Kerala High Court
Yogi Beedi Works vs State Of Kerala on 28 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 39393 OF 2015
PETITIONER/S:
YOGI BEEDI WORKS, 14/4
CHERUVATHUR BUILDING, FRANCIS ROAD, CALICUT 673 002, A
PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER,
ANISH S PATEL
BY ADV C.ANIL KUMAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
DEAPRTMENT OF LABOUR & REHABILITATION, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 EMPLOYEES STATE INSURANCE CORPORATION
REPRESENTED BY ITS REGIONAL DIRECTOR, PANCHDWEEP BHAVAN,
NORTH SWARAJ ROUND, THRISSUR 680 020.
BY ADV SRI.THOMAS MATHEW NELLIMOOTTIL
OTHER PRESENT:
SRI. JUSTIN JACOB-SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.39393/2015
-2-
JUDGMENT
Heard Mr C Anil Kumar learned Counsel for the
petitioner, and Ms Karishma, holding for Mr Thomas Mathew
Nellimoottil, learned Standing Counsel for the respondents.
2. The petitioner has been engaged in the packing and
supply of beedis. The petitioner is covered under the
provisions of the Employees' State Insurance Act 1948 (for
short, 'ESI Act').
2.1 The petitioner has filed this writ petition
impugning Exts.P9 and P11, whereby the petitioner's
application dated 12.03.2014 seeking exemption from the
provisions of the ESI Act to its establishment for the period
from 30.05.2009 to 29.05.2010, 30.05.2010 to 29.05.2011, and
30.05.2011 to 29.05.2012 has been rejected.
3. Section 87 of the ESI Act empowers the appropriate
government to grant exemption to a factory or establishment
or class of factories or establishments from the applicability of
the provisions of the ESI Act and Rules made thereunder, if the
Government is of the opinion that the employer is offering
better or similar benefits to its employees than provided under
the ESI Act and Rules/Schemes made thereunder.
Section 87 of the ESI Act on reproduction, reads as under:
"87. Exemption of a factory or establishment or class of
factories or establishments
The appropriate government may, by notification in the
Official Gazette and subject to such conditions as may be
specified in the notification, exempt any factory or
establishment or class of factories or establishments in any
specified area from the operation of this Act for a period not
exceeding one year and may from time to time by like
notification renew any such exemption for periods not
exceeding one year at a time.
PROVIDED that such exemptions may be granted only if the
employees in such factories or establishments are otherwise
in receipt of benefits substantially similar or superior to the
benefits under this Act:
PROVIDED FURTHER that an application for renewal shall be
made three months before the date of expiry of the
exemption period and a decision on the same shall be taken
by the appropriate Government within two months of receipt
of such application.
3.1 The ESI Act is beneficial legislation to protect the
interests of workmen who do not have equal bargaining power
with Management in factories or establishments. The
appropriate Government may grant an exemption for a period
of one year and thereafter for each successive year if it finds
that the employer is offering better or equal benefits to its
employees than are provided under the ESI Act and the
Scheme made thereunder. By way of clarification, Section
91A, which bars granting exemption retrospectively, was
inserted in the ESI Act with effect from 01.06.2010.
4. In the present case, the petitioner moved an
application in 2014 seeking exemption for 2009-10, 2010-11,
and 2011-12. Even otherwise, the employer does not have the
right to seek an exemption. It is the discretion of the
appropriate Government to grant or not to grant the
exemption, considering the entirety of the facts and
circumstances of the case. By not granting exemption, an
employer is not prejudiced in any manner because he has to
offer better benefits than provided under the ESI Act to seek
exemption from the applicability of the provisions of the ESI
Act. The employee have not come before this Court against
the order impugned herein, and the employer does not have
the right to seek exemption, as it is the discretion of the
Government which may or may not be exercised in
appropriate cases.
Therefore, I find no substance in this writ petition; the
orders impugned do not suffer from error or jurisdiction, and
they are not bad in law. Therefore, the writ petition fails,
which is hereby dismissed. All Interlocutory Applications as
regards interim matters stand closed.
Sd/-
DINESH KUMAR SINGH
JUDGE
jjj
APPENDIX OF WP(C) 39393/2015
PETITIONER EXHIBITS
P1- TRUE COPY OF THE NOTIFICATION G.O(RT)
NO.1110/2009/LBR DATED 29/7/2009 1.2002 ISSUED BY
THE 1ST RESPONDENT
P2- TRUE COPY OF THE NOTIFICATION G.O(RT)
NO.1365/2013/LBR DATED 29/7/2013 ISSUED BY THE 1ST
RESPONDENT
P3- TRUE COPY OF THE LETTER NO.4776/B3/2014/LBR
DATED 22.8.2015 WITH GO(RT) NO.1480/2013/LBR
DATED 26.8.15 ISSUED BY THE 1ST RESPONDENT
P4- TRUE COPY FO THE ORDER NO.G.O(P)
NO.105/2015/LBR DATED 4.8.15 ISSUED BY THE 1ST
RESPONDENT
P5- TRUE COPY OF THE EXEMPTION APPLICATION
DATED 9.3.2009 SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT FOR THE PERIOD 30.5.2009 TO
29.5.2010
P6- TRUE COPY OF THE EXEMPTION APPLICATION
DATED 25.3.2010 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT FOR THE PERIOD
30.5.2010 TO 29.5.2011
P7- TRUE COPY OF THE EXEMPTION APPLICATION
DATED 21.2.2011 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT FOR THE PERIOD
30.5.2011 TO 29.5.2012
P8- TRUE COPY OF THE LETTER DATED 12.3.2014
SUBMITTED BY THE PETITIONER TO THE 1ST
RESPONDENT
P9- TRUE COPY OF THE ORDER NO.7630/B3/2014 LBR
DATED 30.7.2014 ISSUED BY THE 1ST RESPONDENT
P10- TRUE COPY OF THE REVIEW PETITION SUBMITTED
BY THE PETITIONER TO THE 1ST RESPONDENT
P11- TRUE COPY OF THE ORDER NO. 7630/B-3/2014/LBR
DATED 4.5.2015 ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER
