 (3) Kerala 19 (Holy Family English Medium L.P School v. Employees' State Insurance Corporation and others) to counter the arguments of the petitioner. The learned Senior Government Pleader also support the contention of the Corporation. The coverage of educational institutions affiliated to the Central Board Of Secondary Educations have been upheld in the above cited decisions, the former of which was rendered on a direct challenge in a writ petition and the latter from an order of the Employees Insurance Court. The principle of liberal construction of a welfare measure adopted by the State, is squarely applicable here too, and requires no reiteration. 4. The various entries from the Constitution pointed out by the petitioner would not be relevant, to consider whether a Co-operative Society is included under the notification. The WPC.No.26136/2015 : 4 : Constitution provides, in the Lists under the Seventh Schedule, broadly, the subjects on which the Union or the State has exclusive powers to legislate or has concurrent power so to do. There is no distinction as such between Societies and Co-operative Societies, as discernible from the entries in the two Lists. Co-operative Societies are treated differently only to confer power on the State to make legislation with respect to such societies and cannot lead to a situation when even a general reference to societies result in necessary exclusion of Co-operative Societies. 5. The next contention is that the petitioner is an Educational Co-operative Society and not an educational institution which is belied by Ext.P2, Bye-laws of the petitioner society. The Objects of the Society as is evident from Ext.P2, is to establish and conduct parallel and tutorial colleges, conduct of seminars and study classes, to conduct literacy campaign, short Training Course and so on and so forth with specific authority conferred for fee collection from students and trainees; which is WPC.No.26136/2015 : 5 : said to be one of the sources of the funding of the Society. In such circumstance, it cannot be said that the Society is not an Educational Institution especially since its objects indicate the dominant function to be one of imparting education. 6. As was specifically pointed out by the learned Standing Counsel, Educational Institutions are extended the coverage under the ESI Act, as per Ext.P7 and the reference to societies is only to specify the category of management which carry on the educational institutions. The specific notification reads as 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. The minimum number of employees in so far as the State of Kerala is concerned is further reduced and notified as 10. The power to notify is sourced from Section 1 (5) of the Employees State Insurance Act; and the words used therein, “or otherwise” for WPC.No.26136/2015 : 6 : roping in any establishment was held to have a wide amplitude in the above referred decisions. Hence, any educational institution managed by any organization would be covered under the ESI Act and there cannot be any exclusion of Co-operative Societies; since societies alone are mentioned in the notification. Further, the Co-operative Societies having not been specifically excluded, the reference to societies would definitely take in those registered under the Societies Registration Act and that registered under the Kerala Co-operative Societies Act or any other enactment like the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955. 7. As to the contention of similar benefits being payable to the employees of the petitioner by pay revision orders issued by the Government; none are produced or pointed out to this Court when arguments were addressed. That contention would, in any event, have to be agitated by the petitioner under Section 87 of the Employees State Insurance Act, 1948. A WPC.No.26136/2015 : 7 : reference made by the petitioner to Section 61 of the ESI Act, does not at all help the petitioner since it relates to the bar of benefits under other enactments if an employee is entitled to any benefits provided under the ESI Act. Hence when coverage is attempted, and enforced, then, the pay revision orders or the rules framed for reimbursement of medical expenses would not be applicable to the employee covered and any such benefits would have to be availed of from the Corporation. The writ petition is hence found to be devoid of merit and the same is dismissed, however, leaving open the remedy of the petitioner to approach the appropriate authority under Section 87 of the ESI Act. Writ petition would stand dismissed. No costs. Sd/- ## (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge