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Slave Labour Code: Unlimited rights to the Drafting Team !

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

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

RTI reply MOLE 12 05 2017 copy

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

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

The earlier reply is available in the following link:

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

 

 

 

 

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Do not amend Sec. 44 and wreck the safety-net ! Save ESIC and Save the nation !!

 

2012

In the year 2012, President Obama claimed that insurance premiums would go down (The Washington Post 10.08.2012).

https://www.washingtonpost.com/blogs/fact-checker/post/president-obamas-claim-that-insurance-premiums-will-go-down/2012/08/09/424048f2-e245-11e1-a25e-15067bb31849_blog.html

2016

The cost of health insurance under the Affordable Care Act is expected to rise an average of 22 percent in 2017, according to information released by the Obama administration Monday afternoon.

Still, federal subsidies will also rise, meaning that few people are likely to have to pay the full cost after the rate increases to get insurance coverage.

“We think they will ultimately be surprised by the affordability of the premiums, because the tax credits track with the increases in premiums,” said Kevin Griffis, assistant secretary for public affairs at the Department of Health and Human Services.

The 22 percent rise reflects the average for all insurance marketplaces, both federal and state-based exchanges for which data are available. For insurance purchased through the federal HealthCare.gov exchange the rise will average 25 percent.

During a media briefing Monday, Griffis said the 2017 rates are roughly at the level the Congressional Budget Office forecast when the law was proposed. “The initial marketplace rates came in below costs,” he said. “Many companies set prices that turned out to be too low.”

Enrollment opens Nov. 1. For coverage effective Jan. 1, people need to pick a plan by Dec. 15. With a few exceptions, the last day to sign up for Obamacare is Jan. 31, 2017. Plans are available on HealthCare.gov and state-run exchanges.

While the average premiums on the benchmark health plans are increasing, the government says more than 70 percent of people buying insurance on the marketplaces created by the law could get a health plan for less than $75 a month for 2017. To get the best deal, people would have to pick a low-cost plan with limited benefits and take advantage of all the subsidies available.

People who already have coverage through the exchanges can often save money by switching plans, the administration said. More than three-quarters of people could save money by switching to the lowest-cost plan within the level of coverage, such as bronze or silver, that they’ve previously selected.

The Obamacare insurance exchanges are under strain after three major insurers pulled back from offering coverage in markets across the U.S. The administration says about 1 in 5 people buying insurance through the marketplaces will have only one company offering coverage.

It’s in places like that where consumers will feel the most pain. “Where it really matters is where a big insurance company has exited and where that’s going to leave just one company remaining,” said Cynthia Cox, associate director of health reform and private insurance at the Kaiser Family Foundation. “For those people who live in that area, many people may have to switch plans. And they won’t have much choice if they want to receive financial assistance and purchase through the exchanges.”

http://www.npr.org/sections/health-shots/2016/10/24/499190020/rates-rise-again-for-obamacare-health-plans-but-so-do-subsidies

 

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Time spent traveling to and from work is “work”- European Court of Justice !

 

” European Court of Justice said its ruling was made to uphold the health and safety of workers, which is protected by the EU’s working time directive. This legislation mandates that no employee should be forced to work more than 48 hours per week.”

For more:

A court has ruled that time spent traveling to and from work is “work”

Opposite is in India, run by businessmen-controlled-politicians, notwithstanding Sec. 51-E, which was a definite progress, in spite of procedural difficulties.

 

Here, increase in the Over time limit, meant actually to facilitate exploitation by the employers, is projected as a labour welfare measure:

 

picture1

 

 

Safety and Health – Polls apart 

“Requiring them to bear the burden of their employer’s choice would be contrary to the objective of protecting the safety and health of workers pursued by the directive, which includes the necessity of guaranteeing workers a minimum rest period.” – says the European Court of Justice.

 

Increasing the spread-over period to 12 hours is shown as the a safety and health measure in India.

There is no necessity to guarantee the workers any “minimum rest period”.

Mayday revolution resulted in 8+8+8 hours, i.e., 8 hours for work, 8 hours for forest, recreation with family and 8 hours to sleep. But, already the official 8 hours work has become 12 hours including the time taken for commuting to and fro workspot, in India. When the spread-over period is 12 hours, and the journey between the residence and workspot takes another 4 hours, where is the time for rest, family and sleep?

We are creating a society that would be poor in health and would need more medical attendance resulting in more expenditure on medical side by the ESIC and the State.

We do not care for any respectable slot in the Human Development Index or Global Prosperity Index.

Those who can change things, do not do their bit. But, they work for extricating themselves from that situation personally.

When are we going to usher in a civilised society free from exploitation?

 

 

 

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Ms. Bedford and Mr. Mallya ! Methods of Corruption Control in Public Offices !

The best method advocated by governments all over the world to control corruption among public servants is that the person who is harassed must report the matter beforehand to the authorities of the vigilance wing of the government which would help trap the corrupt.

But, the method used by clever employers of factories and establishments is something different. They pay the corrupt officers whatever they demand. Get it video recorded without the knowledge of the concerned officers and keep it documented. Thereafter, they get whatever report they want from those officers. Once the inspection is over, they invite the inspecting officer back to a room and replay the recorded video, which shows (1) the demand and (2) the receipt of illegal gratification. They recover the entire amount of bribe or the excess amount of bribe, as per their assessment, from the corrupt officer who pays back the money and runs away. The inspecting officers remain, thereafter, at the control of those corrupt employers.

Now, the entire nation knows that an agriculturist Mr. Balan, was severely beaten by the police at Thanjavur district of Tamilnadu for not having repaid two instalments of loan that he had bought for buying a tractor. The Hindu 11.03.2016 reports: “Balan had borrowed Rs.3,80,430 in 2011 from the Thanjavur Branch of the Kotak Mahindra Bank. He has so far repaid in six half yearly instalments of Rs. 68,543 each, a sum of Rs. 4,11,200 and needed to pay only two instalments when crop failure in successive seasons hit him like other delta farmers, forcing him to default on repayment …. Meanwhile, taking a stern look at the incident, the NHRC has issued notices to the State Chief Secretary and the DGP. Stating that such form of forcible recovery by itself amounted to human rights violation and compounded the nature of the offence committed by those who assaulted the defaulting farmer. The officials have been asked to file their report in two weeks time.” (For more: http://www.thehindu.com/news/national/tamil-nadu/assault-of-farmer-nhrc-notice-to-chief-secretary-dgp/article8338865.ece )

The same nation saw the rulers allowing Mr. Vijay Mallya, who had to pay about Rs. 9000 crores, to flee and escape, because, Mr. Mallya knew how to deal with the corrupt. But, the talent of this businessman does not end with the corrupt officers and political leaders. He had also been bribing the media men all along and recording the events.

Now, he is threatening them openly, which is another crime. This criminal must be booked for this crime of blackmail also and the documents seized and made public to enlighten the public about the ‘great’ media souls who corrupt the public opinion day in and day out.

When Ms. Bedford, the sex-worker, threatened that she would reveal the names of her customers, it worked.

Bedford and Mallya

As Mr. Mallya has threatened the media thus, his blackmail must already be working. The media would hereafter ‘behave’. And, Mr. Mallya who was fond of wine and women could continue to invent ways, with the help of the political leaders in his pockets, to borrow the remaining money from the banks and loot the nation.

The corrupt officers, political leaders and media men, who sold their souls and fell victims to the methods of seduction of Mr.Mallya would veer around now to protect him.

Truth must come out, in spite of these pests.

This incident must also warn, at least, the other officials of what is going on in the corporate world.

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CAG in December 2015 on ESIC Medical institutions !

I. 

Submission in the W.P. 12953 of 2015 filed in April 2015 and in the W.P. 18773 of 2015 filed in June 2015 before the Hon’ble High Court of Madras at Chennai:

“In the circumstances, the decision taken by the Respondent-2 (Director General) on 05.01.2015 to quit medical education and not to admit new batch of students is a correct one and it was intended to salvage whatever is left of the ESI Scheme and to prevent it from getting drowned”.

Findings of the CAG as per the Press Release in December 2015:

“Corporation decided to exit from the field of medical education in its 163rd meeting held on 4th December 2014 as it was not one of its core functions. The decision to exit from this endeavour was only an exercise to limit the liability” (Para 2.12).

II. 

Submission in the W.P. 12953 of 2015 filed in April 2015 and in the W.P. 18773 of 2015 filed in June 2015 before the Hon’ble High Court of Madras at Chennai:

“But, the decision taken all of a sudden on 14.07.2007 during the meeting of the ESI Corporation to establish 43 medical educational institutions in 17 states of India commenced the era of impedance in the functioning of the ESI Scheme. All of a sudden the ESIC started to enter into the field of medical education. And that too on a large scale at the initial stage itself without even testing waters through Pilot Project.”

Findings of the CAG as per the Press Release in December 2015:

“Due diligence, if any, carried out to ascertain the number of colleges required to be opened, to fulfill the future requirement of doctors and other paramedical staff was not available”. (Para 2.6).

“The organisation also did not have any concept paper or project report to assess the viability of opening medical colleges or alternatives to cope up with the shortage of medical personnel in the ESIC hospitals, the CAG said.” – Business Standard 18.12.2015.

For more:

and

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Imphal Free Press Editorial on societal death wish !

Silappadhihaaram, an illustrious Tamil literature of the days of yore, explains the real-life incident of a 22 year old woman fighting for justice and exposing, with evidence,  the corrupt bureaucracy and the defective decision-making-process of the competent authority (the King). Her fight was a lone battle. She asks, after having established the facts, why others did not come forward to question the wrong committed by the Palace Goldsmith and the King. She asks, to the eternal shame of the so called intellectuals,  whether there were learned men at all in the country (Saandrorum Unduhol?).

This literary work addresses the imperative for the consciousness among the people not just to be narrow-minded to look after their individual needs but to actively involve themselves in public issues and work for ensuring justice to the affected and thereby keep the society free from corruption and injustice. Kannahi the Great, is admired and adored by the posterity for her courage, talent and valour that she demonstrated at that tender age.

The statue of Kannahi on the Marina Beach

The statue of Kannahi on the Marina Beach

“The world is a dangerous place to live. Not because of the people who are evil: but because of the people who don’t do anything about it”- said Albert Einstein.

Now, here is an excellent editorial from the newspaper, the “Imphal Free Press”. It is consoling to find a newspaper that sets the standard for journalism in an era in which many other major newspapers have gone for paid news and sectarian views. The editorial titled, “Future Imperfect” published by the newspaper on 23.10.2015 is reproduced below for the benefit of the readers:

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Future Imperfect

 The need to be remembered as men of integrity, and as someone who has contributed his little to society and humanity must have to be behind so much human valour, inventions, ingenuity, courage, philanthropy, generosity…. the list of virtues can go on. This need must be a basic instinct, although it has the tendency of showing up in varying degrees in different peoples and communities. Some are sensitive to it, others not so much. And this must also be what in the long run distinguished societies that have emerged at the top and those condemned to backwardness and subordinate position in the hierarchy of nations. In a way, the instinct must be also linked to man’s craving for immortality in an irredeemably transient world that has led many a philosopher to discover only absurdity in life. With death as the grim leveller of all life, men like French existential philosopher and literature Nobel Prize winner, Albert Camus, were led to believe that all philosophies are a matter of a desperate grapple with the absurdities of life to give meaning to what are essentially meaningless.

This absurdity is profoundly evident in existential questions that ask for an explanation how even the most powerful men and women, such as Ronald Regan, President of the US for two terms and Margaret Thatcher, the Prime Minister of Britain who ruled with an iron hand once, and many others like them can also be reduced by Alzheimer disease to a vegetable like any other geriatric anywhere in the world before he met his end. What profound meaning can there be too in the fact that the greatest conqueror of the earth, Alexander of the Great should have died of the bite of a tiny and insignificant insect like mosquito in the prime of his life.

There is no escape from this overwhelming meaninglessness and hence the appeal and indeed relevance of the “existential despair” in everybody’s life. In the beginning and in the end, is the unavoidable void. A realization so well encapsulated in the Meitei cosmology symbolized by the various postures of the serpentine god, Pakhangba, with his tail in the mouth – in the beginning is the end and in the end the beginning.

Still the quest for permanence in the transience that is life must continue. This thirst is in fact as inevitable and compulsive as the existential despair itself.

This must be also what led many to resist a resignation, and not end up only as someone who live only for the present. Captivating as the picture of life portrayed by existentialism, even existentialist themselves have shown their longing for meaning. In Albert Camus’ much quoted essay “Myth of Sisyphus” for instance, the meaning and salvation of Sisyphus’ struggle, becomes the struggle itself. In Greek mythology, Sisyphus was punished by the gods to roll a massive rock up a summit-less hill. His whole purpose and mission in life thus became the prospect of toiling to push the rock up or be crushed under its weight. His endless and futile toil has today become an image of life, at once captivating, heroic and tragic, from the existentialist’s viewpoint. The toil itself becomes the meaning, for beyond it, there is nothing else. What exactly is there beyond our own individual struggles in life, and when can this struggle ever come to a conclusion, except in death.

The only way to ensure one’s legacy lives on is to leave footprints in time. And this is where the need to leave behind a memory of integrity and courage becomes an essential quality of winners, not just as individuals but also as a society. The two are closely interrelated, for indeed the achievement of the society is but the accumulative result of the achievements of individuals. The essential attribute of a society with a survival instinct in terms of this quest for permanence is a capability to leave enough space and concern for the future.

The urgent question that we are all called upon to ask at this tumultuous junction of the history of our society is, do we bother to contribute our share to the future or do we live just for the present. In the face of all the corruption, bribery, sycophancy, siphoning money from development projects, dishonest contract works, unfair trade practices, which have all become rampant today, we cannot at all be optimistic that there is such a concern for the future beyond myopic individual concerns and insecurities. Embedded in this unconcern for the common future, disturbing as the thought may be, there may be a societal death wish. Should we not make the move now to exorcise ourselves of this demon.

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The link; http://ifp.co.in/page/items/28904/future-imperfect

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When the E.I. Courts grant stay…

(1) The E I Court is not the appropriate forum to challenge the action taken for recovery under the Second Schedule to the Income Tax Act, 1961. If a defaulter is aggrieved over the action of the Recovery Officer, he must, first of all, seek remedy as per the provisions contained in the Second Schedule to the Income Tax Act, 1961 and not resort to Chapter VI of the ESI Act, 1948.

(2) The employers who did not approach the E.I. Courts, in time, to challenge the decisions of the Insurance Branch officers should not be allowed to cite the recovery action as the cause of action for the purposes of Sec. 77 of the ESI Act, 1948.

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One finds that the Employees’ Insurance Courts are approached by the employers not only against the decision regarding coverage, assessment of contribution or levy of damages but also against the action taken by the Recovery Officer under the Second Schedule to the Income Tax Act, 1961.

There are employers who cite the recovery action as the cause of action to challenge the assessment under Sec.45-A of the said Act although they had failed to appeal, in time, to the E.I. Courts as per Sec. 77 of the ESI Act, 1948. There is a vital difference between the “appeal against assessment” and the “appeal against recovery action”. Any mix- up of the two would result in misrepresentation of facts and misinterpretation of law. But, such misrepresentations are entertained in the E.I. Courts and, consequently, the orders of the Insurance Branch Officer could not be enforced in time and action taken by the Recovery Officer gets affected.

The powers of the Recovery Officer to recover arrears from the defaulters and the procedure for recovery are codified in (1) the Second Schedule to the Income Tax Act, 1961 and (2) the Income Tax (Certificate Proceedings) Rules, 1962. The Recovery Officer of the ESI Corporation is able to enforce these provisions by virtue of Section 45- H of the E. S. I. Act, 1948.

The Recovery Team spends a lot of man- days collecting information regarding the source of income of the defaulter, details of property, etc., by taking various actions like measuring the land and building, contacting the revenue authorities for information regarding survey numbers, patta details , etc., approaching the police authorities more than once for each and every case of attachment, attaching the business by sealing the premises for appointment of Receiver, freezing the bank accounts under Rule 26(1) of the Second Schedule to the Income Tax Act, 1961 and Section 45-G of the ESI Act, 1948, etc.,

It is only when the employers ultimately realise that they cannot escape the coercive process anymore, they go to court and obtain stay. There are many cases in which stay orders had been served on the Recovery Officer exactly on the day notified for public auction. Thus, the sustained efforts taken by the Recovery Team to recover the dues are brought to naught at the last moment, by the stay orders issued by the Courts.

The Supreme Court has observed that “normally, the High Court should not, as a rule, in proceeding under Article 226, grant stay of recovery of tax, save under very exceptional circumstances. The grant of stay in such matters should be an exception and not the rule [Siliguri Municipality Vs. Amalendu Das – 1984 – 146 – ITR – 624-626 (SC) ]. Also, R. Laxmichand & Co. Vs. Union of India [1990 – ITR – 376 – (Guj.)].

The Chennai High Court is also of the view that the jurisdiction of the High Court under Article 226 of the Constitution cannot be invoked for the sole purpose of obtaining an interlocutory order to stay the sale of properties in proceedings for realisation of Income Tax. {S. Km. Sathappa Chettiar Vs. ITO {1960 – 40 – ITR – 338 (Madras)}.

Thus, the Supreme Court and the High Courts have been averse to interfere with the acts and actions of the statutory authorities unless their actions are beyond jurisdiction or in excess of jurisdiction. But, even while the Supreme Court and the High Courts have, thus, been and are wary of staying the actions of the Recovery Officer except for some specific reasons as mentioned earlier, many of the E.I Courts are not found to exercise any such restraint in granting stay.

E I courts and Recovery Officers

Under Rule 83, the Recovery officer has all the powers of the Civil Court while trying a suit, for the purpose of

(1) receiving evidence,
(2) administering oaths,
(3) enforcing attendance of witnesses and

(4) compelling production of documents.

The Recovery Officer, in the discharge of his functions under the aforesaid provisions, is deemed to be “acting judicially” within the meaning of the Judicial Officers Protection Act, 1850 (18 of 1850), as specifically mentioned in Rule 82 of the Second Schedule to the Income Tax Act, 1961. The Judicial Officers Protection Act seeks to confer protection to persons performing judicial functions. “By a layman, it may be taken as denoting only persons belonging to the lower judicial cadre of the State, but the Act is not confined to them. It extends to all persons who act judicially – broadly speaking ‘Judges”. (Para 4.1 – 104th Report of the Law Commission of India). The term “Judge” has been defined in Sec. 19 of the Indian Penal Code. The concept of “acting judicially” has been expressed more comprehensively under Sec. 77 of the Indian Penal Code.

Sec. 82 of the Second Schedule to the Income Tax Act, 1961 is a special provision intended to provide statutory protection to Recovery Officers. All the elements, which are essential for a judicial tribunal to adjudicate on a subject matter which is brought before it, are present in a proceeding before the Recovery Officer.

“The tribunal as distinguished from the court, exercises judicial power and decides matters brought before it judicially or quasi-judicially, but does not constitute a court in the technical sense.”( Engineering Mazdoor Sabha Vs. Hind Cycles Ltd. -AIR 1963 SC 874, 978 ). Tribunals can, thus, be quasi- judicial ones too.

“According to the doctrines of constitutional and administrative law, these (quasi-judicial) authorities are regarded as bound by the rules of natural justice” (Para 5. 5 – 104th Report of the Law Commission of India -1984). “Natural justice is based upon the innate moral feeling of mankind”. “Particular form of legal procedure may not be necessary”. But, the “decision must be in accordance with the principles of substantial justice”. (Rulings under Sec. 10 (1), Industrial Disputes Act, 1947). The Recovery Officer must ensure that his action falls within these parameters.

The recovery procedure enunciated in (a) the Second Schedule to the Income Tax Act, 1961 and (b) the Income Tax (Certificate Proceedings) Rules, 1962 is complete enough and comprehensive in itself. These provisions clearly specify the fora for the defaulters to seek remedy against the actions taken by the Recovery Officer. The Rule 9, Rule 11 (6) and Rule 16 (1) are relevant in the context.

Specific appellate provisions to seek remedy against the actions taken by the Recovery Officers under the Second Schedule to the Income Tax Act, 1961 are incorporated in the same Schedule under Rule 86 read with Rule 55-A and 55-B of the Income Tax (Certificate Proceedings) Rules, 1962. “When a statute gives a special and particular remedy to the aggrieved party, the remedy provided by that statute must be followed”. (Page 709 – Employees’ State Insurance Act, 1948 – K.D. Srivastava – Fifth Edition) These appellate provisions can neither be ignored nor be made redundant by projecting only Sec. 74 – 83 of the ESI Act, 1948.

The issue whether the E.I. Courts, which are “domestic Tribunals” (ESIC Vs. Ram Lakhan, AIR 1960 Punjab 559) constituted under Section 74 of the E.S.I. Act, can stay the action taken by the Recovery Officer is not dealt with here. Nor is the fact that the E I Courts are not civil courts but have only a trapping of civil courts elaborated here. But, the E.I. Courts are not made aware of these appellate provisions. Nor are they informed that the jurisdiction of even the Civil Courts must be

deemed to have been excluded to the extent indicated in Rule 9, Rule 11(6), Rule 16(1) of the Second Schedule to the Income Tax Act, 1961 and also in Rule 47 of the I.T. (Certificate proceedings) Rules, 1962. [Malabar Produce and Rubber Co. Ltd. Vs. TRO [1990 – 184 – ITR – 275, 282, (Ker.)].

Bar on civil courts

Rule 9 of the Second Schedule to the I.T. Act makes it very clear that every question arising between the Recovery Officer and the defaulter relating to

(a)  theexecutionofacertificate;

(b)  thedischargeofacertificate;

©  the satisfaction of a certificate;

(d)  the confirmation of a sale held in the execution of such certificates; and

(e)  setting aside a sale held in the execution of such certificates

shall be determined not by suit, but by order of the Recovery officer before whom such question arises.

The provision, does not, however, preclude a Civil Court in respect of any such question upon the ground of fraud. It implies that the Civil Court is not expected to interfere in the recovery of ESI dues, when there is no allegation of fraud. A suit can be filed in a Civil Court only if fraud is alleged. [Hari Prasad Vs. TRO (1984) 145-ITR-48, 54 (All.); Ayesha Khatoon Vs. Union of India (1980) 126 – ITR 489 (Cal.); Shamboo Prasad Bajraria Vs. Union of India (1979) 120 ITR 782 (Cal.); Milan Kumar Mukherjee Vs. Union of India (1984) 149 ITR 730 (Cal.)]. The word ‘suit’ means a proceeding instituted in a civil court by the presentation of a plaint.

In Radha Kishan Vs. Ludhiana Municipal Council, the Supreme Court observed: “Under Sec. 9 of the Code of Civil Procedure, the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is expressly or impliedly barred” (AIR – 1963 –SC- 1547). “Where there is an express bar of jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy of the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of civil court” (Dhulabhai Vs. State – AIR-1969-SC -78)

In spite of the existence of the bar under Rule 9 in the Second Schedule to the Income Tax Act, 1961 and in spite of the abovementioned rulings by the higher Courts, the E.I. Courts grant ex-parte stay in an indiscriminate manner. As a result the recovery process gets scuttled.

Stay orders for the mere asking

The Supreme Court has, in Assistant Collector of Central Excise Vs. Dunlop India Ltd., and others (SLP (Civil) No.s – 12312-13, dated 30.11.1984) observed thus: “It is indeed a great pity and, we wish we did not have to say it but we are afraid we will be signally failing in our duty if we do not do so. Some courts, of late, appear to have developed an unwarranted tendency to grant interim orders – interim orders with a great potential for public mischief – for mere asking. We feel greatly disturbed. We find it more distressing that such interim orders, often ex-parte and non-speaking, are made even by the High Courts while entertaining writ petitions under Art. 226 of the Constitution and in the Calcutta High Court, on oral application too. In several cases, Siliguri Municipalilty Vs. Amalendu Dass, Paper Mills Co. Ltd. Vs. State of Orissa, Union of India Vs. Oswal Woollen Mills Ltd., Union of India Vs. Jain Shudh Vanaspathi Ltd., this Court was forced to point out how wrong it was to make interim orders as soon as an application was presented……. We have come across cases where the collection of public revenue has been seriously jeopardised and budgets of Governments, and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by Courts”.

In this case, the learned single judge of the High Court had taken the view that a prima facie case had been made out in favour of the company and, therefore, by an interim order, allowed the benefit of the exemption and directed the goods to be released on the Bank Guarantee being furnished. The Division Bench of the Calcutta High Court had also confirmed the order of the learned single judge. But, the Supreme Court allowed the appeal with costs saying, “ We do not have the slightest doubt that the orders of the learned single judge as well as Division Bench are wholly unsustainable and should never have been made”.

Take these facts to the notice of the courts

These facts must be brought to the notice of the relevant courts, in an appropriate manner, by the Recovery Officers or the Insurance Branch Officers, as the case may be, whenever the defaulters seek the intercession of the Courts, especially the E. I. Courts and obtain stay.

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Seasonal Factory

Seasonal

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August 5, 2015 · 5:52 pm

ESI coverage: Extension, to On-site Construction Workers !

It is reported that “the labour ministry will soon extend its medical coverage benefits to on-site construction workers, a step in the direction to provide social security to a huge section of the unorganised workers”.

Read more at:
http://economictimes.indiatimes.com/articleshow/48123354.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

Extending the ESI security-net wider is appreciable indeed.

But, when the Government itself agrees that the On-site construction workers are unorganised workers, it must move forward cautiously. It must keep in view the points discussed during the numerous tripartite talks in the Seventies, Eighties and Nineties. The records in this regard must be available in the Hqrs. Summary of those facts had been recorded in the Annual Standard Notes also upto the year 2000.

It must ensure proper actuarial calculations, especially when the ESIC does not have its own Actuary with the real knowledge about the working of the organisation. It is very essential.

ESI Act is essentially for organised workforce, in spite of the term “otherwise” in Sec. 1 (4). Payment of contributions, submission of returns, reporting accidents and many other formalities would show that the scheme is employer-centric. Yet, the ESIC could not extend the scheme to construction sector because of many practical considerations. That, precisely, was the reason for so many tripartite talks for decades.

So, if necessary, a separate structure may be evolved the way it was done in the later nineties for cashew workers of Kerala. The scheme was, ultimately, discontinued by the ESIC. The documents that show why that scheme meant for cashew workers had been dispensed with may also be gone through, in the present context.

Thereafter, let the authorities have some pilot projects regarding extension of ESI Coverage to the construction workers, experimented in one or two regions, one in the North (Rajastan)  and another in the East(Bengal)  or South(Andhra Pradesh). Let the experience gained be analysed before embarking on coverage nationwide. That will be a prudent, essential and reasonable precaution.

Formulate a system in such a way that it does not allow malingering and false claims.

The experience of the ESIC in respect of the TDB in Bihar and Gujarat must be taken into account with the seriousness it deserves.That will guide the authorities before venturing into the extension of the scheme to construction workers throughout the nation at the initial stage itself. Already, many construction agencies, undertaking Turn-key projects are abusing even the existing provisions, by covering the on-site construction workers, on the sly. The impact of such wrong coverage and the intention behind such voluntary coverage by the construction agencies must be studied with open mind and the facts that emerge out of such study must be accepted, before moving forward with such coverage.

Prof Adharkar, the visionary, has rightly said that when a scheme is proposed it must be workable in the “peculiar circumstances of Indian labour and industry”. Sage words !

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Already, inadequate knowledge coupled with over-enthusiasm on the part of the people who count has played havoc with the system in certain areas. The Medical College matter is one such case where the authorities do not know what to do next. Let not this proposal to extend the provisions to the on-site construction workers also result in chaos and meet the same fate.

ESIC is not only meant for providing benefits to the deserving insured population. ESIC is also the custodian of funds contributed by honest workforce who believe that the funds would be used rightly, to provide benefits to the really needy. They believe that because the ESIC is a public organisation, it wold take every care to ensure that the funds are not misused by  dishonest employers and employees in connivance with greedy consultants and covetous  bureaucrats.

Proposed scheme must be on practical lines and there must be proper, effective and unambiguous checks and balances. Nebulous law and procedure for settling the claims of such on-site construction workers would result in honest officers and staff shying away from handling the subject.

 

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Healthcare: Mr. Jaitley leads the nation to peril !

“If we continue in the direction we’re headed we’ll soon have a health insurance system dominated by two or three mammoth for-profit corporations capable of squeezing employees and consumers for all they’re worth – and handing over the profits to their shareholders and executives.

The alternative is a government-run single payer system – such as is in place in almost every other advanced economy – dedicated to lower premiums and better care.”- Robert Reich.

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“Insurers are seeking rate hikes of 20 to 40 percent for next year because they think they already have enough economic and political clout to get them.

That’s not what they’re telling federal and state regulators, of course. They say rate increases are necessary because people enrolling in Obamacare are sicker than they expected, and they’re losing money.

Remember, this an industry with rising share values and wads of cash for mergers and acquisitions. It also has enough dough to bestow huge pay packages on its top executives.

The CEOs of the five largest for-profit health insurance companies each raked in $10 to $15 million last year.

After the mergers, the biggest insurers will have even larger profits, higher share values, and fatter pay packages for their top brass.

There’s abundant evidence that when health insurers merge, premiums rise. For example, Leemore Dafny, a professor at the Kellogg School of Management at Northwestern University, and his two co-authors, found that after Aetna merged with Prudential HealthCare in 1999, premiums rose 7 percent higher than had the merger not occurred.” – Robert Reich. ===================================================

In India, the problems would be worse, when private players are allowed to play a role in providing social security. The profit would not be shared with shareholders too. It would be shared with the politicians, as black money.

That is the reason the Indian politicians find it irresistible to yield to the desires of the ultra-rich and make the common public the fodder to feed those ultra rich.

We know this happening already in the Telecommunications sector. The BSNL and MTNL had the wherewithal to provide cable TV connection to all homes and provide all the channels the people wanted. But, they were not encouraged. Will these public sector organisations pay anything to the politicians overtly and covertly? What is the use of these organisations for them? But, the private players in the field rake in a lot and throw a share to the politicians in the name of party-funds, who do not want to make the source of their party funds transparent but share the booty among themselves for which they became politicians first and rulers next. One can compare the remuneration of the chief of Airtel with the chief of BSNL and find who is there for what.

Likewise one can compare the remuneration of the lowest paid clerical staff of the BSNL with his counterpart in Airtel and find who is better off. The modern CEO would ensure that wages fall and profits rise. He would ensure his voice is heard and obeyed while the voice of the employees would never be allowed even to be raised.

Privatisation helps the top man to suck the blood of the public and the subordinates to enrich himself.

These politicians who are after money-bags would not save the nation by privatising Social Security. Their thoughtless action is going to make the life of the future generations miserable.

Mr. Arun Jaitley has said in Para 62 of his Budget speech,”With respect to ESI, the employee should have the option of choosing either ESI or a Health Insurance product, recognized by the Insurance Regulatory Development Authority (IRDA). We intend to bring amending legislation in this regard, afterstakeholder consultation.”. What this forebodes the nation can be seen from the problems faced by the commoners in the USA. The situation in India would become worse.

Let us,therefore, knock at the doors of Judiciary to save the nation from the hands of these greedy politicians, who had already corroded the public sector health care system by their interference and cite the same corrosion as the reason to bring in private players to spoil the nation.

For more: http://www.salon.com/2015/07/07/robert_reich_single_payer_healthcare_is_the_only_way_partner/?utm_source=facebook&utm_medium=socialflow

As rightly analysed by Mr.Reich in some other article, modern day businessmen are not required to be brilliant. He says that the modern day corporate CEO is one “who’s rigged the rules, reaped giant personal rewards, and left communities and employees stranded.” But, the men in power to control the government and the media make the government to propagate and convince the masses that the modern day businessman is a messiah to save the mankind.

Only the awakening of the masses can save their progeny!

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