WA Nos. 1177 of 2021 & 1068 of 2021 (Employees' State Insurance Corporation v. Smitha Rajendran & Kit English High School Kareelakulangara)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944** **WA NO. 1177 OF 2021** **AGAINST THE JUDGMENT DATED 08.02.2021 IN WP(C)NO.28767/2020 OF** **HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 EMPLOYEES STATE INSURANCE CORPORATION REGIONAL OFFICE,PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR-680020. REPRESENTED BY ITS REGIONAL DIRECTOR** - **2 THE DEPUTY DIRECTOR,SUB REGIONAL OFFICE, KOLLAM EMPLOYEES STATE INSURANCE CORPORATION, PANCHDEEP BHAVAN, ASRAMAM, KOLLAM-691002.** - **3 EMPLOYEES STATE ISURANCE CORPORATION BRANCH OFFICE, KAYAMKULAM, KAYAMKULAM P.O, ALAPPUZHA-690502.** **BY ADVS.** **SRI.T.V.AJAYAKUMAR, SC, ESI CORPN. P.H.RIMJU** ## **RESPONDENTS/PETITIONER & 4TH RESPONDENT:** - **1 SMITHA RAJENDRAN,AGED 39 YEARS W/O RAJENDRAN, CHENATHU HOUSE, ERUVA WEST, KAREELAKULANGARA P.O, KAYAMKULAM, ALAPPUZHA-690502.** - **2 KIT ENGLISH HIGH SCHOOL KAREELAKULANGARA, KAYAMKULAM, ALAPPUZHA-690502.** **REPRESENTED BY ITS PRINCIPAL.** **R1 BY ADVS.P.B.SAHASRANAMAN & T.S.HARIKUMAR, R2 BY ADVS.M.THAHA, SASI M.R. DHARMYA M.S, SREEKUMAR K.V.** ## **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** ## **30.03.2022, ALONG WITH WA.1068/2021, THE COURT ON THE SAME DAY** ## **DELIVERED THE FOLLOWING:** WA Nos.1177 & 1068 of 2021 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 WA NO. 1068 OF 2021** **AGAINST THE INTERIM ORDER NO.22.7.2021 IN WP(C)NO.14506/2021 OF** **HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** - **1 EMPLOYEES STATE INSURANCE CORPORATION REPRESENTED BY ITS REGIONAL DIRECTOR-KERALA, KERALA REGIONAL OFFICE, PANCHDEEP BHAVAN, NORTH SWARAJ ROAD,THRISSUR-680020.** - **2 THE DEPUTY DIRECTOR,** - **EMPLOYEES STATE INSURANCE CORPORATION, SUB REGIONAL OFFICE, MULUS COMPLEX,** **ST.FRANCIS XAVIER CHURCH ROAD, KALOOR, KOCHI-682017.** - **3 THE BRANCH MANAGER EMPLOYEES STATE INSURANCE CORPORATION, PERUMBAVOOR BRANCH OFFICE, ESI ROAD, PERUMBAVOOR-683542.** - **BY ADVS. T.V.AJAYAKUMAR P.H.RIMJU** ## **RESPONDENTS/PETITIONER & 4TH RESPONDENT:** - **1 MANU K.CHACKO, AGED 38 YEARS, S/O.K.P.CHACKO, RESIDING AT KAVANAMALLI HOUSE, PULLUVAZHY.P.O, PERUMBAVOOR-683541.** - **2 SHONE PLY AND BOARDS, THAIKKARACHIRA, M.C.ROAD, PULLUVAZHY.P.O, PERUMBAVOOR-683541.** **R1 BY ADV.B.ASHOK SHENOY R2 BY ADV.J.RAMKUMAR** ## **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **30.03.2022, ALONG WITH WA NO.1177/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA Nos.1177 & 1068 of 2021 3 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **................................................................. W.A. No.1177 of 2021** _[Arising out of the impugned judgment dated 08.02.2021 in W.P.(C) No.28767 of 2020]_ _&_ ## **W.A. No.1068 of 2021** _[Arising out of the impugned interim order dated 22.07.2021 in W.P.(C) No.14506 of 2021]_ **.................................................................** Dated this the 30[th] day of March, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** Since the issues raised in these Writ Appeals are interrelated, these Appeals are disposed of on the basis of this common judgment. W.A.No.1177 of 2021 arises out of the judgment rendered by the learned Single Judge on 08.02.2021 finally disposing of W.P. (C) No.28767 of 2020. Whereas, W.A.No.1068 of 2021 arises out of an interim order rendered by the learned Single Judge on 22.07.2021 in W.P.(C) No.14506 of 2021. W.A.No.1177 of 2021 is taken as the lead case for the purpose of convenience. 2. Heard Sri.T.V.Ajayakumar, learned Standing Counsel for the ESI Corporation appearing for the appellants in W.A.Nos.1177 of 2021 & 1068 of 2021, Sri.T.S.Harikumar, learned counsel appearing for contesting respondent No.1 in W.A.No.1177 of 2021/writ petitioner in W.P.(C) No.28767 of 2020, Sri.M.R.Sasi, learned counsel appearing for R2 in W.A.No.1177 of 2021, Sri.Ashok WA Nos.1177 & 1068 of 2021 4 B.Shenoy, learned counsel appearing for contesting respondent No.1 in W.A.No.1068 of 2021/writ petitioner in W.P.(C) No.14506 of 2021 and Sri.J.Ramkumar, learned counsel appearing for R2 in W.A.No.1068 of 2021. ## **W.A.No.1177 of 2021** _[Arising out of the impugned judgment dated 08.02.2021 in W.P.(C) No.28767 of 2020]_ The above Writ Appeal arises out of the judgment rendered by the learned Single Judge, which led to the final disposal of the instant W.P.(C) No.28767 of 2020. The prayers in the instant W.P.(C) No.28767 of 2020 are as follows: - _“i. Issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to Exhibit P.6 and quash the same;_ - _ii. issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to the entitlement status of super specialty for IP as well as for Family as 'NO' in Exhibit P.5 and quash the same to that extent;_ - _iii. To declare that the petitioner as well as her husband R.Rajendran entitled to get the super specialty medical benefits under the Employees State Insurance Act with Insurance Number 4810399074;_ - _iv. Issue a writ of Mandamus or other appropriate writ order or direction by directing the respondents 1 to 3 to immediately disburse the medical benefits against the Super specialty for IP as well as Super specialty for Family in connection with the donation of the kidney by the petitioner and for the renal transplantation for R.Rajendran, the husband of the petitioner.”_ 2. The learned Single Judge, after hearing both sides, has rendered the impugned judgment on 08.02.2021, finally disposing of W.P.(C) No.28767 of 2020, with the finding that the main objection raised by the ESI Corporation to deny the expenditure of the super specialty treatment, claimed on behalf of the husband of the writ petitioner in W.P.(C) No.28767 of 2020 [employee], on the WA Nos.1177 & 1068 of 2021 5 ground that the employer's ESI contribution for the relevant period in question was not paid by the 2[nd] respondent employer, etc. is not tenable and further has also noted that the entire due contribution amount in that regard was already recouped by the ESI Corporation from the 2[nd] respondent employer by garnishee proceedings and accordingly has directed that the said objection raised by the ESI Corporation will stand overruled and that the impugned rejection order at Ext.P6 will stand quashed and has also consequently declared that the petitioner therein and her husband are entitled to get super specialty medical benefits under the ESI Act, etc. and that R1 to R3 in that W.P.(C) shall take immediate steps to provide super specialty medical benefits to the claimant-husband of the petitioner therein, in connection with the renal transplantation procedure, etc. 3. Reference to the basic facts in W.P.(C) No.28767 of 2020 which led to the instant W.A.No.1177 of 2021 would be pertinent. The writ petitioner employee is a member of the teaching staff of the 4[th] respondent unaided school and she had entered service in that school in June 2010 onwards and she has continuous service since then. From the materials at Ext.P3, it appears that the writ petitioner is an 'insured person' within the meaning of the Employees’ State Insurance Act, 1948 [“ESI Act”, for short] and that the date of registration for the said purpose which is shown in WA Nos.1177 & 1068 of 2021 6 Ext.P3 is 15.02.2017. Her husband was suffering from serious kidney ailments and they were advised that the petitioner's husband should immediately undergo renal transplantation which is available in a super specialty hospital. It appears that Aster Medicity is the super specialty hospital in Kochi which is coming within the panel of hospitals having tie up arrangement with the approval of the State Government and the ESI Corporation, as envisaged in the ESI Act. According to the petitioner, the super specialist in the hospital had done the required testing and it was found that the petitioner could be a donor for the purpose of renal transplantation surgery to be effected on her husband. According to the petitioner, she had approached the respondent ESI authorities seeking for medical benefits for undergoing the super specialty treatment of her husband and that she was intimated by the impugned Ext.P6 order dated 02.12.2020 issued by the respondent ESI authorities that she is not eligible for the said medical benefit since the records show that the ESI contribution periods from April 2019 to September 2019 and from October 2019 to March 2020 are shown as “no records” which implies that no contribution of the employer as per the ESI Act has been made by the employer concerned and that therefore, she is not entitled for super specialty treatment for the benefit period from 01.07.2020 to 31.12.2020. It is this order at Ext.P6 WA Nos.1177 & 1068 of 2021 7 that was under challenge in the instant writ proceedings. 4. The main objection raised by the respondent ESI authorities to justify Ext.P6 rejection order was on the basis of Ext.R1(a) Office Memorandum dated 29.10.2018 issued by the ESI Corporation [a copy of the said Office Memorandum dated 29.10.2018 issued by the ESI Corporation has been produced as Ext.R1(a) along with the counter affidavit dated 08.01.2021 filed by the respondent ESI authorities in the instant W.P.(C) No.28767 of 2020]. The contents of Ext.R1(a) O.M. dated 29.10.2018 issued by the ESI Corporation Headquarters, New Delhi read as follows _[see_ _pages 79(a) & 79(b) of the paper book of W.A.No.1177 of 2021]_ : ## _“_ _**OFFICE MEMORANDU** M_ ## _**Sub:-Revision in the eligibility conditions for super specialty treatment to the Insured Persons and members of their family – reg.**_ _In supersession of the instruction on the above cited subject dated 07/11/2016, the ESI Corporation, in its 175[th] meeting held on 18.9.2018, have approved a revised eligibility condition to mitigate the hardship faced by the Insured Person. The new eligibility conditions are being made a part of the Regulation and is under process of notification/calling objections etc. Till it takes a final shape, it may be executed with this administrative instruction._ _1. The Insured Person who has contributed for 78 days in a contribution period be allowed to avail super specialty treatment provided he/she has completed minimum of six months of insurable employment i.e. from the date of registration on IP Portal._ _2. The members of the family of the Insured Person be allowed super specialty treatment if the Insured Person has contributed 156 days (78 days in each contribution period) and have completed minimum one year of insurable employment from the date of registration._ _3. In both the above cases, the employer should have filed the monthly contribution as per section 44 read with regulation 26(a) failing which Regulation 31 of the ESI (General) Regulation, 1950._ _4. This shall be available only in the corresponding benefit period_ _5. Insured Persons and their family members shall continue to avail the super specialty if the Insured Persons is in_ WA Nos.1177 & 1068 of 2021 8 _receipt of extended sickness benefit._ _6. The Insured Women shall be eligible for super specialty treatment in case it arises due to or out of maternity if she is in receipt of maternity benefit._ _7. The cases of employment injury shall not attract the aforesaid conditions._ _The aforesaid conditions shall apply only in those cases where expenditure of the treatment for reference is made outside the ESI setup and is to be paid by the ESIC without share from the State Govt. In cases, the Insured Person or their family member requires a treatment which is not available in ESI Hospital or ESI Medical Education Institutions and aforesaid eligibility conditions are not met by the Insured Person, such cases be referred to the Hospitals/Medical Colleges of the State Govt. who are duty bound to render services to a citizen._ _These instructions are applicable with immediate effect.”_ 5. The first condition imposed in Ext.R1(a) is that the insured person, who has contributed for 78 days in a contribution period, be allowed to avail super specialty treatment, provided he/she has completed minimum of six months of insurable employment from the date of registration on IP portal. Condition No.1 and the second limb of condition No.2 of Ext.R1(a) stipulate that the insured person should have completed minimum of six months of insurable employment from the date of registration on IP portal, etc. The said condition is not relevant in the instant case in W.A.No.1177 of 2021, inasmuch as the writ petitioner therein has secured ESI registration since 15.02.2017 as is evident from Ext.P3 e-pehchan card issued by the ESI Corporation. So, the main objection raised in the instant case for denying the medical benefit due to the husband of the writ petitioner herein is that contribution for 156 days [78 days in each contribution period] has not been made in the case of the said insured person by the employer, WA Nos.1177 & 1068 of 2021 9 inasmuch as the medical benefit is claimed on behalf of the dependent/spouse of the insured person, the minimum contribution period is 156 days as per condition No.2 of Ext.R1(a) [The minimum contribution period where the medical benefit is claimed directly for the insured person is 78 days as can be seen from condition No.1 of Ext.R1(a)]. So also, there appears to be an incidental objection that the employer of the writ petitioner in this case had not filed the requisite details of the monthly contribution in terms of Section 44 read with Regulation 26(a) of the ESI (General) Regulations, etc. So, the main objection and the incidental objection are substantially the same. In that regard, the specific plea taken up in paragraphs 9 & 10 of the counter affidavit filed by the ESI Corporation in the instant W.P(C) is that, as per the records, no contribution was paid on behalf of the petitioner therein since 01.04.2019 and therefore the insured person’s dependent is not eligible to get super specialty treatment in this respect for the period of July 2020 to December 2020 and further that, similarly to get super specialty treatment for the dependent of the insured person, for the benefit period of January 2021 to June 2021, contribution should have been made on behalf of the insured person for a minimum of 78 days in each of the corresponding contribution periods, ie., October 2019 to March 2020 & April 2020 to September 2020. WA Nos.1177 & 1068 of 2021 10 6. The main plea taken up by the 4[th] respondent employer in their counter affidavit is that, earlier, the 4[th] respondent’s school management was regularly contributing the ESI contributions for the registered insured person concerned, but the 4[th] respondent later did not remit the ESI contributions from April 2019 to March 2020 and that the office of the school premises was shifted, because of the flood and the files were missing and fee collection was affected and later Covid-19 pandemic issues also resulted in lock down and it is in the light of these cumulative problems that the 4[th] respondent employer could not remit the ESI contribution for the relevant period in question. Further that the 4[th] respondent employer has submitted Ext.R4(a) letter dated 01.12.2020 addressed to the ESI authorities, stating that they are fully ready to remit the balance amount of contribution and that the ESI Corporation may take necessary steps to accept the same. However, it is now common ground that the respondent ESI Corporation had resorted to Section 45 G ‘garnishee proceedings’ and had secured a garnishee order on 07.10.2020 and accordingly, the banker of the 4[th] respondent employer had remitted an amount of Rs.65,682/-to the respondent ESI Corporation. Ext.R4(b) produced in the counter affidavit of the 4[th] respondent in the W.P.(C) is the copy of the communication issued by the ESI Corporation, acknowledging receipt of the amount WA Nos.1177 & 1068 of 2021 11 of Rs.65,682/- from the banker of the 4[th] respondent employer. 7. The learned Single Judge, after exhaustively considering the various provisions in the ESI Act, came to the considered conclusion that the obligation to pay the contribution to the ESI authorities is on the employer concerned, and that the cumulative impact of the various provisions in the ESI Act would lead to the irresistible conclusion that failure on the part of the employer to make the contribution on behalf of the registered insured person cannot be the basis for penalizing the insured person and to deny the medical benefits, etc. but that, in view of the ample powers conferred as per the ESI Act, the ESI authorities should take steps for setting in motion recovery proceedings, including revenue recovery proceedings, for recovering the due amounts from the employer and that even special powers in terms of Section 45G of the ESI Act have been conferred which enable the ESI authorities to resort to garnishee proceedings, so that appropriate orders could be obtained to secure the amounts from the banker of the employer, etc. 8. We may make a brief reference to some of the relevant provisions in that regard. Section 2(14) of the ESI Act defines “insured person” to mean a person who is or was an employee in respect of whom **contributions are or were payable** under this WA Nos.1177 & 1068 of 2021 12 Act and who is by reason thereof, entitled to any of the benefits provided by the Act _[emphasis supplied]_ . Section 56 of the ESI Act deals with “medical benefits” and Section 56(3) mandates that a person shall be entitled to medical benefit, during any period for which **contributions are payable** in respect of him or in which he is qualified to claim sickness benefit or maternity benefit or is in receipt of such disablement benefit as does not disentitle him to medical benefit under the Regulations _[emphasis supplied]_ . The provisos thereto are not relevant for the present purpose and are omitted. Further, Section 38 envisages that all employees are to be insured and it is laid down therein that, subject to the provisions of the Act, all employees in factories or establishments to which the Act applies shall be insured in the manner provided by the Act. Section 39 deals with the modalities of contributions. 9. Sections 45B to 45H deal with various aspects relating to recovery of contributions and steps for such recovery proceedings, etc. Section 45G, in particular, deals with empowering the ESI authorities to take resort to garnishee proceedings. Section 68 deals with the rights of the ESI Corporation where a principal employer fails or neglects to pay any contribution. It is in the light of these cumulative provisions, the learned Single Judge has come to the WA Nos.1177 & 1068 of 2021 13 considered conclusion that powers of wide amplitude have been conferred on the ESI authorities to ensure the recovery of the contribution amounts which are not paid by the employers concerned and that therefore, an employee who is a registered insured person cannot be penalized merely on account of nonpayment of the ESI Contribution for the relevant period in question by the employer. 10. Further, we also note that the wordings “contributions are payable” appearing in Section 2(14) and Section 56(3) of the ESI Act, would clearly manifest the intention of the Parliament. The Apex Court in the decision in _**Bharagath Engineering v. R.Ranganayaki & Anr., (2003) 2 SCC 138**_ , has explained the scope and ambit of the term “insured person” appearing in Section 2(14) of the ESI Act, in particular, the expression “contributions are payable”, etc. and has held in para No.9 thereof that the crucial expression in Section 2(14) of the ESI Act is “are or were payable” and therefore it is the obligation of the employer to pay the contribution from the date the Act applies to the factory or establishment and therefore the date of payment of the contribution is really not material and since Section 38 of the Act casts a statutory obligation on the employer to insure their employees, the date of commencement has to be from the date of employment of the WA Nos.1177 & 1068 of 2021 14 employee concerned, etc. It will also be pertinent to refer to para No.12 of the abovesaid decision of the Apex Court in _**Bharagath**_ ## _**Engineering**_ ’s case supra, _**(2003) 2 SCC 138**_ , which reads as follows: - _“12. When considered in the background of statutory provisions, noted above, the payment or non-payment of contributions and action or non-action prior to or subsequent to the date of accident is really inconsequential. The deceased employee was clearly as “insured person”, as defined in the Act. As the deceased employee has suffered an employment injury as defined under Section 2(8) of the Act and there is no dispute that he was in employment of the employer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons.”_ Therefore, the cumulative provisions made out in Sections 45 B to H, Section 68, etc. on the one hand read with Section 2(14) and 56(3) of the Act would lead to the irresistible conclusion that, where the employer fails to make the contribution in favour of the insured person to the ESI Corporation, then it shall be the bounden statutory obligation of the ESI Corporation to take emergent steps for recovery of the due amounts in terms of the provisions referred to above and mere failure on the part of the employer cannot be the basis to deny medical benefits, otherwise due to the insured person or the dependent, etc. as the case may be. In the light of these aspects, we are not in a position to hold that the abovesaid views rendered by the learned Single Judge in the impugned judgment in the instant W.P.(C) No.28767 of 2020 are in any manner illegal or WA Nos.1177 & 1068 of 2021 15 unreasonable. 11. Sri.T.V.Ajayakumar, learned Standing Counsel for the ESI Corporation appearing for the appellants in this case would point out that Ext.R1(a) O.M. dated 21.10.2018, which was earlier an executive order, has now been engrafted as a statutory regulation as Regulation 96C of the ESI (General) Regulations, as per Annexure-I statutory amendment notification dated 15.04.2019. We make it clear that the effect of the said amendment has not been considered by us and is left open to be raised and decided in appropriate proceedings in the manner known to law. Hence, _prima facie_ we are of the opinion that the views rendered by the learned Single Judge in the instant case cannot be said to be unreasonable or illegal. 12. Further, we are now told that, pursuant to the directions issued by the learned Single Judge as per the impugned judgment in the instant W.P.(C) No.28767 of 2020, ESI authorities have already made the entire payment of the due amount directly to the super specialty hospital concerned, where the treatment was effected, coming to an amount of Rs.3,64,640/-. In the light of these aspects, we do not find any grounds to interfere with the verdict of the learned Single Judge in the instant W.P.(C). 13. Sri.T.V.Ajayakumar, learned Standing Counsel for the ESI Corporation has also placed reliance on Annexure-I statutory WA Nos.1177 & 1068 of 2021 16 amendment notification dated 15.04.2019 wherein Regulation 96C has been incorporated, in lieu of Ext.R1(a) O.M. Since the entire due amount has already been paid, the matter in issue has become practically infructuous now and therefore, there is no necessity for us to pronounce any final opinion on the abovesaid issues and the contentions of the appellant ESI Corporation, on the basis of Regulation 96C, are left open to be raised and decided in appropriate cases in the manner known to law and any such issue raised in other appropriate proceedings will have to be decided independently in accordance with law. With these observations and directions, the impugned judgment dated 08.02.2021 rendered by the learned Single Judge in W.P.(C) No.28767 of 2020 will stand modified as above. With these observations and directions, the above Writ Appeal will stand finally disposed of. ## **W.A.No.1068 of 2021** _[Arising out of impugned interim order dated 22.07.2021 in W.P.(C) No.14506 of 2021]_ The aforecaptioned Writ Appeal arises out of the impugned interim order rendered by the learned Single Judge on 22.07.2021 in W.P.(C) No.14506 of 2021. The prayers in the instant ## W.P.(C) No.14506 of 2021 are as follows: - _“(a) Call for the records and files leading to Exhibits P2 and P4 and quash Exhibits P2 and P4 to the extent it disentitles petitioner's_ WA Nos.1177 & 1068 of 2021 17 - _family members including his wife, Bindu Manu to Super Specialty Treatment benefits under the provisions of Employees State Insurance Act, 1948;_ - _(b) Declare that petitioner and his family members including his wife, Bindu Manu is entitled to Super Specialty Treatment benefits under the provisions of Employees State Insurance Act 1948;_ - _(c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondent Nos.1 to 3 to afford and disburse the medical benefits under the provisions of Employees State Insurance Act 1948 to the petitioner's wife, Bindu Manu for treatment of the ailment of “Pappillary Thyroid Carcinoma” (Thyroid Cancer) from which she suffers; and_ - _(d) Grant such other and further reliefs as are deemed just and necessary in the facts and circumstances of the case including the costs of this proceedings ….......”_ The interim prayer in this W.P.(C) is as follows: - _“Direct Respondents nos.1 to 3 to forthwith afford Super Specialty Treatment benefits under the provisions of Employees State Insurance Act 1948 to the petitioner's wife, Bindu Manu for treatment of the ailment of “Pappillary Thyroid Carcinoma” (Thyroid Cancer), pending disposal of this Writ Petition (Civil).”_ The learned Single Judge, after hearing both sides, has rendered the impugned interim order on 22.07.2021 in the instant W.P.(C), to the effect that _prima facie_ it is made out that the petitioner is an insured person and his wife is suffering from thyroid cancer and is taking treatment from the super specialty hospital [Amritha Hospital] and therefore the case of grant of interim relief is made out, particularly when it is a matter of common knowledge that cancer patients are required to undergo cycles of chemotherapy as per the time frame prescribed by the treating doctor, etc. Hence the learned Single Judge has granted the interim relief as above. It is this interim order rendered on 22.07.2021 that is under challenge in the instant Writ Appeal. 2. A brief reference to the facts in this case would be WA Nos.1177 & 1068 of 2021 18 pertinent. In the instant case, the writ petitioner is an employee of the 4[th] respondent in the W.P.(C) and is working as a supervisor in that establishment since 15.11.2020. According to the petitioner, he has secured registration as an “insured person” (IP) as per the provisions of the ESI Act with effect from 15.11.2020 onwards. Later, on 28.06.2021 it was found that his wife was suffering from serious thyroid cancer and is warranted super specialty treatment in Amritha Hospital and emergent chemotherapy was required. The plea for medical benefit for the dependent wife of the petitioner herein was denied by the respondent ESI Corporation as per the impugned Exts.P2 & P4, in view of the conditions in Ext.P3 Office Memorandum dated 29.10.2018 issued by the ESI Headquarters [copy of which was already referred to by us herein-before as Ext.R1(a) in the previous Writ Appeal]. We have already extracted the abovesaid O.M. dated 29.10.2018 in the judgment in relation to W.A.No.1177 of 2021 and therefore there is no necessity to again quote the same. In the instant case, two grounds of rejection are stated in Ext.P4. Firstly that the petitioner has not completed one year of service from the date of registration and further that the petitioner does not have the minimum 78 days in each of the two contribution periods in question, inasmuch as 156 days of contribution [78 days + 78 days] is required in the case of a claim for WA Nos.1177 & 1068 of 2021 19 medical benefit for a dependent of the insured person. However, there is no dispute that the employer has already remitted all the contributions in the case of the present petitioner from the date of registration [15.11.2020] onwards. The provisions contained in Ext.P3 Office Memorandum dated 29.10.2018 has been now engrafted as a statutory regulation as Regulation 96C of the ESI (General) Regulations, as can be seen from Annexure-I statutory notification dated 15.04.2019 published in the Gazette of India. 3. The learned Single Judge has mainly placed reliance on the judgment of a learned Single Judge of the Delhi High Court, rendered on 17.07.2019, in the case _**Baby Devananda D. v. ESI Corporation and Ors, [reported in 2017 SCC Online Delhi**_ _**12779]**_ . Therein the Delhi High Court has considered the impact of the Office Memorandum dated 29.10.2018 as per Ext.P3 herein and has taken the view that the said provisions contained therein are illegal and ultra vires and further that, at that time Regulation 96C was proposed to be engrafted as a statutory regulation. In the abovesaid judgment it is also noted that steps have been taken to promulgate the statutory regulation as Regulation 96C, in lieu of the Office Memorandum as per Ext.P3 herein, and it was held that, even if the said provision is made as a statutory regulation, the same would also be illegal and ultra vires for the reasons stated in the WA Nos.1177 & 1068 of 2021 20 judgment, etc. Further, it is to be noted that the ESI Corporation, being aggrieved by the abovesaid judgment rendered by the learned Single Judge of the Delhi High Court on 17.07.2019 in _**Baby Devananda**_ 's case supra, has preferred a Letters Patent Appeal [intra court appeal] before the Division Bench of the Delhi High Court as L.P.A.No.76 of 2020 and therein, the Division Bench of the Delhi High Court has admitted the L.P.A. but has refused to grant stay of the operation and enforcement of the impugned judgment of the learned Single Judge in that case. Thereafter, the Board of Directors of the ESI Corporation has considered the issue and has issued Ext.P7 Office Memorandum No.V-14/11/5/2018-MED.I(SST) dated 18.08.2020 wherein it has been ordered in supersession of the instructions issued vide the previous O.M. of even number dated 29.10.2018 [Ext.P3 herein], the ESI Corporation in its 161[st] meeting held on 13.02.2020 has approved that till the finalization of the Letters Patent Appeal, L.P.A.No.76 of 2020, now pending before the Division Bench of the Delhi High Court, the super specialty treatment [SST] benefit to the IPs [insured persons] and their family members shall have to be given from the first day of the insurable employment on a case-to-case basis, being subject to the final verdict of the Division Bench of the Delhi High Court in the pending L.P.A., etc. It should be pertinent to refer to the contents of the said WA Nos.1177 & 1068 of 2021 21 O.M. dated 18.08.2020 issued on behalf of the ESI Headquarters and produced as Ext.P7 herein _[see page 60 of the Writ Appeal)_ , which reads as follows: ## _**“OFFICE MEMORANDUM**_ _Sub:- Referral for Super Specialty Treatment to tie-up hospitals where expenditure of the treatment for reference is made outside the ESI Set-up and to be directly borne by ESI Corporation._ ## _**…....**_ _In supersession of the instruction issued vide Office Memorandum of even No. dated 29/10/2018, the ESI Corporation in its 161[st] Meeting held on 13/2/2020 has approved that till finalisation of L.P.A.76 of 2020 challenged before the Hon'ble Division Bench of High Court of Delhi, the first day of insurable employment on a case to case basis subject to the final order of the Hon'ble Court._ _The above is issued for immediate compliance._ _This issued with the approval of Director General.”_ Hence, it can be seen that, though the ESI Corporation has preferred a Letters Patent Appeal before the Division Bench of the Delhi High Court to challenge the abovesaid judgment of the learned Single Judge of the Delhi High Court in _**Baby Devananda**_ 's case supra _**[2017 SCC Online Delhi 12779]**_ , the Division Bench has admitted the L.P.A. but has not granted interim stay and in view of the above subsequent developments, the Board of Directors of the ESI Corporation has taken a considered decision as reflected in Ext.P7 O.M. dated 18.08.2020 that, till the final outcome of the pending L.P.A.No.76 of 2020, pending before the Division Bench of the Delhi High Court, the super specialty benefits to the insured persons and their family members shall have to be given from the WA Nos.1177 & 1068 of 2021 22 first day of insurable employment on a case-to-case basis, subject to the final result of the said Letters Patent Appeal pending before the Division Bench of the Delhi High Court. The decision of the ESI Headquarters, referred to in Ext.P7 O.M. dated 18.08.2020, is a voluntary decision taken by none other than the competent authority of the ESI Corporation and there is no dispute that they are not competent to do so. Hence, we are of the view that the reliance placed by the learned Single Judge of this Court in granting interim order by placing reliance on the judgment rendered by the learned Single Judge of the Delhi High Court in _**Baby Devananda**_ 's case supra _**[2017 SCC Online Delhi 12779]**_ , cannot be said to be unreasonable or illegal. Hence, this is all the more so in view of the voluntary decision taken by the ESI Corporation, as reflected in Ext.P7 O.M. dated 18.08.2020. As per the said decision, the ESI Corporation decided that, until the final outcome of the pending L.P.A. before the Division Bench of the Delhi High Court, the super specialty benefits due to the insured persons and their family members shall have to be given from the first day of insurable employment on a case-to-case basis, etc. subject to the final result of the said L.P.A., etc. Hence, there is no necessity for us to interfere with the impugned interim order rendered by the learned Single Judge in this case granting interim WA Nos.1177 & 1068 of 2021 23 relief. However, we make it clear that the said impugned interim order rendered by the learned Single Judge in this case will be subject to the result in the main matter in W.P(C) No.14506 of 2021 which is now pending. 4. Sri.T.V.Ajayakumar, learned Standing Counsel for the ESI Corporation appearing for the appellant in this case would point out that the impact of Regulation 96C as per Annexure-I herein has not been considered by the learned Single Judge at the time of rendering of the impugned interim order in this case. We make it clear that not only the impact of the Office Memorandum at Ext.P3 herein, but also the impact of Regulation 96C as per Annexure-I will be considered as a main issue in the pending W.P.(C). All contentions available in law to both sides are left open to be raised and decided during the adjudication of the main issues in the pending W.P.(C) No.14506 of 2021. 5. Sri.Ashok B.Shenoy, learned counsel appearing for the contesting respondent No.1 herein/writ petitioner would point out that the impugned interim order was rendered by the learned Single Judge as early as on 22.07.2021 and the heavy medical expenditure has been borne by the petitioner already and that directions may be given by this Court to ensure the early payment of the due amounts. Further that the treatment was undergone at Amritha Hospital, WA Nos.1177 & 1068 of 2021 24 which is a super specialty hospital having approved tie-up in terms of the ESI Act and that since the hospital authorities could not wait any longer, they insisted for payment and that the writ petitioner had made payment of the due amount till then and that there are provisions in the ESI Regulations for reimbursement of the said medical benefits directly to the writ petitioner, etc. In view of Ext.P7 decision taken by none other than the ESI Headquarters on 18.08.2020, we are not in a position to interfere with the impugned interim order rendered by the learned Single Judge in this case and therefore the appellant ESI Corporation will have to comply with the interim order, which will be subject to the result of the pending W.P. (C). Hence, the appellants may ensure that steps shall be taken to comply with the interim directions passed by the learned Single Judge in the instant W.P.(C), without any further delay. 6. Further, Sri.Ashok B.Shenoy, learned counsel appearing for R1 herein/writ petitioner would point out that indisputably the writ petitioner has completed one year of service from the date of registration, as early as on 15.11.2021 and ESI contributions have been regularly remitted by his employer and that for claims of medical benefits which have arisen on or after 15.11.2021, none of the restrictive conditions either in Ext.P3 O.M. or in Annexure-I Regulation 96C can be a legal impediment. Hence, we would also WA Nos.1177 & 1068 of 2021 25 order that the abovesaid factual submission made on behalf of the writ petitioner should be duly adverted to by the appellant ESI Corporation and if, as a matter of fact the petitioner has already completed one year from the date of registration, then there cannot be any legal impediment based either on Ext.P3 O.M. or on the basis of Annexure-I Regulation 96C and the claim of the writ petitioner for medical benefits for the subsequent period as above should be duly effectuated. We say so as we are told by the learned counsel appearing for the writ petitioner that, in view of the thyroid cancer suffered by the petitioner's wife, further chemotherapy is now required from the first week of April, 2022. No other orders or directions are called for. With these observations and directions, the above Writ Appeal will stand disposed of. ## Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **VIJU ABRAHAM, JUDGE** cks WA Nos.1177 & 1068 of 2021 26 ## **APPENDIX OF WA 1177/2021** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 27/05/2019 INSERTING REGULATION 96(C) IN THE ESI (GENERAL) REGULATIONS.** **ANNEXURE-II TRUE COPY OF THE LETTER NO.V-24/11/10/2004-MED.I DATED 23.7.2008 OF THE DEPUTY MEDICAL COMMISSIONER WITH THE APPROVAL OF THE DIRECTOR GENERAL OF THE ESI CORPORATION** WA Nos.1177 & 1068 of 2021 27 ## **APPENDIX OF WA 1068/2021** ## **PETITIONER ANNEXURES** **Annexure I TRUE COPY OF THE GAZETTE NOTIFICATION DATED 27.5.2019 INSERTING REGULATION 96(C) IN THE ESI (GENERAL)REGULATIONS.** ## **RESPONDENTS' ANNEXURES:** **ANNEXURE-R1(a) TRUE COPY OF DISCHARGE SUMMARY DATED 18.08.2021 ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCES & RESEARCH CENTRE TO 1ST RESPONDENT'S WIFE BINDU MANU** ## **PETITIONERS' ANNEXURES** **ANNEXURE-II TRUE COPY OF THE LETTER NO.V-24/11/10/2004-MED.I DATED 23.7.2008 OF THE DEPUTY MEDICAL COMMISSIONER WITH THE APPROVAL OF THE DIRECTOR GENERAL OF THE ESI CORPORATI** ON