Shivani v. Employee State Insurance Corporation

8. 1st October, 2016 – 31st March,

9. 1st April, 2017 – 30th September,  Group-II: IPs who have been in continuous insurable employment for a minimum period of 4 years as on, and immediately preceding the 1st January of the year of admission. The continuous insurable employment of 4 years herein means that the contribution in respect of him/her were paid/payable for not less than 78 days in all the 7 contribution periods CPs) immediately preceding the above 1st January and shown in the table below. However, if the IP does not satisfy the requirement of the above 78 days on account of exigency/exigencies beyond the control of the IP, the seven such contribution periods shall be allowed to reckon from among the 07 + 02* contribution periods immediately preceding the above 1st January and shown in the table below.

1. 1st April, 2014 – 30th September,

2. 1st October, 2014 – 31st March,

3. 1st April, 2015 – 30th September,

4. 1st October, 2015 – 31st March,

5. 1st October, 2016 – 31st March,

6. 1st April, 2016 – 30th September,  Group-II: IPs to have been in continuous insurable employment for a minimum period of three years as on, and immediately preceding the 1st January of the year of admission. The continuous insurable employment of 3 years herein means that the contribution in respect of him/her were paid/payable for not less than 78 days in all the five contribution periods CPs) immediately preceding the above 1st January and shown in the table below. However, if the IP does not satisfy the requirement of the above 78 days on account of exigency/exigencies beyond the control of the IP, the five such contribution periods shall be allowed to reckon from among the 05 + 02* contribution periods immediately preceding the above 1st January and shown in the table below. S.No. Contribution periods for academic session 2018-19 (i)* 1st April, 2014 – 30th September, (ii)* 1st October, 2014 – 31st March,

1. 1st April, 2015 – 30th September,

2. 1st October, 2015 – 31st March,

3. 1st April, 2016 – 30th September,

4. 1st October, 2016 – 31st March,

5. 1st April, 2017 – 30th September, Note: a) It is clarified that the minimum continuous period (including all exigencies) of 5 years shall commence from 1.1.2012; of 4 years shall commence from 1.1.2013 and of 3 years shall commence from 1.1.2014 respectively. 4.[6] Merit list would be prepared for each Group, i.e. Group-I; Group-II; and Group-III in that order, based on the All India rank of eligible applicants in the specified test/merit list for the year, consistent with the reservation policy of the Central Government for preparation of category -wise inter-se merit. 4.[7] Candidates will be allotted the seats, based on their merit cum preference of Institution and category, through a centralised counselling for the IP(IPs) Quota, as under:  Candidates belonging to Group-I would be considered for allotment of available seats first, based on their merit cum preference of Institution and reservation status.  Candidates belonging to Group-II would be considered for allotment of unfilled/leftover seats, after allotment to Group-I candidates and after the specified cut-off date. The seats would be allotted, based on their merit cum preference of Institution and reservation status.  Candidates belonging to Group-III would be considered for allotment of unfilled/leftover seats if any, after allotment to Group-II candidates and after the specified cut-off date. The seats would be allotted based on their merit cum preference of Institution and reservation status.  Mop-up Counselling – Mop-up counselling would be conducted as per feasibility. Seats falling vacant/remaining unfilled/leftover, due to any reason, would be offered to balance candidates left out from Group I; II; and III, and the allotment of these seats would be based on merit cum preference of Institution. The merit list for this counselling would be prepared from the pool of balance candidates, Group-wise, and the order of allotment of these seats would be to Group-I; Group-II; and Group-III candidates, in that order.‖

9. Clause 8 of Annexure-1 to the Admission Policy, as notified vide Notice dated 9th May, 2018, provided the following stipulations/specifications in respect of ―Insured Persons‖: ―Insured person for the purpose of availing benefits of Insured Persons (IPs) Quota for his/her wards shall be, as under a) ―The ‗Insured Person‘ shall be an ‗employee‘ was as defined in the ESI Act; and he/she should have been in continuous insurable employment for a minimum period of 5/4/3 years as on, and immediately preceding 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) Regulations be filed within 42 days of termination of contribution period to which it relates, during this 5/4/3 year period. However, the IP does not fulfil the requirement of minimum 78 days of paid or payable 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 5/4/3 year period for determining eligibility. The 5/4/3 year period also with extended period of one year for the purpose eligibility should lie between record the date of entry into the scheme and critical dates for eligibility, i.e. 1st January of the year of admission. b) The insured person for the said purpose having 5/4/3 years of continuous insurable employment shall be grouped as Group-I/II/III respectively. 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. e) Any period prior to the date of entry described above will not be counted towards the 5/4/3 year period of eligibility for the purpose of availing benefits of Insured Persons (IPs) Quota. f) The combined earnings of the IP and spouse (parents of the applicant) not exceed Rs. 06 (six) lakh per annum.‖

10. A third, clarificatory, Notice, the subject whereof was ―Clarification – Issue ‗Board of Insured Person‘ Certificate – Academic Session 2018-19‖ came to be issued, by the ESIC, on 31st May, 2018. This third notice was stated to have been issued in continuation of the Admission Notice dated 9th May, 2018 supra. Clauses 1 to 3 of this Notice, dated 31st May, 2018, merit reproduction, in extenso, thus: ―1. In case the IP does not satisfy the condition of filing Return of Contribution (RC) as per Section 44 of the ESI Act read with Regulation 26(a) of the ESI (General) Regulations, on account of delay by the employer, the status of days worked/filing of contribution would be considered in the two grace periods (immediately preceding the first CP under consideration) already provided under each group, for determining eligibility.

2. Further, the condition under regulation 26(a) is relaxed to the extent if 78 days of contribution, paid or payable, has been filed by the due date of monthly contribution as per Regulation 31 of the ESI (General) Regulations, in the relevant six-month contribution period.

3. In such cases the IP be deemed eligible for the issue of Ward of IP certificate.‖

11. It becomes necessary, at this juncture, to reproduce Section 44 of the ESI Act as well as Regulations 26(a) [actually, Regulation 26(1)(a)] and 33 of the Employees State Insurance (General) Regulations, 1960 (hereinafter referred to as ―the Regulations‖). Section 44 of the ESI Act reads thus: ―44. Employers to furnish returns and maintain registers, in certain cases. — (1) Every principal and immediate employer shall submit to the Corporation or to such officer of the Corporation as it may direct such returns in such form and containing such particulars relating to persons employed by him or to any factory or establishment in respect of which he is the principal or immediate employer as may be specified in regulations made in this behalf. (2) Where in respect of any factory or establishment the Corporation has reason to believe that a return should have been submitted under sub-section (1) but has not been so submitted, the Corporation may require any person in charge of the factory or establishment to furnish such particulars as it may consider necessary for the purpose of enabling the Corporation to decide whether the factory or establishment is a factory or establishment to which this Act applies. (3) Every principal and immediate employer shall maintain such registers or records in respect of his factory or establishment as may be required by regulations made in this behalf.‖ Regulations 26(1) and 33 of the Regulations read as under: ―26. Return of contribution to be sent to appropriate Office. – (1) Every employer shall send a return of contributions in quadruplicate in Form 5 alongwith receipted copies of challans for the amounts deposited in the Bank, to the appropriate Office by registered post or messenger, in respect of all employees for whom contributions were payable in a contribution period, so as to reach that office – (a) within 42 days of the termination of the contribution to which it relates; (b) within 21 days of the date of permanent closure of the factory or establishment, as the case may be;

(c) within 7 days of the date of receipt of requisition in that behalf from the appropriate office.‖ ―33. Other modes of payments of contribution. – Subject to the directions of the Standing Committee, the Director-General may, if he thinks fit and subject to such terms and conditions as he may impose, approve of any arrangement, whereby contributions are paid at times or in a manner other than those specified in these regulations and such arrangements may include provision for the payment to the Corporation of such fees as may be determined by him to represent the estimated additional expenses to Corporation, and may require such deposit of money by way of security as he may determine.‖

12. The rights of the petitioner, and the legitimacy of her claim, have to be adjudged in the backdrop of the above provisions, and the Admission Policy.

13. On 26th May, 2018, the petitioner applied, to the ESIC, for issuance, to her, of a WIP certificate. The request was reiterated on 6th June, 2018. On receiving no response, the petitioner applied, on 8th June, 2018, under the Right to Information Act, 2005. The response, from the ESIC to the petitioner, issued on 12th June, 2018, was as under: ―With reference to your application under RTI Act – 2005 dated 08/6/2018 on the subject cited above. In this regard it is to inform you that as per the guidelines issued by ESI Hqrs for ―issuing Ward Certificate‖ it is required ―that the Return of contribution as provided uunder Section 44 of the ESI Act read with Regulation 26A of the ESI (General) Regulation be filed within 42 days of termination of contribution period to which it relates, during this 5/4/3 year period.‖ The above said condition was not fulfilled because of which Ward Certificate was not issued.‘ (Emphasis supplied)

14. Aggrieved thereby, the petitioner has moved this Court for relief, by means of the present writ petition.

15. The petitioner has set out, in a tabular form, the number of days for which she has worked, in the various contribution periods, thus, along with the wages drawn by her: Contribution Period Total wages (₹) Total days worked 1st October, 2011 – 31st March, 23,861 116 1st April, 2012 – 30th September, 26,903 120 1st October, 2012 – 31st March, 50,332 167 1st April, 2013 – 30th September, 85,906 183 1st October, 2013 – 31st March, 1,02,883 183 1st April, 2014 – 30th September, 88,667 183 1st October, 2014 – 31st March, 58,500 179 1st April, 2015 – 30th September, 57,000 179 1st October, 2015 – 31st March, 59,000 167 1st April, 2016 – 30th September, 60,000 183 1st October, 2016 – 31st March, 60,000 181 1st April, 2017 – 30th September, 50,000 153 This tabular statement has been signed and certified by the Manager, Branch Office (Shahdara), ESIC. The writ petition also points out that the salary/wages, were disbursed to the petitioner, were always worked out after deduction of her contribution, whereafter the duty to deposit the said contribution and file the return, in respect thereof, was of her employer. It is pointed out that in the event of default, on the part of the employer, in not depositing the contribution, payable under the ESIC Act, on the date when it becomes due, Section 39(5)(a) of the ESIC Act exposes him to liability to simple interest @ 12% p.a. An employee, it is pointed out, has no way of knowing whether the employer has deposited the contribution with the ESIC in time, or has filed the requisite return the due date. Pointing out that Ms. Ashi had cleared her NEET examination, the writ petition avers that denial, to her, of a WIP certificate, would result in her being denied the opportunity of pursuing her undergraduate studies.

16. The ESIC has, in its counter-affidavit filed in response to the writ petition, sought to contend that the petitioner practised a deliberate fraud on the ESIC. To bring this point home, it has been averred thus:

(i) Though the petitioner had been divorced, from her husband Mr. Sunil Panwar in January, 2011, her status, in her application for obtaining and e-Pehchan card, was shown as ―married‖.

(ii) The petitioner had, in her application for obtaining the

WIP certificate for her daughter, shown her address as 4/2232/A, Bihari Colony, Shahdara. This, however, was the address of Mr. Sunil Panwar. The same address was shown as the address of her employer. The petitioner was, in fact, an employee of M/s J.S.R. Facility India Private Limited, which belonged to her husband Mr. Sunil Panwar.

(iii) These facts had come to the notice of the respondent only when they had scrutinised the petitioner‘s case, which was after responding, to the RTI query of the petitioner, vide communication dated 12th June, 2018 supra.

(iv) The petitioner was, therefore, effectively grabbing a seat meant for the poor and impoverished.

(v) Mr. Sunil Panwar was found to be the owner/employer/associate of all the three companies where the petitioner claimed to have worked, i.e. Jai Shri Radhey Enterprises, Sumer Security and J.S.R. Facility Private Ltd. The entire façade had been created by Mr. Sunil Panwar in order to grab a WIP certificate for his daughter.

(vi) As Mr. Sunil Panwar, the father of Ms. Ashi, was a director in several Companies, Ms. Ashi, ipso facto, stood disentitled to the benefit of the IP quota. The ESI Act was meant for employees earning less than ₹ 21,000/– per annum.

(vii) The petitioner‘s daughters were not, in the circumstances, solely dependent on her. This was also established by the fact that the address of Ms. Ashi, in her NEET Admit Card was also 4/2232/A, Bihari Colony, Shahdara, Dist. New Delhi, Delhi which was the address of the petitioner and Mr. Sunil Panwar. In the said Admit Card, Mr. Sunil Panwar had signed as the father of Ms. Ashi.

(viii) The petitioner had, in her letters dated 30th May, 2018 and 31st May, 2018, averred that, in order to earn more, to bring up her daughters, she had, during the period October, 2013 to W.P. (C) 6657/2018 March, 2014, worked in two establishments, and that, owing thereto, her total wages, during the said period, was ₹ 102,883/–, which was more than the maximum permissible income of ₹ 90,000/–, as per the stipulations governing the Admission Policy. However, her income dropped to the permissible limit in the very next contribution period.

(ix) As against this asseveration of the petitioner, in the records of the ESIC, contribution, during the aforesaid period October, 2013 to March 2014, was received only from Jai Shree Radhey Enterprises, and not from Sumer Security. According to the petitioner‘s statement, during the same period, she had worked for the same 31 days in each of the said two establishments, and had, thereby, earned more than the maximum permissible limit, to entitle an applicant to the benefit of the IP quota for admission of her ward.

(x) The situation that resulted was that, therefore, during the period January, 2013 to September, 2014, the petitioner had worked in two establishments. Moreover, during the period October, 2011 to September, 2014, she had worked in Jai Shree Radhey Enterprises and, from January, 2013 to September, 2017, in Sumer Security. She did not, however, disclose, to the ESIC, the salary received by her from each of the said establishments. If the said salary was in excess of ₹ 90,000/– within one contribution period of six months, she stood disentitled to the benefit of the IP quota.

(xi) Sumer Security had deposited the ESI contribution, in respect of the petitioner, for the period February, 2015 to September, 2017, only belatedly on 13th, 14th and 15th May, 2018, after the admission notification, for admission to the MBBS course, had been released. Obviously, therefore, this was done only in order to obtain the benefit of the IP quota. The contribution had, therefore, been deposited much after the permissible period of 42 days following the termination of the contribution periods.

(xii) The petitioner‘s husband, Mr. Sunil Panwar, was apparently supporting the petitioner, as well as her daughters, and bearing their expenses. The income of the petitioner‘s husband, Mr. Sunil Panwar, therefore, merited addition to the income of the petitioner, in order to assess the petitioner‘s entitlement to the benefit of the IP quota, for admission of her daughter. Viewed thus, the combined income of the petitioner and her husband, Mr. Sunil Panwar, was in excess of ₹ 6 lakhs, thereby disentitling their ward to the benefit of the said quota for securing admission to the ESI Hospitals.

17. Addressing the controversy on merits as well, para 21 of the counter-affidavit avers thus: ―I say that in order to get the benefit of the admission policy for undergraduate courses which provides for ―Insured Person Quota‖ in the ESIC Medical and Educational Institutions, the Insured Person should fulfil the eligibility criteria as prescribed by the admission policy. As per Clause 8(a) of Annexure 1 of the policy notification dated 09.05.2018, Firstly the Insured Person shall be an employee as defined in the Act, Secondly she/he should have been in continuous insurable employment for a minimum period of 5/4/3 years, Thirdly the contribution in respect of him/her were paid/payable for not less than 78 days in all the 9/7/5 contribution periods with the proviso that return of contribution as provided under Section 44 of the ESI Act read with Regulation 26(a) of the ESI (General) Regulations be filed within 42 days of termination of contribution period to which it relates during this 5/4/3 year period. The 1st and the 2nd condition are satisfied. As far as 3rd condition is concerned the Petitioner failed to pay the contribution within the stipulated time and hence is not entitled to receive benefits under the category of Insured Person Quota. It is further submitted that as per Clause (d) of the same Clause if there is default or delay on the part of the employer in getting itself for the concerned employee covered under the Scheme, the ESIC will not be responsible for the said default or delay. It is further submitted that as per Clause 8(f) of the same Annexure, the proof of combined income of the IP and Spouse is to be submitted which should not exceed Rs. 6 Lakh per annum. In such case when the employer is the ex-husband of the Petitioner who is looking after the expenses of the Petitioner and her daughter, how can the total income of both the IP and the Spouse be less than Rs. 6 Lakh per annum? It is also submitted that as per Clause 9 of the same Annexure the Ward of Insured Person will be entitled to the benefit if she is a legitimate natural born child of the Insured Person and who is dependent wholly on the earnings of the Insured Person which is not in the present case as seen in the foregoing paras.‖

18. It is further averred, in the counter-affidavit, that there was no need to refer to the relaxation provided in the clarificatory Notice dated 31st May, 2018 supra, as ―here the number of days of the Petitioner were already more than 78 and there is no need to look into the two grace periods from the date of first Contribution Period under consideration‖.

19. The petitioner has filed a rejoinder to the counter-affidavit of the ESIC, in which she has pointed out that she declared her status as ―married‖, while applying for her e-Pehchan card only because the application form did not contain any provision for an applicant to declare herself, or himself, as a ―divorcee‖. She has categorically denied the allegation that Jai Shree Radhey Enterprises, or Sumer Security, was owned, or controlled, by her husband, contending, per contra, that Jai Shree Radhey Enterprises, located at 4/2808, Gali NO. 2, Bihari Colony, was headed and controlled by the ―Goswami Sisters‖ and that Sumer Security was a partnership firm, of which the partners were Ram Singh Mehar and Jagdish. She has contended that, during the period 1st October, 2011 till 2014, she worked in Jai Shree Radhey Enterprises, and that it was thereafter that she joined Sumer Security, where she worked till September, 2017. She has sought to submit, further, that, during the entire period, which was relevant to determine her entitlement to the IP quota for admission of Ms. Ashi, she had no concern with M/s J. S. R. Facilities India Private Limited. Insofar as the address 4/2232, Bihari Colony, was concerned, she has sought to submit that more than 100 houses bore the same address and has, in support of the said submission, annexed, to her rejoinder, the electoral list. She has also sought to explain why different addresses were reflected in different forms/applications. Apropos her income, she has drawn attention to her Income Tax return for the assessment year 2016-2017, which reflected her income as ₹ 3,00,340/–. She has also pointed out that, as Mr. Sunil Panwar remained – and would remain – the biological father of Ms. Ashi, no exception could be taken, to his signing the Admit Card, for her NEET Examination, as her father. She has pointed out that she had worked at Jai Shree Radhey Enterprises from 7:00 AM till 2:30 PM and at Sumer Security from 4:00 to 9:00 PM. It is pointed out that the only ground provided, for rejecting the petitioner‘s application for issuance of WIP Certificate, is that the return of contribution, under Section 44 of the ESI Act read with Regulation 26(a) of the Regulations, had not been filed within 42 days of the termination of the contribution period to which it related. There was no allegation; it is pointed out, of any fraud having been perpetrated by the petitioner. On merits, the petitioner has reiterated that her wages had been disbursed after deduction of the contribution amount, payable to the ESIC, therefrom and that, if her employer did not deposit the said amount with the ESIC within time, she could not be prejudiced as a consequence thereof. The petitioner has questioned as to whether the respondent had taken any action, against her employer, for the default in furnishing the return, or of making the payment of ESI contribution within time, as permissible by Section 39 of the Act or Regulations 31A to 31C of the Regulations. In fine, the prayers in the writ petition have been reiterated.

20. This writ petition have come up for hearing, before a learned Single Judge of this Court, on 3rd July, 2018, on which date, after advancing lengthy arguments, the petitioner withdrew this writ petition. Thereafter, the petitioner moved Review Petition NO. 282/2018, in the present writ petition, seeking review of the aforesaid order dated 3rd July, 2018, on the ground that, after the present writ petition had been dismissed as withdrawn on 3rd July, 2018, the petitioner had come across a notice, dated 19th July, 2017, issued by the ESIC, which substantially impacted the petitioner‘s case and, in fact, entitled her to the reliefs prayed for in the present writ petition. The said notice reads thus: ―No. L-11/12/3/UG Adn./2017-18/MEC Dated: 19.07.2017 NOTICE SUB: Eligibility for applying for ―Ward of IP Certificate’ in light of Writ Petitions allowed by the Hon’ble HC of Kerala – reg. Reference captioned subject.

1. The Hon‘ble High Court of Kerala has allowed Writ Petition Nos. as under:

┌───────────────────────────────────────────────────────────────────────────────────────┐
│            Sl. No.             Details of the case                                    │
├───────────────────────────────────────────────────────────────────────────────────────┤
│                  1        W.P.[C] No. 22018/2017- Insured                             │
│                           Person, Jaya Krishna Kumar, IP No.                          │
│                           4703098992, Ward of IP, Karthik K.                          │
│                      2    W.P.[C] No. 22364/2017- Insured                             │
│                           Person, Sherly Suresh, IP No.                               │
│                           4805317859, Ward of IP, Surya                               │
│                           Gayathri                                                    │
│                      3    W.P.[C] No. 22399- Insured Person,                          │
│                           Sindhu. S., IP No. 4805350858, Ward                         │
│                           of IP, Silpa Vijayan                                        │
│                      4    W.P.[C] No. 22439-Insured Person,                           │
│                           Rema Shyju, IP No. 4707117439,                              │
│                           Ward of IP, Shanya Shyju,                                   │
│                      5    W.P.[C] No. 22444- Insured Person,                          │
│                           Padnanabhan PP, IP No. 5402024578,                          │
│ W.P. (C) 6657/2018                                             Page 23 of 50          │
│                                                                       2019:DHC:3346   │
│                          Ward of IP, Aagna P.S.                                       │
│                      6   W.P.[C] No. 22722- Insured Person,                           │
│                          Prema Chandran K., IP No.                                    │
│                          7204028887, Ward of IP, Sneha P.                             │
│                          Nair                                                         │
│                      7   W.P.[C] No. 23118-Insured Person, N.                         │
│                          Manoharan, IP No. 5402018549, Ward                           │
│                          of IP, Midhun K.                                             │
│        2.    Accordingly, it has been decided to allow                                │
│        admission based on provisional ‗Ward of IP Certificate‘                        │
│        issued as per directions of the Hon‘ble HC of Kerala in                        │
│        the above cases.                                                               │
│        3.    Further, it has been decided that Insured Persons                        │
│        who went out of coverage from October, 2016 to                                 │
│        December, 2016 on account of exceeding wage limit; and                         │
│        for whom contributions have been paid for the minimum                          │
│        required days in CP April, 2016 – September, 2016; and                         │
│        who came back under coverage of the scheme w.e.f.                              │
│        01.01.2017, may be issued Ward of IP certificate under                         │
│        Group-I/II/III as applicable.                                                  │
│                               Dy. Med. Commissioner (ME-II)                           │
│                                           ESIC HQ Office.‖                            │
└───────────────────────────────────────────────────────────────────────────────────────┘

43. The requirement of submitting the return of contribution, within time, may be related to clause a) in para 8 of Annexure 1 supra, to the Admission Policy. The said clause incorporates a requirement, by way of a proviso, to the effect ―that the return of contribution as provided under Section 44 of the ESI Act read with Regulation 26(a) of the Regulations, be filed within 42 days of termination of contribution period to which it relates, during the 5/4/3 contribution period applicable to the applicant in question‖. The caveat that follows, thereafter, refers to a situation in which the insured person does not fulfil the requirement of minimum 78 days paid or payable contribution, on account of exigencies beyond her, or his, control, and would not, therefore, affect the present case, one way or the other, as there is no allegation that the petitioner did not fulfil the requirement of minimum 78 days of paid or payable contribution, during any of the contribution periods applicable to her, vis-à-vis her claim to issuance of a WIP certificate. Clause d) of the same para, on which the ESIC seeks to place reliance, stipulates that, in case there was ―default or delay on the part of the employer in getting itself or the concerned employee covered under the Scheme‖, the ESIC would not be responsible therefor. There being no allegation, in the present case, of any of the employers, to whom the petitioner had worked during the period in question, having delayed getting itself, or the petitioner, covered under the Scheme, this clause, too, has no application.

44. The subsequent Notice, dated 31st May, 2018, issued by the ESIC, however, engrafted certain relaxations to the rigour of clause a) in para 8 of Annexure-1 to the Notice dated 9th May, 2018 supra, by providing that (i) in case the Insured Person did not satisfy the condition of filing of the return of contribution as per Section 44 of the ESI Act read with Regulation 26(a) of the Regulations, on account of delay by the employer, the status of days work/filing of contribution would be considered with the two grace periods immediately preceding the first contribution period under consideration, for determining eligibility and (ii) the condition under Regulation 26(a) of the Regulations was relaxed if the 78 days contribution, paid or payable, had been filed (it appears that the appropriate expression should be ―paid‖) by the due date of monthly contribution as per Regulation 31 of the Regulations. Regulation 31, it may be noted, requires the employer to pay contributions, in respect of its employees, within 21 days of the last day of the calendar month in which the contributions fall due. In other words, if the contributions are paid by the employer within 21 days of the expiry of the calendar months during which the contributions fall due, the requirement of filing of return of contributions, within 42 days of the termination of the contribution period, as contained in Regulation 26(a) of the Regulations and imported, by reference, into Clause 8 a) of the Admission Policy contained in Annexure R-1 to the Notice dated 9th May, 2018, stood relaxed. Clearly, therefore, default in filing the return of contribution within the period stipulated in Regulation 26(a) of the Regulations, was not fatal, and the delay, in compliance with the said stipulation, was condonable if the case came within Clause 1 or Clause 2 of the Notice dated 31st May, 2018 supra, issued by the ESIC.

45. There is no allegation, in any communication from the ESIC to the petitioner, to be found on record, or even in the counter-affidavit filed by the ESIC in response to the writ petition, to the effect that the contribution, for any of the nine contribution periods, from 1st April, 2013 to 30th September, 2017, remained unpaid. The responsibility to deposit the contribution, of the employer as well as the employee, is statutorily cast, by Section 40, as well as Section 42, of the ESI Act, on the employer. It would obviously be unreasonable to deny, to an employee, who otherwise satisfies the definition of ―insured person‖ within the meaning of the ESI Act, the benefit of being issued a WIP certificate for her, or his, ward, merely because there has been delay, on the part of her, or his, employer, in filing the return of contribution, as required by Section 44 of the ESI Act read with Regulation 26 of the Regulations. It is obviously to provide for such an exigency that the Notice, dated 31st May, 2018, provided for relaxation from the rigour of this requirement, where the case fell within para 1, or para 2, of the said Notice. An expansive interpretation has necessarily to be accorded to the Notice dated 31st May, 2018 and, where the contributions, for all the nine contribution periods, stands paid, it would, in my opinion, be completely unreasonable to deny, to the ward of an insured person, the WIP certificate.

46. Several judicial authorities have been cited at the bar, and I have attempted to make faithful reference, thereto, in the preceding portion of this judgment. These authorities, however, do not directly address the issue of the effect of delay in filing return/returns of contribution, by the employer, or the right of the employee to issuance of a WIP in favour of her, or his, ward in such a case. Most of the authorities are concerned with non-payment of contributions, and the consequences thereof. The effect of delay in payment of contribution was, however, directly addressed, by a learned Single Judge of the High Court of Kerala in Hari R. Nair v. Director General, ESI Corporation, 2018 SCC Online Ker 2537. Paras 57 and 58 of the decision neatly encapsulate this issue, in the following words: ―57. All the petitioners 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 all the nine/seven/five contribution periods. But, in most cases, this got fulfilled only when the two—(i) and (ii)— exigency periods (the extended one year) are added. But contributions, on occasions, have been paid late. The returns, too, were filed late. What should follow?

58. In all cases, the common theme is delayed filing of return. The employees do, however, fulfill the length of service and other criteria. In WP (C) No. 19850 of 2008, besides delayed contribution, the registration too was delayed. So we will take this case first, before addressing the common issue: the delayed contribution and filing of returns.‖

47. Paras 74 to 82 of the report in Hari R. Nair (supra) explain, with commendable clarity, why the default, on the part of the employer, in filing returns of contributions in time cannot nullify the right of the employee to issuance of the WIP certificate, where she/he, otherwise, satisfies the definition of ―insured person‖, as well as all other indicia of the Admission Policy applicable in that regard. They may, therefore, be reproduced, thus: ―74. The Corporation further insists that, in all these cases, the employers did not file the returns on time. True, Section 44 of the Act, read with Regulation 26(a) of the ESI (General) Regulation, is unambiguous: the employer must file the return in 42 days after the termination of contribution period to which it relates.

75. Section 45, I may note, 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. Regulations 31, the Corporation, besides charging interest, may recover damages, too, as mandated under Regulation 31-C. The Corporation's Inspectors have enormous civil and police powers visavis the erring or lax establishments and employers.

76. Under Common Law dispensation, maxims are a source of law. The judge made law operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is merely a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law.10 Sweeping as it may sound, it at least underlines that maxims, absent statutes, could be a source of law. Law, after all, under Article 13(3)(a), includes any Ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law.

77. As the maxim pithily puts – lex non cogit ad impossibilia – the law compels no man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir W. Scott, referring to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in consideration of all particular cases. In other words, where the law creates a duty or change, and the party is disabled to perform it, with no default in her, and has no remedy over, the law will in general excuse her.

78. Here, neither the contribution nor the filing of returns is in the employee's hands. True, registration policy, tinkered with, may lead to abuse, as apprehended by the Corporation. But, here, we will confine ourselves to the delayed filing of returns. There is no gainsaying the fact that all the employees had their registration beyond five years. Corporation does not – rightly – insist on timely contributions, for they could be payable, too. Then what ails? The Remedial Mechanism:

79. Finally, I may observe that the Corporation cannot lay the blame at someone else's door. The Regulations contain many safeguards against truant employers. Regulation 26 obliges the employer to send the returns of contributions in specific time frames: (a) within 42 days of the termination of contribution period to which it relates; (b) within 21 days of the date of permanent closure of the factory or establishment, as the case may be; and (c) within 7 days of the date of receipt of requisition in that behalf from the appropriate Office.

80. As per Regulation 27, the employer must, on demand from the appropriate office, issue certificate of contributions paid or payable regarding an insured person in the from specified by the Director-General. An employer who is liable to pay contributions shall pay those contributions within 21 days of the last day of the calendar month in which the contributions fall due (Regulation 31).

81. Regulation 31-A inflicts interest on contribution due, but not paid on time. Regulation 31-B prescribes the mode of recovery. Further, if an employer fails to contribute within the periods specified under Regulations 31, the Corporation, besides charging interest, may recover damages, too, as mandated under Regulation 31-

82. So viewed from any perspective, the Corporation cannot deny the otherwise eligible Insured Person the Certificate on the premise the employer contributed or filed the returns late. To that extent, Clause 8(a)(d) cannot be sustained.‖

48. The above-referred judgment, of the High Court of Kerala in Hari R. Nair (supra), has been followed by the High Court of Himachal Pradesh, in its judgment, dated 13th August, 2018 in C.W.P. 1500/2018 (Gurjot Kaur v. Director General, ESIC, MANU/HP/1115/2018).

49. I, too, express my respectful and complete concurrence with the view of the High Court of Kerala, as reflected in Hari R. Nair (supra).

50. As also observed, hereinabove, the counter-affidavit, filed by the ESIC, advances various submissions, over and above that contained in the communication dated 12th June, 2018, whereby the reason, for rejecting the petitioners request for issuance of WIP certificate, was transmitted to her. These allegations have been repelled by the petitioner, in her rejoinder to the said counter-affidavit. The petitioner has already lost one year of the MBBS/BDS course, and, given the fact that she was a meritorious student in the NEET examination, and the fact that all allegations levelled are essentially against the petitioner‘s parents, not against the petitioner, it would not, in the interests of justice, be appropriate to allow any enquiry to be undertaken, at this stage, into the said allegations, especially as they find no place in the communication dated 12th June, 2018 supra, and figure, for the first time, in the counter-affidavit of the ESIC. I am guided, in adopting this course, by the following classic, and by now jurisprudentially fossilised, exposition of the law, as inimitably enunciated by Krishna Iyer, J., in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405: ―The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16: ―Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‖ Orders are not like old wine becoming better as they grow older.‖

51. This amnesty, however, is being extended in the special facts of this case, and keeping in mind the interests of the petitioner as a student, and is not intended to operate as a precedent for cases to follow.

52. The inevitable sequitur would be that the decision of the ESIC, not to issue WIP certificate to the petitioner, because the returns of contributions had been filed by her employer late, cannot sustain in law. That being the only ground communicated to the petitioner, on which her application for issuance of a WIP certificate had been rejected, the corollary would be that the petitioner would be entitled to issuance of the said certificate, and her daughter Ms. Ashi would, consequently, be entitled to the benefits flowing from such issuance.

53. As already observed and noted hereinabove, by order dated 17th August, 2018, passed in the present case, the petitioner‘s ward Ms. Ashi had been permitted to participate in the counselling process, for admission to the MBBS/BDS course, for the academic year 2018- 2019, which was conducted in August, 2018. The result, thereof, was, however, directed not to be issued and it was observed that the result would abide by the outcome of these proceedings. The proceedings have continued, thereafter, and the 2018-19 section has come to an end. Counselling, for the 2019-20 session is also almost over; that, however, cannot affect the petitioner‘s case, as she was permitted, by interim order of this Court, to participate in the counselling for the 2018-19 academic session, which has, necessarily, in the facts of this case, to dovetail into the 2019-2020 session.

54. It is also observed that the order, dated 17th August, 2018 supra, which was an effective sequel to the order dated 14th August, 2018 supra, of the Division Bench, directed that the last candidate selected for admission, consequent counselling, would be notified regarding the pendency of these proceedings, and the interim order granted to the petitioner, and that, were the petitioner to succeed, she would be accommodated in the seat granted to the said last candidate. At this stage, however, it goes without saying that it would be completely unreasonable for this Court to unseat the said last candidate, who would have completed one year of her, or his, MBBS/BDS course by now.

55. Some balancing of equities becomes, in the circumstances, necessary.

56. Resultantly, this writ petition is allowed in the following terms:

(i) The decision, of the ESIC, to reject the petitioners application, for issuance of WIP certificate in favour of her daughter, as communicated to the petitioner vide the letter dated 12th June, 2018 supra (issued by way of a response under the Right to Information Act, 2005) is quashed and set aside.

(ii) The petitioner is declared as eligible for issuance of a

(iii) The result of the petitioners counselling, for the 2018-

2019 academic session, shall be announced, and the petitioner shall be granted admission, to the MBBS/BDS course, albeit for the 2019-2020 academic session, on the basis thereof. The shall, however, be without unseating any student who has already been granted admission. In case the college, to which the petitioner would be entitled to secure admission, as per the result of her counselling in August 2018, does not have any seat available, to accommodate the petitioner, the ESIC shall accommodate her in any other college, run by it, in which seats are available, for which the petitioner would be allowed the privilege of choice.

(iv) Ex hypothesi, should candidates have been admitted, already, to all seats in all colleges of the ESIC, the petitioner would be admitted, as per the result of her counselling in August 2018, if necessary by creating a supernumerary seat.

(v) At any rate, the ESIC would ensure that the petitioner is granted admission to the MBBS course, in one of the colleges run by it.

57. There shall be no order as to costs.

C. HARI SHANKAR, J

JULY 15, 2019 HJ