The court ruled that special incentives during the pandemic should not be considered part of wages for determining eligibility under the ESIC Covid-19 Scheme.

J U D G M E N T

GIRISH KATHPALIA, J.:

1. This writ action brought under Articles 226 & 227 of the Constitution of India seeks issuance of appropriate writ/order/direction/declaration in the nature of certiorari, mandamus, quo warranto or any other appropriate writ/order/direction in the nature thereof for declaring the action of respondent no.1 pertaining to not giving benefit of relief under ESIC Covid 19 Scheme to the petitioner and for directing grant of the same to her. On issuance of notice, the respondent no.1 Employees’ State Insurance Corporation Ltd. and respondent no.2 employer of the now deceased husband of the petitioner entered appearance through counsel. Both W.P.(C) 16407/2022 Page 1 of 9 pages GIRISH Signature Not Verified D Di Ng :i t ca =l Iy N s , i og =n He Id G b Hy C G OIR UI RSH T OKA F T DH EP LA HL I,I A ou =DELHI HIGH COURT, 2.5.4.20=8401dd889b27a77b2f65fe4afec45569af3962c6fb48 KATHPALIA 3 se5 rd ia4 l3 N5 uf m97 b6 e2 r6 =c Da 3cc Ea 8, 6 p 7o 9s 6t 4a 5lC 1o Ed Ce 4= 51 C1 00 70 B0 53 D, 1s 5t= 5D 70E 9L 9H 6I, B 40F80CB Digitally Signed D D2 atE eE :E 26 00 24 40 .12 1C .4 08 87 09 96 :45 7FF :08 80 -1 0E 82 '06 0F 'A, cn=GIRISH KATHPALIA respondents filed reply/counter-affidavit and after completion of pleadings, I heard learned counsel for both sides.

2. Succinctly stated, circumstances leading to the present case, as culled out of rival pleadings are as follows.

2.1 Shri Om Prakash Raturi (hereinafter referred to as “the workman”), the now deceased husband of the present petitioner was employed during his lifetime with respondent no.2, his last drawn gross salary being Rs. 19,535/- and special incentive of Rs. 2,674/- in June 2020. The workman succumbed to Covid-19 on 01.07.2020. Since the workman during his lifetime was insured with respondent no.1/ESIC, after his death, the petitioner filed before respondent no.1, Claim Form dated 30.12.2021 along with the requisite affidavit, seeking benefit of relief under the ESIC Covid-19 Relief Scheme (hereinafter referred to as “the Covid Scheme”). But after considering the Claim Form of the petitioner, the Assistant Director (Benefit), ESIC rejected the claim vide letter dated 24.05.2022 on the ground that the workman did not fall within the meaning of the expression “employee” under Section 2(9) of the Employees’ State Insurance Act. After obtaining a certificate dated 19.07.2022 from respondent no.2 to the effect that the workman was drawing a salary of Rs. 19,585/- per month at the time of his death, the petitioner submitted a fresh request for benefit of the Covid Scheme vide letter dated 22.07.2022. But that fresh request also was rejected by respondent no.1 vide letter dated 29.08.2022 on the ground that in addition to the salary, the workman was also being paid a sum of Rs.2,674/- per month towards incentive, thereby making his monthly salary to be more W.P.(C) 16407/2022 Page 2 of 9 pages GIRISH DSi ig gin taa lt lu yr Se i gN no edt Verified KATHPALIA DD24sEDe6.3iN a5 rg 05 ti.:4 ai e4 ftc 9l. :a 02 N = 7 2l 20I u6 0yN C=2m 2 4s,86 4io 8bg 4c .= 17e0an 19H r1ce = .6cd 0IdG 5Dad 8 b , FH 3 8p 0Fy E 8 9C 8o 8G 9 :0O s 46bI t 1R 77U a2 EI :9lR7 3S C 26H aT 36o47 FO d -K 57 0Ae1AFb 8,=E T '2D c01CH f nE 0614P =L '505AH Gf0CLI I00, RI 3Aoe 7IS,4u B s Ha 5= tf =DD KeD1AcE4 5EL T5 5LH HH5 7I P 6 0H I A,9 9 I LGa 9If 6AH3 B 9C 46O 02 FUc 86R 0fTb C,4 B8 D3 25 Ed E than Rs. 21,000/- and consequently the petitioner was held not entitled to benefit under the Covid Scheme. By way of the present petition, the petitioner has assailed that decision of respondent no.1.

2.2 In its reply to the writ petition, the respondent no.1 ESIC admitted that the workman passed away on 01.07.2020 due to Covid and pleaded that at the time of his death, the workman was drawing salary beyond the wage limit prescribed under Section 2(9) of the ESI Act as reflected from his salary slip, so benefit of the Covid Scheme could not be granted to his dependent. The respondent no.2 employe