January 26, 2014 · 6:51 am

Trampling of beneficial legislation by ESIC- by S.D.Puri

Trampling of Beneficial Legislation
by Employees State Insurance Corporation

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(Mr. Hiren Chheda has sent this for publication as comment. But, considering the importance of the issue it is published as a Post. Readers may read the comment below too to have a complete picture of the case)

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The Employees’ State Insurance Act, 1948 is a beneficial legislation. The contributions payable to the fund is in the nature of a tax and hence no “quid pro quo” is attached.

In this regard Sec. 38 of the Act mandates that all employees should be insured and Sec. 44 imposes obligations to furnish returns, maintain registers as specified therein. Regulation 11 &12 prescribe procedure for obtaining Declaration forms from employees. Sec. 14 specifies furnishing of Declaration forms with a return within 10 days of obtaining the particulars. The definition of employee in the Act is also very wide. Sec. 2(14) defines “insured person”. It covers both present and past employees against whom contributions are or were payable. Sec. 2A puts an obligation on the employer to register his factory and establishment as soon as the Act applies. There is no provision in the Act which enjoin a duty on the part of the corporation to keep on informing the employer that they are covered under the Act. Sec. 45 A to Sec. 45 I prescribe the procedure for determination and recovery of contributions. Thus it is clear that once the factory or establishment is covered u/s. 2A, all the coverable employees are automatically become insured persons

Since it is a tax, the Act does not prescribe any limitation for determination and recovery proceedings against the defaulting employer. The legislature was aware that the employer’s default may render the dependants of the deceased employees without any relief. Hence while putting an absolute bar u/s. 53 of the Act for the employees to seek relief under EC Act, 1923 or any other law, Sec. 68 mandates that ESIC must pay to the dependants of the deceased employee the dependants benefit despite violations of the provisions of the Act and recover the same from the employer as if it were an arrears of land revenue at the rate twice the amount of the contribution. Sec. 68 is in addition to other penal provisions like Sec. 39 (5), 45 (C), 85, 85 A, 85 B, 86 and 86 A of the Act and Regulation 31-B and 31-C.

However it is noticed that the beneficial provisions are misconstrued by some of the High Courts, thereby forcing the coverable employees to seek the remedy under Employees Compensation Act merely because the employer had failed and neglected to cover them and send the form no. 1 before their death under Regulation 11 &12 with returns within 10 days to the ESIC under Regulation 14 or for covering them posthumously. The High Courts, it appears, were more concerned to punish the employer who had tried to wriggle out of the financial liability cast on them in a last ditch effort unmindful of the fact that even otherwise for ESIC there is ample scope within the frame work of the Act itself to proceed against the employer.

The ESIC itself, also, it appears, is unable to comprehend these beneficial provisions in proper perspective. It is more attuned to interpret these provisions in a pedantic manner so as to deny them the dependants benefit. In the recent past after the judgement of Gujarat High Court in the case of Ranisati Processor Pvt Ltd., v. Deputy Director, ESIC, the ESIC Headquarters New Delhi has framed contradictory and conflicting policies aimed at misinterpreting the provisions of the Act and Law. For example, by their circular dated 29.09.2009 it was directed that the dependants benefits be denied if application for registration of workers with ESIC was submitted after the death of employee due to some accident at work place because according to the judgement of Hon. High Court of Gujarat, they are not liable to pay benefits to the employees/dependants if application for registration was submitted posthumously. On 06.04.2010 these instructions were modified so as to accept the declaration forms where the signature of deceased insured person is available on declaration form though submitted posthumously. On 21.10.2010 these instructions were again modified in which it was directed that declaration forms of coverable employees are to be accepted even posthumously irrespective of whether signatures/thumb impressions are there or not with further directions that the negligent employer is to be proceeded with u/s. 68 including prosecution for violations of the provisions if any. But the circular is totally silent as to how the past denied cases are to be dealt with due to change in their illegal policies undertaken at frequent intervals.

These circulars by themselves are fine examples as to how the Corporation which is responsible for implementing the beneficial provisions of the Act has misinterpreted them time to time at their sweet will even when there is no change in the law passed by legislature. One is clueless to fathom the undercurrent and the mindset of the corporation which changes its policy, depending on the judgement selectively to suit its convenience with single minded objective as to how best to deprive the benefits even when the law remaining unchanged.

There is no doubt that these misinterpretations have a colossal impact on the beneficiaries. It has victimised them and their dependants who have to run pillar to post in search of relief thereby forcing them to enter into costly litigations and yet compelling them to live in lurch and in a state of despair. It is noticed that there are plethora of cases rejected illegally on these grounds in West, Central and Southern regions of the country.
It is hoped that the ESIC may reconsider all these cases and that the policy of the ESIC should be based on a firm footing in accordance with law without any scope for variation in terms of conflicting judgements delivered from time to time by the Courts. If this is done it will go a long way in correctly implementing the beneficial legislation entrusted to ESIC. The thrust must therefore be how to give relief to the beneficiaries and not how to deny it.
Advocate S. D. Puri

2 Comments

Filed under Labour Bill of 2014

November 1, 2013 · 5:45 am

ESIC Meeting Minutes: Letter to the Hon’ble Prime Minister!

The last sentence in the post titled “ ESI Corporation Meeting on 19.09.2013” published on 25.09.2013 (https://flourishingesic.info/2013/09/25/esi-corporation-meeting-on-19-09-2013/) read:

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

But, our worst fears on this issue have come true. The Minutes have been modified by the Hon’ble Minister as he pleased. He had made the entire body of members of the ESI Corporation a mockery. What can we do now? We can only write to the Hon’ble Prime Minister. We have, therefore, written. The following is the text:

To

The Prime Minister,

Government of India,

P.M.O,

New Delhi

Sub:
 E.S.I. Corporation – Meeting of the Corporation on 19.09.2013 – Minutes – tampered and doctored by the Minister for Labour – intercession – requested.

Sir,

I have to state that the meeting of the Apex Body of the ESI Corporation was held on 19.09.2013. Among the points on the Agenda were the ones conferring powers on the Hon’ble Minister for Labour and Employment to act as the Appointing Authority and Disciplinary Authority of the officers of the ESI Corporation.

This was opposed to by the Members of the body, as it was unnecessary and no justifiable reason was given in the Agenda for the change proposed. It was, therefore, decided to refer the matter to a Sub-Committee to examine the issue in-depth. The tape-recorded version of the discussion during the Meeting would testify to these facts.

That was a correct decision of the body, especially when the Agenda had been introduced under dubious circumstances by the Hon’ble Minister in his capacity as the Chairman of the ESI Corporation.

It is a fact that he was showing extraordinary interest in acquiring the powers of transfer of the officers of the ESI Corporation right from the day he assumed charge as Minister for Labour. This power, when conferred upon the Minister, will give him real authority without any responsibility.

Earlier, Hon’ble Mr. Sahib Singh Verma was also exhibiting such irrepressible desire to acquire the power of transferring the officers of the ESI Corporation. Documentary evidences are available in the Ministry itself in this regard. The organization was saved, fortunately, because his party lost  the elections in the year 2004.

Hon’ble Mr. Sis Ram Ola has not only been exhibiting similar uncontainable desire on this issue but has also gone to the extent of writing the Minutes as he pleased. He has, thus, rendered the entire body of the ESI Corporation redundant. His action is unlawful and gives new dimension to the way we understand democracy in India. I request you to kindly intercede, immediately, and set right matters before it spills over as a major issue spoiling the image of your government during the coming elections in 2014.

Yours faithfully,

7 Comments

Filed under Amendments 2010, For Trainees, Transfers

October 24, 2013 · 8:04 am

ESIC Revenue Manual Vs. EPF Inspector Manual

Once upon a time, in the later Eighties, an Insurance Inspector sent his Inspection Report pertaining to a hotel in a small town, which fell within the implemented area. The hotel had been covered as an establishment, then. He reported that the Attendance Register and the Wages Register showed very clearly that there were only 22 employees in the hotel. But, the employer had been paying contribution for 25 employees and submitting Return of Contribution Cards too.

The matter was probed into by him further and it was found that the three persons for whom the employer of the hotel was paying contribution were employed in the neighbouring peanut shop, not run by the hotel-owner. The peanut-shop owner had, earlier, been working in a textile mill in Mumbai and had come back to his native town, after the mills were closed after the large scale strike by the labour leader Datta Samant. This peanut-shop owner knew the benefits of coverage under the ESI Act and, therefore, wanted to provide that security net to his employees. He requested the neighbour, the hotel owner, to include his employees also in the RCC stating that he would pay the contribution amount correctly.

While this report was considered to be a compliment to the ESI Corporation, the hotel-owner was advised to desist from such practice, as the employees of the peanut-shop were not the employees of the hotel and the peanut-shop was not an establishment coverable under the ESI Act.

Moreover, providing Disablement Benefits and Dependant Benefits to these three employees in the event of accidents in the non-coverable peanut shop would become difficult.

The ESIC is supposed to receive contribution compulsorily from and in respect of all the coverable employees, but, only from the coverable employees and not from the non-coverable but willing employees. ESIC did not see that there was more revenue because of such coverage. ESIC went beyond it and understood that there was more liability than what was legally permitted, when such non-coverable but willing employees are admitted into its fold. ESIC took care to enforce the law strictly and rightly.

What is the position now? And, what is the position after the introduction of the I.T. Roll-Out? Is it a free-for-all now in respect of coverage? These matters will be discussed when the issues involved in I.T. Roll-Out are taken up. For the present, the contents of the Revenue Manual alone are discussed. Flourishing ESIC acknowledges with deep appreciation the inputs given by many.

When the ESIC Headquarters Office released the Revenue Manual, two questions were asked:

1. Does this Revenue Manual supersede all the instructions on Revenue-related matters until the date of its publication?

2. Has this Revenue Manual taken into consideration all the instructions issued by the Hqrs. on revenue-matters until the date of its publication?

The answer was a plain and simple ‘No’.

The extent to which the Revenue Manual would be useful to the Revenue Branch Officers, Social Security Officers, and the staff members dealing with Revenue matters in the ESIC can be understood from the above-said reply itself.

This Manual is available online and is in public domain. It is a fact that the Revenue Manual, brought out after a lot of hard work, throws  light on important issues with historical facts. But, a Manual of an organisation must be foolproof. When the Local Office Manuals were prepared and updated, different sections of the Manual were sent to various regions for examination and feedback to ensure that there was no error. But, such an exercise had not been done before printing the Revenue Manual, in spite of the fact that some problems were and are endemic while many are epidemic. Endemic issues are those which are confined only to a few Regions or Sub-Regions. This Manual does not tackle certain important  endemic and epidemic issues plaguing the revenue administration. A consultation and brain-storming sessions with regions would have helped the Hqrs. to solve many problems.

Some of the issues are, therefore, brought up for discussion in this article. Some major issues are and will not be discussed here in this forum, as it would be misused by unscrupulous elements, which already play a negative role aided by the deficiencies in the Revenue Manual. :

Issue 1: Incorporating obsolete instructions:

It has been mentioned in Page 212 of the Revenue Manual that order under Sec. 45-A of the ESI Act, 1948 could be issued on the basis of entries in the Despatch Register regarding the despatch of C-18 adhoc.Instructions like this had been issued in July 2002 but were later modified in May 2008.There had been so many judgments against the method suggested in Page 212. That a letter had been sent by Registered Post does not imply that it had, really, been delivered. One must ensure that the Notice sent in Form C-18 had actually been delivered before passing the order under Section 45-A.But, the instructions issued in May 2008 had not been taken into account before publishing the contents of Page 212.
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Page 221 contains the word ‘or’ in line 3 in Para L.13.2.(1) and this confuses the issue more.
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But, Page 223 contains the following details of the instructions issued in May, 2008:

“Keeping the above broadly in view, it has been desired that adequate care should be taken to ensure that the following action has been completed before issuing speaking order u/s 45-A:

  • . i)  to ensure proper service of the notice (C-18) to the employer. “

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What, then, is the need to incorporate the obsolete instructions in Page 212?

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Issue 2: Essential details omitted:

The format for issue of order u/s 45-A does not contain, in its last paragraph in Page 230, the date of delegation of power by the Corporation and the details of gazette in which it was published in the year 1991. When a standardised format is introduced, this aspect could have been taken care of.
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Issue No. 3: Allotment of Code Numbers to Contractors:

Page 57of the Revenue Manual contains unlawful instructions. While Para P.5.3 is correct, the contents of the next para P.5.4 are wrong. It is true that the authorities are able to do now whatever they desire. But, that does not imply that whatever they do is right.

P. 5.3. Submission of Employer’s Registration Form by the Contractors (Immediate Employers): A contractor or the immediate employer to whom the Act applies, but is letting out the services of all his employees to only one covered factory or establishment, no separate ESI code number is allotted to him. He is required to comply with the provisions of the Act, rules and regulations under the code number of the principal employer, with a sub-code number to identify him and his compliance.
P. 5.4. Allotment of a code number to a contractor or immediate employer : If a contractor or immediate employer to whom the Act applies, and letting out the services of his employees to an uncovered factory or establishment or to more than one covered factory or establishment, such contractor or immediate employer may be registered separately and a separate code number allotted to him. For this purpose, the following points may be kept in view.
A contractor is only an Immediate Employer and he cannot be given separate code number to enable him to cover the employees sent by him to do work of other employers, to do the work in the premises of other employers.
The directions in page 57 and subsequent pages on this issue have created a lot of havoc. The manner in which the software under the I.T. Roll Out has enabled the employers to create their own code numbers has added to the problems, to put it very politely.
Hope the matter will be set right by the authorities. The intricacies of this issue had been brought to the notice of the authorities long back. But, there is no system in place to hear the subordinates.
The management principle recommended by Mr. Gordon M.Bethune, former Chief Executive of the Continental Airlines is to hear the subordinates. For, they know more about the work, they know more about the weak-spots.
The importance of respecting the views of the subordinates has already been highlighted in the following thread:
https://flourishingesic.info/2013/05/16/respect-people-below-you-on-the-ladder/
In the context, the contents of the EPF Inspector Manual, available in the following link, is worth-comparing. http://www.epfindia.gov.in/EPFO_RulesRegulations/Inspector_Manual.pdf The ESIC too had similar Handbook for Insurance Inspectors. This Handbook has not been published now.
On the other hand, the Revenue Manual contains the duties of Social Security Officers too. But, as a rule, Manuals must confine themselves only to time-tested procedures. They should not give room to ambiguous interpretations.

2 Comments

Filed under For Trainees, Inspections

October 17, 2013 · 8:03 am

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

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

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

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

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

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

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

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

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

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

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

3 Comments

Filed under Amendments 2010, Benefits, For Trainees

October 13, 2013 · 8:44 pm

Theory & Procedure on ‘Employment Injury’ – A Presentation!

A powerpoint Presentation on the theory and procedure pertaining to Employment Injury is given below. Hope readers will find it useful.

Employment Injury

2 Comments

Filed under Benefits, For Trainees, Powerpoints

Tagged as

October 11, 2013 · 7:51 am

Welcoming Hon’ble Mr. Ola as Administrator!

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

Ursula von der Leyen–German labour and social affairs minister

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

The millstone

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

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

The scope for real service lies here for the Minister

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

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

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

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

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

Creating constituencies

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

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

Opportunity lost

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

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

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

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

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

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

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

The Hindu, August 13, 2013:

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

Times of India adds:

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


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

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Filed under Amendments 2010, For Trainees

October 2, 2013 · 8:00 pm

Professionalisation of Personnel

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

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

Minister saw through the bureaucrats

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

Advocating arbitrariness

Advocating arbitrariness

Volte face by the Federation

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

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

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

Light came at the end of the tunnel

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

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

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

Public interest lost sight of

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

Exigencies of private service!

Exigencies of private service!

So much power, wielded by subordinate officers

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

Policy Vs. Luck

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

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

Professionalisation of Personnel stopped midway

The Hon’ble Supreme Court of India has observed, on 25.8.2003, that “Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out. The power, like all other administrative powers, has to be exercised bona fide”. (State of Rajasthan & Ors Vs. Anand Prakash Solanki –C.A.NO. 6733 OF 2003). Moreover, laying down proper Transfer Policy and its adherence has been the norm all over the nation as could be seen from the following few facts. Some of the State Governments have beautifully explained the need for  transparent transfer policy:

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

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

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Filed under Amendments 2010, For Trainees

September 30, 2013 · 7:47 pm

When the BSNL employees lost their LTC…..

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

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

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

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

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

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

Q 4. Could things have been different in BSNL?

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

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

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

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

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

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

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

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

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

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

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

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

Junior Vihadan - January 7, 1996

Junior Vihadan – January 7, 1996

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

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

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

BHARAT SANCHAR NIGAM LTD

(A Government of India Enterprise)

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

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

To

All Heads of Telecom circles.

All Heads of other Administrative units.

 

Sub: Expenditure Control in BSNL.

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

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

Sd-

[Sheo Shankar Prasad]

Assistant General Manager (Pers.V)

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

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

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

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

Q 11. What is the moral of the story?

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

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Filed under Amendments 2010, Benefits, For Trainees

September 27, 2013 · 6:31 am

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

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

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

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

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

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

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

In the context of the ESI Corporation, all the employees in the cadre of Inspectors and above in the ESI Corporation join the organization only with prior knowledge and clear understanding that they are liable to be transferred anywhere in India during the period of their service. But, all of them can have a reasonable expectation that such transfers would be ordered in respect of all the officers in their respective cadre without any bias and in a systematic, pre-determined and impartial manner universally without any discrimination. They have, therefore, no reason to nurture any legally valid grievance, if and when they are subjected to transfers in public interest in the exigency of public service. But, they can have legitimate grievance if the transfers are ordered by the persons in power in the Administration Division selectively on subjective considerations. Because, the “right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes, it is more dangerous than other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide the sweet revenge, a desire to get rid of an inconvenient employee. ..” Asserting that there can a “deceptive innocuousness” in the transfer orders, the Hon’ble Court said, “ a transfer can uproot a family, cause irrepairable harm to employee and drive him to desperation.” {Pushpakara Vs Chairman Coir Board, Cochin 1979 – SLR-309-315 316 Kerala) and in llyas Ahmad Vs Station Director, All India Radio, Hyderabad (1979 – 2.5 LR -58, 1979-Slj -592. K. K. Jindal Vs. General Manager, Northern Railway}.

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

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

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

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

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

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

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

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

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

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Filed under Amendments 2010, For Trainees, Transfers

September 25, 2013 · 4:31 am

ESI Corporation Meeting on 19.09.2013

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

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

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

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

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

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

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

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

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Filed under Amendments 2010, For Trainees, Transfers