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Heard Mr C Anil Kumar learned Counsel for the petitioner, and Ms Karishma, holding for Mr Thomas Mathew Nellimoottil, learned Standing Counsel for the respondents.
2. The petitioner has been engaged in the packing and supply of beedis. The petitioner is covered under the provisions of the Employees' State Insurance Act 1948 (for short, 'ESI Act').
2.1 The petitioner has filed this writ petition impugning Exts.P9 and P11, whereby the petitioner's application dated 12.03.2014 seeking exemption from the provisions of the ESI Act to its establishment for the period from 30.05.2009 to 29.05.2010, 30.05.2010 to 29.05.2011, and 30.05.2011 to 29.05.2012 has been rejected.
3. Section 87 of the ESI Act empowers the appropriate government to grant exemption to a factory or establishment or class of factories or establishments from the applicability of the provisions of the ESI Act and Rules made thereunder, if the
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Government is of the opinion that the employer is offering better or similar benefits to its employees than provided under the ESI Act and Rules/Schemes made thereunder. Section 87 of the ESI Act on reproduction, reads as under:
"87. Exemption of a factory or establishment or class of factories or establishments
The appropriate government may, by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment or class of factories or establishments in any specified area from the operation of this Act for a period not exceeding one year and may from time to time by like notification renew any such exemption for periods not exceeding one year at a time.
PROVIDED that such exemptions may be granted only if the employees in such factories or establishments are otherwise in receipt of benefits substantially similar or superior to the benefits under this Act:
PROVIDED FURTHER that an application for renewal shall be made three months before the date of expiry of the exemption period and a decision on the same shall be taken by the appropriate Government within two months of receipt of such application.
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3.1 The ESI Act is beneficial legislation to protect the interests of workmen who do not have equal bargaining power with Management in factories or establishments. The appropriate Government may grant an exemption for a period of one year and thereafter for each successive year if it finds that the employer is offering better or equal benefits to its employees than are provided under the ESI Act and the Scheme made thereunder. By way of clarification, Section 91A, which bars granting exemption retrospectively, was inserted in the ESI Act with effect from 01.06.2010.
4. In the present case, the petitioner moved an application in 2014 seeking exemption for 2009-10, 2010-11, and 2011-12. Even otherwise, the employer does not have the right to seek an exemption. It is the discretion of the appropriate Government to grant or not to grant the exemption, considering the entirety of the facts and circumstances of the case. By not granting exemption, an employer is not prejudiced in any manner because he has to
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offer better benefits than provided under the ESI Act to seek exemption from the applicability of the provisions of the ESI Act. The employee have not come before this Court against the order impugned herein, and the employer does not have the right to seek exemption, as it is the discretion of the Government which may or may not be exercised in appropriate cases.
Therefore, I find no substance in this writ petition; the orders impugned do not suffer from error or jurisdiction, and they are not bad in law. Therefore, the writ petition fails, which is hereby dismissed. All Interlocutory Applications as regards interim matters stand closed.
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DINESH KUMAR SINGH
JUDGE
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BY THE PETITIONER TO THE 1ST RESPONDENT
P11- TRUE COPY OF THE ORDER NO. 7630/B-3/2014/LBR
DATED 4.5.2015 ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER