IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2008 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.15980 of 1997 Tuticorin Stevedore's Association No.84-D, South Raja Street, Tuticorin 628 001 rep. By its Administrator-President .. Petitioner Vs. 1. Employees State Insurance Corporation, Regional Office (Tamil Nadu) rep. By its Regional Director. No.143, Sterling Road, Madras 34 2. Employees State Insurance Corporation, Sub-Regional Office (Madurai) rep. By its Deputy Director. 1-B, Old Post Office Street, Madurai 625 002, 3. State of Tamil Nadu rep. By its Secretary to Government, Labour and Employment Department, Fort St. George, Chennai 9. ..Respondents Prayer : Writ Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus to call for the records of the 2nd respondent made in his proceedings, Lr.No.12332/L1/95-15 dated 19.08.1997 and the consequential order of the 1st respondent made in his proceedings No.57/12406/101 INS.II(ME)1997 dated 08.09.1997 and quash the same and forbear the respondents from extending the provisions of the Employees State Insurance Act 1948 and the Scheme made thereunder to the petitioner. For Petitioner :: Mr.Umapathy for M/s. S. Silambanan For Respondents :: Mrs.Jayakumari (R1&R2) Mr.S.Veeraraghavan, AAG (R3) assisted by Mr.Balakrishnan https://hcservices.ecourts.gov.in/hcservices/ O R D E R The writ petition is filed by the Tuticorin Stevedore's Association challenging the order dated 19.08.1997 passed by the 3rd respondent, State of Tamil Nadu in refusing to grant exemption from the provisions of the Employees State Insurance Act, 1948 for the period from 01.01.1983 and also the order issued by the 1st respondent ESI Corporation dated 08.09.1997 calling for records to be produced by the Association. 2. The learned counsel Mr.Umapathy made two submissions i) that the 3rd respondent State is not the appropriate Government for issuing the order under Section 91 of the ESI Act and (ii) that the employees of the Stevedore Association have entered into a settlement u/s 12(3) of the Industrial Disputes Act dated 06.01.1998 before the Assistant Labour Commissioner, (Central) Chennai in which the Port Management agreed in principle to give the status of Port Employees to cargo handling workers and staff members as per certain terms and conditions. Therefore, the ESI Act will not apply as they had become the employees of the Port. 3. In support of his submission, the learned counsel referred to the definition "appropriate government" found in Section 2(1) found under the ESI Act, 1948, which is as follows:- "2. Definitions: In this Act, unless there is anything repugnant in the subject or context, - (1) "appropriate Government" means, in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oil-field, the Central Government, and in all other cases, the State Government" 4. The learned counsel by stressing the word Major Port found under the definition and contended that since the workers are employees of Major Port, the appropriate Government is only the Central Government and not the State Government and therefore, the impugned order is invalid. 5. This argument is fallacious because as could be seen from the records filed by the petitioners themselves it is the petitioner association which made a representation dated 28.02.1995 addressed to the Government of Tamil nadu represented by the Secretary to Government, Labour and Employment Department seeking for exemption under the Act. Even though it is sought to be justified by stating that originally the letter was addressed to the Central Minister for Labour and it was forwarded to the ESI Corporation, and it was under the advice of the ESI Corporation, the petition was addressed to the State Government. 6. Whatever may be the reason by which the letter was addressed, it must be stated that for the purpose of dock workers https://hcservices.ecourts.gov.in/hcservices/ and that too engaged by the Stevedore's Association, the appropriate Government under the ESI Act is only the State Government. The term Major Port does not include all employees who are employed in connection with the Major Port. But on the contrary the term "Major Port" has a restrictive meaning as found in Section 2(M) of the Major Port's Act, 1963 as well as the meaning found in Indian Ports Act, 1908. By no stretch of imagination, the term "Major Port" can be streched to include all the dock labours employed in port. 7. Thereafter, the learned counsel submitted that for the purpose of industrial disputes, the appropriate Government is the Central Government and therefore, for the dock workers who are covered by the I.D. Act, the Central Government is the appropriate government. 8. Again this argument overlooks the definition of the term appropriate Government found under Section 2(a) of the Industrial Disputes Act. In that definition, the dock labour Boards established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 have been specifically included in the definition and for such Dock Labour Boards, the Central Government has been declared as the appropriate Government. 9. Without further digressing on the point, it is worthwhile to note that the larger Bench of the Supreme Court vide its decision Steel Authority of India vs. National Union Waterfront Workers and others reported in (2001) 7 SCC 1 has clarified that what has been covered by the inclusive definition will not apply to all other establishments. If an establishment is not covered by the inclusive definition, then for all other establishments, the appropriate Government will be the State Government. Even otherwise, in the present case, the challenge is only to the order passed by the State Government to which the petitioner Stevedore's Association made an application and therefore, there can be no exception taken to the order passed by the State Government. 10. Thereafter, the learned counsel submitted that the order is bereft of reason and therefore on that score it should be set aside and remanded back to the State Government. This argument cannot be countenanced by this Court. The exemption granted under Section 91 of the ESI Act is not a matter of course and it is based on the discretion vested with the appropriate Government. In the present case the appropriate Government had considered the request made by the petitioner Association had categorically stated that the request is not found acceptable by the State Government. In the matter of exemption, it is not necessary to elaborate any reason and it is enough if the power has been exercised one way or other. 11. In the present case, the State Government had refused to grant exemption on the request made by the petitioner Association. Even otherwise, it is not a case where a joint https://hcservices.ecourts.gov.in/hcservices/ application has been made by the petitioner Stevedore's association with their workmen. It is only a unilateral exercise made by the petitioner association. The grounds raised in their exemption application merely stated that the medical facilities available in the ESI hospital is not comparable to the medical facilities available with the Port Management which is of an high quality. This again overlooks the fact that the ESI Act not only deals with medical facilities, it also deals with several other facilities including Sickness benefit, Maternity benefit, Death benefit, Disability benefit and Funeral expenses. Therefore, unless the Government is satisfied that the umbrella of services provided under the ESI Act are also given to the employers, there will be no prima facie case for considering the exemption application. Even otherwise, the exemption need not be considered solely on the basis of comparable benefits. 12. The last argument that they have entered into 12(3) settlement with the employees Unions before the Conciliation Officer by which the Port in principle had agreed to treat them as Port Employees does not help the case of the petitioner. If their case was that the port employees are not covered by ESI Act, then they will have to make out an application and set forth the circumstances under which their terms of employment have been dealt with by the Port. Even in such cases, it can only have a prospective application. In the present case, the exemption has been sought for from 01.01.1983. Therefore that settlement has no relevance to the case on hand. Under the circumstances, there is no case made out for entertaining the writ petition. The writ petition is accordingly dismissed. No costs. Rg Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Regional Director. Employees State Insurance Corporation, Regional Office (Tamil Nadu) No.143, Sterling Road, Madras 34 2. The Deputy Director. Employees State Insurance Corporation, Sub-Regional Office (Madurai) 1-B, Old Post Office Street, Madurai 625 002, https://hcservices.ecourts.gov.in/hcservices/ 3. The Secretary to Government, Labour and Employment Department, State of Tamil Nadu Fort St. George, Chennai 9. + 1 cc to M/s. S. Silambanan, Advocate, SR No.62480 + 1 cc to Mr. S. Jayakumar, Advocate, SR No.62651 + 1 cc to the Government Pleader, SR No.62567 W.P.No.15980 of 1997 MSM(CO) SR/14.11.2008 https://hcservices.ecourts.gov.in/hcservices/