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Judgment
K. Chandru, J.—The Petitioner in this writ petition seeks for a writ in the nature of declaration, declaring that he is entitled to have the
benefit of the E.S.I. Scheme as well as the treatment in the E.S.I. hospital on having attained the age of superannuation.
The writ petition was admitted on 03.06.2008. Pending the writ petition, notice was taken by the Respondents.
The facts leading to the filing of the case are as follows:
The Petitioner was employed in the second Respondent Factory. He joined the Factory at Madurai on 01.10.1976 as a temporary worker.
Subsequently, he got his services confirmed on 01.01.1980. It was claimed that he is covered by the provisions of the Employees'' State Insurance
Act, 1948 (for short ESI Act). However, the Petitioner was dismissed from service on 21.05.1999. The dismissal of the Petitioner became the
subject matter of challenge in I.D. No. 115 of 2000, before the Industrial Tribunal. Even while the case was pending before the Tribunal, he
attained the age of superannuation on 11.03.2003. He has a dependent viz., his wife T. Shagayarani as his daughter is already married. His ESI
Card Number is 51-1802813. Though the Petitioner was suffering due to ill-health and his wife was suffering due to diabetes and hypertension, the
first Respondent ESI is not extending the medial benefits.
The Petitioner claimed that he is an insured person within the meaning of Section 2(14) of the ESI Act. Chapter v of the ESI Act provides for
various benefits. The ESI (Central) Rules, 1950, more particularly, Rule 55 provides for Sickness Benefit. The Regulations framed under the ESI
Act viz., ESI (General) Regulations, 1950 more particularly, 103-B provides for continuation of medical benefits even to persons who became
disabled or retired.
It is necessary to refer to Regulation 103-B of the ESI (General) Regulations, 1950:
103-B. Medical Benefit to insured person who ceases to be in insurable employment on account of permanent disablement.-(1)An insured person
who ceases to be uninsurable employment on account of permanent disablement caused due to employment injury shall continue to receive medical
benefit for himself and his/her spouse till the date on which he would have vacated the employment on attaining the age of superannuation had helot
sustained such permanent disablement, if he produces a certificate from the employer/a declaration in the form which may be specified by the
Director-General for the purpose.
(2) Medical benefit to retired insured persons.-An insured person who has attained the age of superannuation shall be eligible to receive medical
benefit for himself and his/her spouse, if he produces certificate from the employer in the form which may be specified by the Director - General for
the purpose.(3)An employer shall, on demand, issue the certificate as referred to in sub regulations (1) and (2) to an employee who had been
employed by him.
Since the Petitioner had reached the age of superannuation as on 11.03.2003, he is entitled for benefits under the ESI Act as well as the
Regulations framed hereunder.
The Respondent ESI Corporation had filed a counter affidavit dated Nil (October 2010). In paragraphs 7 and 8 of the counter affidavit, it was
averred as follows:
The form prescribed by the Director General, ESI Corporation in Annexure (B)clearly states that he should have been superannuated as per
factory''s order. This certificate of superannuation should be submitted by the employer along with his proof of eligibility that he was uninsurable
employment for minimum of 5 years preceding to the date of superannuation. The employer should submit a certificate furnishing contributory
particulars for the preceding 5 years (10 half yearly contributory particulars)
It is submitted that the Petitioner has himself admitted that he was dismissed from the service on 21.05.1999, it is very clear that he was not in
the insurable employment from the date of dismissal i.e. 21.05.1999 to till the date of superannuation i.e. 11.03.2003. As being so the employer
did not contribute and submit the Return of Contribution in respect of the Petitioner to the ESI Corporation. Hence he was not eligible for Medical
Benefit under Rule 61 of ESI (Central)Rules 1950.
Mr. V. Prakash, learned Senior Counsel appearing for the Petitioner brought to the notice of this Court that subsequent to the filing of the writ
petition, the Industrial Tribunal by its Award dated 30.01.2010 found that the dismissal order given to the Petitioner was disproportionate.
Therefore, the Tribunal set aside the dismissal order and held that he is deemed to have been in service as on the date of dismissal till the date of
superannuation. He was also entitled to 50% of the back wages for the said period. The learned Senior Counsel submits that the Petitioner has
been unjustly deprived of the medical benefits.
In view of the Award of the Industrial Tribunal which granted a declaratory relief that the Petitioner had deemed to have attained
superannuation, Regulation 103-B(2) comes into operation. The only qualification stated therein is that the Petitioner should produce a certificate
from the Employer in the form in which it maybe specified by the Director-General for the purpose. The learned Senior Counsel would submit that
because of the strain relationship between the Petitioner and the second Respondent, they are likely to furnish such a certificate. Besides that the
Tribunal''s Award is also under challenge before this Court in W.P. No. 8019 of 2010.
With reference to the pendency of the Award under challenge before this Court, it must be noted that the said writ petition (W.P. No.
8019/2010) has been dismissed by this Court today. Therefore, the issue has become final. With reference to non-grant of certificate by the
Employer, it is very well open to the first Respondent ESI to send an appropriate notice to the second Respondent Employer and ascertain the
details regarding the Petitioner''s employment and grant all the benefits interims of Regulation 103-B(2).
Though Mr. A. Paramasivam, learned Standing Counsel for the ESI contends that during the period of Petitioner''s absence, no contribution
has been paid and therefore, he is not eligible to get any amount. It must be noted that the term ''insured person'' is defined u/s 2(14) of the ESI
Act, which 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 by this Act.
The Supreme Court had an occasion to consider the true meaning of the definition u/s 2(14) vide its judgment reported in Bharagath
Engineering Vs. R. Ranganayaki and Another, . In paragraph 8 to 10 and 12, the Supreme Court held as follows:
Section 2(14) of the Act, which is the pivotal provision, reads as follows:
''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 by this Act.
It is to be noted that the crucial expression in Section 2(14) of the Act is ""are or were payable"". It is the obligation of the employer to pay the
contribution from the date the Act applies to the factory or the establishment. In ESI Corps. v. Harrison Malayalam (P) Ltd. 1 the stand of the
employer that employees are not traceable or that there is dispute about their whereabouts does not do away with the employer''s obligation to pay
the contribution. In ESI Corps. v. Hotel Kalpak International 2 it was held that the employer cannot be heard to contend that since he had not
deducted the employee''s contribution on the wages of the employees or that the business had been closed, he could not be made liable. The said
view was reiterated in ESI Corps. v. Harrison Malayalam Ltd. 3 That being the position, the date of payment of contribution is really not very
material. In fact, Section 38 of the Act casts a statutory obligation on the employer to insure its employees. That being a statutory obligation, the
date of commencement has to be from the date of employment of the employee concerned.
The scheme of the Act, the Rules and the Regulations clearly spell out that the insurance covered under the Act is distinct and different from the
contract of insurance in general. Under the Act, the contributions go into a fund u/s 26 for disbursal of benefits in case of accident, disablement,
sickness, maternity etc. The contribution required to be made is not paid back even if an employee does not avail any benefit. It is to be noted that
under Regulation 17-A, if medical care is needed before the issuance of temporary identification certificate, the employer is required to issue a
certificate of employment so that the employee can avail the facilities available. ""Wage period"", ""benefit period"" and ""contribution period"" are
defined in Section 2(23) of the Act, Rule 2(1-C) and Rule 2(2-A) of the Rules. Rule 58(2)(b) is a very significant provision. For a person who
becomes an employee for the first time within the meaning of the Act, the contribution period under Regulation 4 commences from the date of such
employment from the contribution period current on that day and the corresponding benefit period shall commence on the expiry of the period of
nine months from the date of such employment. In cases where employment injuries result in death before the commencement of the first benefit
period, Rule 58(2)(b)(ii) provides the method of computation of dependant''s benefits. It provides for computation of dependant''s benefits in the
case of an employee dying as a result of employment injuries sustained before the first benefit period and before the expiry of the first wage period.
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 an ""insured person"", as defined
in the Act. As the deceased employee has suffered an 9 employment injury as defined u/s 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.
In view of the aforesaid judgment, it is for the ESI authorities to recover the amount, if any due and continue to grant benefit to the Petitioner as
he is deemed to have become superannuated from the service of the second Respondent factory.
The writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petition is closed.