ARYA VAIDYA SALA Vs. STATE OF KERALA

JUDGEMENT

(1.) The short point to be decided in these writ petitions is the validity of an order passed by the 1st respondent - State of Kerala by invoking the powers under Sec. 87 of the Employees' State Insurance Act, 1948 (for short "ESI Act"). Whether the appropriate Government while passing orders under Sec.87 of the ESI Act should pass a speaking order and whether the exemption orders can be passed based on the date of the application for exemption in the light of Sec. 91-A of the ESI Act are some of the ancillary points to be decided. Since in all these cases, common questions are raised, the narration of the facts in one of the case will be sufficient for resolving the issue. Therefore, W.P.(C) No. 32536/2017 can be treated as the leading case and the exhibits marked in this case is referred in this judgment unless it is specifically mentioned otherwise.

(2.) The petitioner in all these writ petitions is Arya Vaidya Sala Kottakkal, which is a charitable trust constituted as per the will executed by late Vaidyaratnam P.S.Warrier in the year 1939. The petitioner is engaged in the manufacture and sale of Ayurvedic medicines. Besides this the petitioner is imparting ayurvedic treatment by establishing hospitals and is also conducting research in Ayurveda. The head office of the petitioner is situated at Kottakkal and the petitioner also has branches at different parts of the country. The petitioner is employing about 2500 employees including temporary, casuals and Doctors attached to its hospitals and branches. The service conditions of the workmen of the petitioner are governed by the certified standing orders and long-term settlements entered into between the management and the trade unions regularly. As per the referendum of trade unions conducted in terms of the settlement the petitioner has recognized respondents 3 to 6 namely Kottakkal Arya Vaidya Sala Workers Federation (CITU), Arya Vaidya Sala Employees Union, Arya Vaidya Sala Mazdoor Sangh (BMS) and Arya Vaidya Sala Workers Union (AITUC) as bargaining agents of the employees of the petitioner.

(3.) The petitioner is exempted from the provisions of the ESI Act by the 1st respondent by invoking the powers under Sec.87 of the ESI Act on year-to-year basis from 1978 onwards during which period the area wherein the petitioner's establishment is located has been brought under the umbrella of the ESI Act. The trade unions of the employees of the petitioner have also represented to the petitioner, the 1st respondent and the 2nd respondent - The Employee State Insurance Corporation, that the employees are satisfied with the benefits provided by the petitioner which according to them is superior to the benefits provided under the ESI Act. They also submitted that they do not want to be covered under the provisions of the ESI Act. The 1st respondent on being satisfied that the employees of the petitioner are in receipt of benefits superior than the benefits provided under the ESI Act, was exempting the petitioner from the provisions of the ESI Act on year-to-year basis, i.e., from 1978 to 2009. Exts.P1 to P29 are the different Government Orders granting exemption to the petitioner from the provisions of the ESI Act.