Anoop V. Mohta, J.

1. The petitioners, who are carrying on their business of construction and real estate development in the State of Goa, through their registered Association along with its Members have challenged Circular No. P.12/11/11/60/20110-REV.II dated 31st July, 2015 issued by respondent No. 1 (the Corporation) under the provisions of the Employees' State Insurance Act, 1948 (the Insurance Act) and E.S.I. (General) Regulations 1950, (the Regulation) including the Goa, Daman and Diu Employees' State Insurance (Medical Benefit) Rules, 1975 (the Rules) as, by the Circular, the Insurance Act and the Schemes have been extended to all construction site workers.

2. The respondents by reply dated 10th October, 2016, have resisted the prayers on every count. The petitioners filed affidavit-in-rejoinder dated 29th November 2016 and reiterated the submissions.

3. The events led to filing the petition, as per the petitioners, are that on 31st July, 2015, respondent No. 1 issued the Circular bearing No. P.12/11/11/60/20110-REV.II extending the benefit of ESI Scheme to the construction site workers, deployed in the implemented area with effect from 1st August, 2015 and in pursuance thereto, respondent No. 1 issued notices to the Members of petitioner No. 1, as well as petitioners No. 2 and 3 stating that the Employees' State Insurance Corporation, New Delhi has decided to extend the benefit of ESI Scheme to the construction site workers w.e.f. 1st August, 2015. Thereafter, vide representation dated 19th October, 2015, the petitioner No. 1 requested respondent No. 2 to reconsider the matter and further requested that the Insurance Act may not be made applicable to the workers engaged in construction industry. Petitioner No. 1 also submitted a copy of an order dated 31st September, 2015 of the Madurai Bench of Madras High Court in WP(MD) 16996 of 2015 and WP(MD) No. 2 of 2015. However, the respondent No. 1 rejected the request of the petitioners vide letter dated 21st October, 2015 addressed to the President of Petitioner No. 1 and directed the Members of Petitioner No. 1 to comply with the Insurance Act forthwith, so as to avoid any penal proceedings. In the said letter, respondent No. 1 while not denying that Madurai Bench of Madras High Court had stayed operation of the impugned Circular, conveyed the petitioner No. 1 that their office is not aware of any stay of any Court, prohibiting enforcement of ESI coverage to the construction site workers, located within the jurisdictional areas of ESIC, Goa Region. According to the petitioners, respondent No. 1 thereafter, issued show cause notice dated 2nd December, 2015 threatening the members of petitioner No. 1 with criminal prosecution. Being aggrieved, the petitioners have filed the present petition.

4. The petitioners have relied upon Instructions/Circular dated 14th June, 1999 whereby the Additional Commissioner (Revenue), by addressing it to the Regional Director/Director/Jt. Director (Incharge), ESI Corporation, clarified, based upon then existing situation, that "...the policy of the ESI Corporation not to cover the workers engaged by the construction agency who belong to the unorganised sector due to the peculiar characteristics of the construction industry and the peculiar nature of employment of workers engaged in it. ... Therefore, the existing scheme under the Insurance Act is neither applicable nor suitable for workers engaged in construction sites." It is, therefore, submitted that in view of this clarification/clear decision of non-applicability and/or non-coverage of the Insurance Act and the decision so clarify ought not to have been disturbed. There was no change in circumstances which compelled the respondents to bring in the construction site workers within the ambit of any ESI Scheme and/or the Insurance Act.

5. The petitioners have placed on record a comp