Kerala High Court
Vijila R.S vs The District Collector on 21 May, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WP(C) NO. 1873 OF 2020
PETITIONER:
VIJILA R.S.
AGED 27 YEARS
W/O.SURESHKUMAR.R., STAFF NURSE NIMS HOSPITAL (NOW
UNDER TERMINATION), ARALUMOODU, RESIDING AT VELAMTHATTU
PUTHANVEEDU, NEYYATTINKARA.
BY ADVS.
C.S.AJITH PRAKASH
SRI.T.K.DEVARAJAN
SMT.T.N.SREEKALA
SRI.FRANKLIN ARACKAL
SRI.PAUL C THOMAS
SRI.M.B.SOORI
SRI.JAISON JOSEPH(KOOTHATTUKULAM)
SHRI.BABU M.
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION,
THIRUVANANTHAPURAM-695 043.
2 THE DEPUTY THAHASILDAR (RR),
OFFICE OF THE DEPUTY THAHASILDAR (RR),
THIRUVANANTHAPURAM DISTRICT, THIRUVANANTHAPURAM-695
043.
3 THE DISTRICT LABOUR OFFICER,
OFFICE OF THE DISTRICT LABOUR OFFICER, THOZHIL BHAVAN,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.
4 THE ASSISTANT LABOUR OFFICER AND INSPECTOR,
UNDER THE MATERNITY BENEFIT ACT, 1961, OFFICE OF THE
ASSISTANT LABOUR OFFICER, NEYYATTINKARA,
THIRUVANANTHAPURAM DISTRICT-695 121.
WP(C) 1873 & 15131 OF 2020 :2:
5 M.S.FAIZAL KHAN,
THE MANAGING DIRECTOR, NIMS MEDICITY,
ARALUMMOODU, NEYYATTINKARA P.O., PIN-695 121.
6 THE MANAGER (HR), NIMS MEDICITY,
ARALUMMOODU, NEYYATTINKARA P.O., PIN-695 121.
BY ADVS.
GOVERNMENT PLEADER SRI.JUSTIN JACOB.
SRI.P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.PRATAP ABRAHAM VARGHESE
SMT.ASHA K.SHENOY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.04.2024,ALONG WITH WP(C)15131/2020, THE COURT ON
21.05.2024 DELIVERED THE FOLLOWING:
WP(C) 1873 & 15131 OF 2020 :3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WP(C) NO. 15131 OF 2020
PETITIONER/S:
THE MANAGING DIRECTOR, NIMS MEDICITY
ARALUMMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM-
695123.
BY ADVS.
P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.T.C.KRISHNA
SRI.C.ANILKUMAR (KALLESSERIL)
SMT.ASHA K.SHENOY
SRI.PRATAP ABRAHAM VARGHESE
RESPONDENTS:
1 THE ASSISTANT LABOUR OFFICER AND INSPECTOR UNDER
THE MATERNITY BENEFIT ACT 1961
OFFICE OF THE ASST. LABOUR OFFICER,
NEYYATTINKARA-695123.
2 THE DEPUTY LABOUR COMMISSIONER AND SECRETARY,
STATE ADVISORY LABOUR BOARD, THIRUVANANTHAPURAM-
695001.
3 VIJILA R.S.,
W/O.SURESH KUMAR, VELAMTHATTU PUTHENVEEDU,
ARALUMMOODU, NEYYATTINKARA-695123.
BY ADVS.
GOVERNMENT PLEADER SRI. JUSTIN JACOB.
SRI.C.S.AJITH PRAKASH
SRI.T.K.DEVARAJAN
SMT.T.N.SREEKALA
SRI.FRANKLIN ARACKAL
SHRI.BABU M.
WP(C) 1873 & 15131 OF 2020 :4:
SMT.ANCY THANKACHAN
SHRI.NIDHIN RAJ VETTIKKADAN
SRI.HAARIS MOOSA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.04.2024 ALONG WITH WP(C).1873/2020, THE COURT ON
21.05.2024 DELIVERED THE FOLLOWING:
WP(C) 1873 & 15131 OF 2020 :5:
JUDGMENT
Since common issues arise for consideration in
these writ petitions, they are disposed of by this
common judgment. The status of the parties and
the documents produced will be as obtaining in W.P.
(C) No.15131 of 2020, unless specifically mentioned.
2. The petitioner is the Managing Director of a
Multi Specialty Hospital at Neyyattinkara. The
Hospital is covered under the provisions of the
Employees' State Insurance Act, 1948 (for short, 'ESI
Act'). The 3rd respondent was appointed as a Staff
Nurse in the Hospital with effect from 01.03.2015.
While so, the 3rd respondent was sanctioned leave in
view of her pregnancy, from 25.11.2018. According
to the Hospital management, she informed them that
WP(C) 1873 & 15131 OF 2020 :6:
she is not interested to continue in service due to
personal reasons and on account of the tender age of
her child.
3. The 3rd respondent, thereafter, submitted a
complaint before the 1st respondent, the Assistant
Labour Officer and the Inspector, under the
Maternity Benefit Act, 1961 stating that she has been
denied maternity benefits and is not permitted to
rejoin duty on 26.05.2019. Based on the said
complaint, the 1st respondent carried out an
inspection at the petitioner's Hospital on 13.08.2019
and on the same day, issued Ext.P2 order directing
the petitioner to pay Rs.1,21,800/- as maternity
benefit for the period from 16.11.2018 to 15.05.2019.
In response to Ext.P2, the petitioner submitted
Ext.P3 reply stating that the Maternity Benefit Act is
not applicable to the Hospital since the Hospital is
WP(C) 1873 & 15131 OF 2020 :7:
covered under the provisions of the ESI Act.
4. The 1st respondent did not consider Ext.P3
and instead, issued Ext.P4 order dated 14.10.2019 in
exercise of powers under Section 17(2)(b) of the
Maternity Benefit Act directing the petitioner to
reinstate the 3rd respondent and to report
compliance.
5. The petitioner preferred Exts.P5 and P6
appeals against Exts.P2 and P4 respectively, before
the Director of Factories and Boilers. However, when
the petitioner was informed that the notified
appellate authority is the Deputy Labour
Commissioner, the 2nd respondent, the petitioner
preferred the appeal before the said authority.
However, the 2nd respondent noting that there is no
provision for condonation of delay in filing the
appeal, took the appeal to file and posted on
WP(C) 1873 & 15131 OF 2020 :8:
24.02.2020 with notice to the petitioner and the 3 rd
respondent. However, the petitioner was absent on
the said day and the 2 nd respondent passed Ext.P7
order dismissing the appeal. The petitioner preferred
Ext.P8 application for restoration of the appeal.
However, the 2nd respondent has not passed any
orders on Ext.P8. Accordingly, W.P(C) No.15131 of
2020 is filed to quash Exts.P2, P4 and P7 and to
declare that the petitioner is not liable to pay
maternity benefit to the 3rd respondent in view of
Section 5B of the Maternity Benefit Act, 1961.
6. In the meantime, the 3rd respondent had filed
W.P.(C) No.1873 of 2020 to enforce Exts.P2 and P4
and to initiate prosecution against the petitioner.
7. According to the petitioner, the Hospital is
covered under the ESI Act and in view of Section 5B
of the Maternity Benefit Act, 1961, the petitioner is
WP(C) 1873 & 15131 OF 2020 :9:
not liable to pay maternity benefit to the 3 rd
respondent. It is contended that, even going by
Ext.P2 order, the salary of the 3 rd respondent as on
the date on which she availed leave was Rs.20,300/-
and her wages for a month exceeds the amount
specified in sub clause (b) of Clause (9) of Section 2
of the ESI Act read with Section 5B of the Maternity
Benefit Act and she is not eligible for benefits under
the Maternity Benefit Act, 1961. It is contended that
on the basis of the complaint of the 3 rd respondent,
the 1st respondent conducted inspection at the
Hospital on 13.08.2019 and on the same day, issued
Ext.P2 order directing the petitioner to pay
Rs.1,21,800/- as maternity benefit to the 3rd
respondent and that the petitioner was not afforded
an opportunity of hearing before issuing Ext.P2
order. It is further contended that Exts.P2 and
WP(C) 1873 & 15131 OF 2020 :10:
Ext.P4 do not reveal the subjective satisfaction of the
1st respondent that the payment had been wrongly
withheld or that the complainant has been
discharged or dismissed during or on account of her
absence from work, as required under Section 17(2)
(b) of the Maternity Benefit Act. It is contended that
the 1st respondent has no authority to order
reinstatement as per the provisions contained in
Section 12(b) or Section 17(2) of the Maternity
Benefit Act. It is also contended that the 1 st
respondent rejected the statutory appeal on the first
posting date itself without providing sufficient
opportunity to pursue the appellate remedy.
8. Heard Sri.Pratap Abraham Varghese, the
learned counsel for the petitioner in W.P.(C) 15131 of
2020 and Sri.C.S Ajith Prakash, the learned counsel
for the petitioner in W.P.(C) No.1873 of 2020 and
WP(C) 1873 & 15131 OF 2020 :11:
Sri.Justin Jacob, the learned Government Pleader.
9. It is not in dispute that the ESI Act is
applicable to the petitioner Hospital. Section 5A of
the Maternity Benefit Act provides that every woman
entitled to the payment of maternity benefit under
the Maternity Benefit Act shall, notwithstanding the
application of the ESI Act to the factory or other
establishment in which she is employed, continue to
be so entitled until she becomes qualified to claim
maternity benefit under Section 50 of the ESI Act.
Section 50 of the ESI Act provides that the
qualification of an insured woman to claim maternity
benefit, the conditions subject to which such benefit
may be given, the rates and period thereof shall be
such as may be prescribed by the Central
Government. Section 5B(b) of the Maternity Benefit
Act deals with payment of maternity benefit in
WP(C) 1873 & 15131 OF 2020 :12:
certain cases and provides that every woman whose
wages (excluding remuneration for overtime work)
for a month exceed the amount specified in Section
2(9)(b) of the ESI Act shall be entitled to the payment
of maternity benefit under the Maternity Benefit Act.
Section 2(9) (b) of the ESI Act defines an employee to
mean any person employed for wages in or in
connection with the work of a factory or
establishment to which the Act applies but does not
include any person so employed whose wages
(excluding remuneration for overtime work) exceed
such wages as may be prescribed by the Central
Government, a month. According to the petitioner,
the wages prescribed by the Central Government
under Section 2(9)(b) of the ESI Act is Rs.21,000/-
with effect from 01.01.2017. As per the averment of
the petitioner and Ext.P2 order, the salary of the 3 rd
WP(C) 1873 & 15131 OF 2020 :13:
respondent as on the date on which she availed leave
was Rs.20,300/- which is less than the wage limit
prescribed by the Central Government under Section
5B(b) of the Maternity Benefit Act read with Section
2(9)(b) and Section 50 of the ESI Act. Therefore, it is
contended that since the wages of the 3 rd respondent
for a month is less than Rs.21,000/-, prescribed by
the Central Government under Section 5B(b) of the
Maternity Benefit Act read with Sections 2(9)(b) and
Section 50 of the ESI Act, the provisions of the
Maternity benefit Act will not apply so far as the 3 rd
respondent is concerned.
10. The 1st respondent has not considered
whether the 3rd respondent has become qualified to
claim maternity benefit under Section 50 of the ESI
Act read with Section 5B(b) of the Maternity Benefit
Act even while finding that the salary of the 3 rd
WP(C) 1873 & 15131 OF 2020 :14:
respondent was Rs.20,300/- as on the date on which
she availed leave. Further, from the documents
produced, it appears that the 1 st respondent has
passed Ext.P2 order on the date of inspection itself. I
find that Ext.P2 order is vitiated by non application
of mind and in violation of the principles of natural
justice.
Accordingly, Ext.P2 order is set aside.
Consequently, Ext.P4 order cannot sustain and the
same is also set aside. There will be a direction to the
1st respondent to pass fresh orders on the claim of
the 3rd respondent for maternity benefit after
affording an opportunity of hearing to the petitioner
and the 3rd respondent in the light of the discussion
and observations above, as expeditiously as possible,
at any rate, within a period of two months from the
date of receipt of copy of this judgment. It will be
WP(C) 1873 & 15131 OF 2020 :15:
open to both parties to raise all contentions including
the applicability of the Maternity Benefit Act to the
3rd respondent.
The writ petitions are disposed of accordingly.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
al/-
WP(C) 1873 & 15131 OF 2020 :16:
APPENDIX OF WP(C) 1873/2020
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF
EXPERIENCE ISSUED BY THE NIMS HOSPITAL
AUTHORITY TO THE PETITIONER.
EXHIBIT P2 A TRUE COPY OF THE PETITION SUBMITTED
BY THE PETITIONER BEFORE THE 4TH
RESPONDENT DATED 01.10.2019.
EXHIBIT P3 A TRUE COPY OF THE REQUEST DATED
06.07.2019.
EXHIBIT P4 A TRUE COPY OF THE COMPLAINT SUBMITTED
BEFORE THE DISTRICT LABOUR OFFICER
AGAINST DENIAL OF EMPLOYMENT DATED
26.06.2019.
EXHIBIT P5 A TRUE COPY OF THE NOTICE OF THE DEPUTY
LABOUR OFFICER DATED 20.08.2019.
EXHIBIT P6 A TRUE COPY OF THE PROCEEDINGS OF THE
RESPONDENT NO.496/2019 DATED
13.08.2019.
EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS
NO.496/2019 DATED 14.10.2019 OF THE 4TH
RESPONDENT ORDERING REINSTATEMENT OF
THE PETITIONER.
EXHIBIT P8 A TRUE COPY OF THE PETITION FILED BY
THE PETITIONER DATED 31.12.2019.
WP(C) 1873 & 15131 OF 2020 :17:
APPENDIX OF WP(C) 15131/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF OFFER LETTER DATED 25.2.2015,
ISSUED BY NIMS.
EXHIBIT P2 TRUE COPY OF ORDER NO.496/2019 DATED
13.8.2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF LETTER FROM THE PETITIONER TO
THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF ORDER DATED 14.10.2019 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF APPEAL MEMORANDUM DATED
14.11.2019 AGAINST EXHIBIT P-2 ORDER.
EXHIBIT P6 TRUE COPY OF APPEAL MEMORANDUM DATED
26.11.2019 AGAINST EXHIBIT P4 ORDER.
EXHIBIT P7 TRUE COPY OF ORDER DATED 24.2.2020 ISSUED BY
THE 2ND RESPONDENT IN MBA 1/2020.
EXHIBIT P8 TRUE COPY OF I.A. IN MBA NO.1/2020 FILED BY
THE PETITIONERS SEEKING RESTORATION OF THE
APPEAL.
RESPONDENT EXHIBITS
EXHIBIT A TRUE COPY OF THIS CERTIFICATE ISSUED BY
R3(A) THE NURSING SUPERINTENDENT DATED 21.06.2014.
EXHIBIT A TRUE COPY OF THE COMPLAINT OF THE DEPONENT
R3(B) TO THE DISTRICT LABOUR OFFICER DATED
26.06.2019 WITH ITS TRANSLATION.
WP(C) 1873 & 15131 OF 2020 :18:
EXHIBIT A TRUE COPY OF THE COMMUNICATION FROM THE
R3(C) ASSISTANT LABOUR OFFICER TO THE PETITIONER
DATED 01.10.2019 WITH ITS TRANSLATION.
EXT.R2(A) TRUE COPY OF THE GOVERNMENT ORDER G.O.
(MS)No.46/73/LBR DATED 06.08.1973.
