Category Archives: Amendments 2010

Mr. O. Abdul Hameed, former A.C, on ESIC Medical Colleges!

(Mr. O.A. Hameed, former Additional Commissioner of the ESI Corporation, has written the following in the Facebook, which is reproduced here for the benefit of the readers)

“After seeing ESIS from within the organisation at several level and at several States including its Corporate HQ and then from Industry in two States and one UT, I feel ESIS scheme has utterly failed in its primary goal. For me the primary goal is to provide satisfactory medical care with greatest emphasis on primary medical care through the dispensaries. Why do I say primary medical care is much more important ? The object of the scheme is to to prevent absenteeism due to sickness by keeping workers healthy, and by keeping their dependent healthy and in case of illness, to ensure that they are cured as early as possible, so that they can join back the economic activity and contribute to their own need-satisfaction as also the national production and productivity. Primary medical care is also the most accessed benefit unlike cash compensation since every one in family need to go to a doctor for small to major ailment and while wast majority go to primary medical centers, those needing super-specialty would be a fraction. If you take a group of 1000 IPs/family member during a period of one year, we may find that at least 900 would need to go to a doctor at least once during the year, whereas not more than 5 would need super-specialty care. It is in the Primary care role, ESIC failed miserably, by asking the contributing person to go to State Government, while enforcing contribution! Panel system in major state provide no medical care at all, just leave certification and primary medical cares dispensaries in most state is very poorly managed. ESIC has been taking the stand that medical care is responsibility of State and it is difficult for them to take over. When ESIC can not run primary care dispensaries, providing basic infrastructure and personnel, they are now embarking on very expensive step of medical education by setting up over 15 medical colleges besides PG centers, nursing colleges, para-medical colleges etc. It is like, if you can’t provide dal-roti, provide chocolate cake and to do that set up several air conditioned cake factory!”

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But, things had, long back, gone beyond the stage of consideration of this valuable advice. So many projects running into hundreds of crores of rupees were sanctioned, in the year 2008-09 itself, for construction of buildings for the Medical Colleges, even before the Parliament passed Amendment Bill in the year 2010.

Event that Amendment came into existence by deceiving the Parliamentary Committee. Ministry of Law did not want to go into the merits of the issues raised by Mr. A. Veerappan. Herculean attempts made by him to convince the Members of Parliament met with improper response by those members. Only a few workers unions in Chennai and Banagaluru raised voice of protest. Parliamentary approval was managed on the last day of the session. For more on them, click on these links. (https://flourishingesic.info/2012/10/11/prof-adarkar-and-esic-medical-colleges/) & (https://flourishingesic.info/2012/09/13/no-time-to-read-so-esic-got-medical-colleges/)

Now, there are buildings but no medical colleges, Ayanavaram being the best example. Land had been alienated to CMDA too, unnecessarily without any authority. (https://flourishingesic.info/2013/02/21/executive-powers-of-the-chairman-standing-committee-of-esic/)

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A reader from London has sent an email which describes the situation very appropriately, with precedents. Excerpts:

“… I am reminded of the 3rd Law of ‘The 48 Laws of Power’, written by American strategist Robert Greene and the said 3rd Law is reproduced under:

“Conceal your intentions. Keep people off balance and in the dark by never revealing the purpose behind your actions. If they have no clue what you are up to, they cannot prepare a defines. Guide them far enough down the wrong path, envelop them in enough smoke, and by the time they realise your intentions, it will be too late.”

I am sure that you will agree that the above law holds good on all the issues raised by you in your write-ups, as the real intention of the powers-that-be behind such reckless actions are indeed malafide, but camouflaged to hoodwink the gullible public….Now coming to the yet another issue of manifest misuse of administrative powers and total lack of accountability …. of such powers-that–be, but conveniently forgotten with the passage of time, as the public memory is too short, as the adage goes.  … give a thought on the so called ‘Census’, futile exercise undertaken in all Regions, ordered at gun point, in the year 2007, involving considerable expenses at the cost of stake holders’ hard earned money, but with no useful result to the organisation. …”

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Readers may please go through the Comments below as they contain important information.

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Welcoming Hon’ble Mr. Ola as Administrator!

Q. Germany has Europe’s highest employment rate today. How did the German economy escape being hit by the crisis?
A. I think our social security system is the stabilizer.

Ursula von der LeyenGerman labour and social affairs minister

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(The following may be read as Part III of the earlier Article titled ‘For efficient transaction of ESI Corporation’s business’. This forms part of the Note to be submitted to the Sub-Committee constituted on 19.09.2013. The next and last Part will deal with the consequences of the Minister becoming Disciplinary Authority by virtue of his becoming Appointing Authority)

The millstone

The officers in the Administration wing had been wielding arbitrary powers in a whimsical way in the matter of transfers of officers. Moreover, they assumed full powers for themselves to style those transfers as ones in public interest (without the approval of the Director General). It happened in numerous undeserving cases resulting in the siphoning off Corporation money in an unauthorized manner. Their activities during this era has become an albatross, now, for those who plead for keeping politicians away in the matter of transfers of officers of the ESIC.

These events prove, once again, only the fact that when there is no need to enforce any Transfer Policy, the bureaucrats would also behave subjectively, whimsically and for extraneous considerations.

The scope for real service lies here for the Minister

What is, actually, required for proper administration of the ESIC is enforcement of a proper and well-laid down transfer policy in a transparent manner. The ESI Corporation as a body, the Hon’ble Minister, as the Chairman of that body and the Standing Committee as a body , all the three, can do a real service to the nation by ensuring proper enforcement of that policy by the Chief Executive Officer without interfering in its implementation every year.

But, any attempt by the Minister to acquire that power for himself is of no use for the well-being of the organization.

  1. The Minister has not explained how and why the decision taken by the ESI Corporation on 27.02.2005 was wrong.
  2. He has not explained how and why things would improve if he becomes the Appointing Authority and Disciplinary Authority for the officers of the ESI Corporation.
  3. He has not explained how he would enforce the power of transfer if and when vested in him.
  4. He has not explained what policy he would follow to make the functioning of the Organisation better, by acquiring the power for transferring the officers any by becoming their disciplinary authority.
  5. He has not explained whether he would make any foolproof provision to prevent the opposition party from misusing these powers if and when that party comes to power at the Centre.

Every citizen of the nation is entitled to know what sort of checks and balances are provided to guard against be abuse of power of transfer of officicers. Every citizen is entitled to feel concerned that an important organization like the ESIC, which is the backbone of the nation’s economy, is not made a playground to play foul games.

Moreover, a politician should not be allowed to be the Disciplinary Authority. That would corrode the civil service, the steel frame of the nation.

Creating constituencies

Transparent transfer policy alone is the need of the hour. Christening exoting names like ‘Fairness Committee’ or any such things would, actually, create more power centres. One who is genuinely in need of transfer will have to please so many persons in that Fairness Committee. Instances were many that the officers who were in such committees created their own constituencies among officers.

Once, the Committee met. An officer who was in the Committee in the Hqrs. office, managed to get ‘his man’ transferred to the place of that man’s choice. Just after the meeting of the Committee was over, he ‘dutifully’ telephoned that man to convey the message so that that man would remain loyal to him in the future too. ‘That man’ was very happy, naturally. He thanked the officer profusely. But, he did not stop with that. He immediately telephoned the Director (Administration) and thanked him too for that transfer. Now, the Director (Administration) was wondering how ‘that man’ knew of the developments so fast. In another case, an officer just advised the committee members to finalise the transfers of all as they pleased but to leave one Region to him. The other officers complied with his request. He just settled his personal score with many officers of that Region. Favouritism and Witch-hunting became the hallmark of that order. With Fairness Committees, the organization saw only collusion of persons in power to achieve their personal ends.

Opportunity lost

Public interest will be served only if there is a well-laid-down policy and it is enforced in a transparent manner. Such transfers are effected in Indian Oil Corporation and many other organisations. These organisations travel some extra distance, too, to help the admission of the children of the transferred officers in educational institutions. These measures are well-justified and the ESIC Administration expressed its readiness to consider these issues in the year 2004. But, the ESIC Officers Federation played spoilsport.

If a proper policy is laid down, the general transfers will, simply, become a clerical work in the E. I. Branch itself without much scope of manipulation and arbitrary discretion. The staff members had been very sincere and almost scientific in applying the principles of transfers and postings while preparing the proposals both at the time of promotion to hundreds of officers on every occasion and at the time of general transfers. But, what they need is clear and unambiguous guidelines in writing.

The Hon’ble Minister would be doing real service to the nation, if he ensures that such a policy is really enforced by the bureaucrats in an objective manner. If, still, the Hon’ble Minister wants to become the Appointing Authority, Disciplinary Authority and Transferring Authority, he must become a full-time administrative officer of the ESI Corporation and run the organization duly assuming responsibility for his actions.

It would be helpful, if the public is enlightened about the reasons, if any, recorded by the Hon’ble Minister for the various transfers ordered by him so far, through his unlawful interference in the Administration, by exercising undue influence.

Those instances would show the tendency of the Hon’ble Minister to the public. And the public does have the right to know what their Minister is up to.

We welcome Hon’ble Minister, Mr. Sis Ram Ola to become a full-time administrator of the organization thus. But, let hm not remain the Minister also at the Centre in charge of various other departments and dabble only with the transfers of officers of the ESIC. We know very well how seriously it harmed the EPFO.

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It would be of help to readers to go through the following news items too:

The Hindu, August 13, 2013:

A senior IAS officer handling sensitive gas pricing issue and matters pertaining to Reliance Industries Limited-held KG D6 block has been relieved of majority of his duties on personal orders of Petroleum and Natural Gas Minister Veerappa Moily.
According to the August 6 note signed by Mr. Moily and accessed by The Hindu, Joint Secretary (Exploration) in the Ministry, Giridhar Aramane, has been relieved of charge of gas pricing, acquisition of E&P assets abroad, all establishment and administrative matters related to Oil and Natural Gas Corporation Videsh Limited and unconventional hydrocarbon.
“The above mentioned work of Mr. Aramane is transferred to Joint Secretary (IC & GP) P.K. Singh,” says the note.
Mr. Aramane was involved in taking action against Mukesh Ambani-owned RIL for shortfall in production and failure to fully implement the field development programme in the KG D6 block.
A spokesman of the Ministry denied knowledge of any such order being issued.
“I demand the immediate withdrawal of the order. The new officer being posted in place of Mr. Aramane will carry out the dictates of the Petroleum Minister and would not do justice to his job,” CPI MP Gurudas Dasgupta said in a letter to the Prime Minister.

Times of India adds:

On its part, the ministry dismissed allegations made by Dasgupta. A senior official said, “If there was any ulterior motive Aramane would have been divested of gas pricing when it was not finalized. Now, gas price is settled and the Cabinet has cleared it. Transfer has been done to bring in better synergy.”
Calling the transfer of Aramane “nothing short of a fraud being played out by the petroleum minister”, Dasgupta said by his abrupt transfer “government loses the expertise that the officer has gained in the subject”. He said entrusting Aramane’s work to an officer “who has been recently promoted as joint secretary by the present petroleum minister will ensure that the new officer shall only carry out the dictates of the minister and will not take an independent view in the matter”. Dasgupta said the “honest” officers are being victimized and “pliable ones being rewarded by the government, as the country has witnessed in the case of Durga Shakti Nagpal and others”. Referring to the Supreme Court’s stricture against the government for transferring officials handling the Coalgate investigation, the CPI MP said, “Transferring officers, who are carrying out their duty with integrity and upholding a public interest, in spite of unrelenting pressure from unscrupulous ministers, is a serious scandal.”


The Hindu said on the same day in a different news item:
“Strongly refuting charges of transferring an officer for being tough on Reliance Industries, Oil Minister M. Veerappa Moily on Tuesday said he will resign if even an iota of evidence was produced against him”.

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Professionalisation of Personnel

(The following may be read as Part II of the earlier Article titled ‘For efficient transaction of ESI Corporation’s business’. This forms part of the Note to be submitted to the Sub-Committee constituted on 19.09.2013)

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A transparent Transfer Policy is one that is made applicable universally to all the officers. But, the non-introduction of such a policy facilitated the persons in power to take over the entire organization to sub-serve their personal interests by transferring just a few officers, now and then, at any time, whimsically and, thereby, sending a veiled but apparent, constant and unmistakable threat to the other officers that they would also face the same fate, if so desired by those persons in power. The ESIC Officers’ Federation had been demanding for long a comprehensive Transfer Policy as there were many ‘Pressure Groups’ functioning and the issue of transfers remained a ‘vexed one’.

Minister saw through the bureaucrats

The commencement of this century saw a period of turmoil in the matter of transfers in the ESI Corporation. 2003 and 2004 was the period when the then Minister for Labour was compelling the Administration of the ESI Corporation to make transfers of officers of Group A and Group B with his approval. He was of the opinion that when the top-level bureaucrats of the ESIC could transfer the subordinate officers without following any policy, he should also have a role to play. He was clever enough to see through the justification given by those bureaucrats that they were adopting the policy of “Need-based transfers”, an euphemism to justify whimsical orders. Whose need was served by those transfers was the question that went unanswered. It was in such a situation, the new Director General attempted to bring some order in the matter of transfer of officers. He formulated a transfer policy in the year 2003 and conveyed it to the ESI Officers’ Federation to enable the latter to explain its stand. The following was the reply sent by the Federation to the Director General and circulated among the officers for their information:

Advocating arbitrariness

Advocating arbitrariness

Volte face by the Federation

This letter was totally in contradiction of its stand on various occasions that the ESI Corporation must formulate and enforce a proper transfer policy to avoid “pressure groups”, as stated by it. What the Federation had displayed through its letter dated 28.1.2004 was that it lacked the sense of responsibility not only towards the organisation but also towards the nation. What the Federation had overlooked to see was that the persons in power, by transferring, according to their whims and fancies, a minority of officers sent a very strong message to the majority also that any one of them could, at any time, become part of that minority, if one did not display one’s loyalty to those who happened to occupy the positions of power.

But, the Officers’ Federation did not care. It had refused to see that the past practice defied the principles of Rule of Law. It had refused to go through its own demands in the past. It did not want to refer to its own Minutes. The stand of the Federation showed that it did not insist on all its members being treated as equals by the Administration. All its members joined the organization with the absolute prior knowledge and clear understanding that the posts in which they joined carried all India transfer liability. But, the stand of the Federation showed that after joining the organization with a promise, they developed an organised strategy and tendency to renege from the transfer liability voluntarily undertaken by them to benefit only themselves and not the society. But, in the end, the absence of transfer policy did not facilitate all the officers represented by the Federation. It benefited only those who were the office-bearers in the Federation and those considered closer to them. How to become closer to them was known only to a few.

Because of the actions and inactions of the Federation in the years 2003 and 2004, the Transfer Policy introduced on 29.5.2003 could not be enforced. There was a lot of political interference and the ‘full power’ legally vested in the Director General was attempted to be curbed and taken away by the Ministry of Labour during the years 2003 and 2004, in spite of the fact that the ESI Corporation was an autonomous body and that it was only the Director General who was accountable for the performance of the organization, his being the Head of Department, the Appointing Authority, the Disciplinary Authority for officers and the Chief Executive Officer of the ESI Corporation.

Light came at the end of the tunnel

However, the situation changed dramatically when Shri K.Chandrasekhar Rao, former Minister for Labour & Employment, became the Chairman of the ESI Corporation. He came to know all the on-goings, got disenchanted with the machinations of the Ministry of Labour and the manipulative tendency of the Officers Federation. He declared openly, in the meeting of the ESI Corporation held on 27.2.2005, that there would be no interference with the powers vested in the Director General. He had, thus, ensured that the Director General exercised the powers of transfer as vested in him already in the capacity of the Chief Executive Officer, Head of Department and Appointing Authority, and as per the proclaimed Transfer Policy. This was recorded in the Minutes. Consequently, a transparent Transfer Policy came into existence and force on 17.3.2005. Subsequently, the next Director General had also found the merits of enforcing transfers as per the Transfer Policy. He made further efforts and enlarged the concept. He introduced, a Transfer Policy for Inspectors too, for the first time, in the year 2006.

Transfers in respect of Group ‘A’ officers were, thereafter, made from the year 2005 onwards as per the policy dated 17.3.2005.

But, all of a sudden the said Transfer Policy has not been shelved frm the year 2007 onwards. The transfers and postings have, largely, been made in an arbitrary manner again.

Public interest lost sight of

The letter dated 14.11.2008 of Administration Division would testify to the fact that public interest had taken back-seat in the matter of transfers and postings in the ESI Corporation. This letter was issued and circulated among the officers community to motivate them to discharge their work better. The letter said that the officers have been accommodated in their places of their choice even where there was no vacancy. The Transfer Policy enforced from 17.3.2005 has been quietly buried and was to be forgotten, in spite of its being part of the Manual of Administration published by the ESI Corporation.

Exigencies of private service!

Exigencies of private service!

So much power, wielded by subordinate officers

This letter provides clear evidence that the placement of the officers depended not upon the workload at a particular place but upon the pleasure of the officer in charge of the Administration who occupied the post in which his duty was to submit the facts to the Director General. Placement of officers had, thus, been made a ‘privilege’ extendable by the person manning the Administration Division, only to the officers of their choice and subjective preference. It was not a ‘right’ to be expected and claimed by ‘all’ the officers. Significantly, this letter had been issued without the prior knowledge and approval of the Director General. So much was the power wielded de facto by everyone in the Administration Division of the Headquarters, during this period.

Policy Vs. Luck

Evidences were many when officers had been transferred and posted to faraway places against their wish. The past practice of selective discrimination in transfers and postings had, thus, again, been restored and enforced with more gusto. The personal loyalty of officers to the persons occupying the posts in the Administration Division (as was in vogue during the pre-2003 era), had, again, become the basic touchstone to decide their places of postings. How a proclaimed Transfer Policy could be quietly buried had not been made known. The reason for having shelved the said policy had not been made public.

The system of governance of a public organization was so fragile and frail that an established system proclaimed in writing and circulated nation-wide as a policy could, simply, be dispensed with, silently, because of change of incumbency, (i) even without making the reasons public, and (ii) especially when many officers had been subjected to transfers as per that policy in the earlier years and had, then, been left to believe that they had become victims of the circumstances and that the career and placements of officers in the ESI Corporation depended not on any policy but only on the extraneous factors like chance and luck or one’s ability and smartness to please those who matter.

Professionalisation of Personnel stopped midway

The 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). Moreover, laying down proper Transfer Policy and its adherence has been the norm all over the nation as could be seen from the following few facts. Some of the State Governments have beautifully explained the need for  transparent transfer policy:

  1. The Government of Andhra Pradesh has laid down a Transfer Policy in its order No. Finance (W&M) Department G.O.Ms.No.100 dated 01-05-2007, stating that “the transfer policy should be an effective tool in capacity building with departmental employees getting a variety of experience within the department, thus becoming more fit to hold higher responsibilities”
  1. The Government Of Mizoram has, in its O.M, NO.A.22011/1/2006-PAR(SSW) dated 22.8.2006, issued by the Department of personnel & administrative reforms, laid down the Transfer Policy providing detailed “Guidelines for transfer and posting of Mizoram Secretariat Service Officers”.
  1. The Government of Maharashtra has laid down the Transfer Policy for the Maharashtra Government Servants through “Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (Mah. XXI of 2006)”, effective from 1.7.2006.
  1. The Government of Himachal Pradesh has laid down the transfer policy duly taking “into consideration the directions of the High Court given on the subject, according to which all employees should be treated fairly by the policy”.
  1. In regard to Uttar Pradesh, The Surendranath Committee recommended specific scheme for functional specialization and placement of officers to ensure civil service reform and professionalization of personnel.

It was this march towards ‘Professionalisation of Personnel” that had been stopped midway by the quiet burial of the proclaimed Transfer Policy which had been enforced from 17.3.2005 onwards. The letter dated 14.11.2008 issued by the Administration without the knowledge of the Chief Executive Officer testified only to this fact.

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When the BSNL employees lost their LTC…..

Q 1. Why did the BSNL employees lose their LTC and the benefit of encashment of Leave?

A. Because, they did not care to know what was going on, when their Management was leading the BSNL in wrong direction to land that organisation in the red. These employees simply were imagining that it was not necessary for them to know anything about what was going on at higher levels of the organisation.

Q 2. When did the BSNL employees start evincing interest in knowing what their Management was doing?

A. They became alert and curious to know what was ailing their organisation, only when they lost promotion prospects and started stagnating in their career, when they were about to lose their service benefits one after the other, when they were offered VRS, and when the BSNL Management started saying openly that the financial position was not okay with it.

Q 3. What do the employees of BSNL do now?

A. They delve deep into the issue and examine where their Management went wrong. They show keen and real interest in extending the reach of the BSNL to new areas, where people want BSNL broadband but the BSNL Management is showing royal indifference to their suggestions so that the  situation would facilitate the private players to make money in those areas. They are not happy when their Management tells them not to bother themselves about expansion but just to maintain whatever they already have. They want the management to purchase new machinery and equipment to match the services rendered by private operators. They want vibrant BSNL. They protest against the slackness of the company in making fresh investments. “The new machinery is not being bought by the company which is hitting the growth prospects badly” said Mr. Nalawade, Secretary of BSNL Employees’ Union. (Indian Express – Dec 16, 2011).

Q 4. Could things have been different in BSNL?

A. Possibly, if the employees (Staff and Officers) and their Federations had woken up earlier to save the organisation and raised these demands at that time itself. These Federations could have taken the unlawful activities of the Management of the BSNL to the knowledge of the public in time. They could have played their role effectively in averting the calamity. But, they did not do anything when they knew that things were going wrong. The Federations of the employees did not act when they should have acted. In other words, whatever they are doing now could have been done by them earlier. That could have changed the scenario.

Q 5. What is the reason for BSNL to remain in the red?

A. Interference of the politicians in power. The BSNL management should have been given freehand to run its affairs in a competitive market. They should have ensured that the Management was functioning effectively and also objectively without there being any misuse of power by the bureaucrats. But, the politicians did not permit professional management of BSNL. They wanted to favour the private players by curtailing the role of the BSNL in the nation. “In the past four years, BSNL has accumulated a loss of Rs.25,258 crore spectrum as payments for 3G and broadband spectrum depleted its reserves and expansion plans were hobbled because of political interference and litigation, harming its ability to compete with private companies such as Bharti Airtel Ltd and Idea Cellular Ltd.” (Live Mint. Aug 06, 2013).

As long as they are governed by the ministry and ministers and not their own board, whether they get government help or not will not make a difference, said B. K. Synghal, former managing director of Videsh Sanchar Nigam Ltd (now Tata Communications)” . This is what many Ministers do when they are given power to play a role in the Administration. They have their own commitments to so many that they spare no chance to make the organisations under their control to cater to their various needs. They do not allow autonomous bodies function autonomously. Honest bureaucrats who run those autonomous bodies are found by them to be inconvenient. If there are dishonest bureaucrats, these Ministers, instead of pulling them up, join hands and and make hay. There are and were some exceptions, but they are rare and are not encouraged. As a result, many honest bureaucrats develop a tendency to seek transfer out so that they were not required to be party to the misdeeds of such ministers. This makes the designs of the Ministers easier.

Q 6. What are the suggestions by ‘experts’ to revamp the BSNL?

A. “In 2009, a panel consisting of technocrat Sam Pitroda and banker Deepak Parekh had recommended that the government sell a 30% stake in the company to the public and also cut its staff by 100,000.” (Ibid.).

Q 7. What is the need to sell 30% stake of the PSU?

A. These ‘experts’ have their own axe to grind. They do not want BSNL to flourish. The BSNL does, in fact, have the potential to provide cable connection to the Televisions of all the house-holds in India. They can facilitate people seeing all channels or any channel of their choice at a much cheaper cost. At one stroke all the private DTH service providers and cable connection providers would vanish from the scene. That would facilitate the common people immensely. But, such an arrangement is not convenient to the politicians in power, irrespective of the party in power, as the BSNL would not give money to them, in black or in white while the private players do, in both. That is why these salesmen of the nation are out to sell the government undertakings to private people. Earlier too, a successfully-run VSNL was, unnecessarily, sold to private hands by the erstwhile rulers.

Moreover, these politicians do not bother to enforce RTI Act in the institutions of Airtel, Tatadocomo and other private service providers. But, the BSNL and MTNL are subjected to it. When all are in the same field, if the private players are also subjected to RTI Act, the money squandered away to the politicians by these private players would become known to all. The politicians and the so-called experts are, therefore, not for it.

The politician-top level bureaucrat-businessman nexus is all out to spoil the BSNL and the nation too, in that process. The very salary drawn by the top-brass of the private service providers and the top-level officers of the BSNL would show that the gap is extreme. Likewise, a comparison of the lower level workers in both would show that the BSNL pays them reasonably while the private service providers pay just pittance and have contracted the work out. While BSNL and MTNL pay all its employees well, the rich and poor gap is made very very wide in the offices of the private service providers. The Indian society does not grow on healthy lines with such private players around. An unjust society is created by these private players duly encourage by the politicians and the ‘experts’ who are out to sell the nation.

Q 8. The VSNL’s former Managing Director blamed the interference and control by the Ministers over the BSNL for the problems faced by the BSNL. But, who is blamed by the Minister for the ills of BSNL?

The Minister blamed the employees and accused them of inefficiency. The BSNL is not permitted to function even upto its Equipped Capacity. The Working Capacity is just two third of the Equipped Capacity. Still, the employees are blamed in public to justify privatisation of telecommunications. But, the VSNL was sold, by the BJP-run government even when that undertaking had been run efficiently by the officials.

Junior Vihadan - January 7, 1996

Junior Vihadan – January 7, 1996

Q 9. Is the financial position of the BSNL still in the red?

A. Yes. Their letter dated 06.05.2013 says so. The text of the letter is given below (Emphasis supplied).

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BHARAT SANCHAR NIGAM LTD

(A Government of India Enterprise)

Bharat Sanchar Bhawan H.C. Mathur Lane, New Delhi-01

No. 13-1/2013-PAT(BSNL)                                                                                                                                                                                                         Dated: 6-May-2013

To

All Heads of Telecom circles.

All Heads of other Administrative units.

 

Sub: Expenditure Control in BSNL.

In partial modification of BSNL letter No. 7-8/2010/EF/Part/1 dated 05.09.2011, the competent authority has decided that as financial performance of BSNL is not improving, All India LTC facility will remain frozen for all BSNL Employees till further orders. However, the employees who cross the age of 59 years shall be allowed to avail one All India LTC during the last year of their retirement.

Other terms & conditions of the above letter dated 05.09.2011 will remain unchanged.

Sd-

[Sheo Shankar Prasad]

Assistant General Manager (Pers.V)

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Q 10 . Who is the ultimate sufferer now that the BSNL is in the red?

A. (1) The common public of the entire nation, especially the rural folk, because once the BSNL is out, the private players can form a cartel and loot the entire nation, the way the cement cartels and oil cartels do, at present and

(2) The employees of the BSNL who chose to remain ignorant in the blissful belief that they were just employees and were required to do only the duty assigned to them and were not required to spare time or tax their brain to know what was actually going on in the top echelons of the organisation. Their promotions, perquisites and career are in jeopardy today, as they remained, until yesterday, totally unconcerned about the events that actually involved them and were to affect them.

Q 11. What is the moral of the story?

A. ———. (Readers to fill up the blank).

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For “Efficient” transaction of “ESI Corporation’s” business!

The ESI Corporation has been set up as per the ESI Act, 1948, which is a social security legislation that provides for medical care and cash benefits in the contingencies of sickness, maternity, disablement and death due to employment injury to the employees drawing Rs.15,000 or less as wages in the factories and establishments covered by the Act. The social security system of a nation aims at providing the much-needed economic basis, thus, for the development of the resources of a nation. The security-net provided by the ESI Corporation constitutes the essential basic structure of such a social security system in India by ensuring the “willing participation of labour”in the making of the nation.

The Charter of the International Labour Organisation had declared, in the year 1919 itself, that “the peace and harmony of the world are imperilled” when “the condition of labour exist involving such injustice, hardship and privation of large numbers of people (so) as to produce unrest”. The link between the ‘peace and harmony of the world’ and the ‘security-net provided to the labour’ is  intimate and intertwined. It is in the interest of every nation that its social security system is run in a flawless manner so that there is no social upheaval and unrest in the nation.

 The ESI Corporation which was set up in India to carry forward the lofty ideals of the International Labour Organisation, as per Art. 41 of the Constitution of India, is an important organ of the Government of India to ensure peace and progress of the nation. It is only because the Government had realized the importance of the organization, the ESI Corporation had been made an autonomous body and its officers empowered with functional independence to enable them to concentrate, without any interference, on the goal for which the organization had been set up.

In order to discharge the responsibility enshrined in the ESI Act, 1948, the ESI Corporation needed the services of employees. The ESI Corporation had, therefore, been empowered, as per Sec.17 of the ESI Act, to appoint employees in various cadres as may be necessary for the efficient transaction of its business.

Such an “efficient transaction of its business” necessitates proper management policies in the area of Human Resources Management to ensure fair and just conditions of serviceof the employees. It is a constitutional requirement that such conditions of service are made applicable to all the employees universally and are enforced without any partiality and bias.

One of the conditions of service governing the employees of the ESI Corporation is periodical transfers and placements. Such periodical transfers of the employees have been recognized by the Government of India and the Central Vigilance Commission as one of the many aspects of preventive vigilance. Formal and routine transfer of officials from one place to another is not a new phenomenon.  The procedure of “routine transfer of officials from one province to another” was initiated by Sher Shah Suri (1540-1545) ( Page 54 – Part II – History of Medieval India – V.D.Mahajan – S.Chand Publications – 1995) and it had become the hallmark of administration thereafter. It is, therefore, in the interest of the Organization to make use of this concept of preventive vigilance and enforce periodical transfers to reap the benefit for the organization “for the efficient transaction of its business, as mandated by Sec. 17 of the ESI Act, 1948. While enforcing such periodical transfers, the Administration has to take into account the individual interests of the employees also. The Government of India have, in their MHA, OM, No.75/55-Ests (A)- dated 24.3.1955, said, “In a Welfare State, a balance has to be struck between the public interest and the welfare of the individual concerned. The Government of India have also accepted the position that a transfer to distant place involves hardships not only to the Officer concerned but also to his dependants.....

In the context of the ESI Corporation, all the employees in the cadre of Inspectors and above in the ESI Corporation join the organization only with prior knowledge and clear understanding that they are liable to be transferred anywhere in India during the period of their service. But, all of them can have a reasonable expectation that such transfers would be ordered in respect of all the officers in their respective cadre without any bias and in a systematic, pre-determined and impartial manner universally without any discrimination. They have, therefore, no reason to nurture any legally valid grievance, if and when they are subjected to transfers in public interest in the exigency of public service. But, they can have legitimate grievance if the transfers are ordered by the persons in power in the Administration Division selectively on subjective considerations. Because, 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, “ a transfer can uproot a family, cause irrepairable harm to employee and drive him to desperation.” {Pushpakara Vs Chairman Coir Board, Cochin 1979 – SLR-309-315 316 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}.

But, there had been no transfer policy in the ESI Corporation for a very long time. The ESI Corporation had even filed Counter Affidavits in the Honble Central Administration Tribunal, Jabalpur, in the year 1989, alleging that there was no transfer policy in the Corporation, which observation was not viewed favourably by the Hon’ble Tribunal. There arose many power-centres in within and outside the organization on the issue of transfers and postings. Total adhoc-ism was prevailing in the matters of transfers. Transfers and postings were made as per the whims and fancies of the persons in position in the Administration Division of the Organisation. The organizational interest had been the prime consideration only occasionally as exceptions. The loyalty to the persons in position in the Administration Division had been the prime factor of consideration while deciding transfers and postings. Consequently, political interference was also at its peak and influence-peddlers had a heyday. Persons inside and outside the organization had been playing godfathers to the officers of the organization.

The consequences of such political interference in the matters of transfers of public servants have been summed-up best by the Hon’ble High Court of Himachal Pradesh in Ram Krishan Vs. District Education Officer(ILR 1979 H.P.481). The Hon’ble Court has observed, We hereby record our strong disapproval of such type of interference from outsiders in day-to-day administration of the State. If such interference is to be allowed, it would only mean that the government servants should run after those who are taking part in public life and in politics for getting better terms of service and better place of their postings, and should do everything to please them and not to please the department by their ability, honesty and integrity. It need not be emphasized that such interference of outsiders in day-to-day administration of the State is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse can succeed. Therefore, we want by this judgment to bring it to the notice of all concerned that sooner this type of interference is discouraged and stopped the better for the administration and people of the State.” The direct link between the political interference and the corruption has, thus, been clearly recognized and recorded by the Hon’ble High Court, in the aforesaid judgment. That precisely was the situation prevailing in the ESI Corporation for a long time and the organization had been affected very much in various spheres because of such adhoc-ism in the matter of transfers and placements of its officers.

Wherever a cadre in the ESI Corporation consists of more than one person, the principles of equity and justice necessarily demand that the Administration must keep a reasonable system in place regarding their transfers and postings. Because, the officers who were subjected to transfers had been resorting to inter-personal comparison when it came to their transfers and postings, and rightly so, because the concept of inter-personal comparison is also an element of natural justice. But, such a comparison with fellow-officers resulted in bitterness among colleagues, which could have been avoided if only the Administration had been fair and enforced the transfers in a just and transparent manner through a publicized Transfer Policy. But, that was not to be. Consequently, the officers’ fraternity got divided by the Administration into two classes, viz., those who were ‘Favoured’ and those who were ‘Not Favoured’. This affected the normal official work too.

Justice being always relative, natural justice demanded the Administration to demonstrate and convince that such transfers were effected in a fair manner by observing all parameters of objectivity like the Doctrine of Equality, the Doctrine of Transparency, and the Doctrine of Predictability. But, that the Administration division of the ESI Corporation could not do, in the absence of any Transfer Policy. It had been rightly observed in K.K. Jindal Vs. General Manager, Northern Railway & Others (ATR – May 1986 – Page 304 & 305) that “a welfare state, governed by Rule of Law, has, therefore, attempted to ensure fairness and equality of treatment and eliminate arbitrary action even in the matter of transfers by enunciating a policy.” But, the ESI Corporation did not have any Transfer Policy at all. This had its own negative effect in the Administration of the organization as could be seen from the Agenda Item No. SC-12 of the 166th meeting of the Standing Committee of the ESI Corporation held on 8.6.2004, which says, the absence of transfer policy for long in the ESI Corporation had resulted in many visible and invisible negative effects both to the Corporation as whole and also to many individual employees.

It was, in this context, the Director General, who assumed charge of the organization in January, 2003 introduced the Transfer Policies in respect of the Group A and B officers on the Administration Side and in respect of the Medical Officers on 29.5.2003. The Director General of the ESI Corporation is the Head of Department as per Reg. 8 (5) (vi) of the ESIC (Staff & Conditions of Service) Regulations, 1959. By virtue of the said status, as per the Appendix – 3 to the F.R Part I read with F.R 6 and F.R 15, he is vested with full power to transfer employees of the ESI Corporation. Yet, the Director General promulgated the Transfer Policy on 29.5.2003 with the avowed objective of ensuring and demonstrating transparency and equity in the enforcement of transfers and informing the world how he was going to enforce the “full powers” vested in him in this regard. “It is the basic principle of rule of law and good administration that even the administrative actions should be just and fair” (Shesharao Nagarao Umap Vs. State of Maharashtra and others – Services Law Reporter- Vol. 36- 1984 (2) Page 332). He ensured that there was a transparent system in place to ensure justice and fairness in the matter of transfers and postings.

However, the All India ESIC Officers’ Federation, which had been demanding introduction of Transfer Policies from the year 1991 on various occasions, had, all of a sudden, changed its stand and resorted to manipulations to avoid enforcement of the Transfer Policy introduced by the former Director General on 29.5.2003. The letter dated 22.2.1991 of the All India ESIC Officers’ Federation demanding introduction of the Transfer Policy explains in detail the methods of enforcing the Transfer Policy and says that this was a “vexed issue bothering the Administration as well as ourselves (officers)”. Strangely enough, when the much-sought-after Transfer Policy was introduced, the Federation did a volte-face and conveyed a totally contradictory stand in its letter dated 28.1.2004.

What the then office bearers of Federation had demonstrated through that letter dated 28.1.2004 was that the Federation had had no concern at all for public interest and also about the interests of the affected officers who also belonged to the same Federation. It would become very clear from the said letter that the Federation did not intend to look after the interests of either the organization as a whole or the interests of all its members but only a majority of them.

The criterion for being included in that majority had also not been made public by the Federation. It was not in public knowledge as to who would be in that majority and whether those in the majority would always be in the majority or whether anyone in the majority would also become part of the minority and vice versa, now and then. The fact, however, was that it was subject to variation and dependent on the fancies and whims of the individuals who happened to occupy the positions of power in the Administration Division of the Headquarters Office. As a result, the officers tended to discharge their functions in such a manner that it pleased the bosses and not in the manner that would please the organization, which is an impersonal body. The way they submitted their notes without bringing all the relevant facts pertaining to the issues in hand on various crucial issues would show that while dealing with each and every file, the prime consideration of the officers had been whether the facts recorded by them would please or displease the superiors in the hierarchy. Adhoc-ism in transfers and placements had such a negative effect in the manner in which each and every crucial file in the organization was dealt with by each and every officer. Consequently, public interest became the casualty and the mandate of Sec.17 of the ESI Act for “efficient” transaction of the business of the ESI Corporation stood violatedin a very flagrant manner.

(N.B: The above are part of the excerpts from the Affidavit filed in the Central Administrative Tribunal by an Applicant. More from that document would follow in the next post.  It is proposed to submit a comprehensive note to the Sub-committee on these lines.  Readers are welcome to communicate their views and additional information relevant to the issue for inclusion in the note being prepared for submission to the Sub-committee. This portion of the note deals only with transfers. The desires of the Hon’ble Minister of Labour to be the Appointing Authority and Disciplinary Authority of officers in the ESIC  and its consequences would be dealt with later.)

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Filed under Amendments 2010, For Trainees, Transfers

ESI Corporation Meeting on 19.09.2013

The meeting of the ESI Corporation took place on the after noon of 19.09.2013. We came to know that there was on the Agenda a subject for conferring on the Hon’ble Minister of Labour and Employment in the capacity of his being the Chairman of the ESI Corporation, the power to be the Appointing Authority of the officers in Group ‘A’. That power would automatically confer on him the power to those officers also. We also came to know that Sec. 92 of the ESI Act, 1948 had been invoked in this regard and a direction had been given to the ESI Corporation to that effect. Giving direction is different from taking over the Administration. There cannot be any method of Administration that would change the basic structure of the ESIC being an Autonomous Body.

We sent the following SMS to three members of the ESI Corporation at 2.12 p.m on 19.09.2013:
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“Sir,
Hon’ble Minister wants power to transfer officers. Any ESIC resolution to confer such power is ultra vires. Please refer the mater to ESIC Sub-committee. Please do not permit hasty decision. Thankyou! – flourishingesic.info”
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This SMS was sent to Mr. Kali Ghose, Mr. Ram Kishor Tripathi and Mr. Dipak Sarkar. We came to know later that the matter had been referred to the Sub-Committee.

We, on behalf of the insured population, thank all those who contributed to that very meaningful decision taken by that Body.

Now that the Sub-Committee is to go into the issue, we request the readers to send their opinions, representations, if any, on the issue to the Sub-Committee for their considered decision. If the copies of such references are forwarded to this website, the contents thereof will be displayed here for the benefit of all. First of all, the Ministry of Labour which is stated to have issued the direction under Sec. 92 must explain how and why it felt it necessary to issue such direction, which is totally contradictory to the decision taken on the floor of the ESI Corporation in February, 2005 when it was chaired by Hon’ble K.C.Rao, the then Minister for Labour and Employment. That meeting had set right the anomalies sought to be perpetrated by the earlier Minister who also wanted to wield power in the matter of transfers and postings of officers of the ESIC.

It is proposed to submit a detailed representation to the Sub-Committee after collecting necessary information in this regard. One thing is certain. Public interest will be served only when transfers of officers are made on the basis of set guidelines, in a transparent manner. There should be no need for the officers to go the PAs of the Ministers to salam and stand before them, whatever be the party in power. Such situation will be beneficial only for those officers who believe in manipulations and not for others who do serve, really, for the welfare of the organisation.

In the context, the readers are also informed that the issue of running Medical Colleges by the ESIC had come in for serious discussion during the said Meeting. The Chairman of the ESIC was annoyed and he asked the members why they did not raise such objections when the previous Ministers were pressing for so many medical colleges. That was a right question, anyway. But, it did not justify opening more such colleges as desired by the present Minister.

It is also understood that the Finance Division informed the Body that the funds position of the ESIC was estimated and predicted to be in the negative after two years. The reasons are not far to seek. The improper amendments rammed down the throats of Parliament without any discussion on the day the issue of Mr. Sibu Soren rocked the house are the main reason for such state of affairs. The details in this regard have already been posted with evidence in this forum.

At present, we only hope that the Minutes approved by the Chairman of the ESI Corporation would faithfully record the complete discussion that had, actually, taken place on 19.09.2013 on all subjects.

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Filed under Amendments 2010, For Trainees, Transfers

Appointment of Chief Engineer in the ESI Corporation!

(This article constitutes Episode IV of the series ‘A Review in Heavens’)

Mr. Adharkar and his friends meet at their usual place of retreat.

Mr. Adharkar says, “It is a long time since we met last. I am sad to say that things in the ESIC have taken a turn for the worse, since the arrival of Mr. Sis Ram Ola on the scene as the Minister for Labour. As politicians, these Ministers know the art of wielding authority without responsibility. Mr. Ola wants to acquire authority over the transfers and postings of officers who head the Regions and Sub-Regions. He is also showing interest in construction matters and medical college buildings. It is plain unlawful on his part to demand a role in the transfer of officers in the ESI Corporation. But, he never cares for law. Besides, there are so many things murky in the area of construction and medical college matters. Crores roll there. Instead of setting right things one should not add to the already existing problems. Hope the CAG takes note of the facts”.

There was sullen silence. It was Prof. Adharkar who broke the ice again. He said, “In regard to construction matters the less said the better. It becomes difficult for the Director General to protect the organisation from the people who have vested interests, because there are so many persons with such interests. Now that the post of Chief Engineer has become vacant, with the exit of Mr. Om Kumar, who was on deputation, proper course of action is only to fill up the post of Chief Engineer through the UPSC. But, no proposal is stated to have been sent to the UPSC, although it should have been sent last year itself, after giving proper advertisement calling for applications for appointment on deputation, if the people in the feeder cadre did not meet the requirement to be considered for promotion. But, the latter one is the better option. It is better to promote cadre officers, even by relaxing the condition of the period of residency. Action for that also should have been taken last year. But, it was not done. Anyway, the ESIC should avoid recruiting anyone as Chief Engineer directly in violation of the rules and regulations on the subject.”

“How can there be appointment to a post, and that too, to the post of Chief Engineer, in violation of rules?”, asked Mr. Beveridge.

“Oh, dear!” said Mr. Adharkar, “You people in England follow conventions. You hold them dear, there. But, in India, conventions were given a go-by, immediately when the British rulers declared in 1945 that they were prepared to leave India to Indians. Nothing is sacrosanct now in India and one would do anything if one could get power or money through something”.

“How to save India, then, from such people of India?”, said Mr. Murray.

“It is possible. The silver lining is already there. The Central Information Commission has already declared that the political parties must make their source of income public. This is the precise remedy for the Indian malady. Once this is implemented, the politicians in power as well as in opposition cannot make money for themselves, in the name of collecting funds for the party. Collecting funds for the party is the euphemism for accepting corrupt money that is shared between the individual politicians and their political parties. When one cannot collect money secretly in the name of his political party, he cannot put up a brave face and demand corrupt money for himself saying that it was for his party. Everyone would know that that unaccounted for money is only for him. Corrupt politicians and Ministers cannot wear a mask of honesty anymore. They would stand exposed in public, if their political parties are compelled by law to make the source of income public. That is the mortal fear of the present day politicians. All of them became so scared that they pass a resolution in the Parliament to nullify the orders of the Central Information Commission. The resolution, even if made an Act, is unlawful and can and will be struck down in the Court of Law.

Because, these politicians who made the law do not have the locus standi to pass such a law, when they are a party to the issue. If at all, the orders of the Central Information Commission is to be annulled, it must be done only by the people through a referendum and not by the so-called people’s representatives who are afraid of the people and want to keep the people in dark. But, that is a different story. The issue now is that unless the political parties are made to make their source of finance public, corruption in the nation cannot be controlled.

The enthusiastic consequence of implementing the order of the Central Information Commission is that, once the CIC’s orders are implemented, the present set of politicians would, as a breed, run away and vanish from the political scene and only those who are interested in public welfare would dominate the political field. No politician would have the urge to make his son or daughter or daughter-in-law, as his successor. Politics would not prove to be a field for making money. Indian people must learn from Scandinavian countries in this regard”, said Mr. Adharkar.

“That, definitely, is a very encouraging solution. Every Indian must thank the Central Information Commission for it. I find that once the source of funds to the political parties becomes transparent, the tendency of criminals entering political fields, the tendency of the political parties to appoint and patronize local criminals to be their party workers, etc., would cease”, said Mr. Dengill.

“I think we were discussing about appointment to the post of Chief Engineer in the ESI Corporation”, said Mr. Beveridge bringing the course of the conversation to the back to the original issue.

“Yes, yes. There had been violations in the past in the appointment of Chief Engineer in the ESIC. Convenient persons had been appointed and were attempted to be appointed. That was the reason the UPSC asserted itself when the Recruitment Regulations were framed. The Recruitment Regulations for the post of Chief Engineer was, thereafter, notified in the Gazette with the condition that the consultation with the UPSC “is” necessary on “all” occasions.

There was, then, a Minister who wanted one Mr. R.N. Singh to be appointed as Chief Engineer for one year temporarily, in the year 2004. He cited the provisions in Sec. 17 (3) of the ESI Act, to achieve his purpose. But, Sec. 17 (3) of the ESI Act, 1948 has to be read with the very restrictive provisions of the Recruitment Regulations for the post of Chief Engineer in the ESI Corporation which necessitate consultation with the ESIC ‘on all occasions’ and the instructions of the DOPT on temporary and officiating posts as found in the Swamy’s Manual of Establishment and Administration. When this fact was taken to the notice of that Minister, he was convinced of the stand and left the issue at that.

But, thereafter, one Mr. P.R. Roy was appointed as Chief Engineer in an unlawful manner on the basis of a single application, in the year 2007. He was also given an unlawful extension in the year 2008. The consequences are not described here. But, the UPSC is understood to have taken serious note of it, when it came to know of the facts in the year 2010. Because, no one could answer how Mr. Roy came to know that there was vacancy in the post of Chief Engineer in the ESI Corporation. A single para in the office note decided the appointment and projects worth more than Rs. 10,000 crores cleared through him”, concluded Mr. Adharkar. Others were just watching him wondering how things could go astray in the ESI Corporation. They went through the following Office Note also, which had been obtained through the Right to Information Act, 2005:

Filenoting that led to the appointment of a Chief Engineer

Filenoting that led to the appointment of a Chief Engineer

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Dr.K. M.Soni, Superintending Engineer, was recommended by the UPSC to be appointed as Chief Engineer in the ESI Corporation on deputation. When he did not join, a note had been put up on 28.11.2007 as under:

“Thus the appointment of Dr. Soni through UPSC could not be effected. As a matter of recourse, DG may like to consider the name of Shri Prithwi Raj Roy EE in Rural Engg. Services, Govt. of UP, for being hired on deputation basis for one year, w.r.t. the application of Shri Roy, flagged “A”. A formal proposal in this regard is put up pl.”

The Administration Division entertained the application only from one person, Shri P.R. Roy and appointed him as Chief Engineer on deputation. Shri P.R. Roy was only an Executive Engineer in his parent department and he was posted here on deputation by naming him as Chief Engineer. He was, thereby, vested with administrative and disciplinary powers over the other regular UPSC-recruited Executive Engineers already working in the ESI Corporation. The riddles were:

  1. How did Shri. P.R. Roy come to know of the existence of vacancy in the ESI Corporation?
  2. How did he alone come to know?

There was no answer to these riddles. The proper course for the Administration Division was to inform the UPSC about the non-acceptance of the offer by Dr. K.M.Soni and ask for substitute or further course of action, if there was no one in the Reserve List. It should also have followed proper procedure in appointing the Chief Engineer. It should have intimated the UPSC about the appointment of Shri Prithwi Raj Roy, immediately and asked, at least, for the ratification of such action. It was not done. The UPSC had not received any intimation for more than one year and eight months. The UPSC  received the intimation only on 14.9.2009 (UPSC letter dated F.No. 2/39 (1)/2010-ADT-1 dated 11.2.2010).

The file-notings dated 6.1.2009 in Page 7 of the Note file show that ‘the Secretary, UPSC had already been intimated about the appointment of Shri P.R. Roy as Chief Engineer in ESIC’. But, the UPSC which went through the copy of this note-file page concerned said that it had been informed of the said appointment only on 14.9.2009, more than eight months after the date of the file-noting itself. This was how a false declaration had been given in the issue of appointment of Chief Engineer.

The file noting dated 7.1.2009 contained the remarks that ‘it (the UPSC) was informed to continue the services of Shri Roy as CE till regular selectee joins in ESIC’. That was another false declaration.

The same Chief Engineer had been given an unlawful extension also in the year 2008 in total violation of all the rules on the subject. The file-notings dated 6.1.2009 and 7.1.2009 in Page 7 of the Note file did not refer to the specific proviso to the contrary under Sec. 17(3) of the ESI Act, 1948.

Moreover, the UPSC came to know of the extension given to Shri P.R.Roy only on 11.1.2010, just five days before the expiry of the extended term. Nobody cared for Sec. 17 (3). There was no discussion either about Sec. 17 (3) or about the concerned Recruitment Regulations in the notes submitted on 11.12.2008, 6.1.2009 or on 7.1.2009.

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Mr. Adharkar and others went through the above note. Mr. Adharkar then said, “Now that the post of Chief Engineer is vacant, it would be proper if the Administration is permitted to follow the lawful methods of filling it up, through UPSC”.

Mr. Beveridge said, “Besides, there must be some Public Interest Litigation about the matter of Medical Colleges to render justice to the contributing insured populace. The legislation in this regard in 2010 was made by hoodwinking the Parliamentary Committee of Labour”

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Filed under Amendments 2010, For Trainees, Transfers

ESIC Officers transfer: Amend the Act first before allowing a role for Minister!

A Study on Authority to Transfer the Officers of the ESIC was done in the year 2004 when Hon’ble Mr.Sahib Singh Verma, the then Minister for Labour wanted to acquire the power to transfer the Group ‘A’ and Group ‘B’ officers of the ESI Corporation. And, the paper was circulated among various units of the ESIC Officers’ Association. Now, in the context of similar intense desire shown by the present Minister for Labour, Hon’ble Mr. Sis Ram Ola to have a role in the matter of transfer of officers of the ESI Corporation, the Study Paper circulated then is published, now, for the benefit of the public. The following is the text of that Paper:

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The issue whether the transfers and postings of the officers of the ESI Corporation can be done by the Hon’ble Minister for Labour, Government of India in the capacity of his being the Chairman of the ESI Corporation had been examined on various occasions in the past in various fora. But, it was found that such power could not be vested in the Hon’ble Minister. Unless the Sec. 94 (A) of the ESI Act, 1948 and the Reg. 4 of the ESIC (Staff & Conditions of Service) Regulations, 1959 are amended to provide for such vestiture, the power for ordering such transfers cannot be exercised by the Hon’ble Minister.

The fact that the Hon’ble Minister exercises such powers in the Employees’ Provident Fund Organisation made it necessary for us to make a comparative study of the provisions of the both the Organisations. And it became clearer that no executive power for running the Administration is vested in the Chairman of the ESI Corporation in contrast to the executive powers vested in the Chairman of the Central Board of Trustees of the Employees’ Provident Fund Organisation.

In the EPFO, The Board is the Appointing Authority as per Sec. 5 D of the EPF&MP Act, 1952 and Para 22-A of the EPF Scheme, 1952. As per Sec. 5 E of the EPF&MP Act, 1952 the Central Board can delegate the Executive Committee or to the Chairman of the Board or to any of its officers any of its powers for the efficient administration of the Scheme. Accordingly, as empowered under Para 24-A (2) of the EPF Scheme, 1952, the Central Board, by a resolution, enabled its the Chairman to act as the Appointing Authority in respect of the Officers and Staff other than the CPFC and the FA&CAO. This para 24-A(2) prescribes a specific method and the Board has adopted that method to make its Chairman the Appointing Authority. It is by virtue of having thus become the Appointing Authority, the Chairman of the EPFO is able to exercise the power of transfers and postings of these officers. The provisions in the EPF&MP Act, 1952 and the EPF Scheme, 1952 are very explicit to enable the Chairman to act as the Appointing Authority and thereby exercise the powers of transfer of officers.

Transfer is one of the essential conditions of service for government servants. The authority which functions as the Appointing Authority has the inherent power to enforce transfers and postings also. In other words, the authority to transfer goes together with the authority to appoint. As per the Appendix – 3 to the F.R Part I read with F.R 6 and F.R 15, full power to transfer employees has been delegated to the Heads of Departments.

It is only such an inherent power which enables the Chairman of the EPFO to exercise the powers for the transfers and postings of the Officers in the EPFO. If the Chairman of the EPFO had not been empowered, by a specific resolution of the Board passed under Para 24-A (2) of the EPF&MP Act, 1952, to act as the Appointing Authority he cannot exercise the powers of transfer of the officers in the EPFO.

It is only because the Chairman of the EPFO is not the Appointing Authority in respect of the CPFC and the FA&CAO in the EPFO that he is not, at present, exercising the powers of transfer and posting of these two officers.

There is no provision in the ESI Act to enable the Corporation to pass a resolution to empower the Chairman to act as the Appointing Authority. The Parliament has specifically mentioned in the original ESI Act in the year 1948 itself that the Director General shall be the Chief Executive Officer of the Corporation. That would imply that the executive powers of the Corporation would be carried out through the Director General. Although the CPFC has also been shown in Sec. 5D (1) of the EPF&MP Act, 1952 as the Chief Executive Officer of the Central Board, the Board has resolved, as per Sec. 5 E and Para 24-D to vest the powers of the Appointing Authority in the Chairman and not on the CEO.

This is in striking contrast to the decision of the ESI Corporation which, in the year 1959, resolved to vest the powers of the Appointing Authority in the CEO and not the Chairman.

So, the Director General of the ESI Corporation has alone been empowered by the Corporation to exercise the powers of transfer and postings of the officers in the Corporation (except the Financial Commissioner), by virtue of his being the Appointing Authority as per Reg. 4 of the ESIC (S&CS) Regs. 1959. Thus, as long as the Reg. 4 remains in the present form, it is only the Director General who can do the transfers and postings of the officers and staff of the Corporation.

If the Reg. 4 is sought to be amended, such amendment must be in consonance with Sec. 94 (A) of the ESI Act, 1948 which gives the option to the Corporation to direct any officer or authority to perform the functions of the Corporation. But, such officer or authority must be the one who is subordinate to the Corporation. The Chairman of the Corporation cannot be called as a subordinate to the Corporation whereas the Director General is a subordinate, as could be seen from the duties cast upon him, especially through Rule 16 (1) (vi) of the ESI (Central) Rules, 1950.

A cursory reading of Sec. 5 E of the EPF&MA Act, 1952 in the context would make it very clear that the Sec. 94 (A) of the ESI Act, 1948 is in sharp contrast to the provisions of the former which enables the Central Board ‘to delegate’ any or all its powers to the Chairman of the Board while the latter enables the Corporation ‘to direct’ only its subordinate officers or authority to carry out such functions.

So, as long as the Sec. 94 (A) remains in its present form, the Corporation cannot vest the power of the Appointing Authority on anyone who is not its subordinate and the Chairman of the Corporation can never be classified as its subordinate.

The apparent differences between the earlier ESI Act of the year 1948 and the later EPF&MP Act of the year 1952 would clearly prove that the Parliament of India wanted to make the ESI Corporation an autonomous one while it did not want to confer such status on the EPFO.

The ESI Corporation has not been given authority by the ESI Act, 1948 to delegate its powers and more particularly the executive powers to the Chairman of the ESI Corporation. So, the resolution, if any, passed by the ESI Corporation on 13.2.2004 empowering its Chairman to transfer the officers of the Corporation would only be ultra vires.

Moreover, the Director General of the ESI Corporation is the Head of Department as per Reg. 8 (5) (vi) of the ESIC (Staff & Conditions of Service) Regulations, 1959. So, as per the Appendix – 3 to the F.R Part I read with F.R 6 and F.R 15, he, and he alone, does have the power, the full power, to transfer all the employees, i.e., officers and staff members of the ESI Corporation.

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ESIC: A review in Heavens – Episode III

Mr. Adharkar, Mr. Beveridge, Mr. Dengill, Mr. Murray and Mr. Wagner are sitting under a tree. An innocent person who was a factory employee and  a beneficiary under the ESI Scheme arrives at the spot and talks to Mr. Adharkar. “Sir, I was an insured person in India when I was living on earth. I want my posterity to get similar or even better benefits from the ESIC. But, I find that you were all somewhat apprehensive about various things. May I just be present here?”

“Dear brother, you are most welcome. We would, of course, be delighted to hear your inputs too. Please be seated”. Adharkar then continues to explain to him. “I can summarise the problem this way. Suppose, there is a small village in which there are around 100 families. That village does not have proper approach road to the Main road, which is four kilometers away and in which buses ply. A proposal to lay the approach road of four kilometers is cleared by the government and the outlay is Rs. 2 crores. Now, a team of officials arrives at the village to lay the road. The team is headed by an Executive Engineer. When the road is being laid, it is being supervised by an honest Junior Engineer who is brimming with enthusiasm and devotion. He joined the team of this Executive Engineer just six months back, on his request for the present station, and was working earlier in a far away station for more than ten years.

He notices, at the initial stage itself, that the contractor was laying the road with a thickness of only 4.5 inches instead of 9 inches as per the approved plan. He objects to this kind of work. But, the contractor simply ignores him. The plan of the contractor was to eat away a neat 50% of the allocated amount. When the bill for the first stretch of the road is presented, the Junior Engineer refuses to clear the Bill of the contractor, as the work had not been performed as per rules. The contractor has some understanding with the Executive Engineer and complains to him against the Junior Engineer. The Executive Engineer summoned the Junior Engineer and advised him to clear the bills of the contractor. But, the Junior Engineer said that the contractor had not done his work as per rules. His explanation enrages the Executive Engineer. He, immediately, transfers the Junior Engineer to a far away station, relieves him all of a sudden and does not give any time to him even to represent against the transfer. He did not even inform the Chief Engineer about his orders. It is the Chief Engineer who is the competent authority to transfer the Junior Engineer and not the Executive Engineer.”

“Oh, My God! What happened to the road, then?”

“The road was laid fully, as desired by the contractor. He got the entire amount cleared. But, please tell me, who was affected in the entire process?”

“The honest Junior Engineer and the people of the village. The Junior Engineer who had already been working in a far away station and came to the present station on his request is punished again because of the malafide motive of the Executive Engineer. But, the villagers are the most affected as they have been provided with a link road of 50% deficiency and would suffer when the road vanishes after a rain or two.”

“Okay, you have understood the problem in correct perspective. What should the villagers do now?”

“They must organize a protest against the substandard road.”

“Of course, they should! But, what caused the substandard road to come into existence, in the first place?”

The insured person thinks for a while. He says, “Yeah! The road would not have come into existence this way, if the objection raised by the Junior Engineer at the initial stage itself had been taken cognizance of. But, the Executive Engineer had, instead of hearing the Junior Engineer, transferred him to a far away station, even when he had no power to transfer him beyond the area of his jurisdiction. This transfer had been effected, in spite of the fact that the Junior Engineer has completed only six months of service in the present station.”

“Okay, you have analysed the issue well. Now, where does the problem originate?”, said Mr. Adharkar.

“The problem arises because of the absence of proper Transfer Policy of officials in the department. If there had been some assurance to the officials about their tenure in a transferred station, they can settle their personal problems accordingly. They can also plan their future. When there is uncertainty on transfers, the officials think that their life depends upon the whims and fancies of the higher officials. They, therefore, would try to please the higher officials instead of doing the work assigned to them as per rules. Their loyalty will not be towards their duty but to their higher officials.” said the Insured Person.

“Yes. In the present case also, if the said Junior Engineer had acted as per the desires of the Executive Engineer, he would not have faced the transfer to a far-away station again. But, he was honest by his choice. The system as evolved by the corrupt officers of this department, did not permit honest people to survive. Now, what would you suggest?”, asked Prof. Adharkar.

“If I were aware of these intricacies and if I were one of those villagers, I would organize an effective protest against the absence of proper Transfer Policy in the department”, said the Insured Person.

“Hurrah! Well done!”, said Mr. Wagner, patting on the back of the Insured Person. “You have correctly understood the problem. The Administrative Procedure of every government organization affects the public directly. Because, the defects in the Administrative Procedure affect the delivery mechanism. It is, therefore, essential for the people of the nation to feel really concerned about the internal administrative procedure of every department. They must agitate, if there is no proper policy or defective policy. In this case, the Executive Engineer who had no authority had exceeded his authority to transfer the honest Junior Engineer. There was no system, in place, even to represent against such transfers. These defects work against public interest”.

“Yes, that precisely is the problem now with the ESI Corporation in India”, said Mr. Adharkar. “Mr. Sahib Singh Verma, who was the Minister for Labour in the early 2000s was trying very hard to take over the power of transfer of officers in the ESIC and the EPFO. The ESIC resisted a lot. Mr. Sis Ram Ola who succeeded him wanted to follow only him in the matter of transfer of officers in the ESIC. The Labour Ministers, who are politicians, should not be given the powers of transfers of the officers of the ESIC. They do not want to follow any system in the matter of transfers. They want to wield arbitrary powers in the matter of transfers. These Ministers demonstrate irrepressible desire to acquire the power of transfer of officers. They issue unlawful directions to the ESI authorities in the matter of transfers. They believe that the people would not bother themselves about such unscrupulous activities indulged in by them.”

“Mr. Sis Ram Ola is interfering in and preventing proper administration of the ESI Corporation. It is time someone filed a Public Interest Litigation to prevent the role of the politicians in the matter of transfer of officers of the ESIC. When Mr. Sahib Singh Verma was recklessly interfering in the appointment of officers in the EPFO, the Officers Association passed resolution against him. Such things did not happen in the ESIC as the office-bearers of the ESIC Officers Federation were also not interested in evolving proper system. They were concerned only about themselves and not about the system. Fortunately, after Mr. Rao came into power, proper transfer policy was evolved. But, things were back to the same chaotic era, after 2007. Now, when the Administration took steps to bring the system back on rails, Mr. Sis Ram Ola is playing the villainy. He wants to wield powers, which are not vested in him. He does not bother about the areas in which he should, rightly, concentrate and for which powers are vested in him. For example, he can examine how the Parliamentary Committee of Labour was hoodwinked when it asked right questions about the need for undergraduate medical colleges. But, he does not do that. The ESIC has to be salvaged now, by overcoming the urge of Mr. Sis Ram Ola also to interfere in the matter of transfer of officers. Very sorry state of affairs that the nation has to face this kind of politicians. The only way out is to make them answerable to the public”, said Mr. Adharkar.

“Haiti was once a famous island nation, famous for its prosperity. It prospered, because the institutions of that nation were doing the work assigned. But, there came some politicians to wreck the institutions. Now the country is in ruins.”, said Mr. Murray.

“I do not understand”, said the Insured Person.

“You see, when a person who was robbed goes to the police station, he believes that the police would hear him and help him. If it happens that way, the institution commands respect of the public and helps the nation to progress. If the policemen there support the robber instead, the public loses confidence in the police station and try to take law into its own hands or suffer in silence. There will, then, be more robbery and conflicts. The nation cannot progress. It is the case with every organization. When unscrupulous officials or politicians try to unsettle the system and acquire arbitrary power to favour or harm the subordinate officials, the entire institution collapses. The institution will not serve the public then but only the person who has acquired such arbitrary power. The ESIC is now facing problems from the Minister. As the activities of this over-ambitious Minister conflict with public interest, the public must take action to resist his attempts, effectively.

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ESIC: A review in Heavens ! – Episode II

It so happened that we had a chance, recently, to visit the Heavens, and come back too. What we saw and heard there were found to be worth sharing. Hence this attempt. 

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What Mr. Wagner asked raised the curiosity of everyone. They requested him to explain the facts without putting questions.

Mr. Wagner continued, “There was one Mr. Charles Ponzi. He collected money from a lot of people promising that he would pay them very high returns. Attracted by his promises, people poured in money. ‘He promised investors outrageous returns of 50 percent in 45 days, or 100 percent in 90 days. Ponzi paid these investors using money from other investors, rather than with actual profit….He bought a mansion in Lexington, Massachusetts, with air conditioning and a heated swimming pool. He reportedly made $250,000 a day.”

“How could he pay so much?” asked Mr. Beveridge.

“Yes. He paid money to the investors from the deposits made by the subsequent investors. He could not invest the deposits properly in any venture to make profits. He did not pay the investors from dividends that he got any source.”

“How long could he go on like that?”

“His reasoning was that as long as the inflow is more than the outflow, there was no problem for him. That was the reason he could continue with the scheme for so long. He could run the scheme only for two years. When The Boston Post started investigating and bringing out the facts, the scared depositors stopped paying further. Naturally, it caused the bubble to burst.”

“A lone man had brought sufferings to millions.” concluded Mr. Dingell. There was sullen silence there for some time.

Mr. Murray broke the ice. “But, the United States Social Security Administration has not learnt any lesson. These administrators also want to run the Social Security Scheme just like that of Ponzi scheme although they labour so much to portray that they are not managing it like the Ponzi scheme”.

“Yes. They say, ‘As long as the amount of money coming in the front end of the pipe maintains a rough balance with the money paid out, the system can continue forever. There is no unsustainable progression during the mechanism of pay-as-you-go pension system and so it is not a pyramid or Ponzi scheme’. But, this very concept is Ponzi Scheme only.”

Mr. Adharkar intervened. “But, we did not conceive of the ESI Scheme in India that way. We wanted the scheme to be the backbone of the nation’s economy. Our concept was making the scheme largely self-sustaining and stronger in the long run.”

(Economic Times: 05.02.2003: Please click on it for bigger image)

(Economic Times: 05.02.2003: Please click on it for bigger image)

Mr. Beveridge nodded in assent. He said, “Yes. Indians managed the ESIC funds very well. If they had continued with that trend, the scheme would have become self-sustaining in the long run. For example, their surplus of about Rs. 16000 crores would have earned them, on proper investment @ 10% interest per annum, a sum of Rs. 1600 crores. That was equivalent to the revenue generated in Maharashtra and Tamilnadu combined together. Or it was equivalent to the revenues generated in many other states. Once you have the economic strength to run the scheme with your own funds, you are stronger economically and provide better security net for the posterity forever.”

“But, what is the problem now? They can continue that way.” said Mr. Dingell.

“No. Things are different now. The surplus funds have been frittered away in the name of establishing medical colleges and constructing buildings for them.”

“How is the scheme being run, then?”

“By increasing the wage limit of the employees coverable under the Scheme. That appears to be the only way, once all the Medical Colleges start functioning. You know, these medical colleges do not collect donations like the private medical colleges. There is no income through them, but only expenditure. And, the expenditure is very huge. If you compare the revenue generated in a region with the expenditure required for the medical colleges in those regions only, you will be alarmed to think of the consequences.”, said Mr. Adharkar.

“But, can the Indians increase the wage limit everytime they find the money available is inadequate?”, said Mr.Wagner.

“Yeah. That’s what makes Mr. Adharkar sad”, said Mr. Beveridge.

There was a wry smile in the face of Mr. Adarkar. “That is not the only thing that makes me sad” , he said.

“What else?”, demanded Mr. Beveridge.

“The brazen interference of politicians in the transfers and postings of the officers in Group A and Group B level in the ESI Corporation. That is wrecking the system. The Labour Ministers do not want to stabilise the system so that it works for public welfare. They want to play godfathers to one or the 0ther officer and force the Director General to yield. In the process, the officers who are the beneficiaries of such favours from the Ministers demonstrate their loyalty to the Minister and not to the organisation. The pr0blem was there earlier in respect of one or two stray cases, earlier. But, it was Mr. Sahib Singh Verma who wanted to institutionalise his interference in the matters of transfers and postings of senior officers. It was resisted fiercefully. Yet, he could have his way in some cases. Fortunately, because his political party lost the elections he could not meddle with the ESIC and EPFO anymore. But, his successor Mr. Sis Ram Ola also followed the footsteps of only Mr. Sahib SinghVerma. It was only Mr. K. C. Rao who put an end to it in the year 2005. He put the organization, again, on the right path. But, many Indian politicians could not resist the temptation of demonstrating that they are mightier. They believe in the present and, therefore, care for their show of strength only. They do not care for establishing corruption-free system in the institutions.  India, therefore, goes the Haiti way. That makes me sad”, said Mr. Adharkar.

“Oh, My!, I am tired of hearing all these things. I need a break, yaar!”, said Mr. Murray.

“Okay, let us make a move, then! We assemble here next week and discuss about the Haitian examples and warnings, the importance of transfer policy of officers, the consequences of the interferences by the Labour Ministers in the transfers and postings of officers in the ESIC and the EPFO and the necessity for the public to know the facts as all these administrative matters affect only the public and the nation, at last.”

“I agree. The Social Security System of every nation is too big to be left only to the Labour Ministers to be run by them as they please. The public must know why these Ministers have such irresistible temptation to play with the transfers and postings of the senior officers in the ESIC and the EPFO. A trip down the history is essential. Mr. Adharkar has, rightly, drawn the Haitian example. Let us discuss it next week”, concurred Mr. Beveridge.

(Continued in Episode-III)

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Readers who would like to know more of the Ponzi Scheme and the Social Security Scheme in the USA may please click on the following links please for some facts. The opinions expressed therein are subjects of discussion, if not subjects of controversy:
http://mises.org/daily/5658
http://www.youtube.com/watch?v=oh-NqdmEDq4

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