Tag Archives: Labour Code

Drafting Team was trying to finish off the EPFO. Was the CPFC aware?

The Ministry of Labour & Employment had reconstituted the “Group responsible for the Labour Code on Social Security & Welfare” two years ago, as per the Letter No. Z-13025/ 13/ 2015 L.R Cell dated 12.03.2015 of the MOL&E.

This group, called as the Drafting Team, had been working for the past two years and has brought out the present ‘draft Labour Code’ which was put in public domain on 16.03.2017 by the MOL&E.

The CPFC had also deputed an RPFC to be part of the Drafting Team “on full time basis for completing the exercise”.

Was the CPFC aware of the what work was being done by the Drafting Team during the period of two years? Was he ever briefed by  his RPFO about the direction in which the Drafting Team was going about its work,  to finish off the EPFO ?

An application under the RTI Act:

(Click on the image and download the document)

EPFO Copy

 

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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 19.03.2015, 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 !

 

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

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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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%

1 % owns

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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Labour Code: The fine art of poor-bashing ! – Part 1

“In short, there are myriad things you can to challenge poor-bashing. Every time you do it, you’re working on cutting edge of a larger movement that’s struggling for justice for people who are poor”

– Jean Swanson – Page 184 –
Poor bashing: The politics of exclusion

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First World War took place, because of the ignorance of the rulers of various nations of the world of the importance of taking care of the legitimate needs of the working population around the world. The political rulers went after money-bags and ran the nations to suit the requirements of the businessmen, obviously for the quid pro quo. The gap between the rich and poor widened so greatly that the simmering anger provided the base for social and political unrest.

The result was the World War I. Nothing further is needed to testify to this basic reason for the WW I, than the very Charter of the International Labour Organisation (The preamble of the Constitution of the ILO) founded in 1919.

The Charter declares to the world, that “universal and lasting peace can be established only if it is based upon social justice”. It reiterates that “the peace and harmony of the world are imperilled when the conditions of labour exist involving such injustice, hardship and privation to large numbers of people”. Proper labour laws alone would secure the “permanent peace of the world”, as identified by the ILO.

ILO Charter

1% cornered 53% nation’s wealth 

But, the Indian politicians do not care. They are unabashedly placing the entire government machinery at the feet of the ultra-rich businessmen. These politicians do not care to explain to the people, nor do they care to ponder over for themselves, how and why the top 1% of the  richest own, as on 14.10.2015, 53% of the country’s wealth. These politicians do not also care how the share of “the poorer half of the population” in the nation’s wealth declined to 4.1% from 5.3% during 2000 and 2015.

The Indian politicians are controlled and managed (or, to put it better, employed) by the ultra-rich businessmen to do their biddings. And, the politicians are happy to be so, happy to remain the slaves of those masters in business.  Corporate financing is all about the eagerness of the politicians to be in politics in India. We do not see David Cameroons shifting their own personal effects, after being in power as Prime Minister. Our politicians do not care for the pains of the poor.

Cameroon vacating

David Cameroon

These politicians believe that the masses do not count for anything and that they can fool the masses, at any time, and poll their votes. And, in order to aid such politicians in fooling the people, large business firms have ventured into the media business too, even through “hostile take-overs” of visual and print media. These ultra-rich businessmen use their media-power to manipulate public opinion to promote the image of their slaves in politics. The politicians and the b

ibevine001p1

Ernest Bevin

usinessmen are happy with this kind of reciprocal arrangement between themselves. And that is the cause of all the troubles of the poor. But, the sufferings of the poor is immaterial for these two players who go about their single-minded pursuit only of profit and money for themselves.

In the aftermath of the World War II, Ernest Bevin, the UK Labour Minister stressed, while addressing businessmen, on the need for providing basic economic security to create fairer conditions of living for the working population also. “If profit can be the only motive, the natural corollary is economic disorder, and economic disorder will bring you back to the same position you are in now, ever recurring, and future generations will again pay, in the same form or another, the bitter price we are paying now…” he said.

In the year 1944, the in its 26th session, the ILO which met at Philadelphia had examined the issue and reiterated the same fact. The ILO  warned the entire world against exploitation of the poor by the rich.

Labour CodeThe Declaration of Philadelphia had also said that the principles set forth in that declaration was “fully applicable to all people everywhere” and its observance or otherwise in any nation is “a matter of concern to the whole civilised world”.

The present Labour Code brought out by the Government of India is totally loaded against the poor. It, simply, treats labour as a commodity and helps only the ultra-rich to exploit whatever money the poor do have.

Some of the apparent defects of the Code are:

1. It drastically reduces the disablement benefits.
2. It confers unfettered power on the Executive to decide the quantum of Sickness Benefits.
3. The Extended Medical Benefit and Extended Sickness Benefit, for which the ESIC is famous for, has been removed from the Social Security scene in toto. ESIC pays  While the ESIC gives medical benefit and pays cash benefit too, for about two years and 309 days respectively after the contribution ceases to be payable for the insured persons suffering from various long term diseases as per Reg. 103-A, the proposed Code is totally silent on the issue.
4. Representation of the employers and employees in the decision-making bodies has been so reduced that it makes a mockery of the Council which is projected to be a tripartite body.
5. In the name of extending the facility to homeworkers, the Code makes every householder an employer, who will be subjected to inspection and also prosecution.
6. Enabling politicians in power to exempt almost any and every entity from coverage, by removing the word “substantially” from Sec. 94 of the Code.
7. Enabling the politicians in power to prescribe for themselves the power to impose penalty on the employers.
8. Entertaining notions to hand over the social security arena to private money bags and attempting to reduce the benefits payable and paid to the workforce by the ESI Act, at present.
9. etc., etc.,

 “India performed poorly in social security” – ILO

Already, the ILO has, in November 2010, had blasted India for its notorious informal labour practices. “India has performed poorly in providing social security protection to its people until recently with ‘very high vulnerability’ to poverty and informal labour practices in the world, according to a report released by the International Labour Office (ILO) today” Times of India – 16.11.2010. In its first comprehensive ‘World Social Security Report’, the ILO has suggested that India has not done enough in the arena of social security protection, which is reckoned as the “human face of globalisation, in line with its fiscal status”.
In fact,  the only thing that the proposed Labour Code can be made use of is to use it to demonstrate before the world how a Welfare Law should not be made.

ESI Act, gives effect to Universal Declaration of Human Rights

Art. 22 of the Universal Declaration of Human Rights says, “Everyone, as a member of society, has the right to social security”. The High Court of Madras has said, “the object of the (ESI) Act is … to give effect to Art. 1 of the Universal Declaration of Human Rights, 1948, which assures human sensitivity of moral  responsibility of every State that all human beings are born free and equal in dignity and rights” (C. Indira Vs. Senthil & Co. – 2009 (2) LLN. 302).  The same court has said of the ESI Act, that “the object of the legislation is to protect the weaker section with a view to do social justice” (Chandramathi Vs. ESIC – 2003 (4) LLN. 1143).

ESI Act, for a new social order with corrective and distributive justice.

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

Let the rulers heed to Art. 41 and Art. 42

Art. 41 of the Constitution of India says that “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right ….. to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. The Constitution thus, gives direction to the State that in cases of Sickness, disablement and in other cases of undeserved want, the State is to provide “public assistance”. The State cannot, therefore, make provisions for “private assistance” and absolve itself of its Constitutional responsibility.

Inequalty costA BBC study revealed that inequality is the basis of so many social problems. ESIC is an effective instrument in the hands of governments in India to prevent the problems that arise due to inequality.  Let the rulers listen to the sage advice of  Prof. Adharkar, the Father of Social Security in India, and follow the 8 Fundamental Principles laid down by him and fulfil his 4 Assumptions to make Social Security in India real and really beneficial..

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Labour Code: Plea for publicising Draft Rules, Regulations, Schemes & License !

05.04.2017

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 – copies of Rules, Regulatios and Schemes – 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. The Draft Labour Code published is not an all-inclusive document and there are many grey areas. As the nature and the quantum of various benefits (except the Disablement Benefits and Dependants Benefits) have not been specified in the Code/ Act itself, the relevant subordinate legislations (the Schemes, Rules and Regulations including licenses and essential formats) should be put in the public domain along with the Code. But, it has not been done so.

  1. I, therefore, request you to kindly furnish the following information under Sec. 6 of the Right to Information Act, 2005 or put them in public domain in the website of the Ministry along with the Draft Labour Code concerned.
  • 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.
  1. I have to state that although it is not necessary to provide, the reason why a citizen asks for certain information as per the RTI Act, 2995, I feel that the facts narrated in the Appendix would facilitate the authorities to supply the information requested for besides highlighting the extent of public interest involved in making the contents of the aforesaid documents public.
  2. 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.

Yours faithfully,

Encl: Appendix and Postal Order

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Appendix

Facts that necessitate seeking information regarding the proposed Subordinate Legislations, the Rules, the Regulations (including the license formats) and the Schemes

The Act of 1948 Vs. The Code of 2017:

1. When the ESI Act was enacted in the year 1948, it was venturing into a new area. So, the Act itself assured the people, through its Sec. 46, of the five major kinds of benefits and also the quantum of those benefits that would be made available through the enactment. It was later, in the year 1989, that the quantum of benefits, quantum of contribution and wage limit  were taken to the Rules to facilitate easy revisions. 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.

A service organisation is converted into business organisation:

4. I submit that the ESI Corporation is not a business organisation preparing profit and loss account. It is a service organisation preparing income and expenditure statement. But, the very wordings of Sections 2.58, 2.68, 2.101, 2.109, 2.123 and Sec. 88. show that the intention behind the Code is to handover the operative side of the scheme to private businessmen who enter into the field with profit motive.

5. Sec. 88.1 of the Code says that the “Director General may, by granting a License under this Code, permit any organization or person to act as an intermediate agency for all or any of the purposes” mentioned against each of the six agencies enumerated therein. Those agencies are: (a) Fund Manager Agency, (b) Point of Presence Agency, (c) Service Delivery Agency, (d) Benefit Disbursement Agency, (e) Record Keeping Agency and (f) Facilitation Agencies.

6. Sec, 88.3 of the Code says that “an intermediate agency shall function in accordance with the terms of its License and the Regulations”. Sec. 88.4 implies that the terms and conditions of such a license will be “in accordance with the provisions of this Code and the Regulations”.  Sec. 88. 5 says that the application for such a license will be in a specified form.

7. So, the public must be informed of the concept and intricacies of these Agencies-system, and the contents of the Schemes proposed on all the Social Security benefitis. Because, that alone would provide a holistic view of the ‘reforms’ proposed. Because, that alone would make the people know about the real and consequential effect of the proposed Code.

“Obamacare” was allowed threadbare discussion for three years:

8. There cannot be meaningful public debate when all the draft subordinate legislations are not placed before the public. In the USA, when the Obamacare was introdued in 2009 and made law on 23.03.2010, through the Patient Protection and Affordable Care Act (ACA), there had been extensive public debate over it for more than three years  (from 2009 to 2012) before it was enforced after the Supreme Court upheld it on June 28, 2012.

9. It is essential for the Executive to place in public domain a comprehensive Bill covering all aspects of the subject-matter, including the proposed Schemes, Rules  (that would be framed by the Government)  and the tentative Regulations  (that would be framed by the National Council) with reference to the aforesaid Sec. 24.5 to explain the quantum of benefits made available to the workforce and the manner in which the delivery machinery would function.

10. Please therefore, supply the information requested for in Para 2 of the Applicaton either individually to me or by hosting all of them in the website of the Ministry.

11. In the context, I think it appropriate to bring on record the observations of C.K. Allen, in his book Law and Order, (1945). He agrees with the universal fact that Subordinate legislations provide for convenience, flexibility and efficiency with respect to the delegation of such powers. But, he says, that all these arguments regarding convenience, flexibility and efficiency are “sound arguments for delegation within due limits, the kind, in fact, which has always been recognized as a practical and necessary part of our governmental system. But they become unsound and dangerous if they are used to justify the indefinite extension of executive powers. Speed and efficiency may be bought at too high a price, and indeed we should have learned from many examples that the State which makes efficiency its highest god is very apt to become an all-devouring monster.

Apparent defects indicative of unseemly hurry:

12. Apparent defects of various kinds in numerous places in the Bill show unseemly hurry on the part of the authorities to bring out this Draft Code. Besides, the fundamental flaw with this Draft Labour Code is that the Government of India, is trying to make provisions for “private assistance” and absolve itself of its Constitutional responsibility of providing “public assistance” as mandated as per Art. 41 of the Constitution of India.

13. ESI Act is a great provision aimed at rendering distributive justice to the people of the nation. But, that is attempted to be belittled by this Labour Code. Hon’ble High Court of Madras has, in ESIC Vs. S. Savithri 2003 (3) LLJ 250, observed that “The Scheme of the (ESI) Act, Rules and Regulations spelled out that the insurance covered under the Act is distinct and differs from the contract of insurance in general….The Division Bench of the Madras High Court observed that the Act in fact tries to attain the goal of socio-economic justice enshrined in the Directive Principles of State Policy”.

14. Even The Hindu conceded editorially on 01.01.2005 that “The package (of benefits provided by the ESIC) can rarely be matched by private employers on their own because of the heavy costs involved – not to mention the disinclination among employers, with honorable exceptions, to operate health care systems for their workforce”

Fundamental Principles laid down by Prof. Adharkar:

15. Prof.Adharkar, the Father of Social Security in India, had laid down the following as Fundamental Principles, when  a scheme on social security is introduced;

(a). The proposed scheme must not be too ambitious in the  beginning;

(b). It must be simple, clear and straightforward,

(c). It must be financially sound, economical in working and actuarially balanced;

(d). It must minimize disputes and litigation;

(e). It must be workable in the peculiar circumstances of Indian labour and industry;

But, the proposed Labour Code ignores all these principles, which necessitate one to go through the proposed Subordinate Legislations also before arriving at an opinion whether the proposed changes would be an all-encampassing one, workable really  and beneficial to the workforce.

ESI Act itself has the potential for coverage of even homeworkers:

16. The importance of the ESI Scheme to a nation would become evident from this observation. The Act provides security-net to the working population in the organised sector and its long-term goal, as spelt out in Sec. 1 (5) of the Act is to extend the security-net not only to the factories but also to the establishments, industrial, commercial, agricultural or otherwise.

Public Interest and the RTI Act:

17. I submit that I am asking only for the information to which I am entitle to ask as a citizen of the nation. This information asked for by me in para 2 supra is  required in public interest. Hon’ble High Court of Madras has observed, “Public Interest means an act beneficial to the general public. Means of concern or advantage to the public, should be the test. Public interest in relation to public administration, includes honest discharge of services of those engaged in public duty. To ensure proper discharge of public functions and the duties, and for the purpose of maintaining transparency, it is always open to a person interested to seek for information under the Right to Information Act, 2005” (The Registrar, Thiyagarajar College of Engineering, Madurai Vs. The Registrar, Tamilnadu Information Commission – 30.04.2013).

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Labour Code: The term “Substantial” left out of exemption provisions !

To

The CPIO- (Labour Law Reforms) RTI,

Ministry of Labour & Employment,

Room No. 14, Shram Shakti Bhavan,

New Delhi – 110001

 

Sub: Application under Sec. 6 of the RTI Act – Omission of the word ‘Substantial’ in Sec. 94.1 (h) of Draft Labour Code on Social Security & Welfare – information – requested.
Ref: Memo No. No. Z-13025/ 13 /2015-LRC dated 16.03.2017

 

Sir,

I have to state that Sec. 94. 1 (h) of the Draft Labour Code made public on 16.03.2017, as per the reference cited, shows that the authorities who prepared the draft Code had taken a conscious, deliberate and calculated decision to drop the word “substantially” before the word “similar” appearing therein.

Substantial

  1. This is in sharp contrast to the existing conditions imposed on the employers who seek exemption from coverage under the ESI Act, as could be seen from the proviso to Sec. 87 of the ESI Act, 1948, which is reproduced below:

“Provided that such exemptions may be granted only if the employees’ in such factories or establishments are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.”

 

  1. 90 of the ESI Act, which also deals with the concept of Exemptions, contains the phrase “substantially” similar”. Besides, the proviso to Sec.1(4) which deals with the exemption of the factories and establishments belonging to or under the control of the Government, also insists of the condition of the benefits being “substantially” similar or superior.
  2. The term “substantial” can have a qualitative meaning and be defined as “important” or “essential”, and can have a quantitative meaning and be defined as “considerable in quantity” or “significantly great” in amount. This word precludes invoking the ‘de minimis’ (Page 812 – Concise Law Dictionary – Wadhwa Publication).
  3. Yet, such an important word has, consciously, been left out in Sec. 94 of the Draft Labour Code in ‘Part L’ which deals with exemption. There must, therefore, have been strong justification recorded in writing by the officers or the committee of experts who had drafted this Sec. 94 of the Draft Labour Code concerned.
  4. I, therefore, request you to kindly supply the following information under Sec. 6 of the Right to Information Act, 2005:

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.

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Labour Code: Letter No. 7 – Drastic reduction in DB, PDB & TDB !

Quantum of Dependant’s Benefit has been drastically reduced in the Labour Code, when compared with what is available now under the ESI Act, 1948. [even after making allowances due to the definition of the term ‘benefit wage’ under Sec.2.12 of the Code with reference to the ‘Standard Benefit Rate’ as per Rule 2 (7-A) of the ESI (Central) Rules, 1950.] Likewise, the Permanent Disablement Benefit and Temporary Disablement Benefit  too.

This is unfair. This becomes unlawful too, when the solemn assurance given to the persons already covered under the ESI Act is snatched away and only the assurance of reduced benefit is attempted to be given, and that too, unnecessarily,  through the present Labour Code, in the event of death of the employees due to employment injury.

Please click on the image for more:

Letter 7 image

Letter 7

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