Innocent MPs Vs. Wily bureaucrats !

Hon’ble Supreme Court has, in Vasantlal Maganbhai Sanjanwala Vs. The State of Bombay and others on 25.08.1960 referred, in a different context,  to the possibility of legislature,  “controlled by a powerful executive”. That possibility is proved to have become a reality in India as demonstrated by the wily bureaucrats when it came to the amendment of Labour laws, especially the Bill No. 66-C of 2009 and the Bill No.375  of 2019.

The manner in which the Cl. 40 (9) had been inserted in the Bill on The Code on Social Security, 2019, (Bill No. 375 of 2019) pending in the House of the People (Lok Sabha) shows how wily the bureaucrats could be, again and again. Identical Clause was introduced in the Bill No. 66-C of 2009 to amend the ESI Act, 1948.

But the then Parliamentary Standing Committee on Labour  (PSCL) rejected that provision categorically assigning strong reasons. Yet without being aware of the said observations of the PSCL, the provision was made to become law during a pademonium without discussion on 03.05.2010.

Now the Bill No. 375 of 2019 containing the same provision is before the present PSCL. Attempt is made to apprise the PSCL of the history of the case to save the social security structure from being corroded further.

Copy of the letter dated 14.05.2020 sent to the Hon’ble Speaker, House of the People is reproduced hereunder:

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

To

1 Hon’ble Speaker,
House of the People (Lok Sabha),
17, Parliament House,
New Delhi 110011
2 Mr. Bhartruhan Mahtab,
Hon’ble M.P. & Chairman,
Standing Committee of Parliament on Labour,
South Block,
New Delhi – 110011.

(Through Mr. Kulvinder Singh, Deputy Secretary, Parliament of India,House of the People. Email: comm.labour-lss@sansad.nic.in)

Sub: Third party participation in running the ESIC hospitals and medical institutions – insertion of Sec. 59 (3) of the ESI Act, 1948 in the year 2010 – Clause 40 (9 ) of the Bill No. 375 of 2019 – bureaucracy deceiving the Parliament – Representation – submitted.
Ref: 1.  Bill No. 66-C of 2009 placed before the Lower House of the Parliament as The ESI (Amendment) Bill, 2009 on 30.07.2009.
2.  Report dated 09.12.2009 of the Parliamentary Standing Committee on Labour.
3.  Record (Minutes) of the proceedings of the Lok Sabha on 03.05.2010.
4.  Bill No. 66-C of 2009 as passed by the House of the People on 03.05.2010 titled The ESI (Amendment) Bill, 2010.
5.  Hqrs. Letter No. U-11/14/1/20-15-Med.I (ICU) dated 20.04.2018 addressed to M/s Sheel Nursing Home Pvt Ltd, Uttar Pradesh.
6.  Draft Code on Social Security circulated in the MOL&E Circular No. Z-13025/13/2015-LRC dated 17.09.2019.
7.  The Code on Social Security, 2019, placed as Bill No. 375 of 2019 before the House of the People (Lok Sabha).

Sir,

I submit that Hon’ble Supreme Court has, in Vasantlal Maganbhai Sanjanwala Vs. The State of Bombay and others on 25.08.1960 referred, in a different context,  to the possibility of legislature,  “controlled by a powerful executive”. That possibility is proved to have become a reality in India as demonstrated by the bureaucrats, again and again, when it came to the amendment of Labour Laws, especially the Bill No. 66-C of 2009 and the Bill No.375  of 2019, as explained below. In the context, I consider it necessary to invite your kind attention to Clause 40 (9) of the Bill No. 375 of 2019 which is under the consideration and scrutiny of the Parliamentary Standing Committee on Labour at present. The said Clause reads as under:

“The Corporation may also enter into agreement with any local authority, local body or private body for commissioning and running Employees’ State Insurance hospitals through third party participation for providing medical treatment and attendance to insured persons and (where such medical benefit has been extended to their families), to their families.”

2. Identical is the provision under Sec. 59 (3) of the ESI Act, which was inserted through the amendment of the year 2010, vide Bill No. 66-C of 2009:

Sec 59 2 Bill Text

3. I submit that this provision, i.e., the Sec. 59 (3) of the ESI Act which is in force as on date and the proposed Cl. 40 (9) of the Bill No. 375 of 2019, enable Third Party participation in commissioning and running the ESI hospitals and providing medical treatment and attendance to insurance persons and their families.

4. When the above  provision was proposed  to be inserted in the ESI Act in 2009, as Sec. 59 (3), vide Clause No. 14 of the Bill No. 66-C of 2019 introduced in the Lok Sabha, the Parliamentary Standing Committee on Labour had examined the issue rejected the proposal outright as could be from Para 113 of its Report presented to  the Lok Sabha on 09.12.2009. The Committee did not permit making such an enabling provision in the Bill for commissioning and running these hospitals through third party participation Para 113 said,

“113. The Committee note the proposal of the Government for making a provision for commissioning and running of ESI hospitals through third party participation. The Committee find that ESIC has the required capacity and wherewithal to run hospitals on their own since Government have taken a decision that all new hospitals would be run by ESIC directly. The Committee, do not find any justification in, and therefore outright reject, the contention of the Government that ‘some of the hospitals constructed on the request, and not taken over by the concerned State Governments may be commissioned through third party participation’. The Committee take note of the reply of the Government that there were only three hospitals which had not been taken over by the State Government and out of these three, one, at Chinchwad, had already been commissioned by the ESIC directly and already handed over to the State Government. Another hospital at Bibvewadi has also been commissioned by the State Government. Therefore, the Committee feel that there is no justification on the part of the Government for making such an enabling provision in the Bill for commissioning and running these hospitals through third party participation”.

Para 113 page 70 PSC report

Page 71 of the PSC report

5. Yet, those observations of the Parliamentary Standing Committee on Labour had not been taken to the notice of the Members of the Lok Sabha on 03.05.2010 in an appropriate manner that would make them pay attention to the differing views of the Standing Committee. Consequently, the original Clause 14 in the Bill No. 66 of 2009 was made to become law in the form of Sec.59 (3) of the ESI Act. That provision was, thus, the outcome of an unlawful and unjust and undemocratic law-making-process.

6. It becomes clear, from the Minutes of the Parliamentary Proceedings, that the authorities did not want to care for the well-considered  observations of the Parliamentary Standing Committee on Labour and had, therefore, omitted any reference to the abovementioned observation of the Committee in Para 113 of its report. That was why even the already prepared speech of the Hon’ble Minister did not contain any reference, at all, to the Para 113 of the Report containing the objection of the Parliamentary Standing Committee to Clause 14 which was to become Sec. 59 (3) in the Act, later.

7. Besides, the Bill got passed by the Lok Sabha within a time span of nine minutes between 1420 hours and 1429 hours on that day, the 3rd May 2010, when the issue pertaining to Sibu Soren was creating a pandemonium in the House without allowing any meaningful discussion. Significantly, the Hon’ble Minister did not, actually, deliver, in the house, that portion of the speech which is available in Pages 60, 61 & 62 of the Minutes dated 03.05.2010 but had just laid it on the table on the advice of the Hon’ble Deputy Speaker, as could be seen from the live telecast that day.

8. The fact, in essence, is that the Parliament of India had not consciously approved the amendment for and before inserting the aforesaid Sec. 59 (3) in the ESI Act, 1948. It did not examine the observations of the report of the Parliamentary Standing Committee on Labour dated 09.12.2009. The Legislature had been tricked on 03.05.2010 by the Executive, whose intention was only to observe the formality of getting the Bill declared by the Speaker as passed on the floor of the Lok Sabha. The Executive had not been sincere and honest in giving right and complete information to the Legislature on this issue before asking for its approval.

9. The Executive had, with mala fide intention, placed the Clause 14 of the original Bill No. 66 of 2009, in its original form itself before the Parliament, even after the Parliamentary Standing Committee had objected to the said draft proposal in Para 113 of its Report. It is not the ‘end’ result but the ‘means’ adopted by the Executive to achieve that ‘end’ which makes the said Sec. 59 (3) vulnerable and amenable to judicial scrutiny.

10. While Parliament is not bound by the recommendations of the Parliamentary Standing Committee, it cannot just ignore the findings of the latter. Parliament has to apply its mind to the observations of the Parliamentary Standing Committee and record that it was differing from the stand of the said Committee. But in this case the Lok Sabha had simply been oblivious of the vital observations of the Standing Committee in Para 1134 of its report. The Executive did not make any efforts to draw the particular attention of the Parliamentarians to the stand of the Standing Committee to the then proposed Sec. 59 (3) of the ESI Act.

11. What is shocking all the more is that the same provision appeared as follows as Cl. 43 (9) in the draft circulated on 17.09.2019 and withdrawn in the first week of October 2019, at the behest of the PMO to rejig the draft.  The present Cl. 40(9) in the Bill on the Code on Social Security, 2019, (Bill No. 375 of 2019) is the identical replica of the same provision, as quoted in Para 1 supra. This Bill has also been referred now to the Parliamentary Standing Committee on Labour without informing that Committee that the same issue had been examined by the earlier Parliamentary Standing Committee and had been rejected by it. The Executive has thus been consistently playing tricks with the Parliamentarians and cheat them as a matter of routine by suppressing facts from the knowledge of the Parliamentarians.

12. I, therefore, request that the members of the present Parliamentary Standing Committee on Labour may be informed,specifically, of the contents of Para 113 of the of the Report presented to the Lok Sabha on 09.12.2009 by the earlier Committee, so that the present Committee concerned could take an informed decision.

13. It would also be appropriate for the present Parliamentary Standing Committee on Labour to delve a little deeper into the manner in which various instances had taken place during the last decade through that Sec. 59 (3) of the ESI Act, 1948, especially those involving the agency called M/s Sheel Nursing Home Pvt Ltd referred to in the Hqrs. letter dated 20.04.2018, before and for taking decision on the Clause No. 40 (9) of the Bill on Social Security Code, 2019, which is now under the consideration of the said Committee.

Thanking you,

Yours faithfully,

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Complaint to the NHRC: Social Security Bill violates human rights!

30.04.2020

To
The Chairman,
National Human Rights Commission,
Manav Adhikar Bhawan, 
C-Block, GPO Complex,
INA, New Delhi 110023.

Sub: Code on Social Security Code, 2019– no assurance for continuation of the existing benefits provided under the ESI Act at present – violation of fundamental human rights –provisions of distributive justice – ignored – complaint – lodged. 
Ref: 
  1. Circular No. Z – 13025/13/ 2015 – LRC dated 16.03.2017 of the Ministry of Labour, Government of India.
  2. Circular No. Z – 13025/13/2015-LRC dated 01.03.2018 of the Ministry of Labour, Government of India.
  3. Circular No. Z – 13025/13/2015-LRC dated 17.09.2019 of the Ministry of Labour, Government of India.
  4. The Code on Social Security, 2019 placed as Bill No. 375 of 2019 before the House of the People (Lok Sabha).

Sir, 

1. I submit that I am constrained to file this complaint, as the officials of the Ministry of Labour, Government of India, have been constantly making attempts, for the past three years,  to reduce, in one way or the other, the benefits enjoyed by the working population of India, under the Employees’ State Insurance Act, 1948 (hereinafter referred to as the ‘ESI Act’), which enactment gives effect to Art. 1 of the Universal Declaration of Human Rights, 1948.  The first attempt at such reduction was made by those officials in the Ministry of Labour, in the year 2017, when they put the  Draft “Labour Code on Social Security & Welfare, 2017” in public domain on 16.03.2017 inviting “comments/suggestions” of the stakeholders, “as a part of pre-legislative consultative process”. Clauses 53 – 87 of this Draft Code showed very explicitly that the intention of the officials of the Ministry of Labour was to reduce the benefits made available to the working population covered under the ESI Act. 

2. Some such reductions, as given below, are illustrative of the mala fide intention of the officials who drafted the Code or those who prepared the Drafting Policy for preparing such a Code, in the year 2017:                       

  • When the ESI Act provided for payment of about 90% of the wages of an employee to his dependant family as “Dependants Benefit” in the event of death of that employee due to employment injury,  the draft Labour Code reduced it to 50% only. 
  • When the  ESI Act provided for payment of about 80% of the wages to the insured person for about 730 days, if he suffered from 34 long term sickness besides providing him and  his family members with medical benefit for 3 years, the Draft Code did away with the provisions of the Extended Sickness Benefit altogether. 
  • When the ESIC provided for payment of about 70% of the wages as Sickness Benefit for 91 days in two consequent contribution periods, the Draft Code maintained total silence about the period and quantum of Sickness benefits and left it to the bureaucrats to decide it later,  through Subordinate Legislation.
  • The Permanent Disablement Benefit was reduced to 60% and Temporary Disablement Benefit to 50% of wages, in the Code, when they are paid as per the ESI Act, at the rate of 80% of the wages of the employee. 
  • When ESIC provided an attractive unemployment allowance of about 50% of wages for 12 months, Cl. 24 (5) (i) of the Draft Code did not provide for any such benefit and maintained total silence. 
  • The Draft Code did not also have any provision analogous to Reg. 103 (B) (2) to enable a retired insured person and his spouse to have medical cover forever on payment of Rs. 120 per year, on certain conditions. 
  • The Draft Code totally ignored Reg. 103-B (1) of the ESI Act, that enabled the Permanently Disabled Persons to get medical benefit until his superannuation for him and his wife.

In addition to the aforesaid issues connected with the benefit provisions of the ESI Act, the very method of drafting the said code was found to be so amateurish and clumsy that the authorities had withdrawn the Draft “Labour Code on Social Security & Welfare, 2017” in toto, when those defects had been pointed out to them.  

3. Adequate amount of compensation (called as ‘Benefits’ in legal parlance) to the working population ensures decent livelihood. The benefits provided under the ESI Act remain a goal post assuring the working population of acceptable standards of quality of life, when in distress. It is towards this goal, the rest of the working population not yet covered by the ESI Act, should be led to. The original ESI Act of the year 1948 itself, provides for such expansion and extension. It is significant to recall in the context that the Hon’ble High Court of Madras has, while dealing with issues pertaining to the ESI Act, observed that “the object of the Act is to provide certain benefits to the employees or dependants in case of sickness, maternity and employment injury, etc., to give effect to Art. 1 of the Universal Declaration of Human Rights, 1948, which assures human sensitivity of moral responsibility of every State that all human beings are born free and equal in dignity and rights” (C. Indira Vs. Senthil & Co. – 2009 (2) LLN. 302). “The object of the legislation is to protect the weaker section with a view to do social justice” (Chandramathi Vs. ESIC – 2003 (4) LLN. 1143). Such an important statute, the ESI Act, has been providing five major benefits along with many other important benefits to the working population for the past 68 years. Not many employers could provide superior or substantially equivalent benefits and get exemption as provided for under Sec. 87 – 91 of the Act. 

4. Hon’ble Supreme Court has, in its judgment dated 10.05.1995, in LIC of India Vs. Consumer Education & Research Centre, held, “Right to livelihood springs from the right to life guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. Right to human dignity, development of personality, social protection are fundamental rights to the workmen. Medical facilities to protect the health of the workers are fundamental rights to workmen. It was, therefore, held that “the right to health, medical aid and to protect the health and the vigour of a worker while in service or post retirement is a fundamental right under Article 21 read with Articles 39(e), 41, 43, 48-A of the Constitution of India and fundamental human right to make the life of workmen meaningful and purposeful with dignity of persons. 

5. Hon’ble Supreme Court added, “In Regional Director, ESI Corporation v. Francis De Costa, 1993 supp (4) SCC 100 at 105, the same view was stated. Security against sickness and disablement is fundamental right under Article 25 of the Universal Declaration of Human Rights and Article 7(b) of international Convention of Economic, Social and Cultural Rights and under Articles 39(e), 38 and 21 of the Constitution of India. Employees State Insurance Act seeks to provide succour to maintain health of an injured workman and the interpretation should be so given as to give effect to right to medical benefit which is a fundamental right to the workman”.

6. But the authorities of the Ministry of Labour did not want the Indian society to attain such an ideal level. They made attempt once again in the year 2018 to reduce the benefits already available to the working population under the ESI Act. They, therefore, brought in the revised Draft “Labour Code on Social Security, 2018” on 01.03.2018. Clause 63 (Part I), 78 (Part J), of the Draft Code of the year 2018 would testify to mala fide intention of the officials of the Ministry of Labour to reduce the benefits, in contrast with Sec. 46 of the ESI Act and the relevant rules made thereunder. This was also withdrawn later as that draft also did not meet the standards of legislative drafting, let alone its contents and purpose. 

7. But these officials would not leave the issue at that. Hellbent on reducing the benefits provided under the ESI Act to the working population, these officials, who did not reveal the Drafting Policy to the public till then, brought in the Draft “ Code on Social Security, 2019” which was circulated on 17.09.2019. They chose to gain knowledge the wrong way from their experience in the years 2017 and 2018. They did not want to relent from their desire to reduce the benefits already available under the ESI Act; also, they did not want the people to know of their mala fide intentions. So they chose to delete all references, wherever they were, in the Draft Code about the quantum of benefits proposed to be paid under the new Code, to the working population and took all the details of eligibility, rate and scale of all the benefits to the domain of Subordinate Legislation which would be decided later at the convenience of the bureaucrats. The phraseology used by them in Clause 34 (1) and (3) would testify to this fact. It was an uncanny trick played by the officials to cheat the legislature and the public of the nation to get a law enacted by the Legislature to arm the Executive to do something which the Legislature does not know at all. Such a law-making to empower the authorities to wield uncanalised and sweeping powers in violative of all canons of Subordinate Legislation.

8. But the circular dated  17.09.2019 of the Ministry of Labour, which put this Draft Code in public domain for discussion by the stakeholders giving time to them up to 25.10.2019 to respond with “suggestions”, “comments” and “inputs”, had been withdrawn at the behest of the PMO within three weeks, as reported by the Economic Times on 04.10.2019. People were, therefore, waiting for a revised further draft that would be put in public domain by the Ministry of Labour inviting comments and suggestions from the stakeholders. 

9. But all of a sudden the Ministry of Labour sprang a shock on the public and caused a Bill (No. 375 of 2019) to be placed before the House of the People (Lok Sabha) on 06.12.2019, ignoring the pre-legislative process of consulting the stakeholders. The fact is that the Draft Codes circulated in the years 2017 and 2018 had to be and had been dumped in toto after consultation. The Draft Code of 2019 put in public domain on 17.09.2019 (inviting comments up to 25.10.2019) had been returned by the PMO itself in the first week of October 2019. The revised Draft Code which was prepared after the PMO returned the Draft of 17.09.2019, had never been put in public domain before placing it in the Lok Sabha on 06.12.2019. The officials of the Ministry of Labour had bypassed the pre-legislative process of consultation with the stakeholders before they caused it to be sent it to the Lok Sabha on 06.12.2019. The concept of democracy had been taken for a ride by these bureaucrats. 

10. This Draft Code on Social Security, 2019, which is now before the Lok Sabha as Bill No. 375 of 2019 does also not go by the established principles of law-making. Clause 32 (1) and (3) of the Bill No. 375 of 2019 is identical to the Clause 34 (1) and (3) of the Draft Code circulated on 17.09.2019 and withdrawn later. It shows that the officials of the Ministry of Labour chose to deliberately cheat the people about the benefit provisions and did not want to assure them that the benefits enjoyed by the working population at present as per the ESI Act would be continued. Leaving everything to subordinate legislation, the Code has left the entire workforce in the wilderness. When an existing law is proposed to be changed, people do have the right to know whether the benefits that would be available would be the same or more or less. That precise issue has not been answered to by the Ministry of Labour. The officials of the Ministry of Labour have thus conspired against a large section of the humanity in India and have made uncertain and indefinite the assured benefits enjoyed for the past 68 years by those who had been covered under the provisions of the ESI Act. These bureaucrats have, thereby, committed a clear misconduct, by not explaining to the workforce the reason for reducing the benefits that had been paid so long. Their silence and persistent tricks played with the drafting of the impugned Code shows that they are not working for the welfare of the working population but are working for some vested interests who are against proper welfare measures for the labour. 

11. I submit that the International Social Security Association defines the term Social Security as under: “Social security may be defined  as any programme of social protection established by legislation, or any  other mandatory arrangement, that provides individuals with a degree of  income security when faced with the contingencies of old age,  survivorship, incapacity, disability, unemployment or rearing children.  It may also offer access to curative or preventive medical care”. This is what the ESI Act is providing all along for the past seven decades. The ‘degree of income security’ that India has been providing to its working population is ranging from 70% to 90% in the event of various contingencies as mentioned supra. There is no justification in the action of the officials of the Ministry of Labour to make the continuance of these benefits uncertain by playing with words in the Bill No. 375 of 2019 and thereby playing foul with the lives and livelihood of the working population of India covered already under the provisions of the ESI Act. 

12. What is visible in the text of the impugned Bill is only the cleverness and not compassion on the part of the officials of the Ministry of Labour. Conspiring against the Labour and denying them even the existing benefits cannot be the purpose for which a ministry is supposed to function in the name of Labour. These officials have committed plain and clear misconduct by not placing the contents of the Bill No. 375 of 2019 before the public for ascertaining the opinion of the stakeholders, before taking them to the Parliament. These officials are guilty of not having honoured the concept of pre-legislative process of proper consultation with the stakeholders. It is apparent that they are working for and at the behest of some vested interests in a persistent manner to deny the existing benefits to the working population covered under the ESI Act. They did not make the drafting policy public in the years 2017 and 2018 to convince the public why they had prepared those drafts in the manner in which they had prepared it. 

13. The procedure of drafting legislations requires the rulers to entrust the Drafting Team with the ‘legislative policy’. Mr. Justice. M. Jagannadha Rao, Chairman of the 17th Law Commission of India, has written a paper on Legislative Drafting. He says, The draftsman is not the author of the legislative policy, he merely tries to transform the legislative policy into words. The legislative policy is made by the political executive which belongs to the political party which is ruling the legislature or by the monarch who reigns over the country. The draftsman must, therefore, digest the legislative policy fully before he produces the instrument of legislation which can achieve the legislative purpose”. The issue here, with the Labour Code, is why the Drafting Team does not make the concerned ‘legislative policy’ public.

14. They kept the drafting policy a mysteriously secretive one then. And even now the same mystery and secrecy continue, as could be seen from the nebulous and evasive ‘Notes on Clauses’ and ‘Statement of Objects and Reasons’ that accompany the aforesaid Bill No. 375 of 2019 dated 06.12.2019. 

15. I submit the ISSA declares that Social Security is a “fundamental human right”. In India it is part of the Directive Principles and the direction is to the State to provide “public assistance”. But the officials in the Ministry of Labour are attempting at reducing the very concept of social security to be a matter of business affair instead of viewing it as a human right elevated from the state of Directive Principles.

16. Art. 22 of the Universal Declaration of Human Rights says, “Everyone, as a member of society, has the right to social security”. The ESI Act has been providing for such security that kept the image of the nation in international arena in a prestigious position. The ISSA had given the ‘Best Practices Award’ to the ESIC in the year 2012. The Award was given by the ISSA at Seoul on 30.10.2012, declaring that “The ESI Corporation of India has made remarkable efforts to extend social security protection to the workforce in India”. In all, 41 nations participated in the competition meant for Asia and the Pacific 2012 and India got the first prize. Launched in 2008, the ISSA Good Practice Award programme is organized on a regional basis over a three-year cycle and has garnered international attention from social security institutions. But the officials of the Ministry of Labour want to undo all the good things about the benefits provided under the ESI Act.

17. Distributive justice which is essential to achieve social and economic democracy has been made available to the citizens of all the civilized nations only through social security schemes. The ESI Act provides topmost social security benefits to the working population in India. It is only the nations, which implement the social security schemes, which top the list of International Human Development Index.  Hon’ble Supreme Court has, in Samatha Vs. State of Andhra Pradesh (1997) 8 SCC 191 (Para 75), observed that “The core constitutional objective of ‘social and economic democracy’ in other words, just social order, cannot be established without removing the inequalities in income and making endeavour to eliminate inequalities in status through the rule of law. The mandate for social and economic retransformation requires that the material resources or their ownership and control should be so distributed as to sub serve the common good. A new social order, therefore, would emerge, out of the old unequal or hierarchical social order. The legislative or executive measures, therefore, should be necessary for the reconstruction of the unequal social order by corrective and distributive justice through the rule of law”.

18. Hon’ble High Court of Madras has, in ESIC Vs. S. Savithri 2003 (3) LLJ 250, observed that “The Scheme of the Act, Rules and Regulations spelled out that the insurance covered under the Act is distinct and differs from the contract of insurance in general….The Division Bench of the Madras High Court observed that the Act in fact tries to attain the goal of socio-economic justice enshrined in the Directive Principles of State Policy”. Hon’ble High Court has also said therein that the ESI Act “covers a wide spectrum of than the Factories Act, 1948”. The importance of the ESI Scheme to a nation would become evident from this observation. The Act provides security-net to the working population at a higher level that takes the nation to a highly civilised status in the matter of labour welfare. But the officials at the Ministry of Labour are working overtime with oblique motives to reduce the existing benefits available to the working population under the ESI Act. 

19. Eduardo Doyan, the World Bank’s Vice President for Human Development, and a former Costa Rican Education in 1994-98 had said that “The debt crisis of the 1980’s in Latin America, and then the recent East Asia Crisis, have shown just how quickly people’s lives are turned upside down by steep recession, and how the poor suffer the most during these times…….So social safety nets are vital to catch people who lose their jobs, become hungry or sick. But a system that solely concentrates on helping poor people deal with a crisis (only when) it happens runs the risk of keeping them in a poverty trap by not providing any opportunities. We need to embrace a more holistic approach that make social protection more like a springboard that lets people jump into more secure lives”.

20. The World Bank’s report in 1994 had identified the existence of the link between the sound social security system of a country and its ability to compete effectively in the world market. So, at least, the business interest must motivate the need for providing social security universally. The very purpose of government is to ensure a peaceful society. A society to remain peaceful, there must be prosperity all around and, if there is disparity, there must be a cushion to absorb the resultant social shock. That can be done only through social security measures. There can, therefore, be no justified reason for the dilution of benefits attempted at by the officials of the Ministry of Labour, except that they allow themselves to be used by vested interests that work against real labour welfare. 

21. The social security system established in India in the year 1948 was evolved out of the famous report of Sir William Beveridge which contributed already to the strength of the National Health Scheme in the UK. The ESI Scheme in India had been modelled on and drawn from the same ‘Beveridge Report’. Any independent analyst who examines the social security provisions of every nation for comparison and contrast would declare, unequivocally, that the ESI Act, 1948 of India is a symbol of civilisation. Every social security enactment is intended to take every society towards a civilised status. In the matter of social security, the Scandinavian countries provide examples to be emulated. Private players cannot provide real social security and they cannot have a have role in it. The Hindu, had editorially conceded on 01.01.2005, that “The package (of benefits provided by the ESIC) can rarely be matched by private employers on their own because of the heavy costs involved – not to mention the disinclination among employers, with honourable exceptions, to operate health care systems for their workforce”. 

22. The working population covered under the ESI Act, should not be made to suffer from the misconduct of the officials of the Ministry of Labour who indulged in various bureaucratic tricks to deny the former the continued cash and medical benefits in the scale and rate as available under the ESI Act. But the officials of the Ministry of Labour, working under the Secretary, Ministry of Labour & Employment, Government of India, Shram Shakthi Bhavan, Rafi Marg, New Delhi- 110001,  have consistently been indulging in such a misconduct consciously, deliberately and in a calculated manner during the past three years commencing from the date of the publication of the first draft on Labour Code on Social Security & Welfare on 16.03.2017.

23. I respectfully submit that

        • the Code on Social Security, 2019, (Bill No. 375 of 2019 dated 06.12.2019), had been presented in the Lok Sabha with the intention of replacing the existing ESI Act (along with 8 others). The very fact that this new legislation does not assure the continuance of the existing benefits provided under the ESI Act, amounts to blatant denial of fundamental human rights to the workers and employees covered under the ESI Act. 

       

        • The reason why such an attempt to reduce the benefit had been made in the Draft Codes of 2017 and 2018 has not been explained till date by the Secretary, Ministry of Labour & Employment, Government of India. 

       

        • The Note on Clauses and the Statement of Object and Reasons accompanying the said Bill No. 375 of 2019 do also not explain why the benefits available now under the ESI Act are attempted to be kept uncertain without any assurance of their continuance in the proposed Code for which the said Bill No. 375 of 2019 has been presented.

       

        • All these misconducts have been deliberately and consciously indulged in by the officials of the Ministry of Labour. The Secretary, Ministry of Labour & Employment, Government of India, is the authority in charge of the Ministry besides being the controlling authority of the officials who were deputed by him to draft the said Bill No. 375 of 2019. He is, thus, guilty of having not protected the human rights available to the working population, by not providing in the impugned Bill,  the social security benefits which have been made available to the employees covered under the ESI Act till date. 

       

        • The action and inaction of the said Secretary, Ministry of Labour & Employment, has resulted in violation of the continued right of the  employees employed in factories and establishments covered under the ESI Act, to the existing social security benefits, which are their fundamental human rights. He is guilty of having committed the offence under Sec.12 (a) (i) and (ii) of the Protection of Human Rights Act, 1993. 

       

24. I, therefore, pray that the Hon’ble Chairman, National Human Rights Commission, may be pleased to order investigation of the issues involved in this violation of human rights of the insured population under Sec. 12 (a) of the Protection of Human Rights Act, 1993 and review the safeguards under Sec. 12 (d) thereof to prevent recurrence of such unlawful activities in law making in the future. 

Yours faithfully,

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Immense ESI Benefits: No assurance for Continuance in Bill 375 of 2019!

29.04.2020

To

1 Hon’ble Speaker,
House of the People (Lok Sabha),
17, Parliament House,
New Delhi 110011

 

2 Mr. Bhartruhan Mahtab,
Hon’ble M.P. & Chairman,
Standing Committee of Parliament on Labour,
South Block,
New Delhi – 110011.

 

(Through Mr. Kulvinder Singh, Deputy Secretary, Parliament of India,
House of the People. Email: comm.labour-lss@sansad.nic.in)

 

Sub: The Code on Social Security, 2019 – Bill No. 375  of 2019 – Benefits extended to the working population – Clauses 32, 39, 40 read with Clause 154 (2) (f), (s), (u), (w) and (x)- cannot be left to Subordinate Legislation in a new law – uncanalised powers cannot be delegated – reduced benefits affect the rights under Art. 21 – representation – submitted.

 
Sir,
1. I respectfully submit that the Employees’ State Insurance Act, 1948, which is in force, at present, provides security-net to the working population in the factories and in the industrial and commercial establishments in the organised sector. Its long-term goal, as spelt out in Sec. 1 (5) of the Act, is to extend the security-net not only to all the factories but universally to all kinds of establishments including those which are agricultural or otherwise.

2. Hon’ble High Court of Madras has, while dealing with issues pertaining to the ESI Act, observed that “the object of the Act is to provide certain benefits to the employees or dependants in case of sickness, maternity and employment injury, etc., to give effect to Art. 1 of the Universal Declaration of Human Rights, 1948, which assures human sensitivity of moral responsibility of every State that all human beings are born free and equal in dignity and rights” (C. Indira Vs. Senthil & Co. – 2009 (2) LLN. 302). “The object of the legislation is to protect the weaker section with a view to do social justice” (Chandramathi Vs. ESIC – 2003 (4) LLN. 1143). Such an important statute, the ESI Act, has been providing five major benefits along with many other important benefits to the working population for the past 68 years. Not many employers could provide superior or substantially equivalent benefits and get exemption as provided for under Sec. 87 – 91 of the Act.

3. When such an important Act is attempted to be replaced through the impugned Bill No. 375 of 2019 tabled on the Lok Sabha on 06.12.2019, labelled as “The Code of Social Security, 2019’,  the authorities who drafted the Bill have attempted to reduce the benefits provided so long to the working population. The Ministry of Labour had, in his two earlier Draft Codes put in public domain on 16.03.2017 and 01.03.2018, demonstrated very clearly that their intention was to reduce the benefits already available through the ESI Act. Now, in the impugned Bill, the Ministry of Labour keeps the conditions of eligibility, rate and scale of those benefits unknown not only to the beneficiaries but even to the lawmakers in the Parliament.

4. Parliament cannot enact vague legislation and confer the Executive with unbridled powers and thereby enable the Executive to create uncertain situation that produces unexpected consequences. But the draftsman has done exactly the same in this case by preparing the impugned Bill to deceive the legislators and make them vote for vesting unknown powers in the Executive. Hon’ble Supreme Court has said, “Unlike Parliamentary legislation which is publicly made, delegated legislation or subordinate legislation is often made unobtrusively in the chambers of a minister, a secretary to the Governor or other official dignitary.” (ITC Bhadrachalam Paperboards Vs. Mandal Revenue Officer 1996 (6) SCC 634 and Harla Vs. State of Rajasthan AIR 1951 SC 467 and B.K. Srinivasan Vs. State of Karnataka AIR 1987 SC 1059). Subordinate legislations made by the Executive can only supplement the parent legislations made by the Legislature and cannot be substitute them. But the authorities who drafted the impugned do not know of these niceties and do not care too.

5. Clauses 32, 39, 40 read with Clause 154 (2) (f), (s), (u), (w) and (x) of the  impugned Bill are totally evasive about the conditions of eligibility, rate and scale of the benefits that would be available to the working population, if and when such Code comes into force. When a new law is enacted to replace the existing law, people should be given adequate information through that law, to ascertain for themselves whether the new law would provide the same or more or less benefits to them. That was how the ESI Act, 1948 was also enacted first in the year 1948, with its Sec. 46 declaring and assuring unequivocally all the specific details regarding the conditions of eligibility, rate and scale of all the five benefits it sought to provide. That was the right and only method to be followed while bringing in a new law. But the impugned Bill No. 375 of 2019 makes conscious and deliberate efforts to hide from the public such essential details pertaining to the benefits which are claimed to be provided through that Bill This is not the way a new law is made to replace the existing one.

6. Clause 154 (2) (f), (s), (u), (w) and (x) of the impugned Bill mysteriously take the details of the eligibility, rate and scale of benefits,  to Subordinate legislation, in spite of the fact that the impugned Bill totally dismantles the existing structures and brings in a new statute. These provisions confer arbitrary powers to the bureaucracy and empower it to decide later the details of such benefits. The contents of the impugned Bill make it very clear that the Executive has blatantly abused its position and power to table such an incomplete Bill on the Parliament expecting the lawmakers to give arbitrary and sweeping powers to the Executive. The legislators are attempted to be cheated by the draftsmen of the impugned Bill. Parliament is tricked to empower the Executive to do anything with the existing benefit provisions and do away with everything, without even being aware of what that Executive would do, after such empowerment.

7. Such an indefinite extension of executive power to the bureaucracy results in abdication of responsibility on the part of the lawmakers in the Parliament. It is the duty of the lawmakers in the Parliament to make law knowing thoroughly not only the contents of the Bill but also its anticipated consequences. But, the very nature of the impugned Bill and its Clauses 32, 39, 40 read with Clause 154 (2) (f), (s), (u), (w) and (x) show that the Legislature would not have any chance to know what the Executive would do, once the Bill became law. The Legislature has, effectively, been prevented by the draftsman of the impugned Bill from knowing the eligibility, rate and scale of benefits which are going to be extended to the working population. The legislators cannot be asked to vote on such incomplete Bills. But they are asked to do so in the Bill No. 375 of 2019.

8. Moreover, the Executive has inserted suitable phrases to be used by it, later, to throw the blame on the Legislature itself, if and when, the Executive makes rules,, as subordinate legislation, under the new enactment, providing only for reduced rate and scale of benefits to those who were already getting more under the ESI Act, for SB, ESB, TDB, PDB, DB, Unemployment Allowance, etc., The Executive would, then, cite Sec. 154(1) of the new enactment and claim that its action to reduce the benefits is “not  inconsistent with” the code and that the Parliament has already empowered it to reduce the benefits too. There will be no scope for the Parliament to examine whether the subordinate legislation is in excess of the power conferred by the enabling Act.  Excessive delegation is, simple and plain, unconstitutional, re Delhi Laws Act case. Yet, the impugned Bill attempts at circumventing the ratio decidendi laid down by the Hon’ble Supreme Court in Hukam Chand Vs Union of India on 22.08.1972 and a plethora of other cases on delegated legislation.

9. The impugned Bill has been drafted by the Executive with the improper intention of arming itself with arbitrary and indefinite powers to reduce the benefits already in force. The impugned Bill, therefore, becomes a patently unlawful enactment affecting the rights of the livelihood of the working population and, thereby, violating Art. 21 of the Constitution of India. There is no assurance anywhere in the impugned Bill on the Code of Social Security, 2019 that the eligibility for, the rate and scale of the benefits available as per the present statute would be continued.

10. Vesting arbitrary and unlimited powers on the Executive without even knowing the intention of the Executive which tabled such a vague, evasive and incomplete Bill, would be unlawful on the part of the Parliament. The impugned Bill attempts at ensuring that in the matter of providing benefits to the working population what would prevail is the will of the Delegate and not the will of the Legislature. It is patently anti-Constitutional as the transgression of any kind by the Delegate cannot be questioned even by the Parliamentary Standing Committee on Subordinate Legislation, because of the evasive terminologies used in the impugned Bill. A provision in the parent law that confers the delegate “uncanalised and uncontrolled power” is “ultra vires” of the power of the Legislature itself. (Hamdard Dawakhana Vs. UOI – 18.12.1959). Accordingly, the Clauses 32, 39, 40 read with Clauses 154 (2) (f), (s), (u), (w) and (x) of the Bill No. 275 of 2019 are ultra vires.

11. Besides, the Ministry of Labour did not put the contents of the impugned Bill in public domain to enable the stakeholders to represent their grievances to him. People have been denied opportunity to take to the knowledge of the Respondent-1 the unlawful contents and the evasive manner in which the draftsmen had drafted the impugned Bill. There is, therefore, no other alternative for me except to approach the Hon’ble High Court under Art. 226 of the Constitution for justice.

12. I, therefore, pray that that the Clauses 32, 39, 40 read with Clauses 154 (2) (f), (s), (u), (w) and (x) of the Bill No. 275 of 2019 for “The Code on Social Security, 2019” placed before  the Lok Sabha on 06.12.2019 may be examined in depth and direction issued to the Ministry of Labour to take  action to prepare and put in public domain a complete Code on Social Security containing in it all the details regarding the conditions of eligibility and rate and scale of all the benefits  proposed to be extended to the beneficiaries through Chapter IV of the impugned Code and call for the comments of the stakeholders  and public afresh for and before placing that draft as a Bill before either house of the Parliament, and (b) that the Bill No. 375 of 2019, may kindly be kept withheld until the defects pointed out in respect of the above mentioned benefit provisions are rectified and a new Bill re-presented by the Ministry of Labour.

 

With profound regards,

Yours faithfully,

 

 

 

 

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TANSI land grabbing & ESIC Medical College grabbing!

Ms. Jayalalitha, as Chief Minister of Tamil Nadu, manipulated law and procedure, in the year 1991 and 1992, to grab the land that belonged to the TANSI Foundry. The TANSI, the Tamil Nadu Small Industries Corporation Limited, was a Government Company, the entire shares of which were held by the Government of Tamil Nadu. She manipulated the tender procedure and got the land sold by the Government to Tamil Nadu, through G.O. Ms. No. 18 issued on 20.01.1992 to her own business concern, M/s Jaya Publications. This was an unregistered partnership concern in which she and one Ms. Sasikala were partners.

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The Office of the TANSI, Guindy. One of the many.

 

It was a fact that for long, a Code of Conduct for Ministers had been in force in Tamil Nadu. It was a G.O, a Government Order. “A Code of Conduct for Ministers was brought into force by G.O.Ms. Nos. 1350 on June 16, 1968 which was revised from time to time and clause 2(b) thereto provides that ‘a Minister shall refrain from buying from, or selling to, the Government any immovable property except where such property is compulsorily acquired by the Government in the usual course and refrain from starting, or joining, any business’. There was allegation that Ms. Jayalalitha had violated the provision of these conduct rules.

The matter was taken to court of law and she was found guilty by the trial court. The Trial Judge convicted Ms. Jayalalitha, Ms. Sasikala and the  bureaucrats involved in the case.

Thus spake the Supreme Court

When the matter went to the Supreme Court later, it held in its 24 pages judgment in R. Sai Bharathi Vs. J. Jayalalitha and others on 24.11.2003, as under:

supreme court

“Officers even holding small posts like a Railway Property Keeper or a Cattle Pound Keeper or a Process Nazir who is put in charge of the sale of properties in a court auction cannot purchase the properties over which they have control. In the present case, in view of the fact that Government headed by the 1st Respondent has to give permission in respect of the sale of property of these two companies, it certainly exercises powers over the same and thus there is conflict of interest. Where there is conflict of interest law has always avoided such sales being effected in favour of those who can jeopardise the fair outcome of the transaction. Whatever may be our findings on the question of valuation of the property whether it resulted in a pecuniary advantage to A-1 or not, we are clear in our mind that if the officers and others become aware of the fact that the Chief Minister of the State is interested in purchasing some properties, the bureaucracy will be over-enthusiastic to see that the sale goes through smoothly and at a price desired by such Chief Minister. Though we can visualise such situation, such facts have to be established by concrete evidence to be convicted in a criminal case and is hard or difficult to get. At any rate, it is plain that such conduct is opposed to the spirit of the Code of Conduct if not its letter.

Morally speaking, Can there be one law for small officials of the Government and another law for the Chief Minister? In matters of such nature, is the Code of Conduct meant only to be kept as an ‘ornamental relic’ in a museum but not to be practised ? These aspects do worry our conscience. Respondent No.1 in her anxiety to save her skin went to any length even to deny her signature on documents which her auditor and other Government officials identified.

Report leading to IPC makes it clear that criminal law merely prescribes the minimum standards of behaviour, while in public life, those who hold high offices should not take shelter under the umbrella of criminal law but stand by high probity. Further, criminal law is meant to deal with criminals ordinarily, while Code of Conduct is observed as gentlemen’s agreement. Persons in public life, who are gentlemen, follow such Code instead of taking escape routes by resorting to technical pleas as arise in criminal cases. Persons in public life are expected to maintain very high standards of probity and, particularly, when there is likely to be even least bit of conflict of interest between the office one holds and the acts to be done by such person, ought to desist himself from indulging in the same. Such standards of behaviour were scrupulously observed in the earlier days after independence, but those values how now dwindled and instances of persons holding high elective offices indulging in self- aggrandisement by utilising Government property or in distribution of the largesse of the Government to their own favourites or for certain quid pro quo are on the increase. We have to strongly condemn such actions. Good ethical behaviour on the part of those who are in power is the hallmark of a good administration and people in public life must perform their duties in a spirit of public service rather than by assuming power to indulge in callous cupidity regardless of self imposed discipline.

Irrespective of the fact whether we reach the conclusion that A-1 is guilty of the offences with which she is charged or not, she must atone for the same by answering her conscience in the light of what we have stated not only by returning the property to TANSI unconditionally but also ponder over whether she had done the right thing in breaching the spirit of the Code of Conduct and giving rise to suspicion that rules and procedures were bent to acquire the public property for personal benefit, though trite to say that suspicion however strong cannot take place of legal proof in a criminal case and take steps to expiate herself.” (For more, please visit: Indian Kanoon – http://indiankanoon.org/doc/447378/ )

And Ms. Jayalalitha expiated herself by returning the land grabbed from the TANSI. All because she did not have the assistance of bureaucrats who were as clever as the bureaucrats of the present Central Government who drafted the Bill on the Code of Social Security, 2019 (which has been placed before the House of the People as Bill No. 375 of 2019). Also because she did not have a son or daughter who could be shown to be the purchaser instead of having her own name recorded in the sale deed. Also because she did not and could not have faith in any benami.

ESIC Medical Colleges grabbing

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ESIC Medical College & Hospital Complex, Joka, Kolkata, one of the many.

 

It would be appropriate to keep the TANSI – Jayalalitha episodes in mind while examining the puzzling provisions in Clause 39 (5) of the Bill on the Code of Social Security, 2019 (Bill No. 375 of 2019) which was referred to the Parliamentary Standing Committee on Labour, on 23.12.2019, reads:

The colleges and training institutions referred to in sub-section (4) may be run by the Corporation itself or on the request of the Corporation by the Central Government, any State Government, any Public Sector Undertaking of the Central Government or the State Government or any other body notified by the Central Government.

Explanation: For the purposes of sub-section (5), the expression ‘‘other body’’ means any such organisation of persons which the Central Government considers capable to run colleges and training institutions referred to in sub-section (4).”

Significantly this provision had never been put in public domain by the draftsmen. In fact, this provision is an improvement from the earlier provision inserted by the bureaucrats in Clause 41(5) of the earlier draft Labour Code on Social Security, 2019, which had been put in public domain on 17.09.2019 but had been withdrawn by the PMO in the first week of October 2019. That was the third draft, the earlier ones being those publicised for the information and response of the stake holders in 2017 and 2018.

The first two drafts put in public domain in the years 2017 and 2018 had, rightly, been dumped because of their having been amateurish at the very first sight. But the third draft dated 17.09.2019 had betrayed the intention of the persons behind the draft at first sight. The said Clause 41(5) read:

The colleges and training institutions referred to in sub-section (4) may be run by the Corporation itself or on the request of the Corporation by the Central Government, any State Government, any Public Sector Undertaking of the Central Government or the State Government or any person notified by the Central Government.”

The words “any person” found in the above Clause in the third draft showed very clearly the intention of the draftsman to make smooth provision to divert the huge property of the ESI Corporation to private individuals. The same is the intention behind Sec. 39 (5) of the Bill No. 375 of 2019. i.e., to enable some interested private person to take over the medical colleges, built at a humongous cost.

Diverting the possession of public property to private hands

While the handing over of those mammoth structures to the Central Government, any State Government, any Public Sector Undertaking of the Central Government or the State Government is the right and understandable decision, there is no justification in handing over those Medical Colleges and Training Institutions to private sector let alone private individuals either as a single person or as a body of persons or as ‘organisation of persons’. The fine phrases used in the Clause to qualify the phrase, “the organisation of persons”, with subsequent phrases such as  the “consider”ation of the “Central Government” or  examination whether they are  “capable to run colleges and training institutions” are simply attempts at cheating the legislators and the public at large. The phraseology in Clause 39 (5) is a clear indicator of bureaucratic skulduggery of the year 2019 typical of many such amendments proposed ten years ago in 2009, vide Bill No. 66  of 2009,  in the ESI Act.

The Parliamentary Standing Committee is therefore required to examine this provision thoroughly, with open mind, keeping public interest in mind. The Committee may please take action to obtain the explanation of the draftsman and the other bureaucrats who colluded with him. It is also necessary that these facts have to be documented correctly and taken to its Report submitted to the Speaker of the Lok Sabha.

Essential Questions that need answers

Some of the essential questions that need proper answers of the bureaucrats in respect of the said Clause 39(5) are:

1. Who was the individual who came up with the original proposal for the inclusion of the phrase “or any person notified by the Central Government” in Clause 41(5) of the draft Labour Code on Social Security put in public domain on 17.09.2019?

2. If nobody had proposed inclusion of that sentence, was it included personally by the concerned draftsman only?

3. Who was the individual who proposed the modification of the phrase “any person” in the said Clause 41(5) in the previous draft and included in Clause 39(5) of the latest Code on Social Security placed before the Parliament, the phrase “any other body” and added an Explanation also to it to clarify that the phrase “other body” was to mean “organisation of persons which the Central Government considers capable to run colleges and training institutions referred to in sub-section (4).”? (It is very clear that such an inclusion in the earlier draft and modification in the current Bill are conscious, calculated and deliberate moves with an intended purpose. So, the draftsman concerned should explain before the Parliamentary Committee what motivated him or who advised him to insert such phrases with such a devotion, attention, care and caution.)

4. What was the advantage to the Indian public if these ESIC medical colleges and training institutions are handed over to such ‘organisation of persons’ or to some private individuals masquerading themselves as ‘organisation of persons’? Was any such issue examined on file before it was decided to include those phrases in the present Bill?

5. What would be the terms of such handing over? Have those terms been already finalised or would be finalised only after the Bill concerned has been made an Act?

6. What would be the duration for which those ‘organisation of persons’ would be allowed to run those medical colleges and training institutions? For a lease period of 5 years, 10 years or 99 years? (The records showing the examination of this issue before inclusion of this phrase should be produced before the Parliamentary Standing Committee).

7. What are the precedents, if there are any, which gave the idea to the draftsman to draft the said Clause 39 (5), the way he has drafted?

8. Can a law ever be framed with nebulous provisions like the ones in Clause 39 (5) along with its peculiar ‘Explanation’, without extensive discussion of the pros and cons of such phraseology and without keeping the details of such discussion on record? Should those files not be produced before the Parliamentary Standing Committee on Labour now?

9. How will those Medical Colleges and Training Institutions be run by the private “organisation of persons”? Will it be in public interest or for private profit? If for private profit, how can running those colleges and training institutions by such private organisation be equated, in Clause 39 (5) and treated to be on par in status, with the running of those institutions by the Central Government and State Government or the PSUs of the Central Government or State Government?

10. Will the large ESIC Hospitals attached to the said Medical Colleges would also be handed over to those “organisation of persons”? If so, what will happen to the secondary and tertiary care of the insured persons covered under the ESI Act? Where are the papers in which these issues had been examined before venturing to insert the phrases to facilitate the entry of private persons for taking over the property of the ESIC to run the medical colleges?

 

To sum up,

These are essential questions but only minimum. The draftsman who drafted the said Code on Social Security which is pending consideration of the Parliamentary Standing Committee now as Bill No. 375 of 2019, has the bounden duty to answer these questions before the legislators. Because he knows the answers. Also because his role could be the root cause of a very big scandal that is going to erupt.

Carte blanche Subordinate Legislation

The present provision in Clause 39 (5) can, if made law, be easily used to divert the possession of the ESI Medical Colleges, in the name of lease for decades and decades, to the sons and daughters of the powerful ministers or leaders of the ruling dispensation who could cock a snook at every law  and every citizen of the country. The subordinate legislation required for enforcing the Clause 39 (5) is not in public domain. The Parliament is also not going to be aware of the nature of such a subordinate legislation, until it gives approval to the present Clause 39 (5). As things stand, this Clause is actually an unwanted and unwarranted blank cheque, a carte blanche in the hands of bureaucrats.

The Apex Court had said, “Unlike Parliamentary legislation which is publicly made, delegated legislation or subordinate legislation is often made unobtrusively in the chambers of a minister, a secretary to the Governor or other official dignitary.” (ITC Bhadrachalam Paperboards Vs. Mandal Revenue Officer 1996 (6) SCC 634 and Harla Vs. State of Rajasthan AIR 1951 SC 467 and B.K. Srinivasan Vs. State of Karnataka AIR 1987 SC 1059). There is no guarantee that that subordinate legislation would be drafted by the bureaucrats to serve public interest when the parent legislation, the Bill in hand, itself has been drafted in a wily manner to serve private interests.

Such subordinate legislations of many public institutions like the IITs, which have been loosely and carelessly prepared and put to use, have not been placed even before the Parliamentary Standing Committee on Subordinate Legislation for decades, resulting in continued mismanagement of the organisations like the IIT-Madras by the bureaucrats of the IITM in collusion with the bureaucrats of the Ministry of HRD with impunity. Evidences are aplenty and many cases are pending judicial review of the commissions and omissions of these bureaucrats.

Coalgate

Clause 39(5) in the Bill No. 375 of 2019 is an enabling provision which is patently unlawful in its content and purpose. This will result in favouritism and corruption of a colossal size.  Unrestricted and unconstitutional discretionary power is given to the bureaucracy to frame subordinate legislation in this regard to suit extending such favouritism to the people who are seemingly kept in the mind of the draftsman already. By recommending complete deletion of the words and phrases in the said Clause that enable diversion of possession to private hands, the  Parliamentary Standing Committee would be doing yeoman service to the nation, by saving  not only the public property and the public of the nation but also the Bureaucrats who forget the extent of their accountability and the importance of their role to defend the constitutional values. What is more, they choose even to ignore the fate of bureaucrats involved in the Coalgate. The sudden inclusion of these phrases in the year 2019 needs deeper probe into the issue.

Prayer to the PSC on Labour

It is prayed that keeping the interest of the nation and the public in mind the members of the Parliamentary Standing Committee on Labour would pour into the facts and circumstances behind this mysterious and mischievous Clause 39 (5) of the Bill No. 375 of 2019 and recommend the total deletion of the phrase “or any other body notified by the Central Government” along with the Explanation given therein to clarify the expression ‘other body’.

That will be a real service of the Hon’ble Members to the working population of India for all the time to come. It is in their hands now to ensure that no TANSI is repeated elsewhere.

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ESIC Medical Colleges, Clause 39 (5) & The Race of the Ultra-Rich!

(The insertion of the phrase “any other body” in Clause 39 (5) of the Bill of the Code of Social Security, 2019 is a cunning bureaucratic act to facilitate handing over the mammoth medical colleges built by spending the funds of the Corporation to private individuals masquerading as “organisation of persons”. What prompted the draftsman to insert this phrase in the Bill is a question worth probing by the Parliamentary Standing Committee on Labour. This clause can have no place in a law meant for providing social security to the people, which is a sovereign function of the State, in a civilised democracy. This phrase should be removed first and the persons who inserted it and the persons who advised them to insert it should be made accountable and answerable to the people. The following narrative attempts at explaining the intricacies behind this provision and the consequences of it.)

 

 

Scene I

Early February 2020.

 

(Early February 2020. Pre-lockdown days. A luxury hotel in New Delhi. A glittering marriage function is going on. Only the ultra-rich were the invitees. Two of the invitees, Mr.A and Mr.B, just enter the premises. They are industrialists in different fields and are, therefore, close friends. The lifetime ambition of Mr. A is to reach the top 1% population of India and be counted as one among them. The Oxfam reports every year kept them propelled to do anything to achieve their dream. The top 1% which had in its possession 53% of the national resources in October 2015 had reached 58% in January 2016 and by January 2018 cornered a whopping 73%. These two men, though ultra-rich, were not computed within that top 1%. But Mr. A had been so particular about attaining that status had, therefore, been sad always. He wanted to amass more by acquiring more. And then he heard that there was a chance for him to take possession of the ESIC Hospitals, which had been constructed, unnecessarily, at various state capitals. He reckoned that if he acquired control of a few such medical colleges his image would increase phenomenally which he can use market himself more among those who were more moneyed than him. He could then move into the said 1% club, he perceived. It was in the backdrop, Mr. A wanted to meet Mr. B and examine the facts of the case and devise his further strategy. And they are there now in the marriage function just for their purpose.)

Mr. A: Good Evening Mr. B! (With a warm handshake) How do you do?

Mr. B: Fine, dear Mr. A! Come on, lets find a place for us to sit.

(Both of them search for a place which would be dark, although the restaurant is a glitzy one. And they find a relatively dark area and seat themselves comfortably.)

A: I find it comfortable when I sit in a shadowy area. The convenience is that we can see the others but they cannot see us.

B: True. It is just like the governments of the pre-RTI Act era.

A: I do not get it.

B: In those days when there was no RTI Act in force, rulers’ in power could see what people were doing but people could not see what the rulers were doing. Moreover, shadowy area suits us as we are inclined to indulge in many shady activities.

(Both of them laugh boisterously)

A: Yeah, now I know why the RTI Act is attempted to be diluted. Okay, Let us get down to brass tacks. What happened to the Labour Code on Social Security. I am waiting for it from 2017 onwards. My sources said some PPP, or Privatisation was being allowed to run the medical colleges built with the funds of the workers. But nothing came of it till date. I am also told that the drafts codes of 2017 and 2018 used many fine phrases to privatise anything and everything pertaining to social security, sprinkling within them the terms like Licence, Scheme, Fund Management Agency, Intermediate Agency, Point of Presence agency, Record Keeping Agency, Service Delivery Agency, etc., Yet people understood the motive behind these  terminogies and opposed those drafts. Valuable time has been lost for me in that process.

B: Yes, you are right. Those draft Labour Codes on Social Security publicised in the years 2017 and 2018 were prepared by officials and some outside “experts” who had not been trained in legislative drafting. So people could easily see through those drafts. That was the reason for the strong opposition to those drafts, which the government could not explain away. Ultimately, the government dumped those two drafts lock, stock and barrel. The latest one published on 11.09.2019 has been done in a professional manner. So the mala fide intention behind that draft has been camouflaged very cleverly. It is very difficult for the people to traverse beyond the text and understand the real purpose behind various provisions.

A:  Yes. After all, how many people would be ready to go through hundreds of pages to unearth the hidden agenda behind the draft. That is good for us anyway. My aim is to own the ESIC Hospitals constructed recently at New Delhi, Chennai and Kolkata. When shall I have them in my possession? I do not like to wait indefinitely. I am tired.

B: I find that you have no reason to worry. I have brought with me the copy of the bill No. 375 of 2019 dated 06.12.2019 placed before the Lok Sabha on 13.12.2019. Just go through Clause 39 (5). If the Bill gets passed, it will be called Sec. 39 (5). Read for yourself what that Clause says.

A: Give it to me. (Receives the paper and reads the relevant portion aloud). Clause 39 (5): “The colleges and training institutions referred to in sub-section (4) may be run by the Corporation itself or on the request of the Corporation by the Central Government, any State Government, any Public Sector Undertaking of the Central Government or the State Government or any other body notified by the Central Government.Yes, I have read it. What does it mean? I wanted to run these three hospitals myself. I do not think that has been enabled here.

 

B: You are in a hurry. I think this is the first time you are seeing Bill tabled on the Lok Sabha. Now read the Clause. 41(5) of the draft put in public domain last on 17.09.2019. That was the third draft, the earlier ones being those publicised in 2017 and 2018 and which had been dumped. Now read that clause 41(5).

A: Let me see. (Reads aloud). Clause 41(5). “The colleges and training institutions referred to in sub-section (4) may be run by the Corporation itself or on the request of the Corporation by the Central Government, any State Government, any Public Sector Undertaking of the Central Government or the State Government or any person notified by the Central Government.” (He throws the paper on the table). Yes, I like this draft of 17.09.2019. It very clearly says that the medical colleges may be run by “any person”. I had only to get that permission given to me “notified” by the Central Government. That I can get it done in a jiffy. Why is it that the phrase “any person” is not available in the latest Bill placed before the Lok Sabha?

B: (Smiles.)

A: Why do you smile? That Clause 41 (5) of the 17.09.2019 precisely answered my requirement. I am upset that that Clause has not made it to the Lok Sabha.

B: (Again smiling). Now read again the Clause 39 (5) of the Bill now pending in the Lok Sabha. Do you see the phrase “any other body” incorporated therein?

A: Yes, I do. But that does not serve my purpose.

B: Do not be so rash! Now see the Explanation given below the said Sec. 39(5) in the Bill.

A:  (Reads aloud) the Explanation under Clause 39 (5):For the purposes of sub-section (5), the expression ‘‘other body’’ means any such organisation of persons which the Central Government considers capable to run colleges and training institutions referred to in sub-section (4).” (Pauses for a moment and then jumps with irrepressible joy) Yeah! I know, I know! Now, the words “other body” mean “organisation of persons” also. I can have any number of AOPs, the Associations of Persons. What a simple idea to easily take over the costly hospitals built at prime metros and run them merrily treating them as virtually my own hospitals”. Hurrah! Hurrah!!

(Now the guests who came for the marriage had been dancing. Seeing them, Mr. A drew away Mr. B along with him and joined the dancing group and continued dancing. He was very happy that he could become the virtual owner of three ESI Hospitals at New Delhi, Chennai and Kolkata, once the Bill on Social Security Code became law. His joy knew no bounds. He was dancing and dancing without noticing Mr. B’s withdrawal from dance. It was when he got tired because of his physical exertion that Mr. A sat on a sofa. And he was shocked to find Mr. B sitting there, looking worried and pondering over certain issue. Mr. B continued to look puzzled. And, Mr. A felt concerned.)

 A: Mr. B! What is it you look concerned about something? You stopped dancing with us too, all of a sudden. Anything worrying you?

B: Yeah, I have a nagging question.

A: What is it?

B: All of a sudden, a question struck me. I am not able to find any logical or reasonable explanation. Mhm…… The ESIC is not able to run the medical colleges. But, why in the first place, they built so many medical colleges?

A: Don’t you know that? It is an interesting but sad commentary on the type of bureaucracy that we do have in India. Once the bureaucracy decided upon it, it manipulated the politicians in power according to its will, in every direction. Not only in forward direction but also in reverse also. And the politicians obliged them. There were so many hands in the till. Even the Ministry of Law and Justice played an active role in giving clearance to the controversial Bill to amend the ESI Act. The CAG too did not want to do his work right in detecting the crime. Anyway, my attention now is focused on getting my “organisation of persons” notified by the Central Government as one “capable”, as per Sec. 39 (5), to run the medical colleges and training institutions. I am now working on the manner in which I should float an Association of Persons (AOP) with appropriate papers to claim that I am capable of running medical colleges.

B: But you have not answered why they started building so many medical colleges all of a sudden.

A: Okay, I shall tell you! They started constructing so many medical colleges, all of a sudden, without even testing waters through Pilot project. It was because some persons in position wanted to loot the reserve funds of the ESIC in the name of construction activities. At that time, they said that they were constructing medical colleges “with a view to improve the quality of services provided under the Employees’ State Insurance Scheme.”

B: Then?

A: Also they said that the medical colleges were required to be run by the ESIC, to recruit doctors for running the ESIC Hospitals and dispensaries. That was a blatant lie but that statement was made to be believed by the Parliament which was shown to have voted, under questionable circumstances, for Sec. 59-B to be inserted accordingly in the parent Act.

B: Then?

A: Then what? They even went through a motion of getting bonds executed from the students who got graduated from the ESIC Medical Colleges. But when the doctors came out of these colleges, they were not recruited but outsiders were invited to apply.

B: Then?

A: Yeah. There was a somersault too. They admitted later that these massive structures constructed by them were a liability. They wanted to get rid of these white elephants born out of white-collar crimes. So, they said on 04.12.2014, that the “ESIC should exit the field of medical education entirely” as that was “not the core function of the organization”. They, therefore, wanted to divest those properties.

B: Then?

A: Even the CAG had recorded caustic comments in his report. He said, “Due diligence, if any, carried out to ascertain the number of colleges required to be opened, to fulfill the future requirement of doctors and other paramedical staff was not available”. (Para 2.6)

B: Was any action taken against anyone in this regard?

A: Neither the bureaucrats nor the politician in power ask themselves this question? The way they manipulated and cheated the Parliamentary Standing Committee on Labour at that time could serve a sad but interesting training material, a case-study paper to train the legislators about the way in which they would be cheated by bureaucrats. Even the tricks played by the British bureaucrats in the famous BBC serial, “Yes, Minister” would pale into insignificance before the tricks played by the Indian bureaucrats. So these bureaucrats do not have any concern about what you asked. Anyway, the proposed Sec. 39 (5) is now helping me to manipulate things and enabling me to run the medical colleges, virtually, as my own. I am only concerned about the manner in which I should make my moves. There would be many other ultra-rich and nouveau rich, who would be in the race and vie for these three medical colleges. But I know how to win this race of the rich. I khow to conspire against them. I know the power centres. In fact, you can say that I am the power centre. After all, India is not ruled as per the norms governing real democracy. It is ruled by corrupt bureaucracy sidelining the honest among them. What else can you say about the decayed state of Indian democracy, when even the CAG does not file counter affidavit in important cases for years and does not care to ensure that his actions should inspire confidence among the public? Be on the right side of that corrupt bureaucracy. You can become richer and make the poor poorer. And, that is how the 1% club came into existence in India.

(Both of them move towards the dinner hall).

Scene II

 Second Week of April 2020

 

(Second week of April 2020. Mr.A calls Mr. B over phone. Mr. B responds.)

A: Mr. B! How do you do? Heard the news?

B: I am fine Mr. A. What news do you talk about. In these days of lockdown due to Corona virus, I am getting to read many newspapers online. All are full of news only about Corona.

A: That is good. You know that the government thinks of bringing out an ordinance to enforce the provisions of the Code of Social Security, which was placed before the House of the People on 06.12.2019? It was referred to the Standing Committee of parliament on 23.12.2019. It had to give its report within three months. But the time granted was extended up to the commencement of the Monsoon Session that would begin in July 2020. I got fed up. My dream of taking three medical colleges at the three metros was getting delayed. Now the news is that the government is toying with the idea of bringing out an Ordinance to enforce the Social  Security Code.

B: How can there be an Ordinance for this Code, even when the matter is pending with the Parliamentary Standing Committee on Labour and that Committee has not yet given its report? In fact that draft had never been placed before the public for discussion by stakeholders, after the PMO returned in the first week of October 2019, the 17.09.2019 draft code. Even the action of the government in having introduced that document before the Lok Sabha on 11.12.2019 was wrong.

A: Hey! Who cares for all these niceties. I am for making use of the pandemonium created by Corona in the entire nation. This is the time opportune to get anything done for the ruling elite. I welcome the move. If rulers want to be powerful they should defy the law, defy the Constitution and defy the democratic conventions. If you want to be rich you make others poor. If you want to have power you make others weak. Now the Social Security structure of the nation is systematically weakened by the Code of Social Security, 2019 to make the rich richer. (Smiles heartily).

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Social Security Code, 2019: Please put it for stakeholders’ discussion first!

22.04.2020

To

Mr. Bhartruhari Mahtab,

Hon’ble M.P &  Chairman,

Standing Committee of Parliament on Labour,

South Block,

New Delhi – 110011.

 

(Through Mr. Kulvinder Singh, Deputy Secretary, Parliament of India, House of the People,

email: comm.labour-lss@sansad.nic.in)

 

Sub: Social Security Code, 2019– does not provide acceptable standards of quality of life – Ordinance route – improper – representation – submitted.

 

Ref: News item in the NDTV on 13.04.2020.

 

Sir,

1. I am compelled to submit this representation because of the news item that appeared In the NDTV under the caption “Amid COVID-19 Effects, Executive Orders To Fast-Track Labour Codes” on 13.04.2020 which says that The coronavirus and the subsequent lockdown has pushed the government to take the ordinance route to formulate three of the four labour codes it is planning. I submit that any such action in a hurry to rush through the Labour Code on Social Security is fraught with dangerous consequences to the entire Indian society, for all the time to come. The facts of the case are that the last draft Bill was put in public domain for discussion on 17.09.2019 in File No. Z-13025/13/2015-LRC, giving stakeholders time to respond up to 25.10.2019 with “suggestions”, “comments” and “inputs”. But the draft was withdrawn at the behest of the PMO within three weeks, as reported by the Economic Times on 04.10.2019. To the shock of everyone, all of a sudden, a formal Code on Social Security got introduced in the Parliament on 06.12.2019 as Bill No. 375 of 2019 and the Bill was referred to the Parliamentary Standing Committee on Labour on 23.12.2019. The Standing Committee is now seized of the issue. I submit that this cannot be the way of deciding the livelihood of a large section of humanity, the working population of India and the stakeholders in providing social security to them.

2. There had been so many things fishy in this matter of preparation of code on social security, right from the beginning. It is common knowledge that neither the Finance Ministry nor the Labour Ministry could find out, for the past five long years, who played the mischief in smuggling in the mischievous phrase against the ESIC and the EPFO using the word, “hostages” in the Budget Speech of Mr. Arun Jaitely on 28.02.2015, without any documentary evidence and authorised source. That exactly was the point of origin of great conspiracy by certain vested interests who were all out to demolish the well-established social security structure of the entire nation. They had had illicit access to the power centres, it became evident from the reply of the Ministry of Finance in O.M. No. 2/98670/2015-RTI dated 13.05.2015. (For more, https://flourishingesic.info/2015/06/10/hostages-accusation-against-esic-epfo-without-documents/ ).

3. The benefits provided by the Employees’ State Insurance Act, 1948 are the best which, every succeeding government should try to better. This Act assures that the dependants of an employee who met with a fatal employment injury would get about 80 to 90% of the wages drawn by the deceased employee as Dependants Benefit. 3/5 of it is for the spouse and the remaining 2/5 is for the children up to 25 years of age. If the child is infirm at the time of the death of the employee concerned, that child gets its share throughout its lifetime.

4. Similarly, the employee gets 80% to 90% of his wages as compensation in the event Temporary Disablement caused due to Employment Injury. One who suffers from ordinary sickness is entitled to get 60% to 70% of the wages as compensation for 91 days within two consecutive benefit periods constituting one year. In these cases, the cash benefits are in addition to the free medical aid, which is needed for the sickness or disease concerned, for which a large chain of dispensaries and hospitals have been established. The benefit called Extended Sickness Benefit that provides 80% of wages to the employees for about two years with free medical aid to them and their family members for three years is unmatched and can never be provided by any private player. The benefits payable to the insured persons in the event of their interim unemployment are immense and its importance assumes large dimension in the context the current nation-wide lockdown due to Covid virus. In order to ensure brevity, I am not dealing here with all the benefits provided under the ESI Scheme. But there is no assurance anywhere in the Social Security Code, 2019 that the benefits available as per the present statute would be continued. Leaving everything to subordinate legislation, the Code has left the entire workforce in the wilderness. When an existing law is proposed to be changed, people do have the right to know whether the benefits that would be available would be the same or more or less. That issue has not been answered to.

5. It is appropriate to recall the fact that Paul Krugman, the celebrated Nobel Prize Winner of 2011 has examined the issue in depth and warned the American legislators not to fall victim to the propagandists of privatisation of social security. It is also worth noting that a leader who wanted to privatise Social Security was looked at as an anti-people leader by the public. The presidential candidates of the USA in the year 2004 wanted to make use of that impression to villainise each other. Mr. John Kerry wanted to scare away the voters from voting again for President George. W. Bush saying that the latter was planning a surprise second term attempt to privatise social security and forecast a “disaster for America’s middle class”.  “I’ll tell you what. I will never privatise social security”, Mr. Kerry said. The spokesman of Mr. George W. Bush, the Republican Party Chairman, Ed Gillespie, called the charge “just flat inaccurate”. None of the parties wanted privatisation of social security there. These incidents would show the importance of keeping the social security scheme in public sector, to provide social security benefits as a sovereign duty, in accordance with Art. 22 of the Universal Declaration of Human Rights and Art. 39, 41 and 42 of the Constitution of India.

6. A Social Security Scheme provides a security-net assuring every employee that his economic condition and health condition would not be allowed to fall below that net. It is a safety net that gives peace of mind to the employee and ensures peace and harmony in the entire society, referred to at length in the Preamble of the Charter of the International Labour Organisation, established in 1919 AD.

7. The social security system established in India in the year 1948 was evolved out of the famous report of Sir William Beveridge which contributed already to the strength of the National Health Scheme in the UK. The ESI Scheme in India had been modelled on and drawn from the same ‘Beveridge Report’. Any independent analyst who examines the social security provisions of every nation for comparison and contrast would declare, unequivocally, that the ESI Act, 1948 of India is a symbol of civilisation. Every social security enactment is intended to take every society towards a civilised status. In the matter of social security, the Scandinavian countries provide examples to be emulated. Private players cannot provide real social security and they cannot have a have role in it. The Hindu, had editorially conceded on 01.01.2005, that “The package (of benefits provided by the ESIC) can rarely be matched by private employers on their own because of the heavy costs involved – not to mention the disinclination among employers, with honourable exceptions, to operate health care systems for their workforce”.

8. But instead of taking the nation forward the three draft Labour Codes on Social Security prepared in the years 2017, 2018 and 2019 put the nation on the path of retardation, and consequently those efforts ended up in failure. Because the intention of those interests who drafted those Codes was not for providing real social security but to deny social security and demolish even the existing structure, while maintaining a facade that they were taking action for the welfare of all the people. These three drafts had been withdrawn from public discussion because of the incomplete, incongruous and inadequate provisions therein. It was a fact that the PMO itself had disagreed with the draft circulated on 17.09.2019 in File No. Z-13025/13/2015-LRC and ordered to withdraw that last draft. All those three drafts had, literally, been running into hundreds of pages. It is, therefore, not proper to make use of the pandemonium created by the Covid pandemic and enforce such a voluminous Labour Code on Social Security through an Ordinance.

9. The ESI Act provides a goal post, a decent and reasonable standard, for social security in the Indian context. It provides an ideal security net and it has been successful all along. What is required now is to make use of Sec. 1 (5) of the Act that enables the ESI Scheme to be extended to the establishments in all the four sectors, ( industrial, commercial, agricultural and otherwise) and provide social security of the same standard to all the employees in all those sectors. It is not necessary to prepare the code as has been done thrice by the vested interests who wanted to really deny even the existing security cover. These draft codes reduced the existing benefits instead of providing more benefits to more workers.

10. I submit that the need of the hour is to run the organisation corruption-free and not to run down the organisation and its concept. But that is not being done. Even the CAG has not been helpful to monitor the functioning right. He failed to detect the huge fraud committed in the name of construction of medical colleges and prepared a slip-shod report bearing No. 40 of 2015. When challenged in the W.P. 33775 of 2016 and W.P. 35284 of 2016 in the Hon’ble High Court of Madras, the Comptroller and Auditor General of India could not file any counter-affidavit, for the past four long years, while the Cabinet Secretary himself had filed his counter-affidavit within a year. I submit that it is worth probing into the puzzling silence of the CAG who is, now, afraid of judicial review of his inactions and lapses on this serious issue. This CAG has, through his report No. 40 of 2015, cheated the President, the Parliament and the public in this matter and is, deliberately, trying to avoid accountability. I submit that it is there where the government should concentrate.

11. Mr. Ratan Tata has, in the context of the living conditions of the poor in Dharavi of Mumbai, said that we should think over about the “acceptable standards of quality of life”. He has added, “… we’re dealing with populations that need to be a part of new India. We are creating a community which we are ashamed of. We should be driven by the desire of creating a world culture” (Times of India 21.04.2020).

 

12. But the intention of the forces which caused the preparation of the three drafts on Labour Code on Social Security in2017, 2018 and 2019, was to radically reduce the acceptable standards of quality of life when the workers meet with various contingencies in life. These three drafts reduced even the existing time-tested benefits provided under the ESI Act. These drafts made the government to disown its constitutional responsibility and gave freehand to private players to play havoc with the lives of the working population. No explanation had ever been given by the brains behind those drafts to justify their attempt. Silence cannot be the answer to valid questions which the persons who drafted those drafts found uncomfortable. Now, the news item mentioned in the reference cited has caused genuine alarm and apprehension in the minds of the people about the fate of social security in the nation.

13. I submit that the very introduction of ‘the Code on Social Security, 2019’ in the Parliament as Bill No. 375 of 2019 on 06.12.2019 is premature, as the draft Bill placed in public domain on 17.09.2019 had been withdrawn at the instance of the PMO, as reported in the Economic Times on 04.10.2019. I, therefore, fervently pray that the mode of ordinance may not be resorted to for enforcing any Labour Code on Social Security, when the need of the hour, after the withdrawal of the third draft circulated on 17.09.2019, is to do the preliminary work of preparing a fresh draft Labour Code on Social Security and putting it in public domain for public discussion.

14. As there has been no real public discussion on the contents of the Bill placed before the Parliament on 06.12.2019, I request that the Parliamentary Standing Committee on Labour may be pleased to recommend withdrawal of the Bill No. 375 of 2019 from the Parliament for placing it in the public domain first inviting ‘suggestions”, “comments”, and “inputs”, from the stakeholders, as called for in the letter dated 17.09.2019 of the Ministry of Labour.

With profound regards,

Yours faithfully,

 

 

 

 

 

 

 

 

 

 

 

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Seminar on “Social and Economic Justice in India: Emerging Trends” – Presentation – January 2020

 

Presentation given in the seminar organised by the All India Progressive Forum on “Social and Economic Justice in India: Emerging Trends” on 25. 01.2020 at Chennai.

AIPF Seminar Presentation January 2020  

 

The Paper presented at the Seminar is available in the following link:

AIPF Seminar Paper

 

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Art. 39 Vs. the Slave Labour Code 2019

Art. 39 (b) & (c)of the Indian Constitution says,

“The State shall, in particular, direct its policy towards securing—….

  • (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
  • (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;”

Existing benefits under the ESI Act are under threat because of the Subordinate Legislation for which power is being sought in the present Labour Code.

Subordinate Legislation is secretive.

A legislation cannot leave it to the Executive to correct the situation which produces unexpected consequences. Hon’ble Supreme Court has said, “Unlike Parliamentary legislation which is publicly made, delegated legislation or subordinate legislation is often made unobtrusively in the chambers of a minister, a secretary to the Governor or other official dignitary.” (ITC Bhadrachalam Paperboards Vs. Mandal Revenue Officer 1996 (6) SCC 634 and Harla Vs. State of Rajasthan AIR 1951 SC 467 and B.K. Srinivasan Vs. State of Karnataka AIR 1987 SC 1059). B

ut, the Drafting Team does not know of these niceties and the authorities also do not care.

The Supreme Court of India has in
Samatha
Vs. State of Andhra Pradesh (1997) 8 SCC 191 (Para 75)  observed,

“The core constitutional objective of ‘social and economic democracy’ in other words, just social order, cannot be established without removing the inequalities in income and making endeavour to eliminate inequalities in status through the rule of law. The mandate for social and economic retransformation requires that the material resources or their ownership and control should be so distributed as to subserve the common good.

         A relatively small Powerpoint presentation on the core issues of the  Labour Code 2019 is in the following link;

Slave Labour Code 2019

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Labour Code: Draft cleverly! Remove percentage !!

Removal of percentage: Clever drafting of Labour Code on Social Security, 2019

(A parody)

 

October 2019. The venue is Ministry of Labour. A meeting of the bureaucrats of the Drafting Committee to rework the Labour Code on Social Security is on. Non-officials are also present including some co-opted Consultants.

The Head of the Drafting Committee welcomes the meet and explains the purpose of the meet that day.

“Dear all, It is very sad that the PMO has returned the Draft Labour Code that was put in public domain on 17.09.2019. Many of you are new and we are now to rework the draft publicized on 17.09.2019. What should we do about it?”

All are silent.

An official member, who was drafted anew for reworking the Draft, gathers courage and comes up with an idea. “Sir, the Economic Times (04.10.2019) has reported that the The PMO is unhappy as the concept of “universal” was missing in the draft code”. Let us simply prepare another draft providing that the benefits available to the employees covered under the ESI Act would be available to all the employees everywhere. I am told that that was the intention of the law makers when they framed the ESI Act in the year 1948. It is quite evident from Sec 1 (5) of the said Act, which says that the appropriate government shall “extend the provisions of this Act or any of them, to any other establishment, or class of establishments, industrial, commercial, agricultural or otherwise”. That Act was intended to provide social security to all the workers everywhere, ultimately. It is so simple to do so instead of preparing such a large Code without knowing the direction”.

The Head of the Committee was nodding his head in agreement. The other members also feel relieved that a real solution was in hand.

On seeing the reaction of the Head and the other members, the consultant who was in the meet becomes annoyed. He shouts at them, “What do you mean? The intention behind the Code on Social Security is not to extend real social security to the people but to take away the Security-net provided to the work force by the ESI Act and EPF Act. At the same time, we have to cite the uncovered sectors and project that we are extending social security to them? You should not talk of ESI benefits and extending it to all.”

The role of the ILO

The official who spoke first replies, “But the benefits provided under the ESI Act is the bench mark on social security. The ILO has said even that is not enough. The ILO had, in its ‘World Social Security Report’ released on 16.11.2010 said that there were many “informal labour practices” in India and that the people of India are exposed to “very high vulnerability” to poverty. Our aim should be to provide to all the working class at least the benefit that is provided by the ESIC now. That should be our goal post. A civilised nation cannot afford to shift the post to a lower level.”

The face of the Consultant gets reddened with anger. He screams at the official, “What do you think of yourself? I know what the ILO is doing. They would not open their mouth in our meet. We could project it as their consent. It happened last time also thus. What we should do is what is convenient to the employers, who want cheap labour. The ESI benefits have put unnecessary burden on the employers. You reduce the ESI benefits. I know how to manipulate public opinion. We can, through appropriate propaganda, project hell as heaven and the working population would also believe it.”

Clever drafting on 17.09.2019

“But the people are opposing when we are reducing the benefit that is already being given through the ESIC.”

“That we have already taken care of in the Draft dated 17.09.2019 itself”

“Already taken care of? ! How was it taken care of ?”

The Consultant looks at him beaming with pride. “Yes, we have done it. In the previous Drafts we had mentioned the quantum of benefits that would be provided to the beneficiaries, in respect of many benefits. For example, in the draft publicised on 24.04.2017, we mentioned that the benefit payable to an dependants in the event of death of an employee would be 50%. Immediately, many people started objecting saying that when the ESI Act provided about 90% of the wages of an employee to his dependant family as “Dependants Benefit”, how could we reduce it to 50%”.

“Yeah! That was the right question”, says that innocent newcomer.

The consultant felt a little irritated at the sense of justice and fair play displayed by that official. He rebuked, “Do not be carried away by your sense of justice. We knew what to do and we had done that on 17.09.2019. That is why no such questions are coming now from the public.”

The official is surprised. He asks. “What did you do, Sir?”

The Consultant replies with pride, “ Look! It was so simple. We did not mention the quantum of any benefits in the Draft publicised on 17.09.2019. We just said that the quantum of benefits would be decided later by the Government through subordinate legislation. Just the way we had done in the earlier Drafts in respect of Sickness Benefits.  Hah hah ha! Now, nobody would be able to say whether the Bill on Labour Code for Social Security placed before the Parliament is going to provide more or less benefits than what are being given now. See how clever we are!”

The newcomers at the Committee meant to rework the Draft displayed on 17.09.2019 are stunned. One of them asks, “Sir, when are we going to publicise the reworked Draft, for which purpose we have assembled here today”

Para 692 of the SC judgment 

The Consultant says, “We will not publicise the reworked draft. Because, it was made public that we were going to rework, people waited for another draft and did not send representations of substance. Now, we will go to the Parliament straight with the reworked draft, the contents of which would not be publicised as was done earlier.

And, we have majority in Parliament and we can do anything. As long as nobody remembers the contents of Para 692 of  judgment of the Hon’ble Supreme Court in the Kesavananda Bharathi case, we can ride roughshod over the rights of the labour force.”

Another official who is a newcomer says, “Sir, I have read the report of the Royal Commission of Labour which prepared its report on examining the condition of labour, by touring around the nation for two years from 1929 to 1931. The condition of the working population would, in the absence of benefits as provided at present by the ESIC, would take the entire nation back to that era. Are we to progress or travel backwards?”

The Consultant feels more irritated. He says, “How do you say that we do not progress? You see the data.

  • In January 2016, 1% of Indian population had had 53% of national resources in its control.
  • In January 2017, that 53 became 58%.
  • In January 2018, it leaped to 73% of national resources.
  • In January 2019, that 1% came to be in possession of 78%.

In January 2020, it would be even more. Is this not progress? We want to achieve even more! And, we are restructuring the Social Security to achieve that progress, you see!”

(The meeting of the reworking committee ends)

For more:

https://flourishingesic.info/2017/11/08/ever-greedy-utlra-rich-servile-politicians-sheepish-ilo-and-the-orphaned-working-class/

 

 

 

 

 

 

 

 

 

 

 

 

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Sec. 97 (2A) of the ESI Act, 1948: Why was it inserted?

It is very essential for the bureaucrats to go by law. Not everything they do becomes lawful just because they are in power.

The purpose for which Sec. 97 (2A) was inserted in the ESI Act, is to be understood before attempting at nullifying its effect.

The following application is sent to the Hqrs. Office of the ESI Corporation under the RTI Act, 2005:

===========

                  Sub: Amendment to ESI Act – Insertion of Sec. 97 (2A) – copy of Agenda and                                    Minutes – requested.

Sir,

I would like to state that the provisions under Sec. 97 (2A) of the ESI Act, 1948 were not in the original Act of 1948. They were inserted later, through the Amendment Act 53 of 1951 (and brought into existence from 06.10.1951), while Sec. 97 (3) of the said Act was part of the original legislation enacted in the year 1948. . As the supreme body of the ESI Corporation had come into existence immediately after the enactment of the Act in 1948, this amendment of 1951 through Sec. 97 (2A), had, obviously, been made at the behest of the said supreme body, the ESI Corporation, which had deliberated on the need for such a provision under Sec. 97 of the parent Act.

I, therefore, request you to kindly provide me with the following information under Sec. 6 of the Right to Information Act, 2005.

  1. Kindly provide me with the copies of (1) the Agenda and (2) the Minutes of the meetings of the Standing Committee in which the details explaining the need for inserting Sec. 97 (2A) in the ESI Act, 1948 had been placed before the Standing Committee and its approval obtained.
  2. Please provide me with the copies of (1) the Agenda and (2) the Minutes of the meetings of the ESI Corporation in which the details explaining the need for inserting Sec. 97 (2A) in the ESI Act, 1948 had been placed before the ESI Corporation, the supreme body of the organisation, and its approval obtained.

I have paid Rs. 20 by means of IPO, (Rs. 10 being the fee payable under the RTI Act and the remaining Rs. 10 being the cost of photocopying the required documents). I undertake to pay extra charges for photocopying if advised to do so when the pages to be supplied are more than five.

Yours faithfully,

(R. Natarajan)

 

 

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