(2014) 375 KLW 619
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY,THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936
WA.No. 1412 of 2014 () IN WP(C).23833/2014
AGAINST THE JUDGMENT IN WP(C) 23833/2014 of HIGH COURT OF KERALA DATED 30-9-2014
APPELLANT(S)/APPELLANTS/RESPONDENTS 1 TO 5
1. THE DIRECTOR GENERAL PANCHADEEP BHAVAN EMPLOYEES STATE INSURANCE CORPORATION, C.I.G ROAD NEW DELHI - 110 002.
2. THE DEPUTY DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION HOUSEFED COMPLEX, SASTHRI NAGAR ROAD, ERANHIPALAM KOZHIKODE - 673 006.
3. THE REGIONAL DIRECTOR EMPLOYEES STATE INSURANCE CORPORATION HOUSEFED COMPLEX, SASTHRI NAGAR ROAD, ERANHIPALAM KOZHIKODE - 673 006.
4. THE MANAGER BRANCH OFFICE, EMPLOYEES STATE INSURANCE CORPORATION MALAPPURAM - 676 505 5. THE MEDICAL COMMISSIONER PANCHAPEED BHAVAN, C.I.G ROAD EMPLOYEES STATE INSURANCE CORPORATION NEW DELHI - 110 002.
BYADV. SRI.P.SANKARANKUTTY NAIR
RESPONDENT(S)/PETITIONER/6TH RESPONDENT/ADDL.R7 TO R13
1. JEMIN ELIZABETH MATHEW
2. MARTHOMA MISSION HOSPITAL CHUNGATHARA, MALAPPURAM DISTRICT - 679 334
3. THE STATE OF KARNATAKA REPRESENTED BY THE MEDICAL ENTRANCE COMMISSIONER WIDAN SOUGH, BANGALORE
4. THE STATE OF WEST BENGAL REPRSENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT KOLKATTA
5. THE STATE OF TAMIL NADU REPRSENTED BY ITS SECRETARY MEDICAL EDUCATION DEPARTMENT, CHENNAI
6. THE DEAN ESIC MEDICAL COLLEGE, RAJAJI NAGAR, BANGALORE KARNATAKA
7. THE DEAN ESIC MEDICAL COLLEGE, K.K NAGAR, CHENNAI TAMIL NADU
8. THE DEAN ESIC MEDICAL COLLEGE, GULBARGA, KARNATAKA
9. THE DEAN ESIC MEDICAL COLLEGE, JOKA, KOLKATTA WEST BENGAL.
R1 BYADV. SRI.RAJU JOSEPH (SR.) R1 BYADV. SRI.U.K.DEVIDAS
J U D G M E N T
Ashok Bhushan, Ag.CJ
Heard learned counsel for the appellant as well as learned counsel appearing for the contesting respondents.
2. This writ appeal has been filed against the judgment and order dated 30.9.2014 passed by the learned Single Judge in writ petition No.23833 of 2014, by which judgment the writ petition has been allowed.
3. The appellant herein we refer to as 'the Corporation' and the writ petitioner as 'the petitioner'. The brief facts necessary to be noted for deciding this appeal are :
The Corporation ie., Employees State Insurance Corporation issued an admission notice on 13.8.2014 inviting applications from wards of insured person in undergraduate course in ESIC Medical College for the academic year 2014-15. The writ petitioner claiming to be the ward of Insured Person has submitted the application for admission under the State quota. The parents of writ petitioner were in employment of sixth respondent namely Marthoma Mission Hospital, Malappuram District. The said institution was inspected and came under the coverage of ESI Corporation and 6th respondent has paid contribution from 6th May 2009. The Corporation in its admission notice has laid down the admission policy for under graduate admission. One of the criteria, clause 8 of the notice has defined `insured person' for the purpose of availing ESIC management quota. Clause 8 of the notice is as follows :
"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 period of five years as on 1st January of the year of admission and should have paid at least 78 days of contribution in each contribution period, during this five year period."
4. The petitioner's application was processed and the petitioner was informed about the rejection by letter dated 19.8.2014. The Corporation declined the request of the petitioner's father to give a `ward of insured Person's certificate' on the ground that he has not completed five years of employment as on 1.1.2014. Challenging the said communication and claiming that the petitioner is entitled for admission under the said quota, she filed the writ petition praying for the following reliefs:
"i. Call for the records leading to Ext.P4 issued by the second respondent and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction;
ii. a writ of mandamus or any other appropriate writ order or direction to the first respondent that consider and pass appropriate orders on Ext.P8 representation forthwith.
iii. a writ of mandamus or any other appropriate order or direction to the first respondent that allow the petitioner to attend counseling and admit the petitioner to the MBBS Degree course under the ESIC Management Quota reserved for the wards of insured persons.
iv. a declaration that the petitioner is eligible for the admission to the MBBS Degree course under the ESIC Management Quota reserved for the wards of insured persons and issue a direction to the second and third respondents to issue Ext.P3 certificate to the petitioner."
5. The Corporation filed a counter affidavit in the writ petition, where it was pleaded that the Corporation, as per clause 8 of the notice, has treated the ward of only those persons who had completed continuous five years employment as insured service as on 1.1.2014. The following was stated in paragraph 10 of the affidavit:
"It is submitted that as per the admission policy adopted for admission of wards of insured person for MBBS Course under ESIC Management quota vide Headquarters Office letter No.L-11/12/13/UD Admission/2014-15/MEC dated 13.8.2014, 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 period of five years as on the 1st January of the year of admission and should have paid at least 78 days of contribution in each contribution period during this five year period. In the instant case the insured person, Shri. K.K. Mathew has not qualified the eligibility conditions of five year continuous insurable employment for admission of his ward to the 2014-15 academic sessions as the Act was applicable to the Hospital from 1.6.2009 onwards. In this connection it is pertinent to mention here that the Inspectors who paid visit to the hospital on 7.8.2007 had contacted Shri. K.K. Mathew, father of the petitioner for collecting the informations required for coverage. Though the inspectors had advised to produce records for examine the applicability of the provisions under the Act, if implemented, he paid no heed to the request. There is no merit in the contention of the petitioner that had the hospital been treated as covered from 06.09.2007 onwards based on the report of a prior inspection dated 07.08.2007, her father would have qualified the eligibility criteria of 5 years continuous insurable employment and she should have qualified for admission to MBBS course for 2014-15 academic sessions. The hospital is coverable only from 01.06.2009 as is evident from the records produced herewith."
6. Learned Single Judge by the impugned judgment allowed the writ petition and the petitioner is held to be entitled for consideration for admission under the quota. The learned Single Judge held that there is no mention in the prospectus that the year has to be understood with reference to completion of 365 days. Learned Single Judge took the view that in the facts of the case, the petitioner being the ward of a person who was insured in the year 2009, should be treated as having fulfilled the conditions as per Employees State Insurance (General) Regulations, 1950. The Corporation is in appeal against the said judgment.
7. Learned counsel for the appellant submits that the Corporation has followed the terms and conditions of the prospectus while refusing to give certificate to petitioner's father as insured person since he has not completed five years of insured service on 1.1.2014. It is submitted that clause 8 clearly contemplates continuous insurable employment for a priod of five years as on 1st January of the year of admission. He submits that learned Single Judge has erred in holding that the petitioner has fulfilled the conditions in clause 8.
8. Learned counsel for the writ petitioner submits that in clause 8, the year has not been defined and the definition of "year" has to be taken as contained in section 2(w) of the
Employees State Insurance (General) Regulations, 1950.
Section 2(w) is as follows :
"2. Definitions.- xx xx xx
9. The admission notice Ext.P7 is a notice issued for laying down the policy inviting applications for ward of insured persons for admission to undergraduate course. The notice contains the policy decision and guidelines finalised by the Corporation for effecting admission. The admission to MBBS Course are not undertaken under any provisions of the Regulations, 1950. The very beginning of the words of clause 8 is "for the purpose of availing benefit ESIC Management Quota". The conditions of clause 8 thus was specifically grafted for the purpose of availing the benefit. The Corporation was free to choose any yardstick for processing the application of the wards of insured persons. The yardstick which has been chosen by the Corporation is "...... have been in continuous insurable employment for a period of five years as on the 1st January of the year of admission".
10. The Two key words in clause 8 are to be specifically noted as "continuous insurable employment" and " for a period of five years as on the 1st January of the year of admission". The five years has a prefix by word "period". But 'period' has been defined in Law Lexicon by P. Ramanatha Aiyar as follows :
11. The Apex Court had occasion to consider the phrase 'period' and 'a week' in B. Shah v. Presiding Officer, Labour Court, Coimbatore and others [1977 (4) SCC 384] The provisions of maternity benefits had came for consideration. Sections 4 and 5 of the Act were quoted by the Apex Court in paragraph 9 and 10 which are to the following effect.
"9. Section 4 of the Act which prohibits the employment of, or work by, women during certain period lays down:
(1) No emoloyer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery or miscarriage.
(3) Without prejudice to the provisions of Section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
(4) The period referred to in sub-section (3) shall be--
(a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under Section 6.
10. Section 5 of the Act which confers right to payment of maternity benefit on a woman worker provides:
The Apex Court after elaborating the meaning of the word 'week' and the word "period" the Apex Court observed that continuous running of time is denoted by word "period". In paragraph 14 to 18 the following was laid down :(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day.
Explanation.--For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery:
Provided that the qualifying period of one hundred and sixty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.
Explanation.--For the purpose of calculating under this sub-section, the days on which a woman has actually worked in the establishment, the days for which she has been laid off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day:
Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death:
Provided further that where a woman, having delivered of a child, dies during her delivery or during the period of six weeks immediately following the date of her delivery, leaving behind in either case the child, the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period, then, for the days up to and including the day of the death of the child.
14. In the Shorter Oxford English Dictionary (Third Edition), the word "week" has been described as meaning "the cycle of seven days, recognised in the calendar of the Jews and thence adopted in the calendar of Christian, Mohammedan and various other peoples. A space of seven days, irrespective of the time from which it is reckoned. Seven days as a term for periodical payments (of wages, rent, or the like), or as a unit of reckoning for time of work or service".
15. In Webster's New World Dictionary (1962 Edition), the meaning of the word "week" is given as "a period of seven days, especially one beginning with Sunday and ending with Saturday; the hours or days of work in a seven-day period".
16. In Stroud's Judicial Dictionary (Third Edition), it is stated that "(1) though a week usually means any consecutive seven days, it will sometimes be interpreted to mean the ordinary notion of a week reckoning from Sunday to Sunday and (2) probably, a week usually means seven clear days".
17. A "week" according to Halsbury's Laws of England (Third Edition) Vol. 37 at p. 84 is strictly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days.
18. Bearing in mind the above mentioned dictionary or popular meaning of the term "week", we think that in the context of sub-sections (1) and (3) of Section 5 of the Act, the term has to be taken to signify a cycle of seven days including Sundays. The language in which the aforesaid sub-sections are couched also shows that the Legislature intended that computation of maternity benefit is to be made for the entire period of the woman worker's actual absence i.e. for all the days including Sundays which may be wageless holidays falling within that period and not only for intermittent periods of six days thereby excluding Sundays falling within that period for if it were not so, the Legislature instead of using the words "for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day" would have used the words "for the working days falling within the period of her actual absence immediately preceding and including the day of her delivery and the six weeks immediately following that day but excluding the wageless days". Again the word "period" occurring in Section 5(1) of the Act is a strong word. It seems to emphasise, in our judgment, the continuous running of time and recurrence of the cycle of seven days. It has also to be borne in mind in this connection that in interpreting provisions of beneficial pieces of legislationlike the one in hand which is intended to achieve the object of doing social justice to women workers employed in the plantations and which squarely fall within the purview of Article 42 of the Constitution, the beneficent rule of construction which would enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output has to be adopted by the Court.
Specifically elaborating the word "period" the following was observed in paragraph 18:
"........... Again the word "period" occurring in Section 5(1) of the Act is a strong word. It seems to emphasize, in our judgment, the continuous running of time and recurrence of the cycle of seven days.