Amendment to Sec. 17 (2) (a) the ESI Act, 1948:
Insertion of the second proviso regarding the appointment of Consultants.
The complete details on this topic, as made available to this website, run into fifteen pages, with date-wise details. The relevant photocopies, if scanned and uploaded, would add to the already unwieldy size of the article. The essential facts are, therefore, placed before the readers in the Powerpoint Presentation for the benefit of their own analysis.
Firstly, there was glaring discrepancy between the ‘Statement of Objects and Reasons’ and the actual version inserted as the second proviso to Sec. 17 (2) (a) of the ESI Act, 1948. While the former stressed on the need for Consultants and Specialists in medical field, the latter was an omnibus provision for appointment of anyone as Consultant or Specialist in any field.
As expected, the ESI Act books that are printed and sold in the market do not carry the Statement of Objects and Reasons and other important provisions of the Bill placed before the Parliament. What is more? Even the text of the Act made available, as verified today, in the official website of the ESI Corporation does not show the very important ‘Statement of Objects and Reasons’ ⋆⋆ placed before the Parliament in 2009 and 2010 for seeking their approval. So, no one can blame the posterity, if it makes use of this provision for appointing anyone as Consultant or Specialist in any field.
Secondly, the term ‘Consultants’ and ‘Specialists’ used in Sec. 17 (2) (a) has not been defined in Sec. 2 or anywhere else in the ESI Act, 1948.
Thirdly, when the Committee of Secretaries asked certain clarifications on 06.01.2009, to avoid vesting arbitrary power in the Director General for appointment of Consultants, a promise was given by the Director General and the Cabinet Secretary that that issue would be taken care at the time of framing the Rules. But, in spite of the passage of more than two years, no Rules have, so far, been framed.
Fourthly, the Ministry of Law, had had the benefit of knowing the observations of the Committee of Secretaries, because of the ‘Single File System. Yet, the Ministry of Law cleared such an important amendment within two days on 26.06.2009,
- without examining the wide arbitrary nature of power sought to be vested in the appointing authority,
- without examining what the terms ‘Consultant’ and ‘Specialist’ meant and
- without examining the dichotomy between the ‘Statement of Objects and Reasons’ and the ‘exact terminology of the proviso’
Fifthly, the Ministry of Law did not even think it necessary to keep the copies of the relevant pages, in its Precedents File, to enable it to know for itself, what it had done.
Sixthly, as no Rules have so far been framed by the Central Government, as could be seen from the text of the ESI (Central) Rules, 1950 made available in the official website of the ESI Corporation, it is presumed that this specific amendment has not yet been made use of. It, then, becomes even more intriguing why such an amendment was made, in such a hurry, when there was no need for invoking that provision.
Seventhly, the most important question is whether the Parliamentary Standing Committee had, really, cleared this provision for placing it before the Parliament.
It is a fact that the Bill had been placed before the Parliament during various sessions and was getting postponed to the last day of the concerned session when it was taken as read, amidst the din created by the issue of Mr. Sibu Soren, without any discussion at all.
Eighthly, unlike the Amendments of 1989, which were gradually implemented over a period of two years, all the Amendments made in the year 2010 were brought into effect all of a sudden at one go.
Was proper procedure followed in the enactment of this particular provision of law?
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⋆⋆ Note: Incidentally, everyone knows that the original ‘Statement of Objects and Reasons’ placed before the Parliament in the year 1946 at the time of enactment of the ESI Act, is not available in common. It has been traced to an old book of 1953 and that will soon be displayed in this site for the benefit of all.