ESIC Can't Deny Eligible Insured Person WIP Certificate On The Premise Of The Employer Contributing Or Filing The Returns Late: Delhi HC [Read Judgment]
In a huge relief to the petitioner, Delhi High Court in case of Shivani v ESIC directed Employees State Insurance Corporation to issue "Ward of Insured Persons Certificate" to petitioner's daughter Ms. Ashi so as to enable her to secure admission, in the MBBS course in an Institute affiliated to the ESIC, for the academic session 2019-2020. Pertinently during the pendency of the...
In a huge relief to the petitioner, Delhi High Court in case of Shivani v ESIC directed Employees State Insurance Corporation to issue "Ward of Insured Persons Certificate" to petitioner's daughter Ms. Ashi so as to enable her to secure admission, in the MBBS course in an Institute affiliated to the ESIC, for the academic session 2019-2020. Pertinently during the pendency of the present writ petition, Ashi missed one full academic year of 2018-2019.
Bench of Justice C. Hari Shankar while passing the order observed that the Corporation (ESIC) cannot lay the blame at someone else's door. There is a proper "remedial mechanism" if employer is delaying filing of returns and the Regulations contain many safeguards against truant employers, it noted. Just because employer didn't file returns in time, employee cannot be made to suffer for the same as that would be unreasonable on part of the corporation, court added.
"If an employer fails to contribute within the periods specified under Regulations 31, the Corporation, besides charging interest, may recover damages, too, as mandated under Regulation 31- C. The Corporation's Inspectors have enormous civil and police powers vis-a-vis the erring or lax establishments and employers. Corporation's power covers the entire employer's conduct, including the contributions and returns. For the Corporation's supervision failure, if at all; the employee cannot be left holding the baby, as if it were…"
Background
ESIC had issued "e-pehchan" cards to the petitioner (an insured person within the meaning of clause (14) of Section 2 of the ESIC Act) and her two daughters. Having successfully cleared her Senior Secondary Examination, Ms. Ashi, daughter of the petitioner, appeared in the Undergraduate National Eligibility Entrance Test-2018 (UG-NEET), for the purpose of admission to the MBBS course. Consequent to clearing of the said examination, candidates are also eligible for admission to medical/dental colleges established and administered by the ESIC. A specific Admission Policy, however, stands issued by the ESIC, governing such admissions.
On 26th May, 2018, the petitioner applied, to the ESIC, for issuance, to her, of a WIP certificate. The request was reiterated on 6th June, 2018. On receiving no response, the petitioner applied, on 8th June, 2018, under the Right to Information Act, 2005. The response, from the ESIC to the petitioner, issued on 12th June, 2018, stated that for issuance of the ward certificate as per ESIC guidelines, filing of return of contribution within stipulated time was necessary and non-compliance with same led to denial of issuance of WPC certificate to the petitioner. Aggrieved by the same, the petitioner moved the Court for relief, by means of the present writ petition.
Directions
Court while passing the directions in the case paid due consideration to the fact of petitioner's daughter losing one year of the MBBS/BDS course despite being a meritorious student in the NEET examination only because of non-issuance of WPC certificate which in any case was employer's fault and an issue related to her parents and not to her . Court disposed of the petition with the following directions:
(i)The decision, of the ESIC, to reject the petitioners application, for issuance of WIP certificate in favour of her daughter, as communicated to the petitioner vide the letter dated 12th June, 2018 supra (issued by way of a response under the Right to Information Act, 2005) is quashed and set aside.
(ii) The petitioner is declared as eligible for issuance of a WIP certificate, which shall, therefore, forthwith be issued to her.
(iii) The result of the daughter's counseling, for the 2018- 2019 academic session, shall be announced, and [daughter of the] petitioner shall be granted admission, to the MBBS/BDS course, albeit for the 2019-2020 academic session, on the basis thereof. It shall, however, be without unseating any student who has already been granted admission. In case the college, to which the petitioner's daughter would be entitled to secure admission, as per the result of her counselling in August 2018, does not have any seat available, to accommodate [her], the ESIC shall accommodate her in any other college, run by it, in which seats are available, for which [she] would be allowed the privilege of choice.
(iv) Ex hypothesi, should candidates have been admitted, already, to all seats in all colleges of the ESIC, the petitioner's daughter would be admitted, as per the result of her counselling in August 2018, if necessary by creating a supernumerary seat.
(v) At any rate, the ESIC would ensure that the petitioner's daughter is granted admission to the MBBS course, in one of the colleges run by it.
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