M/S. Trans Asian Shipping ... vs State Of Kerala
2021 Latest Caselaw 7454 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

    WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                        WP(C).No.8954 OF 2017(T)

PETITIONER/S:
                M/S. TRANS ASIAN SHIPPING SERVICES (P) LTD.
                TRANS ASIAN CORPORATE PARK, XIV/396-C,
                SEAPORT,AIRPORT ROAD, KAKKANAD, COCHI - 682037
                REPRESENTEDBY ITS DEPUTY MANAGER(HR) AND AUTHORIZED
                SIGNATORY.

                BY ADVS.
                SRI.P.SATHISAN
                SMT.KRISHNA.G.NATH
                SMT.DONA AUGUSTINE

RESPONDENT/S:
       1      STATE OF KERALA
              REP. BY SECRETARY TO GOVERNMENT,
              LABOUR AND REHABILITATIONDEPARTMENT,
              GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM - 695001

      2         THE REGIONAL DIRECTOR
                ESI CORPORATION, PANCHDEEP BHAVAN,
                NORTH SWARAJ ROUND,THRISSUR - 680 001.

      3         THE REGIONAL BOARD OF ESI CORPORATION
                GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

      4         DEPUTY DIRECTOR
                ESI CORPORATION, PANCHDEEP BHAVAN,
                NORTH SWARAJ ROUND,THRISSUR - 680 001.

      5         ADDITIONAL CHIEF SECRETARY
                CHAIRMAN- SUB COMMITTEE OF REGIONAL BOARD OF ESI
                CORPORATION,GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

                 SRI. JESTIN MATHEW, GP FOR R1 AND R5,
                 SRI. THOMAS MATHEW NELLIMMOOTTIL, FOR R2 TO R4

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.8954 OF 2017(T)          ..2..




                            JUDGMENT

Dated this the 3rd day of March 2021

The petitioner is a shipping service Company,

engaged in shipping business. According to the

petitioner, the petitioner Company is providing all the

benefits better than what is stipulated in the ESI Act,

1948. Accordingly, they filed Ext.P1 representation and

Ext.P2 application to exempt the Company from the

provisions of the ESI Act, 1948. According to the

petitioner, as per Exts. P3 and P6, the Company has

been exempted from the provisions of the Act.

However, the 1st respondent later rejected the

application on the ground that the employees of the

petitioner Company are not provided with similar or

superior benefits as envisaged under the ESI Scheme.

The petitioner contends that the petitioner was not WP(C).No.8954 OF 2017(T) ..3..

heard before passing Ext.P4 order and that the report

of the Sub Committee, in which the 1 st respondent was

a member was not considered while passing Ext.P4.

Accordingly, the petitioner prays of a direction to quash

Ext.P4 and for re-consideration of Exts.P1 and P2 after

hearing the petitioner and necessary parties.

2. From Ext.P4, it can be seen that the same is not

a speaking order. It is not disputed that before passing

Ext.P4 order, the petitioner was not heard by the 1 st

respondent. Therefore, Ext.P4 is quashed and there

will be a direction to the 1st respondent to consider

Exts.P1 and P2 afresh after affording an opportunity of

hearing to the petitioner and all other necessary

parties. Needless to say that the 1 st respondent would

refer to Exts.P3 and P6 before passing orders on

Exts.P1 and P2. Till fresh orders are passed as above,

all coercive steps for the period in question will be kept WP(C).No.8954 OF 2017(T) ..4..

in abeyance. The 1st respondent shall pass orders as

above within a period of two months from the date of

receipt of a copy of the judgment.

The writ petition is disposed of accordingly.

Sd/-

                             MURALI PURUSHOTHAMAN
    SB/03/03/2021                    JUDGE
 WP(C).No.8954 OF 2017(T)         ..5..




                           APPENDIX
    PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION DATED 30.07.2015 PREFERRED BY THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE APPLICATION IN PROFORMA PREFERRED BY THE PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING DATED 31.08.2016 OF THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION NO.

16321/B3/2015/LR DATED 3.11.2016 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE LIST DETAILING THE BENEFITS GIVEN TO EMPLOYEES OF THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE FILE NOTE.

EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 05.02.2016 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE G.O(P) 9/19/LBR DATED 18/01/2019 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P9 TRUE COPY OF THE G.O(P) 8/2019/LBR DATED 18/01/2019 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 08/05/2019 FROM THE ESI CORPORATION

EXHIBIT P11 TRUE COPY OF THE DEMAND NOTICE DATED 13/06/2019 ISSUED BY THE RECOVERY OFFICER OF THE ESI CORPORATION

EXHIBIT P12 TRUE COPY OF THE NOTICE NO.47000164400001099.REVENUE DATED 19/10/2020 ISSUED BY THE ASSISTANT DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION.

EXHIBIT P13 TRUE COPY OF THE NOTIFICATION ORDER OF EXEMPTION FOR THE PERIOD 2016-2017 DATED WP(C).No.8954 OF 2017(T) ..6..

18.02.2019

EXHIBIT P13A TRUE COPY OF NOTIFICATION/ORDER OF EXEMTPITION FOR THE PRIOD 2017-2018 DATED 18.02.2019

EXHIBIT P13B TRUE COPY OF NOTIFICATION/ORDER OF EXEMPTION OF THE PERIOD 2018-2019 DATED 23.12.2019

EXHIBIT P13C TRUE COPY NOTIFICATION/ORDER OF EXEMPTION FOR THE PERIOD 2019-2020 DATED 13.01.2020

RESPONDENTS EXTS.

EXHIBIT TRUE COPY OF THE LETTER DATED 8.2.2016 R2(A) PROVIDING STATEMENTS SPECIFICALLY SUGGESTING NOT TO GRANT EXEMPTION

//true copy //

P.A To Judge