Dismissed

Vivek Vidyalaya and Anr. v. Employees State Insurance Corporation through Its Deputy Director and Ors.

Jharkhand HC7 Jul 2022WPC/4189/2014

Case brief

AI extract

What is this about?

A school challenged ESI coverage and contribution recovery. The Court rejected objections concerning notification, retired employees, unjust enrichment and identity cards, and dismissed the writ petition with liberty to approach the ESI Court over quantum, excess payment and refund.

What did the court decide?

Liberty to approach the ESI Court on quantum, excess payment and refund; delay to be considered sympathetically under Section 14 of the Limitation Act.

Vivek Vidyalaya and Anr. Vs Employees State… — Labour and Industrial Disputes | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Writ Jurisdiction) W.P. (L) No. 4189 of 2014

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….....

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Vivek Vidyalaya & Another …. ..... Petitioners Versus Employees' State Insurance Corporation & Others

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…. ..... Respondents

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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Petitioners : Mr. V.P. Singh, Sr. Advocate. Mr. Amit Kumar Das, Advocate. Mrs. Rashmi Kumari, Advocate. For the Respondents / ESIC : Mr. Ashutosh Anand, Advocate. Ms. Shreshtha Mehta, Advocate. For the Respondent / State : Mr. Prabhat Kumar, S.C.-II. Ms. Shivani Kapoor, A.C. to S.C.-II ........

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12/07.07.2022.

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Heard, learned Senior counsel, Mr. V.P. Singh assisted by learned counsel for the petitioners, Mr. Amit Kumar Das and learned counsel, Mrs. Rashmi Kumari, learned counsel for the respondents / ESIC, Mr. Ashutosh Anand assisted by learned counsel, Ms. Shreshtha Mehta and learned counsel for the respondent / State, Mr. Prabhat Kumar, S.C.-II assisted by learned A.C. to S.C.-II, Ms. Shivani Kapoor.

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Learned senior counsel, Mr. V.P. Singh has submitted, that petitioners have preferred this writ petition for declaring that the provisions of Employees' State Insurance Act, 1948 has not been made applicable to “the Establishments” viz. Educational Insitutions, situated in Singhbhum East Area on the basis of Notification dated 19.04.2007 and also it's not applicable to the petitioner-School before its registration, also for quashing the Demand Notice dated 07.07.2014, issued by the Deputy Director, Employees' State Insurance Corporation, Regional Office, Namkum, Ranchi whereby and whereunder the petitioner – School has been directed to pay a contribution of Rs. 11,06,554/- for the period from April, 2008 to December, 2012 and also for quashing the letter No.

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60001532210001302/73020141219 dated 30.07.2014, issued by the Deputy Director, Employees' State Insurance Corporation, Regional Office, Namkum, Ranchi, whereby and whereunder he has directed the Recovery Officer of the Employee's State Insurance Corporation, Regional Office, Namkum, Ranchi to recover Rs. 15,65,955/- along with further interest @ 12% per annum, which is to be calculated @ Rs. 363.80 per day.

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Learned senior counsel, Mr. V.P. Singh has submitted, that part of the gazette notification filed by the Secretary, Department of Labour, Employment & Training, Government of Jharkhand in the supplementary counter-affidavit dated 04.07.2022 in another case i.e. W.P.(L) No.1173 of 2022 shows that educational institutions have been brought within the ambit from the date of notification i.e. 11.02.2011, as such, any demand made prior to 11.02.2011 is not in consonance with law.

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Learned senior counsel, Mr. V.P. Singh has further submitted, that in view of provisions of Section 45-A of the ESI Act, 1948, the demand made on 01.08.2013 vide Annexure-4 to the writ petition, issued by Social Security Officer, ESI Corporation, Golmuri for the Financial Year, August, 2008 to March, 2009, 2009-10, 2010-11, 2011-12 and 2012-13 (up to December, 2012) is non-sustainable in the eyes of law.

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Learned senior counsel, Mr. V.P. Singh has placed reliance upon the judgment passed by Division Bench of Madras High Court in the case of National Cement Workers Union, Represented by its Vice President, Coimbatore vs. Government of Tamil Nadu and Others at paras 15, 16 & 17 and submitted that the same may be profitably quoted hereunder:-

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15. In such circumstances to direct the amount held in deposit by the management, pursuant to orders of Courts, to be remitted to the ESI Corporation would be a very inequitable proposition and as held by the Hon'ble Supreme Court, it would amount to unjust enrichment by the Corporation. Therefore, the members of the appellant Union are fully justified in seeking for refund of the money held in deposit, which amount was deducted from their salary.

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16. Admittedly, no facility offered by the ESI Corporation has been enjoyed by the members of the appellant Union and therefore, to direct remittance of the amount recovered from the salary to the ESI would be against equities and if done would be unjust and unfair.

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17. In the result, the writ appeal is allowed, by directing the third respondent management to refund to the employees, the amount recovered from their salary, which is stated to be retained in a separate account together with accrued interest to be calculated pro-rate, within a period of three weeks from the date of receipt of a copy of this order. The third respondent management shall be entitled to withdraw the employers' contribution, which is also retained in a separate account. No costs. Consequently, connected miscellaneous petition is closed.

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Learned senior counsel, Mr. V.P. Singh has further submitted, that reasonable opportunity has not been given, as such, without proper assessment such demand has been made after a long period, which amounts to unjust enrichment of the Corporation without providing any service to the employees, as such, in absence of any card issued by the ESIC to the employees, the ESIC cannot make such demand from the school.

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Learned senior counsel, Mr. V.P. Singh has further submitted, that ESIC has completely failed in following the Regulation 11 and 17 of the Employees' State Insurance (General) Regulations, 1950.

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Learned senior counsel, Mr. V.P. Singh has further submitted, in view of provision of Section 40 of the Employees' State Insurance Act, 1948, the petitioner, being the Principal Employer is debarred from realizing the said amount for past period, as the persons, who have already been superannuated and left the services, their contribution cannot be realized by the Principal Employer and thus, the Principal Employer is put to loss because of such action taken by the respondent- ESI corporation.

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Learned senior counsel, Mr. V.P. Singh has further submitted, that the period for which the amount has been attached no facility has been provided by the ESIC.

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Learned senior counsel, Mr. V.P. Singh has submitted that I.A. No. 4448/2014 has been filed on behalf of petitioner - School for release of Rs. 15,68,866.00 which has been illegally attached by the

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respondents from the account of the petitioner - School being Account No. 11338740735, maintained at State Bank of India, Chota Govindpur Branch, Jamshedpur, as such, the amount, which has been attached by the respondents may be refunded to the petitioners as petitioners are not at fault.

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Learned senior counsel, Mr. V.P. Singh has further submitted, that so far the principles of natural justice as pleaded at para 20 of the writ petition is concerned, it has not been denied by the respondent-authorities, as such, the impugned demand may be set aside and amount may be refunded as there has not been any proper determination of amount after giving notice to the petitioners as pleaded at para 18 of the writ petition.

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Learned counsel for the respondent-State, Mr. Prabhat Kumar, S.C.-II assisted by learned A.C. to S.C.-II, Ms. Shivani Kapoor has submitted, that extra ordinary gazette dated 06.02.2006 and 19.04.2007, which have been brought on record by way of supplementary counter affidavit filed on 05.07.2022 by the Secretary, Labour Employment and Training Department, Government of Jharkhand, cannot be surpassed by any Principal Secretary of the Department as this extraordinary gazette will prevail upon all the letters, even if such affidavit has been filed by an officer that cannot be relied by this Court.

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Learned counsel for the respondent-State, Mr. Prabhat Kumar, S.C.-II has further submitted, that since this has already been published in the gazette, which was not required to be brought on record, but even then the same has been brought on record to assist this Court properly.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand assisted by learned counsel, Ms. Shreshtha Mehta has submitted, that such confusion has cropped up before the Court only because there was amendment in the year, 2011, but, the same cannot come for rescue of the petitioners in view of the extraordinary gazette dated 06.02.2006 read with 19.04.2007.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that petitioners are debarred to challenge the notice as petitioners have alternate remedy to file an application before ESI Court under Section 75 of the ESI Act, 1948, however, he has submitted, that even on the merit of the case, the demand is within five years of the date on which contribution shall become payable, as such, Section 45-A of the ESI Act, 1948 is not being violated.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that it was domain of the Principal employer to follow the provision of law, after gazette notification of the year 2006 & 2007, but the Principal Employer has not followed the guidelines and provisions of law, therefore, Principal Employer cannot seek remedy under the law, as the Act has already provided these provisions under Sub-section (2) of Section 40 of the Employees' State Insurance Act, 1948, as such, Principal employer has to collect contribution from past employees, for which Employees' State Insurance Corporation cannot be held liable.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that in Regulation 4 of the Employees' State Insurance (General) Regulations, 1950, the contribution and benefit period has been defined, which may profitably be quoted hereunder:-

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[ 4. Contribution and Benefit periods. — Contribution periods and the corresponding benefit periods shall be as under :

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_______________________________ Contribution period	_________________________________ Corresponding benefit period
_______________________________ 1st April to 30th September	_________________________________ 1st January of the year following to 30th June.
1st October to 31st March of the year following _______________________________	1st July to 31st December. _________________________________

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Provided that in the case of a person who becomes an employee within the meaning of the Act for the first time, the first contribution period shall commence from the date of such employment in the contribution period current on that day and the corresponding benefit period for him shall commence on the expiry of the period of 9 months from the date of such employment.]

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that Principal employer has not followed the provision envisaged under the Regulation 10-B & 11 of Chapter-II of the Employees' State Insurance (General) Regulations, 1950, which reads as follows:

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“ 10-B. Registration of Factories or Establishments. — (a) The employer in respect of a factory or an establishment to which the Act applies for the first time and to which an Employer’s Code Number is not yet allotted, and the employer in respect of a factory or an establishment to which the Act previously applied but has ceased to apply for the time being, shall furnish to the appropriate Regional Office not later than 15 days after the Act becomes applicable, as the case may be, to the factory or establishment, a declaration of registration in writing in Form-01 and Form-01-A (hereinafter referred to as Employer’s Registration Form).

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(b) The employer shall be responsible for the correctness of all the particulars and information required for and furnished on the Employer’s Registration Form.

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(c) The appropriate Regional Office may direct the employer who fails to comply with the requirements of paragraph (a) of this regulation within the time stated therein to furnish to that office Employer’s Registration Form duly completed within such further time as may be specified and such employer shall, thereupon, comply with the instructions issued by that office in this behalf.

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(cc) The employer in respect of a factory or establishment to which a code number has been issued by the Corporation based on information collected or decision taken regarding applicability of the Act to such factory or establishment, shall, within fifteen days of receipt of information of allotment of code number, furnish a declaration in Form01.

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(d) Upon receipt of the completed Employer’s Registration Form, the appropriate Regional Office shall, if satisfied that the factory or the establishment is one to which the Act applies, allot to it an Employer’s Code Number (unless the factory or the establishment has already been allotted an Employer’s Code Number) and shall inform, the employer of that number.

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(e) The employer shall enter the Employer’s Code Number on all documents prepared or completed by him in connection with the Act, the rules and these regulations and in all correspondence with the appropriate office.”

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11. Declaration by persons in employment on appointed day. - The employer in respect of a factory or an establishment shall require every employee in such factory or establishment to furnish, and such employees shall on demand furnish to him either before or on the appointed day, correct particulars for the purpose of Form 1 (hereinafter referred to as the Declaration Form). Such employer shall enter the particulars in the Declaration Form including the Temporary Identification Certificate, and obtain the signature or the thumbimpression of such employee and also complete the form as indicated thereon.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that so far identity card is concerned,

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since the Principal employer has not followed the regulations of the Employees' State Insurance (General) Regulations, 1950 and necessary document has not been remitted to the office of the State Employees' Insurance Corporation, as such, identity card which is to be issued under Regulation 17 of the Employees' State Insurance (General) Regulations, 1950 has not been issued, but admittedly the hospital and dispensary with all medical facilities were provided to all such persons, registered under the Employees' State Insurance Corporation under the Act at Jamshedpur as several firms are under the organization and those employees are being given such benefits by the Employees' State Insurance Corporation.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that Employees' State Insurance Scheme, being a social welfare scheme for the people, for which a fund is being created under Section 26 of the Employees' State Insurance Act, 1948 and purposes for which the fund may be expended has been discussed in Section 28 of the Employees' State Insurance Act, 1948, which reads as follows:-

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26. Employees' State Insurance Fund -(1) All contributions paid under this Act and all other moneys received on behalf of the Corporation shall be paid into a fund called the Employees' State Insurance Fund which shall be held and administered by the Corporation for the purposes of this Act.

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(2) The Corporation may accept grants, donations and gifts from the Central or any State Government, local authority, or any individual or body whether incorporated or not, for all or any of the purposes of this Act.

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[(3) Subject to the other provisions contained in this Act and to any rules or regulations made in this behalf, all moneys accruing or payable to the said Fund shall be paid into the Reserve Bank of India or such other bank as may be approved by the Central Government to the credit of an account styled the account of the Employees' State Insurance Fund.]

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(4) Such account shall be operated on by such officers as may be authorised by the Standing Committee with the approval of the Corporation.

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28. Purposes for which the Fund may be expended- Subject to the provisions of this Act and of any rules made by the Central Government in that behalf, the Employees' State Insurance Fund shall be expended only for the following purposes, namely:-

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(i) payment of benefits and provision of medical treatment and attendance to insured persons and, where the medical benefit is extended to their families, the provision of such medical benefit to their

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families, in accordance with the provisions of this Act and defraying the charges and costs in connection therewith;

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(ii) payment of fees and allowances to members of the Corporation, the Standing Committee and the Medical Benefit Council, the Regional Boards, Local Committees and Regional and Local Medical Benefit Councils;

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(iii) payment of salaries, leave and joining time allowances, travelling and compensatory allowances, gratuities and compassionate allowances, pensions, contributions to provident or other benefit fund of officers and servants of the Corporation and meeting the expenditure in respect of offices and other services set up for the purpose of giving effect to the provisions of this Act;

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(iv) establishment and maintenance of hospitals, dispensaries and other institutions and the provision of medical and other ancillary services for the benefit of insured persons and, where the medical benefit is extended to their families;

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(v) payment of contributions to any State Government, local authority or any private body or individual, towards the cost of medical treatment and attendance provided to insured persons and, where the medical benefit is extended to their families, including the cost of any building and equipment, in accordance with any agreement entered into by the Corporation;

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(vi) defraying the cost (including all expenses) of auditing the accounts of the Corporation and of the valuation of its assets and liabilities;

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(vii) defraying the cost (including all expenses) of the Employee's Insurance Courts set up under this Act;

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(viii) payment of any sums under any contract entered into for the purposes of this Act by the Corporation or the Standing Committee or by any officer duly authorised by the Corporation or the Standing Committee in that behalf;

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(ix) payment of sums under any decree, order or award of any Court or Tribunal against the Corporation or any of its officers or servants for any act done in the execution of his duty or under a compromise or settlement of any suit or other legal proceeding or claim instituted or made against the Corporation;

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(x) defraying the cost and other charges of instituting or defending any civil or criminal proceedings arising out of any action taken under this Act;

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(xi) defraying expenditure, within the limits prescribed, on measures for the improvement of the health, welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured; and

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(xii) such other purposes as may be authorised by the Corporation with the previous approval of the Central Government.

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Learned counsel for the respondents/ESIC, Mr. Ashutosh Anand has further submitted, that the benefits have been illustrated in Sections 46 to 59 of ESI Act, which reads as follows:-

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46. Benefits. — (1) Subject to the provisions of this Act, the insured persons, [their dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to the following benefits, namely : —

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(a) periodical payments to any insured person in case of his sickness

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certified by a duly appointed medical practitioner [or by any other person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf] (hereinafter referred to as sickness benefit) ;

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[(b) periodical payments to an insured woman in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, such woman being certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as maternity benefit) ;]

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(c) periodical payments to an insured person suffering from disablement as a result of an employment injury sustained as an employee under this Act and certified to be eligible for such payments by an authority specified in this behalf by the regulations (hereinafter referred to as disablement benefit) ;

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(d) periodical payments to such dependants of an insured person who dies as a result of an employment injury sustained as an employee under this Act, as are entitled to compensation under this Act (hereinafter referred to as dependants’ benefit) ;

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(e) medical treatment for and attendance on insured persons (hereinafter referred to as medical benefit); [and

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(f) payment to the eldest surviving member of the family of an insured person who has died, towards the expenditure on the funeral of the deceased insured person, or, where the insured person did not have a family or was not living with his family at the time of his death, to the person who actually incurs the expenditure on the funeral of the deceased insured person (to be known as [funeral expenses].

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Provided that the amount of such payment shall not exceed [such amount as may be prescribed by the Central Government] and the claim for such payment shall be made within three months of the death of the insured person or within such extended period as the Corporation or any officer or authority authorised by it in this behalf may allow.]

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(2) The Corporation may, at the request of the appropriate Government, and subject to such conditions as may be laid down in the regulations, extend the medical benefits to the family of an insured person.

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[ 49. Sickness benefit. — The qualification of a person to claim sickness benefit, the conditions subject to which such benefit may be given, the rate and period thereof shall be such as may be prescribed by the Central Government.

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50. Maternity Benefit. — The qualification of an insured woman to claim maternity benefit, the conditions subject to which such benefit may be given, the rates and period thereof shall be such as may be prescribed by the Central Government.]

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[51. Disablement benefit. — Subject to the provisions of this Act —

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(a) a person who sustains temporary disablement for not less than three days (excluding the day of accident) shall be entitled to periodical payment [at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government] ;

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(b) a person who sustains permanent disablement, whether total or partial, shall be entitled to periodical payment [at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government].

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51-A. Presumption as to accident arising in course of employment. — For the purposes of this Act, an accident arising in the course of [an employee’s] employment shall be presumed, in the absence of evidence to the contrary, also to have arisen out of that employment.

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51-B. Accidents happening while acting in breach of regulations, etc.

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— An accident shall be deemed to arise out of and in the course of [an employee’s] employment not withstanding that he is at the time of the accident acting in contravention of the provisions of any law applicable to him, or of any orders given by or on behalf of his employer or that he is acting without instructions from his employer, if —

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(a) the accident would have been deemed so to have arisen had the act not been done in contravention as aforesaid or without instructions from his employer, as the case may be ; and

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(b) the act is done for the purpose of and in connection with the employer’s trade or business.

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51-C. Accidents happening while travelling in employer’s transport.

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— (1) An accident happening while an [employee] is, with the express or implied permission of his employer, travelling as a passenger by any vehicle to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle, be deemed to arise out of and in the course of his employment, if —

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(a) the accident would have been deemed so to have arisen had he been under such obligation ; and

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(b) at the time of the accident, the vehicle —

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(i) is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer ; and

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(ii) is not being operated in the ordinary course of public transport service.

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(2) In this section “ vehicle ” includes a vessel and an aircraft.

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51-D. Accidents happening while meeting emergency. — An accident

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happening to an [employee] in or about any premises at which he is for the time being employed for the purpose of his employer’s trade or business shall be deemed to arise out of and in the course of his employment, if it happens while he is taking steps, on an actual or supposed emergency at those premises, to rescue, succour or protect persons who are, or are thought to be or possibly to be, injured or imperiled, or to avert or minimize serious damage to property.]

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[51-E. Accidents happening while commuting to the place of work and vice versa. — An accident occurring to an employee while commuting from his residence to the place of employment for duty or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and the employment is established.]

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[52. Dependants’ benefit. — (1) If an insured person dies as a result of an employment injury sustained as an employee under this Act (whether or not he was in receipt of any periodical payment for temporary disablement in respect of the injury) dependants’ benefit shall be payable [at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government] to his dependants specified in [sub-clause (i), sub-clause (i-a) and] subclause (ii) of clause (6-A) of section 2.

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(2) In case the insured person dies without leaving behind him the dependants as aforesaid, the dependants’ benefit shall be paid to the other dependants of the deceased [at such rates and for such periods and subject to such conditions as may be prescribed by the Central Government.]

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52-A. Occupational disease. — (1) If an employee employed in any establishment specified in Part A of the Third Schedule contracts any disease specified therein as an occupational disease peculiar to that employment, or if an employee employed in the employment specified in Part B of that Schedule for a continuous period of not less than six months contracts any disease specified therein as an occupational disease peculiar to that employment or if an employee employed in any employment specified in Part C of that Schedule for such continuous period as the Corporation may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall, unless the contrary is proved, be deemed to be an “ employment injury ” arising out of and in the course of employment.

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(2) (i) Where the Central Government or a State Government, as the case may be, adds any description of employment to the employments specified in

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Schedule III to the Workmen’s Compensation Act, 1923 (8 of 1923) by virtue of the powers vested in it under sub-section (3) of Sec. 3 of the said Act, the said description of employment and the occupational diseases specified under that sub-section as peculiar to that description of employment shall be deemed to form part of the Third Schedule.

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(ii) Without prejudice to the provisions of clause (i), the Corporation after giving, by notification in the Official Gazette, not less than three months’ notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in the Third Schedule and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively and thereupon the provisions of this Act shall apply, as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.

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(3) Save as provided by sub-sections (1) and (2), no benefit shall be payable to an employee in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.

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(4) The provisions of section 51-A shall not apply to the cases to which this section apply.]

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[53. Bar against receiving or recovery of compensation or damages under any other law. — An insured person or his dependants shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.]

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[54. Determination of question of disablement. — Any question —

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(a) whether the relevant accident has resulted in permanent disablement ;

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(b) whether the extent of loss of earning capacity can be assessed provisionally or finally ; or

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(d) in the case of provisional assessment, as to the period for which such assessment shall hold good, shall be determined by a medical board constituted in accordance with the provisions of the regulations and any such question shall hereafter be referred to as the “ disablement question ”.

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54-A. References to medical boards and appeals to medical appeal

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tribunals and Employees’ Insurance Courts. — (1) The case of any insured person for permanent disablement benefit shall be referred by the Corporation to a medical board for determination of the disablement question and if, on that or any subsequent reference, the extent of loss of earning capacity of the insured person is provisionally assessed, it shall again be so referred to the medical board not later than the end of the period taken into account by the provisional assessment.

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(2) If the insured person or the Corporation is not satisfied with the decision of the medical board, the insured person or the Corporation may appeal in the prescribed manner and within the prescribed time to —

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(i) the medical appeal tribunal constituted in accordance with the provisions of the regulations with a further right of appeal in the prescribed manner and within the prescribed time to the Employees’ Insurance Court, or

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(ii) the Employees’ Insurance Court directly]

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[Provided that no appeal by an insured person shall lie under this subsection if such person has applied for commutation of disablement benefit on the basis of the decision of the medical board and received the commuted value of such benefit :

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Provided further that no appeal by the Corporation shall lie under this sub-section if the Corporation paid the commuted value of the disablement benefit on the basis of the decision of the medical board.].

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[55. Review of decisions by medical board or medical appeal tribunal. — (1) Any decision under this Act of a medical board or a medical appeal tribunal may be reviewed at any time by the medical board or the medical appeal tribunal, as the case may be, if it is satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the employee or any other person of a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent).

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(2) Any assessment of the extent of the disablement resulting from the relevant employment injury may also be reviewed by a medical board if it is satisfied that since the making of the assessment there has been a substantial and unforeseen aggravation of the result of the relevant injury :

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Provided that an assessment shall not be reviewed under this sub-section unless the medical board is of opinion that having regard to the period taken into account by the assessment and the probable duration of the aggravation aforesaid, substantial injustice will be done by not reviewing it.

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(3) Except with the leave of a medical appeal tribunal, an assessment shall not be reviewed under sub-section (2) on any application made less than

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five years, or in the case of a provisional assessment, six months, from the date thereof and on such a review the period to be taken into account by any revised assessment shall not include any period before the date of the application.

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(4) Subject to the foregoing provisions of this section, a medical board may deal with a case of review in any manner in which it could deal with it on an original reference to it, and in particular may make a provisional assessment notwithstanding that the assessment under review was final ; and the provisions of section 54-A shall apply to an application for review under this section and to a decision of a medical board in connection with such application as they apply to a case for disablement benefit under that section and to a decision of the medical board in connection with such case.

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55-A. Review of dependants’ benefit. — (1) Any decision awarding dependants’ benefit under this Act may be reviewed at any time by the Corporation if it is satisfied by fresh evidence that the decision was given in consequence of non-disclosure or misrepresentation by the claimant or any other person of a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent) or that the decision is no longer in accordance with this Act due to any birth or death or due to the marriage, re-marriage, or cessor or infirmity of, or attainment of the age of eighteen years by, a claimant.

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(2) Subject to the provisions of this Act, the Corporation may, on such review as aforesaid, direct that the dependants’ benefit be continued, increased, reduced or discontinued.]

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56. Medical Benefit. — (1) An insured person or (where such medical benefit is extended to his family) a member of his family whose condition requires medical treatment and attendance shall be entitled to receive medical benefit.

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(2) Such medical benefit may be given either in the form of out-patient treatment and attendance in a hospital or dispensary, clinic or other institution or by visits to the home of the insured person or treatment as in-patient in a hospital or other institution.

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(3) 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] :

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Provided that a person in respect of whom contribution ceases to be payable under this Act may be allowed medical benefit for such period and of such nature as may be provided under the regulations :

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[Provided further that an insured person who ceases to be in insurable employment on account of permanent disablement shall continue, subject to

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payment of contribution and such other conditions as may be prescribed by the Central Government, to receive medical benefit till the date on which he would have vacated the employment on attaining the age of superannuation had he not sustained such permanent disablement :

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[Provided also that an insured person who has attained the age of superannuation, a person who retires under a Voluntary Retirement Scheme or takes premature retirement, and his spouse shall be eligible to receive medical benefits subject to payment of contribution and such other conditions as may be prescribed by the Central Government.]

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Explanation. — In this section, “ superannuation ”, in relation to an insured person, means the attainment by that person of such age as is fixed in the contract or conditions of service as the age on the attainment of which he shall vacate the insurable employment or the age of sixty years where no such age is fixed and the person is no more in the insurable employment].

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57. Scale of medical benefit. — (1) An insured person and (where such medical benefit is extended to his family) his family shall be entitled to receive medical benefit only of such kind and on such scale as may be provided by the State Government or by the Corporation, and an insured person or, where such medical benefit is extended to his family, his family shall not have a right to claim any medical treatment except such as is provided by the dispensary, hospital, clinic or other institution to which he or his family is allotted, or as may be provided by the regulations.

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(2) Nothing in this Act shall entitle an insured person and (where such medical benefit is extended to his family) his family to claim reimbursement from the Corporation of any expenses incurred in respect of any medical treatment, except as may be provided by the regulations.

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58. 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 :

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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.

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(2) Where the incidence of sickness benefit payment to insured persons in any State is found to exceed the all-India average, the amount of such excess shall be shared between the Corporation and the State Government in such proportion as may be fixed by agreement between them :

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Provided that the Corporation may in any case waive the recovery of the whole or any part of the share which is to be borne by the State Government.

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(3) The Corporation may enter into an agreement with a State Government in regard to the nature and scale of the medical treatment that should be provided to insured persons and (where such medical benefit is extended to the families) their families (including provision of buildings, equipment, medicines, and staff) and for the sharing of the cost thereof and of any excess in the incidence of sickness benefit to insured persons between the Corporation and the State Government.

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(4) In default of agreement between the Corporation and any State Government as aforesaid, the nature and extent of the medical treatment to be provided by the State Government and the proportion in which the cost thereof and of the excess in the incidence of sickness benefit shall be shared between the Corporation and that Government, shall be determined by an arbitrator who shall be or shall have been a Judge of the [High Court [of a State]] appointed by the Chief Justice of India and the award of the arbitrator shall be binding on the Corporation and the State Government.

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[(5) The State Government may, in addition to the Corporation under this Act, with the previous approval of the Central Government, establish such organisation (by whatever name called) to provide for certain benefits to employees in case of sickness, maternity and employment injury :

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Provided that any reference to the State Government in the Act shall also include reference to the organisation as and when such organisation is established by the State Government.

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(6) The organisation referred to in sub-section (5) shall have such structure and discharge functions, exercise powers and undertake such activities as may be prescribed.]

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59. Establishment and maintenance of hospitals, etc., by Corporation. — (1) 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) their families.

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(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.

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[(3) The Corporation may also enter into agreement with any local authority, local body or private body for commissioning and running Employees’ State Insurance hospitals through third party participation for providing medical treatment and attendance to insured persons and where such

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medical benefit has been extended to their families, to their families.]

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[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.

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(2) In the event of the Corporation exercising its power under subsection (1), 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.]

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[ 59-B. Medical and para-medical education. — The Corporation may establish medical colleges, nursing colleges and training institutes for its paramedical staff and other employees with a view to improve the quality of services provided under the Employees’ State Insurance Scheme.]

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that medical facilities are being provided to the employees. Not only this, a superspeciality hospital is also under the process in the State of Jharkhand at Namkom, Ranchi, which is made out of the contributions deposited in the fund, created under Employees' State Insurance Act.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that under Section 68 of the Employees' State Insurance Act, 1948, the corporation has right to recover the same from the Principal Employers, which reads as follows:-

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68. Corporation’s rights where a principal employer fails or neglects to pay any contribution. — (1) If any principal employer fails or neglects to pay any contribution which under this Act he is liable to pay in respect of any employee and by reason thereof such person becomes disentitled to any benefit or entitled to a benefit on a lower scale, the Corporation may, on being satisfied that the contribution should have been paid by the principal employer, pay to the person the benefit at the rate to which he would have been entitled if the failure or neglect had not occurred and the Corporation shall be entitled to recover from the principal employer either —

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[(i) the difference between the amount of benefit which is paid by the Corporation to the said person and the amount of the benefit which would have been payable on the basis of the contributions which were in fact paid by the employer ; or]

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(ii) twice the amount of the contribution which the employer failed or neglected to pay,

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whichever is greater.

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(2) The amount recoverable under this section may be recovered as if it were an arrear of land revenue 3 [or under section 45-C to section 45-I].

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that the contribution is not a premium on the tax, rather it is contribution as envisaged under Section 2(4) of the ESI Act, 1948, which is for discharge of the social security provided to the employees.

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Learned counsel for the respondents/ESI, Mr. Ashutosh Anand has further submitted, that Hon'ble Division Bench of the Madras High Court has considered those aspects of the matter, which was not identical to the fact of the present case. In that case, Hon'ble Division Bench of Madras High Court has passed an interim order, as the Principal Employer has to spend huge money on the medial expenses of its employees, which is not applicable in this case, as such, the concept of unjust enrichment will not applicable in the present case, as there is no question that any unjust enrichment is being there, rather it is the solemn duty of the Principal employer to contribute before the ESIC soon after the notification was published and gazette in the newspaper, as such, the writ petition is not maintainable and is fit to be dismissed, petitioners may raise all these issues before the ESI Court by taking recourse of Section 75 of the ESI Act.

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Heard, learned counsel for the parties. The notice dated 01.08.2013, issued by Social Security Officer, ESI Corporation, Golmuri has been assailed by the petitioners on four grounds, which are as follows :-

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(i) That no notification under Section 1 (5) of the ESI Act, 1948 has been issued.

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In terms of order dated 16.06.2022, this Court, on the basis of such submissions as some anomaly has been found in the notification, has directed the Secretary, Department of Labour, Employment and Training, Government of Jharkhand to annex the copy of Central Government's consent and the same has been clarified by the State by way of supplementary counter affidavit dated 05.07.2022 showing the extraordinary gazette dated 06.02.2006 (Notification dated 25.01.2006) and the extraordinary gazette dated 19.04.2007 (Notification dated 19.04.2007), wherein the approval of the Central Government has been mentioned in the notification. Not only this, the approval sent by the Central Government has also been brought on record, which is Annexure- C to the supplementary counter affidavit dated 05.07.2022, thus, the preliminary objection taken by the petitioners is hereby rejected. (ii) So far the objection raised by the learned counsel for the petitioners with regard to contributions attached by the respondents authority for those employees, who have been superannuated and now the Principal Employer has to suffer the loss is concerned, this Court has examined the provisions of law, particularly Regulation 4 ( contribution and benefit period ) of the Employees State Insurance (General) Regulations, 1950, which says that contribution, if made from 1^st April to 30^th September, the corresponding benefit period shall be 1^st Jaunary of the year following to 30^th June, meaning thereby if the contribution is paid for 1^st April 2022 to 30^th September, 2022, then corresponding benefit can be provided from 01.01.2023 till 30.06.2023, as such, it was solemn duty of the employer to pay the contribution after having gazette notification and so far the loss, which will cause to the Principal Employer because of superannuation of the certain employees are concerned, this Court has perused Section 40(2) of ESI Act, 1948, which gives power to the Principal Employer to recover the same. Since the

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principal employer was not inclined to deposit the amount and because of the laches on the part of the principal employer to follow the gazette notification and to avail the same, this Court cannot give any protection to the principal employer, who has himself caused loss, if so caused, as such, objection raised by petitioners is hereby also rejected.

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(iii) So far unjust enrichment is concerned, the concept of unjust enrichment is not applicable in the present facts and circumstances of the case, as held by the Apex Court in the case of Mafatlal Industries Ltd. vs. Union of India, reported in 1997 (5) SCC 536 , though the same has been discussed by the Hon'ble Division Bench of the Madras High Court, but the fact of that case is different from the present case. In that case, there was interim order by the Division Bench, thus the employer did not pay the contribution and the Employees Insurance Corporation has also not provided any service to the employees, as such, for those period, if the contribution is to be deposited that can be considered to be unjust enrichment, which is not applicable in the present case, as in the present case, the employees were free to avail the facility even in Jamshedpur, where the hospital facilities has been provided to employees of other organization, who are in ambit of ESI Act.

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(iv) So far non-supply of identity card, which has been raised as an objection by the learned counsel for the petitioners is concerned, from perusal of the provision of Regulation of Employees' State Insurance (General) Regulation, 1950, it appears that the necessary document is to be provided by the Principal employer. Since the principal employer has not provided the same, the non-supply of the identity card to the employees cannot be considered to be deficiency in the service of the ESI Corporation.

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After considering the rival submissions of the parties and on perusal of the material on entire record, this Court is of the opinion that if, the quantum of the amount is to be challenged by the petitioners, the petitioners have legal remedy under Section 75 of the

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ESI Act to file the original case before the ESI court, but the same cannot be raised in writ jurisdiction, thus the writ petition filed by the petitioners is fit to be dismissed.

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Accordingly, the instant writ petition is dismissed with aforesaid liberty.

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Pending I.As. stand closed.

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However, any observation made by this Court shall not prejudice the petitioners before the ESI Court, if an application has filed under Section 75 of ESI Act with regard to quantum, with regard to excess payment and refund.

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If such application is filed, the ESI court shall consider the delay in view of Section 14 of the Limitation Act with regard to condonation of delay as writ petition was filed before this Court on 16.08.2014 and till date matter remains pending, as such, while considering the limitation, a sympathetically approach should be taken and technical approach should not prevail upon the merit of the case.

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(Kailash Prasad Deo, J.)

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Sunil-Rohit/-

Vivek Vidyalaya and Anr. v. Employees State Insurance Corporation through Its Deputy Director and Ors.

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Vivek Vidyalaya and Anr. v. Employees State Insurance Corporation through Its Deputy Director and Ors.

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