Can ESIC reject the claim of the employee on the ground that his Contribution was not deposited?
No! ESI cannot. ESI Corporation is duty bound to provide medical benefits to a member of the family of insured person whose condition requires medical treatment be it an ordinary treatment or super specialty. It is the duty of the employer to deduct employees share and then deposit it along with his own share to ESIC. The Kerala HC in the case of Smitha Rajendran vs. Employees State Insurance Corporation 2021 (169) FLR 942 has held so. In case of failure to do so by employer, ESIC is empowered to recover the amount as arrears of land revenue from the employer. The term Insured Person as defined by Sec. 2(14) of the ESI Act covers an employee in respect of which contributions were payable meaning thereby that only because of non remittance of contribution of such employee, he cannot be made disentitled to the benefit available for the insured person. Sec. 68 of ESI Act points out that even if the employer fails or neglects to pay any contribution, as a social security measure, The ESI corporation is duty bound to provide.
In case employer contravenes the provisions of Sec. 33 and changes the conditions of service of workman pending proceedings, Sec. 33A is a provision providing adjudication to decide whether employer affected any changes in service conditions. When and under which conditions Sec. 33 A gets attracted?
Section 33A of the I.D. Act is attracted when the following conditions exist: Firstly, that there should have been a contravention by the employer of the provisions of Sec. 33 of the Act and secondly, that the contravention should have been during the pendency of the proceedings before the conciliation officer, Board, arbitrator, labor court, tribunal or national tribunal. Thirdly, that the complainant should have been aggrieved by the contravention and lastly, that the application should have been made to the forum before which the original proceedings are pending. Sec. 33A authorizes the conciliation officer to take such complaint of the workman in into account in bringing about settlement of the complained dispute. Conciliation officer is not empowered to adjudicate upon the dispute, which is the jurisdiction of the adjudicating authority. His role is limited to mediate or promote the settlement of the dispute. The Sec. 33A gets attracted only when a workman is discharged or punished or otherwise for a misconduct connected with the pending dispute without obtaining prior permission of the authority before whom the dispute is pending. SC in the case of NEI Ltd. vs. Hanuman 1967 II LLJ 883, Air India Corporation vs. V.A. Rebellow 1972 I LLJ 501, have held that discharge simpliciter not connected with the pending dispute will not amount to contravention of Sec. 33 thus will not attract Sec. 33A. SC in the case of Central Bank of India vs. K R Meenakshi 1959 I LLJ 446 has held that if a workman abandons his job, it will not constitute discharge within Sec. 33 (I) of I.D. Act. Madras H.C. in the case of M S Manikam vs. Cheran Transport Corporation 1982 I LLJ 396 has held that termination simpliciter under conditions of service or standing orders will be outside the scope of Sec. 33. Punjab & Haryana H.C. in the case of Ram Sanjeevan & Ors. vs. PO, Labour Court 2009 II LLJ 630 has held that application under Sec. 33A can only be filed before the conciliation officer where the main dispute was pending and not before the Industrial Tribunal cum Labour Court. The workman is not free to choose any forum for dealing with an application under Sec. 33A.
As defined under Code on Wages Act 2019, whether the contract labour comes under the definition of the Employee or worker?
Code on Wages Act 2019 contains many definitions under Sec. 2. Employee is defined under sub clause (k), contract labour is defined under sub clause (g) and worker is defined under sub clause (z). All the three definitions are distinct in its character. Apparently the definition of employee covers any person except apprentice engaged under Apprentices Act employed on wages to do work of almost every category. Contract labour falls under the definition of worker and not Employee. Contract labour is defined as a person employed by or through contractor in or in connection with the work of establishment. Worker is separately defined as any person excluding apprentice and person employed in establishment for doing supervisory or managerial functions. The contract labour is not employed by establishment but by the contractor in connection with the work of establishment. So employee definition does not cover contract labour.
When a factory is closed and closure compensation is paid to workmen, are they entitled for re employment in case factory is restarted?
No! In case of closure, Sec. 25-H cannot be invoked. If a factory is closed by complying the relevant provisions and closure compensation is paid to workmen, such workmen are not entitled for re employment when factory is restarted. It has so been held by Bombay HC in the case of Meltron Engineering Industries vs. Pune Labour Union 2021(170) FLR 344. The court held that the duration of the closure, though relevant for determining the intention and bonafides of the employer at the time of closure is not decisive. SC in the case of General Labour Union, Bombay vs. B.V. Chavan 1985 (50) FLR 16 has held that the true test to consider whether the closure was a device or pretence to terminate the services of workmen or whether it was bonafide and for reasons beyond the control of the employer at the time of closure. The court must in such case keep in view all relevant circumstances at the time of closure. Bombay H.C. in the case held that it was not the case here and only the reason of restarting the factory after few months cannot be the sole reason to question the intent of employer. Termination of workmen due to closure cannot be converted in to retrenchment in such circumstances.
Whether the Rights of Persons with Disability Act 2016 casting obligations to provide certain quota of employment to such persons also applicable on private industries? What compliances employer has to make in this respect?
The provisions of the Rights of Persons with Disabilities Act 2016 which has been made effective from 15.06.2017 are applicable to Private sector industries also. The term private establishment provided in Section 2(v) of the Act includes company, firm, co-operative society, association, trust, agency, institution, organization, union, factory etc. So, every private establishment in any form shall be subjected to compliance with the provisions provided in the Act. Illegitimate discrimination against disabled persons within the workplace is prohibited. Central Act talks of 5% job reservation for public sector organizations and Govt. establishments but there is no reservation for private establishments in the central Act. However, with a view to recruit more persons with disabilities, the appropriate government and the local authority shall provide incentives to private employers who ensure that at least five percent of their workforce is composed of persons with disabilities. Establishment employing 20 persons or more is required to formulate and publish an equal opportunity policy for disabled persons and such policy has to be displayed on their official website or at a place that is clearly visible to all employees working at their premises. Also, the establishment is bound to register a copy of the said Policy with the Chief Commissioner or the State Commissioner for Persons with Disabilities. Establishments having more than 20 employees are under obligation to appoint a Liaison Officer to oversee the recruitment of disabled persons and special facilities provided for them.
As defined under Code on Wages Act 2019, whether the contract labour comes under the definition of the Employee or worker?
Code on Wages Act 2019 contains many definitions under Sec. 2. Employee is defined under sub clause (k), contract labour is defined under sub clause (g) and worker is defined under sub clause (z). All the three definitions are distinct in its character. Apparently the definition of employee covers any person except apprentice engaged under Apprentices Act employed on wages to do work of almost every category. Contract labour falls under the definition of worker and not Employee. Contract labour is defined as a person employed by or through contractor in or in connection with the work of establishment. Worker is separately defined as any person excluding apprentice and person employed in establishment for doing supervisory or managerial functions. The contract labour is not employed by establishment but by the contractor in connection with the work of establishment. So employee definition does not cover contract labour.
Whether the Rights of Persons with Disability Act 2016 casting obligations to provide certain quota of employment to such persons also applicable on private industries? What compliances employer has to make in this respect?
The provisions of the Rights of Persons with Disabilities Act 2016 which has been made effective from 15.06.2017 are applicable to Private sector industries also. The term private establishment provided in Section 2(v) of the Act includes company, firm, co-operative society, association, trust, agency, institution, organization, union, factory etc. So, every private establishment in any form shall be subjected to compliance with the provisions provided in the Act. Illegitimate discrimination against disabled persons within the workplace is prohibited. Central Act talks of 5% job reservation for public sector organizations and Govt. establishments but there is no reservation for private establishments in the central Act. However, with a view to recruit more persons with disabilities, the appropriate government and the local authority shall provide incentives to private employers who ensure that at least five percent of their workforce is composed of persons with disabilities. Establishment employing 20 persons or more is required to formulate and publish an equal opportunity policy for disabled persons and such policy has to be displayed on their official website or at a place that is clearly visible to all employees working at their premises. Also, the establishment is bound to register a copy of the said Policy with the Chief Commissioner or the State Commissioner for Persons with Disabilities. Establishments having more than 20 employees are under obligation to appoint a Liaison Officer to oversee the recruitment of disabled persons and special facilities provided for them.
In case employer contravenes the provisions of Sec. 33 and changes the conditions of service of workman pending proceedings, Sec. 33A is a provision providing adjudication to decide whether employer affected any changes in service conditions. When and under which conditions Sec. 33 A gets attracted?
Section 33A of the I.D. Act is attracted when the following conditions exist: Firstly, that there should have been a contravention by the employer of the provisions of Sec. 33 of the Act and secondly, that the contravention should have been during the pendency of the proceedings before the conciliation officer, Board, arbitrator, labor court, tribunal or national tribunal. Thirdly, that the complainant should have been aggrieved by the contravention and lastly, that the application should have been made to the forum before which the original proceedings are pending. Sec. 33A authorizes the conciliation officer to take such complaint of the workman in into account in bringing about settlement of the complained dispute. Conciliation officer is not empowered to adjudicate upon the dispute, which is the jurisdiction of the adjudicating authority. His role is limited to mediate or promote the settlement of the dispute. The Sec. 33A gets attracted only when a workman is discharged or punished or otherwise for a misconduct connected with the pending dispute without obtaining prior permission of the authority before whom the dispute is pending. SC in the case of NEI Ltd. vs. Hanuman 1967 II LLJ 883, Air India Corporation vs. V.A. Rebellow 1972 I LLJ 501, have held that discharge simpliciter not connected with the pending dispute will not amount to contravention of Sec. 33 thus will not attract Sec. 33A. SC in the case of Central Bank of India vs. K R Meenakshi 1959 I LLJ 446 has held that if a workman abandons his job, it will not constitute discharge within Sec. 33 (I) of I.D. Act. Madras H.C. in the case of M S Manikam vs. Cheran Transport Corporation 1982 I LLJ 396 has held that termination simpliciter under conditions of service or standing orders will be outside the scope of Sec. 33. Punjab & Haryana H.C. in the case of Ram Sanjeevan & Ors. vs. PO, Labour Court 2009 II LLJ 630 has held that application under Sec. 33A can only be filed before the conciliation officer where the main dispute was pending and not before the Industrial Tribunal cum Labour Court. The workman is not free to choose any forum for dealing with an application under Sec. 33A.
When a factory is closed and closure compensation is paid to workmen, are they entitled for re employment in case factory is restarted?
No! In case of closure, Sec. 25-H cannot be invoked. If a factory is closed by complying the relevant provisions and closure compensation is paid to workmen, such workmen are not entitled for re employment when factory is restarted. It has so been held by Bombay HC in the case of Meltron Engineering Industries vs. Pune Labour Union 2021(170) FLR 344. The court held that the duration of the closure, though relevant for determining the intention and bonafides of the employer at the time of closure is not decisive. SC in the case of General Labour Union, Bombay vs. B.V. Chavan 1985 (50) FLR 16 has held that the true test to consider whether the closure was a device or pretence to terminate the services of workmen or whether it was bonafide and for reasons beyond the control of the employer at the time of closure. The court must in such case keep in view all relevant circumstances at the time of closure. Bombay H.C. in the case held that it was not the case here and only the reason of restarting the factory after few months cannot be the sole reason to question the intent of employer. Termination of workmen due to closure cannot be converted in to retrenchment in such circumstances.
Can ESIC reject the claim of the employee on the ground that his Contribution was not deposited?
No! ESI cannot. ESI Corporation is duty bound to provide medical benefits to a member of the family of insured person whose condition requires medical treatment be it an ordinary treatment or super specialty. It is the duty of the employer to deduct employees share and then deposit it along with his own share to ESIC. The Kerala HC in the case of Smitha Rajendran vs. Employees State Insurance Corporation 2021 (169) FLR 942 has held so. In case of failure to do so by employer, ESIC is empowered to recover the amount as arrears of land revenue from the employer. The term Insured Person as defined by Sec. 2(14) of the ESI Act covers an employee in respect of which contributions were payable meaning thereby that only because of non remittance of contribution of such employee, he cannot be made disentitled to the benefit available for the insured person. Sec. 68 of ESI Act points out that even if the employer fails or neglects to pay any contribution, as a social security measure, The ESI corporation is duty bound to provide.