IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.03.2022

CORAM:

THE HON'BLE MR. JUSTICE M.S.RAMESH

W.P.No.17948 of 2012

and

M.P.Nos. 1 & 2 of 2012

M/s.Mangalore Ganesh Beedi Works,

Door No.1, Yadavalar East Street,

Melapalayam,

Tirunelvi 627 005.

...Petitioner

vs.

1. Principal Secretary to Government,

Labour and Employment Department,

Fort St. George, Chennai - 600 009.

2. Joint Director,

Sub Regional Office,

Employees State Insurance Corporation,

Tirunelveli.

3. Regional Director,

Employees State Insurance Corporation,

No.143, Sterling Road,

Chennai – 600 034.

... Respondents

Prayer: Writ Petition filed under Article 226 of the

Constitution of India praying for issuance of a Writ of

Certiorari, to call for the records from the file of the first

respondent herein in his G.O. bearing G.O.(D).No.155 dated

17.04.2012 and to quash the above mentioned G.O.(D).No.155 dated

17.04.2012 issued by the first respondent herein.

For Petitioner

: Mr.S.Jayaraman

For Respondents

: Mr.P.Ganesan for R1

Mrs.S.Jayakumari for R2 & R3

ORDER

By consent of both the parties, this writ petition is taken

up for final disposal.

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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

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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