ORDER

The request of the petitioner herein to grant exemption from the provisions of The Employees' State Insurance Act, 1948, under Sections 87, 88 r/w 91-A for the period between 23.09.2020 and 22.09.2021, has been rejected, through the impugned Government Order (D)No.226, Labour Welfare and Skill Development (L1) Department, dated

09.06.2021.

2. In connection with the claim of the petitioner, I had the occasion to pass a judgment in M/s.Mangalore Ganesh Beedi Works Vs. Principal Secretary to Government, Labour and Employment Department, Fort St. George, Chennai, in W.P.(MD)No.17948 of 2012, whereby, a similar claim for exemption from the provisions of the Employee's State Insurance Act, 1948, by a Beedi manufacturing company was rejected, in the following manner:

“2. The petitioner's request for exemption from the provisions of the Employees' State Insurance Act, 1948, under Section 87 read with Section 91-A for the period between 01.04.2012 to 31.03.2013, on the ground that the Management of the petitioner already have a scheme for Medical Insurance, came to be rejected, through the impugned order dated 17.04.2012, stating that the benefits provided by the ESI Corporation are superior in nature and more beneficial to the employees than the benefits provided by the Management. The claim for exemption based on a comparison of the Management claim as well for retrospective exemption had already came for consideration before this Court in the case of Salem District Consumers Co-operative Wholesale Stores Ltd., Vs. Principal Secretary to Government, Labour and Employment Department & others' in W.P.No.10461 of 2011 dated 17.08.2021, wherein it was held that the Government would be well within its powers to compare the benefits provided by the ESI Corporation and the Management and that retrospective exemption is impermissible. The relevant portion of the order reads as follows:

“........

7. The powers of the Government to grant exemption under Sections 88 and 91A of the ESI Act is a discretionary power. The very language implicated in the provision reveals such a discretion. Likewise, Section 91A of the Act provides that such exemption, if granted, would take effect prospectively. For the sake of clarity, the relevant provisions of Section 88, 91 and 91A are extracted hereunder:-

Section 88 - Exemption of persons or class of persons.

The appropriate government may, by notification in the Official Gazette and subject to such conditions as it may deem fit to impose, exempt any person or class of persons employed in any factory or establishment, or class of factories or establishments to which this Act applies from the operation of the Act.

Section 91 - Exemption from one or more provisions of the Act.

The appropriate government may, with the consent of the Corporation, by notification in the Official Gazette, exempt any employees or class of employees in any factory or establishment or class of factories or establishments from one or more of the provisions relating to the benefits provided under this Act.

Section 91A - Exemptions to be either prospective or retrospective.

Any notification granting exemption under section

87, section 88, section 90 or section 91 may be issued so as to take effect either prospectively or retrospectively on such date as may be specified therein.

8. It cannot be disputed that the powers vested with the Government under Section 88 and 91 is discretionary in nature, particularly, in the light of the word "may" used in Section 88 and 91. In the instant case, we are concerned with the exemption sought for by the petitioner under Section 88 of the Act.

9. It is a settled proposition that while exercising such discretionary powers, the scope of interference by the High Court under Article 226 of the Constitution of India, is very limited. In other words, it would not be appropriate for this Court to issue mandatory directions to the Government to exercise such a discretion. It is also a settled proposition that such disc