JOSE, vs THE EMPLOYEES STATE INSURANCE CORPORATION,

The petitioners are father and daughter, who claim

benefit under Exhibit P2 as a "ward of insured person" for admission

to the MBBS Course in the Medical College run by the Employees''

State Insurance Corporation [for brevity "ESI Corporation"]. The

benefit as per Exhibit P2 is for the wards of insured persons under

the Employees'' State Insurance Act, 1948 [for brevity "ESI Act"].

There is a criteria provided in Exhibit P2, which, according to the 1st

respondent-Corporation, has not been satisfied by the 1st petitioner

and hence there can be no certificate of "ward of insured person"

issued.

The claim has to be decided on the facts of the case.

The employer has issued Exhibit P1 showing the contributions

made with respect to the employee. Even according to the

petitioners, the 1st petitioner was working as a Receptionist in Hotel

New Excellency at Karunagappally. There was a strike of the

employees in the said hotel and there was no employment and,  hence, no contribution paid under the ESI Act for the said period.

Later on, the 1st petitioner was transferred to Hotel New Indraprastha,

Adoor; which was also under the same management. It is, hence,

Hotel Indraprastha has issued Exhibit P1 showing the contribution

from 01.10.2011 to 31.03.2017.

The respondents have filed a counter affidavit, in which

it is specifically indicated that there was no contributions made for the

period between April, 2015 to March, 2016. As per the admission

policy as seen from Exhibit P2, the contribution for the period

specified in Groups I, II and II has to be made on or before

01.01.2017.

The objection is insofar as the 1st petitioner having not

satisfied the criteria of Group I, II and III preference, as is indicated in

Clause 4.5 of Exhibit P4. The Group Classification is as follows:

"Group-I: IPs who have been in continuous insurable employment for a minimum period of five years as on 1st January of the year of admission and have paid at least 78 days of contribution in each Contribution Period (09), during this five year period.

Group-II: IPs who have been in continuous insurable employment for a minimum period of four years as on 1st January of the year of admission and have paid at least 78 days of contribution in each Contribution Period (06), during this four year period.

Group-III: IPs who have been in continuous insurable employment for a minimum period of three years as on 1st January of the year of admission and have paid at least 78 days of contribution in each Contribution Period (05), during this three year period".

It is submitted by the learned Counsel appearing for the petitioners

that the condition is only that the employment should be continuous

as on 01.01.2017.

The mandate as per the ESI Act is for paying

contributions at the end of every month, on payment of salary, from

which the employee''s contribution is also deducted. It is a mandate

on the employer to make such contribution on the very same month

in which the salary is paid. Hence, this Court is inclined to accept the

contention of the Corporation that the contributions ought to be made

immediately and not far later, to be in accordance with the ESI Act

and Rules.

In the present case, the 1st petitioner was out of

employment between April, 2015 to March, 2016. No wages were

paid to the 1st petitioner and he was transferred and appointed to the

other establishment only in 2016. Even in such establishment the

contributions were not made and the same has been made for the

earlier period only on 06.06.2017, just prior to the filing of the writ

petition.

It is the contention of the learned Standing Counsel

appearing for the Corporation that if this is permitted, any employee

whose contributions were not paid could make up the payments by

himself at a later stage without the wages also being paid and thus

come within the preference as available under the admission policy.

The contribution has to be during the period of employment when

wages are received by the employees. In this context, the learned

Standing Counsel also relies on a Division Bench judgment of this

Court in W.A.No.1993 of 2016, dated 07.10.2016.

In W.A.No.1993 of 2016, there was only one day''s

shortage in one of the contribution periods, for reason of absence

from work and the Division Bench refused to grant the preference as

available from the admission policy, finding that a strict interpretation

has to be given to such preferences; otherwise it would go against

the normal rule of equality. It was held so:

"If this Court shows leniency in favour of one person, it will have cascading effect all over the State as well as the country. Such guidelines will have to be strictly construed in order to streamline the system. It is no doubt, true that as is clear from certain orders, this Court has taken a lenient view in one or two matters. That does not mean that such leniency should continue in future also without following the guidelines which are

being followed in the entire country. In view of the same, we do not find any ground to interfere with the judgment passed by the learned Single Judge".

The prescription of at least 78 days of contribution, in a

contribution period of 6 months is also very reasonable. There would

be a total of about 180 days in a six month period with about 150

working days. The prescription for even a Group I preference is only

payment of contribution or attendance for little more than half the

total working days.

In the present case, the absence is of about one year.

The contention of the ESI Corporation that even the wages has not

been paid and therefore there is no question of payment of

contribution, is also of significant import. For the above reasons, this

Court does not find any reason to exercise discretion in favour of the

petitioners in this case.

The writ petition would stand dismissed.