DACP Mechanism Vs. Recruitment Regulations

(Traditional literature permitted historical fictions both as stories or plays. But, the modern literature permits stories and plays based on contemporary history. The present one is an imaginary play based on contemporary history with the intention of clearing many a doubt on the part of various persons working in various organisations where the DACP is implemented).

 Act I : Scene I

Scene: Office of a busy lawyer at 7’O clock in the morning.

Cast: Mr. A, Mr. B, Mr. C and Ms. D, working as Assistant Professors in an ESIC PGMSR and a lawyer.

  

(The lawyer is going through the sheaf of papers presented by the Assistant Professors. Sullen silence prevails after a long discussion. The lawyer breaks the ice.)

Lawyer: (Placing the papers on his table) Yes. I went through your papers last night. Your grievance is genuine. I shall take up your case. My fee is about twenty per cent of your estimated arrears. You must know that I always charge very reasonably.

(The Assistant Professors are shocked and have been rendered speechless for  a moment. Dr. A then recovers from the jolt first.)

Dr. A: Sir, the fee seems to be very huge.

Lawyer: Huge? You know what huge means? Conduct a survey. You will know yourself. My charge is very moderate. That is what I feel.

Dr. A: OK Sir, we have to discuss the issue among ourselves and other colleagues. Let us come back in a few minutes.

Lawyer: Yeah, that is fair. (The Assistant Professors leave the room. When they are about to be out of sight, the Lawyer shouts). Hello,  keep in view the fact that I have not charged you the Consultation Fee. If you decide on  engaging me, the consultation is free. (Ms. D, who leaves last nods her head).

 

Act I Scene II.

Scene: Garden in front of the office of the lawyer.

Cast: All the four Assistant Professors.

 

 (The Assistant Professors discuss in a low hush-hush voice among themselves)

Dr. A: Friends, the lawyer wants 20% of our estimated arrears. Is it not a huge fee? Can we afford it?

Dr. B: It is huge, indeed. But, how will he calculate our arrears? We ourselves do not know.

Dr. C: Did you hear him right. He did not say 20%. He said that his fee was “about” 20 %. It seems he would make some calculation, arrive at an imaginary figure and ask us to pay it in advance.

Dr. B: Why not we go and meet some other lawyer who would charge less?

Dr. D: Of course, there are some lawyers who do it for free too.

Dr. C: But, they are not useful to us.

(Mr. A talks to some of his colleagues over mobile. Folds it up and looks at his friends)

Dr. A: Our friends say that we may engage this lawyer himself. Shall we move in?

(They move inside the chamber of the lawyer)

Act II: Scene I

Scene: Office of the lawyer.

Cast: The Assistant Professors and the lawyer.

 

Dr. A: Yes sir ! We agree to your terms.

(They hand over a wad of currency notes to the lawyer. He keeps the currency bundle in his drawer, feels invigorated, sits up in his chair and looks at them, cheerfully beaming with energy)

Lawyer: Yes, let us go ahead ! Let us analyse the case. You are all working in the ESIC Medical College as Assistant Professors from the year 2011 onwards, and some of you from 2013 onwards.

At the time of inviting applications for the post of the Assistant Professor, the ESIC had, in Para B (v) of its advertisement dated 05.11.2012, held out a categorical, clear and unambiguous promise that the “promotional avenues in the Department are available under DACP guidelines of the Government of India”.

As per Para 2. B of the DACP guidelines of the Government of India, Ministry of Health & Family Welfare, O.M. F.No. A-45012/2/2008-CHS. V dated 29.10.2008, the first benefit of DACP would be given to those in the Teaching Sub Cadre who have completed two years of regular service in the Grade pay of Rs. 6600 in PB-3.

Accordingly, you should have been promoted as Associate Professors in the pay band of Rs. 15600-39100 with Grade Pay of Rs. 7600, in the years 2013 and 2015 respectively, after completion of two years of regular service as Assistant Professor. But, the ESiC has not given that benefit of Assured Career Progression till date. Right?

Dr. A: Yes sir.

Lawyer: You have given representations also individually seeking such promotion to the post of  Associate Professor. Yet, there is no positive result yet. Right?

Dr. A: Yes sir.

Lawyer: The position of law on the subject is that as per Sec. 17 (2) (a) of the existing ESI Act, 1948, “The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay”. Consequently, it is mandatory on the part of the ESIC to enforce in the ESI Corporation, the orders of the Central Government which are applicable to the officers of the Central Government drawing corresponding scales of pay. The rules and orders pertaining to the salary and allowances, method of recruitment and other conditions of service of the employees become applicable to the employees of the ESI Corporation also automatically, by virtue of the aforesaid Sec. 17(2)(a). Right?

Dr. A: Yes sir.

Lawyer: The Proviso to the said Sec. 17 (2) (a) mandates that “where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government”. If at all the ESIC wants to deviate from the directions given in those Rules and Orders of the Government of India, it must obtain the prior approval of the Government, explaining proper reasons which are not arbitrary.

Dr. A: Yes sir.

Lawyer: The Administration says now that the Recruitment Regulations for the Medical Teaching Faculty Posts which had been amended and brought into force w.e.f. 03.07.2015 specified that for promotion to the post of Associate Professor one should have put in five years of regular service in the feeder cadre of Assistant Professor. Citing this, they convince you that you could not be promoted as Associate Professor until you complete five years of service as Assistant Professor. Yes?

Dr. A: Yes sir.

Lawyer: What was the provision in the Recruitment Regulations which were in force when the Advertisement was given on 05.11.2012?

Dr. A: Sir, there existed another set of Recruitment Regulations dated 02.05.2009 for the Medical Teaching Faculty Posts, when the authorities invited applications for the post of Assistant Professor on 05.11.2012. Those Recruitment Regulations provided for time-bound promotion for Assistant Professors to the post of Associate Professors after they put in four years of regular service as Assistant Professors.

Lawyer: But, now you know that the ESIC authorities advertised for the post of Assistant Professors on 05.11.2012 promising time bound promotion to the post of Associate Professor after two years of regular service, knowing full well that the then existing Recruitment Regulations prescribed four years of regular service as the Essential Qualification for promotion to that cadre. Okay?

Dr. A: Yes, sir.

Lawyer: What does it imply? It implies that the officials who dealt with the issues at that time, knew the concept clearly. The officials who deal with the issue now do not understand the concept and make a mess of it.

Dr. A: How?

Lawyer: yes. The fact is the officials who deal with the issue now have, simply, forgotten the fact that the ACPS (Assured Career Progression Scheme), MACPS (Modified Assured Career Progression Scheme) and DACPS (Dynamic Assured Career Progression Scheme) are there only to supplement and improve upon the already existing Recruitment Rules / Recruitment Regulations. The Recruitment Regulations, which provide only for the normal promotional avenues, cannot be invoked to deny and supplant the DACPS or ACPS or MACPS. So, the contents of the MOH&FW order dated 29.10.2008 on DACPS would prevail over the said Recruitment Regulations. But, the officials in the Hqrs. are ignorant of these rudimentary facts.

Dr. A: I see.

Lawyer: So, it is unlawful for the authorities to cite the Recruitment Regulations (either the present one dated 03.07.2015 or the earlier one dated 02.05.2009) to deny the benefit of DACP for which you became entitled to on completion of two years of regular service as Assistant Professor.

Dr. A: Yes.

Lawyer: Moreover, the DACPS benefit is not linked to vacancies but is akin to time-bound promotion, which has to be given with retrospective effect too, if there had been delay in convening the meetings of the DPCs / Review Committees under the DACP Scheme. The authorities cannot, therefore, hold out the later-day Recruitment Regulations of 03.07.2015 to deny the benefit that accrued to all of you already on 22.03.2015 FN. This is only an additional argument, because the RRs do not have the effect of supplanting the DACP guidelines of the Government of India.

Dr. A: I find substance in your argument.

Lawyer:  We must stress on the fact that the authorities had offered through their advertisement dated 05.11.2012, to implement the DACP guidelines in respect those who opt for service in the ESIC Medical Colleges, in spite of their being aware of the contents of those Recruitment Regulations dated 02.05.2009 which were in force as on 05.11.2012.

Dr. A: Yes sir.

Lawyer: Another additional point is that there is no reason for the authorities to deny DACP benefits to those who completed two years of regular service even before the later amendment came into force on 03.07.2015. Seen in the light of this fact, the Speaking Order issued by the Hqrs. in C-18/11/7/16- Med VI dated 03.07.2017 is patently incorrect.

Dr. A: Is it?

Lawyer: Yes. I do not know whether you have seen it. It is a case of Assistant Professors (Dental) in the ESIC Dental College. As per the DACP guidelines for Assistant Professors (Dental), promotion will have to be made without linkage to vacancies, for those who have completed two years of regular service in that cadre. “Other conditions for effecting promotion will be governed by the respective Recruitment Rules as amended from time to time and DOPT instruction in this regard”. The Assistant Professors (Dental) in that case had joined in the year 2011. They had completed two years of service in the year 2013. They had become entitled to the DACP in the year 2013 itself. If the DPC had met in the year 2013 they would have got their benefit under the DACP. But, there had been delay and the RRs had later been amended on 23.12.2014. This RR which came into force on 23.12.2014 cannot deny the benefit that accrued to the Assistant Professors (Dental) in the year 2013, which can be and has to be given with retrospective effect, as the DACP, ACP, MACP are not linked to vacancies. This is only an Assured career progression and not a vacancy-based promotion, which alone can have prospective effect from or after the date of DPC. The speaking order dated 03.072017 is clearly wrong.

Dr. A: I see your point.

Lawyer: There is a possibility that similar unlawful and unjustifiable stand would be taken in your cases also. You have to pre-empt it. Or you must complain against the officials of the Hqrs. Office who misguide the Medical Commissioner to issue such a patently wrong order.

Dr. A: I agree.

Lawyer: Moreover, there is the theory of Promissory Estoppel. The promise made by the authorities in their advertisement dated 05.11.2012 falls very clearly within the definition of the term ‘Promissory Estoppel’. The authorities are, by law, prevented from breaking it, especially when you had acted upon that promise. The promise given by the authorities on 05.11.2012 was an enforceable promise, a clear and definite one at that. There is nothing on record to show that the promise was given only with the intention of breaking it later.

Dr. A: I understand.

Lawyer: That promise made by the authorities on 05.11.2012 prevents them from going back on it, especially after the Applicant had acted on it. It had been made with intent to make you to rely upon that promise. You had not only relied upon it but acted upon it too for a continuous period of two years. You had (i) acted on that promise held out on 05.11.2012, (ii) applied for the post of Assistant Professor, (iii) joined the services of the institute and (iv) rendered service for two years hoping all along that the authorities would fulfil their promise on completion of two years’ service. The authorities ought, therefore, to fulfil that promise. They are estopped from reneging from their earlier stand as communicated, on 05.11.2012, to you as one of the terms and conditions of appointment.

Dr. A: When this being the position of law, how come they issued an order like the one dated 03.07.2017 in the case of Assistant Professors (Dental)?

Lawyer: That was a clear case of negligence on the part of the officials who processed the case. A copy of the filenoting, if obtained under the RTI Act, would show who had misled the Medical Commissioner thus. Depending upon the material evidence available thus, you can proceed against the concerned officials under Sec. 24 of the IPC too, after obtaining permission from the Director General to prosecute them for having caused wrongful loss to you.

Dr. A. Why are they not understanding the concept of DACP then?

Lawyer: It is just unwillingness to read the instructions. The orders of the Central Government on the DACPS (just like the ACP and MACP) are intended to improve upon the normal promotional avenues contemplated under the Recruitment Regulations notified in the Gazette for each cadre. This has been repeatedly made clear by the DOPT also right from the year 1999, when the ACP was introduced.  The order dated 29.10.2008 cannot, therefore, be refused to be enforced in the ESI Corporation by citing the later day Regulations of 03.07.2015.

Dr. A: Are we entitled to the benefits available to those who are under the CHS?

Lawyer: Yes, of course. The All India Institute of Medical Sciences (AIIMS) and the Jawaharlal Institute of Post-Graduate Institute of Medical Education & Research. Puducherry (JIPMER) are also Central Autonomous Bodies like the ESI Corporation. The orders dated 29.10.2008 of the Department of Health & Family Welfare, Government of India regarding DACPS have already been enforced in those Central Autonomous Bodies. There is, therefore, no justification in denying the benefit to the teaching faculty in the Medical institutions of the ESIC, when Sec. 17(2) (a) of the Act mandates such benefit to be conferred on them.

Moreover, the Principal Bench of the Hon’ble Central Administrative Tribunal, Delhi has in the case involving the conditions of service of the Pharmacists of the ESIC, ruled that the ESIC “cannot claim immunity from creating proper cadre structure”, especially when various State Governments and the AIIMS have a well-defined cadre structure. Hon’ble Principal Bench made such an observation in the light of the fact that the “Pharmacy Council of India, the Apex Statutory Body to regulate the Pharmacy in the country has itself recommended that every health delivery agencies should have a well-defined cadre structure for their Pharmacists”. (Udhay Veer Singh Vs. ESIC – 06.05.2015). The same ratio is applicable to the teaching faculty also in the ESIC, whose cadre structure has all along been on the lines of the structure in the CHS. The authorities are, therefore, required to confer the benefit of DACPS on the teaching faculty of the ESIC Medical institutions, as per the orders of the Department of Health & Family Welfare dated 29.10.2008.

Dr. A: I see.

Lawyer: Besides, as per Sec. 17 (2) (a) the pay and allowances and other conditions of service of the employees of the ESI Corporation are to be in accordance with the rules and orders applicable to the corresponding category of central government employees. Any denial of the benefit of the orders dated 29.10.2008 of the Department of Health & Family Welfare on the DACPS would be in clear violation of the provisions of the aforesaid Sec. 17 (2) (a) of the ESI Act, 1948, which is not permissible in law.

To sum up, you are all entitled to the benefit of Dynamic Assured Career Progression Scheme and get promoted to the post of Associate Professor in the pay band of Rs. 15600-39100 with Grade Pay of Rs. 7600 with effect from the date succeeding the day on which you had completed two years of regular service in the cadre of Assistant Professor in the ESIC PGIMSR. (At this moment, the ten-years old daughter of the Lawyer enters into the room. The lawyer looks at the wall clock. It is 7.45 AM. Time for him to go to a nearby town for a family function for which his wife has left already. His ten-years old daughter would not go with mother. She wants to accompany her indulgent father and has, therefore, entered into the office of the lawyer to remind him. The lawyer rises up. The doctors understand that their appointment is over)

Dr. A, B, C & D: Thank you, sir ! (The lawyer reciprocates their gesture. The doctors get up and move outside)

Act III Scene I

 

Scene: Near the exit gate of the house of the lawyer.

Cast: The Assistant Professors and the lawyer and his daughter.

 

(When the Assistant Professors are walking across the garden in front of the house of the lawyer, the car of the lawyer overtakes them. Suddenly, Mr. C, waves at the car to stop it. The car stops near them and the lawyer peeps out with an inquiring glance.)

Dr. C: Sir, when we pay, will you give receipt so that we could account for it before our friends?

Lawyer: Yes, of course ! And, you will have to pay 20% more for that.

(All the Assistant Professors are gasping in unison)

Lawyer: Hey, What happened? Shocked? No. Be happy! I haven’t charged 20% on that 20%, you know. I am, always, reasonable.  Charging only 20 instead of 30%. (The Lawyer drives the car on. But, the car stops at a distance. He peeps out of the car and shouts at the Assistant Professors there). Hey, GST, GST ! Keep that in view too !!

(The car glides away and disappears at a distance. The shell-shocked doctors take some time to recover.)

Dr. Ms. D: I didn’t know, yaar! Had I known, I would also have gone for advocacy.

Act III Scene II.

 

Scene: A highway.

Cast: The lawyer and his daughter in their car.

 

 No traffic rush is there on the highway. Only a few vehicles in sight sporadically. The Lawyer drives the car at slow speed. He switches off the AC and downs the window facilitating his daughter enjoy the cool morning breeze. His daughter prefers travelling in open car, always.

ACPS and DACP are different from normal promotions. It is for the normal vacany-based promotions or normal time-bound promotions, the provisions of the RRs have to  be invoked and the condition regarding the period of residency mentioned in the RRs required to be fulfilled. Introduction of ACP or DACP schemes was in addition to the avenues of promotion prescribed in the RRs. These schemes  are not to affect normal promotional avenue. While elaborating these facts pertaining to the ACP in its O. M. dated 09.08.1999, the DOPT had said, “The Fifth Central Pay Commission in paragraph 52.15 of its Report has also separately recommended a “Dynamic Assured Career Progression Mechanism” for different streams of doctors. It has been decided that the said recommendation may be considered separately by the administrative Ministry concerned in consultation with the Department of Personnel and Training and the Department of Expenditure.” The Press Information Bureau of the Government of India has also said, in its bulletin dated 07.08.2013,  

 

 “Central Health Service (CHS) Officers in Central Government are governed by the Dynamic Assured Career Progression (DACP) Scheme, which was implemented by Government of India based on the recommendations of Vth Central Pay Commission providing promotion to the CHS officers without linkage to vacancies upto the level of Chief Medical Officer – Non-Functional Selection Grade (CMO-NFSG)/ Specialist Grade I/ Professor w.e.f. 5.4.2002. The benefit of promotion under DACP Scheme was extended to Dental Officers under Ministry of Health and Family Welfare without linkage to vacancies upto the level of Staff Surgeon (Dental) (NFSG)/ Professor/ Maxillofacial Surgeon w.e.f. 25.8.2006.

 

Based on the acceptance of VIth Central Pay Commission’s the Government of India further extended the Dynamic Assured Career Progression (DACP) Scheme upto the Senior Administrative Grade (SAG) level without linkage to vacancies in respect of Medical and Dental Doctors in the Central Government, whether belonging to Organised Service or holding isolated posts w.e.f. 29.10.2008 .All Ministries/ Departments of the Central Government are required to implement the DACP Scheme accordingly in respect of Medical/ Dental Doctors under their control. This benefit of promotion upto the level of SAG without linkage to vacancies under DACP Scheme was also extended to the officers of various sub-cadres of Central Health Service (CHS) and Dental Doctors under the Ministry of Health and Family Welfare w.e.f. 29.10.2008.” (http://pib.nic.in/newsite/mbErel.aspx?relid=98744)

 

The lawyer is lost in thoughts: “Unless the DACP Mechanism has been done away with, the authorities cannot deny the Assured Career Progression to his clients. They knew that and that was why they made this promise in the advertisement and in the offer of appointment to his clients in the year 2012. They knew that the earlier RR of 2009 had specified four years as the period of residency. And, yet, if the promise of DACP had been made in the year 2012, it implies that the Administration was aware of the fact that the DACP was an additional feature taking the promotional avenues beyond the provisions of the RRs”. The lawyer is not able to comprehend how the officers dealing with the case, at present, arrived at a different and strange conclusion that the RRs amended in 2014 would supersede the provisions of the DACP. How did they do it? How did they issue an order like the one dated 03.07.1017 in the case of Assistant Professors (Dental)? The lawyer is puzzled. 

Parrots

The chain of thoughts of the lawyer gets disrupted by his daughter who prods him to look at the parrots sitting on a roadside tree.  ‘Hm, that was a good case’, the ruminating lawyer throws a beaming smile at his daughter sitting near him. The kid responds with a smile too.

sparrow-flock-in-flight

She does not know that that beaming smile of her father is the outward expression of his inner joy at the erroneous notes submitted by the officials to mislead the Medical Commissioner of the Hqrs Office. She also does not know that her father wishes the officials to commit more such blunders. She is fascinated by the pandemonium of parakeets and  the flutter of sparrows flying in the sky. 

 

Parrot-flying

Images: Courtesy: net.

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Drafting Team was trying to finish off the EPFO. Was the CPFC aware?

The Ministry of Labour & Employment had reconstituted the “Group responsible for the Labour Code on Social Security & Welfare” two years ago, as per the Letter No. Z-13025/ 13/ 2015 L.R Cell dated 12.03.2015 of the MOL&E.

This group, called as the Drafting Team, had been working for the past two years and has brought out the present ‘draft Labour Code’ which was put in public domain on 16.03.2017 by the MOL&E.

The CPFC had also deputed an RPFC to be part of the Drafting Team “on full time basis for completing the exercise”.

Was the CPFC aware of the what work was being done by the Drafting Team during the period of two years? Was he ever briefed by  his RPFO about the direction in which the Drafting Team was going about its work,  to finish off the EPFO ?

An application under the RTI Act:

(Click on the image and download the document)

EPFO Copy

 

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The Drafting Committee of the Constitution Vs. The Drafting Team of the Labour Code !

Lord Yamadharma Raja was taking rounds of the universe. Suddenly,  the Lord stumbled upon the letter  dated  12.05.2017 of the Ministry of Labour & Employment which explained the modus operandi adopted by the Drafting Team of the Labour Code put out in public domain on 16.03.2017. He was shocked. He immediately ordered Chitragupta to convene an Emergency Session of His House for discussing the issues involved.

The anxious Lord, in a state of shock, rushes for the Emergency Session !

The House is already full, when the Lord arrived there. All the invited participants, brought in both from the otherworld and netherworld, remain assembled there carrying a copy of  the MOL&E letter dated 1205.2017 in their hands.

On His being seated, the Lord searches for B.R.Ambedkar and looks at him. Ambedkar rises up and explains his understanding of the letter dated 12.05.2017 of the MOL&E.

Ambedkar:  My Lord! I understand the unease of the Lord. I was also shocked on seeing this letter dated 12.05.2017 of the MOL&E and the liberty, allegedly, given to the Drafting Team of the Labour Code.  I had been the Chairman of the Drafting Committee of the Indian Constitution itself. I know for sure that I had never had this kind of liberty to write the Constitution in the manner in which I wanted. The Drafting Committee went about its way on the basis of the Objectives Resolution moved by Jawaharlal Nehru on 13.12.1946 and adopted unanimously by the Consembly on22.01.1947 (Note **1). There must be some guidelines and specific parameters to be given to every Drafting Committee by the legislature. The Drafting Committee must work within that frame work.

But, the letter of the MOL&E shows that the Drafting Team of the Labour Code had not been given any such legislative guidelines. This Drafting Team had prepared the draft Labour Code without even understanding the fact that it is snatching away the already existing benefits to the working population. What is even more shocking is that the Ministry has come to town with this incomplete draft and are asking the people to explain their stand on it, without telling the people why and where they have made changes, additions, deletions and insertions.

If the team had done its work for bona fide reasons, it would have given appropriate explanatory Notes with reference to each and every section in the draft Labour Code, as foot note on every page, to invite the attention of the readers to understand the modifications done. These are rudimentary principles of legislative drafting. But, the Drafting Team of the Labour Code has not done so. I feel that the manner in which the MOL&E is repeatedly attempting at justifying this slipshod  work, shows that the Drafting Team is not at fault. But, there is an invisible force which is driving the Drafting Team to write the draft Labour Code, the way it has been done. Because, left to them, the officers would not venture into such misadventures. They would go by procedures laid down. For, they know they are accountable, otherwise.

Jawaharlal Nehru: Yes, My Lord ! Ambedkar is right. These are rudimentary principles of law making. The Chairman of the 17th Law Commission of India, Mr. Justice. M. Jagannatha Rao, has written a paper on Legislative Drafting. He says, “The draftsman is not the author of the legislative policy, he merely tries to transform the legislative policy into words. The legislative policy is made by the political executive which belongs to the political party which is ruling the legislature or by the monarch who reigns over the country. The draftsman must, therefore, digest the legislative policy fully before he produces the instrument of legislation which can achieve the legislative purpose”. The issue here, with the Labour Code, is why the Drafting Team does not make the concerned ‘legislative policy’ public.

Vallabhbhai Patel: My Lord ! The draft Labour Code is aimed at reducing the benefits already provided to the working population. The party in power, therefore, does not want the people to know the truth. That is why the draft Labour Code has been prepared without explanatory notes. Now, they would propagate and claim that they are ensuring transparency by putting their draft on the website and inviting objections and suggestions. But, they have hidden their intention from being easily known to the public, by not providing explanatory notes for the omissions and commissions. The people behind this draft Labour Code are clever and enjoy their cleverness, tact and tricks. But, they do not have empathy towards the working population. That is definite, as could be seen from the contents of the draft.

Lord: But, the MOL&E refers to the Report of the Second National Commission on Labour and tries to claim that the draft Labour Code is “in line with the recommendations of” that Report. Can’t you treat that Report of the Second National Commission on Labour as the ‘legislative policy’ ?

Patel: We cannot, My Lord! Nowhere in the report of the Second National Commission has it been recommended to reduce the Dependants Benefit from the present 90 % to 50%. Nowhere has it been recommended to stop giving benefits to the employees who sustain Employment injury when they work to meet certain contingencies, as mentioned in Sec. 51-B to Sec. 51-E of the ESI Act, 1948. Nowhere has it been recommended to include an omnibus exemption clause as Sec. 1.8 to enable every employer to get exemption from the entire Labour Code itself. There are many such dangerous provisions in the draft Labour Code. I am certain that these have been inserted only with diabolical intentions to make the ultra-rich people to make money by exploiting the downtrodden segments of the society. The intention behind this Labour Code is mala fide.

Lord: But, the reply of the MOL&E dated 12.05.2017 shows that the “Code is striving for a new concept of ‘Universalising the social security benefits”.  How can you say that the intention is mala fide?

Patel: My Lord ! Universalisation of social security benefits was the aim and purpose of the ESI Act, It was specified thus in Sec. 1 (4) of the Act in 1948 itself. But, the progress has to be gradual and the scope for malingering must be negligible. But, without concentrating on running the ESI Scheme corruption-free, the rulers permitted thousands of crores of rupees from the accumulated funds looted, in the name of setting up medical institutions. Construction wing was one are in which rampant corruption was there in the ESIC. Even the CAG had pointed it out in his report No. 40 of 2015. But, the fact was that the  CAG has also been cheated that he could not assess the real extent of corrupt activities. What is more? The Ministry of Labour, instead of filing proper counter in the court of law, wants to extricate itself by claiming that implicating the MOL&E and the Cabinet Secretary in the Writ is a case of misjoinder. These incidents would show that the rulers do not have any real concern about the loot of the public money. Their only concern how to help the ultra-rich to make money in the name of insurance by winding up social security measures.

CAG Audit Report

Lord: Yes, the CAG report shows the extent to which the authorities had gone to spirit away the public money. But, how do you say that the rulers want the entry of private players in the field of social security?

Patel: Yes, My Lord! The word PPP used in the presentations on 02.05.2017 and the manner in which Sec. 88.2, Sec. 89.1. Sec. 90 – 93 have been worded, show not only the desire of the rulers to bring in private players but also the willingness of the rules to provide safe escape route to the defaulting private players, if and when they are caught for their misdemeanour. This is a clear case of rulers aligning with the ultra-rich to exploit the poor. The intention behind such loosely worded clauses can never be for bona fide reasons. Moreover, although it is said that 15 laws are amalgamated, the 16th law, the Pension Fund Regulatory and Development Authority Act has also been brought in. It is only for the purpose of allowing private players to play with social security.

Nehru: My Lord ! The intention is to bring in private players into social security. This is in violation of Art. 41 also. But, the rulers do not care. The pressure from the ultra-rich lobby is not able to be resisted by these rulers. That lobby is not able to provide matching benefits, as given by the ESIC. So, they want to weaken the ESIC and make it vanish. The present day rulers are bending backwards to oblige these private sharks. Instead of working for the welfare of the masses, the present rulers want to make the ultra-rich even richer.

1% own 53%

Adharkar: My Lord ! The private players invoke ‘Exclusion Clause’, for Pre-existing diseases. But, the ESIC does not have any such prohibitory clauses. So, the private players and the brokers engaged by them work overtime to wind up the public institutions that provide social security. The result is the present draft Labour Code.

Patel: Yes, My Lord ! The nation knows how the rulers worked against the public institution, the MTNL and the BSNL, to facilitate the private players to succeed in exploiting the nation. The draft Labour Code is also intended to help the private players to make money through the social security path and that will land the nation only in a mess. It will affect the entire nation. This Labour Code is actually going to convert the labour into slave labour. Already, the rulers have made that attempt through the Bill for safety and health of workers. It has enabled the employer to crush the workers to work longer time in the name of overtime. This Labour Code will make the people of the nation suffer to a great extent.

Lord: But, I find from the letter dated 12.05.2017 of the MOL&E that it is only “a preliminary draft for discussion and, therefore, all suggestions are welcome for improving the draft”.

Ambedkar: My Lord ! That is an attempt at cheating the public. Let them publish the legislative policy on which the Drafting Team worked to prepare this draft. Let them publish the draft Labour Code with proper explanatory notes for each and every section where omissions and commissions have been made with reference to the existing statutes. Unless and until they do so, the claim of the MOL&E that they are welcoming suggestions is nothing but a technique to hoodwink the public. The public should not and cannot be expected to find out where this Drafting Team has hidden what, especially when the Drafting Team has hidden so many things at so many places in the draft Labour Code.  The very absence of the legislative policy and the explanatory notes in the said Code is an indicator of the mala fide intention of the people who made the Drafting Team to prepare the draft thus.

(Ambedkar takes a long breath and then continues)

My Lord ! The Drafting Team is only a hack. But, it has allowed itself to be a hack unwillingly due to undue influence. I recall that I had, on 04.11. 1948 said in the Parliament of India, “I hope the Drafting Committee will be found to have faithfully carried out the directions given to it” (Note **2) . Saadullah, another member of the Drafting Committee said, “We were merely to dress up the Objectives Resolution. How can 7 members thrust their opinions on 308?” (Note **3). 

(Ambedkar takes another long breath again and continues)

And I remember the discussion in the Parliament on 02.09.1953, when I advocated the carving out of Andhra Pradesh and condemned the manner in which Potti Sriramulu was driven to death for that. At that time, I said, “My answer is that I was a hack. What I was asked to do, I did against my will” (Note **4).

Again on 19.03.2015, I said, “I and the Drafting Committee take no responsibility for that. It is not our draft” (Note **5). But, My Lord, the Drafting Team of the Labour Code, according to the MOL&E, has done everything on its own, without ny legislative policy even.

 Lord:  Oh ! What a power to the Drafting Team of the Labour Code !! You say you did not enjoy any such power while drafting the Constitution itself !! Can we say that the Indian democracy has progressed to such an extent that it devolves unlimited powers to Drafting Teams?

Adharkar: My Lord ! It shows their progress in enacting regressive laws. The mala fide intention is explicit, My Lord! The extent of liability of contribution has been shifted from subordinate legislation [ESI (Central) Rules, 1950] to the primary legislation, the Labour Code itself. But, the benefit provisions assured in the primary legislation (Sec. 51-B to 51-E of the ESI Act, 1948) have been made to vanish. The MOL&E cannot defend itself saying that they would provide for more, through their proposed subordinate legislations like Schemes, Rules, Regulations and Licences,  than what is available now to the working population.

Patel: What is even more shocking is the manner in which both the provisions of the Employees’ Compensation Act, 1923 and Employees’ State Insurance Act, 1948 have been allowed to remain in a single statute. That certainly is a regressive method of enacting law for the welfare of the working class. The employees will be allowed to choose between either. That will not be in the interest of workforce.

(A hand is rising in the crowd. The Lord looks in that direction. It was Golwalkar who raised his hand. The Lord nods at him.). 

Golwalker: My Lord ! The information conveyed through the letter of the MOL&E letters dated 24.04.2017 and 12.05.2017 is not true. The Drafting Team must have had a specific and concrete legislative policy. But, that is a secret document. The officers, otherwise, would not have ventured (i)  to reduce the established benefits, (2) to bring in private players in the name of Intermediate Agencies, (3) to drop the word ‘substantially’ in the sly, (4) to insert provisions for subsidy to employers, (5) to provide for escape route to fraudulent private players through weak punishing mechanism, etc., Five officials drafted for the work on 12.03.2015 cannot be said to have invented a totally new system.

Hedgewar: Yes, My Lord! There must have been specific direction given to the Drafting Team regarding the direction in which it should move. Most probably, the direction was to combine all the 15 welfare legislations and make a mess of it in such a way the people do not understand  how private players are going to be benefitted at the cost of the workers. That must alone have been the direction given to the team.

Ambedkar; Yes, it must have been only like that. But, that was not the legislative policy, My Lord! There is no such document physically available.

 Patel: My Lord! The  present set of rulers are more interested in social re-engineering than in the welfare of workforce. That is why they meddle with Labour Laws to make them nothing. That is why they pretend that they do not have any legislative policy.  This Labour Code, is projected by the MOL&E as the brainchild of five officers in the Drafting Team. No team of officers would venture thus. Moreover, this Labour Code is nothing but a recipe for disaster. It will not bring in Social Security but only social unrest. Earlier, in April, 2016, without any objective outlook, these rulers brought in a legislation to amend the EPF provisions. That resulted in the masses rising up in a leaderless protest. The rulers beat a hasty retreat, immediately. Now, they want to reduce the benefits even more. They are not responsive or accommodative or sympathetic to the working population. They are driven by the ultra-rich businessmen  and are ready to placate them by going to any extent.

bangalore-protest-e1461097508841

NDTV

For more: http://www.ndtv.com/bangalore-news/violence-in-bengaluru-as-workers-provident-fund-withdrawal-rules-1397136

A leaderless protest - The Hindu

 

Adarkar: My Lord, please save India from the proposed Labour Code !

 

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Note **1: The Constituent Assembly met for the first time on 09.12.1946. All the members were present. On 13.12.1946, Jawaharlal Nehru moved the Objectives Resolution in the First Session that ended on 23.12.1946. The Objectives Resolution was unanimously adopted by the Consembly on 22.01.1947 in the Second Session that started on 20.01.1947. The progress got affected because of the partition plan in June 1947. But, the Objectives Resolution remained as it was. And it was on On 29.08.1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of  B.R. Ambedkar to prepare a Draft Constitution for India. The Drafting Committee went about its mission on the basis of the said Objectives Resolution and the discussions and resolutions in the Constituent Assembly during the period between 09.12.1946 and the discussions in the four, technically five) sessions of the Consembly that preceded the setting up the Drafting Committee. This Objectives Resolution defined the   parameters within which the Constitution that was to be drafted should be prepared.

Note **2, Note **3, Note **4 & Note **5: Page 33 – Introduction to the Constitution of India – Brij Kishore Sharma.

Image of Lord Yamadharma Raja : Courtesy, web.

RTI Reply from Ministry copy

 

 

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Slave Labour Code: Unlimited rights to the Drafting Team !

Another reply from the Ministry of Labour is available. The reply received from the Ministry in their letter No. M. 13014 / 01/ 2017 – LRC dated 12.05.2017 is in reply to the application dated 19.04.2017 sent under the RTI Act which is available in the following link:

https://flourishingesic.info/2017/04/13/labour-code-whittling-down-accidents-covered-by-the-esi-act-1948-providing-subsidy-to-employers/

RTI reply MOLE 12 05 2017 copy

If the contents of this letter are true, it would imply that the entire draft Labour Code is the handy work of some bureaucrats who had taken unlimited liberty with the time-tested labour laws and have made a mincemeat of them through the draft Labour Code.

What is more, they do not know what their ultimate aim is but have attempted to write something as Labour Code and create unnecessary social unrest in the nation.

The earlier reply is available in the following link:

https://flourishingesic.info/2017/04/29/labour-code-premature-one-bizarre-method-of-law-making-draftsmen-ignorant-of-destinations/

 

 

 

 

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Letter to the International Labour Organisation !

The ILO had, in its ‘World Social Security Report’ released on 16.11.2010 said that there were many “informal labour practices” in India and that the people of India are exposed to “very high vulnerability” to poverty.

The Secretary, Ministry of Labour & Employment, Government of India, New Delhi has, during the “Consultation Workshop”held on 02.05.2017, said that the draft Labour Code put in public domain on 16.03.2017, was “the outcome of prolonged discussions with the ILO and ISSA experts”.

When the name of the ILO is used thus, by the Secretary of the MOL & E  to justify a controversial Labour Code, people do have the right to know whether the ILO is really aware of the contents and the substance of the Labour Code.

Hence the following letter to the ILO:

Representation to ILO

 

 

 

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Slave Labour Code: Representation to the MOL&E on 16.05.2017 !

Representation MOLE May 2017 copy

 

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Sinister report of the Second National Commission on Labour: Exposed by the Dissent Note !

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

– Leo Tolstoy

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What Tolstoy said becomes totally true when we see the conspiratorial manner in which the Labour Code is being brought about. The intended Labour Code is, really, going to be a tool of oppression. It is intended to convert the entire labour force into slave labour. The Ministry of Labour & Employment is indulging in false propaganda through its powerpoint presentation on this issue. The Ministry is hiding many a truth behind the Code. When the Ministry wants to undo the ESI and EPF facilities, it is projecting the noble features of these schemes, as if they are going to be introduced only through the Labour Code. The Ministry which does not come forward to make public the legislative policy behind the Labour Code does not hesitate to cheat the people through the Power Point Presentations which contain a lot of half-truths and misleading statements.

The officials who are held hostages by the power-brokers, are doing their biddings to undo the welfare schemes. But, they hoodwink the people to believe in the contents of Labour Code which is,actually,  intended to benefit the middlemen at the cost of the working population.

The rulers proclaim from the roof-tops that they are  bringing out this Labour Code as per the recommendations of the Second Labour Commission. But, the fact is that the motive of that Commission was sinister.

That fact is established from the very Dissent Note submitted very honestly by the Member Mr. C.K. Saji Narayanan on 21.05.2002.

A few quotes are given below. The complete text of the Dissent Note can be had by clicking on the following link:

Saji dissent

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Mr. Saji Narayanan has done his work honestly, fearlessly, with conscience and without fear. He has rendered his service to humanity right.

It is the duty of every conscientious citizen of the nation to expose the ulterior motive behind the proposed Labour Code and enlighten the masses and help them get their rightful benefits as workforce restored.

People do have the right to demand from those who defend the Labour Code to give point by point reply to the observations of Mr. Saji Narayanan.

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Slave Labour Code : Review by Lord Yama Dharma Raja ! – Episode 1

It’s Heaven! The venue is the Durbar hall of Lord Yama Dharma Raja. He had summoned the souls both from the heaven and the hell to discuss the hullabaloo around the draft Labour Code circulated by the Ministry of Labour & Employment in India, on 16.04.2017. The entire assembly is full and the crowd is overflowing outside the Durbar Hall too to watch the proceedings, which are telecast live too throughout the universe. Sir William Beveridge, who had given the monumental report on Social Security, Prof. B.P. Adharkar, the Father of Social Security in India, and other stalwarts on social security were the special invitees of the meet.  Now, the proceedings!

Lord Yama image

Lord Yama Dharma Raja: “Dear Mr. Beveridge ! What is going on in India? I find there are protest marches in Chattisgarh about some Labour Code? The issue is spreading around, I am told. What is the problem?

Beveridge: My Lord ! The ultra-rich club in India is becoming more and more vicious. They are finding newer and newer methods to loot the common people. The present set of rulers are much more obliging to them than the previous rulers. That is the cause of all the problems in India, now.

Lord: Ultra-rich? What is it?

Beveridge: My Lord ! 1% of Indians have cornered for themselves 53% of the wealth of the nation. They are the ultra-rich.  And, they want to covet even more. The rulers are happy to oblige this greedy rich, for quid pro quo, and betray the trust reposed in them by the common people. These rulers want the votes of these commoners to remain in power. But, they do have no compunction to cheat these commoners by colluding with the rich and ultra-rich to enable the later to loot the commoners. The proposed Labour Code is yet another example of the manner in which the rulers go out of the way to please their ultra-rich monsters, sorry, masters. That is the reason for the social tumult in the offing in India.

1% own 53%

1 % owns

Lord: What is that Labour Code, after all?

(Adharkar rises up to respond to this question)

Adharkar: My Lord! We had already discussed on 26.09.2015 about the manner in which the rulers under obligation to the ultra-rich went extra mile to amend the Sec. 44 of the ESI Act, 1948 to facilitate privatisation of social security in India. (https://flourishingesic.info/2015/09/26/lord-yama-dharma-raja-discusses-amendment-to-sec-44/). But, they could not succeed in their attempt because the employees’ representatives in the supreme body of the ESI Corporation became  alert to see through the game plan of the rulers. The employees’ representatives had voiced their protest so vehemently that the rulers beat a hasty retreat on 07.04.2015 in the meeting of the supreme body. (https://flourishingesic.info/2015/04/05/kind-attention-esi-corporation-members-please-ask-these-questions-on-07-04-2015/). So, they found a way around. Now, instead of trying to tinker with Sec. 44 of the ESI Act, they are going to club together  as many as 15 labour welfare legislations including among them the ESI Act and the EPF Act and remove the important benefits provided under the ESI Act. They believe that people would not notice their mischievous intentions and the loss of benefits under the ESI Act when they mix all the laws together and take away the benefits provided under the ESI Act.

(At this stage Margaret Thatcher, former Prime Minister of the UK chips in. The Lord looks at her.)

Thatcher: My Lord, What Mr.Adharkar says is true. When I was the Prime Minister of the UK, there was a BBC serial titled, “Yes, Minister”. I used to keep aside all my routine work and watch that serial everyday. It explained to the people and politicians how the bureaucrats used to cheat the politicians in power. The senior bureaucrat, Sir Humphrey, in that serial would train his junior in that art. He would Margaret_Thatcheradvice his junior that if he wanted to something wrong, he must do things in a complicated way so that the people would not understand anything. ”If people don’t know what you’re doing, they don’t know what you’re doing wrong.” But, on going through the draft Labour Code circulated by the Ministry of Labour of the Government of India, that the said advice of Sir Humphrey is used by the politicians and bureaucrats of India to cheat the common people. It is a matter of shame that India which was given independence from the British control goes the wrong way in running the nation. It becomes clear from the text of the draft Labour Code that the nation is going away from civilised way of social life. I was discussing about it with Mr. Jerome Blanqui, the great French economist of the early 1800s. His ideas contributed a lot to the evolution of formal law-making by various states on social security. He is also of the same opinion about this draft Labour Code. The present government of India is helping the greedy rich to exploit the labour class and keep them poor perennially. I am sad at these developments in India”.

(The Lord looks at Jerome Adolphe Blanqui, whose great treatise, ‘History of Political Economy in Europe – From the ancients to our day’, published in 1837 AD, was a remarkable milestone in the evolution of Social Security).

Jerome Blanqui: “Yes, My Lord ! Every society is supposed to move forward to a civilised state. I was fortunate enough to have been born in France where great souls who fought for liberating the humanity had been born and had worked for it. Voltaire, Rousseau and Montesquieu liberated not only France from the tyrants but also the entire humanity from slavish menJerome Blanquitality.  French intellectuals considered that production was “not” something that was “independent of the fate of the workers”. I have stressed the fact that “it is not sufficient for (a nation) that wealth be created, but it must be equitably distributed”. In the view of our French intellectuals, “men are really equal before the law as before the Eternal. The poor are not a text for declamations, but a portion of the great family, worthy of the deepest solicitude”, care and concern. But, I find that the present day rulers of India are moving in a diametrically opposite direction. The nation will, then, be a den of poverty and misery, with the working class having no real right to live a dignified life as they will be treated as ‘commodity’ by the rulers.

Beveridge: The intention of the present day rulers to make the working class a pawn in the hands of the employers has already become public, in the year 2014 itself. Yet, the public has not been awakened to their sinister designs. It was on 07.08.2014, that these rulers introduced a Bill for increasing the spread-over time from 10 and half hours to 12 hours, for enabling the employers to force the workers to  work for about 10 hours a day, to compel women workers to work during night hours, etc., That would prove that India is on the path of retardation while other nations like Germany move forward towards reduced work hours which result in more production.

Blanqui: What is more? These rulers were sadistic enough to call that bill as the Bill for safety and health of workers.picture1

The present Labour Code is also yet another sadistic piece. This is intended to relieve the State of its obligation to provide social assistance in the form social insurance.  Common people will, however, be told that it is an effort towards “simplification, amalgamation and rationalisation”. The rulers would cover up their mischievous intentions by propagating that the Labour Code was to extend the benefits to unorganised labour including the household workers. But, the real intention is to reduce the benefits provided by the ESI Corporation and enable the private players enter into the field of social security and make a mess of it. Commercialisation of social security will result in complication of the process and deprivation of various benefits to the working population. My Lord, kindly ask for the details from Mr. Robert Owen, who is regarded as the Father of Social Security of the World. He did not only plead for the intervention of the governments of various nations to step in and enact laws for the welfare of the workers, but also for international agreement between various nations for enacting such laws. Mr. Louis Rene Villerme, the great physician, who worked tirelessly for the welfare of the working class and their working conditions in 1800s, would throw more light on it. So many illustrious figures had been fighting and canvassing for about 100 years for State intervention to safeguard the living conditions of the working class. All their efforts culminated in various labour laws from 1923 to 1952 in India, overseen by the government. But, all these developments are attempted to be consigned to dustbin by one single Labour Code.

Lord: How?

Adharkar: Yes, My Lord! In the name of amalgamation, the draftsmen of the Labour Code have seen to it that many time-tested benefits provided under the ESI Act vanish into thin air. The ESI Act provides a bouquet of benefits. But, the bouquet has been meddled with in the Labour Code and individual benefits have been separated and are made to be chosen by every employee, telling him that his contribution would be dependent on the nature and number of benefits he wants. That is why the words “not exceeding” have been incorporated in Sec. 20.1 of the Labour Code, while specifying the quantum of contribution payable by the employer.

Lord: In that case, have they made known to the people that the benefits would not be a package but would have to be picked and chosen by the workers?

Adharkar: No, My Lord ! The draftsmen know what they are going to do but are suppressing the complete picture from being shown to the workers.

Lord: Why do they do so?

Adharkar: If they make their intentions or goals known to the public, they would not be able to privatise the social security scheme, as the public would oppose it. They will not, then, be able to please the businessmen who want to enter into the field to make money by squeezing the workers. That is why they say only a few things  in the Labour Code and try to acquire power  to the rulers to do many things, which are against the workers, through sub-ordinate legislations. When people ask about them, they say that they have not prepared those subordinate legislations yet. They have many such subordinate legislations in mind, like, Rules, Regulations, Schemes, Bye-Laws, Licences, etc.,  But, they say that they have not prepared them yet.

Lord: Is it necessary to prepare the subordinate legislations also along with the Code?

Adharkar: No, My Lord ! Subordinate Legislations can be prepared later. But, the primary legislation which empowers the executive to prepare subordinate legislations must be a self-explanatory one informing the people about the goal and purpose of the legislation. The need is more so, when the rulers want to replace the existing legislations. They have the right to compare the present position with the promised scenario in its entirety. But, the rulers do not want to give complete picture to the people, of their proposed legislations.

Lord: Can the rulers do so?

Adharkar: No, My Lord ! They cannot. There is a Legislative Department under the Ministry of Law & Justice. “The drafting of Bills” is the work of the officials of this department (http://lawmin.nic.in/more.htm). The letter dated 24.04.2017 of the Ministry of Labour shows that they do have a “Drafting Team”. That Drafting Team should have been given some directions, in writing, to prepare the Labour Code. It is those directions which would enlighten the people what is in store for them. But, the rulers do not make it public.

Lord: Okay, but when the rulers do not make something public, why do you presume that the Code would be anti-labour?

Adharkar: It is not my presumptions My Lord! There are indications in the draft Labour Code itself that the intentions of the rulers or the Drafting Team are sinister. Besides, the procedure of drafting legislations require the rulers to entrust the Drafting Team with the ‘legislative policy’. Mr. Justice. M. Jagannadha Rao, Chairman of the 17th Law Commission of India, has written a paper on Legislative Drafting. He says, “The draftsman is not the author of the legislative policy, he merely tries to transform the legislative policy into words. The legislative policy is made by the political executive which belongs to the political party which is ruling the legislature or by the monarch who reigns over the country. The draftsman must, therefore, digest the legislative policy fully before he produces the instrument of legislation which can achieve the legislative purpose”. The issue here with the Labour Code is why the Drafting Team does not make the concerned ‘legislative policy’ public.  That shows that their intention is mala fide. The wordings of the draft Labour Code also testify to the existence of such mala fide intention. People do not know what benefits would be there for them and what would not be.

(John Foster McCreight, the first Premier of British Colombia and then judge of the Supreme Court raises his hand. The Lord nods at him)

McCreight: My Lord ! The procedure of law-making is the same the world over. “Drafting legislation is an art, not a science. A well-drafted bill results, not from slavishly following numerous arbitrary rules, but rather from thorough knowledge of the subject, careful attention to detail, and adherence to such commoJohn McCrieghtn-sense principles as simplicity, clarity and good organization. In drafting legislation, British Columbia legislative counsel have two goals: (1)  to construct legislation that g
ives legal effect to government policy;  (2)  to communicate the law clearly to the people who are affected by it, the officials who administer it and the judges who interpret it.” Satisfying both goals is often difficult, but that has to be, necessarily, done for every law. “Legislative counsel write law based on the drafting instructions they receive from the sponsoring ministry”. It is simply shocking to find the draft Labour Code of India suffering from various infirmities. I wonder how they want the public to opine on it when it is incomplete and contains so many grammatical errors too, besides serious gaps in “communicating the law clearly to the people who are affected by it”.

Lord: Do you think that the government officials would also cheat the public, because the rulers in power direct them to do so?

Adharkar: My Lord ! The bureaucracy in India is a class apart. Sir Humphrey, the fictional character in ‘Yes, Minister’ is nowhere near them, in cunningness. They would cheat not only the people but also the President. They would disobey the President himself, if his decision is not to their liking. They would, therefore, go to any length to please the bosses they like and cheat the people.

Lord: Surprising !  Can the civil service be so?

Thatcher: My Lord ! It  is so in India.

Abdul Kalam: My Lord ! Let me narrate an incident. One Mahendra Nath Das was imposed death penalty by the Supreme Court. He sent mercy petition to the President of India. I happened to be the President at that time. The mercy petition was placed before me in the year 2005 and I commuted the death penalty to life term. Later in the year 2013, I came to know through newspapers that so many things happened in that case. The order issued by me in the file in the year 2005 had not been enforced. The bureaucrats had kept the file pending for years. It was later put up before my successor Pratiba Patil in the year 2011, and she rejected the mercy petition. She was not informed of the decision taken by me in the year 2005. If she had been informed, she would not have taken that decision. Moreover, there was no scope in office procedure to suppress thAbdul kalame factum of my order to obtain another order from the President. Yet, the central bureaucrats had indulged in that mischief. It came to light in 2015 when the Supreme Court of India examined the case filed before it by the person who faced the gallows. So, Indian bureaucracy cannot be expected to be trusted blindly. They must be kept in check, by effectively making use of the Right to Information Act and by strengthening it further, instead of weakening it.

(The Lord Yamadharma Raja was stunned at the revelation by Dr. Abdul Kalam. He feels concerned about his own problems as the Lord of Justice. He looks at Chitragupta).

President Patil Kalam Das Mercy Petition

Chitragupta: Yes, My Lord ! If only that Mahendra Nath Das had been sent to gallows in 2011, after the rejection of the mercy petition by Pratiba Patil, it would have made our work difficult. It will be difficult for us to decide whether Das was guilty of the crime committed by him or the victim of the crime committed by the bureaucrats who cheated the President to cause his mercy petition rejected. If we have to punish him for his guilt we must send him to hell. If he is considered as the victim of the conspiracy hatched by the Indian bureaucrats we must send him to heaven and reserve the hell for those bureaucrats. We will have to weigh the pros and cons very minutely My Lord!

(The Lord nods his head in approval. He is in deep thoughts).

Lord:  Okay, okay ! I am convinced that the Indian bureaucracy at the centre can be cunning to any extent. Now, may I know what they are doing with this Labour Code?

Adharkar: Firstly, My Lord ! Wherever the ESI Act is there, there will be no need for the Employees’ Compensation Act (formerly, Workmen’s Compensation Act, 1923). But, in this Code, the provisions of the Employees’ Compensation Act are retained in Part I (Sec. 61 to 75 ) and some of the very important provisions of the ESI Act, 1948 have been totally omitted. How can the Drafting Team call the draft Labour Code a process of ‘amalgamation’?

Lord: What are those provisions of the ESI Act omitted to be brought to the Labour Code?

Adharkar: Sec. 51-B to Sec. 51-E My Lord! They have totally omitted these benefits. They do not reply when asked who advised them to do so. This is a very serious conspiratorial measure agains the working population by the Drafting Team and the rulers.

Lord: I understand. Are other provisions okay?

Adharkar: No, My Lord! The Labour Code had reduced the quantum of compensation payable to the person who sustained Employment Injury. The Code assures only 50% as per the EC Act and not 90% as per the ESI Act. A scrutiny of Sec. 63 reveals this fact. This section is only the reiteration of the provision of the EC Act. The benefit provided by the ESI Act is not assured here through the Code. It has been left open-ended depending on the mercy of the rulers. Sec. 63 (1) (a) (b) which has the phrase “whichever is more” indicates that the Executive is at liberty to increase or decrease the rate of Dependant’s Benefit. The continuation of the present 90% of wages (roughly) as Dependants’ Benefit is not assured. How can people give approval to such a legislation My Lord!

Beveridge: Is it because the ESI Act does also have that provision only in the Rule and  not in the Act?

Adharkar: Mr. Beveridge! When the ESI Act was enacted for the first time, the quantum of all these benefits were assured in the Act (as The First Schedule), before seeking the approval of the Parliament. Now, when the rulers want to replace the present ESI Act, they cannot play hide and seek with people. What is the difficulty for them in shifting the quantum of benefit of Dependants’ Benefit from the ESI (Central Rules)  to the Code itself? More so, when they have shifted the quantum of contribution from Rule 51 of  the ESI (Central) Rules ( a subordinate legislation) to the Labour Code (a primary legislation) directly?

Lord: Why do they do so?

Adharkar: The authorities do maintain a cunning silence in this regard, My Lord! They have not attached any Notes to the draft Labour Code explaining why they included something and excluded others. They do not show the draft ‘Statement of Objects and Reasons’ too. They cannot, therefore, be trusted, My Lord!. The rumour is that they might not provide Dependants Benefit equivalent to the present one in future, @ 90%, to facilitate entry of private players in the market of Social Security and enable them to make a lot of profit.

Lord: When the ESIC is paying the Dependants Benefit @90% does is suffer any loss?

Adharkar: No, My Lord ! ESIC was showing surplus consistently. A social security organisation must have such strong surplus. The funds were kept only in government securities.

Lord: Is such a surplus necessary?

Adharkar: Yes, My Lord ! Adequate surplus in an insurance against Anxiety, says the Noble Prize Winner Economist Paul Krugman. It is essential in the insurance field. The surplus in the ESIC was not a flab. Moreover, such a surplus got generated from the 1950s when the ESIC had Chapter VI, providing for Employers’ Special Contribution, collected from all over the nation from the employers who were not in the implemented area. Moreover, the ESIC was managing its funds best, My Lord ! This was appreciated by the newspaper Economic Times too in February 2003. The system of managing funds was improved in the subsequent four years, by collecting daily offer from various nationalised banks every afternoon and deposting the money with them in Savings Bank account, instead of Current Account. The method was marvellous My Lord!. But, these essential facts are either not understood by the elements which run down the ESIC or they pretend not to know that. Because, their motive in bringing the Labour Code is ulterior, My Lord!Economic Times 5 2 2003 copy 2

Lord: I understand. When will the earthlings mature? What is the reason for the desperate efforts taken now to privatise social security in India in such a cunning manner?

Adharkar: My Lord, the ESI Corporation cannot give any corporate donations to the political parties. So, there is no real gain for the rulers to run the ESIC right. They, therefore, choose to run it down. There had been vicious campaign against the ESIC and the EPFO from 28.02.2015 onwards, when the Finance Minister presented his budget stating, in an arbitrary and unauthorised manner, that these organisations were holding the employees as hostages. When asked under the RTI Act, no Ministry could explain how such an allegation found a space in the Budget speech.

The agents of the money sharks are working over time since then to campaign against these organisations through numerous articles in various newspapers including the Hindustan Times and the Forbes. My Lord, Indian society is going the wrong way. The humanity is going to suffer a lot unless the mala fide designs of the politicians-businessmen-middlemen-bureaucrats nexus is exposed before the public. There are so many mischievous portions in the Labour Code, My Lord! They do not want to examine the disastrous consequence of similar steps taken in Peru and Chile. They are hell bent on obliging the money sharks who want to enter into the insurance field and loot the people who draw upto Rs. 21000 pm. That is the reason for this unseemly hurry in bringing out this Labour Code, in such a peremptory manner.

Lord: Yeah! Let us analyse them deeply tomorrow!

(Lord Yamadharma Raja rises up. The assembly is dissolved)

(Contd.)

 

Images: Courtesy,  Wikipedia

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Slave Labour Code: Questions for the meeting on 02.05.2017 !

Note on the draft Labour Code submitted to the Secretaries of State Governments for their consideration before they attend the meeting convened by the Secretary, Ministry of Labour & Employment, Government of India on 02.05.2017 at 03.00 PM in New Delhi.

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To download PDF file, please click on the following image:

Note for State Secretaries page 1

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1. The Ministry of Labour & Employment of the Government of India has proposed “to have a consultation Meeting” with the Secretaries of all the State Governments and Union Territories on 02.05.2017 in New Delhi. It has been mentioned in the letter No. Z -20023/13/2015-LRC dated 24.04.2017 of the MOL&E that this is a “consultation process for deliberations on the Code on Social Security & Welfare”. Every State Government has been invited to depute the Secretaries in charge of the four departments, viz., Labour, Health, Social Welfare and Woman & Child Development.

2. It becomes clear from the Ministry’s letter dated 24.04.2017 that this is the first time the draft Labour Code is officially taken to the knowledge of all the State Governments by the MOL&E. They have not been given time to consult the employers, employees, workers, legal experts, political leaders of their States. It is, practically, difficult for these Secretaries to go through the entire draft Labour Code personally and understand the ‘system’ that is proposed to be put in place. It is only fair that the States must be given time adequate enough to study, understand and arrive at their opinion about the issues involved. But, the issue is hurried through by the MOL&E for inexplicable reasons. Speed and surprise are anti-thesis to democracy when discussing the welfare measures of the people of the nation. Continue reading

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Labour Code: Premature one ! Bizarre method of law-making !! Draftsmen ignorant of destinations !!

Applications were sent on 04.04.2017 and 05.04.2017 under Sec. 6 of the RTI Act, 2005 seeking certain information pertaining to the Labour Code.

The following was requested for, in the application dated 04.04.2017:

  • “Kindly supply the relevant pages of the ‘filenoting’ / ‘office note’ / ‘report of the committee of experts’ / ‘report of the of officers’ in which such an explanation justifying their suggestion to drop the word ‘substantial’ in Sec. 94 in ‘Part L’ of the Code is found recorded.”

 

Again, the following was requested for, in the application dated 05.04.2017:

  • “Kindly supply the copies of the format of the proposed License (containing the Terms and conditions imposed by the Government on the agencies) referred to in Sec. 88 and 89 of the said Draft Labour Code on Social Security & Welfare;
  • Kindly supply the copies of the proposesd Regulations and the Schemes referred to in Sec. 24 of the said Draft Labour Code on Social Security & Welfare”.

For more: https://flourishingesic.info/2017/04/06/labour-code-plea-for-publicising-draft-rules-regulations-schemes-license/

It was clearly mentioned in the Appendix to the Application dated 05.04.2017 as under:

“When, the present piece of legislation, the proposed Labour Code, is intended to replace the existing social security machinery, people become apprehensive and want to know whether they stand to gain or lose by that new system.

2. The Executive, therefore, cannot bring in a truncated version of the proposed system in the form of Code and ask the MPs to vote. But, that, exactly, is what the bureaucracy has, exactly, done through this Draft Labour Code. Sec. 24.5 of the Code enumerates the nomenclature of the benefits that would be made available to the workforce. But, the quantum of benefits and the nature of machinery through which such benefits would be provided have not been made known. These issues have been kept reserved for the Executive to make Subordinate Legislations later.

3. But, in all probability, the draft subordinate legislations, (a) the Rules, (b) the Regulations including the termns of conditions of license and (c) the Schemes would, already, have been prepared and kept in the Ministry. The non-publication of those drafts along with the Draft Code, for public debate gives the bona fide impression that the forces which are behind  this move, want to hide many vital aspects of the proposed social security system away from public knowledge until they get the Code passed by the Parliament and acquire power to do whatever they want through Subordinate Legislation. Or, i.e., if they have not yet prepared those draft Rules, draft Regulations, draft Schemes and draft licences, it would imply that these forces want to destabilise the present social security structure and bring in something which is not known even to themselves.”

Our apprehensions have become true.

The entire draft Labour Code is the handy work of some bureaucrats or middlemen who do not know the niceties and intricacies of not only the subject matter of the Code but also the technicalities of legislative drafting. What is more, they do not know what their ultimate aim is but have attempted to write something as Labour Code and create unnecessary social unrest in the nation.

The reply received from the Ministry in their letter No. M. 13014 / 01/ 2017 – LRC dated 25.04.2017 testifies to this fact.

RTI Reply from Ministry copy

This is not the stage appropriate and proper for a Ministry to call for the opinion of the public. Nor it is a correct stage to call for the meeting of the Secretaries of all the State Governments on 02.-5.2017.

The Government of India must, therefore, withdraw this premature draft Labour code immediately. 

 

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