Point of law: Power of the Government to grant exemption cannot be disputed and the Corporation gets a chance by virtue of Section 89 to put forth its views before Government decide on the question of exemption

JUDGMENT :

Mohammed Nias.C.P., J.

This appeal is preferred by the Employees State Insurance Corporation (ESI Corporation), the second respondent in the writ petition filed by the first respondent herein, aggrieved by the judgment dated 8.11.2022 passed by the learned single Judge quashing Ext.P10 order that rejected the request for exemption claimed by the petitioner from the provisions of the Employees State Insurance Act, 1948 ('ESI Act' for short) for the period from 2004 to 2006. Learned single Judge also directed for a fresh consideration of the application claiming exemption by the Government.

2. Briefly stated, the writ petitioner challenged Ext.P10 order rejecting the claim for exemption from the provisions of the Act on the ground that it was in violation of Ext.P8 judgment of this Court dated 11.2.2013, which specifically directed the Government to consider the exemption applications in accordance with the observations contained therein. The reasons for rejecting the application submitted by the petitioner on 10.9.2004 and 11.5.2006 was that the amendment made in the year 2010 to the Act, which was in force when the Government considered the case, did not contain any provision for granting exemption retrospectively. The writ petitioner contended that the amendment brought to Section 91A of the Act is effective only from 1.6.2010 and the same has no impact in the instant case as the applications were filed and once considered well before the amendment and in view of the mandamus issued in Ext.P8 judgment, they were to be considered on the basis of the pre-amended section of the Act. The finding of the Government in Ext.P10 that Section 87 is purely discretionary was attacked by the petitioner as illegal as the applications preferred by them were statutory applications to be considered in terms of the Act. It was the contention of the writ petitioner that by Ext.P5 series, the petitioner Company had provided superior benefits and they were exempted from the provisions of the Act till 2004 and there was no change in any circumstances thereafter to reject their request by Ext.P10 order.

3. The learned single Judge by the judgment impugned in the appeal accepted the contention of the writ petitioner that the applications preferred by them were much prior to the amendment to Section 91 and also relied on the judgment of this Court reported in Kerala educational Society v. The State of Kerala and Others [2011 (4) KLT 318]. Since the application for exemption for the period from 1.9.2004 to 31.8.2005 was made on 10.9.2004 and for the period from 1.9.2005 to 31.8.2006 was made on 11.5.2006 and which were received by the Government on 30.9.2004 and 6.8.2006 respectively, the learned single Judge after relying on the provisions of Section 91A of the Act found that the reasons in Ext.P10 order rejecting the claim is wrong and that the Government had abdicated its functions while rejecting the applications on the basis of the amended provisions of Section 91A as the applications which were filed much earlier ought to have been considered on the basis of the then existing provisions, and accordingly set aside the order impugned in the writ petition and remitted the matter to the Government to decide in terms of the directions in the judgment within a period of two months from the date of receipt of a copy of this judgment.

4. The ESI Corporation had filed this appeal contending that the applications of the petitioner had to be considered in the light of the amended provisions of the year 2010, and that the direction of the learned single Judge is an exercise in futility as the applications could not have been considered under the pre-amended provisions and that the establishment which otherwise would have been under the purview of the Act would be taken away from the ambit of the Act if the exemption is granted by the Government on account of the directions granted in the impugned judgment. Further submission is that no hearing need to