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2023 DIGILAW 27 (ORI)

Upali Aparajita Lenka v. Union of India

2023-01-10

ARINDAM SINHA

body2023
JUDGMENT Arindam Sinha, J. - Mr. Jena, learned advocate appears on behalf of petitioners and submits, they are legal representatives of Sanjay Kumar Nayak, since deceased on 20th June, 2021. He draws attention to annexure-10 being official document for Covid-19 death, issued in name of the deceased by Government of Odisha, Department of Health and Family Welfare. 2. Inspite of the above, by impugned writings, both dated 2nd March, 2022, claim for dependant benefit under Covid-19 relief scheme of Employees' State Insurance Corporation was not accepted, alleging death occurred 65 days after the deceased had tested Covid-19 positive, more than the scheme prescribed period of 45 days. 3. On query from Court Mr. Jena draws attention to annexure-2 being document dated 13th October, 2021, which is report of RT-PCR test that was conducted on the deceased. The sample was drawn on 16th April, 2021 and report made on 13th October, 2021, saying that result was positive. However, in the meantime on 20th June, 2021, the COVID-19 infected person died. He reiterates that by official document for COVID-19 death issued on 19th December, 2021, the deceased Sanjay Kumar Nayak was certified to have died due to COVID-19. 4. With reference to the scheme presented to both Houses of Parliament on 3rd August, 2021, he draws attention to clause XI(I)(iii)(d) and submits, the sub-clause is a guideline regarding implementation of the scheme. It cannot be resorted to by the corporation to deny the benefit to his clients. 5. Mr. Ray, learned advocate appears on behalf of the corporation and submits, extent guidelines provided for 45 days after testing COVID-19 positive, during which occurrence of death entitles the dependants to the benefit. He too relies on clause XI(I)(iii)(d) in the scheme to submit, such is the effect of it. The scheme was placed before Parliament as formulated and required under section 97 in Employees' State Insurance Act, 1948. No modification thereto was made by Parliament. His client is bound by terms in the scheme and has acted accordingly in not being able to accept claim of petitioners. 6. Mr. Parhi, learned advocate, Deputy Solicitor General appears for Union of India. 7. Mr. Jena in reply draws attention to notification dated 11th August, 2021, made by the corporation, as published in Gazette of India Extra-ordinary to submit, the notified scheme does not contain the sub-clause that was there in the scheme placed before Parliament. 6. Mr. Parhi, learned advocate, Deputy Solicitor General appears for Union of India. 7. Mr. Jena in reply draws attention to notification dated 11th August, 2021, made by the corporation, as published in Gazette of India Extra-ordinary to submit, the notified scheme does not contain the sub-clause that was there in the scheme placed before Parliament. Hence, in any event, the corporation cannot rely on the sub-clause. 8. For purpose of dealing with the controversy, the sub-clause relied upon is required to be and is reproduced below. 'XI(I)(iii)(d). There may be cases of death even after recovery from COVID-19 and discharge from hospital. In such cases, if the death results within 30 days of recovery and discharge from hospital, then the case shall be decided on recommendation of a Medical Board. In cases where the date of recovery from COVID-19 cannot be ascertained for want of COVID-19 negative certificate, the Post COVID death up to 45 days after testing COVID-19 Positive shall be considered for relief under the scheme.' (emphasis supplied) 9. Notification dated 11th August, 2021, relied upon by Mr. Jena, is, as aforesaid, notification at instance of the corporation itself. It cannot be taken to be the scheme notified as modified and approved by Parliament. The scheme was presented to both Houses of Parliament, also as aforesaid on 3rd August, 2021. The notification is dated 11th August, 2021. Sub-section (4) in section 97 allows for a total period of 30 days, while Parliament is in session, for it to deliberate on the scheme. Clearly that time period was not exhausted for the notification to be relied upon as the scheme notified and approved by Parliament. 10. Official document for COVID-19 death issued on 19th December, 2021 says that the document was issued in compliance to the Hon'ble Supreme Court judgment dated 30th June, 2021 in W.P.(C) no.5339 and W.P.(C) no.554 of 2021. It certifies that the person, Sanjay Kumar Nayak, who died on 20th June, 2021, did so due to COVID-19. On the other hand there is RT-PCR report dated 13th October, 2021, in respect of sample collected on 16th April, 2021 from the person, since deceased saying that it was tested positive. It certifies that the person, Sanjay Kumar Nayak, who died on 20th June, 2021, did so due to COVID-19. On the other hand there is RT-PCR report dated 13th October, 2021, in respect of sample collected on 16th April, 2021 from the person, since deceased saying that it was tested positive. Based on the date of sample collection there has been reckoning made by the corporation to say that death thereafter on 20th June, 2021 was beyond 45 days and hence, the deceased not covered under the scheme. 11. Materials on record do not disclose whether there was any modification made by Parliament to the scheme presented to both Houses of it on 3rd August, 2021. Above reproduced relied upon clause says, inter alia, in cases where the date of recovery from COVID-19 cannot be ascertained for want of COVID-19 negative certificate, the post COVID death up to 45 days after testing COVID-19 positive shall be considered for relief under the scheme. 12. It is clear that the contingency sought to be addressed by the sub-clause was absence of negative certificate, after having tested positive and before death, for the 45 days period to take effect as eligibility criteria of entitlement to relief under the scheme. This guideline is not applicable in case of petitioners claiming the relief since, though there was no negative certificate in respect of the deceased but death of the deceased was officially certified as due to COVID-19. 13. The writ petition is allowed and, impugned letter dated 2nd March, 2022, copies whereof are annexures 12 and 14 in the writ petition, set aside and quashed. There shall also be order in terms of prayer II. 14. The writ petition is disposed of.