Sec. 97 (2A) of the ESI Act, 1948: Why was it inserted?

It is very essential for the bureaucrats to go by law. Not everything they do becomes lawful just because they are in power.

The purpose for which Sec. 97 (2A) was inserted in the ESI Act, is to be understood before attempting at nullifying its effect.

The following application is sent to the Hqrs. Office of the ESI Corporation under the RTI Act, 2005:

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                  Sub: Amendment to ESI Act – Insertion of Sec. 97 (2A) – copy of Agenda and                                    Minutes – requested.

Sir,

I would like to state that the provisions under Sec. 97 (2A) of the ESI Act, 1948 were not in the original Act of 1948. They were inserted later, through the Amendment Act 53 of 1951 (and brought into existence from 06.10.1951), while Sec. 97 (3) of the said Act was part of the original legislation enacted in the year 1948. . As the supreme body of the ESI Corporation had come into existence immediately after the enactment of the Act in 1948, this amendment of 1951 through Sec. 97 (2A), had, obviously, been made at the behest of the said supreme body, the ESI Corporation, which had deliberated on the need for such a provision under Sec. 97 of the parent Act.

I, therefore, request you to kindly provide me with the following information under Sec. 6 of the Right to Information Act, 2005.

  1. Kindly provide me with the copies of (1) the Agenda and (2) the Minutes of the meetings of the Standing Committee in which the details explaining the need for inserting Sec. 97 (2A) in the ESI Act, 1948 had been placed before the Standing Committee and its approval obtained.
  2. Please provide me with the copies of (1) the Agenda and (2) the Minutes of the meetings of the ESI Corporation in which the details explaining the need for inserting Sec. 97 (2A) in the ESI Act, 1948 had been placed before the ESI Corporation, the supreme body of the organisation, and its approval obtained.

I have paid Rs. 20 by means of IPO, (Rs. 10 being the fee payable under the RTI Act and the remaining Rs. 10 being the cost of photocopying the required documents). I undertake to pay extra charges for photocopying if advised to do so when the pages to be supplied are more than five.

Yours faithfully,

(R. Natarajan)

 

 

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Labour Code on Social Security 2.0 : Conference on Building and other Construction Workers at Vijayawada – August 2019 !

The Labour Code on Social Security 2.0 released in March 2018 does not show that the central bureaucrats who prepared it developed any empathy with the  working population, even after they received inputs from the people with reference to their earlier code released in 2017. That they are acting as per the directions of some power-brokers becomes clear from the directionless draft.

Those power brokers pretend that they are working in the interests of the employers. They do not even pretend that they are interested in the welfare of the working class. As brokers they are interested only in themselves. And, the bureaucrats who do not apply their mind before acting at the behest those power brokers and have prepared this second version of the labour code on social security, are creating chaos in the nation. A team of power brokers feel that the social security system has been leased out to it.

Let them know that Sec. 1 (4) & 1 (5) of the ESI Act are intended to cover all the segments of the working population , tackling all problems with practical solutions, gradually. This Labour Code on Social Security is totally unwanted and unnecessary.

 

A responsible society would not keep such a law on record .

Vijayawada Presentation 2019

 

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ESIC on the wrong path, now: The middle management misleads !!

The speed with which the ESIC moves ahead to hold the DPC meetings for promotion to the posts of Senior Nursing Officers (by still calling them as Nursing Sisters) and Assistant Nursing Superintendents is worrisome. It is a clear violation of law on the subject, especially when the UPSC has assumed jurisdiction over that issue on 05.07.2019. When the authorities of a public organisation do not care for law, it is the citizenry which has to step in. A letter is, therefore, written to the UPSC inviting its attention to the ongoings in the ESIC. The powers vested in a Constitutional Body cannot be exercised by the Statutory Body. It is ultra vires and unlawful.

All those interested in Rule of Law in the ESIC may just copy the post and forward it to the UPSC. 

Serving employees to stay away please.

========================================================

The letter sent to the UPSC on 31.07.2019 is reproduced here:

31.07.2019

To

The Secretary,
Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi 110069.
email: secyoffice-upsc@gov.in

 

Sub: Recruitment Regulations – Promotion to the post of Senior Nursing Officers – Group B –  usurping the role of the UPSC – by the ESIC – complaint – lodged.

 

Ref: 1.     Memo No. A/12/11/1/2017-Med. VI dated 04.05.2017 of the Hqrs. Office, ESI Corporation, New Delhi.

2.     Letter No. 3/12 (8) /2019 – RR dated 05.07.2019 of the Union Public Service Commission addressed to the Director General, ESI Corporation, New Delhi.

3.     Letter No. A/11/11/12/2018-Med. VI. dated 12.07.2019 of the Hqrs. Office, ESI Corporation, New Delhi.

Sir,

1. I submit that the Office of the ESI Corporation had published, in its website, a Memo dated 04.05.2017 inviting comments from stakeholders, on the draft Recruitment Regulations for the posts of Staff Nurse, Nursing Sister and Assistant Nursing Superintendent in the ESI Corporation. Thereafter the draft RRs had, obviously, been sent to the DOPT and then to the UPSC for their approval and concurrence.

2. The UPSC has, recently, conveyed its concurrence to the aforesaid Recruitment Regulations in its letter dated 05.07.2019. In all probability, that letter of the UPSC would have reached the Hqrs. Office of the ESI Corporation, at least before 9th or 10th of July 2019.

3. As per these Recruitment Regulations, approved by the UPSC, promotion to the posts of Assistant Nursing Superintendent and Senior Nursing Officer from the respective feeder cadres can be made only by the UPSC. When this provision has come into effect already, on receipt of the UPSC’s letter dated 05.07.2019, and the UPSC has, already, assumed jurisdiction over the promotion of the Nursing Officers to the cadre of Senior Nursing Officers, the Hqrs. Office of the ESI Corporation has attempted to unlawfully meddle with the procedure and usurp that jurisdiction of the UPSC by making vigorous efforts to hold DPC at its level itself, in-house. This becomes, clearly, evident from the letter dated 12.07.2019 sent by the Assistant Director (M.A) of the Hqrs. Office of the ESI Corporation to the Regional Directors of the ESI Corporation. Hence, this complaint.

ESIC letter 12 07 2019

4. I submit that the law on the subject is that the Recruitment Regulations pertaining to any post in the ESI Corporation come into existence immediately after they were framed / amended with the approval of the competent authority. The authorities of the ESI Corporation cannot, therefore, postpone arbitrarily, the date of enforcement of the approved Recruitment Regulations, by citing the non-publication of the said Regulations in the Gazette. Because, Sec. 97 (2A) of the ESI Act, 1948 mandates that

“The condition of previous publication shall not apply to any regulations of the nature specified in clause (xxi) of sub-section (2)”.

Sec.97.2. (xxi) is about the rule-making power of the ESI Corporation regarding the conditions of service of the employees of the ESI Corporation and I reproduce below the concerned Sec. 97 (2) (xxi) of the ESI Act, 1948 for your kind ready reference:

“(xxi). the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the Director-General and the Financial Commissioner”.

5. It would thus become clear that the Recruitment Regulations for the post of Nursing Officers, Senior Nursing Officers and others in the same cadre, as approved by the UPSC on 05.07.2019 had, already, come into effect on the date the Hqrs. Office had received that communication. Although the UPSC had mentioned that it must be published in the Gazette within 10 weeks, that does not and cannot have the overriding effect on Sec. 97 (2A) of the ESI Act, 1948, which is a statutory provision. Moreover, what the UPSC had done by mentioning the phrase “10 weeks” was to remind, in a routine manner, every department of the need for publication in the Gazette. The UPSC had not, apparently, been aware of Sec. 97 (2A) of the ESI Act, 1948, which the ESIC authorities knew, very well.

6. In the context, I would like to invite your attention to Sec. 95 which deals with the rule-making power of the Central Government and Sec. 96 of the ESI Act which with the rule-making power of the State Governments. Sec. 95 (3) says that the

“Rules made under this section shall be published in the Official Gazette and thereupon shall have effect as if enacted in this Act”. 

Likewise, Sec. 96 (2) says that the

“Rules made under this section shall be published in the official Gazette and thereupon shall have effect as if enacted in this Act”.

Similarly, Sec. 97 (3) also says that the

“Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act”.

7. However, Sec. 97 (2A) is in sharp contrast to these provisions. The condition of previous publication has, categorically and consciously, been dispensed with, as per this sub-section, in respect of Recruitment Regulations, among others, mentioned in Sec 97 (2) (xxi). In short, the condition of previous publication shall not apply to the Recruitment Regulation.

8. The sum and substance of these facts is that the Recruitment Regulations approved by the UPSC and conveyed to the Director General of the ESI Corporation on 05.07.2019 have already come into effect, even without their being published in the Gazette.

9. It is only that RR which had been approved by the UPSC and sent to the ESIC on 05.09.2017 which can be called as the “Existing Recruitment Regulations” as on 12.07.2019. In that event, there can be no role for the Regional Directors of the ESI Corporation to convene DPCs for the posts of Senior Nursing Officers and Assistant Nursing Superintendents. The direction of the Assistant Director (MA) in his letter dated 12.07.2019 addressed to the Regional Directors of the ESI Corporation to “hold DPCs of various Nursing ….posts as per existing Recruitment Regulations of the post concerned” is, therefore, patently unlawful and ultra vires.

10. I submit that there can be no difficulty, at all, for the ESIC to get the promotions done through UPSC, to the posts of Senior Nursing Officers and the Assistant Nursing Superintendents. The very important fact is that the DOPT has, after elaborate consultation with the UPSC, issued its O.M. No. AB-14017/79/2006-Estt. (RR) dated 06.09.2007 laying stress on the existing RRs until they are formally amended. It is apparent that the middle management of the ESI Corporation has not placed all the relevant facts in the right perspective before the higher authorities of the ESIC in its desire to hurry up their unlawful action process and hush up the legitimate role provided in it for the UPSC.

11. I, therefore, request you to kindly intercede and ensure that the promotions to the posts of Senior Nursing Officers and Assistant Nursing Superintendents in the ESI Corporation are made as per law only by the UPSC, as per the existing Recruitment Regulations, which had been approved by the UPSC on 05.07.2019. The action of the Assistant Director (MA) of the Hqrs. Office, ESI Corporation, in having directed the Regional Directors to hold DPC as per the “existing” RRs is not correct, as he is unlawfully usurping the role of the UPSC and is preventing the UPSC from discharging its legitimate duty, when it has assumed jurisdiction in the matter of promotion of these Nursing personnel, as per the really “existing” RRs which came into existence after its approval by the UPSC and receipt by the ESIC.

12. I understand that the UPSC is going to recruit Nursing personnel taking into account not only the vacancies in the ESIC but also in other departments of the Central Government Hospitals. The UPSC takes up such assignments only when the indent is large. And, it was because the year-wise vacancies were small, the UPSC had refused, in the year 1975, to take up the work of recruitment of Insurance Inspectors in the ESIC and advised the ESIC to keep that cadre in Group ‘C’. That situation continues till date in the ESIC. But, the Nurses cadre in the ESIC is sufficiently large and the UPSC can club the vacancies in the cadre together with the vacancies in the RML Hospital, AIIMS, and Safdarjang hospitals and others and conduct examination for all the vacancies together and streamline the recruitment more professionally.

13. Besides, a Statutory Body cannot exercise the power taken away from it and vested in a Constitutional Body. But, the ESIC is trying to exercise the power vested in the UPSC. This letter is, now, written by me to the UPSC, because, in the given circumstances when the middle management of the ESIC is misleading the top management, only the UPSC’s intervention can provide instant remedy.

14. There is another course open to the public to get remedy through the court of law too. But, the ESIC, as a rule, does not file counter in such PILs in time, unless there is stay. In an issue involving Rs. 10,000 crores, when the Cabinet Secretary and the Secretary, Ministry of Labour have filed counter-affidavits, the Comptroller and Auditor General of India and the Director General of the ESIC have not filed counter-affidavits for the past two and a half years The case numbers are W.P. 33775 of 2016 & W.P. 35284 of 2016 before the Hon’ble High Court of Madras at Chennai.

15. But, I submit that the legal remedy through Court of Law will, necessarily, be resorted to if the ESIC tries to exclude the UPSC, through amendment to Sec. 17 (3) of the ESI Act, 1948 and go back to its original system of recruiting Nursing personnel at its level itself. But, until such amendments are made in the ESI Act, it is only the UPSC which should convene the DPCs for promotions and direct recruitments, as per the existing Recruitment Regulations approved by the UPSC on 05.07.2019. Its powers cannot be allowed to be usurped by the officials of the ESI Corporation.

16. I, therefore, request you to kindly intercede and stop the officials of the ESIC from going further with their misadventure of promoting Nurses, in-house, with reference to Para 4 of the letter No. A/11/11/12/2018-Med. VI. dated 12.07.2019 of the Assistant Director (M.A) of the Hqrs. Office, ESI Corporation, New Delhi.

Yours faithfully,

Encl: Letter dated 12.07.2019of the Hqrs, office, ESIC.

(R. Natarajan)

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ESIC on the right path, now: Nurses lead! Let the Doctors follow!!

Medical Officers in the ESIC

1988

For more than six months, there was a flurry of activity in the medical administration division. A powerful lobby from inside and outside was working to amend the Recruitment Regulations to wean away from the UPSC the power of recruitment of medical officers in the ESIC, in spite of resistance to it from the Director General, Mrs. Kusum Prasad.

Although the ESIC was made an autonomous body, Sec. 17 of the ESI Act, 1948 mandated that all the Group ‘A’ and ‘B’ posts would be filled up only in consultation with the UPSC. But, the lobby that worked succeeded and the amendment to Sec. 17 (3) came, along with many others in 1989, excluding the medical posts in Group A and Group B, i.e., from the posts of IMO.Gr. II and above, from the purview of the UPSC.

In the year 1991, during her visit to Chennai,  the same Director General said that the experience proved that the amendment was wrong.

2002 and 2003.

About 300 posts of IMOs were required to be filled by Direct Recruitment. The political masters wished to have their way with the selection of IMO Gr. II. They did not want written test but only interview. But, it was resisted successfully by the two successive CEOs of the ESIC. The recruitment of about 300 IMOs got delayed to some extent because of the political interference. Selection was, ultimately, done by holding preliminary written screening test. This was an unnecessary problem those CEOs had to encounter, because of the unwarranted amendment made in 1989.

These problems would not have arisen, if only the UPSC had continued to recruit the medical officers as was in position upto 1989.

2009.

An amendment was made, in the year 2009, to Sec. 17 and the very sub-section 17(2)(a) was not made applicable to the “appointment of consultants and specialists in various fields appointed on contract basis”.

Sec 17

The terms, ‘consultants’, ‘specialists’ and ‘various fields’ were not defined anywhere in the amended Act.

The terms of contract were not codified and the central government model contracts in health sector could not be cited as models, because of the exclusion of Sec. 17(2)(a) in toto.

The approval for this amendment was obtained from the Parliament giving impression to the Members of Parliament that these consultants and specialists were required for better delivery of super speciality services. Para 4 (viii) of the ‘Statement of Objects and Reasons’ that accompanied the Bill for the said amendment said that the amendment was intended to enable the ESIC “to appoint consultants and specialists on contract without referring the matter to the central government for better delivery of super-speciality services”. The Members, therefore, believed that the requirement of the ESIC was for physicians and surgeons to provide medical treatment on super speciality and voted for the amendment, relying on the Statement of Objects and Reasons.

Bill Reasons

But, in the amendment, i.e., in the newly inserted proviso to Sec.17 (2) (a), the important phrase “super-speciality services” had, simply, been omitted. Now, the amended Act permitted appointment of ‘consultant’ or ‘specialist’ in ‘various fields’ for any purpose. What is more, it had given carte-blanche to do anything without being restrained by the provisions of Sec.17 (2) (a) too.

If only the ‘specialists’ and ‘consultants’ were required for super-speciality services, the said proviso ought to have been inserted below Sec. 17 (3) only. But, that was not to be.

And, what was made of that provision later is beyond the scope of this post.

But, these problems would not have arisen, if only the UPSC had continued to recruit the medical officers as was in position upto 1989.

2015.

ESIC amended the Recruitment Regulations for the Medical Teaching Faculty posts in its medical colleges on 03.07.2015.

The posts of ‘Associate Professor’ are required to be filled by promotion failing which by direct recruitment or deputation or absorption or short-term contract.

The posts of ‘Director Professor’ are required to be filled by promotion failing which by deputation.

The posts of ‘Professor’ should be filled 50% by promotion failing which by deputation, absorption or short term contract and the remaining 50% by direct recruitment.

When there is such a ‘failing which’ clause, it necessitates the authorities to resort to that primary mode of recruitment-process first and then, if the vacancies could not be filled by that primary mode, to go for the secondary mode.

The authorities cannot choose the secondary modes by, arbitrarily, ignoring the primary mode.

2019

Advertisement is issued by the Dean of the ESIC Medical College, K.K.Nagar Chennai inviting candidates for walk-in interview on 17.07.2019 for appointment to the posts of Associate Professor, on contractual basis.

How could the post of Associate Professor for which clear-cut Recruitment Regulations are there, be filled on contractual basis?

Can any authority violate the RR in such a brazen manner?

These problems would not have arisen, if only the UPSC had continued to recruit the medical officers as was in position upto 1989.

Nurses in the ESIC

2017

The ESIC publishes in its website a Memo dated 04.05.2017 a draft Recruitment Regulations for the posts of Staff Nurse, Nursing Sister and Assistant Nursing Superintendent. This draft invites comments also within 30 days. Thereafter the draft RRs are sent to the DOPT and then to the UPSC too.

The salient features of the amendment are:

  1. The posts in the Nursing cadre are re-designated and re-classified as Nursing Officer ( Group B ), Senior Nursing Officer (Group B) and Assistant Nursing Superintendent (Group A).
  2. The recruitment process in respect of all these posts go to the UPSC.
  3. The DPC will be conducted by the UPSC and a member of the UPSC will be the Chairman of the DPC.

 05.07.2019

The UPSC has given its ultimate approval to the RRs vide its letter dated 05.07.2019. The selection process of the posts in the Nursing cadre has, now, been taken over by the UPSC. In fact, the original proposal sent by the ESIC on 04.05.2017 has come out unscathed as could be seen from the UPSC’s letter dated 05.07.2019.

The Recruitment Regulations are framed by the ESIC as a body, for all the posts in the organisation. They are prepared as per the Regulation making power vested in the ESIC as per Sec. 97(xxi) of the ESI Act, 1948. While all other Regulations framed by the ESIC with reference to Sec. 97 (i) to (xx) and Sec. 97 (xxii) and (xxiii) can be brought into force only after they are notified in the Gazette, Sec. 97 (xxi) had been, specifically, exempted from such pre-publication for enforcement, as per Sec. 97 (2A).

Sec 98 xxi

Sec 98 2A

The authorities of the ESIC have to and can enforce it from the very day on which they receive the RRs from the UPSC (in respect of Group A and B posts) or from the DOPT (in respect of Group C and D posts, where necessary, although the DOPT does not insist on its oversight on such RRs in certain circumstances).

New RRs of Nurses have already come into existence.

In the case of the RRs for the posts of Senior Nursing Officers and the ANS, the RRs approved by the UPSC and forwarded to the ESIC on 05.07.2019 have already come into existence, as per law. It is not permissible to argue that these RRs would come into effect only after they are notified in the Gazette.

In order to remove any confusion, it is clarified that the period of ten weeks mentioned in the letter of the UPSC for notifying the RRs in the Gazette is not the time given to the ESIC to, arbitrarily, postpone, for ten long weeks, the date on which these RRs become effective. Sec. 97 (2A) precludes and prevents such bureaucratic arbitrariness.  

The ESIC has, in its letter dated 12.07.2019 taken a decision to convene the DPCs as per the “existing” RRs of the posts in the Nursing cadre.

That is the correct stand. But, that “existing” RR as on 12.07.2019 for the posts of ANS and SNO are only the latest RRs forwarded by the UPSC on 05.07.2019.

Let the power vested in the UPSC, now,  for initiating recruitment process  for the posts of ANS and SNO be exercised only by the UPSC as per the existing RRs, i.e., the RRs received from the UPSC vide their letter dated 05.07.2019.

Let the Region-wise seniority list of Staff Nurses of all the Regions be merged together to prepare an all India seniority list in the cadre of Nursing Officer, which is the feeder cadre for promotion to the post of Senior Nursing Officer. It can be done in the same way it is done for merging the regional seniority lists of Assistants for promotion to the cadre of SSOs at all India level.

Let that seniority list be finalised and sent to the UPSC for initiating selection process at their level to fill up the vacancies in the cadre of Senior Nursing Officers and Assistant Nursing Superintendent.

This is the legal requirement as per Sec. 97 (2A) of the ESI Act, 1948 read with para 3 in the letter No. A/11/11/12/2018-Med. VI. dated 12.07.2019 of the Hqrs. Office.

The stress is on the phrase ‘shall not apply‘ as found in Sec. 97 (2A). It says ‘shall not’. It is mandatory that the ESIC should not wait for publication of the RRs in the Gazette for and before enforcing them. Those RRs sent by the UPSC on 05.07.2019 hold the field today.  This is the position of law. The ESIC Medical Division cannot withhold the RRs sent by the UPSC on 05.07.2019 and hold DPC for the post of ANS and Nursing Superintendent as per the, by now, old and non-existent RRs.

It is time the Doctors followed the Nurses.

Let the recruitment process of IMOs be handed over back to the UPSC.

 

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Shortage of doctors in the ESIC Hospitals: Where did the home-grown PGs go?

The Administration of the ESIC has chosen to transfer large number of IMOs from Bangalore and Chennai to far off places in the North. The reason advanced is that they are surplus medical officers here. But, the fact is that the number of patients has been increasing multifold requiring more medical personnel.  Besides, it is a paradox that while the regular doctors are transferred out, there are many doctors engaged on contract basis and they are allowed to remain.

The doctors transferred are told that they were granted Study Leave “for personal growth” in their “career”. It is also said that the ESIC obliged them and “contributed to their personal growth by granting them study leave”.

But, the fact is otherwise. As per Rule 50 of  the CCS (Leave) Rules, Study Leave is to be granted only “with due regard to the exigencies of public service“. As per Rule 50 (3) of the CCS (Leave) Rules, “Study leave shall not be granted unless it is certified by the authority competent to grant leave that the proposed course of study or training shall be of definite advantage from the point of view of public interests. Moreover, as per a Proviso under the aforesaid Rule 50 (3), a “Medical Officer may be granted study leave for prosecuting a course of postgraduate study in Medical Sciences if the Director-General of Health Services certifies to the effect that such study shall be valuable in increasing the efficiency of such Medical Officer in the performance of his duties.”  It is only when the authority considers that granting Study Leave to a person would be useful and definitely advantageous to the organisation that Study Leave is granted. It is not  and  it cannot be done as a charity.

The ESIC which utilises the services of the Medical Officers who were sent outside on Study Leave, is now transferring them to far-off places in a selective manner. At the same time, something  peculiar had already happened.

The ESIC authorities had, in a fit of frenzy,  set up large number of medical colleges in 2011 and 2012, at a stretch and justified that action before the Court also in the W.P. 12953 of 2015.

Home-grown Post-Graduates 

Those medical institutions were intended to produce PG students and make use of their services for a specified period of service as per the terms of the Bond executed by them.They had to execute a bond to serve the ESIC for specified period of years.

 

But, although the ESIC Medical Colleges had been producing many post-graduates, they were sent out, without their services being used  in the ESIC hospitals, anywhere, across the nation. How many such  Post Graduates churned out by those colleges from the year 2014 onwards were let off without the ESIC utilising their services is not known. But, around 500 were being sent out every year from 2015 onwards. They were, simply, let off.

Strangely, the newspaper Livemint had reported on 16.12.2015 that “the labour ministry has rejected a plan to mandate a Rs. 25 lakh bond on students enrolling in medical colleges run by the Employees’ State Insurance Corporation (ESIC), fearing the move could have been seen as anti-people”. That was really puzzling! For, that was an unlawful decision!

 

What is more? The Livemint reported, “Instead of the bond plan, Kataria said, ESIC will now offer students a 100% placement as soon as they complete the courses. “In 2016-17, we will absorb the 100 doctors graduating from our medical colleges, and by 2019-20, we will absorb 500 of them,” Kataria said. “It’s a 100% placement for our own students in our hospitals.” In that case, all those post graduates should have been posted in the ESIC hospitals. But, that was not done.

If only that bond had been executed, those PGs’ services could have been used by the ESIC as IMO-Gr. II for, at least, five years. Why did the ESIC use the workers money to produce PGs who were not of any use to the organisation, at all? Is that not anti-people?

It is even more puzzling, how the Administration is now transferring the doctors from the existing hospitals and sending them out to places in other states. The lack of knowledge of the local language, which is a prime factor, in the appointment of doctors, has not been taken into consideration at all.

The 2006 Transfer Policy for Medical Officers

It is true that the IMOs of the ESIC are subject to all India transfer liability. But, in the year 2006, a policy decision was taken and circulated too, informing the Medical Officers that inter-regional transfers would be effected only when they get promotion to the Senior Administrative Grade. It is that decision which holds the field till date.

Selective application of all-India transfer liability

Moreover, if at all, there has to be Rationalisation, the Administration should fill up the vacancies in all the centres by transferring all the people everywhere in a cyclical manner  and not just from a few centres in the South to a few centres in the North.

It is a fact that there is patent discrimination by the Administration in the matter of transfer of officials, depending upon their States. It is a long-time anomaly. The transfer policies brought in, in the year 2005, to set right this anomaly and to ensure  impartiality, uniformity, universality and predictability in the matter of transfer of officers have been silently buried and forgotten by the Administration.

Striking the balance between public and private interests in transfers

Hon’ble High Court of Kerala has held that the “right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes, it is more dangerous than other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide the sweet revenge, a desire to get rid of an inconvenient employee...”Asserting that there can a “deceptive innocuousness” in the transfer orders, the Hon’ble Court said, “atransfer can uproot a family, cause irrepairable harm to employee and drive him to desperation.”  {Pushpakara Vs Chairman Coir Board, Cochin 19.12.1977- (1979) ILLJ 139 Kerala)and in llyas Ahmad Vs Station Director, All India Radio, Hyderabad (1979 – 2.5 LR -58, 1979-Slj -592. K. K. Jindal Vs. General Manager, Northern Railway}.

Colourable exercise of power

Hon’ble Supreme Court of India has observed, on 25.8.2003, that “Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out.  The power, like all other administrative powers, has to be exercised bona fide”.  (State of Rajasthan & Ors  Vs. Anand Prakash Solanki –C.A.NO. 6733 OF 2003). If there is shortage of officials / medical officers in one region, the Administration should make it a routine to transfer all the officers everywhere in a cyclical manner and post them everywhere. Holding out the condition of all-India transfer liability only to one section of officers / doctors amounts to selective discrimination, through arbitrary and colourable exercise of power.

“One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer”, observed the Supreme Court in Varadha Rao vs State Of Karnataka And Ors. on 26 August, 1986.

Students are not substitutes 

The ESIC Administration should not make any attempt to show the PG Students as Doctors. Students cannot be shown as substitutes for doctors. Besides, they had not been taken into account to calculate the Sanctioned Strength of medical officers or to arrive at the findings on the so-called Rationalisation, in the hospitals both in the South and in the North.

Double-speak impermissible

An organisation that officially declared some doctors as those belonging to teaching faculty cannot take a different stand stating that it did so just in order to help those doctors to have an impressive CV. That would be a confession in having cheated the MCI. No law permits anyone to approbate and reprobate at one and the same time.

What fairness necessitates

It is only fair that the existing doctor-patient ratio is not disturbed, specially when more and more patients are coming in to these Hospitals for treatment. It is necessary that less number of doctors are not made to take care of more number of patients.

It is only fair that the vacancies, if any, at other places are filled,  not by posting only the doctors from the South but by evolving a uniform policy that applies to all the doctors everywhere.

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Dissent Notes: The Whites in 1911 Vs. The Saffronites in 2017 !

1911:

Sir Hamilton Freer-Smith’s Committee set up by the Government of the UK had given its report on labour reforms and factory law. Subsequently, Indian Factory Labour Commission was set up under the Presidentship of W.T. Morrison of which T. M. Nair was also a member. That committee had to examine the suggestions of the Freer-Smith’s Committee too.

T M Nair

T M Nair report page

Courtesy: M. Anees Chrishti

T. M. Nair had given his Dissent Note when the Report had been given by the Committee to the Government of India, on 17.12.1906. His Dissent Note condemned  the plight of workers in factories and recommended the reduction of hours of work and introduction of other welfare measures.

And, lo and behold, the British Government appreciated his sincere report and it was the contents of his Dissent Note which became the basis of the Factories Act, 1911. Some of his suggestions which had not been accepted in 1911 had been accepted later in 1922 and made law. 

Gilbert Slater in his book, “The Dravidian Element in Indian Culture”, published in 1924, says thus, in Pages 138  and 139 of his book:

TM Nair 3

T M Nair 2

2017:

The present day politicians in power proclaim that they are  bringing out this Labour Code on Social Security as per the recommendations of the Second Labour Commission. But, the fact is that the motive of that Commission was sinister and that Commission did not consist of the representatives of many trade unions of all India level. The broad spectrum of views of all the trade unions  could not therefore be represented in the Commission.

That Dissent Note submitted very honestly by the Member Mr. C.K. Saji Narayanan on 21.05.2002, testify to the fact that it was only he who acted in the interest of working population.

https://flourishingesic.info/2017/05/12/sinister-report-of-the-second-national-commission-on-labour/

But, the politicians in power do not care to consider the issues raised by them.

The traditionally selfish Indian society does not want to spare time to insist on the powers-that-be to explain its stand on the said Dissent Note and enlighten itself about the impending dangers it would face if and when the proposed Labour Code on Social Security comes into force. 

Let the rulers be made accountable for the misadventure they rush into that would destabilise the health-care structure of the entire nation. 

 

 

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Ever-greedy utlra-rich, servile politicians, sheepish ILO and the orphaned working class !

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“The truth is that the State is a conspiracy designed …… to exploit, ……. its citizens”

– Leo Tolstoy

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It was the NDA government which during the period of  Mr. Sahib Singh Verma as the Minister for Labour from 2002 to 2004, started setting up numerous Sub-Regional Offices around the nation, including the bizarre one for Benares with less than 1000 insured persons.

It is the same NDA government now which is closing down the Sub-Regional Offices.

It was the NDA government with the same Mr. Sahib Singh Verma, as the Labour Miniser, which caused creating more and more posts of SMCs and SSMCs everywhere. It is the  same NDA government which abolishes those posts now, in spite of the facts that many SMCs are doing commendable job.

But, this time, the operation-closure of SROs and the Offices of the SMCs is part of the grand design to dismantle the structure of social security organisations under public control, to facilitate the greedy ultra-rich of India to find new business avenues to make crores and crores for themselves at the cost of the poor working class.

It is strange that the Indian politicians so willingly allow themselves to be used by these business-interests to work against the 99% people of the nation. The Oxfam in its  report titled ‘An economy for the 99 per cent’, suggested that “it is time to build a human economy that benefits everyone, not just the privileged few”. But, the politicians in power would not listen. Because, all round development of the nation does not benefit the politicians who happen to be in power.  Nor would a public sector organisation that caters to the social security needs of the people pay hefty donation to the political party in power, while private organisations reward them in numerous ways.

1% wants to corner 80% of the wealth

As of 2015, 1% of the population of India owned 53% of the country’s wealth, as per the report of Credit Suisse (Times of India 14.10.2015).

1 % owns

1% own 53%

 

 

In 2017

As of 2017, the richest 1% owned 58% total wealth in India (The Hindu 16.01.2017), as per the report of the Oxfam.

 

1% owns 58

Now, by dismantling the public-sector social security organisations, the abovesaid 1% could corner another 25% of the nation’s resources. All, in democracy and in the name of democracy.

While the UPA  government saw the resources of the ESIC being frittered away by setting up medical education institutions in a reckless manner, the NDA had, not only joined hands in further exploitation of the ESIC by setting up more medical institutions, but had chosen from 28.02.2015 onwards to further please the ever-greedy ultra-rich by winding up the social security system of the nation, through the Labour Code on Social Security and Welfare.

Democracy means Rule by Debate. But, the manner in which the Indian politicians willingly allow themselves to be manipulated by and for the ultra-rich and bring up a Labour Code by bypassing so many time-tested methods of law-making, will land the nation in misery forever.

ILO is aware of pitfalls but hesitates to call a spade a spade

As for the role of the ILO in the preparation of the said Labour Code on Social Security and Welfare, the less said the better. The authorities of the ILO had not endorsed any of the proposal of the Labour Code. They just gave their guidelines and left the matter at that. The same was the case with the ISSA too. But, the central bureaucrats project it as a completion of the required formality to consult the ILO and ISSA. But, the same ILO, which has, now, lost its opportunity to protect the Indian Labour, from the ill-effects of the proposed Labour Code on Social Security and Welfare,  did not hesitate to criticise India in  in November 2010,  for its notorious informal labour practices. “India has performed poorly in providing social security protection to its people until recently with ‘very high vulnerability’ to poverty and informal labour practices in the world, according to a report released by the International Labour Office (ILO) today” (Times of India – 16.11.2010). In its first comprehensive ‘World Social Security Report’, the ILO has suggested that India has not done enough in the arena of social security protection, which is reckoned as the “human face of globalisation, in line with its fiscal status”. But, when there is opportunity at hand for the ILO to prevent the calamity in the arena of social security in India, the ILO is wishy-washy in its stand. Pity the ILO !

In regard to the importance of the ILO,  the Course material PGDLL of Vardhman University, says, “If the ILO Conventions are seen in the general spectrum of labour conditions, one can imagine the great value and influence they have in moulding the course of social and economic philosophy of the world. The world without their influence and continuance may be a world of perpetual competition, exploitation, inequality and injustice resulting in wars and confrontations. Judged in this perspective, it would be highly relevant to assess the impact of the ILO standards on Indian Labour legislation. This impact can be seen in three phase, namely, labour, legislation in India before the ILO. Labour legislation in India from 1919 to 1947 and labour legislation in India after 1947.” But, the ILO has betrayed the trust of the labour in it, 70 years later in 2017, by its choice to play an ineffective role in the preparation of Labour Code on Social Security and Welfare.

The coterie of the rich and powerful

It is, ultimately, the cleverness of the persons that carries the day. The greedy rich, the servile politicians, the sheepish ILO and the unfaithful bureaucrats joined hands together to work against the poor. What else would explain the daring manner in which the existing time-tested benefits given to the working population are attempted to be reduced by the ruling class even for the organised labour?

The poor of the nation are protected neither by the bureaucrats who willingly carry out the dishonest orders of their political superiors nor by the employees’ representatives who occupy the seats in the supreme body of the ESI Corporation as Members. As for the role of these members of the ESIC, no one other than Mr. Kali Ghose understood the issues and defended the labour right from the beginning till his end. He was the only member in the supreme body of the organisation, who spoke for the poor sincerely.

It is now left to the commoners to prevent this Labour-Code from being made law. It is the duty of the thinkers among them to stand up and expose the misdeeds of the rulers and stop the nation from being looted by the  ugly ultra-rich more and more, through the proposed Labour Code on Social Security! Let them speak up!!

Perform your role and avoid doble-penalty !

A citation from Quoran is worth-quoting in the context:

There was a Mullah in a village. He was a very honest and pious man just doing his work in the mosque. The villagers had been indulging in various sinful activities, like theft, adulteration, cheating, adultery, etc., But, the Mullah who was aware of the entire on goings did not come forward to inform the villagers of their folly. He did not make any efforts to reform them. He thought that none would listen to him. He, however, guarded himself not to commit any such sinful activity.

Soon, there was flood. It washed away the entire village. It took away the Mullah too. All of them appeared before God. God punished everybody according to the nature of his or her crime. When Mullah presented himself last, he was imposed with double-penalty. Mullah pleaded that he had not committed any sin and that he had been doing only the work for God in the mosque. God did not agree. It was the duty of the Mullah to inform the villagers of their wrongs. The villagers were not aware of the extent and consequence of their sin. To some extent they were ignorant too. But the Mullah was an informed man. He was, therefore, duty-bound to inform the others. Whether the others would listen to him or not was a different issue. Mullah had to perform his duty of informing the  people but he had not done so. He had, in fact, not made any efforts in that direction. God said that the Mullah, therefore, deserved double penalty. “When a sin is committed before an individual or a group and they do not prevent it, in spite of having the capability, then Allah inflicts a severe punishment on them…” (Virtues of Tabligh — Chapter II – Sayings of the Prophet).

Thus, Islam shows that even a priest cannot go to heaven unless he discharges his inherent duty when on earth. Generally, no one would observe the religious formalities more punctually and more systematically than the priest. Yet, the doors to heaven do not open to those who observe only those formalities and do not perform their duties towards humanity.

The thinkers who know the ill-effects of the ill-intentioned Labour Code on Social Security & Welfare should come out of their slumber and discharge their duty to inform the people about the impending danger posed to the nation by the said Code. That is the only way they can avoid double-penalty later.

“I am only one; I cannot do everything. 

Still, I am one; I can do something. 

Because I cannot do everything, 

I will not desist from doing something that I can do”, 

-Helen Keller.

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Writ against the Labour Code on Social Security – Synopsis !

It is proposed to file a Writ Petition in the Hon’ble High Court of Madras against the Draft Bill on Labour Code on Social Security & Welfare.

There had been conspiracy by the ravenously-greedy vested interests to dismantle the established social security schemes of the nation and make money by privatising social security.

They do not listen to reason. They do not answer questions. They hide many facts. There is, therefore, no option for the common man to knock at the doors of Courts for justice. Action is under way.

The following is the Synopsis of the case.

Suggestions are welcome:

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Respondent =-1 is the Secretary, Ministry of Labour and the Respondent-2 is the Director General of the ESI Corporation.

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Synopsis

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  1. It is submitted that the ESI Act is intended to provide ‘Public Assistance’ to the working population and thereby advancing the purpose of Art. 41 and 42 of the Constitution of India duly monitored by the International Labour Organisation as per their international parameters. The ESI Act provides, for the present, security-net to the working population in the factories and the industrial and commercial establishments in the organised sector and its long-term goal, as spelt out in Sec. 1 (5) of the Act, is to extend the security-net not only to all the factories but also to all kinds of establishments including those which are agricultural or otherwise.
  2. The quantum of benefits provided by the ESI Act, at present, in the event of Sickness, Employment Injuries of various kinds and Fatal Accidents ensure a decent and dignified lifestyle for the insured persons and their dependants. Yet, the ESI Act is not a compulsory provision as it does have provisions for exemption of various classes of factories, establishments and employees, if the employers provide to their employees, benefits which are ‘substantially similar’ or ‘superior’ to the ones provided under the ESI Act. But, the fact is that none of the employers in private sector could, so far, match the benefits provided under the ESI Act and claim exemption in a legitimate manner. Even the newspaper, The Hindu, had editorially conceded on 01.01.2005, that “The package (of benefits provided by the ESIC) can rarely be matched by private employers on their own because of the heavy costs involved – not to mention the disinclination among employers, with honorable exceptions, to operate health care systems for their workforce”.
  3. Art. 41 of the Constitution of India says that “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right …. to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. The Constitution thus, gives direction to the State that in cases of Sickness, disablement and in other cases of undeserved want, the State is to provide “public assistance”. The ESI Corporation was established for fulfilling this Constitutional mandate. The State, the Government of India, cannot, therefore, make provisions for “private assistance” and absolve itself of its Constitutional responsibility. But, the Respondents are hell-bent on doing exactly the same.
  1. They have, in the guise of taking policy decision, brought out a Draft Labour Code on Social Security & Welfare, to arbitrarily reduce, very drastically, the benefits payable to the employees. And, in order not to make the working population know about their mala fide intention to deny or reduce the benefits already available to them, the Respondents have brought out the Draft Labour Code on Social Security & Welfare, by combining 15 enactments together, without explaining the objects and reasons and without making the people know about the provisions which are attempted to be dispensed with. The intention of the Respondents is to aid, on the sly, the private players enter the field of insurance in industry-related contingencies and make profit, by diluting the benefit provisions of the ESI Act which stood the test of time for over six decades.
  2. Moreover, the Respondents make the provisions of accountability of the private players very lose and nebulous. The entire social security scenario the nation is in jeopardy, because of the dubious manner in which the Respondents have been functioning to bring out this impugned code, as could be seen from their replies and non-response to various applications under the Right to Information Act, 2005.. People have been left wth no information pertaining to these essential aspects of the Code and have been left to wonder whether they would be benefitted or affected by the new Code.
  3. The Draft Code is not an all-inclusive document. There are so many areas deliberately left to remain grey to facilitate non-accountability of the private players. Defects of various kinds in the Bill show unseemly hurry on the part of the authorities to destabilise the present social security structure and bring in something unknown even to the Respondents themselves.
  4. It is, therefore, humbly prayed that the Hon’ble High Court may be pleased to issue a Writ of Certiorarified Mandamus or any other appropriate writ or order or direction in the nature of Writ of Certiorarified Mandamus calling for the records of the Respondents pertaining to the Draft Labour Code on Social Security & Welfare, circulated by the Respondent-1 in Circular No. Z-13025/13 / 12015 – LRC dated 16.03.2017 and quash the same and, consequently, issue direction to the Respondents to take further action to prepare and put in public domain a comprehensive Bill covering all aspects of the subject-matter on Social Security & Welfare, including the proposed Schemes, Rules (that would be framed by the Government) and the tentative Regulations (that would be framed by the National Council) with reference to the  Schemes for Social Security mentioned in   24 of the said draft Code and call for the comments of the Stakeholders / Public afresh and to grant interim injunction restraining the Respondents from taking further action to place the present Draft Labour Code on Social Security & Welfare, circulated by the Respondent-1 in Circular No. Z-13025/13 / 12015 – LRC dated 16.03.2017 before the Parliament pending disposal of the present Writ Petition and to pass further or other orders as may be deemed fit in the circumstances of the case.

Dated at Chennai this 25th October 2017.

Counsel for the Petitioner.

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21st World Congress 2017 Vs. Retrograde Labour Policies in India

In the context of a few unscrupulous bureaucrats of the Ministry of Labour venturing to bring out a Labour Code on Social Security & Welfare, in connivance and collaboration with power brokers, it is appropriate to examine the proceedings of the 21st World Congress 2017 that meets at present in Singapore from 3 to 6 September 2017.

It is all the more necessary because the Indian bureaucrats have gone to the extent of projecting their Code having been, in effect, approved by the ILO and the ISSA. This is a clear mischief for which they must be made accountable before the court of law.

Mr. Guy Rider, the Director General of the ILO has said that the failure of various nations to adequately invest in health of the workers, has affected the economy and the impact is equal to the total GDP of the poorest 130 countries in the world.

More from the website of the ILO:

 http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_573118/lang–en/index.htm 

 

 

World Congress EU

 

“The global economic impact of the failure to adequately invest in occupational safety and health is roughly equal to the total GDP of the poorest 130 countries in the world,” International Labour Organization (ILO) Director-General Guy Ryder told nearly 3,500 participants during the opening ceremony at the XXI World Congress on Safety and Health at Work , in Singapore on 3 September.

The new global estimates on work-related illnesses and injuries represent 3.94 per cent of global GDP per year, or 2.99 trillion US dollars. In human lives that means 2.78 million workers continue to die each year from work-related injuries and illnesses – 2.4 million of these deaths can be attributed to work-related diseases alone. The figures announced today were developed by Finland, Singapore, the EU and the International Commission on Occupational Health, with the support of ILO.

The new figures point to a growing body of evidence demonstrating the global cost of failing to adequately address existing and emerging occupational safety and health (OSH) concerns, and to the importance of OSH to sustainable development. “Clearly there is a recognition that certain OSH challenges are global challenges that require global solutions,” said Ryder.

Mr Ryder noted ILO’s readiness to engage in the development of a global coalition with key partners in meeting these challenges, as proposed by Finnish Minister of Labour Pirkko Mattila, in a forum on the future of work.

As a co-organizer of the 2017 World Congress on Safety and Health at Work, ILO is addressing key challenges for the future of work and the implications for the safety and health of workers. During the four-day Congress the ILO will participate in symposia and technical sessions on the need for reliable OSH data, improving occupational safety and health in global supply chains, creating mechanisms for the exchange of OSH data, knowledge and expertise globally, and fostering proactive occupational safety and health compliance strategies at national level. Engagement of youth around the world will be key to addressing these challenges.

How the future of work is forged will, of course, have the greatest impact on this and the next generation and they must have a voice in the process including on OSH,” said Ryder in addressing Congress participants.

Youth and OSH is a key theme at the XXI World Congress and central to ILO’s flagship Occupational Safety and Health-Global Action for Prevention Programme. “Forty million youth are entering the labour market this year and they are the best-educated generation the world has ever seen. We must take advantage of this demographic dividend and unleash the potential and creativity of these young people,” said the head of the ILO.

As part of ILO’s SafeYouth@Work project , some 125 Youth Champions from more than 29 countries are participating in a Youth Congress parallel to the World Congress. The SafeYouth@Work Congress  seeks to build a corps of Youth Champions on OSH to address the significant workplace safety and health challenges faced by young workers. The Youth Congress will conclude with the development of prototype models for targeted tripartite efforts at country and regional level, for improving working conditions for young people.  

The XXI World Congress, being held 2-6 September, is a tri-annual event jointly organized by the International Labour Organization (ILO) and the International Social Security Association (ISSA), and is hosted this year by the Singapore Ministry of Manpower.

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Labour Code on Social Security: Unlawful, unjust and improper !

 

For a powerpoint presentation on the Labour Code on Social Security click on the following link;

 

Labour Code for Flourishing ESIC

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