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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Labour Code on Social Security 2.0 : Conference on Building and other Construction Workers at Vijayawada – August 2019 !

The Labour Code on Social Security 2.0 released in March 2018 does not show that the central bureaucrats who prepared it developed any empathy with the  working population, even after they received inputs from the people with reference to their earlier code released in 2017. That they are acting as per the directions of some power-brokers becomes clear from the directionless draft.

Those power brokers pretend that they are working in the interests of the employers. They do not even pretend that they are interested in the welfare of the working class. As brokers they are interested only in themselves. And, the bureaucrats who do not apply their mind before acting at the behest those power brokers and have prepared this second version of the labour code on social security, are creating chaos in the nation. A team of power brokers feel that the social security system has been leased out to it.

Let them know that Sec. 1 (4) & 1 (5) of the ESI Act are intended to cover all the segments of the working population , tackling all problems with practical solutions, gradually. This Labour Code on Social Security is totally unwanted and unnecessary.

 

A responsible society would not keep such a law on record .

Vijayawada Presentation 2019

 

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ESIC on the wrong path, now: The middle management misleads !!

The speed with which the ESIC moves ahead to hold the DPC meetings for promotion to the posts of Senior Nursing Officers (by still calling them as Nursing Sisters) and Assistant Nursing Superintendents is worrisome. It is a clear violation of law on the subject, especially when the UPSC has assumed jurisdiction over that issue on 05.07.2019. When the authorities of a public organisation do not care for law, it is the citizenry which has to step in. A letter is, therefore, written to the UPSC inviting its attention to the ongoings in the ESIC. The powers vested in a Constitutional Body cannot be exercised by the Statutory Body. It is ultra vires and unlawful.

All those interested in Rule of Law in the ESIC may just copy the post and forward it to the UPSC. 

Serving employees to stay away please.

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

The letter sent to the UPSC on 31.07.2019 is reproduced here:

31.07.2019

To

The Secretary,
Union Public Service Commission,
Dholpur House,
Shahjahan Road,
New Delhi 110069.
email: secyoffice-upsc@gov.in

 

Sub: Recruitment Regulations – Promotion to the post of Senior Nursing Officers – Group B –  usurping the role of the UPSC – by the ESIC – complaint – lodged.

 

Ref: 1.     Memo No. A/12/11/1/2017-Med. VI dated 04.05.2017 of the Hqrs. Office, ESI Corporation, New Delhi.

2.     Letter No. 3/12 (8) /2019 – RR dated 05.07.2019 of the Union Public Service Commission addressed to the Director General, ESI Corporation, New Delhi.

3.     Letter No. A/11/11/12/2018-Med. VI. dated 12.07.2019 of the Hqrs. Office, ESI Corporation, New Delhi.

Sir,

1. I submit that the Office of the ESI Corporation had published, in its website, a Memo dated 04.05.2017 inviting comments from stakeholders, on the draft Recruitment Regulations for the posts of Staff Nurse, Nursing Sister and Assistant Nursing Superintendent in the ESI Corporation. Thereafter the draft RRs had, obviously, been sent to the DOPT and then to the UPSC for their approval and concurrence.

2. The UPSC has, recently, conveyed its concurrence to the aforesaid Recruitment Regulations in its letter dated 05.07.2019. In all probability, that letter of the UPSC would have reached the Hqrs. Office of the ESI Corporation, at least before 9th or 10th of July 2019.

3. As per these Recruitment Regulations, approved by the UPSC, promotion to the posts of Assistant Nursing Superintendent and Senior Nursing Officer from the respective feeder cadres can be made only by the UPSC. When this provision has come into effect already, on receipt of the UPSC’s letter dated 05.07.2019, and the UPSC has, already, assumed jurisdiction over the promotion of the Nursing Officers to the cadre of Senior Nursing Officers, the Hqrs. Office of the ESI Corporation has attempted to unlawfully meddle with the procedure and usurp that jurisdiction of the UPSC by making vigorous efforts to hold DPC at its level itself, in-house. This becomes, clearly, evident from the letter dated 12.07.2019 sent by the Assistant Director (M.A) of the Hqrs. Office of the ESI Corporation to the Regional Directors of the ESI Corporation. Hence, this complaint.

ESIC letter 12 07 2019

4. I submit that the law on the subject is that the Recruitment Regulations pertaining to any post in the ESI Corporation come into existence immediately after they were framed / amended with the approval of the competent authority. The authorities of the ESI Corporation cannot, therefore, postpone arbitrarily, the date of enforcement of the approved Recruitment Regulations, by citing the non-publication of the said Regulations in the Gazette. Because, Sec. 97 (2A) of the ESI Act, 1948 mandates that

“The condition of previous publication shall not apply to any regulations of the nature specified in clause (xxi) of sub-section (2)”.

Sec.97.2. (xxi) is about the rule-making power of the ESI Corporation regarding the conditions of service of the employees of the ESI Corporation and I reproduce below the concerned Sec. 97 (2) (xxi) of the ESI Act, 1948 for your kind ready reference:

“(xxi). the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the Director-General and the Financial Commissioner”.

5. It would thus become clear that the Recruitment Regulations for the post of Nursing Officers, Senior Nursing Officers and others in the same cadre, as approved by the UPSC on 05.07.2019 had, already, come into effect on the date the Hqrs. Office had received that communication. Although the UPSC had mentioned that it must be published in the Gazette within 10 weeks, that does not and cannot have the overriding effect on Sec. 97 (2A) of the ESI Act, 1948, which is a statutory provision. Moreover, what the UPSC had done by mentioning the phrase “10 weeks” was to remind, in a routine manner, every department of the need for publication in the Gazette. The UPSC had not, apparently, been aware of Sec. 97 (2A) of the ESI Act, 1948, which the ESIC authorities knew, very well.

6. In the context, I would like to invite your attention to Sec. 95 which deals with the rule-making power of the Central Government and Sec. 96 of the ESI Act which with the rule-making power of the State Governments. Sec. 95 (3) says that the

“Rules made under this section shall be published in the Official Gazette and thereupon shall have effect as if enacted in this Act”. 

Likewise, Sec. 96 (2) says that the

“Rules made under this section shall be published in the official Gazette and thereupon shall have effect as if enacted in this Act”.

Similarly, Sec. 97 (3) also says that the

“Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act”.

7. However, Sec. 97 (2A) is in sharp contrast to these provisions. The condition of previous publication has, categorically and consciously, been dispensed with, as per this sub-section, in respect of Recruitment Regulations, among others, mentioned in Sec 97 (2) (xxi). In short, the condition of previous publication shall not apply to the Recruitment Regulation.

8. The sum and substance of these facts is that the Recruitment Regulations approved by the UPSC and conveyed to the Director General of the ESI Corporation on 05.07.2019 have already come into effect, even without their being published in the Gazette.

9. It is only that RR which had been approved by the UPSC and sent to the ESIC on 05.09.2017 which can be called as the “Existing Recruitment Regulations” as on 12.07.2019. In that event, there can be no role for the Regional Directors of the ESI Corporation to convene DPCs for the posts of Senior Nursing Officers and Assistant Nursing Superintendents. The direction of the Assistant Director (MA) in his letter dated 12.07.2019 addressed to the Regional Directors of the ESI Corporation to “hold DPCs of various Nursing ….posts as per existing Recruitment Regulations of the post concerned” is, therefore, patently unlawful and ultra vires.

10. I submit that there can be no difficulty, at all, for the ESIC to get the promotions done through UPSC, to the posts of Senior Nursing Officers and the Assistant Nursing Superintendents. The very important fact is that the DOPT has, after elaborate consultation with the UPSC, issued its O.M. No. AB-14017/79/2006-Estt. (RR) dated 06.09.2007 laying stress on the existing RRs until they are formally amended. It is apparent that the middle management of the ESI Corporation has not placed all the relevant facts in the right perspective before the higher authorities of the ESIC in its desire to hurry up their unlawful action process and hush up the legitimate role provided in it for the UPSC.

11. I, therefore, request you to kindly intercede and ensure that the promotions to the posts of Senior Nursing Officers and Assistant Nursing Superintendents in the ESI Corporation are made as per law only by the UPSC, as per the existing Recruitment Regulations, which had been approved by the UPSC on 05.07.2019. The action of the Assistant Director (MA) of the Hqrs. Office, ESI Corporation, in having directed the Regional Directors to hold DPC as per the “existing” RRs is not correct, as he is unlawfully usurping the role of the UPSC and is preventing the UPSC from discharging its legitimate duty, when it has assumed jurisdiction in the matter of promotion of these Nursing personnel, as per the really “existing” RRs which came into existence after its approval by the UPSC and receipt by the ESIC.

12. I understand that the UPSC is going to recruit Nursing personnel taking into account not only the vacancies in the ESIC but also in other departments of the Central Government Hospitals. The UPSC takes up such assignments only when the indent is large. And, it was because the year-wise vacancies were small, the UPSC had refused, in the year 1975, to take up the work of recruitment of Insurance Inspectors in the ESIC and advised the ESIC to keep that cadre in Group ‘C’. That situation continues till date in the ESIC. But, the Nurses cadre in the ESIC is sufficiently large and the UPSC can club the vacancies in the cadre together with the vacancies in the RML Hospital, AIIMS, and Safdarjang hospitals and others and conduct examination for all the vacancies together and streamline the recruitment more professionally.

13. Besides, a Statutory Body cannot exercise the power taken away from it and vested in a Constitutional Body. But, the ESIC is trying to exercise the power vested in the UPSC. This letter is, now, written by me to the UPSC, because, in the given circumstances when the middle management of the ESIC is misleading the top management, only the UPSC’s intervention can provide instant remedy.

14. There is another course open to the public to get remedy through the court of law too. But, the ESIC, as a rule, does not file counter in such PILs in time, unless there is stay. In an issue involving Rs. 10,000 crores, when the Cabinet Secretary and the Secretary, Ministry of Labour have filed counter-affidavits, the Comptroller and Auditor General of India and the Director General of the ESIC have not filed counter-affidavits for the past two and a half years The case numbers are W.P. 33775 of 2016 & W.P. 35284 of 2016 before the Hon’ble High Court of Madras at Chennai.

15. But, I submit that the legal remedy through Court of Law will, necessarily, be resorted to if the ESIC tries to exclude the UPSC, through amendment to Sec. 17 (3) of the ESI Act, 1948 and go back to its original system of recruiting Nursing personnel at its level itself. But, until such amendments are made in the ESI Act, it is only the UPSC which should convene the DPCs for promotions and direct recruitments, as per the existing Recruitment Regulations approved by the UPSC on 05.07.2019. Its powers cannot be allowed to be usurped by the officials of the ESI Corporation.

16. I, therefore, request you to kindly intercede and stop the officials of the ESIC from going further with their misadventure of promoting Nurses, in-house, with reference to Para 4 of the letter No. A/11/11/12/2018-Med. VI. dated 12.07.2019 of the Assistant Director (M.A) of the Hqrs. Office, ESI Corporation, New Delhi.

Yours faithfully,

Encl: Letter dated 12.07.2019of the Hqrs, office, ESIC.

(R. Natarajan)

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ESIC on the right path, now: Nurses lead! Let the Doctors follow!!

Medical Officers in the ESIC

1988

For more than six months, there was a flurry of activity in the medical administration division. A powerful lobby from inside and outside was working to amend the Recruitment Regulations to wean away from the UPSC the power of recruitment of medical officers in the ESIC, in spite of resistance to it from the Director General, Mrs. Kusum Prasad.

Although the ESIC was made an autonomous body, Sec. 17 of the ESI Act, 1948 mandated that all the Group ‘A’ and ‘B’ posts would be filled up only in consultation with the UPSC. But, the lobby that worked succeeded and the amendment to Sec. 17 (3) came, along with many others in 1989, excluding the medical posts in Group A and Group B, i.e., from the posts of IMO.Gr. II and above, from the purview of the UPSC.

In the year 1991, during her visit to Chennai,  the same Director General said that the experience proved that the amendment was wrong.

2002 and 2003.

About 300 posts of IMOs were required to be filled by Direct Recruitment. The political masters wished to have their way with the selection of IMO Gr. II. They did not want written test but only interview. But, it was resisted successfully by the two successive CEOs of the ESIC. The recruitment of about 300 IMOs got delayed to some extent because of the political interference. Selection was, ultimately, done by holding preliminary written screening test. This was an unnecessary problem those CEOs had to encounter, because of the unwarranted amendment made in 1989.

These problems would not have arisen, if only the UPSC had continued to recruit the medical officers as was in position upto 1989.

2009.

An amendment was made, in the year 2009, to Sec. 17 and the very sub-section 17(2)(a) was not made applicable to the “appointment of consultants and specialists in various fields appointed on contract basis”.

Sec 17

The terms, ‘consultants’, ‘specialists’ and ‘various fields’ were not defined anywhere in the amended Act.

The terms of contract were not codified and the central government model contracts in health sector could not be cited as models, because of the exclusion of Sec. 17(2)(a) in toto.

The approval for this amendment was obtained from the Parliament giving impression to the Members of Parliament that these consultants and specialists were required for better delivery of super speciality services. Para 4 (viii) of the ‘Statement of Objects and Reasons’ that accompanied the Bill for the said amendment said that the amendment was intended to enable the ESIC “to appoint consultants and specialists on contract without referring the matter to the central government for better delivery of super-speciality services”. The Members, therefore, believed that the requirement of the ESIC was for physicians and surgeons to provide medical treatment on super speciality and voted for the amendment, relying on the Statement of Objects and Reasons.

Bill Reasons

But, in the amendment, i.e., in the newly inserted proviso to Sec.17 (2) (a), the important phrase “super-speciality services” had, simply, been omitted. Now, the amended Act permitted appointment of ‘consultant’ or ‘specialist’ in ‘various fields’ for any purpose. What is more, it had given carte-blanche to do anything without being restrained by the provisions of Sec.17 (2) (a) too.

If only the ‘specialists’ and ‘consultants’ were required for super-speciality services, the said proviso ought to have been inserted below Sec. 17 (3) only. But, that was not to be.

And, what was made of that provision later is beyond the scope of this post.

But, these problems would not have arisen, if only the UPSC had continued to recruit the medical officers as was in position upto 1989.

2015.

ESIC amended the Recruitment Regulations for the Medical Teaching Faculty posts in its medical colleges on 03.07.2015.

The posts of ‘Associate Professor’ are required to be filled by promotion failing which by direct recruitment or deputation or absorption or short-term contract.

The posts of ‘Director Professor’ are required to be filled by promotion failing which by deputation.

The posts of ‘Professor’ should be filled 50% by promotion failing which by deputation, absorption or short term contract and the remaining 50% by direct recruitment.

When there is such a ‘failing which’ clause, it necessitates the authorities to resort to that primary mode of recruitment-process first and then, if the vacancies could not be filled by that primary mode, to go for the secondary mode.

The authorities cannot choose the secondary modes by, arbitrarily, ignoring the primary mode.

2019

Advertisement is issued by the Dean of the ESIC Medical College, K.K.Nagar Chennai inviting candidates for walk-in interview on 17.07.2019 for appointment to the posts of Associate Professor, on contractual basis.

How could the post of Associate Professor for which clear-cut Recruitment Regulations are there, be filled on contractual basis?

Can any authority violate the RR in such a brazen manner?

These problems would not have arisen, if only the UPSC had continued to recruit the medical officers as was in position upto 1989.

Nurses in the ESIC

2017

The ESIC publishes in its website a Memo dated 04.05.2017 a draft Recruitment Regulations for the posts of Staff Nurse, Nursing Sister and Assistant Nursing Superintendent. This draft invites comments also within 30 days. Thereafter the draft RRs are sent to the DOPT and then to the UPSC too.

The salient features of the amendment are:

  1. The posts in the Nursing cadre are re-designated and re-classified as Nursing Officer ( Group B ), Senior Nursing Officer (Group B) and Assistant Nursing Superintendent (Group A).
  2. The recruitment process in respect of all these posts go to the UPSC.
  3. The DPC will be conducted by the UPSC and a member of the UPSC will be the Chairman of the DPC.

 05.07.2019

The UPSC has given its ultimate approval to the RRs vide its letter dated 05.07.2019. The selection process of the posts in the Nursing cadre has, now, been taken over by the UPSC. In fact, the original proposal sent by the ESIC on 04.05.2017 has come out unscathed as could be seen from the UPSC’s letter dated 05.07.2019.

The Recruitment Regulations are framed by the ESIC as a body, for all the posts in the organisation. They are prepared as per the Regulation making power vested in the ESIC as per Sec. 97(xxi) of the ESI Act, 1948. While all other Regulations framed by the ESIC with reference to Sec. 97 (i) to (xx) and Sec. 97 (xxii) and (xxiii) can be brought into force only after they are notified in the Gazette, Sec. 97 (xxi) had been, specifically, exempted from such pre-publication for enforcement, as per Sec. 97 (2A).

Sec 98 xxi

Sec 98 2A

The authorities of the ESIC have to and can enforce it from the very day on which they receive the RRs from the UPSC (in respect of Group A and B posts) or from the DOPT (in respect of Group C and D posts, where necessary, although the DOPT does not insist on its oversight on such RRs in certain circumstances).

New RRs of Nurses have already come into existence.

In the case of the RRs for the posts of Senior Nursing Officers and the ANS, the RRs approved by the UPSC and forwarded to the ESIC on 05.07.2019 have already come into existence, as per law. It is not permissible to argue that these RRs would come into effect only after they are notified in the Gazette.

In order to remove any confusion, it is clarified that the period of ten weeks mentioned in the letter of the UPSC for notifying the RRs in the Gazette is not the time given to the ESIC to, arbitrarily, postpone, for ten long weeks, the date on which these RRs become effective. Sec. 97 (2A) precludes and prevents such bureaucratic arbitrariness.  

The ESIC has, in its letter dated 12.07.2019 taken a decision to convene the DPCs as per the “existing” RRs of the posts in the Nursing cadre.

That is the correct stand. But, that “existing” RR as on 12.07.2019 for the posts of ANS and SNO are only the latest RRs forwarded by the UPSC on 05.07.2019.

Let the power vested in the UPSC, now,  for initiating recruitment process  for the posts of ANS and SNO be exercised only by the UPSC as per the existing RRs, i.e., the RRs received from the UPSC vide their letter dated 05.07.2019.

Let the Region-wise seniority list of Staff Nurses of all the Regions be merged together to prepare an all India seniority list in the cadre of Nursing Officer, which is the feeder cadre for promotion to the post of Senior Nursing Officer. It can be done in the same way it is done for merging the regional seniority lists of Assistants for promotion to the cadre of SSOs at all India level.

Let that seniority list be finalised and sent to the UPSC for initiating selection process at their level to fill up the vacancies in the cadre of Senior Nursing Officers and Assistant Nursing Superintendent.

This is the legal requirement as per Sec. 97 (2A) of the ESI Act, 1948 read with para 3 in the letter No. A/11/11/12/2018-Med. VI. dated 12.07.2019 of the Hqrs. Office.

The stress is on the phrase ‘shall not apply‘ as found in Sec. 97 (2A). It says ‘shall not’. It is mandatory that the ESIC should not wait for publication of the RRs in the Gazette for and before enforcing them. Those RRs sent by the UPSC on 05.07.2019 hold the field today.  This is the position of law. The ESIC Medical Division cannot withhold the RRs sent by the UPSC on 05.07.2019 and hold DPC for the post of ANS and Nursing Superintendent as per the, by now, old and non-existent RRs.

It is time the Doctors followed the Nurses.

Let the recruitment process of IMOs be handed over back to the UPSC.

 

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Shortage of doctors in the ESIC Hospitals: Where did the home-grown PGs go?

The Administration of the ESIC has chosen to transfer large number of IMOs from Bangalore and Chennai to far off places in the North. The reason advanced is that they are surplus medical officers here. But, the fact is that the number of patients has been increasing multifold requiring more medical personnel.  Besides, it is a paradox that while the regular doctors are transferred out, there are many doctors engaged on contract basis and they are allowed to remain.

The doctors transferred are told that they were granted Study Leave “for personal growth” in their “career”. It is also said that the ESIC obliged them and “contributed to their personal growth by granting them study leave”.

But, the fact is otherwise. As per Rule 50 of  the CCS (Leave) Rules, Study Leave is to be granted only “with due regard to the exigencies of public service“. As per Rule 50 (3) of the CCS (Leave) Rules, “Study leave shall not be granted unless it is certified by the authority competent to grant leave that the proposed course of study or training shall be of definite advantage from the point of view of public interests. Moreover, as per a Proviso under the aforesaid Rule 50 (3), a “Medical Officer may be granted study leave for prosecuting a course of postgraduate study in Medical Sciences if the Director-General of Health Services certifies to the effect that such study shall be valuable in increasing the efficiency of such Medical Officer in the performance of his duties.”  It is only when the authority considers that granting Study Leave to a person would be useful and definitely advantageous to the organisation that Study Leave is granted. It is not  and  it cannot be done as a charity.

The ESIC which utilises the services of the Medical Officers who were sent outside on Study Leave, is now transferring them to far-off places in a selective manner. At the same time, something  peculiar had already happened.

The ESIC authorities had, in a fit of frenzy,  set up large number of medical colleges in 2011 and 2012, at a stretch and justified that action before the Court also in the W.P. 12953 of 2015.

Home-grown Post-Graduates 

Those medical institutions were intended to produce PG students and make use of their services for a specified period of service as per the terms of the Bond executed by them.They had to execute a bond to serve the ESIC for specified period of years.

 

But, although the ESIC Medical Colleges had been producing many post-graduates, they were sent out, without their services being used  in the ESIC hospitals, anywhere, across the nation. How many such  Post Graduates churned out by those colleges from the year 2014 onwards were let off without the ESIC utilising their services is not known. But, around 500 were being sent out every year from 2015 onwards. They were, simply, let off.

Strangely, the newspaper Livemint had reported on 16.12.2015 that “the labour ministry has rejected a plan to mandate a Rs. 25 lakh bond on students enrolling in medical colleges run by the Employees’ State Insurance Corporation (ESIC), fearing the move could have been seen as anti-people”. That was really puzzling! For, that was an unlawful decision!

 

What is more? The Livemint reported, “Instead of the bond plan, Kataria said, ESIC will now offer students a 100% placement as soon as they complete the courses. “In 2016-17, we will absorb the 100 doctors graduating from our medical colleges, and by 2019-20, we will absorb 500 of them,” Kataria said. “It’s a 100% placement for our own students in our hospitals.” In that case, all those post graduates should have been posted in the ESIC hospitals. But, that was not done.

If only that bond had been executed, those PGs’ services could have been used by the ESIC as IMO-Gr. II for, at least, five years. Why did the ESIC use the workers money to produce PGs who were not of any use to the organisation, at all? Is that not anti-people?

It is even more puzzling, how the Administration is now transferring the doctors from the existing hospitals and sending them out to places in other states. The lack of knowledge of the local language, which is a prime factor, in the appointment of doctors, has not been taken into consideration at all.

The 2006 Transfer Policy for Medical Officers

It is true that the IMOs of the ESIC are subject to all India transfer liability. But, in the year 2006, a policy decision was taken and circulated too, informing the Medical Officers that inter-regional transfers would be effected only when they get promotion to the Senior Administrative Grade. It is that decision which holds the field till date.

Selective application of all-India transfer liability

Moreover, if at all, there has to be Rationalisation, the Administration should fill up the vacancies in all the centres by transferring all the people everywhere in a cyclical manner  and not just from a few centres in the South to a few centres in the North.

It is a fact that there is patent discrimination by the Administration in the matter of transfer of officials, depending upon their States. It is a long-time anomaly. The transfer policies brought in, in the year 2005, to set right this anomaly and to ensure  impartiality, uniformity, universality and predictability in the matter of transfer of officers have been silently buried and forgotten by the Administration.

Striking the balance between public and private interests in transfers

Hon’ble High Court of Kerala has held that the “right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes, it is more dangerous than other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide the sweet revenge, a desire to get rid of an inconvenient employee...”Asserting that there can a “deceptive innocuousness” in the transfer orders, the Hon’ble Court said, “atransfer can uproot a family, cause irrepairable harm to employee and drive him to desperation.”  {Pushpakara Vs Chairman Coir Board, Cochin 19.12.1977- (1979) ILLJ 139 Kerala)and in llyas Ahmad Vs Station Director, All India Radio, Hyderabad (1979 – 2.5 LR -58, 1979-Slj -592. K. K. Jindal Vs. General Manager, Northern Railway}.

Colourable exercise of power

Hon’ble Supreme Court of India has observed, on 25.8.2003, that “Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out.  The power, like all other administrative powers, has to be exercised bona fide”.  (State of Rajasthan & Ors  Vs. Anand Prakash Solanki –C.A.NO. 6733 OF 2003). If there is shortage of officials / medical officers in one region, the Administration should make it a routine to transfer all the officers everywhere in a cyclical manner and post them everywhere. Holding out the condition of all-India transfer liability only to one section of officers / doctors amounts to selective discrimination, through arbitrary and colourable exercise of power.

“One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer”, observed the Supreme Court in Varadha Rao vs State Of Karnataka And Ors. on 26 August, 1986.

Students are not substitutes 

The ESIC Administration should not make any attempt to show the PG Students as Doctors. Students cannot be shown as substitutes for doctors. Besides, they had not been taken into account to calculate the Sanctioned Strength of medical officers or to arrive at the findings on the so-called Rationalisation, in the hospitals both in the South and in the North.

Double-speak impermissible

An organisation that officially declared some doctors as those belonging to teaching faculty cannot take a different stand stating that it did so just in order to help those doctors to have an impressive CV. That would be a confession in having cheated the MCI. No law permits anyone to approbate and reprobate at one and the same time.

What fairness necessitates

It is only fair that the existing doctor-patient ratio is not disturbed, specially when more and more patients are coming in to these Hospitals for treatment. It is necessary that less number of doctors are not made to take care of more number of patients.

It is only fair that the vacancies, if any, at other places are filled,  not by posting only the doctors from the South but by evolving a uniform policy that applies to all the doctors everywhere.

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