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.

4. 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.
5. 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.
6. 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.
7. 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 25^th October 2017.

Counsel for the Petitioner.