Category Archives: Uncategorized

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?

 

 

 

1 Comment

Filed under Uncategorized

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.

Leave a comment

Filed under Uncategorized

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

1 Comment

Filed under Uncategorized

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:

==============================

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.

===============

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

Leave a comment

Filed under Uncategorized

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.

===

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.

2 Comments

Filed under Uncategorized

Seasonal Factory

Seasonal

Leave a comment

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 !

Slide2

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.

 

Leave a comment

Filed under Uncategorized

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.

==================================================

“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!

Leave a comment

Filed under Uncategorized

ESIC should not admit students again: AITUC in HC !

The Tamilnadu State Council of the AITUC has filed a case in the Hon’ble High Court of Chennai in W.P. No. 18773 of 2015 praying for quashing the decision communicated by the Hqrs. Office of the ESI Corporation on 18.03.2015 to admit students again in the ESIC-run medical institutions for the year 2015-16.Mr.T.M. Murthy, General Secretary of the Tamilnadu wing of the AITUC has moved the Hon’ble Court on this issue. Mr.P Gurusamy, the Counsel for the AITUC, said that the Hon’ble High Court admitted the case and permitted issue of private notice to the parties.

The argument of the AITUC is:

  1. The membership of the AITUC is 3.6 million. The unions affiliated to AITUC are from textile, engineering, coal, steel, road transport, electricity board and of unorganised sector such as beedi, construction and head-load workers, anganwadi, local bodies and handloom. The employees who are working in various factories and establishments in India are members of our trade union too and they have been covered under the provisions of the Employees’ State Insurance Act too. The ESI Corporation as a body, had taken decision on 05.01.2015 quit medical education, as the ESIC did not have the core competency to run the medical institutions. But, it had been reversed by the Director General on 18.03.2015 and decision taken to admit the students in the ESIC Medical institutions for the year 2015-16, without any justification, as his decision results in further wastage of the funds contributed by the members of our AITUC, who are working in various factories / establishments coverable under the ESI Scheme.
  2. The AITUC has submitted that the ESI scheme had been well managed at the macro level up to the year 2007. The article in the Economic Times on 05.02. 2003 commended the financial management of the ESIC in an article titled “ESI manages funds better than pvt units”. The article said, “Next time you grumble about the Employees’ State Insurance Scheme, you could get some solace from knowing that at least your money is being managed well.” The article goes on emphasing this aspect at length. This Central Autonomous Body had been accumulated funds little by little for about 55 years and kept them invested in government securities as per the advice of the Respondent-5 from time to time. And this made the organization financially strong.
  3. 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.
  4. The obvious intention was only to fritter away the corporation money on a large scale in construction of buildings rather than establishing medical colleges and running them successfully forever. That was the reason the Respondents ventured to start so many medical colleges at one go. They did not even do paper work to assess the initial cost and the perpetual running cost vis-à-vis the revenue earned in the form of contribution from the workers who are members of our AITUC too. The Ministry of Law and the Ministry of Finance had also been indifferent to the activities in the ESI Corporation and had cleared the proposal of the ESIC for amendment in the year 2010 without proper examination.
  5. The Director General had indulged in construction spree on an extensive scale and frittered away 15000 crores of rupees so far. Around 8 medical institutions have started functioning from the academic year 2011-12. The running cost is enormous and is affecting the routine and main work of the ESIC. Now, the Sub-Committee of the ESIC reports that the budget will be negative in 2016-17.
  6. In the circumstances, the decision taken by the Respondent-2 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.
  7. But, the decision taken on 18.03.2015 to admit new batch of students for the year 2015-16 is patently wrong and is in deviation of the decision communicated by the Respondent-2 earlier on 05.01.2015. When the ESIC had openly admitted in categorical and clear terms that it did “not have the core competency to run the medical institutions”, there should be no further attempt to spoil both the organization and the career of the new batch of students.
  8. Besides, this decision dated 18.03.2015 is ultra vires as it was in defiance of the earlier decision dated 05.12.2014 of the Apex body. The decision taken on 18.03.2015 was not only unlawful, its being ultra vires of the Respondent-2 but also unjustifiable ex facie. The order dated 18.03.2015, therefore, needs to be quashed in the interest of vast multitude of workers in the nation.

The AITUC has reiterated its case on the following Grounds:

A.   59-B of the ESI Act which lays down the provisions for “Medical and para-medical education” says, “The Corporation may establish medical colleges, nursing colleges and training institutes for its para-medical staff and other employees with a view to improve the quality of services provided under the Employees’ State Insurance Scheme.” However, four years later, the Respondent-2 found that the ESI Corporation did not have the core competency to run medical colleges and that “the objective of Section 59-B is unlikely to be met”. His earlier decision to enter into medical education has, thus, been proved to be wrong by the order dated 05.01.2015 issued by the Respondent-2 himself. The Respondent-2 ventures to commit another wrong now, through his subsequent order dated 18.03.2015, in spite of his realization of his own earlier mistake. He should, therefore, exit from the field of medical education at the earliest opportunity, as decided by him on 05.01.2015, without spoiling the career of the students who want to be taught by competent and willing institutions.

B.  The ESI Corporation, as a Body, decided, on 04.12.2014, that the ESIC should exit the field of medical education as that was not the core function of the organization. It was decided to phase out the existing four medical education and dental colleges in a phased manner or to close them down by apportioning the students among other colleges, “whichever is earlier”. But, all of a sudden, the Respondent-2, who is not empowered to act in violation of the decision of the Apex Body, does turn the decision upside down and issue a circular on 18.03.2015 directing the Deans and Medical Superintendents of the concerned Medical Colleges to initiate action to admit students for the next batch of the year 2015-16. It is not only ultra vires of the Respondent-2 to do so but also a deliberate misconduct on his part.

C.  It has been mentioned that this decision dated 18.03.2015 had been taken in the “interest of the students”. But, the unassailable fact is that the interest of the existing students in the MBBS/ BDS/ PG course do not get served by admitting new students. The reason given by the Respondents in the aforesaid Memo dated 18.03.2015 is false and is intended to mislead the public. An organization that wants to exit medical education for lack of core competency to run it, cannot protect the interests of any students and that too new batches. Their statements and actions are mutually contradictory and self-defeating. The Respondent-2 are not transparent in their activities and do not come out with facts which prompted them to act, unlawfully, in total defiance of the decision taken by the Apex body on 04.12.2014. Their statement that their mysterious decision dated 18.03.2015 was taken ‘in the interest of students’ is patently wrong a clear attempt to cover up their real and obviously questionable intention to waste the ESI funds even more. I respectfully submit that the Memo. dated 18.03. 2015 needs to be quashed on this score itself.

D.  The Respondent-2 had already incurred around Rs. 15000 crores to construct and run many medical colleges at one go. Now that he has admitted that he does not have the competency to run medical colleges, that the objective of Sec. 59-B of the Act is unlikely to be met and that running medical colleges is not the core activity of the ESIC, he must act as the man of ordinary prudence, as mandated very often in the General Financial Rules, 2005, and stop further admission of students to these five institutions. But, I feel aggrieved that the Respondent-2 ventures to misspend the funds contributed by me and on my behalf and other similarly-placed insured persons knowing full well that he does not have the competence to teach those newly admitted students too.

9.   The AITUC has, therefore, prayed that the Hon’ble High Court may be pleased to quash the Memo. dated 18.03.2015 and consequently direct the Respondents not to admit students for 2015-16 session in MBBS/BDS/PG courses and to pass further or other orders as deemed fit by the Hon’ble Court and, thus, render justice.

 

Leave a comment

Filed under Uncategorized

Moving the Court of Law; Inviting ideas and opinions from the public !

Democracy means having the right to say what one wants and leaving the decision to others*. But, what one says must be right and true. This website makes every attempt to present the ‘right’s and the ‘truths’. And, this website never claims that what it presents alone is right. It is for the reader to discern what is right and what is wrong, as the website is open for different viewpoints and has hosted articles received by it with contrary views.

This website reiterates that it serves only as a forum to bring out the opinion of the public so that the authorities are able to traverse beyond their immediate circle and take informed decisions. The website would also enable the Ministers and Prime Minister to realize the seriousness of their mistake in forcing the bureaucrats to put up convenient notes to justify the pro-rich decision already taken by them, ignoring the pain that would be inflicted on the society by such improper political decision.

 Wrong decisions by Elected Bodies

 Now that the ESI Corporation, as a body, has realised, in its 163rd meeting, that running the medical colleges is not its core activity (and that too, after the amendment of 2010 which made the medical colleges, part of the ESIC) the issue becomes how and why the same ESI Corporation, as a body, considered, in the years 2008 and 2009, that running the medical college was essential for it, “to improve the quality of services provided under the ESI Scheme” and permitted spending the surplus funds running into more than Rs. 9000 crores, in a tearing hurry, and hundreds of crores were sanctioned first and placed later for approval ex-post facto by the Standing Committee, for construction of medical college buildings, even before the formal amendment was made to the ESI Act to empower the ESIC to “establish” medical colleges.

The fact, therefore, is that the ESIC, as a body, took a wrong decision either before the amendment or, now, after the amendment. The indisputable fact is that the ESIC, as a body, has demonstrated that it could and would take wrong decisions.

 Failure of Members to play their legitimate role

 But, the concept of having a multi-faceted body for decision-making is that there should, normally, be informed discussions in the meetings so that there would be no scope for such patently wrong decisions. But that was not to be in the case of ESIC when it came to spending thousands of crores of rupees for construction of buildings for medical colleges, even before the enactment of law. The ESI Corporation, is a Body in which there are, among others,

  • 10 employers’ representatives,
  • 10 employees’ representatives,
  • 3 MPs, and
  • 25 IAS Officers representing various State Governments.

Yet, such wrong decision had been taken in the ESIC meetings, only because of the failure of the employers’ representatives and employees’ representatives (except Mr. Kali Ghose) to examine the proposal with the seriousness it deserved. The representatives of the State Governments used to remain silent spectators in almost all the ESIC meetings, except when the issue involved their States. But, their presence had always lent credibility to the claim of their consent to the decision in the Body by showing them as part of the affirming majority. In essence, majority of the members of the ESIC did not show active interest, in the years 2008 and 2009, in examining the proposal tabled for their consideration, for insertion of Sec. 59-B. Hence the present predicament.

 Failure of the media to prevent the catastrophe

 Yet, even in those years of origin of the present problem, there had been some activists who had been working hard to prevent the catastrophe and to enlighten the MPs about such a wrong decision and the unlawful action in spending crores of rupees for construction of buildings for medical colleges, even before the Parliament amended the Act. But, the MPs did not care. Those activists wrote to various newspapers too, including the “National”ones. But, no editor cared. The Parliamentary Standing Committee was cheated. And, in the last leg, the Parliamentarians chose to be busy with creating pandemonium over Mr. Sibu Soren issue while Mr. Mallikarjun Kharge could present the amendment, amidst interruptions and interruptions, and get it through. The result was a puzzling proposal for amendment became law with an ‘amazing’ and improper Validation Clause. That was how the ESI Corporation, as a Body, the Parliamentary Standing Committee, as a Body, and the House of the People, as a Body, had erred and failed to live up to the purpose for which they were there. They had failed to analyse the present and foresee even the easily foreseeable future.

 Atlas is looking for another shoulder

 And, the burden of that error and failure, has been passed on by the earlier Administration to the shoulders of the present Administration, which is searching desperately for other shoulders to shift its burden. Atlas who got the burden of the globe shifted to his shoulders is still trying to find someone else to shift it off. The issue now is whether Atlas can continue to shoulder the burden or should shift it to someone else or whether he can make use of it, in any other manner, without shouldering it as a burden.Atlas 4 The decision in the 163rd meeting of the ESI Corporation that running the medical colleges is not its core activity is right. But, handing over the buildings to the State Governments or private players does not appear to be right. The members of the ESIC do not seem to have discussed the issue in-depth. They appear to have remained silent and endorsed the already made up bureaucratic stand on the issue. It is a clear failure of the present ESI Corporation, as a body. Its decision to shift the burden to the State Governments or to the private players do not seem to be correct and right. But, what are the other options open for the ESIC to make the best out of the present quandary? Are there ways to come out of the quagmire?

Of course, people come up with a variety of ideas. Some may be right. Some may be wrong. Some may be legal. Some may be unlawful. It is felt appropriate to examine all the options in an open forum so that the best comes out of it to facilitate the Administrators to consider those options.

 Thankfully, many are public-spirited

 Some well-intentioned activists believe in taking up the issue to the Court of Law. The relevant questions on the issue are, therefore, brought to the attention of the public, seeking their opinions on them. The questions and the replies given by the public would be presented before the judiciary as a document in the Typeset when the Writ is filed.

Every single citizen has a say in the matter and a stake in the well-being of the ESIC, as an organisation meant to take care of complex life problems. The website, therefore, invites readers to record their viewpoints on the crucial issues so that the best solution emerges out of such brainstorming event for the common good.

“I am only one; I cannot do everything.

Still, I am one; I can do something.

Because I cannot do everything,

I will not desist from doing something that I can do”,

-Helen Keller.

===========================================

The first case to be filed in the Court will focus on the manner in which the ESIC proposes to utilise the buildings which are constructed for running medical colleges. Hon’ble Minister for Labour has made the stand of the Government public in the Press Release dated 23.03.2015. That Press Release will be the impugned document.

 Press Release 23. 03.2015

 The Press Release dated 23.03.2015 says that the ESI Corporation is going to hand over 8 medical colleges, at Faridabad, Sanatnagar, Coimbatore, Gulbarga, Mandi, Alwar, Paripally and Bihta to State Governments as per its revised terms and conditions. It has been mentioned that if the State Governments do not come forward to send any reply within 15 days, it would be presumed by the ESI Corporation that they were not interested in taking over those projects and, thereafter, efforts would be made to run these medical colleges under PPP model etc.,

It has also been specified therein that “the core function of the ESIC is to provide social security i.e., cash benefit and medical benefit to the Insured Persons under the ESI Scheme. It was felt it would help the ESIC in concentrating at its core function if the ESIC exited from the field of Medical Education”.

 White elephants, so many!

 It is apparent from the said Press Release that the present ESI Administration finds it difficult to run the Medical Colleges and does not know how to get rid of so many white elephants. It says it is trying to hand over the “Medical Colleges” to the State Governments, on its own terms and conditions.

The Ministry of Labour is also ready ( Or, eager?) to hand over those “Medical Colleges” to private players, as could be seen from the Press Release dated 23.03.2015. It uses the term ‘PPP model’. It also uses, significantly, the word “etc” to indicate that it does have more options too.

The Press Release gives raise to various questions, some of which are enumerated below:

  1. Where is the provision in Sec. 59-B to empower the ESIC to run the “medical colleges” through private players or even through State Governments? Such third party participation is permitted by Sec. 59 (3) only to run the ESI Hospitals and not Medical Colleges. How can the ESIC mix up Sec. 59(3) with Sec. 59 (B)?
  2. Besides, the basic issue is, where is the continued need for the ESIC to run medical colleges and also to seek PPP for that purpose, when it has found out that it is not its core activity, at least, now?
  3. When the Administration has admitted that the buildings of 8 more medical colleges are only “under construction”, why should it not forget about medical colleges but use the infrastructure created, for some other purposes, in such a manner that it generates permanent rental income to the ESIC to add to the ESI Fund, to offset the money lost during the last six years?
  4. Is it obligatory for the ESIC to run those medical colleges through proxies, either through the State Government or through PPP or through other methods (as implied from the world ‘etc’), just because buildings have been constructed or just because the MCI is going to give permission to it?
  5. When the Private Players are allowed to run the medical colleges, will they be running it as per their own licence or by using the licence obtained by the ESIC from the Medical Council of India?
  6. If the ESIC is using the licence obtained by it for running the medical colleges and allowing that licence to be used by the private players, will it be legal, when the ESIC has gone on record saying repeatedly that running the medical colleges is not its core activity?
  7. Would those private players be able to get permission from the Medical Council of India to run medical colleges on their own? Are these private players permitted to be the beneficiaries of the misadventure and discomfiture of the ESIC in having illegally started construction of buildings spending thousands of crores of rupees from the year 2008?
  8. How is it that some private players like Reliance, SRM and others are reported to have already entered the premises of various (proposed) medical colleges at Coimbatore, Joka and other places, officially and inspected the infrastructure under construction?
  9. Is it true that those private players would admit students under Management Quota to make money, using the licence granted to the ESIC for starting medical colleges?
  10. What is the significance of giving only 15 days’ time to the State Governments to accept the Terms and Conditions framed by the ESIC before and for inviting the private players to have a role in running the medical colleges on behalf of the ESI Corporation?

Helen Keller, all

Everyone is, can be and has to be a Helen Keller. Everyone’s ideas count. Actions of individuals count. During the early 1940s there had been many social activists, impartial scientific authorities, in England who had conducted many social surveys of the conditions of life of the people in principal towns in Britain including London, Liverpool, Sheffield, Plymouth, Southampton, York and Bristol.

Helen Keller

Helen Keller

That alerted Winston Churchill to entrust the work of formal study of the issues of Social Security to Sir William Beveridge. The website, therefore, invites all the readers to come up with their ideas and opinions on the issues affecting the working population.

If emerging facts prove what the PMO, Ministry of Labour and the ESIC are going really in right direction in public interest, it will not be necessary to move the court of law on this score. Otherwise, we will have to seek the intersession of the Judiciary to save the nation from the organised attempts of the rich businessmen and pro-rich-politicians to dismantle the finest Social Security of the nation.

(*with due apologies to H.D.Thoreau).

7 Comments

Filed under Uncategorized