Madras-Chingleput General Workers Union vs Employees' State Insurance Corporation and Pentafour Products Ltd.

A.K. Rajan, J.—This writ petition is for a issue of a writ of mandamus directing the first respondent herein to instruct all their hospitals in the

city of Chennai and Kanchipuram District to accord the benefit of the E.S.I. Scheme to the members of the petitioner union and the families

irrespective of the default on the part of the second respondent.

Petitioner union has filed this writ petition. In the affidavit they have stated that the members of the petitioner union are all working under the

second respondent company in the Auto Division. They are all eligible for E.S.I. Scheme. They are the employees within the meaning of the E.S.I

Act, 1948. The employer has a duty to contribute and also deduct contributions from the employees'' salary and remit it to the E.S.I. Fund to meet

its statutory liability under the E.S.I. Act. The second respondent has failed to comply with the provisions of Section 40 of E.S.I. Act and they also

not furnished the returns as required u/s 44 of the E.S.I. Act. The first respondent Corporation has the power u/s 45A of the E.S.I Act for

determining the contribution and for recovery of the same as arrears of Land Revenue. It is further stated in the affidavit that the families of the

members of the petitioner union are also covered under the E.S.I. Scheme and are also entitled to the benefits thereof and the stand of the first

respondent that the members of the petitioner union and their families are not entitled to any benefit under the E.S.I. Scheme or any treatment in the

hospital because of the default of the second respondent is not correct. Therefore, this petition is filed for issuance of a writ of mandamus as stated

above.

No counter has been filed by the second respondent. The first respondent filed a counter stating that the first respondent Corporation is even

now ready to extend all eligible benefits to the eligible employees as per Section 68 of the Act. But the first respondent Corporation''s effort to

collect the wage details and the coverage information could not materialize due to the closure of the factory and the resultant non-availability of

information about the wages paid/payable to the petitioner employees.

The learned counsel for the second respondent has submitted that the second respondent will extend benefits to all the eligible employees to the

first respondent. He further submitted that the company has been closed in the year 1999 and it is under the BIFR. It is stated that the second

respondent cannot be mulcted with financial implications since it is already under BIFR and it has become a sick company.

This writ petition has been filed to extend the scheme to all the members of the petitioner union who are in the service of the second respondent.

Either in any one of the documents filed along with the writ petition or in the affidavit it has not been stated that the petitioner union has made a

representation to the second respondent for sending the names of the eligible persons to the first respondent or to the first respondent claiming

benefits under the E.S.I. Scheme and that the same has been rejected.

In the absence of any representation on the part of the petitioner union, this Court cannot issue a writ of mandamus as sought for in the writ

petition. At the same time, it is made clear that the petitioner union is at liberty to make a representation to both the respondents for the same relief

within a period of two weeks from today. When such representation is made, the second respondent shall communicate the list of eligible persons

to whom E.S.I Act applies within a period of one month from the date of such representation. The petitioner union is at liberty to approach this

Court in case of any adverse order passed against them.

With the above observation, the writ petition is disposed of. No costs.