Parveen Ibrahim & Rehana Ibrahim v Employees' State Insurance Corporation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941** ## **WP(C).No.13871 of 2019** ## **PETITIONER/S:** |**1**||**PARVEEN IBRAHIM,**| |---|---|---| |||**ULLALIL HOUSE, SOUTH VAZHAKKULAM, ALUVA, ERNAKULAM-**| |||**683 105**| |**2**||**REHANA IBRAHIM, AGED 46 YEARS,**| |||**ULLALIL HOUSE, SOUTH VAZHAKKULAM, ALUVA,**| |||**ERNAKULAM-683 105**| |||**BY ADVS.**| |||**SRI.AJI V.DEV**| |||**SMT.O.A.NURIYA**| |||**SRI.ALAN PRIYADARSHI DEV**| |**ENT/S**|**:**|| |**1**||**THE EMPLOYEES STATE INSURANCE CORPORATION,**| |||**PANCHDEEP BHAWAN, ESI CORPORATION HQ OFFICE,**| |||**C.I.G.MARG, NEW DELHI-110 002,**| |||**REPRESENTED BY THE DIRECTOR GENERAL.**| |**2**||**THE DIRECTOR GENERAL,**| |||**PANCHDEEP BHAWAN, ESI CORPORATION HQ OFFICE,**| |||**C.I.G. MARG, NEW DELHI-110 002.**| |**3**||**THE DIRECTOR,**| |||**SUB REGIONAL OFFICE, ESI CORPORATION, KALOOR,**| |||**ERNAKULAM-682 017**| |||**BY ADVS.**| |||**SRI.P.SANKARANKUTTY NAIR**| ## **RESPONDENT/S:** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **WP(C).No.13871 of 2019** ## **JUDGMENT** ## **Vinod Chandran, J.** **The 1[st] petitioner is a student, who claims status of "Ward of an Insured Person' on the basis of the employment of the 2[nd] petitioner, her mother, who, according to the petitioners, is an "Insured Person" as stipulated in Exhibit P3. The contention of the petitioners is that the father-in-law of the 2[nd] petitioner was carrying on a business in the name of "Friends Granites, Metal Crusher". The 2[nd] petitioner had also been an employee in the business and her contribution to the Employees' State Insurance Comporation ["Corporation" for brevity] is also paid, as is evident from Exhibit P2. It is also asserted, though without any substantiation, that after Exhibit P2, continuously there was payment upto 2011. In the year 2011, online filing of returns were required by the Corporation and in such circumstance, the father-in-law of the 2[nd] petitioner had entrusted the return filing work to another, not being proficient in computers. The person who had been entrusted the work had filed the returns; but, however, the 2[nd] petitioner's name was omitted. Later, from 2013 onwards no returns were filed and subsequently the husband of the** **- 3 -** **WP(C).No.13871 of 2019** **2[nd] petitioner, who took over the business from his father, had filed the returns and paid up the arrears; in the case of the 2[nd] petitioner from 01.11.2013, as is evidenced by Exhibit P5. The entire arrears and interst were paid up by the husband of the 2[nd] petitioner and the 2[nd] petitioner is an "Insured Person" as on 31.10.2018 as stipulated in Annexure-1 of Exhibit P3 Prospectus.** **2. It is also submitted that in fact in the earlier year there was a Note to the Definition, which stipulated that the insured person should have continuous insurable employment for the past five years, which, however, is notably absent from the Prospectus for the current year. The current Prospectus only stipulates that the "Insured Person" should be a person who is or was an employee in respect of whom contributions are/were payable under the Employees' State Insurance Act, 1948 [for brevity "ESI Act"]. Though the contributions were not paid in time and now it has been paid as per the returns filed by the employer, the contributions with respect to the 2[nd] petitioner-employee is remaining payable or were payable as on 31.10.2018 and, hence, she has to be deemed to be an insured person under the prospectus, is the specific contention raised. Section 39 of the ESI Act is** **- 4 -** **WP(C).No.13871 of 2019** **specifically relied on to contend that the contributions if failed to be paid in time, the liability is only payment of interest and there cannot be a disability incurred in the nature of the employee being excluded from the definition of "Insured Person"; when it is otherwise even in accordance with the statute. The learned Counsel would also rely on a judgment of a learned Single Judge in** _**Hari R. Nair & Others v**_ **.** _**The Director General, New Delhi & Others**_ **[WP(C) No.17305 of 2018 & connected cases, decided on 04.07.2018] to contend that even when by failure of the employer the contributions remained in arrears, definitely the employee should be given the benefit of an "insured person" since though not paid, the contributions were payable and such an employee also came within the definition of an "insured person" as seen from the prospectus.** **3. The respondent-Corporation has filed a counter affidavit specifically denying the various averments made by the petitioners. The Corporation raises serious doubts as to the genuineness of Exhibit P2 and also grave suspicion against the specific employee covered under Exhibit P2. The learned Standing Counsel would point out that Exhibit P5 is the application filed by the** **- 5 -** **WP(C).No.13871 of 2019** **applicant-petitioner, which shows the Insurance number of the insured person "Rahana Ibrahim" as "4702124009". The numbers "470", according to the learned Standing Counsel, identifies the location of the business. The number identifying the employee itself is "2124009". In Exhibit P2, the identification number of "54-2124009" is with respect to one "Raihanath" and not "Rahana Ibrahim", the 2[nd] petitioner. It is also contended that there is a specific Note appended to the definition of 'Insured Person' in the current Prospectus, which mandates the eligibility under the "Insured Person Quota" being confined to a person who is an "Insured Person', as per the E.S.I Act, as on 31.10.2018. It is pointed out that there is clear distinction of facts insofar as the judgment in** _**Hari R.Nair**_ **, wherein the employer was found to have defaulted in paying the contributions. In the present case, without prejudice to the suspicion raised against the very employment of the 2[nd] petitioner, it is brought to our notice that the 2[nd] petitioner's specific contention is that her husband was the employer. Further, it is also pointed out that in any event there was no continuous employment from 2011 to 2013, to the 2[nd] petitioner. Even according to the 2[nd] petitioner, there were no contributions paid in her** **- 6 -** **WP(C).No.13871 of 2019** **name between 2011 and 2013.** **4. We first look at** _**Hari R.Nair**_ **, wherein, according to the learned Counsel for the petitioner, the facts are similar to that in W.P(C) No.19850 of 2018. There, the applicant was a Nurse, who began her career in a private hospital and later joined the Government service. The employer of the applicant-parent at the time of admission was working with the National Health Mission (NHM), a Government of Kerala undertaking. NHM was a Central Government project, implemented by the State Government and the employer was required to register their workers under the ESI Act and pay contributions, which they failed to do. Therein, the finding was specifically on the facts as found above, which we find is clearly distinguishable here. Here, we note with emphasis that the employer is the husband of the 2[nd] petitioner, the father of the student who is claiming status of "Ward of Insured Person" for preferred treatment for the purpose of admission to a professional course. The declaration in** _**Hari R. Nair**_ **that the words "were payable" in the prospectus refers to an unfulfilled past event. When the contributions remain unpaid it brings in only the liability to interest and not a disqualification as such, but that** **- 7 -** **WP(C).No.13871 of 2019** **cannot be applied in the facts as coming forth here which indicates a clear collussion by the employer and employee, who are husband and wife to enable a preferential benefit in favour of their ward.** **5. We also take into account the fact that the petitioners have failed to establish that the 2[nd] petitioner had an employment from 1998 onwards, since it is not clear as to who the employee specifically referred to in Exhibit P2 is. Then again admittedly there were no contributions paid between 2011 and 2013. If the 2[nd] petitioner was claiming continuous employment from 1998, there is no reason why the 2[nd] petitioner's employer did not pay the contributions for the period between 2011 and 2013. We say this again noticing the fact that there is also no substantiation of the continuous employment from Exhibit P2 onwards. We then notice that in Exhibit R3, which is also produced by the petitioner as Exhibit P5, the date of appointment of the 2[nd] petitioner is shown as 01.11.2013. Admittedly the earlier Prospectus stipulated a condition that an insured person should have a continuous insured employment for five years as on the specified date. The attempt of the petitioners obviously is to see that the 2[nd] petitioner can raise a contention as to continuous insured** **- 8 -** **WP(C).No.13871 of 2019** **employment for five years especially since at the time of payment of the arrears the Prospectus for the current year had not been published.** **6. We further notice the stipulations as per the prospectus at paragraph 8 for an 'Insured Person', which is extracted hereunder:** - **"8. Insured person for availing the benefit of MBBS/BDS seats for his/her wards shall be 'as defined under Section (2), section (14) of the ESI Act, 1948', as on 31[st] October, 2018. Definition under Section (2), sub-section (14) of he ESI Act, 1948 isreproduced as under;** **"** _**Insured person" means a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is by reason thereof, entitled to any of the benefits provided under this Act".**_ _**Note: The critical date of eligibility under 'IP Quota' would be 31/10/2018, i.e., only a person who is 'Insured Person' as per the Act, as on 31/10/2018 would be eligible for availing benefit under the 'Insured Persons' Quota for his/her child/children**_ **".** **We perfectly agree with the learned Single Judge that the words "were payable" would take in even employees whose contributions were deliberately or on inadvertent omission not paid up by the employer. But, the said declaration of law cannot be applied to the facts of the present case, since obviously the husband of the 2[nd] petitioner/employee is the employer of the 2[nd] petitioner as projected by the** **- 9 -** **WP(C).No.13871 of 2019** **case of the petitioners themselves. Further we notice the Note as extracted hereinabove, which mandates that an insured person should be one who has such status as on 31.10.2018. As on 31.10.2018, obviously the 2[nd] petitioner did not have the status of an insured person, since she was neither registered under the ESI Act nor the contributions paid. The Note hence makes the principle of** _**Hari R. Nair**_ **inapplicable to the current year and the Prospectus. The contributions were paid far later on 07.03.2019; which payment, according to us, was only a subterfuge employed to come within the ambit of the preferential benefit as conferred by the Prospectus of the Corporation. We, hence, dismiss the writ petition. No order as to costs.** **Sd/K.VINOD CHANDRAN JUDGE Sd/V.G.ARUN JUDGE** **- 10 -** **WP(C).No.13871 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE NEET ADMIT CARD.** **EXHIBIT P2 A TRUE COPY OF THE RETURNS FILED FOR THE PERIOD 01.10.1998 TO 31.03.1999.** **EXHIBIT P3 A TRUE COPY OF THE ADMISSION NOTICE DATED 13.05.2019 FOR THE YEAR 2019-20** - **EXHIBIT P4 A PRINTOUT OF THE SCREENSHOT.** - **EXHIBIT P5 A TRUE COPY OF THE E-PAHCHAN CARD OF THE 2ND PETITIONER.** - **EXHIBIT P6 A TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 16.05.2019 WITH ENGLISH TRANSLATION.** - **EXHIBIT P7 A TRUE COPY OF THE MUSTER ROLL FOR THE MONTH OF OCTOBER 2018.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R3 TRUE COPY OF THE ONLINE IP DATABASE OF THE 2ND PETITIONER (E-PEHCHAN CARD) INS.NO.4702124009.** **EXHIBIT R3(A) TRUE COPY CONTRIBUTORY PARTICULAR IN RESPECT OF THE EMPLOYEE.** **Vku/-** **[ true copy ]**