WA No. 433 of 2013 in WP(C) 30517/2011 (Employees State Insurance Corporation vs Sivarman O.G. and others)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935 WA.No. 433 of 2013 IN WP(C).30517/2011 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 30517/2011 DATED 28-11-2012 ................ APPELLANTS/2ND & 3RD RESPONDENTS: ---------------------------------------------- 1. THE EMPLOYEES STATE INSURANCE CORPORATION PANCHADEEP BHAVAN NEW DELHI 110001 REPRESENTED BY ITS DIRECTOR GENERAL 2. THE MEDICAL SUPERITNENT ESI HOSPITA, UDYOGAMANDAL, ERNAKULAM DISTRICT 683501 BY ADVS.SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN SRI.K.SANDESH RAJA ## RESPONDENTS/PETITIONERS/RESPONDENTS 1,4 & 5: -------------------------------------------------------------- 1. SIVARAMAN O.G., U.D CLERK, HIGHER GRADE ESI HOSPITAL (EMPLOYEES STATE INSURANCE) UDYOGAMANDAL 6893 501. 2. DEEPA K.S., - L.D CLERK, ESI HOSPITAL, UDYOGAMANDAL 683 501. 3. HANEESH N.P., - L.D CLERK, ESI HOSPITAL UDYOGAMANDAL 683 501. 4. ANISH KUMAR K.K., L.D CLERK, ESI HOSPITAL, UDYOGAMANDAL 683 501. 5. T.K.MOHANAN., PEON ESI HOSPITAL UDYOGAMANDAL 683 501. 6. K.G KRISHNADAS., PEON ESI HOSPITAL UDYOGAMANDAL 683 501. 7. UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF LABOUR & EMPLOYMENT, SHRAM SHAKTHI BHAVAN NEW DELHI 110 001. WA.No. 433 of 2013 8. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 9. THE DIRECTOR OF INSURANCE MEDICAL SERVICES, THYCAUD, THIRUVANANTHAPURAM 695 001 R1 TO R6 BY ADV. SRI.THAMPAN THOMAS R7 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R8 & R9 BY SPL.GOVERNMENT PLEADER, SMT.GIRIJA GOPAL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-09-2013, ALONG WITH WA. 546/2013, WA. 562/2013, WA. 577/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, C.J. & K.Vinod Chandran** , **J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 433, 546, 562 and 577 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of September, 2013 ## **JUDGMENT** ## **Manjula Chellur, C.J.** All the four appeals are against a common judgment dated 28.11.2012. The writ petitions were filed seeking following common reliefs before the learned Single Judge: “i. to issue a writ of certiorari or other appropriate writ order or direction calling for the records in this case and quash Exhibits.P13 and P14 and to declare that petitioners are employees of ESI Corporation from 02.11.2009; ii. to issue a writ of mandamus or other appropriate writ, order or direction directing the 1[st] and 2[nd] respondents to give all benefits of the ESI employees to the petitioners. Iii. to issue such other appropriate writ, order or direction as the Court deems fit and necessary in the case; iv. to award the cost of the petition.” 2. The main dispute before the learned Single Judge was with regard to the actual date of absorption of the writ petitioners who were erstwhile employees of State Insurance Department who came to the service of Employees W.A. Nos. 433, 546, 562 and 577 of 2013 -:2:- State Insurance Corporation (for short 'ESI Corporation'), on deputation, when taking over of the hospital at Udyogamandal along with the assets, liabilities and staff as agreed between the State and ESI Corporation. The dispute is whether the absorption date should take effect from 02.11.2009 or 04.03.2011. 3. It is not in dispute that, 02.11.2009 was the mutually agreed date of taking over, therefore, according to the writ petitioners, that date has to be taken as the date of absorption. According to the respondent Corporation, 04.03.2011 is the date determined by the Corporation as date of absorption, therefore, 04.03.2011 has to be considered as the date for all practical purposes. However, this stand of the Corporation was challenged on the ground that 04.03.2011 was decided unilaterally by the Corporation which is reflected in the averments of the writ petition. The learned Judge, after referring to the facts and circumstances, ultimately opined that the date of absorption for working out future benefits and payment of monetary benefits by treating them as employees of ESI W.A. Nos. 433, 546, 562 and 577 of 2013 -:3:- Corporation should be taken as 02.11.2009 and all the benefits must be given to the employees within two months from the date of receipt of a copy of the judgment. This judgment of the learned Single Judge is under challenge before us by the Corporation. 4. The first and foremost challenge is with regard to the jurisdiction of the High Court in entertaining the matter as it was a subject matter which ought to have been taken up before Central Administrative Tribunal (for short 'CAT'). The learned counsel appearing for the Corporation took us through various decisions in support of his contention. We need not refer to all the decisions as there is a seven Bench judgment in **L.Chandrakumar v. Union of India and others** [AIR 1997 SC 1125]. The relevant paragraphs are paragraph Nos.93 & 94 which read as under: “93. Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an W.A. Nos. 433, 546, 562 and 577 of 2013 -:4:- obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. 94.The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i. e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered.” W.A. Nos. 433, 546, 562 and 577 of 2013 -:5:- 5. Though on the question of jurisdiction, learned counsel appearing for the appellant Corporation argued but fairly conceded that the Corporation agreed the effective date of absorption as 04.03.2011 as reflected in letter dated 26.09.2011 marked at Ext.P13. This letter is received from Deputy Medical Commissioner, Headquarters, New Delhi addressed to the Medical Superintendent which reads as under: “I am directed to refer to absorption of State Government staff working in your hospital on deputation and to inform that keeping in view the resentment of staff who attained the age of superannuation (55) in March 2011 and are continuing services in compliance of interim orders of the Court, it has been decided to absorb state government staff working in your hospital w.e.f. 04.03.2011, on which date, the condition of two years service required on the date of absorption in lending department has been deleted in the terms of absorption. Further, the absorption order earlier issued by M.S., ESIH Udyogamandal vide No.543.A.37/14/1/2009-Admin. dated 25.05.2011 stands withdrawn. Pensionary liability in respect of staff opted for absorption to be recovered from the State Government may be worked out as per Hqrs. Office Finance Division Letter dated 20.06.2011.” 6. According to learned counsel for the Corporation, though this was the decision of the Corporation, Superintendent W.A. Nos. 433, 546, 562 and 577 of 2013 -:6:- unilaterally fixed the date as 02.11.2009 without being conferred with any authority or delegation of any power to him, which is reflected at Ext.P10 and later on followed by Exts. P11 & P12. In other words, according to the Corporation, the Superintendent unilaterally decided so though lacking any authority that the effective date of absorption shall be 02.11.2009 and it is quiet contrary to the decision of the Corporation as reflected at letter dated 26.09.2011. 7. From the above arguments what we notice is that Corporation has no dispute or challenge so far as giving benefits to employees who are said to have been absorbed from 04.03.2011 so far as Udyogamandal employees are concerned. 8. Then the controversy would be narrowed down only to the question of effective date of absorption, i.e. whether it is 02.11.2009 or 04.03.2011. As noticed in the case of **L.Chandrakumar** (supra), once Central Administrative Tribunal is constituted, it alone has the jurisdiction to decide the subject matter in question and against the orders of the CAT, judicial review is provided to a Division Bench of High Court. W.A. Nos. 433, 546, 562 and 577 of 2013 -:7:- 9. In that view of the matter, we are of the opinion, the Corporation was justified in taking the stand of jurisdictional issue, but, however, they must also honour their commitment as narrated at Ext.P13 dated 26.09.2011. So far as this document Ext.P13, learned counsel for the appellant Sri.Sandesh Raja fairly submits, the Corporation has no objection to disburse all the amounts agreed by them with effect from 04.03.2011 to the respondent/writ petitioners. So far as effective date of absorption, we opine is a matter to be decided by CAT, we direct the parties to approach CAT to determine so far as the effective date of absorption. In the light of above observation we dispose of the writ appeals, setting aside the judgment of the learned Single Judge opining that the effective date of absorption as 02.11.2009, leaving the said controversy open to be decided by CAT. We also direct the appellant Corporation to proceed with the matter including the payment of arrears of salary and all service benefits payable to them including fixation of seniority to the writ petitioners with effect from 04.03.2011. So far as the W.A. Nos. 433, 546, 562 and 577 of 2013 -:8:- question of limitation to approach CAT, as the appellants are raising such a challenge regarding jurisdiction for the first time, we are of the opinion, they shall not raise the question of limitation before CAT. Parties to bear their own costs. **Manjula Chellur, Chief Justice.** **K.Vinod Chandran, Judge.** ttb/03/09 W.A. Nos. 433, 546, 562 and 577 of 2013 -:9:-