January 24, 2013 · 11:50 pm

Framing the innocents: Part II

1720 A.D. Rama Komathi, a man of great wealth and influence, enjoyed a very high reputation in Bombay, not only for his wealth, but also for his philanthropy, benefactions and public spirit. He enjoyed remarkable respect and confidence of the East India Company for over 30 years. He was the only Indian citizen of Bombay invited to attend the inauguration of the St. Thomas’s Cathedral.

“But such is the perversity and malignity of human nature, that, at times, a virtuous man makes more enviers and enemies than an unscrupulous and unprincipled timeserver and opportunist.”

When he became old and infirm, he was charged as a traitor and a dangerous conspirator. His position, his character and his past record might have persuaded any sensible law court that such a charge in relation to such a man was incredible. But, that did not happen in his case.

Trial was conducted. The witness was one of Rama Komathi’s servants. This witness testified during the trial that that there was interaction and correspondence between Rama Komathi and the pirate chief Kanhoji Angare to kidnap the Governor Boone. In regard to the source of his information, this witness said that he came to know about it from a dancing girl and that she told that Angare had told her that Rama Komathi had written a letter to him. That dancing girl was not examined. Letters written by Rama Komathi to Kanhoji Angare were produced during the trial. They were in his handwriting and carried his seal too.

The Governor in Council drew the charge. His trial was held before an adhoc tribunal, which was presided over by Governor Boone and consisted of members of the Council and Parker, the Chief Justice of the Court.

During the trial, the Chief Justice Parker came to know of the torture of the witness and objected to it. The witness had been subjected to “cruel and inhuman torture” and the evidence was fabricated with forged documents and even that evidence was only a hearsay evidence. That servant was tortured by cutting off his thumb to extract evidence and a statement implicating Komathi.

Parker came to know also the fact that such a torture was inflicted at the instance of Boone. But, the result of showing this judicial independence was his dismissal from office, by the Governor. This is what happens when the Executive has so much say over Judiciary.

Rama Komathi was convicted and sentenced to imprisonment for life with confiscation of all his property. For eight long years he languished in gaol until death came to deliver him in 1728.

In pursuance of the sentence, Rama Komathi’s property was pillaged, and sold by public auction. A commodious warehouse in Mumbai Fort belonging to him was taken over by the Company itself for Rs. 20,000.

“It was of course only appropriate that a property plundered out of the estate of a tragic victim of judicial error and malicious machinations of a gang of miscreants, should become the inspiring venue of law and justice.”

It was proved later, after Rama’s death, that the incriminating letters were all forgeries, that the seal was fictitious, fabricated by a soni who was an expert forger.

His immense wealth had excited the envy and cupidity of a clever gang of cheats and forgers and the Governor too became involved in it at a later stage. All that the subsequent Government could do then was to repair the wrong was to give some monetary compensation to Rama’s son.

His conduct of the trial was dubious. He subjected a witness, a servant of Rama, to torture to extract a confession from him, notwithstanding the protest of Parker that judicial torture was illegal under English law.

There is no suggestion that, barring Boone, the other members of the tribunal had any inkling of the plot against the prisoner.

There is also no evidence that Boone was the brain or even the originator of the conspiracy.

After the sentence, Governor Boone invited claims against the property of the condemned criminal; and promptly put in a claim of his own to the tune of Rs. 12,791, a very large sum in those days.

From and For more, with courtesy:

http://bombayhighcourt.nic.in/libweb/historicalcases/cases/THE_TRIAL_OF_RAMA_KOMATHI-1720.html

Cited by Kautilya in The Legal History of India and by V.D. Kulshreshta in Landmarks in Indian Legal and Constitutional

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January 17, 2013 · 12:38 am

Framing the innocents: Part I

(The present one and the next few threads would show how the bureaucrats book the innocents and harass them by abusing the authority vested in them for public purpose. The serving employees can get a lot of clues from these threads to protect themselves against victimisation)

Mr. B.K. Subbarao stood first in Electrical Engineering in the A.P. University in 1963 and joined the Indian Navy the same year. He received many awards and citations in the Navy. He was the recipient of the Herbert Lott Memorial Award “for his inventiveness in improving the existing fighting devices of the Navy” and Lieutenant V.K.Jain Memorial Gold Medal “for his achievements in the field of computer technology, electrical engineering and control engineering.” He got doctorate too.

Meanwhile, in the BARC, the scientists had been working on the first design of a nuclear submarine propulsion plant since 1971.

In June 1976, Subba Rao was asked to work with BARC scientists for developing a nuclear sub-marine plant. He was made the second-in-command for a team of 20 Naval officers and 85 BARC scientists. On the basis of Subbarao’s technical findings, this design had to be dropped in 1976.

The second design was also dropped in January 1978 after Subbarao showed that it was not viable for naval application.

The BARC authorities were sore at Subbarao picking holes in their work. They, therefore, decided to bypass the Naval team. Their third design was, therefore, directly submitted by the BARC in 1980 to the Prime Minister Indira Gandhi. The scientists also wanted Rs. 150 crore to build a prototype of their third design. But, Indira Gandhi, wanted to have the technical opinion from Subbarao. Subbarao’s report rejected BARC’s third design also. He specified that the design failed to meet the basic standards, such as safety, followed by the nuclear navies of the USA, Russia, Britain, France and China. He gave 14 reasons whythe third design would also not work. Mrs. Gandhi did not sanction the Rs. 150 crores.

Consequently, Indira Gandhi returned BARC’S proposal. However, she also said that she would reconsider her decision if the BARC scientists could disprove Subbarao’s claim. But, the BARC did not dare to do so. The observations of Subba Rao were so sharp and correct.

The BARC started work on the fourth design towards the end of 1980. Meanwhile, the Indian Navy instructed Subbarao to develop a design of his own. Subbarao’sdesign was ready by November 1982 and submitted to the Prime Minister’s office.

Official Secrets Act Tavleen Singh

Conspiracy by the officers who were egoists

Meanwhile, Navy asked Subbarao to prepare his own design. Indira Gandhi asked the BARC scientists to examine the issue based on Subbarao’s nuclear submarine design. Dr Raja Ramanna, the BARC director (also scientific advisor to the defence minister) was more egoistic. He declined to consider Subbarao’s design. He said to Subbarao, “You are a naval officer and we cannot accept the work of a naval officer. I will send my comments on your design but you will not see them in your lifetime. You should go back to the navy and work in electronics and computers which is your field”. Within a week Subbarao was taken off the submarine project by the Naval authorities. Continue reading →

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January 10, 2013 · 1:19 pm

Towards objective Test-Inspections in the ESIC!

(The earlier Post titled ‘Test Inspections in the ESIC: A charade!’ dealt with the flaws in the amendment and the administrative instructions pertaining to Test Inspections, i.e., the Theory on the subject. The present Post deals with the Practice, the practical aspects in general. The ESIC Administration must plug the loopholes and not increase them by overlooking the routes for escapes and excuses)

 The perception of the employers

It has been mentioned more than once, in this forum, that periodical and proper inspections by the ESIC authorities could alone safeguard the interests of the working population by ensuring proper coverage and compliance. Proper inspections contemplate proper monitoring mechanism also in the form of Test Inspections and Vigilance Inspections. However, in practice, the employers feel that they are at the receiving end in an unjust manner because of the following reasons:

  • Undue claims are raised which are waived after questionable practices.
  • The fear of having to face such a situation compels the employers to resort to questionable methods during the inspection stage itself.
  • The inspections should, therefore, be avoided.

A narrative by Mr. O.A. Hameed, former A.C, in this regard is recalled here which can be considered as representative of the grievances of the employers. The ESIC, a public body, cannot ignore these observations:

“All Inspections are source of corruption, intimidation and harassment. Often the inspecting official do not themselves know the law clearly and they are also totally ignorant of modern system of book keeping and therefore unable to understand and examine various kind of books and documents, which result in bulk booking of some entries and then leaving it to be sorted out between the department officers and employers, which is opening further scope for corruption and avoidable harassment. An organization, which claims to provide various kind of benefits in case of sickness, abstention, accidents and death and help employees immensely, should not resort to inspection but education of employees. The law that benefits has to be given even for those in respect of whom no contribution is actually paid but only payable is more a myth since actual amount of benefit is linked to contribution payable and this requires verification of records when there is a claim which can only come through report from employers. When the employers certify a claim of workers, he need to give his wage break up and period of employment and he is open to scrutiny of his records. Let ESIC ensure better, speedy and seamless benefit dispensation, educate the public at large and the industrial workers and their leaders continuously as also employers, I am sure the registration and payment will be more voluntary and friendly and that is what ESIC should strive for. Instead of inspection, department should undertake selective scrutiny of records called to its office, in case of complaint or doubtful claim.”

More on the views of employers at the following links: https://flourishingesic.info/2012/07/01/inspection-of-factories/#comments

https://flourishingesic.info/2012/11/29/inspections-we-want-no-we-dont-want/#comments

The issues that arise are:

Should inspections by the ESIC authorities be detested so much? Would the employers dislike the inspections even by the well-meaning and honest Inspectors of the ESIC? This article is an attempt to throw light on these facts. Continue reading →

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January 3, 2013 · 3:41 pm

Test Inspections in the ESIC: A charade!

(This article deals only with the theory of checks and balances in the functioning of an organization and not the practice in Test Inspections, which will be dealt with separately. The theories must always be correct and take into account the problems that would be encountered in the field when it is enforced).

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Every system in a democracy must have checks and balances. As far as the ESIC is concerned, a provision for inspection of factories and establishments was incorporated in the ESI Act to facilitate monitoring proper compliance by the employers. Inspecting the records of the past periods helps the ESIC Administration detect (a) the occasions and (b) the manner in which the employers had, in the past, concealed the concealment of employment of persons and payment of wages. Such inspections help the Administration to find remedial measures to ensure that such concealments do not recur in future. The ESI Act is a labour-welfare legislation and the provision for inspections in the Act are, obviously, intended to advance the purpose of labour and their welfare. Such advancement can be achieved only when the inspections are done in a qualitative manner with adequate depth and substance. This being the importance of inspections under the ESI Act, as a natural corollary, the Administration must provide a system to monitor the performance of the Inspectors, the way there is a need to police the police.

The only way in which such monitoring can be done is to conduct Test inspections by higher officers. This system of checks and balances is there in the EPF Organisation also where it is called Supervisory Inspection.

Test Inspection is only an Administrative action

Test Inspection is only an Administrative action. It does not require any statutory provision. Reg. 102 of the ESI (General) Regulations, 1950 was found adequate for conducting Test Inspections. There was no problem on this issue until some employer went to court and got an interpretation that there was no provision for test inspection in the ESI Act. But, there were many Courts, which did not find fault with the system of such test-inspection. Moreover, the matter was not taken up with higher judiciary for any final verdict on the issue. The legitimacy of test inspections can be explained and justified by the ESIC by citing the practice followed in other departments. That would have protected the interests of the organization. However, it was not considered so essential at that time as the test inspections were continued to be done everywhere by calling them only as inspections (although they were done by the officers who were superior in rank to that of the inspectors).

But, all of a sudden Test Inspections were stopped describing them, strangely, as ‘harassment of employers’. This kind of phraseology in official communication puzzled the readers, as the test inspection was intended to monitor the quality of inspections conducted by the inspectors. That the employer had to pay, sometimes, additional contribution was only a consequential effect. Continue reading →

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December 28, 2012 · 12:19 am

Action Against Defaulters: Quo vadis, the ESIC?

Excerpts from a news item from the Times of India dated 07.12.2012:

“It has been observed that open-ended assessment, inquiries and investigations serve no real purpose. Moreover, such inquiries often do not result in the identification of beneficiaries and only tend to harass the employers and establishments. It is accordingly directed that no inquiry or probe shall ordinarily go beyond seven years that is, it shall cover the period of default not exceeding preceding seven financial years. It is to be ensured that compliance actions are initiated in time and there is normally no reason for extending the scope of investigation and assessment inquiry beyond previous seven financial years,” Central PF commissioner R C Mishra said in a circular issued on November 30, the day he superannuated.

“This circular is anti-worker. The law of limitation does not apply on us and does not stand the test of law as there are several Supreme Court rulings on the issue,” said A D Nagpal, Hind Mazdoor Sabha secretary and a trustee on the EPFO board.

“Nagpal said that fearing action, employees often do not complain against their employer till they leave service and the new provision will make it impossible for them to claim what is due to them.”

“It is not proper to have a time limit for what is an employee’s right,” added CITU president A K Padmanabhan, who is also on the EPFO board. He said the EPF statement usually does not reach employees on time and very few actually check the balance and deposits carefully.

Even before the circular was issued, there were protests within EPFO over the move. Sources said some of the members of a committee of officers on judicial proceedings had opted out from giving their recommendations as they recognized that the move was not employee-friendly. Yet, Mishra went ahead and issued the directive.

TIMES VIEW

“In a country which has precious little by way of a social safety net, the provident fund is one of the few such fallback options, even if only for those in the organized labour force. Any change in the rules governing this scheme must therefore be tested on the touchstone of whether it enhances the safety net or weakens it. Imposing a time limitation on when defaults can be investigated clearly weakens it. Most of those whose savings lie in the EPF do not regularly track whether money is being deposited in it by their employers and, if so, whether it is as much as it should be. They may well discover a default well after it happens. Clearly, they cannot be left with no scope for redress due to a time limitation clause.”

What happened in the ESIC? The ESIC had, silently, restricted the duration to five years (and not seven as in the EPFO) and got the Act amended too. The cut-off date for determining the five years period is not with reference to the financial years but with reference to the 21st of every month. The cut-off date was just left to float, so fast.

Continue reading →

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December 21, 2012 · 9:24 am

Interviews: ESIC on the reverse journey?

 

I. There were vacancies in the cadre of medical officers in the ESI Corporation and a proposal was mooted to recruit them. A political heavyweight who came to know about it, pressured the Head of the Department to select people as per his choice. He wanted the selection process to have only the mode, i.e.,  interview,  to facilitate his nefarious designs. But, the pressure was resisted, very courageously, by the Head of the Department. Yet, the politician won the day and the Head of the Department was shifted out abruptly and prematurely. Same pressure was brought on the next incumbent also. But, he also resisted the pressure, admirably, and did not agree to dispense with the Written Test. Interview was only for those who came through the Written Test, he said. Now, it was the turn of the politician to lose. Advertisement was issued, applications were processed and written tests were held in a transparent manner and the evaluation was a computerized one. But, that was not the end of the story. Presidential_Dollars_Madison_Coin

II. The process of interview was the next part of selection. It was, now, attempted to be hijacked by the political leader. An elaborate net was woven in the political circles to hijack the interview process. Action was taken to frame even a new Recruitment Regulations for that purpose, i.e., to hijack the interview board. But, the Head of the Department was so clever that he just kept watching the game (played by the people within and outside the ESIC) and very simply and effectively checkmated the game ultimately. The end result was least interference in the recruitment process. Besides,  the ESIC came to have a Recruitment Regulation which had not been used at all. The incident proved that clever and honest bureaucrats could always stop the corrupt politicians.

Organised mischief by the interview board

III. There was an advertisement inviting applications for the post of para-medical personnel in Group-D in a hospital. More than 7000 applications were received. Appointment was to be made on the basis of the performance of the candidates in the interview. That was the only mode of selection. Continue reading →

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December 14, 2012 · 1:39 am

Transfers: Discretion Vs. Arbitrariness

Dear Readers,

In regard to the Transfers in public service, a beautiful judgment has been delivered by a Court of Law. It is a virtual treat to go through the judgment. To facilitate readers, the details regarding the judgment concerned are given in three parts. On going through the judgment one recalls the noble Latin maxim followed by the Judiciary in the West, “Fiat justitia, ruat caelum” (Let justice be done, even if heavens fall).

Part I: Excerpts regarding the particular case.

An employee working in the Railways was transferred. Feeling aggrieved, the employee approached the Court of Law. “The respondents in their reply in para 3 has stated that who should be transferred where, is a matter for appropriate authority to decide. Unless the order is vitiated by malafide or is made in violation of any statutory provision the court cannot interfere with it. While ordering transfer, there is no doubt; the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right.”……………“The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation.”………………“The Railway would contend that the applicant has assailed the order on the ground also that there are large number of officers who are having longer tenure than the applicant but it is part and parcel of the administration that some people may get longer posting in a particular place due to administrative interest. They also said that large number of officers in the grade of SAG did not work in Delhi upto the level of SAG or above. They would say that the applicant had been transferred during mid academic session which would affect adversely the education of children. But it is also stated by them that such problems are general with officers of his age and status.”……… Continue reading →

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December 13, 2012 · 8:56 am

Medical personnel for ESIC Medical Colleges

A Medical graduate who passed the examination for recruitment of Insurance Medical Officer Gr. II in the ESI Corporation presents himself before an officer in the ESI Corporation and says, “ Sir, I have been selected for recruitment in the ESI Corporation. I have also been selected for admission to the PG course in the PGI, Chandigarh. What shall I do?”  Without any hesitation, the well-meaning officer advises him to join the PGI. It happened years ago.

In the same year another Medical graduate enters into the office of the Railway authorities. He has also passed two examinations. One, the examination for recruitment as Medical Officer in the Railway hospital and two, the examination for admission in a Post Graduate Medical course. He seeks advice from the Railway authorities. He is advised by the authorities to join the Railways first. And, immediately, thereafter, he is sanctioned Study Leave and permitted to undergo the post-graduation course, keeping lien in the Railways.

Are there provisions in the Leave Rules? Apparently, there is no provision at — first sight. An employee should have put in, at least, three years of service to be given Study leave without pay. So, a new entrant cannot eve n think of doing post-graduation. But, there is a provision for relaxation in Rule 65 of the CCS (Leave) Rules. The Railway authorities invoked the similar provision in the Indian Railway Establishment Code to permit that new entrant to prosecute higher studies.  Rule 557 in Chapter 5 of that Code contains Leave Rules for the Railway employees. The authorities there got a bond executed by that candidate as provided in Rule 530(3)(a)(b) therein.

The candidate has nothing to lose. Railways have everything to gain. They would get a P.G. level doctor after three years who will be with the Railways for a minimum period of five years and draw the salary of only an entry level doctor without the PG qualification. Continue reading →

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December 6, 2012 · 12:30 pm

Defaulters: what the ESIC could do but did not.

Action had been taken once very effectively and enthusiastically by the ESIC Officers’ Federation in the year 1997 through a Member of the Standing Committee Mr. Gautam hailing from Mumbai, to streamline the work of follow-up with the defaulters by making it easier for the employers to pay the contribution. All the Regions were asked to give their opinion on it. And, all the Regions supported that proposal.

A recap of that proposal is appropriate.

  1. Every employer covered under the ESI Act would pay the contribution through a Cheque or Demand Draft in the Branch Office (then, Local Office) and get formal acknowledgment of the same.
  2. No payment would be received in cash by the Branch Office. The Branch Manager will arrange to deposit all the instruments  in the ESI Corporation’s Bank Account the next day by preparing a Broad Sheet for the same.
  3. By twenty second of every month, he would easily know which employer did not pay the Contribution for the previous month and issue notices to all those Partial Defaulters besides calling them over phone and remind them.
  4. In the case of Persistent Defaulters, he would issue Show Cause Notices after the six monthly Period of Contribution is over and send the notice as well as acknowledgment to the Regional Office for taking action for prosecution.
  5. He would, during the course of the month, obtain the Bank Reconciliation Statement and ensure that all the cheques and Demand Drafts presented by him were accounted for and no cheque was dishonoured.
  6. In the event of dishonour of any cheques, the Branch Manager would take further action of issuing notices in time as per law and send the papers to the Regional Office for further action.

This process was suggested by the ESIC Officers’ Federation after a lot of deliberation with various Regional Units.

Continue reading →

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November 29, 2012 · 9:45 pm

Inspections: We want! No, we don’t want!

Inspections of factories are desired in some cases and disliked in some cases. (Readers may please click on the images to get full size  readable pictures.)

The first image is from the magazine Business India of the year 2001. The next one is from the Business Standard of November 2010. There are justifications on either side. But, what is important for the society as a whole must be made law. How to control the negative factors in inspection? The readers may please offer their opinion.

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