IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD SATURDAY THE THIRD DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO. 31749 OF 2011 Between: P. Ganesh … Petitioner V/s. The Employees State Insurance Corporation, Represented by its Regional Director, Panchdeep Bhavan, Hill Fort Road,] Adarsh Nagar, Hyderabad & 2-Ors. … Respondents Counsel for the Petitioner : Sri Ramaraju Shyamsunder Counsel for the Respondents : Sri B.G. Ravinder Reddy The Court made the following : (Order follows next page) THE HONOURABLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO. 31749 OF 2011 O R D E R : Heard Sri Ramaraju Shyamsunder, the learned counsel for the petitioner and no representation on behalf of the respondents. 2. This writ petition is ﬁled by the petitioner seeking issuance of writ of mandamus, declaring the action of the respondents in not considering the petitioner’s representation dated 16-05-2011 even after the ESI contributions have been deducted from the petitioner’s salary is arbitrary, illegal and against Section 40 (4) and Section 68 of the Employees State Insurance Act, 1948 and consequently to issue a direction to the respondent No.1 to consider the representation dated 16-05- 2011 by extending the ESI sickness beneﬁt to the petitioner and to pass such other suitable orders as this Court may deem ﬁt and proper in the circumstances of the case. 3. The case of the petitioner is that he is the employee of the third respondent-organization. He joined in the third respondent-organization on 10-02-1989 and he was issued the E.S.I. Card bearing I.P.No. 1225355 and later he was issued ESI Unique Card (Pehachan Card) bearing I.P.No. 5201225355 from the date of his joining. It is stated that ESI contributions have been deducted from his salary. For the past two years he was suﬀering with “UMBILICAL HERNIA” and getting treatment from ESI Dispensary. Later on he was admitted in the ESI Model Hospital at Nacharam for the above complaint. For “UMBILICAL HERNIA” operation was conducted on 14-08-2010. He underwent surgery on 16-08-2010 and was discharged on 21-08-2010 with an advice to take rest for 15 days and the ESI leave was extended to that eﬀect. It is stated that the ESI leave was extended from time to time and lastly upto 13-10-2010 and was issued ﬁtness certiﬁcate to report duty on 14-10-2010. His further case is that he was not cured full-ﬂedged and requested the second respondent to extend the ESI leave for some more days, as he was suﬀering from post-operative infection. But the second respondent rejected his request on the ground that the third respondent-organization is neither submitting the ESI Half-yearly Returns nor remitting the ESI contributions of both shares. Hence, the treatment as well as claim for ESI leave payment cannot be extended to him. The matter was represented to the Director of Insurance and Medical Health where the concerned oﬃcials repeated the same that the ESI leave payment cannot be given to the petitioner but also to the other employees. Therefore, he made a representation on 21-09-2010 and 08-10-2010 to follow up for his sickness beneﬁt to his Retail South Oﬃce at Bangalore, as the management failed to submit the Half-yearly returns, challans to the local oﬃce as well as the Regional Director. Further he made a representation on 31-01-2011 to the ESI Regional Director stating that he was not paid a single pie even though his ESI contributions have been deducted from his salary but after his regular visits to the respondents 1 and 2 the ESI authorities agreed for his further treatment and medicines but refused to pay the payment of ESI leave amount (sickness beneﬁt). It is also stated that he was on ESI leave from 14-08-2010 to 13-10-2010 and was issued ﬁtness certiﬁcate to report to duty from 14-10-2010. He was treated as an out-patient in the private hospital from 14-10- 2010 to 13-12-2010 as he was unable to attend his duties and requested the second respondent to issue the ESI leave for the period from 14-10-2010 to 13-12-2010 but the second respondent refused to issue ESI leave for the said period and he was denied for the ESI leave payment and also salary from the management during the period from 14-10-2010 to 31-12-2010, as he had not reported to duty, though submitted medical reports. Therefore, he filed the present writ petition. 4. No representation on behalf of the respondents. 5. Having regard to the nature of the relief sought for in the writ petition, this writ petition is disposed of at the stage of admission. 6. The learned counsel for the petitioner submitted that under section 40 (4) of the ESI Act, 1948 any sum deducted by the Principal employer from wages, under this Act, shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted. He also submitted that as per section 68 of the ESI Act, if any principal employer fails or neglects to pay any contribution which under this Act, he is liable to pay in respect of any employee and by reason thereof such person becomes disentitled to any beneﬁt or entitled to a beneﬁt on a lower scale, the corporation may, on being satisﬁed that the contributions should have been paid by the principal employer, pay to the person the beneﬁt at the rate to which he would have been entitled. If the failure or neglect had not occurred and the Corporation shall be entitled to recover from the principal employer. 7. The petitioner having regard to his issue, he got issued legal notice dated 18-11-2011 for payment of sickness beneﬁt to him for the period from 14-08-2010 to 13-10-2010, 31-03-2011 to 25-04-2011 and to consider the period 14-10-2011 to 13-12- 2011 as ESI leave and to pay the ESI leave payment. But there is no response from the respondents. Therefore, he made a representation dated 31-02-2011, 16-05-2011. Therefore, the present writ petition is filed. 8. Having regard to the facts and circumstances, the representation dated 16-05-2011 wherein the petitioner submitted that he underwent surgery for Umbilical Hernia on 16-8- 2010 in the ESIC Model Hospital, Nacharam, Hyderabad and that he came to know that the Branch Manager, (IMS), ESI scheme, Secunderabad rejected the claim beneﬁt and further treatment stating that the Bata India Limited has not remitted the ESI Contributions and submitted the Half Yearly Contributions. It is further stated in the representation that his ESI contributions were deducted from his salary. Therefore, he is entitled for the sickness beneﬁt for the absence period, future treatment costs including the medical bills. But the said representation has not been disposed of. Therefore, the writ petition is disposed of at the stage of admission, with the following direction: The respondents are directed to consider the representation dated 16-5-2011 said to have been ﬁled by the petitioner claiming sickness beneﬁt etc., and pass appropriate orders on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of the order. 9. With the above direction, the writ petition is disposed of at the stage of admission. In the circumstances, there shall be no order as to costs. ------------------- ----------------- JUSTICE G.CHANDRAIAH 03-12-2011 I s L THE HONOURABLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO. 31749 OF 2011 CIRCULATION No.179 Date:03-10-2011 Court Master: I s L Computer No. 43