Copy of my post elsewhere on a topical subject of intestest to those working in ESIC, those industrial workers and Employers of factories and establishments and their officers amenable to ESIC ACT (India).My immediate reaction to views of Sh SD Puri, is, strong disagreement with every single proposition and conclusion he made. It is time to stop inspection altogether and re-designated SSO should be used to educated, help and assist employers and IP through workshops, seminars and compliance-training. If the delivery of scheme is good, timely and effective, there will be no need for inspection and the employees and their Unions will come forward to seek registration and compliance. Improved primary medical care, and satisfactory specialist care will ensure better satisfaction thereby coverage. Inspection has been found harassment , intimidating and often corrupt. Many of the inspectors do not know the law itself (not to speak of the spirit or the logic of the law,) often lacks the expertise to examine modern book keeping methods, and IT enabled accounting system and find no time to understand manufacturing process and then find out potential areas of workers not registered. No effort whatever is made by SSOs of ESIC to identify the workers, enforced their registration and issue I.Cards. Total amounts booked under certain head is reported, which could take few minutes and shaw cause notices are issued asking Employers to pay contribution on the total. For eg Shaw cause asked employer to pay contribution for General repairs Repair and Maintenance Factory Upkeep and maintenance of Furniture Repair, which is nothing but laughable to say the least, since ESI act does not require payment of any contribution for these payment, but only for workers drawing 15000 or below , whether they are paid wage under any of these heads or not. Mr Puris contention that if employer fail to register employees under Reg 12 of Regulation, they will have to pay compensation under WC act or other law/scheme is totally wrong and against the law and I am sorry to say, express lack of knowledge on the very fundamental of the Scheme. Regulation is only a procedureal requirement and does not override the law. Sec 52 mandating depndants benefit talk of an insured Person dying due to Employment injury and Section 2 (14) defines insured person as a Person who is or was employee in respect of whom contribution are or were payable and Sec 2 (8) defined Employment injury as personal injury to an employee. I shall emphasis the term contribution are or were Payable and term who is or was employee. Sec 2 (9) says an employee is a person employed for wages....in a factory/establishment to which the act applies. None of these provision defines an Employee/Insured person as one who is registered under ESI act or Registration or one who is registered and in respect of whom Insurance Number is obtained and identity card is issued or One in respect of whom contribution is paid. In fact Section 52, which is the charging section in so far as Dependant benefit is concerned, talk only about person in respect of contribution was payable ( and I repeat, not paid). Section 50, 51 being charging section for Maternity benefit and Disablement benefit also talks only about a Insured woman, or a Person and no where registration, actual receipt of contribution in the kitty of ESIC, possessing I.Card or Insurance number etc is not mentioned. Now go to Rule 55, read with Section 49, being entitlement section/rule for Sickness benefit (which include ESB etc) and here also we see that reference is to a Person in respect of whom contribution were payable ( and NOT, I repeat, paid). It is exactly so in case of Rule 56 regarding Maternity benefit. What we find that actual receipt of Contribution into fund of ESIC, actual registration or obtainment of insurance number or Identity card is not a pre-condition for eligibility to any of the benefit. The remedy for Corporation is in Section 68, where also it is mandated that even if employers fail to pay contribution (which mean the required level of contribution) and as a result the IP got reduced benefit or no benefit at all, ESIC should pay the entitled benefit and recover from Employer double the contribution plus the difference of benefit paid. I beleive many of the hand outs, Employers guide, seminar papers etc has clarified this and whenever we were asked as to why ESIC seek arrears of old contribution due without identifying the coverable workers, our answer was exactly this, that since ESIC taken the liability of all the coverable employees whether they are registered or not or whether contribution was paid or not, we are entitled to claim omitted contribution for past period, and SC in several cases has upheld this principle. I must add two personal experience here, though there are hundreds like that. In a case where the employer has not registered a coverable worker , the worker met with an accident and filed WC case which was awarded. ESIC was not in picture nor a party in the case. The matter went to HC where employer lost and ESIC was still not a party. The clever advocate of HC, while discussing with employer found that the worker ought to have been covered, though not registered moved SLP in Supreme Court taking umbrage under Section under Section 61, compelling worker to go to ESIC. As the ESIC was not a party even in SLP, SC directed ESIC to file an affidavit clarifying the position and I had no hesitation to file affidavit stating that even though no contribution was received and the worker was not even registered, ESIC is legally liable to pay benefit. After payng benefit, we literally threw the book at the Employers, by conducting special vigilance inspection and taking all kind of legal action against them and as a result over 100 workers were suddenly registered. Second case is we had a major file in the Vishakphatanam HPCL oil refinery and about 26 or so casual/temporary workers lost their life. In fact only one of them were registered under ESIC and it was sad that one worker joined work just previous day. We accepted all the death as due to Employment injury and in one of the fastest claim settlement with helpt of DC of the area, we paid first DB claim to all family member on the next schedule wage day, in a function in Vishakapatanam. It is sad that suddenly ESIC is taking a different stand. Recently I saw a report in Time of India (timesofindia.indiatimes/city/kochi/Compensate-injured-woman-despite-no-contribution-from-employer-Kerala-HC/articleshow/29078737.cms?intenttarget=no#.Ut9IOwupwM0.facebook) where ESIC director has taken a stand in Court that no benefit is payable if Contribution is not paid. Of course HC rightly rejected ESIC stand and order payment. What is sad is that how ESIC took such a stand after all these years and why the IP or Employer was forced to go High court. I feel the officers responsible should pay the court expenses from their pocket and also pay interest on delayed benefit payment and ESIC to apologize to the concerned worker or Employer My view are only on the comment of Shri Puri. Time permitting I will comment on the view of Sh Hiren Chedda.
Posted on: Sun, 26 Jan 2014 06:46:33 +0000
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