Tag Archives: ESIC

Maternity Benefits under SS Code : Piloting it the wrong way ! – Part 1

 

Maternity Benefit slide_page-0001 (2)

The year was 1983. The ESI Corporation wanted to make some path-breaking changes and to bringing in suitable amendments. The Contribution Card system with stamps had already been replaced with the Contribution Card system with cash. The issue now was that the classification of employees into three sets, viz., A, B and C, was to be given a go by. Common Contribution Period and Benefit Period was being contemplated. The Hqrs. Office of the ESI Corporation asked the Regional Directors to offer their opinion. The Regional Directors asked, in turn, the field officers the Managers of the Local Offices and the Insurance Inspectors to explain their stand. The outcome was the evolvement of law which ensured the introduction of new system providing for all the practical difficulties in its implementation.  The opinions offered ensured that the procedure evolved was not only not cumbersome but also one that advanced the purpose of the Act.

Hear the subordinates

Such a practice of obtaining opinions from subordinates in the field was followed, again in the year 1988, before certain vital amendments were made in the ESI Act, in the year 1989. The management principle recommended by Mr. Gordon M.Bethune, former Chief Executive of the Continental Airlines was to ‘hear the subordinates’. For, he knew that they knew more about the work and the weak-spots.

Gordon Continental Airlines

Mr. Bethune said, “I was a mechanic in the Navy. And mechanics in the Navy are like mechanics in airlines. You may have more stripes than I do, but you don’t know how to fix the airplane. You want me to fix it? You know how much faster I could fix the airplane when I wanted to, than when I didn’t want to? So I’ve always felt that if you treat me with respect, I’ll do more for you.”…”And we never lied. You don’t lie to your own doctor. You don’t lie to your own attorney, and you don’t lie to your employees.” (Corner Office -Adam Bryant – 02.01.2010 – New York Times).

Legislative Policy,  kept a mystery

But, here is a bureaucracy, now, at the centre, especially in the Ministry of Labour & Employment and in the Ministry of Law & Justice, which does not hear even the Corporation, the supreme body of the ESI Corporation, let alone its Director General or his subordinates. Because many of the provisions in the Bill No. 375 of 2019 are intended to destroy the well-conceived social security network that provides social insurance and enable the private players to loot the masses in the name of commercial insurance. The bureaucracy is, therefore, afraid of the proper law-making process.

What is more? Even the Director General of the ESI Corporation and the Central PF Commissioner of the EPFO were not made aware beforehand and at every crucial stage, what was being drafted by the Drafting Team of the Labour Code, although the Ministry of Labour enacted a drama of roping in some junior officers from these organisations to be part of the team. More of this can be read in the following links:

https://flourishingesic.info/2017/05/25/slave-labour-code-unlimited-rights-to-the-drafting-team/
https://flourishingesic.info/2017/05/26/the-drafting-committee-of-the-constitution-vs-the-drafting-team-of-the-labour-code/
https://flourishingesic.info/2017/05/29/drafting-team-was-trying-to-finish-off-the-epfo-was-the-cpfo-aware/

These two ministries have been made captives by their political masters, and have been made to prepare a law that is intended to serve only those private interests and not public interest. In the absence of publication of the Legislative Policy, the Bill No. 375 of 2019 deserve only be categorised as a Private Bill dressed up as a Bill mooted by the government.

Innumerable dubious words, phrases and clauses inserted on the sly at various places for wrong reasons in the said Bill, indicate clearly that the intention of these Ministries is not to give priority to run the ESIC corruption-free  but to destabilise it and provide a ground for the private players to cheat and loot the public. These bureaucrats forget or suppress that the ESI Act does not prevent private players from operating even now on the same field, provided they are ready to provide benefits which are superior or substantially similar to the ones provided by the ESI Corporation. That they are not interested in giving priority to eradicate corruption would become evident from the manner in which the CAG himself has not filed counter-affidavit in the W.P. 35184 of 2016 pending before the Hon’ble High Court of Madras for the past four years.

Pulling wool over the eyes of law-makers

The Statement of Objects and Reasons and the Notes on Clauses, justifying the Bill No. 375 of 2019 are full of half-information, misinformation, disinformation and no-information on various core issues. They are intended to deceive the parliamentarians and get them vote for this dubious Bill to make it a law. The method of manipulation adopted by them in meddling with the Maternity Benefit provisions, through this ill-conceived Bill would give real shock to every well-meaning citizen. The unholy nexus between the ‘educated’ officers in these Ministries and the ‘private interests’, causes the former to assist the latter by subverting the due process of law, and enacting laws which are clearly against the interests of the working women whose living conditions do not matter for these high-paid officials.

Their actions bring into existence a law that would never attain its proclaimed goal but would ensure that the society is made chaotic and insecure. There is no explanation anywhere as to why and by whom and at whose instance various unlawful tinkerings have been made in the ESI Scheme, without any written direction to anyone by anyone. What has happened is a conspiracy by the top officials against the large masses of the nation whose voice cannot be heard and whose living conditions do not matter for these officials. All these officials are required to be made accountable for such commissions and omissions. They are the persons responsible for piloting the highflying aircraft to disastrous crash.

Clause 32 (1) (b) and Clause 32 (3) of the Chapter IV read with the entire Chapter VI of the Bill on the Code on Social Security, 2019 (Bill No. 375 of 2019) in the matter of Maternity Benefit provide a classic example of collusion of various vested interests to deny the large multitude of workingwomen of the nation the Maternity Benefit that was available to them under the existing provisions of the ESI Act for decades and decades.

Shock ad infinitum

The manner in which questionable words, phrases and clauses have been inserted at various places, in the Bill No. 375 of 2019, with the intention of cheating the workforce, causes a lot of depression and annoyance even for a reader. One wonders how the educated bureaucrats could stoop so low to deceive the poor people of the nation and to please the rich anti-labour elements and prepared such a draft Code to make patently unlawful things lawful. It is very sad and it causes depression and annoyance in the reader. One has to take a lot of efforts to motivate oneself to come out of such depression, before and for writing about the social impact of such cunning insertions in the Code.

The text of the Bill No. 375 of 2019 shows that the persons behind the Bill wanted to drastically reduce the quantum of Maternity Benefit available to the working women and make it just a farce. And the bureaucracy obliged willingly (Details in Part 2).

ESI Act and MB Act do not go together

When the ESI Act 1948 is in force in a factory or establishment, there is be no need or scope for the Maternity Benefit Act, 1961 to be applied to the Insured Women of that unit. For example, when the wage ceiling for coverage under the Maternity Benefit Act is Rs. 15000 pm, and the wage ceiling for coverage under the ESI Act is Rs. 21000 pm, there will be no need for the Insured Women covered under the ESI Act to seek benefit under the Maternity Benefit Act. The Maternity Benefit Act, therefore, does not operate and is not applicable to the said factory or establishment, as had been made clear in the Statement of Objects and Reasons of the Maternity Benefit Act in the year 1961 itself.

Yet there was the need for the Maternity Benefit Act to be in existence, as all the factories and establishments everywhere in the nation were not covered or coverable under the ESI Act.  The ESI Act could not be implemented and is not implementable everywhere, in practice, unless there was a cluster of factories or establishments justifying the setting up of a dispensary with doctors, nurses and para medical staff ( or at least a mobile dispensary ) before implementing the provisions of the ESI Act in that area. Consequently, the factories and establishments in outlying areas were made to enforce the Maternity Benefit Act, 1961, for the women working there. In other words, whenever the ESI Corporation wants to extend its operation to a new area where there are adequate number of factories and establishments and the families of insured persons, it is required to notify through the gazette of its intention to implement the scheme in that area. Such an area is called as “Implemented Area”. The ESI Act can thus be extended only in phases.

That was the reason the phrases, “different dates” and “different parts” have been inserted in Sec. 1 (3) of the ESI Act, in the year 1951 itself very thoughtfully.  But the present Bill on the Code on Social Security does not show that it took into account the concept of “Implemented Area” at all, when its Clause 1 (3) it refers to the applicability of the Code which is pending consideration of the Lok Sabha now.

As a result, one has to presume that the persons who drafted the Bill No. 375 of 2019 intended to enforce the provisions of the present ESI Act everywhere throughout India at one go, through the aforesaid Clause 1 (3) and Chapter IV of the said Bill. Well, but one does not understand the need, then, for the enforcement of the provisions of MB Act, 1961 anywhere in India, through Chapter VI of the same Bill.

ESI Act and MB Act can go together

Still, it is possible to enforce the enforce the provisions of the Maternity Benefit Act, 1961 (proposed Chapter VI of the Bill No. 375 of 2019) in the same factory in which the ESI Act, 1948 (proposed Chapter IV of the same Bill) is in force, if the wage ceiling for coverage of working women under the Maternity Benefit Act (proposed Chapter VI) is more than the wage ceiling prescribed under the ESI Act (proposed Chapter IV). But such decisions had never been taken by the government during the last 59 years, after the Maternity Benefit Act came into force. The liability to pay the Maternity Benefit under the ESI Act, 1948, is taken over by the ESI Corporation while the liability to pay the same benefit under the MB Act, 1961, is on the shoulders of the employers, with varies consequences.   The wage ceiling for coverage under the MB Act, 1961 had, therefore, been kept always below the ceiling provided under the ESI Act, 1948.

In other words, the ESI Act and the MB Act cannot apply to the same factory or establishment as long as the wage ceiling for coverage under the MB Act remains lower than the ceiling provided under the ESI Act.

In other words, the ESI Act and the MB Act cannot apply to the same set of working women at one and the same time. Consequently, Chapter IV of the Bill No. 375 of 2019 and Chapter VI thereof cannot apply to the same set of working women at one and the same time. The provisions of Chapter IV would alone prevail.

Definitions and absence of definitions

While these are vital technical incongruities in the Bill No. 375 of 2019, with reference to the definition and absence of definition for crucial words, which do have far-reaching consequences, the definition of the term ‘wages’ given in the said Bill and is made applicable for Chapter IV and VI make the entire Code a chimera. The Code simply pretends to provide Maternity Benefit to working women while it actually reduces drastically the benefit now available to them both under the ESI Act, 1948 and the Maternity Benefit Act, 1961. (This happens not only to the Maternity Benefit but also to all other benefits provided under the ESI Act, at present).

\The significance of such lapses in the Bill will be placed before the readers in the upcoming pieces, pertaining to Maternity Benefit, separately one by one, with reference to various court verdicts under the MB Act, 1961. They are stories of human tragedies showing the conflict of interest in the functional relationship between the benefit-needing employees and the profit-seeking employers (who prefer donating hefty amount to the political parties and bribing the politicians and officials while, at the same time, reducing the wages and total strength of their staff). Numerous instances of such cruelties are on record throughout the world indicating the uncivilised nature of the Strong against the Weak and Meek.

It would be appropriate in the context to recall an incident that had happened more than a century ago when an employer did not want to pay Disablement Benefit to his employee who was suffering from life-threatening employment injury sustained by him during the course of and out of his employment in the factory of the employer concerned. The employer chose rather to pay a hefty fee to a ‘clever’ lawyer, who used all the dishonest means to enact a drama in the court and had, sadly but successfully, helped the employer deny the legitimate dues payable to the poor workman. The present Bill No. 375 of 2019 is, directly, leading the Indian society in that undesirable direction.

Employee Vs. Employer

It was the 19th century England when Commoners chose to sit and suffer injustice in silence than to stand up and fight against in the costly courts. Not every employer in England was the noble George Cadbury. The money power of merciless employers and the cleverness of dishonest lawyers worked against the workmen.   As a result, cases were decided not on facts.

There was an employee of a railroad company who had sustained injury during the course of employment. He was denied compensation by the employer-company. He approached the court seeking remedy. His case was that the accident had resulted in his becoming a victim of neurasthenia or nervous prostration. The evidence produced by him showed that because of that problem, his mental and physical health had deteriorated rapidly. It was also proved during the cross-examination of an expert doctor that the workman was suffering from neurasthenia. The expert witness informed the Court that the workman suffered no pain when pricked with a pin on top of the head and that was a sure sign of his suffering from neurasthenia.

The lawyer for the defendant-company of the employer began his argument. He was “an ex-judge, somewhat advanced in years and exceedingly resourceful”. Incidentally, “he was as bereft of hair as the oft-cited billiard ball. When it came time to argue the case to the jury, he proceeded to expound the facts with clearness and vigour for a considerable length of time and finally approached the subject of neurasthenia.”

He paid his respects to the learned doctor who was called in as an expert witness. He then expressed his surprise and astonishment at the conclusion arrived at during the examination that “one who did not experience pain by the prick of a pin on the top of the head was a neurasthenic and rapidly progressing to complete mental decline.”  He, then, informed the jury that he was under the impression that he was a man of reasonable physical vigour and had always supposed that he was still possessed of his normal mental faculties. But he became afraid that he discovered that he himself was a hopeless neurasthenic as per the evidence given by the expert doctor. If he was a patient suffering from neurasthenia, he had no business trying lawsuits, but “should be preparing rapidly to meet his Maker”, he added.

“Thereupon he turned back the lapel of his coat and extracted good-sized needles, which he promptly stuck in the top of his head. He kept this up until he had some ten or twelve needles sticking in the top of his bald head and looked like an animated pin cushion”. He finished his argument.” Everyone was stunned.  The verdict returned was “in favour of the defendant”, i.e., the employer.

But what had happened was that the lawyer had got a portion of his scalp injected with cocaine with the help of a physician to avoid feeling pain when sticking the pins on his head. He had thus cheated the Judge, the Jury and the Law with the only aim of denying the legitimate compensation payable to the workman who was actually suffering from neurasthenia as a result of the employment injury sustained by him.

In later years, the lawyer confided to the same judge, Mr. Justice Faville, “that the last needle got outside the area of the cocaine which his physician had hypodermically injected into his scalp just before he began his argument and had almost unmasked the hoax”. He had to pretend hard that there was no pain although the last needle gave him very sharp pain.  (Ref: Oxford Book of Legal Anecdotes – Michael Gilbert – Oxford University Press –Pages 10-11). The hapless worker simply suffered and there was no one to help him.

The Questions and the Answers

Who will save such workers from the tentacles of such employers and advocates, if not the State? What else should be the responsibility of the State? Why should the State abdicate its Constitutional responsibility and privatise the social security in India? Why should the people of a nation allow its rulers to make the State abdicate its responsibility to provide Social Security?

In the Indian context, which employee of the nation asked for lesser Maternity Benefit than what is being provided under the ESI Act? Should not the bureaucrats be made to give reply to this question in the appropriate forum?

Will these ‘educated’ bureaucrats who give all impressions that they prepared the draft Code without any legislative policy given by anyone, and have exercised unlimited discretion to prepare the Code as they pleased, allow the already evolved democracy in India to survive and allow the ESI Corporation to flourish?

Atifete 2

 

  • Let the Indian government hold a survey among the Insured Persons and the beneficiaries of the ESI Corporation first in a honest and transparent manner. A cursory survey done in Mumbai in the latter 1990s showed that 85% of the insured persons wanted the ESIC while 85% of the employers did not want. That sums up the entire picture.
  • Let them make the CAG, who is shying away from the W.P. 35184 of 2016 for the past four years, to file counter-affidavit at least now, that the bureaucratic cartel that colluded together in mismanaging the funds involving thousands of crores would come to light.
  • Let them allow the ESIC to be run corruption-free! The ESIC will, then, reach greater heights!!

(Contd.)

Images; Courtesy: Web.

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The humane Sec. 2 (22) Vs. The wicked Cl. 2 (80).

It is Corona times. The date is 25.05.2020. Lord Yama Dharma Raja is hovering over the earth along with his assistant, Chitragupta, watching the events taking place in various nations under lock-down. For the past three months there were unusual increase in the number of entrants to his Court. While on the move, he gets attracted by the conversation of two men in a cocktail party at a hotel in New Delhi. He stopped moving further and has started observing their conversation. Chitragupta, who is standing nearby, is also keen to hear the duo, who were drunk and did not care to keep anything secret. Their conversation reveals that they are power-brokers in the capital of India who get things done from the politicians in power as desired by the business magnates who engage them. This night they are in an ebullient mood, feeling buoyant as if they are swimming in a pool of alcohol. Their conversation reveals that they are Mr. Wall and Mr. Suffer.

Mr. Suffer: Have some more drinks please! (Pours more into the glass of his companion).

Mr. Wall: Yes, Mr. Suffer! I agree, we should go on drinking and drinking. You can float in a pool of alcohol only as long as you swim. You will sink, if you stop swimming. Pour me more, I am so happy that we could influence the people in power to prepare the Code on Social Security the way our masters wanted.

Mr. Suffer: What a nice thing we have done! We have virtually wrecked the entire social security structure in India but project the image that we are expanding the structure. I am not able to control laughing. Nobody knows that a social security enactment of the nation could be so easily wrecked by tampering with the definition of the terms ‘employee’ and ‘wages’. Hah hah haa! We have poured hot water just at the root of the plant. And, it won’t be noticed by anyone. With this one single shot through Cl. 2 (26) and Cl. 2 (80) of the Bill No. 375 of 2019, the entire edifice of the social security structure evolved through the ESIC collapses in a flash. I caused it to be made that way. And the bureaucrats did what I wanted. Funny, the way the legislations are drafted by the bureaucrats who do not care for the poor.

Mr. Wall: Hey, I do not know anything about the concept of ‘wages’ you talk of. But I got what I wanted for PPP, divestment of medical colleges, etc., The manner in which we could cause various words and phrases inserted at various places in the Code is amazing, even for me. The interesting part of it is that nobody can understand the depth of those innocuous-looking phrases and foresee the impact of our mischief. We are very clever. So, we could cheat the others easily. But one thing. We could do all that only because the legislation is about the poor working class about whom nobody cares. We cannot do such thing in a legislation that would affect the rich.

Mr. Suffer: Yes, of course! Poor should be cared for by the government only. When the government is not inclined to be so, who will care for them. None. Moreover, the rich who care only for themselves are able to dictate terms to the government. We do not see rich benefactors like Robert Owen or George Cadbury in the Indian scene. They evolved the social security structure in the international arena. But the ultra rich in India want to wreck the already established structure. What is more? They are able to get the law they want by paying the political parties through Electoral Bonds. The party in power gets about 92% of such corporate donations. Naturally the nation goes the way the rich want it.

Mr. Wall: You are right! The Indian society becomes less civilised with every such labour law passed by the government recently to exploit the labour in the manner in which the rich wanted to exploit them. Anyway, our concern is that we should make money and it is the rich who pay us. Why should we then bother about the poor?

Mr. Suffer: Why should we? The politicians in power want to get the votes of the poor but they do not bother about the poor. Why we should feel concerned about them, then?

Mr. Wall: Yes, Mr. Suffer! You are right! We have convinced the politicians in power that they should choose between ‘Production in Industry’ and ‘Protection for the labour class’. Both cannot go together, we told them. They believed our theory.

Mr. Suffer: Funny, these politicians in power do not know that only strong labour welfare measures can increase production. They do not want to see what is happening in the civilised countries like Norway, Sweden, Finland, Japan, etc., They are more interested in getting money for their political parties from the Corporates. So all of them are at the beck and call of the Corporates and are ready to work as their agents instead of protecting the large mass which constitute the working class.

Mr. Wall: Be happy about it! It suits us! Otherwise we will also have to do some real work that would be really beneficial to the society. We cannot live this kind of happy parasitical life otherwise. Our work helps the rich exploit the masses without limit. I am surprised how the bureaucrats have been helping us in playing so many tricks in preparing the Code on Social Security to provide no meaningful security to the working population.

Mr. Suffer: Yes, the bureaucrats did not even explain to the politicians in power the circumstances under which various terminlogies had been defined in the ESI Act the way they have been and their importance in the Indian context. We know that as Sir William Beveridge said, industry in a nation will flourish, only when there is “Willing participation of labour”. But in India, the politicians in power do not want to listen to reason. They want to live off the rich; the rich want to live off the poor. The only goal amont the rich is to become ultra rich, and feature themselves in the Forbes magazine.

Mr.Wall: That they can achieve only when the politicians in power help them to exploit the poor through ‘Forced labour”. (He pours some more liquor for himself and drinks).

Mr. Suffer: I am not able to come out of the dizzy feeling I had when all our efforts bore fruit in the form of the Bill on the Code on Social Security, 2019 (Bill. No.375 of 2019) which contained the definition of the term ‘employee’ in Clause under Clause 2 (26) and the term ‘Wages’ under Clause 2 (80) as we wanted it. Nobody is going to notice it. Hah hah haa. With these two definitions, the entire ESI structure gets demolished so silently. The private insurers will then have a field day. I am so happy. I feel as if I am in heaven.

Mr. Wall: I feel that I am in heaven too.

(Lord Yama Dharma Raja looks at Chitragupta with a smile. Chitragupta smiles in response. He knows the meaning of the smile of the Lord and understands what is in store for this duo when they appear in the Court of the Lord, later.)

Mr. Suffer: Yes, of course. We have done a brilliant work. It requires a lot of talent to do what we have done. Even if you keep the present ESI Act in tact and continue to provide 70% to 90% of wages as compensation, the questionable phrases that we have caused to be included in the definition of the term ‘Wages’ under Cl. 2 (80) of the Bill No. 375 of 2019 would ensure that there is no meaningful social security net for the working population in India. What a marvellous work we have done! I admire at our own capability of deceit. And the bureaucrats, simply, fell for us. Oh, how easy to cheat the masses in India, with the help of the bureaucrats who do not care about their social responsibility under the Constitution!

Mr. Wall: Yes, yes! First of all, nobody cares for the poor; secondly, nobody knows where we have done what to undermine the social security system. Wah ! It is so easy to scuttle labour welfare measures in India.

Mr. Suffer: I admire myself ad infinitum. What a wonderful way in which I have caused insertion of the term “any overtime wages” in Clause 2 (80) and removed the same from Clause 2 (26) of the Bill concerned! Nobody knows the consequences of it. Because the overtime wages had been specified in Sec. 2 (9) of the ESI Act to be excluded for the purpose of coverage, but included for calculation of contribution payable on the wages defined under Sec. 2 (22) thereof. Its consequence has been phenomenally favourbale for the welfare of the labour, for the past 68 years. These terms have had a chequered history to protect the working population. But, we have reversed the relevant phraseologies in the present Bill on the Code on Social Security, in such a clever manner that it would be difficult for the people to understand the extent of the crime committed in drafting the Bill.

Mr. Wall: What would be the impact of such inclusions and exclusions?

Mr. Suffer: You see, the defintion of the term ‘wages’ as given in Sec. 2 (y) of the already promulgated Code on Wages, 2019 has been copied and pasted in Clause 2 (80) of the Bill on the Code on Social Security. The Code on Wages, 2019 replaced the Minimum Wages Act, 1948. The ESI Act had also been brought into existence only in 1948. But the term ‘wages’ had been defined differently in Sec. 2 (22) of the ESI Act. But now the bureaucrats did not care to examine why there was discrepancy between these two enactments while defining wages. They did not care either to analyse or even to record their observations in the Statement of Objects and Reasons accompanying the Bill on the Code on Social Security.

Mr. Wall: Why did the two Acts had two different definitions for the term ‘wages’?

Mr. Suffer: The very purposes of the Minimum Wages Act, 1948 and the Employees’ State Insurance Act, 1948 were totally different. The former was intended to ensure that the working population got, at least, a certain minimum amount as wages and to prevent the employer from including many variable components of remuneration paid by him to the workers and showing them also as part of the said minimum wages. The latter was to ensure that the employer brought within the purview of social security provided by the State more employees by excluding many variable components so that the cash benefit that he would receive in the event of sickness or other contingencies would be attractive and substantial with reference to the total emoluments that he receives from his employer in whatever form, so that he would be able to maintain a reasonable standard of living during the periods of such unforeseen contingencies. For example, an employee who earns a sum of Rs. 20000 pm as wages now, would get about Rs. 14000 pm as Sickness Benefit, Rs. 16000 as Extended Sickness Benefit and Rs. 18000 as Total Disablement Benefit. This is the position as on date.

Mr. Wall: I understand now. It seems that the Minimum Wages Act, 1948 was for excluding many variable components of remuneration paid by the employer to identify the ‘wages’ while the ESI Act, 1948 was for adding many variable components of remuneration to the ‘wages’ paid otherwise. The definition in Sec. 2 (h) of the Minimum Wages Act, 1948 ensured not only a specific minimum as wages payable to the working population but also prevented the employer, through the ‘Exclusion Clause’ in the said Sec. 2 (h), from citing those extra allowances or payments as part of the said minimum wages.

Mr. Suffer: Yes. The goal of the Minimum Wages Act was to put at least a minimum money in the pocket of the worker while the goal of the ESI Act was to provide maximum possible cash benefit by the Government to enable the worker to meet the contingencies. There cannot, therefore, be one and the same definition of the term ‘wages’ for both enactments.

Mr. Wall: True. Both these enactments came into force immediately on the wake of independence and they came along with the another important labour welfare legislation, the Factories Act, 1948. The desire of the leaders of modern India, then, was not to allow exploitation of labour even after the independence of the nation. That was the precise reason for enacting all these legislations, on priority basis on attaining independence. It had been made clear in the Statements of Object and Reasons of all these three enactments, in the year 1948, that they were intended for the welfare of the working population.

Mr. Suffer: The definition of the term ‘wages’ in Sec. 2 (22) of the Employees’ State Insurance Act, 1948 read with the definition of the term ‘employee’ in Sec. 2 (9) of the said Act, (which specifically excluded over time allowance to decide the coverage of the insured person) ensured that the employee was not denied coverage because of variable components of remuneration but was given substantial amount as cash benefit (by taking into account many variable components of remuneration also as wages) and was thus enabled to maintain a reasonable standard of life even when he was affected by certain contingencies like Sickness, Disablement due to Employment Injury, etc.,

Mr. Wall: Yes, I got it. If the employee who draws total wages of Rs. 20000 is shown by the employer to have received only Rs. 7000 as wages and the remaining Rs. 13000 as extra allowances which have not been classified as Wages, as per Cl. 2 (80) of the Bill on the Code on Social Security, he would get only Rs. 4900 pm as Sickness Benefit, Rs. 5600 as Extended Sickness Benefit and Rs. 6300 as Total Disablement Benefit. As one who maintained his standard of life at Rs. 20000 pm, it would become very hard to him to maintain a reasonable standard at Rs. 4900 pm in the event of even ordinary sickness. It is essential in the context to know that the tendency of the employers to cheat and evade both his employees and the ESI Corporation has been real as borne out by the judgments of the courts of law in thousands of cases. A law-maker cannot just presume to the contrary and put the lives of the working masses at the mercy of the employers, going back once again to the pre-1948 era.

Mr. Suffer: Very funny, indeed. The bureaucrats do have neither the understanding of the concept of social security nor any understating of the consequences. That was why the draftsman had simply inserted in Cl. 2 (80) of the Bill on the Code on Social Security the entire definition of the term Wages as given in Sec. 2 (y) of the Code on Wages, 2019, as it is.

Mr. Wall: It is not only that. They do not even know why the merger of the ESIC and the EPFO could not take place for the past 40 years, in spite of various studies undertaken by them. That merger could not materialise only because the term ‘Wages’ for the purpose of compliance and contribution, could not be given a common definition to answer the purpose of both the ESI Act, 1948 and the EPF Act, 1952.

Mr. Suffer: Exactly. If only the present Bill on the Code on
Social Security, 2019 with its Cl. 2 (80) as it is becomes law, it will be a death-knell for the entire concept of social security in India. Our nation will go down even lower in the list of civilised nations, because Social Security provided by the government has been recognised world-wide as the symbol of civilisation. This Code will make the cash benefits payable to the beneficiaries (insured persons or their dependant family members) totally unattractive with reference to the real wages earned by the insured person.

Mr. Wall: Yes, you are right. That benefit will not be useful to the workers in any real sense, unless contribution is made payable by the employer on all items of wages paid by them, as per the existing definition under Sec. 2 (22) of the present ESI Act. There would be no real Social Security to the working population. There would be no real “State Insurance” although Chaper IV of the Code on the Social Security, 2019, proclaims to the public that there would be an “Employees’ State Insurance Corporation”.

Mr. Suffer: Hey, that is not our botheration. Let us celebrate our victory in our mission to destabilise the social security system of the nation. We are not Mahatma Gandhi. I wonder whether he would have fought for independence if only he had known that people like us would be roaming around in the independent India manipulating the bureaucrats to our will, which is in fact the will of our pay-masters, the ultra and greedy rich.

Mr. Wall:  I understand. I find that there is no way for the nation to extricate itself from the web woven by you to destroy the social security system. Am I correct?

Mr. Suffer: True. As things stand,  the enemies of the working population, the ultra-rich who have already cornered more than 75% of the national resources  are commanding the politicians in power and demanding the laws they want in the manner in which they want them. It is as per their desires, I have woven a spider-net to trap and destroy the organisation which provides proper security-net to the working population. Yet, the social security system can be retrieved from the hands of these ultra rich, if the  Parliamentary Standing Committee on Labour directs the bureaucrats to have a relook at the Cl. 2 (80) of the Bill on the Code on Social Security, 2019 (Bill No. 375 of 2019) and to delete the following from the definition therein for the term ‘wages’:

    1. The phrase ‘any conveyance allowance or” appearing in the Exclusion Clause (d) of the definition has to be deleted;
    2. The phrase ‘house rent allowance” appearing in the Exclusion Clause (f) of the definition has to be deleted;
    3. The phrase ‘any overtime allowance” appearing in the Exclusion Clause (h) of the definition has to be deleted;
    4. The phrase ‘any commission payable to the employee” appearing in the Exclusion Clause (i) of the definition has to be deleted;
    5. The first proviso should be totally deleted as it does not have relevance in a social security enactment. In other words, this proviso starting with the phrase “provided that for calculating” and ending with the phrase “added in wages under this clause” requires to be deleted in toto.

Mr. Wall: (After remaining silent for some time) Hey, Mr. Suffer! C’mon, let us go home. You have drunk too much. Your eyes are red.

Mr. Suffer: Yeah, yours are red too. (He tries to make a move reclining himself on the shoulders of Mr. Wall)

Mr. Wall: No. Yours are redder. Redder, much more.

(Lord Yama Dharma Raja looks at Chitragupta and nods at him to move on. Chitragupta notices that the eyes of the Lord are red.)

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Innocent MPs Vs. Wily bureaucrats – Episode 3

Excerpts from the letter sent to the authorities on the unlawful and unwarranted inclusion of the phrase “Nursing and Para-medical” and the word “Gazetted” in Clause 24 (8) of the Code on Social Security, 2019 (Bill No. 375 of 2019) without any explanation for it anywhere in the Bill.

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2. I submit that although the aforesaid Clause 24 (8) has been modelled on the existing Sec. 17 (3) of the Employees’ State Insurance Act, 1948, the inclusion of (1) the phrase “Nursing and Para-medical” and (2) the word “Gazetted” therein is unwarranted either by operation of any law or because of any practical problem which could arise in the enforcement of the existing law. The simple fact is that this proposition   under Clause 24 (8) is purely unwarranted and has not been made keeping public interest in view.  There had been no in-depth study for making such a modification in the existing procedure permitted in the  ESI Act. The proposition made, now,  through the Clause 24 (8) of the Code on Social Security is arbitrary and hence unlawul.

3. The original ESI Act did not exempt even the medical posts. All appointments to posts corresponding to Class I and Class II posts under the Central Government were required to be made only in consultation with the Union Public Service Commission. The then Sec. 17 (3), i.e., the provision that was in force upto 26.01.1985, read as under:

“Every appointment to posts corresponding to Class I and Class II posts under the Central Government shall be made in consultation with the Union Public Service Commission”

4. As the classification of the posts based on Class was changed as a matter of policy by the Central Government, the subsequent amendment of 1984 reflected that policy decision and the amended provision which came into effect from 27.01.1985 read as under:

“Every appointment to posts corresponding to group A and group B posts under the Central Government shall be made in consultation with the Union Public Service Commission”.

5. The provisions of Sec. 17 (3) of the ESI Act, as quoted supra, were in accordance with the Art. 320 (3) (a) of the Constitution of India read with the Proviso thereto and the provisions in the UPSC (EFC) Regulations, 1958 (As amended).

Unwarranted amendment in 1989 and later regrets:

6. It was only in the year 1988 that a very big lobby that had been canvassing for a long time for exempting the medical posts from the purview of the UPSC, succeeded in its venture, for reasons which were specious. The UPSC had also accepted the proposal for it. The resultant amendment of 1989 saw the said Sec. 17 (3) of the ESI Act modified as under:

“Every appointment to posts (other than medical posts) corresponding to group A and group B posts under the Central Government shall be made in consultation with the Union Public Service Commission”.

It was later found that the reasons recorded earlier for amending the Sec. 17 (3) thus, to exempt the medical posts from the purview of the UPSC, were improper and wrong and the amendment unnecessary. The then Director General regretted later the amendment of 1989. There had been various unwarranted pressure on the honest Director Generals thereafter.

Unwarranted amendment in 2009 and later regrets:

7. Similar misadventure was there, again, twenty years later, in 2009. That was about the establishment and running of medical colleges by the ESI Corporation. And a Bill (Bill No 66-C of 2009) was tabled on the Lok Sabha to amend, inter alia, Sec. 59-B in the ESI Act to pave way for establishing such medical colleges by the ESI Corporation. A strong lobby, had been canvassing from the year 2007 onwards, through the Standing Committee and the ESI Corporation, for constructing large number of medical colleges. But after frittering away thousands of crores of the fund of the organisation, the same bodies recorded their regret, in the year 2015, and confessed that the ESI Corporation did not have core competency and that the objective of Sec. 59-B was unlikely to be met. The Minutes of the meeting of the Corporation on 05.01.2015 would testify to this fact. The ESIC was gifting away, subsequently, the mammoth buildings constructed at a huge cost to State Governments.

8. Taking wrong decisions first, making herculean efforts to amend the Act by informing, misinforming and disinforming the Parliament, and then regretting the decision after realising the wrongs committed earlier did not remain a one-time phenomenon. It has become a recurring feature as could be seen from the contents of the present Bill No. 375 of 2019 in the Lok Sabha.

Unwarranted meddling, again, in 2019:

9.  Now, ten years later, in 2019, another attempt has been made to yield to another lobby. The proposition for the inclusion of the phrase “Nursing and Para-medical” and the word “Gazetted” therein has no legitimate justification at all. It is the indicator of yielding to such a lobby. And the regrets will be coming later. This is not only in violations of the provisions in the UPSC (EFC) Regulations, 1958 (as amended up to 07.10.2009) but also not necessary, in public interest.

10. I, therefore, submit that it is only right and proper to take action at least at this stage to prevent such a defective Clause from becoming law by deleting the said word and phrase from the proposed Clause 24 (8) of the Code on Social Security, 2019,  and, consequently,  take  action to prepare the said Clause identically on the lines of the existing Sec. 17 (3) of the ESI Act, 1948.

11. It is a fact that the Bill No. 375 of 2019 does not explain how and why the phrase “Nursing and Para-medical” and the word “Gazetted” have been added all of a sudden in Clause 24 (8) of the Code on Social Security, 2019 without explaining the need for it, either in the ‘Statement of Objects and  Reasons’ or even in the ‘Note on Clauses’.

12. The ‘Statement of Objects and Reasons’ is totally silent on this issue. The ‘Note on Clauses’ contain only a laconic observation that “Clause 24 of the Bill seeks to provide appointment of Principal Officers and other staff of the Corporation”. It is very clear that the Legislature is just ill-treated by the Executive.

UPSC (EFC) Regulations violated by the ESIC:

13. It is essential for the Executive to convince the Legislature about the necessity that had arisen, from the perspective of the Executive, to make such additions. But the Executive has deliberately omitted doing so, in the matter of including the Nursing and Para-medical staff in the said Clause 24 (8). The bureaucrats have inserted these additions silently and without inviting the particular attention of the legislators for such an addition, especially when the Recruitment Regulations for the post of Nurses have been amended only in July 2019, in accordance with the law on the subject and, accordingly, conceding the role of the UPSC in the matter of appointment and promotion of Nurses in Group B and A.

14. In fact, the proposal for such an amendment was sent by the ESI Corporation, after inviting comments from the stakeholders two years ago, on 04.05.2017, and the UPSC, has given its concurrence to those amendments as per its letter F. No. 3/12 (8) /2019 – RR dated 05.07.2019 and has, thereby, assumed jurisdiction over the appointment and promotion of Nursing personnel in the ESI Corporation. The salient features of those amendments were:

a. The posts in the Nursing cadre were re-designated and re-classified as Nursing Officer ( Group B ), Senior Nursing Officer (Group B) and Assistant Nursing Superintendent (Group A).

b. The recruitment process in respect of all these posts would go to the UPSC.

c. The DPC meeting would be conducted by the UPSC and a member of the UPSC would be the Chairman of the DPC.

15. When all these actions are facts on record, there should be convincing reason advanced by the ESIC in the ‘Statement of Objects and Reasons’ and the ‘Notes on Clauses’ accompanying the Bill No. 375 of 2019, for deliberately violating the provisions of the UPSC (EFC) Regulations, 1958 and trying to usurp the powers of the UPSC. But the Bill concerned is totally silent on the issue.

Legislative Policy, a pre-requisite for Legislative Drafting, kept secret:

16. The Parliamentarians are entitled to know who made what changes in this Clause and who advised whom to insert the phrase “Nursing and Para-medical” and the word “Gazetted” in the Clause 24 (8) of the Bill No. 375 of 2019. The desire of the bureaucracy to keep this information secret is unlawful and impermissible. The legislature should always be, invariably, informed of the specific reasons behind the deletion of existing words and phrases and insertion of these new words and phrases in the already existing provisions. The legislative policy behind such a proposition should be made known to the Legislature beforehand. That has not been done in this case.

17. The procedure of drafting legislations require 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 impugned Code, is why the Executive has not made the concerned ‘legislative policy’ also known not only to the public but even to the Legislature. The Executive has not informed the Legislature about the direction in which the draftsman was advised to make a move, while drafting the Bill No. 375 of 2019. And that is unlawful.

The strange insertion of the word ‘Gazetted’:

18. It is submitted that the word ‘Gazetted’ inserted in Cl. 24 (6) of the Bill No. 375 of 2019 restricts the jurisdiction of the UPSC in respect of Groups B posts, which jurisdiction is now available under the existing Sec. 17 (3) of the ESI Act. The proposed law is that “Every appointment to posts..….corresponding to group A and group B Gazetted posts under the Central Government shall be made in consultation with the Union Public Service Commission”. This inclusion of the word ‘Gazetted’ in Clause 24 (8) in the Bill concerned is not at all necessary when the UPSC had already assumed jurisdiction over all the Group B Non-Gazetted posts also, in the Stenographic cadre as well as in the Nursing cadre. Moreover, no explanation to justify such an inclusion has been given either in the “Statement of Objects and Reasons” or in the “Notes on Clauses” accompanying the Bill. The draftsman did not think it necessary to adduce reasons and convince the law-makers for such an inclusion. His action and inaction are improper and unlawful and is a serious misconduct.

Inaction of the Ministry of Law:

19. Moreover, it is shocking that the Legislative wing of the Ministry of Law & Justice had not considered it necessary to probe into the legality or otherwise of this kind of silent insertion of the phrase “Nursing and Para-medical” in the Bill No. 375 of 2019, especially when the legislation, the Code on Social Security, 2019 is not a new one but one intended only to replace the ESI Act, 1948 and 8 others. Besides, the Ministry of Law ought to have made the Ministry of Labour & Employment explain its stand, about the absence of explanations to such commissions and omissions in the ‘Note on Clauses’ and the ‘Statement of Objects and Reasons’ which accompanied the Bill.

Observations of the Apex Court:

20. It is submitted that the Clause 24 (8) of the Code on Social Security, 2019 deals with the policy pertaining to public employment. Such an important policy cannot be evolved without there being a transparent legislative policy. It is only when the Bill in question is compared with the aforesaid legislative policy, one would be able to know whether the draftsman had performed his role right or had made such commissions and omissions in the draft Code to sabotage the policy.

21. It would be appropriate to recall in the context what the Hon’ble Apex Court had said, in Ramana Dayaram Shetty vs. The International Airport Authority of India and others (04.05.1979). Drawing support from the proposition laid down in M/s. Erusian Equipment and Chemicals Ltd, Hon’ble Supreme Court had observed as under: “This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or …., the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant.”

Prayer

22. The phrase “Nursing and Para-medical” and the word ‘Gazetted’  inserted in the Clause 24 (8) of the Bill No. 375 of 2019 would adversely affect the chances of employment of the aspiring candidates of the nation in the ESI Corporation, if and when the Bill becomes law, without proper modifications. It is unnecessary and totally unwarranted to take the jurisdiction of the UPSC away from the Group B posts in the ESIC. It is not in public interest too.

23. I, therefore, request you to kindly re-examine the issue and set things right in the interest of the nation.

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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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The Drafting Committee of the Constitution Vs. The Drafting Team of the Labour Code !

Lord Yamadharma Raja was taking rounds of the universe. Suddenly,  the Lord stumbled upon the letter  dated  12.05.2017 of the Ministry of Labour & Employment which explained the modus operandi adopted by the Drafting Team of the Labour Code put out in public domain on 16.03.2017. He was shocked. He immediately ordered Chitragupta to convene an Emergency Session of His House for discussing the issues involved.

The anxious Lord, in a state of shock, rushes for the Emergency Session !

The House is already full, when the Lord arrived there. All the invited participants, brought in both from the otherworld and netherworld, remain assembled there carrying a copy of  the MOL&E letter dated 1205.2017 in their hands.

On His being seated, the Lord searches for B.R.Ambedkar and looks at him. Ambedkar rises up and explains his understanding of the letter dated 12.05.2017 of the MOL&E.

Ambedkar:  My Lord! I understand the unease of the Lord. I was also shocked on seeing this letter dated 12.05.2017 of the MOL&E and the liberty, allegedly, given to the Drafting Team of the Labour Code.  I had been the Chairman of the Drafting Committee of the Indian Constitution itself. I know for sure that I had never had this kind of liberty to write the Constitution in the manner in which I wanted. The Drafting Committee went about its way on the basis of the Objectives Resolution moved by Jawaharlal Nehru on 13.12.1946 and adopted unanimously by the Consembly on22.01.1947 (Note **1). There must be some guidelines and specific parameters to be given to every Drafting Committee by the legislature. The Drafting Committee must work within that frame work.

But, the letter of the MOL&E shows that the Drafting Team of the Labour Code had not been given any such legislative guidelines. This Drafting Team had prepared the draft Labour Code without even understanding the fact that it is snatching away the already existing benefits to the working population. What is even more shocking is that the Ministry has come to town with this incomplete draft and are asking the people to explain their stand on it, without telling the people why and where they have made changes, additions, deletions and insertions.

If the team had done its work for bona fide reasons, it would have given appropriate explanatory Notes with reference to each and every section in the draft Labour Code, as foot note on every page, to invite the attention of the readers to understand the modifications done. These are rudimentary principles of legislative drafting. But, the Drafting Team of the Labour Code has not done so. I feel that the manner in which the MOL&E is repeatedly attempting at justifying this slipshod  work, shows that the Drafting Team is not at fault. But, there is an invisible force which is driving the Drafting Team to write the draft Labour Code, the way it has been done. Because, left to them, the officers would not venture into such misadventures. They would go by procedures laid down. For, they know they are accountable, otherwise.

Jawaharlal Nehru: Yes, My Lord ! Ambedkar is right. These are rudimentary principles of law making. The Chairman of the 17th Law Commission of India, Mr. Justice. M. Jagannatha Rao, 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.

Vallabhbhai Patel: My Lord ! The draft Labour Code is aimed at reducing the benefits already provided to the working population. The party in power, therefore, does not want the people to know the truth. That is why the draft Labour Code has been prepared without explanatory notes. Now, they would propagate and claim that they are ensuring transparency by putting their draft on the website and inviting objections and suggestions. But, they have hidden their intention from being easily known to the public, by not providing explanatory notes for the omissions and commissions. The people behind this draft Labour Code are clever and enjoy their cleverness, tact and tricks. But, they do not have empathy towards the working population. That is definite, as could be seen from the contents of the draft.

Lord: But, the MOL&E refers to the Report of the Second National Commission on Labour and tries to claim that the draft Labour Code is “in line with the recommendations of” that Report. Can’t you treat that Report of the Second National Commission on Labour as the ‘legislative policy’ ?

Patel: We cannot, My Lord! Nowhere in the report of the Second National Commission has it been recommended to reduce the Dependants Benefit from the present 90 % to 50%. Nowhere has it been recommended to stop giving benefits to the employees who sustain Employment injury when they work to meet certain contingencies, as mentioned in Sec. 51-B to Sec. 51-E of the ESI Act, 1948. Nowhere has it been recommended to include an omnibus exemption clause as Sec. 1.8 to enable every employer to get exemption from the entire Labour Code itself. There are many such dangerous provisions in the draft Labour Code. I am certain that these have been inserted only with diabolical intentions to make the ultra-rich people to make money by exploiting the downtrodden segments of the society. The intention behind this Labour Code is mala fide.

Lord: But, the reply of the MOL&E dated 12.05.2017 shows that the “Code is striving for a new concept of ‘Universalising the social security benefits”.  How can you say that the intention is mala fide?

Patel: My Lord ! Universalisation of social security benefits was the aim and purpose of the ESI Act, It was specified thus in Sec. 1 (4) of the Act in 1948 itself. But, the progress has to be gradual and the scope for malingering must be negligible. But, without concentrating on running the ESI Scheme corruption-free, the rulers permitted thousands of crores of rupees from the accumulated funds looted, in the name of setting up medical institutions. Construction wing was one are in which rampant corruption was there in the ESIC. Even the CAG had pointed it out in his report No. 40 of 2015. But, the fact was that the  CAG has also been cheated that he could not assess the real extent of corrupt activities. What is more? The Ministry of Labour, instead of filing proper counter in the court of law, wants to extricate itself by claiming that implicating the MOL&E and the Cabinet Secretary in the Writ is a case of misjoinder. These incidents would show that the rulers do not have any real concern about the loot of the public money. Their only concern how to help the ultra-rich to make money in the name of insurance by winding up social security measures.

CAG Audit Report

Lord: Yes, the CAG report shows the extent to which the authorities had gone to spirit away the public money. But, how do you say that the rulers want the entry of private players in the field of social security?

Patel: Yes, My Lord! The word PPP used in the presentations on 02.05.2017 and the manner in which Sec. 88.2, Sec. 89.1. Sec. 90 – 93 have been worded, show not only the desire of the rulers to bring in private players but also the willingness of the rules to provide safe escape route to the defaulting private players, if and when they are caught for their misdemeanour. This is a clear case of rulers aligning with the ultra-rich to exploit the poor. The intention behind such loosely worded clauses can never be for bona fide reasons. Moreover, although it is said that 15 laws are amalgamated, the 16th law, the Pension Fund Regulatory and Development Authority Act has also been brought in. It is only for the purpose of allowing private players to play with social security.

Nehru: My Lord ! The intention is to bring in private players into social security. This is in violation of Art. 41 also. But, the rulers do not care. The pressure from the ultra-rich lobby is not able to be resisted by these rulers. That lobby is not able to provide matching benefits, as given by the ESIC. So, they want to weaken the ESIC and make it vanish. The present day rulers are bending backwards to oblige these private sharks. Instead of working for the welfare of the masses, the present rulers want to make the ultra-rich even richer.

1% own 53%

Adharkar: My Lord ! The private players invoke ‘Exclusion Clause’, for Pre-existing diseases. But, the ESIC does not have any such prohibitory clauses. So, the private players and the brokers engaged by them work overtime to wind up the public institutions that provide social security. The result is the present draft Labour Code.

Patel: Yes, My Lord ! The nation knows how the rulers worked against the public institution, the MTNL and the BSNL, to facilitate the private players to succeed in exploiting the nation. The draft Labour Code is also intended to help the private players to make money through the social security path and that will land the nation only in a mess. It will affect the entire nation. This Labour Code is actually going to convert the labour into slave labour. Already, the rulers have made that attempt through the Bill for safety and health of workers. It has enabled the employer to crush the workers to work longer time in the name of overtime. This Labour Code will make the people of the nation suffer to a great extent.

Lord: But, I find from the letter dated 12.05.2017 of the MOL&E that it is only “a preliminary draft for discussion and, therefore, all suggestions are welcome for improving the draft”.

Ambedkar: My Lord ! That is an attempt at cheating the public. Let them publish the legislative policy on which the Drafting Team worked to prepare this draft. Let them publish the draft Labour Code with proper explanatory notes for each and every section where omissions and commissions have been made with reference to the existing statutes. Unless and until they do so, the claim of the MOL&E that they are welcoming suggestions is nothing but a technique to hoodwink the public. The public should not and cannot be expected to find out where this Drafting Team has hidden what, especially when the Drafting Team has hidden so many things at so many places in the draft Labour Code.  The very absence of the legislative policy and the explanatory notes in the said Code is an indicator of the mala fide intention of the people who made the Drafting Team to prepare the draft thus.

(Ambedkar takes a long breath and then continues)

My Lord ! The Drafting Team is only a hack. But, it has allowed itself to be a hack unwillingly due to undue influence. I recall that I had, on 04.11. 1948 said in the Parliament of India, “I hope the Drafting Committee will be found to have faithfully carried out the directions given to it” (Note **2) . Saadullah, another member of the Drafting Committee said, “We were merely to dress up the Objectives Resolution. How can 7 members thrust their opinions on 308?” (Note **3). 

(Ambedkar takes another long breath again and continues)

And I remember the discussion in the Parliament on 02.09.1953, when I advocated the carving out of Andhra Pradesh and condemned the manner in which Potti Sriramulu was driven to death for that. At that time, I said, “My answer is that I was a hack. What I was asked to do, I did against my will” (Note **4).

Again on 19.03.1955, I said, “I and the Drafting Committee take no responsibility for that. It is not our draft” (Note **5). But, My Lord, the Drafting Team of the Labour Code, according to the MOL&E, has done everything on its own, without ny legislative policy even.

 Lord:  Oh ! What a power to the Drafting Team of the Labour Code !! You say you did not enjoy any such power while drafting the Constitution itself !! Can we say that the Indian democracy has progressed to such an extent that it devolves unlimited powers to Drafting Teams?

Adharkar: My Lord ! It shows their progress in enacting regressive laws. The mala fide intention is explicit, My Lord! The extent of liability of contribution has been shifted from subordinate legislation [ESI (Central) Rules, 1950] to the primary legislation, the Labour Code itself. But, the benefit provisions assured in the primary legislation (Sec. 51-B to 51-E of the ESI Act, 1948) have been made to vanish. The MOL&E cannot defend itself saying that they would provide for more, through their proposed subordinate legislations like Schemes, Rules, Regulations and Licences,  than what is available now to the working population.

Patel: What is even more shocking is the manner in which both the provisions of the Employees’ Compensation Act, 1923 and Employees’ State Insurance Act, 1948 have been allowed to remain in a single statute. That certainly is a regressive method of enacting law for the welfare of the working class. The employees will be allowed to choose between either. That will not be in the interest of workforce.

(A hand is rising in the crowd. The Lord looks in that direction. It was Golwalkar who raised his hand. The Lord nods at him.). 

Golwalker: My Lord ! The information conveyed through the letter of the MOL&E letters dated 24.04.2017 and 12.05.2017 is not true. The Drafting Team must have had a specific and concrete legislative policy. But, that is a secret document. The officers, otherwise, would not have ventured (i)  to reduce the established benefits, (2) to bring in private players in the name of Intermediate Agencies, (3) to drop the word ‘substantially’ in the sly, (4) to insert provisions for subsidy to employers, (5) to provide for escape route to fraudulent private players through weak punishing mechanism, etc., Five officials drafted for the work on 12.03.2015 cannot be said to have invented a totally new system.

Hedgewar: Yes, My Lord! There must have been specific direction given to the Drafting Team regarding the direction in which it should move. Most probably, the direction was to combine all the 15 welfare legislations and make a mess of it in such a way the people do not understand  how private players are going to be benefitted at the cost of the workers. That must alone have been the direction given to the team.

Ambedkar; Yes, it must have been only like that. But, that was not the legislative policy, My Lord! There is no such document physically available.

 Patel: My Lord! The  present set of rulers are more interested in social re-engineering than in the welfare of workforce. That is why they meddle with Labour Laws to make them nothing. That is why they pretend that they do not have any legislative policy.  This Labour Code, is projected by the MOL&E as the brainchild of five officers in the Drafting Team. No team of officers would venture thus. Moreover, this Labour Code is nothing but a recipe for disaster. It will not bring in Social Security but only social unrest. Earlier, in April, 2016, without any objective outlook, these rulers brought in a legislation to amend the EPF provisions. That resulted in the masses rising up in a leaderless protest. The rulers beat a hasty retreat, immediately. Now, they want to reduce the benefits even more. They are not responsive or accommodative or sympathetic to the working population. They are driven by the ultra-rich businessmen  and are ready to placate them by going to any extent.

bangalore-protest-e1461097508841

NDTV

For more: http://www.ndtv.com/bangalore-news/violence-in-bengaluru-as-workers-provident-fund-withdrawal-rules-1397136

A leaderless protest - The Hindu

 

Adarkar: My Lord, please save India from the proposed Labour Code !

 

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Note **1: The Constituent Assembly met for the first time on 09.12.1946. All the members were present. On 13.12.1946, Jawaharlal Nehru moved the Objectives Resolution in the First Session that ended on 23.12.1946. The Objectives Resolution was unanimously adopted by the Consembly on 22.01.1947 in the Second Session that started on 20.01.1947. The progress got affected because of the partition plan in June 1947. But, the Objectives Resolution remained as it was. And it was on On 29.08.1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of  B.R. Ambedkar to prepare a Draft Constitution for India. The Drafting Committee went about its mission on the basis of the said Objectives Resolution and the discussions and resolutions in the Constituent Assembly during the period between 09.12.1946 and the discussions in the four, technically five) sessions of the Consembly that preceded the setting up the Drafting Committee. This Objectives Resolution defined the   parameters within which the Constitution that was to be drafted should be prepared.

Note **2, Note **3, Note **4 & Note **5: Page 33 – Introduction to the Constitution of India – Brij Kishore Sharma.

Image of Lord Yamadharma Raja : Courtesy, web.

RTI Reply from Ministry copy

 

 

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Sinister report of the Second National Commission on Labour: Exposed by the Dissent Note !

“The truth is that the State is a conspiracy designed …… to exploit, ……. its citizens”

– Leo Tolstoy

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What Tolstoy said becomes totally true when we see the conspiratorial manner in which the Labour Code is being brought about. The intended Labour Code is, really, going to be a tool of oppression. It is intended to convert the entire labour force into slave labour. The Ministry of Labour & Employment is indulging in false propaganda through its powerpoint presentation on this issue. The Ministry is hiding many a truth behind the Code. When the Ministry wants to undo the ESI and EPF facilities, it is projecting the noble features of these schemes, as if they are going to be introduced only through the Labour Code. The Ministry which does not come forward to make public the legislative policy behind the Labour Code does not hesitate to cheat the people through the Power Point Presentations which contain a lot of half-truths and misleading statements.

The officials who are held hostages by the power-brokers, are doing their biddings to undo the welfare schemes. But, they hoodwink the people to believe in the contents of Labour Code which is,actually,  intended to benefit the middlemen at the cost of the working population.

The rulers proclaim from the roof-tops that they are  bringing out this Labour Code as per the recommendations of the Second Labour Commission. But, the fact is that the motive of that Commission was sinister.

That fact is established from the very Dissent Note submitted very honestly by the Member Mr. C.K. Saji Narayanan on 21.05.2002.

A few quotes are given below. The complete text of the Dissent Note can be had by clicking on the following link:

Saji dissent

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Mr. Saji Narayanan has done his work honestly, fearlessly, with conscience and without fear. He has rendered his service to humanity right.

It is the duty of every conscientious citizen of the nation to expose the ulterior motive behind the proposed Labour Code and enlighten the masses and help them get their rightful benefits as workforce restored.

People do have the right to demand from those who defend the Labour Code to give point by point reply to the observations of Mr. Saji Narayanan.

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Slave Labour Code : Review by Lord Yama Dharma Raja ! – Episode 1

It’s Heaven! The venue is the Durbar hall of Lord Yama Dharma Raja. He had summoned the souls both from the heaven and the hell to discuss the hullabaloo around the draft Labour Code circulated by the Ministry of Labour & Employment in India, on 16.04.2017. The entire assembly is full and the crowd is overflowing outside the Durbar Hall too to watch the proceedings, which are telecast live too throughout the universe. Sir William Beveridge, who had given the monumental report on Social Security, Prof. B.P. Adharkar, the Father of Social Security in India, and other stalwarts on social security were the special invitees of the meet.  Now, the proceedings!

Lord Yama image

Lord Yama Dharma Raja: “Dear Mr. Beveridge ! What is going on in India? I find there are protest marches in Chattisgarh about some Labour Code? The issue is spreading around, I am told. What is the problem?

Beveridge: My Lord ! The ultra-rich club in India is becoming more and more vicious. They are finding newer and newer methods to loot the common people. The present set of rulers are much more obliging to them than the previous rulers. That is the cause of all the problems in India, now.

Lord: Ultra-rich? What is it?

Beveridge: My Lord ! 1% of Indians have cornered for themselves 53% of the wealth of the nation. They are the ultra-rich.  And, they want to covet even more. The rulers are happy to oblige this greedy rich, for quid pro quo, and betray the trust reposed in them by the common people. These rulers want the votes of these commoners to remain in power. But, they do have no compunction to cheat these commoners by colluding with the rich and ultra-rich to enable the later to loot the commoners. The proposed Labour Code is yet another example of the manner in which the rulers go out of the way to please their ultra-rich monsters, sorry, masters. That is the reason for the social tumult in the offing in India.

1% own 53%

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Lord: What is that Labour Code, after all?

(Adharkar rises up to respond to this question)

Adharkar: My Lord! We had already discussed on 26.09.2015 about the manner in which the rulers under obligation to the ultra-rich went extra mile to amend the Sec. 44 of the ESI Act, 1948 to facilitate privatisation of social security in India. (https://flourishingesic.info/2015/09/26/lord-yama-dharma-raja-discusses-amendment-to-sec-44/). But, they could not succeed in their attempt because the employees’ representatives in the supreme body of the ESI Corporation became  alert to see through the game plan of the rulers. The employees’ representatives had voiced their protest so vehemently that the rulers beat a hasty retreat on 07.04.2015 in the meeting of the supreme body. (https://flourishingesic.info/2015/04/05/kind-attention-esi-corporation-members-please-ask-these-questions-on-07-04-2015/). So, they found a way around. Now, instead of trying to tinker with Sec. 44 of the ESI Act, they are going to club together  as many as 15 labour welfare legislations including among them the ESI Act and the EPF Act and remove the important benefits provided under the ESI Act. They believe that people would not notice their mischievous intentions and the loss of benefits under the ESI Act when they mix all the laws together and take away the benefits provided under the ESI Act.

(At this stage Margaret Thatcher, former Prime Minister of the UK chips in. The Lord looks at her.)

Thatcher: My Lord, What Mr.Adharkar says is true. When I was the Prime Minister of the UK, there was a BBC serial titled, “Yes, Minister”. I used to keep aside all my routine work and watch that serial everyday. It explained to the people and politicians how the bureaucrats used to cheat the politicians in power. The senior bureaucrat, Sir Humphrey, in that serial would train his junior in that art. He would Margaret_Thatcheradvice his junior that if he wanted to something wrong, he must do things in a complicated way so that the people would not understand anything. ”If people don’t know what you’re doing, they don’t know what you’re doing wrong.” But, on going through the draft Labour Code circulated by the Ministry of Labour of the Government of India, that the said advice of Sir Humphrey is used by the politicians and bureaucrats of India to cheat the common people. It is a matter of shame that India which was given independence from the British control goes the wrong way in running the nation. It becomes clear from the text of the draft Labour Code that the nation is going away from civilised way of social life. I was discussing about it with Mr. Jerome Blanqui, the great French economist of the early 1800s. His ideas contributed a lot to the evolution of formal law-making by various states on social security. He is also of the same opinion about this draft Labour Code. The present government of India is helping the greedy rich to exploit the labour class and keep them poor perennially. I am sad at these developments in India”.

(The Lord looks at Jerome Adolphe Blanqui, whose great treatise, ‘History of Political Economy in Europe – From the ancients to our day’, published in 1837 AD, was a remarkable milestone in the evolution of Social Security).

Jerome Blanqui: “Yes, My Lord ! Every society is supposed to move forward to a civilised state. I was fortunate enough to have been born in France where great souls who fought for liberating the humanity had been born and had worked for it. Voltaire, Rousseau and Montesquieu liberated not only France from the tyrants but also the entire humanity from slavish menJerome Blanquitality.  French intellectuals considered that production was “not” something that was “independent of the fate of the workers”. I have stressed the fact that “it is not sufficient for (a nation) that wealth be created, but it must be equitably distributed”. In the view of our French intellectuals, “men are really equal before the law as before the Eternal. The poor are not a text for declamations, but a portion of the great family, worthy of the deepest solicitude”, care and concern. But, I find that the present day rulers of India are moving in a diametrically opposite direction. The nation will, then, be a den of poverty and misery, with the working class having no real right to live a dignified life as they will be treated as ‘commodity’ by the rulers.

Beveridge: The intention of the present day rulers to make the working class a pawn in the hands of the employers has already become public, in the year 2014 itself. Yet, the public has not been awakened to their sinister designs. It was on 07.08.2014, that these rulers introduced a Bill for increasing the spread-over time from 10 and half hours to 12 hours, for enabling the employers to force the workers to  work for about 10 hours a day, to compel women workers to work during night hours, etc., That would prove that India is on the path of retardation while other nations like Germany move forward towards reduced work hours which result in more production.

Blanqui: What is more? These rulers were sadistic enough to call that bill as the Bill for safety and health of workers.picture1

The present Labour Code is also yet another sadistic piece. This is intended to relieve the State of its obligation to provide social assistance in the form social insurance.  Common people will, however, be told that it is an effort towards “simplification, amalgamation and rationalisation”. The rulers would cover up their mischievous intentions by propagating that the Labour Code was to extend the benefits to unorganised labour including the household workers. But, the real intention is to reduce the benefits provided by the ESI Corporation and enable the private players enter into the field of social security and make a mess of it. Commercialisation of social security will result in complication of the process and deprivation of various benefits to the working population. My Lord, kindly ask for the details from Mr. Robert Owen, who is regarded as the Father of Social Security of the World. He did not only plead for the intervention of the governments of various nations to step in and enact laws for the welfare of the workers, but also for international agreement between various nations for enacting such laws. Mr. Louis Rene Villerme, the great physician, who worked tirelessly for the welfare of the working class and their working conditions in 1800s, would throw more light on it. So many illustrious figures had been fighting and canvassing for about 100 years for State intervention to safeguard the living conditions of the working class. All their efforts culminated in various labour laws from 1923 to 1952 in India, overseen by the government. But, all these developments are attempted to be consigned to dustbin by one single Labour Code.

Lord: How?

Adharkar: Yes, My Lord! In the name of amalgamation, the draftsmen of the Labour Code have seen to it that many time-tested benefits provided under the ESI Act vanish into thin air. The ESI Act provides a bouquet of benefits. But, the bouquet has been meddled with in the Labour Code and individual benefits have been separated and are made to be chosen by every employee, telling him that his contribution would be dependent on the nature and number of benefits he wants. That is why the words “not exceeding” have been incorporated in Sec. 20.1 of the Labour Code, while specifying the quantum of contribution payable by the employer.

Lord: In that case, have they made known to the people that the benefits would not be a package but would have to be picked and chosen by the workers?

Adharkar: No, My Lord ! The draftsmen know what they are going to do but are suppressing the complete picture from being shown to the workers.

Lord: Why do they do so?

Adharkar: If they make their intentions or goals known to the public, they would not be able to privatise the social security scheme, as the public would oppose it. They will not, then, be able to please the businessmen who want to enter into the field to make money by squeezing the workers. That is why they say only a few things  in the Labour Code and try to acquire power  to the rulers to do many things, which are against the workers, through sub-ordinate legislations. When people ask about them, they say that they have not prepared those subordinate legislations yet. They have many such subordinate legislations in mind, like, Rules, Regulations, Schemes, Bye-Laws, Licences, etc.,  But, they say that they have not prepared them yet.

Lord: Is it necessary to prepare the subordinate legislations also along with the Code?

Adharkar: No, My Lord ! Subordinate Legislations can be prepared later. But, the primary legislation which empowers the executive to prepare subordinate legislations must be a self-explanatory one informing the people about the goal and purpose of the legislation. The need is more so, when the rulers want to replace the existing legislations. They have the right to compare the present position with the promised scenario in its entirety. But, the rulers do not want to give complete picture to the people, of their proposed legislations.

Lord: Can the rulers do so?

Adharkar: No, My Lord ! They cannot. There is a Legislative Department under the Ministry of Law & Justice. “The drafting of Bills” is the work of the officials of this department (http://lawmin.nic.in/more.htm). The letter dated 24.04.2017 of the Ministry of Labour shows that they do have a “Drafting Team”. That Drafting Team should have been given some directions, in writing, to prepare the Labour Code. It is those directions which would enlighten the people what is in store for them. But, the rulers do not make it public.

Lord: Okay, but when the rulers do not make something public, why do you presume that the Code would be anti-labour?

Adharkar: It is not my presumptions My Lord! There are indications in the draft Labour Code itself that the intentions of the rulers or the Drafting Team are sinister. Besides, the procedure of drafting legislations require 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.  That shows that their intention is mala fide. The wordings of the draft Labour Code also testify to the existence of such mala fide intention. People do not know what benefits would be there for them and what would not be.

(John Foster McCreight, the first Premier of British Colombia and then judge of the Supreme Court raises his hand. The Lord nods at him)

McCreight: My Lord ! The procedure of law-making is the same the world over. “Drafting legislation is an art, not a science. A well-drafted bill results, not from slavishly following numerous arbitrary rules, but rather from thorough knowledge of the subject, careful attention to detail, and adherence to such commoJohn McCrieghtn-sense principles as simplicity, clarity and good organization. In drafting legislation, British Columbia legislative counsel have two goals: (1)  to construct legislation that g
ives legal effect to government policy;  (2)  to communicate the law clearly to the people who are affected by it, the officials who administer it and the judges who interpret it.” Satisfying both goals is often difficult, but that has to be, necessarily, done for every law. “Legislative counsel write law based on the drafting instructions they receive from the sponsoring ministry”. It is simply shocking to find the draft Labour Code of India suffering from various infirmities. I wonder how they want the public to opine on it when it is incomplete and contains so many grammatical errors too, besides serious gaps in “communicating the law clearly to the people who are affected by it”.

Lord: Do you think that the government officials would also cheat the public, because the rulers in power direct them to do so?

Adharkar: My Lord ! The bureaucracy in India is a class apart. Sir Humphrey, the fictional character in ‘Yes, Minister’ is nowhere near them, in cunningness. They would cheat not only the people but also the President. They would disobey the President himself, if his decision is not to their liking. They would, therefore, go to any length to please the bosses they like and cheat the people.

Lord: Surprising !  Can the civil service be so?

Thatcher: My Lord ! It  is so in India.

Abdul Kalam: My Lord ! Let me narrate an incident. One Mahendra Nath Das was imposed death penalty by the Supreme Court. He sent mercy petition to the President of India. I happened to be the President at that time. The mercy petition was placed before me in the year 2005 and I commuted the death penalty to life term. Later in the year 2013, I came to know through newspapers that so many things happened in that case. The order issued by me in the file in the year 2005 had not been enforced. The bureaucrats had kept the file pending for years. It was later put up before my successor Pratiba Patil in the year 2011, and she rejected the mercy petition. She was not informed of the decision taken by me in the year 2005. If she had been informed, she would not have taken that decision. Moreover, there was no scope in office procedure to suppress thAbdul kalame factum of my order to obtain another order from the President. Yet, the central bureaucrats had indulged in that mischief. It came to light in 2015 when the Supreme Court of India examined the case filed before it by the person who faced the gallows. So, Indian bureaucracy cannot be expected to be trusted blindly. They must be kept in check, by effectively making use of the Right to Information Act and by strengthening it further, instead of weakening it.

(The Lord Yamadharma Raja was stunned at the revelation by Dr. Abdul Kalam. He feels concerned about his own problems as the Lord of Justice. He looks at Chitragupta).

President Patil Kalam Das Mercy Petition

Chitragupta: Yes, My Lord ! If only that Mahendra Nath Das had been sent to gallows in 2011, after the rejection of the mercy petition by Pratiba Patil, it would have made our work difficult. It will be difficult for us to decide whether Das was guilty of the crime committed by him or the victim of the crime committed by the bureaucrats who cheated the President to cause his mercy petition rejected. If we have to punish him for his guilt we must send him to hell. If he is considered as the victim of the conspiracy hatched by the Indian bureaucrats we must send him to heaven and reserve the hell for those bureaucrats. We will have to weigh the pros and cons very minutely My Lord!

(The Lord nods his head in approval. He is in deep thoughts).

Lord:  Okay, okay ! I am convinced that the Indian bureaucracy at the centre can be cunning to any extent. Now, may I know what they are doing with this Labour Code?

Adharkar: Firstly, My Lord ! Wherever the ESI Act is there, there will be no need for the Employees’ Compensation Act (formerly, Workmen’s Compensation Act, 1923). But, in this Code, the provisions of the Employees’ Compensation Act are retained in Part I (Sec. 61 to 75 ) and some of the very important provisions of the ESI Act, 1948 have been totally omitted. How can the Drafting Team call the draft Labour Code a process of ‘amalgamation’?

Lord: What are those provisions of the ESI Act omitted to be brought to the Labour Code?

Adharkar: Sec. 51-B to Sec. 51-E My Lord! They have totally omitted these benefits. They do not reply when asked who advised them to do so. This is a very serious conspiratorial measure agains the working population by the Drafting Team and the rulers.

Lord: I understand. Are other provisions okay?

Adharkar: No, My Lord! The Labour Code had reduced the quantum of compensation payable to the person who sustained Employment Injury. The Code assures only 50% as per the EC Act and not 90% as per the ESI Act. A scrutiny of Sec. 63 reveals this fact. This section is only the reiteration of the provision of the EC Act. The benefit provided by the ESI Act is not assured here through the Code. It has been left open-ended depending on the mercy of the rulers. Sec. 63 (1) (a) (b) which has the phrase “whichever is more” indicates that the Executive is at liberty to increase or decrease the rate of Dependant’s Benefit. The continuation of the present 90% of wages (roughly) as Dependants’ Benefit is not assured. How can people give approval to such a legislation My Lord!

Beveridge: Is it because the ESI Act does also have that provision only in the Rule and  not in the Act?

Adharkar: Mr. Beveridge! When the ESI Act was enacted for the first time, the quantum of all these benefits were assured in the Act (as The First Schedule), before seeking the approval of the Parliament. Now, when the rulers want to replace the present ESI Act, they cannot play hide and seek with people. What is the difficulty for them in shifting the quantum of benefit of Dependants’ Benefit from the ESI (Central Rules)  to the Code itself? More so, when they have shifted the quantum of contribution from Rule 51 of  the ESI (Central) Rules ( a subordinate legislation) to the Labour Code (a primary legislation) directly?

Lord: Why do they do so?

Adharkar: The authorities do maintain a cunning silence in this regard, My Lord! They have not attached any Notes to the draft Labour Code explaining why they included something and excluded others. They do not show the draft ‘Statement of Objects and Reasons’ too. They cannot, therefore, be trusted, My Lord!. The rumour is that they might not provide Dependants Benefit equivalent to the present one in future, @ 90%, to facilitate entry of private players in the market of Social Security and enable them to make a lot of profit.

Lord: When the ESIC is paying the Dependants Benefit @90% does is suffer any loss?

Adharkar: No, My Lord ! ESIC was showing surplus consistently. A social security organisation must have such strong surplus. The funds were kept only in government securities.

Lord: Is such a surplus necessary?

Adharkar: Yes, My Lord ! Adequate surplus in an insurance against Anxiety, says the Noble Prize Winner Economist Paul Krugman. It is essential in the insurance field. The surplus in the ESIC was not a flab. Moreover, such a surplus got generated from the 1950s when the ESIC had Chapter VI, providing for Employers’ Special Contribution, collected from all over the nation from the employers who were not in the implemented area. Moreover, the ESIC was managing its funds best, My Lord ! This was appreciated by the newspaper Economic Times too in February 2003. The system of managing funds was improved in the subsequent four years, by collecting daily offer from various nationalised banks every afternoon and deposting the money with them in Savings Bank account, instead of Current Account. The method was marvellous My Lord!. But, these essential facts are either not understood by the elements which run down the ESIC or they pretend not to know that. Because, their motive in bringing the Labour Code is ulterior, My Lord!Economic Times 5 2 2003 copy 2

Lord: I understand. When will the earthlings mature? What is the reason for the desperate efforts taken now to privatise social security in India in such a cunning manner?

Adharkar: My Lord, the ESI Corporation cannot give any corporate donations to the political parties. So, there is no real gain for the rulers to run the ESIC right. They, therefore, choose to run it down. There had been vicious campaign against the ESIC and the EPFO from 28.02.2015 onwards, when the Finance Minister presented his budget stating, in an arbitrary and unauthorised manner, that these organisations were holding the employees as hostages. When asked under the RTI Act, no Ministry could explain how such an allegation found a space in the Budget speech.

The agents of the money sharks are working over time since then to campaign against these organisations through numerous articles in various newspapers including the Hindustan Times and the Forbes. My Lord, Indian society is going the wrong way. The humanity is going to suffer a lot unless the mala fide designs of the politicians-businessmen-middlemen-bureaucrats nexus is exposed before the public. There are so many mischievous portions in the Labour Code, My Lord! They do not want to examine the disastrous consequence of similar steps taken in Peru and Chile. They are hell bent on obliging the money sharks who want to enter into the insurance field and loot the people who draw upto Rs. 21000 pm. That is the reason for this unseemly hurry in bringing out this Labour Code, in such a peremptory manner.

Lord: Yeah! Let us analyse them deeply tomorrow!

(Lord Yamadharma Raja rises up. The assembly is dissolved)

(Contd.)

 

Images: Courtesy,  Wikipedia

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Slave Labour Code: Questions for the meeting on 02.05.2017 !

Note on the draft Labour Code submitted to the Secretaries of State Governments for their consideration before they attend the meeting convened by the Secretary, Ministry of Labour & Employment, Government of India on 02.05.2017 at 03.00 PM in New Delhi.

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To download PDF file, please click on the following image:

Note for State Secretaries page 1

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1. The Ministry of Labour & Employment of the Government of India has proposed “to have a consultation Meeting” with the Secretaries of all the State Governments and Union Territories on 02.05.2017 in New Delhi. It has been mentioned in the letter No. Z -20023/13/2015-LRC dated 24.04.2017 of the MOL&E that this is a “consultation process for deliberations on the Code on Social Security & Welfare”. Every State Government has been invited to depute the Secretaries in charge of the four departments, viz., Labour, Health, Social Welfare and Woman & Child Development.

2. It becomes clear from the Ministry’s letter dated 24.04.2017 that this is the first time the draft Labour Code is officially taken to the knowledge of all the State Governments by the MOL&E. They have not been given time to consult the employers, employees, workers, legal experts, political leaders of their States. It is, practically, difficult for these Secretaries to go through the entire draft Labour Code personally and understand the ‘system’ that is proposed to be put in place. It is only fair that the States must be given time adequate enough to study, understand and arrive at their opinion about the issues involved. But, the issue is hurried through by the MOL&E for inexplicable reasons. Speed and surprise are anti-thesis to democracy when discussing the welfare measures of the people of the nation. Continue reading

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Labour Code: Premature one ! Bizarre method of law-making !! Draftsmen ignorant of destinations !!

Applications were sent on 04.04.2017 and 05.04.2017 under Sec. 6 of the RTI Act, 2005 seeking certain information pertaining to the Labour Code.

The following was requested for, in the application dated 04.04.2017:

  • “Kindly supply the relevant pages of the ‘filenoting’ / ‘office note’ / ‘report of the committee of experts’ / ‘report of the of officers’ in which such an explanation justifying their suggestion to drop the word ‘substantial’ in Sec. 94 in ‘Part L’ of the Code is found recorded.”

 

Again, the following was requested for, in the application dated 05.04.2017:

  • “Kindly supply the copies of the format of the proposed License (containing the Terms and conditions imposed by the Government on the agencies) referred to in Sec. 88 and 89 of the said Draft Labour Code on Social Security & Welfare;
  • Kindly supply the copies of the proposesd Regulations and the Schemes referred to in Sec. 24 of the said Draft Labour Code on Social Security & Welfare”.

For more: https://flourishingesic.info/2017/04/06/labour-code-plea-for-publicising-draft-rules-regulations-schemes-license/

It was clearly mentioned in the Appendix to the Application dated 05.04.2017 as under:

“When, the present piece of legislation, the proposed Labour Code, is intended to replace the existing social security machinery, people become apprehensive and want to know whether they stand to gain or lose by that new system.

2. The Executive, therefore, cannot bring in a truncated version of the proposed system in the form of Code and ask the MPs to vote. But, that, exactly, is what the bureaucracy has, exactly, done through this Draft Labour Code. Sec. 24.5 of the Code enumerates the nomenclature of the benefits that would be made available to the workforce. But, the quantum of benefits and the nature of machinery through which such benefits would be provided have not been made known. These issues have been kept reserved for the Executive to make Subordinate Legislations later.

3. But, in all probability, the draft subordinate legislations, (a) the Rules, (b) the Regulations including the termns of conditions of license and (c) the Schemes would, already, have been prepared and kept in the Ministry. The non-publication of those drafts along with the Draft Code, for public debate gives the bona fide impression that the forces which are behind  this move, want to hide many vital aspects of the proposed social security system away from public knowledge until they get the Code passed by the Parliament and acquire power to do whatever they want through Subordinate Legislation. Or, i.e., if they have not yet prepared those draft Rules, draft Regulations, draft Schemes and draft licences, it would imply that these forces want to destabilise the present social security structure and bring in something which is not known even to themselves.”

Our apprehensions have become true.

The entire draft Labour Code is the handy work of some bureaucrats or middlemen who do not know the niceties and intricacies of not only the subject matter of the Code but also the technicalities of legislative drafting. What is more, they do not know what their ultimate aim is but have attempted to write something as Labour Code and create unnecessary social unrest in the nation.

The reply received from the Ministry in their letter No. M. 13014 / 01/ 2017 – LRC dated 25.04.2017 testifies to this fact.

RTI Reply from Ministry copy

This is not the stage appropriate and proper for a Ministry to call for the opinion of the public. Nor it is a correct stage to call for the meeting of the Secretaries of all the State Governments on 02.-5.2017.

The Government of India must, therefore, withdraw this premature draft Labour code immediately. 

 

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Labour Code: Whittling down accidents covered by the ESI Act, 1948 ! Providing subsidy to employers !!

To

The (CPIO- Labour Law Reforms),

Ministry of Labour & Employment, New Delhi – 110001

 

Sub: Application under RTI Act – Draft Labour Code on Social Security & Welfare – details of the committee that drafted the Code and the omissions in Sec. 61 and inclusions in Sec. 22 – requested.
Ref: Memo No. No. Z-13025/ 13 /2015-LRC dated 16.03.2017 of the Ministry of Labour & Employment.

Sir,

I invite your kind attention to the reference cited in which the Draft Labour Code on Social Security & Welfare was put on public domain on 16.03.2017,  in the website of  the Ministry of Labour and Employment, Government of India, New Delhi and request you to please furnish the following information under Sec. 6 of the Right to Information Act, 2005:

  1. Kindly intimate the designations of the officials who were entrusted with the work of preparation of the Draft Labour Code which has been communicated to the public by the Ministry of Labour & Employment, through the abovementioned letter dated 16.03.2017 (I do not want the names of those officials, if that information is considered to be a confidential one, while generally it is not so).
  2. Kindly intimate the names of the employers’ representatives or consultants who were roped in for preparing the said Code.
  3. Kindly intimate the names of the employees’ representatives who were roped in for preparing the said Code.
  4. Kindly supply the copy of the filenoting or any other record that would contain the justification (recorded by those persons who were entrusted with the work of preparing the aforesaid Draft Labour Code) for omission altogether, from the proposed Labour Code, of the provisions contained in 51-B, 51-C, 51-D and 51-E of the ESI Act, 1948, while Sec. 51-A of the ESI Act, 1948 has been inserted as Sec. 61.3 in the Code [Sec. 51-B deals with Accidents happening while acting in breach of regulations, etc. Sec. 51-C deals with Accidents happening while travelling in employer’s transport. Sec. 51-D deals with accidents happening while meeting emergency].
  5. Kinldy supply the copies of the filenotings or any other record of those who were involved in the process of preparing the said Code justifying the inclusion of phrases for providing “subsidy” to “the employer” under Sec. 22.6 (b) from the Welfare Funds by the State Board and to provide for “defraying the cost” of “provision of cost of transportation to and from work” for the employees under Sec. 22.6 (d) (vi).

I send herewith Postal Order for Rs. 10 being the fee payable under the RTI Act, drawn in favour of the PAO(MS), Ministry of Labour & Employment, New Delhi.

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