Dismissed

Ummer K.V. v. the Regional Director

Kerala HC6 Jul 2018WP(C)/17274/2018

Case brief

AI extract

What is this about?

Parents and children covered by the ESI Scheme challenged refusal of 'Ward of Insured Person' certificates under Group I for the NEET MBBS Insured Persons quota, pleading that employers registered their names belatedly though contributions with interest were later paid. The court upheld the date of registration as the reckoning point for continuous insurable employment and dismissed the writ petit

What the court decided

AI extract

Ummer K.V. Vs the Regional Director — Education and Admissions | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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FRIDAY, THE 6TH DAY OF JULY 2018 / 15TH ASHADHA, 1940

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WP(C).No. 17274 of 2018

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PETITIONER

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UMMER K.V., AGED 57 YEARS, S/O.ALI P., SHABITHA MANZIL, ALLAMKULAM, KARIMBAM, TALIPARAMBA, KANNUR DISTRICT.

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BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH

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RESPONDENTS:

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1. THE REGIONAL DIRECTOR, EMPLOYMENT STATE INSURANCE CORPORATION, THRISSUR, PIN -680 307.

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2. THE MANAGER, EMPLOYMENT STATE INSURANCE CORPORATION, PAPPINISSERY BRANCH, KANNUR, PIN-670 561.

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R1 & R2 BY ADV. SRI.K.SANDESH RAJA, SC SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-07-2018, ALONG WITH WPC NO. 17504/2018 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sdr/-

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6.7.18

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WP(C).No. 17274 of 2018 (H)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE DETAILS OF THE CONTRIBUTION TOWARDS THE ESI SCHEME FOR THE PERIOD STARTED FROM 2011 TO 2018.

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EXHIBIT P2 TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE PETITIONER'S DAUGHTER.

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RESPONDENTS EXHIBITS NIL

/TRUE COPY/

PA TO JUDGE

sdr/6.7.18

Dama Seshadri Naidu, J.

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WPC Nos. 17274, 19323, 19497, 18435, 17504 and 19583 of 2018

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Dated this the 6^th July 2018 JUDGMENT

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Introduction:

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All the petitioners are the parents and their children. The children secured ranks in NEET entrance examination to gain admission into the undergraduate medical course. The parents are the employees covered by the Employees’ State Insurance Company Act, 1949 (‘the Act’) and its schemes. The respondents are the Employees’ State Insurance Corporation (‘Corporation’) and its officials.

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WP (C) No.19497 of 2018:

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Anitha Dinesh is a Dental Assistant, working in a private establishment, covered by the Act. Under the Act, she is called an Insured Person. Her daughter Meghna Dinesh took NEET entrance and got qualified for admission into MBBS, under the Insured Person (IP) quota. To claim

¶34

WPC Nos.17274 of 2018 &

¶35

conn.cases 2

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that benefit, Meghna must produce a certificate of “Ward of Insured Person”. For this, Anitha Dinesh applied to the ESI Corporation.

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Anitha Claimed that she entered the service on 01.03.2011, but her employer registered her under the Act on 25.09.2014, only when Anitha protested about denial of benefits to her. The employer, in course of time, did pay all the arrears of accumulated contributions to the Corporation.

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In response to Anitha’s application for the “Ward of Insured Person Certificate, the authorities issued the Certificate under Group III. She is treated to have “continuous insurable employment” only for three years. Anitha contends that she had been in insurable employment beginning from 2011, and that she must have been given the Certificate under Group I, for five years. So, along with her daughter, she filed this writ petition.

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W.P (C) No.19323, 17274 & 19583 of 2018:

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In these cases, the employees were given the Certificate under Group II, for four years. The employees claim it under Group I, for five years. The contention is the same: the employer registered employees’ names late; they cannot be penalized.

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WPC Nos.17274 of 2018 &

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conn.cases 3

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W.P. (C) No.18435 of 2018:

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The employee was given the Certificate under Group III, for three years. The employee claims it under Group I, for five years. The contention is the same: the employer registered her name late; she cannot be penalized.

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W.P. (C) No.17504 of 2018:

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This case stands out. The student alone filed the writ petition. She claims that her father has been in continuous insurable employment for more than five years; yet the employee registered his name only in 2017. She should not be denied the benefit merely because the employer delayed in getting her father’s name registered under Act.

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Submissions:

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Earlier this Court disposed of a batch of similar cases, but slightly on a different question of law, through judgment, dt.04.07.2018. The scheme, the claims, the contentions, the counter contentions, legal nuances have all been set out in detail. This batch too proceeds on the same lines, the only difference being “the date of registration” which did not fall for consideration in the other batch.

¶49

To encapsulate, all the learned counsel have argued that the employees had been working since beyond 1^st January 2011, the date of

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WPC Nos.17274 of 2018 &

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conn.cases 4

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reckoning for five-year period. The employers, however, registered their names late. It is, therefore, inequitable and unconscionable to let the employees, and their wards, suffer.

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But one case stands out: WP (C) No.17504 of 2018. So I set out arguments briefly, though.

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This case the daughter alone filed. She claims benefit through her father. The assertion is that her father has been in continuous insurable employment for many years, but the employer registered his name later— only on 17.10.2017. She should be extended the benefit.

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The Corporation, however, has reservations about the claim. In fact, it opposed the claim and showcased it as a classic case of abuse. It claims that the petitioner’s father himself was an employer, having owned a cashew factory, coming under the Act, in 2017. He recently transferred the ownership onto his wife’s name and produced records before the Corporation, as if he had been an employee in another establishment for many years. Now the daughter claims that her father’s delayed entry could not be a disabling factor.

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Sri Sandesh Raja, the learned Standing Counsel, has contended this case illustrates how a beneficial scheme could be exploited. He also

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WPC Nos.17274 of 2018 &

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conn.cases 5

¶59

cautions that if the Court adopts a liberal approach, certain people, inclined to committing fraud, will render the scheme a mockery.

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In reply, Sri B. Mohan Lal, the petitioner’s counsel, submits that the petitioner’s father only inherited, as a co-owner, a defunct cashew factory. It yielded no profits, nor has it got any employees. The petitioner’s father, indeed, has been an employee in an establishment owned by someone else, so goes the assertion.

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Heard the learned counsel for the petitioners and the learned Standing counsel for the Corporation, besides perusing the record.

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Issue:

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Is the date of registration invariable? Should the late payment of contributions with interest for the periods beyond the registration not cure the defect of delayed registration?

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Discussion:

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The Corporation and Its Admission Policy:

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ESI Corporation, a statutory body established under the ESI Act, 1948, is under the administrative control of Ministry of Labour & Employment, Government of India. It has started Medical Education Institutions across the country. The Central Government has approved the

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WPC Nos.17274 of 2018 & conn.cases 6

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Corporation's admission policy and procedure for undergraduate (MBBS/BDS) Course in ESIC Medical Education Institutions. The policy provides for 'Insured Persons (IPs) Quota' after completing the "All India Quota" and the "State Government Quota." Under the ESI Scheme, the "Wards of Insured Persons" who meet the eligibility criteria and who have been qualified in NEET (UG)-2018 will be eligible under the 'Insured Person Quota' for academic session 2018-19.

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As it annually does, the Corporation now too has come up with a modified admission policy, and the policy fixes all the norms of admission. Many Insured Persons have challenged a few provisions of this policy. They all contended that those offending provisions are arbitrary and unreasonable, falling foul of Article Constitution of India.

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The Policy and the Problem:

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The employees’ children, indeed, secured ranks in the NEET entrance. But they will not get admission into UG Course (MBBS) in the Corporation’s colleges—under the Insured person quota—unless they produce the certificate. The Admission Scheme or Policy, 2018, mandates so. So the employees, “insured persons” under the Act, applied to the Corporation for the “Ward of Insured Person” Certificate for their children.

¶72

WPC Nos.17274 of 2018 &

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conn.cases 7

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It was denied. The Corporation maintained that employees would get the certificates based on the date of “registration.” The continuous insurable employment begins from the date the employer registered the employee’s name with the Corporation.

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The Insured Persons’ quota comes after the All India Quota and the State Government Quota. To get the certificate, the employees relied on various provisions of the Act; on the other hand, the Corporation has insisted that it is the Scheme of Admission that governs the issue and that alone prevails. According to it, the Act has nothing to do with the admissions. So we will pay attention to the Admission Scheme and, then, try to reconcile it with the Act if it binds the Scheme.

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The Admission Scheme & Policy:

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The Corporation issued the Admission Notice on 9th May 2018, stipulating the criteria for “Admission of ‘Wards of Insured Persons’ (IPs) in UG Course (MBBS/BDS) . . . Under-Insured Persons (IPs) Quota’ for Academic Session 2018-19.” The Guiding Principle (GP) 5.2.1 divides the candidates into three groups: Group I, Group II, and Group III. The division is on “merit cum preference” basis. And every applicant seeking admission must have a valid Ward of Insured Person Certificate issued by a competent

¶78

WPC Nos.17274 of 2018 &

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conn.cases 8

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authority—that is, the Corporation. According to GP 6.2 of the Scheme, the last date for submitting applications to the authority concerned to get the Certificate is 30th May 2018. No application will be entertained thereafter.

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GP 7.9 of the Scheme determines an important eligibility criterion: The critical date for determining the eligibility under the ‘Insured Persons Quota’ is 1st January 2018. The Scheme also incorporates the “Admission Policy” and “Admission Procedure”. Clause 3 of the Policy clarifies that, to admit the candidates on “merit cum preference”, the Corporation will follow the due process as specified in the Admission Policy or as it will specify “from time to time.”

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GP 4.5 describes how the division of IPs into three groups takes

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place.

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Group	Insurable Employment Period	Contribution Paid or Payable in a Year	Total Contribution before 1^stJan 2018	Exigencies
Gr. I	Five Years	For not less than 78 days	Nine	Out of 9 Periods, two shortfalls of minimum 78 days could be condoned, by adding the immediate preceding two: 9+2
Gr. II	Four Years	-Do-	Seven	7+2 Contributions
Gr.III	Three Years	-Do-	Five	5+2 Contributions

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GP 4.5 has these features:

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WPC Nos.17274 of 2018 &

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conn.cases 9

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(1) The employee must be in “continuous insurable employment” for “a minimum period of” five/four/three years by 1st January 2018, the year admission. Thus, there are three Groups.

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(2) Obvious is the rank of preference. First the IPs in Group I will get preference for admission, followed by Group II and Group III.

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(3) The unfilled seats, if any, will be surrendered to the “respective State Governments.”

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(4) The five-/four-/three-year continuous-insurable-employment will be reckoned based on the contribution period.

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(5) Each block of 12 months (Financial Year) has two contribution periods —April to September and October to March.

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(6) The five-year block must have nine contribution periods; four-year block seven contribution periods; and three-year block five contribution periods.

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(7) Each contribution period must have received the contribution for minimum 78 days. That is, in every six months, the contribution must be at least for 78 days.

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(8) In each block, the contribution may fall below the “78-days minimum”

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twice.

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(9) Then, under the condition of “exigency”, two contribution periods

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beyond

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five/four/three years could be counted in. Cut to chase, the contribution periods for

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five, four, and three years are 11, 9, 7 respectively.

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So five-/four-/three-year periods do not necessarily mean calendar

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or financial years; instead, they are reckoned based on the contribution

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WPC Nos.17274 of 2018 &

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conn.cases 10

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periods. That accepted, we face a contradiction: The “Note” attached to GP 4.5 adds another element to the “minimum continuous period”: The period must commence from 01.01.2012 for five-year slab; from 01.01.2013 for four-year slab; and from 01.01.2014 for three-year slab.

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Clarification:

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When the Court pointed out what it felt to be an anomaly between the body of GP 4.5 and the Note, Sri Sandesh Raja, for the Corporation, explained that if an insured person could not fulfill the length of continuous service based on contribution periods, the Corporation, in the alternative, could reckon the service from the commencing date, rather than the culminating date.

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How are the half-yearly periods reckoned?

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S. No.	Contribution Periods for Academic S 2018-19	ession Minimum Days of Contribution
(i)	1^stApril 2012-30^thSeptember 2012	78
(ii)	1^stOctober 2012-31^stMarch 2013	78
1	1^stApril 2013-30^thSeptember 2013	78
2	1^stOctober 2013-31^stMarch 2014	78
3	1^stApril 2014-30^thSeptember 2014	78
4	1^stOctober 2014-31^stMarch 2015	78
5	1^stApril 2015-30^thSeptember 2015	78
6	1^stOctober 2015-31^stMarch 2016	78
7	1^stApril 2016-30^thSeptember 2016	78
8	1^stOctober 2016-31^stMarch 2017	78
9	1^stApril 2017-30^thSeptember 2017	78

¶110

WPC Nos.17274 of 2018 &

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conn.cases 11

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Note: (i) and (ii) are the “exigencies.” That is, if there are any two breaks in the nine periods, (i) and (ii) could be counted in.

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The Elaboration of the Scheme:

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To understand the Scheme and the Policy, we must, among other things, consider these expressions: Employee, Insurable Employment, Contribution, Contribution Period, the Return of Contribution Period, Exigency & Enlarged Time, “78 days of paid or payable contribution”, the date of entry and the date of Registration, the Corporation’s disclaimer, “words not defined.”

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Employees' State Insurance Act, 1948:

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Section 2(9) defines an "employee." Then, Section 2(13A) defines "insurable employment" to mean employment in a factory or establishment to which the ESI Act applies. Section 2 (14) of the Act defines "insured person" to mean a person who is or was an employee “regarding 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.” So, I may note, to be entitled to the benefits provided by the Act, the employee must have contributions paid or payable. No other constraint found mentioned.

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WPC Nos.17274 of 2018 &

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conn.cases 12

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Section 39 defines "contribution." The contribution to be paid to the Corporation comprises the employer's contribution and the employee's. We may pay attention to sub-section (5)(a) of Section 39. It says if any contribution payable under this Act is not paid by the principal employer when it has become due, “he must pay simple interest" at 12% per annum or at such higher rate as specified, until its actual payment. Remedially, the Corporation can recover the dues from the defaulting employer by invoking the Revenue Recovery Act.

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Regulation 2A of the Employees’ State Insurance (Central) Rules, 1950 (the Regulations), defines “contribution period.”. It is the period not exceeding six consecutive months, as may be specified in the Regulations. The Scheme refers to exigency. If there is a break in the contribution periods

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—that is, if the contribution for any half-yearly block is for less than 48 days —the next period can be counted in. This counting-in beyond the permissible 9/7/5 blocks can happen twice. Not more.

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The statute further scanned, Section 40 (1) lays down the employer’s obligation: the principal employer shall pay for every employee, whether directly employed by him or through an immediate employer, both the employer's and the employee's contribution. As per sub-section (2), in

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WPC Nos.17274 of 2018 &

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conn.cases 13

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the case of an employee directly employed by him, the principal employer will be entitled to deduct from the employee's wages her contribution, but not otherwise.

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Section 42 of the Act deals with the general provisions for paying the contributions. Sub-section (2) mandates that the employer must pay both its contribution and the employee's, too. Section 44, read with Regulations 26, compels the employers to furnish returns and maintain registers ‘in certain cases.’ Section 45, further, gives extensive powers to the Inspectors of the Corporation. These Inspectors can inspect any establishment falling within the sweep of the Act and ensure that the employer complies with the statutory mandates. Under Sections 45A-D provide for the steps the Corporation could take to collect the arrears of contribution from the employer. The Corporation can invoke the recovery mechanism under the Revenue Recovery Act.

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Where the funds go and how they ought to be used fall within Section 26 (1), which directs that all contributions paid under this Act and all other money received on behalf of the Corporation shall be paid into a fund called the Employees' State Insurance Fund, which the Corporation shall hold and administer for the purposes of this Act. The purposes for which the

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WPC Nos.17274 of 2018 &

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conn.cases 14

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funds may be used fall within Section 28 of the Act. Among the fields of expenditure are the “establishment and maintenance of hospitals, dispensaries and other institutions and the provision of medical and other ancillary services for the benefit of insured persons.”

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Section 59B, pertinently, pertains to medical and para-medical education: The Corporation may establish medical colleges, nursing colleges and training institutes for its para-medical staff and other employees, to improve the quality of services provided under the Employees' State Insurance Scheme.

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Finally, we may refer to Section 68; it deals with the Corporations’ rights when a principal employer fails or neglect to contribute. It pays to extract Section 68, for it may affect the dispute in these writ petitions:

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Section 68 - Corporation's rights where a principal employer fails or neglects to pay any contribution

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(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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WPC Nos.17274 of 2018 &

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conn.cases 15

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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, 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 or under section 45C to section 45-I.

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(italics supplied)

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Whey is the minimum contribution period fixed at 78 days?

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An employee under the Act gets benefits. The benefits, mostly, depend on the employee’s length of service or the number of days the employer contributed. Under Rule 55 of the Employees’ State Insurance (Central) Rules, 1950 (the Rules), to get the sickness benefit, the contribution must have been for not less than 78 days. So the learned Standing Counsel has submitted that the Corporation had to fix certain threshold criteria for granting the “Ward of Insured Person” certificate. An employee may not have been working throughout the year. Because of various constraints, he or she will be working for different number of days in each year. The Corporation wanted to pick a period that appeared

¶143

WPC Nos.17274 of 2018 &

¶144

conn.cases 16

¶145

reasonable. Then, it chose the days fixed under Rule 55, as that period appeared to be reasonable.

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The Date of Entry and the Date of Registration:

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Under Section 2A of the Act, read with Regs. 10B and 32 of the Regulations, every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf. Regulations 11 to 14 mandate the method of registering the employees’ names with the Corporation. The employer must do it.

¶148

Regulation 31 prescribes the time for payment of contribution: “15 days of the last day of the calendar month in which the contribution falls due.” Regulation 31A enables the Corporation to collect interest on the delayed payments, whereas Regulation 26 compels the employer to file the return “within 42 days of the termination of contribution period to which it relates.”

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Disclaimer & “Words Not Defined”:

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The Corporation disclaims any responsibility for the employers’ shortcoming; say, their registering the establishment of the employees late, their contributing late, filing the returns late, or any other flaws. Moreover,

¶151

WPC Nos.17274 of 2018 &

¶152

conn.cases 17

¶153

the words employed in the Policy must be given the same meaning as they have been defined in the Scheme or Policy. Only if they have not been defined, can the meaning of those undefined words be drawn from the Act.

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Accusation & Refutation:

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In this batch of cases, the names were registered and the contributions were made, on more occasions than one, belatedly—beyond the statutorily mandated period. The employees and their children project themselves victims, blame the employers. They claim that they cannot be penalized for the employers’ faults.

¶156

To counter this assertion, the Corporation’s refutation comes quickly. The Corporation, though, is willing to condone the delayed payment because the contributions could have even remained unpaid. The Act and the Policy say that the contributions paid or “were payable.” But it insists on the date of registration. It apprehends, with justification, any dilution on the date of registration will engender spurious claims.

¶157

The Corporation contends that timely registration and timely returns are the sine qua non for eligibility.

¶158

WPC Nos.17274 of 2018 &

¶159

conn.cases 18

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Pivotal Provision:

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Here comes the pivotal provision around which the whole dispute

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revolves: Para 8 of the Admission Policy. It needs elaboration, so it bears

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reproduction:

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Insured person for the purpose of availing benefit of Insured Persons (IPS) Quota for his/ her wards shall be, as under

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a) ''The 'Insured Person' shall be an 'employee' as defined in the ESI Act; and he/she should have been in continuous insurable employment for a minimum period of five/ four / three years as on, and immediately preceding the 1st January of the year of admission ; and contribution in respect of him/her were paid/ payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1st January of the year of admission with the proviso that the return of contribution as provided under Section 44 of the ESI Act read with Regulation 26(a) of the ESI (General) Regulation be filed with 42 days of termination of contribution period to which it relates , during this five/ four/ three year period. However, if the IP does not fulfill the requirement of minimum 78 days of paid or payable contribution as above in the specified CPs on account of exigency beyond contribution as above in the specified CPs on account of exigency beyond control of IP, 78 days of paid/ payable contribution shall be allowed to reckon from among the 02* contribution periods shown in the tables in Para (4.5) during the five/ four/ three-year period for determining eligibility. The five/ four / three-year period along with extended period of one year for the purpose eligibility for eligibility, i.e. 1st January of the year of admission. b) The insured person for the said purpose having five/ four / three years of continuous insurable employment shall be grouped as Group- I/ II / III respectively.

¶166

c) The date of entry into the scheme for calculating the minimum continuous period would be the date of registration available in the IP database of the ESIC as uploaded by the employer in the Web Portal of ESIC. d) In case there is default or delay on the part of the employer in getting itself or the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay.

¶167

WPC Nos.17274 of 2018 &

¶168

conn.cases 19

¶169

e) Any period prior to the date of entry described above would not be counted towards the five / four / three-year period of eligibility for the purpose of availing benefit of Insured Persons (IPs) Quota.

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f) The combined earnings of the IP and spouse (parents of the applicant) should not exceed Rs. 06 (six) lakh per annum.

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g) All other words and expressions used not defined/ explained in this Admission Policy shall have the meanings respectively assiged to them in the ESI Act 1948, ESI (Central) Rules, 1950 and the ESI (General) Regulations, 1950.

¶172

(italics supplied)

¶173

Does the Policy suffer from the vice of arbitrariness or unreasonableness?

¶174

Keeping those limitations in mind, let us examine the Corporation’s admission policy. Para 8 of the Policy, as I mentioned earlier,

¶175

is pivotal. It bears scrutiny. It contains these conditions:

¶176

(1) The insured person must have been in continuous insurable employment for five/ four / three years.

¶177

(2) The period must have been completed by the 1st January of the year of admission (2018).

¶178

(3) The contribution must have been paid/ payable for not less than 78 days in all the 9/7/5 contribution periods immediately preceding 1st January of the year of admission.

¶179

(4) The return of contribution must have been filed in 42 days after the termination of contribution period to which it relates.

¶180

(5) If the IP does not fulfill the requirement of minimum 78 days of paid or payable contribution because of exigency, the IP shall be allowed to reckon from among the 02 contribution periods shown in the tables.

¶181

(6) The five/ four / three-year period [must be reckoned] along with the extended period of one year.

¶182

WPC Nos.17274 of 2018 &

¶183

conn.cases 20

¶184

(7) The date of entry into the scheme for calculating the minimum continuous period would be the date of registration available in the IP database of the ESIC as uploaded by the employer.

¶185

(8) The employer’s delay cannot bind the Corporation.

¶186

(9) Any period of employment before registration with ESIC would not be counted.

¶187

(10) The combined earnings of the applicant’s parents should not exceed six lakh rupees.

¶188

(11) Words and expressions not defined in the Policy shall have the meanings ascribed to them in the ESI Act 1948, the Rules, and the Regulations.

¶189

What has been complied with and what has not been?

¶190

All the employees claim that they have been in continuous insurable employment for five/four/three years. They completed that period by the 1st January 2018. The contributions have been paid for not less than 78 days in each contribution period; in some case the amounts were paid late, but paid with interest, however. But, in all cases, the registration was late. In other words, the Corporation reckoned the length of service from the date of registration and, accordingly, issued the Certificates or refused to issue.

¶191

On the delayed registration, Sri Sandesh Raja has contended that

¶192

the continuous insurable employment for five years is non-negotiable,

¶193

WPC Nos.17274 of 2018 &

¶194

conn.cases 21

¶195

unalterable, as was held in Jemin Elizabeth Mathew . According to him, any dilution in this principle will lead to abuse.

¶196

Jemin Elizabeth Mathew examined two key words in clause 8: "continuous insurable employment" and " for a period of five years as on the 1st January of the year of admission". After examining the lexical nuances

¶197

and the semantic significance of these expressions, the learned Division Bench has held follows:

¶198

“12. The words "five years continuous insurable employment" is prefixed by "a period of five years as on 1st January of the year. The plain and simple meaning of the words shall be completion of five years continuous period as on 1st January of the year.

¶199

Admittedly, the institution from where the certificate was applied came under the scheme only on 1.6.2009. The period of five years could be completed only on 31.5.2014 and 1st January being the cut-off date for scrutinising the application, no error was committed by the Corporation in not issuing the certificate to petitioner's parents. The learned Single Judge as well as the writ petitioner has placed reliance on the definition of "year" in section 2(w) of the Employees State Insurance Regulation, 1950. The said definition of "year" is "year means a calendar year". The said definition in no manner militates clause 8 of the notice or on the interpretation which has been put up by the Corporation, of the period. Where a period of continuous five year has been contemplated in the notice, that obviously means five completed calendar years. The said definition also in no manner help the writ petitioner.

¶200

We are of the view that the learned Single Judge committed error in interpreting clause 8 in the manner as to hold the writ petitioner eligible. The Corporation has formally followed its criteria treating five years continuous period as on 1st January with which no fault can be found. In

¶201

WPC Nos.17274 of 2018 &

¶202

conn.cases 22

¶203

view of the aforesaid discussion, the judgment of learned Single Judge is set aside. The writ petition is dismissed.”

¶204

In WPC Nos. 17305 of 2018 and the batch, I have held that for

¶205

delayed payments and belated filing of returns the employees should not be blamed; the employers should be. The petitioners’ counsel would have the Court adopt the same line of reasoning or justification here, too. I am afraid I cannot.

¶206

To apply a scheme, to extend a benefit, to avoid a mischief—by interpreting a provision—the Court cannot adopt a straight jacket formula or a procrustean principle. The parameters vary. The Court may have to look at the objective of the entire scheme, the benefit it wants to confer, the beneficiaries it aims to cover, and the mischief it wants to avoid.

¶207

Granted, the Court has held that for the employer’s faults, the employee cannot be blamed, much less made liable. It is a proposition that can be stretched—but not to the point of snapping. This principle, to me, cannot be extended to all and sundry situations. Paying contributions or filing returns presupposes that an employee has already had his or her name registered. The registration is the reckoning point; that point established, the ‘internal’ lapses can be accounted for and the blame could be fixed. If an

¶208

WPC Nos.17274 of 2018 &

¶209

conn.cases 23

¶210

employee, on the other hand, comes into reckoning for the first time just at the last minute, prevails upon the employer to register her name, ensures payments with interest, and claims a benefit, it leads to anomalous situation. Perhaps, that is what W.P. (C) No.17504 of 2018—as rightly contended by the learned Standing Counsel—illustrates.

¶211

The common-law principle of ‘impossibility’, elaborated in the previous batch of cases, too, cannot be applied. There is a verifiable point: the employee can know whether her name has been registered. She is given a code number and, then, her salary gets deducted. She may have no means, however, to know whether the employer has contributed and filed returns on time. A case in point is W.P. (C) No.17305 of 2018: the employee asserts that the employer registered her name only after her protesting. So 'registration' stands on a different footing.

¶212

Registration denied or delayed, it is for the employee to insist on the employer to act. Or it entirely lies within the employee’s reach to complain to the Corporation. Neither done, the employee can blame but herself.

¶213

WPC Nos.17274 of 2018 & conn.cases 24

¶214

Conclusion:

¶215

So viewed from any perspective and bound by Jemin Elizabeth Mathew , I hold that the Corporation’s insistence on the date of registration as the reckoning point for computing the employee’s “continuous insurable employment” cannot be faulted. I, therefore, dismiss all the writ petitions.

¶216

No order on costs.

¶217

sd/- Dama Seshadri Naidu, Judge

¶218

css/

Ummer K.V. v. the Regional Director

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Ummer K.V. v. the Regional Director

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