Kerala High Court
Manu K Chacko vs Employees State Insurance ... on 22 July, 2021
WP(C) No.14506/2021 1 / 10
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
Thursday, the 22nd day of July 2021 / 31st Ashadha, 1943
WP(C) NO. 14506 OF 2021 (K)
PETITIONER:
MANU K. CHACKO, AGED 38 YEARS, SON OF K.P.CHACKO, RESIDING AT
KAVANAMALLI HOUSE, PULLUAZHY P.O. PERUMBAVOOR- 683 541.
RESPONDENTS:
1. EMPLOYEES STATE INSURANCE CORPORATION, REPRESENTED BY ITS REGIONAL
DIRECTOR- KERALA, KERALA REGIONAL OFFICE, PANCHDEEP BHAVAN. NORTH
SWARAJ ROUND, THRISSUR 680 020.
2. THE DEPUTY DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, SUB
REGIONAL OFFICE, MALUS COMPLEX, ST. FRANCIS XAVIER CHURCH ROAD,
KALOOR, KOCHI- 682 017.
3. THE BRANCH MANAGER, EMPLOYEES STATE INSURANCE CORPORATION,
PERUMBAVOOR BRANCH OFFICE, ESI ROAD, PERUMBAVOOR-683 542.
4. SHONE PLY AND BOARDS, THAIKKARACHIRA, M.C. ROAD, PULLUVAZHY P.O.
PERUMBAVOOR 683 541.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct Respondents nos.1 to 3 to forthwith afford Super
Speciality Treatment benefits under the provisions of Employees State
Insurance Act 1948 to the petitioner's wife, Bindu Manu for treatment of
the ailment of "Pappillary Thyroid Carcinoma" (Thyroid Cancer), pending
disposal of this Writ Petition (Civil).
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.B.ASHOK SHENOY, P.S.GIREESH, RIYAL DEVASSY & ARJUN R. NAIK, Advocates
for the petitioner and of STANDING COUNSEL for R1 to R3, the court passed
the following:
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APPENDIX OF WP(C) 14506/2021
Exhibit P2 TRUE COPY OF OBSERVATIONS SLIP IN RESPECT OF
PETITIONER'S WIFE, BINDU MANU, DATED 28.06.2021 ISSUED
BY ESI DISPENSARY, PERUMBAVOOR.
Exhibit P3 TRUE COPY OF OFFICE MEMORANDUM NO. V-14/11/5/2018-
MED.I(SST) DATED 29.10.2018 ISSUED BY THE IST
RESPONDENT.
Exhibit P7 TRUE COPY OF OFFICE MEMORANDUM NO.V-14/11/5/2018-
MED.I(SST) DATED 18.8.2020 ISSUED BY THE IST
RESPONDENT.
WP(C) No.14506/2021 3 / 10
A.M. BADAR, J
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W.P.(C) No.14506 of 2021
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Dated this the 22nd day of July, 2021
ORDER
Heard the learned counsel appearing for the petitioner.
2. According to the learned counsel for the petitioner, the
petitioner is an insured person in the employment of 4 th respondent. He
joined service in November 2020, and since then his employer, ie. 4 th
respondent is regularly paying contribution to the Employees State
Insurance Corporation (ESIC). It is pointed out that wife of the
petitioner is suffered of Thyroid cancer and he took her for treatment to
the hospital of ESIC, which is not in a position to manage the ailment of
the wife of the petitioner. Wife of the petitioner is therefore admitted at
the Amrita Institute of Medical Sciences and Research Centre by the
petitioner on his own borrowed funds.
3. The learned counsel for the petitioner drew my attention to
the communication at Exhibit P2 wherein the hospital of the ESIC has
made a remark in the papers of medical treatment of the wife of the
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W.P.(C).No. 14506 of 2021
petitioner to the effect that she is not entitled for the super speciality
treatment for thyroid cancer. The learned counsel for the petitioner
further argued that the branch office of the respondent ESIC has
informed the petitioner that in the light of Clause No.2 of Office
Memorandum dated 29-10-2018, as the petitioner has not completed
minimum one year of insurable employment from the date of
registration, wife of the petitioner is not entitled for the medical
treatment. In submission of the learned counsel for the petitioner,
Hon'ble Delhi High Court in the matter of Baby Devananda D. v.
ESIC and another connected matter reported in 2017 SCC Online
Delhi 12779, has already struck down this Clause No.2 of the
notification at Exhibit P3 and the respondent ESIC, in terms of
judgment of the Hon'ble Delhi Court, has issued Office Memorandum
dated 18-08-2020 Exhibit P7, clarifying the position that the super
speciality treatment benefit to the insured persons and their family
members shall have to be given from the first day of insurable
employment on a case to case basis. The learned counsel for the
petitioner is pressing for an interim order in the light of this
communication at Exhibit P7, so also the judgment of the Hon'ble
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W.P.(C).No. 14506 of 2021
Delhi High Court in the matter of Baby Devananda D. v. ESIC and
another connected matter reported in 2017 SCC Online Delhi 12779.
4. The learned Standing Counsel takes notice for respondents
1 to 3 and seeks time for getting instructions. He submits that the
petitioner is not entitled for any interim relief because wife of the
petitioner has already been discharged from the hospital.
5. I have considered the submission of the learned counsel for
the respondents 1 to 3 so far as prayer for not granting interim relief at
this stage is concerned.
6. The petitioner has produced the material to show that his
wife is suffering from thyroid cancer and he had already admitted her
to Amrita Institute of Medical Sciences and Research Centre at his
own expenses. Primafacie, it is seen that the petitioner is an insured
person. The learned counsel for the petitioner on instructions submits
that wife of the petitioner is still undergoing chemotherapy.
7. The Clause 2 of the Office Memorandum Exhibit P3 dated
29-10-2018 reads thus:
"2. The members of the family of the Insured Person be
allowed super specialty treatment if the Insured Person has
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W.P.(C).No. 14506 of 2021
contributed 156 days (78 days in each contribution period)
and have completed minimum one year of insurable
employment from the date of registration."
8. Following are the observations of the Hon'ble Delhi High Court
in the matter of Baby Devananda D. v. ESIC and another connected
matter reported in 2017 SCC Online Delhi 12779:
" 76. Keeping in view the aforesaid mandate of law, this
Court is in agreement with the learned Amicus Curiae's
submission that Guideline Nos.1 and 2 of the Executive
Order dated 29th October, 2018 and proposed Regulation
96C are inconsistent with the existing Regulation 95A(2) of
Regulations, 1950 inasmuch as the existing Regulation
stipulates that the entitlement date for medical benefits for
the Insured Person and his/her family members shall be the
same. The Regulation 95A(2) is reproduced hereinbelow:-
'95A. Medical benefit to families of insured persons-
xxxxx xxxx xxxx xxx
(2) The family of an insured person shall become entitled
to medical benefit from the day the insured person himself
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W.P.(C).No. 14506 of 2021
becomes entitled to medical benefit and shall continue to be
so entitled so long as the insured person is entitled to receive
medical benefit for himself, or in the case of death of the
insured person till such date upto which the insured person
would have remained entitled to medical care, had he
survived.'
(emphasis supplied)
77.This Court is further of the opinion that prescribing
different commencement dates for entitlement to Super
Speciality Treatment of Insured Person viz-a-viz his/her
family members will neither check misuse of the ESI Act nor
ensure that costly treatments are availed by genuine persons.
Consequently, the classification of Insured Person as distinct
from his/her family members is neither founded on an
intelligible differentia nor the differentia has any rational
nexus to the object sought to be achieved, i.e., to
prevent/curtail misuse.
GUIDELINE NO.3 OF OFFICE MEMORANDUM
DATED 29TH OCTOBER, 2018 AND THE PROPOSED
REGULATION 96C TO THE EXTENT THEY
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W.P.(C).No. 14506 of 2021
PENALIZE THE INSURED PERSON AND/OR
HIS/HER FAMILY MEMBERS ON ACCOUNT OF NON-
DEPOSIT OF PERMIUM BY THE EMPLOYER, ARE
LIKE PENALISING A VICTIM RATHER THAN THE
PERPETRATORS OF THE CRIME.
78.Further, the Guideline No.3 of Office Memorandum dated
29th October, 2018 and the proposed Regulation 96C to the
extent they penalize the Insured Person and/or his/her family
members on account of non-deposit of premium by the
employer, are like penalising a victim rather than the
perpetrators of the crime. As suggested by learned Amicus
Curiae, the said Guideline/proposed Regulation is
inconsistent with Section 85 and 85B of the ESI Act.
79.Before parting with this case, this Court places on record
the fact that it was ably assisted throughout by Ms.Shyel
Trehan, learned Amicus Curiae. The assistance was of a
high calibre and quality.
CONCLUSION
80.Keeping in view the aforesaid, this Court is of the view
that the Office Memorandum dated 29th October, 2018 is
directly inconsistent with the provisions of the ESI Act and
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W.P.(C).No. 14506 of 2021
the regulations framed thereunder. The proposed draft
notification is also repugnant to Regulation 95A(2) of the
Regulations, 1950. Assuming that the proposed Regulation
96C is notified as well as published in the gazette of India,
and laid before the Parliament, in conformity with Section
97 of the ESI Act, even then the said Regulation shall be
inconsistent with Regulation 95A(2) of the Regulations,
1950. Accordingly, Guideline Nos.1,2 and 3 of the Office
Memorandum dated 29th October, 2018 and provision
similar thereto in the proposed Regulation 96C are declared
illegal and void."
8. It is thus seemed that the Office Memorandum dated
29-10-2018 was held to be directly inconsistent with the provisions of
the ESI Act and Regulations framed thereunder by the Hon'ble Delhi
High Court. The Guideline in the said Office Memorandum is held to
be illegal and void. To crown this, the respondent ESIC, vide Office
Memorandum, Exhibit P7 dated 18-08-2020, has accepted this
position and stated for guidance to all its offices that the super
speciality treatment benefits to the insured persons and their family
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members shall have to be given from the first day of insurable
employment. Thus, when prima facie it is seen that the petitioner is
an insured person and his wife is suffering from thyroid cancer and is
taking treatment from the super speciality hospital, case for grant of
interim relief is made out, particularly when it is a matter of common
knowledge that the cancer patients are required to undergo cycles of
chemotherapy as per the time frame prescribed by the treating doctor.
In this view of the matter, issue notice before admission to the
4th respondent.
Post the writ petition after four weeks. In the meanwhile, interim
relief as prayed is granted.
Sd/-
A.M. BADAR
JUDGE
SSK/22/07
22-07-2021 /True Copy/ Assistant Registrar
