Upali Aparajita Lenka And Another vs Union Of India And Others
2023 Latest Caselaw 343 Ori

Citation : 2023 Latest Caselaw 343 Ori
Judgement Date : 10 January, 2023

Orissa High Court

Upali Aparajita Lenka And Another vs Union Of India And Others on 10 January, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) No.21400 of 2022

                    (Through Hybrid mode)


Upali Aparajita Lenka and another         ....               Petitioners

                               -versus-

Union of India and others                 ....          Opposite Parties


Advocates appeared in this case:


For petitioners:          Mr. Bikash Jena, Advocate
                          Mr. B. Behera, Advocate
                          Mr. C. R. Dash, Advocate

For opposite parties:     Mr. P. K. Parhi, Dy. Solicitor General

                          Mr. Amarendra Prasad Ray, Advocate
                          Mr. N. D. Tripathy, Advocate
                          Mr. T. R. Jena, Advocate

           CORAM: JUSTICE ARINDAM SINHA

                        JUDGMENT

10.01.2023

1. Mr. Jena, learned advocate appears on behalf of petitioners

and submits, they are legal representatives of Sanjay Kumar Nayak,

since deceased on 20th June, 2021. He draws attention to annexure-10

being official document for Covid-19 death, issued in name of the

// 2 //

deceased by Government of Odisha, Department of Health and

Family Welfare.

2. Inspite of the above, by impugned writings, both dated 2nd

March, 2022, claim for dependant benefit under Covid-19 relief

scheme of Employees' State Insurance Corporation was not accepted,

alleging death occurred 65 days after the deceased had tested Covid-

19 positive, more than the scheme prescribed period of 45 days.

3. On query from Court Mr. Jena draws attention to annexure-2

being document dated 13th October, 2021, which is report of RT-PCR

test that was conducted on the deceased. The sample was drawn on

16th April, 2021 and report made on 13th October, 2021, saying that

result was positive. However, in the meantime on 20th June, 2021, the

COVID-19 infected person died. He reiterates that by official

document for COVID-19 death issued on 19th December, 2021, the

deceased Sanjay Kumar Nayak was certified to have died due to

COVID-19.

4. With reference to the scheme presented to both Houses of

Parliament on 3rd August, 2021, he draws attention to clause

XI(I)(iii)(d) and submits, the sub-clause is a guideline regarding

implementation of the scheme. It cannot be resorted to by the

corporation to deny the benefit to his clients.

W.P.(C) no.21400 of 2022 // 3 //

5. Mr. Ray, learned advocate appears on behalf of the

corporation and submits, extent guidelines provided for 45 days after

testing COVID-19 positive, during which occurrence of death entitles

the dependants to the benefit. He too relies on clause XI(I)(iii)(d) in

the scheme to submit, such is the effect of it. The scheme was placed

before Parliament as formulated and required under section 97 in

Employees' State Insurance Act, 1948. No modification thereto was

made by Parliament. His client is bound by terms in the scheme and

has acted accordingly in not being able to accept claim of petitioners.

6. Mr. Parhi, learned advocate, Deputy Solicitor General appears

for Union of India.

7. Mr. Jena in reply draws attention to notification dated 11th

August, 2021, made by the corporation, as published in Gazette of

India Extra-ordinary to submit, the notified scheme does not contain

the sub-clause that was there in the scheme placed before Parliament.

Hence, in any event, the corporation cannot rely on the sub-clause.

8. For purpose of dealing with the controversy, the sub-clause

relied upon is required to be and is reproduced below.

"XI(I)(iii)(d). There may be cases of death even after recovery from COVID-19 and discharge from hospital. In such cases, if the death results within 30 days of recovery and discharge from hospital, then the

W.P.(C) no.21400 of 2022 // 4 //

case shall be decided on recommendation of a Medical Board. In cases where the date of recovery from COVID-19 cannot be ascertained for want of COVID-19 negative certificate, the Post COVID death up to 45 days after testing COVID-19 Positive shall be considered for relief under the scheme."

(emphasis supplied)

9. Notification dated 11th August, 2021, relied upon by Mr. Jena,

is, as aforesaid, notification at instance of the corporation itself. It

cannot be taken to be the scheme notified as modified and approved

by Parliament. The scheme was presented to both Houses of

Parliament, also as aforesaid on 3rd August, 2021. The notification is

dated 11th August, 2021. Sub-section (4) in section 97 allows for a

total period of 30 days, while Parliament is in session, for it to

deliberate on the scheme. Clearly that time period was not exhausted

for the notification to be relied upon as the scheme notified and

approved by Parliament.

10. Official document for COVID-19 death issued on 19th

December, 2021 says that the document was issued in compliance to

the Hon'ble Supreme Court judgment dated 30th June, 2021 in

W.P.(C) no.5339 and W.P.(C) no.554 of 2021. It certifies that the

person, Sanjay Kumar Nayak, who died on 20th June, 2021, did so due

to COVID-19. On the other hand there is RT-PCR report dated 13th

W.P.(C) no.21400 of 2022 // 5 //

October, 2021, in respect of sample collected on 16th April, 2021 from

the person, since deceased saying that it was tested positive. Based on

the date of sample collection there has been reckoning made by the

corporation to say that death thereafter on 20th June, 2021 was beyond

45 days and hence, the deceased not covered under the scheme.