Sobhini K.R. v. Employees' State Insurance Corporation, United Distilleries, and Compass HR Consultancy

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940** **WP(C).No. 17588 of 2018** ## **PETITIONER(S)** **SOBHINI K.R., AGED 42 YEARS, W/O. MOHANAN K.V., KOLAKKADAN VEETIL, KONGANOOR P.O., ATHOLI, CALICUT- 673 315.** **BY ADVS.SRI.B.DEEPAK** **SRI.KARTHIK BHAVADASAN** ## **RESPONDENT(S):** **1. EMPLOYEES STATE INSURANCE CORPORATION, REPRESENTED BY ITS MANAGER, CALICUT- 673 101.** **2. UNITED DISTILLERIES, ERANJHIKKAL, VENGALIPARA P.O., KOZHIKODE- 673 303.** **3. COMPASS HR CONSULTANCY, 12/512 1ST FLOOR, NAVANETHAM, KRISHNAKANADHI COLONY, PUTHUR ROAD, PALAKKAD- 678 001.** **R1 BY ADV. SRI.P.SANKARANKUTTY NAIR, S.C** **BY ADV. SRI.K.SANDESH RAJA, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-07-2018, ALONG WITH W.P.(C)NO. 17122 OF 2018 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **12.07.2018** **WP(C).No. 17588 of 2018 (W)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1:- TRUE COPY OF THE IDENTITY CARD ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT CORPORATION DATED 01-06-2007. EXHIBIT P2:- TRUE COPY OF THE E-PENCHAN CARD ISSUED BY THE 1ST RESPONDENT CORPORATION SHOWING THE REGISTRATION DETAILS. EXHIBIT P3:- TRUE COPY OF THE ADMISSION POLICY ISSUED BY THE 1ST RESPONDENT CORPORATION IN ITS WEBSITE EXHIBIT P4:- TRUE COPY OF THE ADMIT CARD OF THE PETITIONER'S DAUGHTER OF NEET EXAM. EXHIBIT P5:- TRUE COPY OF THE APPLICATION BY THE PETITIONER'S DAUGHTER FOR ISSUANCE OF 'WARD OF INSURED PERSON' CERTIFICATION FOR ADMISSION IN ESI MEDICAL COLLEGE FOR UG COURSE(MMBS/EDS) UNDER THE INSURED PERSON QUOTA FOR THE ACADEMIC SESSION 2018-2019. EXHIBIT P6:- TRUE COPY OF THE CONTRIBUTIONS MADE BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT CORPORATION FROM 01-10-2010 TILL DAY. EXHIBIT P7:- THE TRUE COPY OF THE ORDER DATED 28-05-2018 ISSUED BY THE 1ST RESPONDENT CORPORATION.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** **12.07.2018** ## **DAMA SESHADRI NAIDU, J.** ------------------------------------------ W.P.(C) Nos. 17588, 17122, 18251, 17629, 17734, 17895, 17945, 18084, 18085 and 18086 of 2018 -----------------------------------------Dated: 11[th] July, 2018 ## **J U D G M E N T** Many employees falling within the protective cover of the Employees’ State Insurance Act, 1948, (the Act) have approached this Court seeking “Ward of Insured Persons” certificate from the ESI Corporation (the Corporation). They want that certificate for their children who got qualified in NEET examination for admission into medical undergraduate course (MBBS and BDS). 2. This Court disposed of most writ petitions under two categories: (1) the employees whose employer paid contribution and filed returns beyond the prescribed period; and (2) the employer registered the employees under the ESI scheme late. 3. This Court has held in those two batches—W.P. (C) No.17305 of 2018 & Others and W.P. (C) No.17274 of 2018 & Others— that the employer's delay in contributing or in filing the returns ## **W.P.(C) No.17588/2018 and connected cases** **-2-** should not be fatal. In those cases, the employee should have the benefit, subject to her fulfilling the other conditions. This Court has further held (in the Second Batch) that the date of registration is the basic reckoning and any delay in registration is incurable. Now, all these writ petitions are disposed of following the same criteria. 4. Before appreciating each individual case, I will first set out, shorn of unnecessary details, the Corporation’s Scheme and Policy. ## **The Corporation and Its Admission Policy:** 5. ESI Corporation, a statutory body established under the ESI Act, 1948, is under the administrative control of Ministry of Labour & Employment, Government of India. It has started Medical Education Institutions across the country. The Central Government has approved the Corporation's admission policy and procedure for undergraduate (MBBS/BDS) Course in ESIC Medical Education Institutions. The policy provides for 'Insured Persons (IPs) Quota' after completing the "All India Quota" and the "State Government **W.P.(C) No.17588/2018 and connected cases** **-3-** Quota." Under the ESI Scheme, the "Wards of Insured Persons" who meet the eligibility criteria and who have been qualified in NEET (UG)-2018 will be eligible under the 'Insured Persons Quota' for academic session 2018-19. 6. As it annually does, the Corporation now too has come up with a modified admission policy, and the policy fixes all the norms of admission. Many Insured Persons have challenged a few provisions of this policy. They all contended that those offending provisions are arbitrary and unreasonable, falling foul of Part III of the Constitution of India. ## **The Policy and the Problem:** 7. The employees’ children, indeed, secured ranks in the NEET entrance. But they will not get admission into UG Course (MBBS) in the Corporation’s colleges—under the Insured Persons quota—unless they produce the certificate. The Admission Scheme or Policy, 2018, mandates so. So the employees, “Insured Persons” under the Act, applied to the Corporation for the “Ward of Insured ## **W.P.(C) No.17588/2018 and connected cases** **-4-** Persons” certificate for their children. It was denied. The Corporation maintained that employees would get the certificates based on the date of the “registration.” The continuous insurable employment begins form the date the employer registered the employee’s name with the Corporation. 8. The 'Insured Persons’ quota comes after the All India Quota and the State Government Quota. To get the certificate, the employees relied on various provisions of the Act; on the other hand, the Corporation has insisted that it is the Scheme of Admission that governs the issue and that alone prevails. According to it, the Act has nothing to do with the admissions. So we will pay attention to the Admission Scheme and, then, try to reconcile it with the Act if it binds the Scheme. ## **The Admission Scheme & Policy:** 9. The Corporation issued the Admission Notice on 9th May 2018, stipulating the criteria for “Admission of ‘Wards of Insured Persons’ (IPs) in UG Course (MBBS/BDS) . . . Under-Insured Persons **W.P.(C) No.17588/2018 and connected cases** **-5-** (IPs) Quota’ for Academic Session 2018-19.” The Guiding Principle (GP) 5.2.1 divides the candidates into three groups: Group I, Group II, and Group III. The division is on “merit cum preference” basis. And every applicant seeking admission must have a valid 'Ward of Insured Persons' Certificate issued by a competent authority—that is, the Corporation. According to GP 6.2 of the Scheme, the last date for submitting applications to the authority concerned to get the Certificate is 30th May 2018. No application will be entertained thereafter. 10. GP 7.9 of the Scheme determines an important eligibility criterion: The critical date for determining the eligibility under the ‘Insured Persons Quota’ is 1st January 2018. The Scheme also incorporates the “Admission Policy” and “Admission Procedure”. Clause 3 of the Policy clarifies that, to admit the candidates on “merit cum preference”, the Corporation will follow the due process as specified in the Admission Policy or as it will specify “from time to time.” **-6-** ## **W.P.(C) No.17588/2018 and connected cases** ## 11. GP 4.5 describes how the division of IPs into three groups ## takes place. |Group|Insurable<br>Employment<br>Period|Contribution<br>Paid or<br>Payable in a<br>Year|Total<br>Contribution<br>before 1stJan<br>2018|Exigencies| |---|---|---|---|---| |Gr. I|Five Years|For not less<br>than 78 days|Nine|Out of 9<br>Periods, two<br>shortfalls of<br>minimum 78<br>days could be<br>condoned, by<br>adding<br>the<br>immediate<br>preceding<br>two: 9+2| |Gr. II|Four Years|- Do -|Seven|7+2<br>Contributions| |Gr.III|Three Years|- Do -|Five|5+2<br>Contributions| ## 12. GP 4.5 has these features: - (1) The employee must be in “continuous insurable employment” for “a minimum period of” five/four/three years by 1st January 2018, the year admission. Thus, there are three Groups. - (2) Obvious is the rank of preference. First the IPs in Group I will get preference for admission, followed by Group II and Group III. ## **W.P.(C) No.17588/2018 and connected cases** **-7-** - (3) The unfilled seats, if any, will be surrendered to the “respective State Governments.” - (4) The five-/four-/three-year continuous-insurableemployment will be reckoned based on the contribution period. - (5) Each block of 12 months (Financial Year) has two contribution periods—April to September and October to March. - (6) The five-year block must have nine contribution periods; four-year block seven contribution periods; and three-year block five contribution periods. - (7) Each contribution period must have received the contribution for minimum 78 days. That is, in every six months, the contribution must be at least for 78 days. - (8) In each block, the contribution may fall below the “78-days minimum” twice. - (9) Then, under the condition of “exigency”, two contribution periods beyond five/four/three years could be counted in. Cut to chase, the contribution periods for five, four, and three years are 11, 9, 7 respectively. 13. So five-/four-/three-year periods do not necessarily mean calendar or financial years; instead, they are reckoned based on the contribution periods. That accepted, we face a contradiction: ## **W.P.(C) No.17588/2018 and connected cases** **-8-** The “Note” attached to GP 4.5 adds another element to the “minimum continuous period”: The period must commence from 01.01.2012 for five-year slab; from 01.01.2013 for four-year slab; and from 01.01.2014 for three-year slab. ## **Clarification:** 14. When the Court pointed out what it felt to be an anomaly between the body of GP 4.5 and the Note, the Corporation explained that if an insured person could not fulfill the length of continuous service based on contribution periods, the Corporation, in the alternative, could reckon the service from the commencing date, rather than the culminating date. ## **How are the half-yearly periods reckoned?** |Sl.<br>No.|Contribution Periods for Academic<br>Session 2018-19|Minimum Days<br>of Contribution| |---|---|---| |(i)|1stApril 2012 - 30thSeptember 2012|78| |(ii)|1stOctober 2012 - 31stMarch 2013|78| |1|1stApril 2013 - 30thSeptember 2013|78| |2|1stOctober 2013 - 31stMarch 2014|78| |3|1stApril 2014 - 30thSeptember 2014|78| ## **W.P.(C) No.17588/2018 and connected cases** **-9-** |4|1stOctober 2014 - 31stMarch 2015|78| |---|---|---| |5|1stApril 2015 - 30thSeptember 2015|78| |6|1stOctober 2015 - 31stMarch 2016|78| |7|1stApril 2016 - 30thSeptember 2016|78| |8|1stOctober 2016 - 31stMarch 2017|78| |9|1stApril 2017 - 30thSeptember 2017|78| Note: (i) and (ii) are the “exigencies.” That is, if there are any two breaks in the nine periods, (i) and (ii) could be counted in. ## **The Elaboration of the Scheme:** 15. To understand the Scheme and the Policy, we must, among other things, consider these expressions: Employee, Insurable Employment, Contribution, Contribution Period, the Return of Contribution Period, Exigency & Enlarged Time, “78 days of paid or payable contribution”, the date of entry and the date of Registration, the Corporation’s disclaimer, “words not defined.” ## **Employees' State Insurance Act, 1948:** 16. Section 2(9) defines an "employee." Then, Section 2(13A) defines "insurable employment" to mean employment in a factory or establishment to which the ESI Act applies. Section 2 (14) of the ## **W.P.(C) No.17588/2018 and connected cases** **-10-** Act defines "insured person" to mean a person who is or was an employee “regarding whom contributions are or were payable under this Act and who is by reason thereof, entitled to any of the benefits provided by this Act.” So, I may note, to be entitled to the benefits provided by the Act, the employee must have contributions paid or payable. No other constraint found mentioned. 17. Section 39 defines "contribution." The contribution to be paid to the Corporation comprises the employer's contribution and the employee's. We may pay attention to sub-section (5)(a) of Section 39. It says if any contribution payable under this Act is not paid by the principal employer when it has become due, “he must pay simple interest" at 12% per annum or at such higher rate as specified, until its actual payment. Remedially, the Corporation can recover the dues from the defaulting employer by invoking the Revenue Recovery Act. 18. Regulation 2A of the Employees’ State Insurance (Central) Rules, 1950 (the Regulations), defines “contribution **W.P.(C) No.17588/2018 and connected cases** **-11-** period.”. It is the period not exceeding six consecutive months, as may be specified in the Regulations. The Scheme refers to exigency. If there is a break in the contribution periods—that is, if the contribution for any half-yearly block is for less than 48 days—the next period can be counted in. This counting-in beyond the permissible 9/7/5 blocks can happen twice. Not more. 19. The statute further scanned, Section 40 (1) lays down the employer’s obligation: the principal employer shall pay for every employee, whether directly employed by him or through an immediate employer, both the employer's and the employee's contribution. As per sub-section (2), in the case of an employee directly employed by him, the principal employer will be entitled to deduct from the employee's wages her contribution, but not otherwise. 20. Section 42 of the Act deals with the general provisions for paying the contributions. Sub-section (2) mandates that the employer must pay both its contribution and the employee's, too. ## **W.P.(C) No.17588/2018 and connected cases** **-12-** Section 44, read with Regulations 26, compels the employers to furnish returns and maintain registers ‘in certain cases.’ Section 45, further, gives extensive powers to the Inspectors of the Corporation. These Inspectors can inspect any establishment falling within the sweep of the Act and ensure that the employer complies with the statutory mandates. Under Sections 45A-D provide for the steps the Corporation could take to collect the arrears of contribution from the employer. The Corporation can invoke the recovery mechanism under the Revenue Recovery Act. ## **Why is the minimum contribution period fixed at 78 days?** 21. An employee under the Act gets benefits. The benefits, mostly, depend on the employee’s length of service or the number of days the employer contributed for. Under Rule 55 of the Employees’ State Insurance (Central) Rules, 1950 (the Rules), to get the sickness benefit, the contribution must have been for not less than 78 days. So the learned Standing Counsel has submitted that the Corporation had to fix certain threshold criteria for granting ## **W.P.(C) No.17588/2018 and connected cases** **-13-** the “Ward of Insured Persons” certificate. An employee may not have been working throughout the year. Because of various constraints, he or she will be working for different number of days in each year. The Corporation wanted to pick a period that appeared reasonable. Then, it chose the days fixed under Rule 55, as that period appeared to be reasonable. ## **The Date of Entry and the Date of Registration:** 22. Under Section 2A of the Act, read with Regulations 10B and 32 of the Regulations, every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf. Regulations 11 to 14 mandate the method of registering the employees’ names with the Corporation. The employer must do it. 23. Regulation 31 prescribes the time for payment of contribution: “15 days of the last day of the calendar month in which the contribution falls due.” Regulation 31A enables the Corporation to collect interest on the delayed payments, whereas **W.P.(C) No.17588/2018 and connected cases** **-14-** Regulation 26 compels the employer to file the return “within 42 days of the termination of contribution period to which it relates.” ## **Disclaimer & “Words Not Defined”:** 24. The Corporation disclaims any responsibility for the employers’ shortcoming; say, their registering the establishment of the employees late, their contributing late, filing the returns late, or any other flaws. Moreover, the words employed in the Policy must be given the same meaning as they have been defined in the Scheme or Policy. Only if they have not been defined, can the meaning of those undefined words be drawn from the Act. ## **Pivotal Provision:** 25. Here comes the pivotal provision around which the whole dispute revolves: Para 8 of the Admission Policy. It needs elaboration, so it bears reproduction: "8. Insured person for the purpose of availing benefit of Insured Persons (IPS) Quota for his/ her wards shall be, as under a) ''The 'Insured Person' shall be an 'employee' as defined in the ESI Act; and he/she _should have been in continuous insurable_ **W.P.(C) No.17588/2018 and connected cases** **-15-** _employment for a minimum period of five/ four / three years as on, and immediately preceding the 1st January of the year of admission_ ; and _contribution in respect of him/her were paid/ payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1st January of the year of admission_ with the proviso that the return of contribution as provided under Section 44 of the ESI Act read with Regulation 26(a) of the ESI (General) Regulation be _filed with 42 days of termination of contribution period to which it relates_ , during this five/ four/ three year period. However, if the IP does not fulfill the requirement of minimum 78 days of paid or payable contribution as above in the specified CPs _on account of exigency_ beyond contribution as above in the specified CPs on account of exigency beyond control of IP, 78 days of paid/ payable contribution _shall be allowed to reckon from among the 02* contribution periods shown in the tables_ in Para (4.5) during the five/ four/ three-year period for determining eligibility. _The five/ four / three-year period along with extended period of one year for the purpose eligibility for eligibility, i.e. 1st January of the year of admission._ b) The insured person for the said purpose having five/ four / three years of continuous insurable employment shall be grouped as Group- I/ II / III respectively. c) _The date of entry into the scheme for calculating the minimum continuous period would be the date of registration available in the IP database of the ESIC as uploaded by the employer in the Web Portal of ESIC._ d) In case there is default or delay on the part of the employer in getting itself or the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay. _e) Any period prior to the date of entry described above would not be counted towards the five / four / three-year period of eligibility for the_ **W.P.(C) No.17588/2018 and connected cases** **-16-** _purpose of availing benefit of Insured Persons (IPs) Quota._ f) The combined earnings of the IP and spouse (parents of the applicant) should not exceed Rs. 06 (six) lakh per annum. g) All other words and expressions used not defined/ explained in this Admission Policy shall have the meanings respectively assiged to them in the ESI Act 1948, ESI (Central) Rules, 1950 and the ESI (General) Regulations, 1950. (italics supplied) ## **Does the Policy suffer from the vice of arbitrariness or unreasonableness?** 26. Keeping those limitations in mind, let us examine the Corporation’s admission policy. Para 8 of the Policy, as I mentioned earlier, is pivotal. It bears scrutiny. It contains these conditions: - (1) The insured person must have been in continuous insurable employment for five/ four / three years. - (2) The period must have been completed by the 1st January of the year of admission (2018). - (3) The contribution must have been paid/ payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1st January of the year of admission. - (4) The return of contribution must have been filed in 42 days after the termination of contribution period to which it relates. ## **W.P.(C) No.17588/2018 and connected cases** **-17-** - (5) If the IP does not fulfill the requirement of minimum 78 days of paid or payable contribution because of exigency, the IP shall be allowed to reckon from among the 02 contribution periods shown in the tables. - (6) The five/ four / three-year period [must be reckoned] along with the extended period of one year. - (7) The date of entry into the scheme for calculating the minimum continuous period would be the date of registration available in the IP database of the ESIC as uploaded by the employer. - (8) The employer’s delay cannot bind the Corporation. - (9) Any period of employment before registration with ESIC would not be counted. - (10) The combined earnings of the applicant’s parents should not exceed six lakh rupees. - (11) Words and expressions not defined in the Policy shall have the meanings ascribed to them in the ESI Act 1948, the Rules, and the Regulations. ## **What has been complied with and what has not been?** 27. All the employees claim that they have been in continuous insurable employment for five/four/three years. They completed that period by the 1st January 2018. But in most cases, ## **W.P.(C) No.17588/2018 and connected cases** **-18-** for various reasons the contributions were not paid or other conditions were not complied with. I will discuss them later. **Continuous Insurable Employment and Minimum Contribution Days:** 28. A learned Division Bench of this Court in _Employee's State Insurance Corporation v Jemin Elizabeth Mathew[1 ]_ examined two key words in clause 8: "continuous insurable employment" and " for a period of five years as on the 1st January of the year of admission". After examining the lexical nuances and the semantic significance of these expressions, the Division Bench has held follows: “12. The words "five years continuous insurable employment" is prefixed by "a period of five years as on 1st January of the year. The plain and simple meaning of the words shall be completion of five years continuous period as on 1st January of the year. Admittedly, the institution from where the certificate was applied came under the scheme only on 1.6.2009. The period of five years could be completed only on 31.5.2014 and 1st January being the cutoff date for scrutinising the application, no error was committed by the Corporation in not issuing the certificate to petitioner's parents. The learned Single Judge as well as the writ petitioner has placed reliance on the definition of "year" in section 2(w) of the Employees State Insurance Regulation, 1950. The said definition of "year" is "year means a calendar year". The said definition in no > 1 2015 (1) KLT 328 ## **W.P.(C) No.17588/2018 and connected cases** ## **-19-** manner militates clause 8 of the notice or on the interpretation which has been put up by the Corporation, of the period. Where a period of continuous five year has been contemplated in the notice, that obviously means five completed calendar years. The said definition also in no manner help the writ petitioner. We are of the view that the learned Single Judge committed error in interpreting clause 8 in the manner as to hold the writ petitioner eligible. The Corporation has formally followed its criteria treating five years continuous period as on 1st January with which no fault can be found. In view of the aforesaid discussion, the judgment of learned Single Judge is set aside. The writ petition is dismissed.” 29. I may note here that continuous insurable employment should not only have on-time registration but also contribution for a minimum of 78 days in each period. That is, the employee must have worked for those minimum days in each period, subject to the two exigency periods. 30. In the First Batch (WPC Nos. 17305 of 2018 and others), I have held that for delays in paying and in filing the returns, the employees should not be blamed; the employers should be. 31. In the Second Batch (WPC Nos. 17274 of 2018 and others), I have held that on-time registration is a must. By the same token I **W.P.(C) No.17588/2018 and connected cases** **-20-** must hold that continuous insurable employment shall include the employee’s working for the minimum number of days and the employer’s contributing those days (78) in each contribution period. Therefore, these two conditions are essential. ## **W.P.(C) No. 17588 of 2018:** 32. The petitioner, working in the third respondent establishment, is covered by the ESI Act. She applied for “Ward of Insured Persons" certificate. The Corporation rejected her request: that as on 01.01.2018, she has not been in continuous insurable employment. That is, her employer did not contribute for the minimum period of 78 days in each contribution period. 33. A Division Bench of this Court in _Jemin Elizabeth Mathew_ has held that the Corporation is free to fix its own norms. It has also held that “continuous insurable employment” is an essential condition. In fact, an employee’s working for a minimum period of 78 days in each contribution period is essential to reckon the continuous insurable employment. ## **W.P.(C) No.17588/2018 and connected cases** **-21-** 34. To be specific, during the periods ending in March 2014, March 2015, and September 2017, the employer contributed only for 64, 72 and 42 days. The number of days the employer contributed for would also indicate the number of days the employee worked in each “contribution period.” Therefore, under any of the three groups, the petitioner could not claim the certificate. 35. It is not a case of delayed contribution; on the contrary, it is a case of non-payment for the minimum number of days. So the defect is incurable. ## **W.P.(C) No.17122 of 2018:** 36. The petitioners are the father and daughter. The first petitioner’s employer registered his name with the Corporation on 14.03.2013. But the petitioner went out of the Corporation’s coverage from April 2014 till March 2018. 37. Besides the Corporation, even the employer filed a counter affidavit asserting that the petitioner had more annual income than Rs.6 lakh; so he went out of coverage. Though the ## **W.P.(C) No.17588/2018 and connected cases** **-22-** petitioner did contest the employer's claim, regrettably it is a disputed question of fact. That apart, the Corporation's record reveals that no contributions have been made on petitioner’s name even belatedly for the entire period. And by 01.01.2018, the date of reckoning, the first petitioner ceased to be an employee within the coverage of the ESI scheme. Therefore, the petitioners’ claim cannot be entertained. ## **W.P.(C) No.18251 of 2018:** 38. First petitioner's mother got registered under the ESI Scheme on 10.6.2011 whereas the second petitioner's mother got registered on 20[th] July 2010. But the employer did not contribute from 1.10.2014 to 30[th] September 2017 for a minimum period of 78 days. 39 In fact, the respective tables of these employees are these: |these:||| |---|---|---| |Contribution Period|Attendance<br>(Letha)|Attendance<br>(Sheelakumary)| |01.04.2012-30.09.2012|81|82| ## **W.P.(C) No.17588/2018 and connected cases** **-23-** |01.10.2012-31.03.2013|65|80| |---|---|---| |01.04.2013-30.09.2013|93|87| |01.10.2013-31.03.2014|53|84| |01.04.2014-30.09.2014|103|80| |01.10.2014-31.03.2015|70|77| |01.04.2015-30.09.2015|96|41| |01.10.2015-31.03.2016|73|21| |01.04.2016-30.09.2016|38|0| |01.10.2016-31.03.2017|18|0| |01.04.2017-30.09.2017|37|Nil| 40. As the petitioners’ parents did not have the minimum attendance and corresponding contribution, they fit into none of the Groups to claim the 'Ward of Insured Persons' Certificates. So, their claims stand rejected. The writ petition is dismissed. **W.P.(C) Nos. 17629, 17734, 17895, 17945, 18084, 18085 and 18086 of 2018** 41. The petitioners are employees working in Kerala State Cashew Development Corporation Ltd. They are the insured persons, registered on different dates. They have not been, as is evident, in continuous insurable employment for a minimum 78 days in the slabs of 9, 7 or 5. **W.P.(C) No.17588/2018 and connected cases** **-24-** 42. Their applications for the Certificate of 'Ward of Insured Persons' was rejected. 43. The petitioners contend that they work in cashew industry, which is seasonal. For no fault of theirs, if the employer could not employ them, they should not suffer. 44. Indeed, Section 2(19A) of the Act defines 'seasonal factory' and it reads as follows: [(19A) "seasonal factory" means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortication of groundnuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year-- (a) in any process of blending, packing or repacking of tea or coffee; or (b) in such other manufacturing process as the Central Government may, by notification in the Official Gazette, specify;] **W.P.(C) No.17588/2018 and connected cases** **-25-** 45. The provision specifically enlists the industries that have been termed 'seasonal'. Here cashew industry is conspicuously absent. 46. On the other hand, if the petitioners' plea is to be accepted that cashew industry is seasonal, I may observe that save those mentioned under sub section (19A), the rest of the seasonal industries will not fall under the purview of the ESI Act. Though to cover other industries, the Central Government could issue notification, the petitioners did not demonstrate before this Court that there is any such notification including cashew industry under sub section 2 (19A). 47. My conclusion draws further strength from Section 1(4), which mandates that all factories, including factories belonging to the Government, other than seasonal factories, will have this Act applied. To put it in a nutshell, if cashew industry is a seasonal industry, this Act will not apply. If it is not a seasonal industry, the **W.P.(C) No.17588/2018 and connected cases** **-26-** petitioners have not fulfilled the criteria of minimum working days. Therefore, the petitioners' claim for the certificate stands rejected. Accordingly, all writ petitions stand dismissed. No order as on costs. Sd/DAMA SESHADRI NAIDU JUDGE jjj 10/07/2018