The High Court of Kerala passed a judgement on 16th January 2023, which stated that as a creature of the statute, the corporation cannot prevent an establishment from seeking an exemption from the provisions of the act when the grant of such exemption in an integral feature of the statutory scheme .It was stated in the case of WA NO. 61 OF 2023 which was passed by the division bench comprising of JUSTICE A.K. JAYASANKARAN NAMBIAR & JUSTICE MOHAMMED NIAS C.P.,
FACTS OF THE CASE:
The appeal was preferred by the Employees State Insurance Corporation (ESI Corporation), the second respondent in the writ petition filed by the first respondent herein, aggrieved by the judgment passed by the learned single Judge quashing an order that rejected the request for exemption claimed by the petitioner from the provisions of the Employees State Insurance Act, 1948 for the period from 2004 to 2006. The writ petitioner challenged order rejecting the claim for exemption from the provisions of the Act on the ground that it was in violation of judgment of dated 11.2.2013, which specifically directed the Government to consider the exemption applications in accordance with the observations contained therein. The reasons for rejecting the application submitted by the petitioner was that the amendment made in the year 2010 to the Act, which was in force when the Government considered the case, did not contain any provision for granting exemption retrospectively. The writ petitioner contended that the amendment brought to Section 91A of the Act is effective only from 1.6.2010 and the same has no impact in the instant case as the applications were filed and once considered well before the amendment and in view of the mandamus issued in judgment, they were to be considered on the basis of the preamended section of the Act. The finding of the Government that Section 87 is purely discretionary was attacked by the petitioner as illegal as the applications preferred by them were statutory applications to be considered in terms of the Act. It was the contention of the writ petitioner that by series, the petitioner Company had provided superior benefits and they were exempted from the provisions of the Act till 2004 and there was no change in any circumstances thereafter to reject their request by order.
JUDGEMENT OF THE CASE
The power of the Government to grant exemption cannot be disputed and the Corporation gets a chance by virtue of Section 89 to put forth its views before Government decide on the question of exemption. The appeal was premature if not one filed without any locus. The court found no good reason to interfere with the judgment of the learned single Judge and accordingly dismissed the writ appeal.
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JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.
