Trade and Industry Employees Union vs The Employees State Insurance Corporation and Others

J.N. Sarma, J.—This application under Article 226 of the Constitution of India has been filed for issue of a Mandamus for enforcement of the Employees'' State Insurance Act. 1948.

The Employees State Insurance Act, 1948 provides for certain benefits to the employees in case of sickness, maternity and employment, injury and other certain matters in relation thereto. This Act was amended in the year 1989 to give certain more benefits to the employees. It may be stated herein that though it is pre constitutional legislation, it conforms to the requirement of Article 39(e) of the Constitution of India which provides that health and strength of workers, men and women shall not be abused Regarding power of the Court to enforce a legislation enacted, the matter came up for consideration before the Apex Court in AIR 1984 SC page 802 (Bandhua Mukti Morcha v. Union of India and Ors.) wherein in paragraph 10, the Supreme Court pointed out as follows:

Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a Court of law, it may not be possible to compel the state through the judicial process to make provision bystatutory enactment or executive fiat for ensuing these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity with concrete reality and content, the State can certainly be obliged to ensure observance of such legislation for inaction on the part of the state in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every states and other medical and surgical services as it compliance with laws made by Parliament and any existing laws which apply in that state.

That case was again relied by the Apex Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., in paragraph 33 of the judgment. So, there is no denial of the fact that the Court can give adequate direction to the authority to enforce the provisions of the Employees State Insurance Act, 1948 (hereinafter called the Act).

The first grievance of the Petitioner in this case is that the bills of medical reimbursement as detailed in Annexure-A has not been paid by the E.S.I. authorities though it was duly sanctioned by the authority and it remained with the E.S.I. for a period of 3 (three) years.

An affidavit-in-opposition has been filed but in that affidavit-in-opposition, there is not even a whisper with regard to this allegation made in the writ application.

The first grievance of the Petitioner is well justified and I direct that the E.S.I. authority i.e. Respondents No. 1, 2 and 3 shall reimburse all the amount due to the employees within a period of one month from the date of receipt of this order, if not already reimbursed, falling which the amount due shall carry interest @ Rs. 15% from the date on which it became due.

The next grievance of the Petitioner is that though Section 58 of the Act requires provisions being made for medical treatment by the State Govt. the E.S.I. dispensary at Tezpur is not properly manned and staffed as a result of which employees are suffering. Section 58(1) is quoted below:

Provision of medical treatment by State Government (1)-The State Government shall provide for insured persons and (where such benefit is extended to their families) their families in the State, reasonable medical, surgical and obstetric treatment:

Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at clinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon.

It is also the grievance of the Petitioner that Section 59 of the Act requires establishment and maintenance of hospital etc. by the Corporation itself but nothing has been done by the Corporation. Section 59 and 59-A of the Act is quoted below:

Establishment and maintenance of hospitals, etc. by Corporation-The Corporation may, with the approval of the State Government, establish and maintain in a State such hospitals, dispensaries and other medical and surgical services as it may think fit for the benefit of insured persons and (where such medical benefit is extended to their families) there families.

(2) The corporation may enter into agreement with any local authority, private body or individual in regard to the provision of medical treatment and attendance for insured persons and (where such medical benefit is extended to their families ) their families in any area and sharing the cost thereof.

59-A. Provision of medical benefit by the Corporation in lieu of State Government (1) Notwithstanding anything contained in any other provision of this Act, the Corporation may, in consultation with the State Government, undertake the responsibility for providing medical benefit to insured persons and where such medical benefit is extended to their families to the families of such insured persons in the State subject to the condition that the State Government shall share the cost of such medical benefit in such proportion as may be agreed upon between the State Government and the Corporation.

(2) In the event of the Corporation exercising its power under Sub-section(l), the provisions relating to medical benefit under this Act shall apply, so far as may be, as if a reference therein to the State Government were a reference to the Corporation.

As a matter of fact, as far back as on 1993 (20.8.93) the local committee of the Corporation at Tezpur adopted a resolution which runs as follows:

ESI Hospital at Tezpur: The members unanimously voiced their concern that inspite of resolution taken in the every local committee meeting that an ESI Hospital should be established at Tezpur for the I.P.S. of the North Bank, but no action has been taken by the authority so far,. However, the committee of the opinion that if the concerned authority is not in a position to establish immediately a full-fledged Hospital at least an Annexie having 30 beds, similar to one at Tinsukia should be established at Tezpur on priority basis.

Though this resolution was adopted as far back as on 1993 till today nothing has been done. The only argument on behalf of the Respondents advanced by Sri Dey is that hospital by the E.S.I. can be set up only if there are adequate number of employees i.e. 12500 employees of the family and it is submitted that in the district of Sonitpur sufficient number of employees are not available as required and hence the hospital has not been set up. It is further stated that at present at Sonitpur District there are 8,800 family units falling short of 4,000. The Corporation can very well sort out this problem by amalgating the adjoining district either Darang or North Lakhimpur District and that will make up the deficit, if any, in the District of Sonitpur.

The authority is directed to set up this Hospital at Tezpur and shall make necessary arrangement for land at Tezpur. Sri K.P. Sarma, learned Central Govt. Standing Counsel assures that he has no objection with regard to the setting up of the Hospital as provided u/s 59 and 59-A of the ESI Act at Tezpur. The process for establishing shall be initiated within a period of six months from the date of receipt of this order. The present hospital at Tezpur run by the State shall be properly manned in the meantime.

This disposes of the writ application.