Benefits Under Employees State Insurance Act, 1948]
Benefits Under Employees State Insurance Act, 1948]
Labour Law - II Project report on Topic: Benifts Under Employees
State Insurance Act, 1948
JAMIA MILLIA ISLAMIAFACULTY OF LAWSUBMITTED IN partial
fulfilment ofB.A.LL.B. (Hons.) sixth semester
SUBMITTED TO: SUBMITTED FROM:Dr. Asad malik S. abbas haider
AcknowledgementNow that the project stands complete, I intend to
place on record my gratitude towards all without whom completing
the project would have been nothing but out of question.
In the first place, I thank our Lecturer of administrative laws
I as he had time and again helped me, guided me throughout, and
answered all the queries that encountered while my work relating to
project was afoot.
Secondly, I thank the library staff who liaised with us in
searching material relating to the project.
Thirdly and finally, I thank the almighty for the monumental
tacit support, which boosted my morale and help me stay confident
all through my work upon the project, placed forth by him.
syed abbas haider
IntroductionMany important social security scheme had been
introduced in our country before Independence. The urgency of such
schemes has been more badly felt after world war II. Social
security to the workers of an industry can be provided by a
self-balancing Scheme of Social Insurance or by public assistance
or a combination of the two methods. Social security measures
adopted in any country can be said to be a dependent upon a number
of factors i.e. population, economic resources, standard of living,
availability of technical experts and development of industry. The
Workmens Compensation Act, though designed to protect and safeguard
the interest of the labour was in the nature of social assistance
and not social insurance. The Employees State Insurance Act was
first of such measures adopted in India to provide for social
insurance to the labourers. Many other fields of social insurance
like health and unemployment are still left untouched. The question
of providing sickness insurance first came for consideration by the
government of India in 1928 when it considered to ratify the draft
conventions and recommendations adopted at the Tenth International
Labour Conference in 1927.But the Government did not consider it
feasible to adopt the any such legislation. The royal commission on
labour 1931 also suggested for early adoption of these measures.
The question of insurance of invalids, widows , old age and orphans
was considered by the government from time to time but no scheme
providing for any such benefits was introduced for administrative
and financial considerations.In the conference of Labour Ministers
held in January 1940, it was decided to invite the views of the
Provincial Government, employers and workers about compulsory
contribution of the sickness insurance fund. The second Conference
of Labour Ministers held in 1941 was of the opinion that any such
legislation must be preceded by an actual examination of the
problem in certain industries. A year after the Third Conference of
Labour Ministers was called for to examine a tentative sickness
scheme prepared by the Labour Department of the Goverenment of
India.The conference agreed to introduce a scheme on a selective
basis and recommended a sickness insurance scheme to workers in
jute, cotton and heavy engineering industries.In March, 1943 the
government of India appointed Prof. B.P. Adarkar as a special
officer to report on health insurance of the industrial workers in
India. The report submitted by Prof.Adarker in August, 1944
contained comprehensive contributory scheme of social insurance.
Some improvement in the above scheme were suggested by Messrs.
Maurice Stack and Ragunath Rao, members of I.L.O, who examined it
at the invitation of the government of India. The Adarker Report
and suggestions made by the two I.L.O., members were discussed by
the Labour Committee in March,1945. The following recommendations
were made: The central government should proceed with the
preparation of a scheme of health insurance applicable to all the
perennial factories and covering employment injuries and maternity
benefits if possible, and That the scheme should be circulated to
provincial governments and association of employers and workers
before a bill was draftedThe Employees State Insurance Bill
providing for compulsory sickness, maternity and employment injury
benefits for workers in perennial factories was introduced in the
Central Legislature on 6th November, 1946. It was passed in
1948.HistoryThe scheme was inaugurated in Kanpur on 24th February
1952 (ESIC Day) by then Prime Minister Pandit Jawahar Lal Nehru.
The venue was the Brijender Swarup Park, Kanpur and Panditji
addressed a 70,000strong gathering in Hindi in the presence of
Pt.Gobind Ballabh Pant, Chief Minister Uttar Pradesh; Babu Jagjivan
Ram, Union Labour Minister; Raj Kumari Amrit Kaur, Union Health
Minister; Sh. Chandrabhan Gupt, Union Food Minister and
Dr.C.L.Katial, the first Director General of ESIC. The scheme was
simultaneously launched at Delhi as well and the initial coverage
for both the centres was 1,20,000 employees. Our first prime
Minister was the first honorary insured person of the Scheme and
the declaration form bearing his signature is a prized possession
of the Corporation. It is important to mention here that it
blossomed as the first social security scheme in 1944, when the
Govt. of the day was still British. The first document on social
insurance was "Report on Health Insurance" submitted to the
Tripartite Labour Conference, headed by Prof. B.P.Adarkar, an
eminent scholar an dvisionary. The Report was acclaimed as a worthy
document and forerunner of the social security scheme in India and
Prof. Adarkar was acknowledged as "Chhota Beveridge" by none other
than SardarVallabh bhai Patel. Sir, William Beveridge, as all know,
was one of the high priests of social insurance. The report was
accepted and Prof. Adarkar continued to be actively associated with
it till 1946. On his disassociation he strongly advocated
management of the Scheme by an expert from ILO. In 1948
Dr.C.L.Katial, an eminent Indian doctor from London took over as
the 1st Director General of ESIC and hesteered the affairs of the
fledgling Scheme till 1953.Since the red letter day of 24th
February in the annals of social security in India, there has been
no looking back. A lighted lamp which is the logo of ESIC truly
symbolizes the spirit of the Scheme, lighting up lives of
innumerable families of workers by replacing despair with hope and
providing help in times ofdistress, both physical and financial.
During the 60 years of its existence, ESIC has grown from strength
to strength and the Corporation owesPromulgation The promulgation
of Employees' State Insurance Act, 1948(ESI Act), by the Parliament
was the first major legislation on social Security for workers in
independent India. It was a time when the industry was still in a
nascent stage and the country was heavily dependent on an
assortment of imported goods from the developed or fast developing
countries. The deployment of manpower in manufacturing processes
was limited to a few select industries such as jute, textile,
chemicals etc. The legislation on creation and development of a
fool proof multi-dimensional Social Security system, when the
country's economy was in a very fledgling state was obviously a
remarkable gesture towards the socio economic amelioration of a
work face though limited in number and geographic distribution.
India, notwithstanding, thus, took the lead in providing organized
social protection to the working class through statutory
provisions. The ESI Act 1948, encompasses certain health related
eventualities that the workers are generally exposed to; such as
sickness, maternity, temporary or permanent disablement,
Occupational disease ordeath due to employment injury, resulting in
loss of wages or earning capacity-total or partial. Social security
provision made in the Act to counterbalance or negate the resulting
physical or financial distress in such contingencies, are thus,
aimed at upholding human dignity in times of crises through
protection from deprivation, destitution and social degradation
while enabling the society the retention and continuity of a
socially useful and productive manpower.Aims and ObjectThe
Employees State Insurance Act is a Legislation which aims at
bringing about social and economic justice to the poor labour class
of the land. It aims at the labour welfare . But labour welfare is
an elastic term bearing somewhat different interpretation in one
country from another according to different social customs, the
degree of industrialization and the educational development of the
workers.[footnoteRef:2]Investigation Committee of the Government of
India has preferred to include under welfare activities anything
done for the intellectual, physical, moral and economic betterment
of workers whether by employers, by government or by the other
agencies, over and above what is laid down by law or what is
normally expected as part of contractual benefits for which workers
have bargained. Labour welfare is a very comprehensive term and
includes everything undertaken by the state, employers and
association of workers for the improvement of workers standard of
living and promotion of their social and economic well-being. [2:
Report of the Royal Commission on Labour, p. 261]
These welfare activities need to be considerably extended so as
to cover workers of every factory, industry, mines, plants and
communication, etc. A definite minimum standard of welfare should
be laid down, which has to be observed by all employers.The main
object of this act is to provide certain benefits to employees in
case of sickness, maternity and employment injury and to make
provisions for certain other matter in relation thereto.Short
title, extent, commencement and application ( Section-1)(1) This
Act may be called the Employees' State Insurance Act, 1948.(2) It
extends to the whole of India. (3) It shall come into force on such
date or dates as the Central Government may, by notification in the
Official Gazette, appoint, and different dates may be appointed
fordifferent provisions of this Act and for different States or for
different parts thereof .(4) It shall apply, in the first instance,
to all factories (including factories belonging to the government)
other than seasonal factories:PROVIDED that nothing contained in
this sub-section shall apply to a factory orestablishment belonging
to or under the control of the government whose employees are
otherwise in receipt of benefits substantially similar or superior
to the benefits provided underthis Act.(5) The appropriate
government may, in consultation with the Corporation and where the
appropriate government is a State Government, with the approval of
the Central Government, after giving six months' notice of its
intention of so doing by notification in the Official
Gazette,extend the provisions of this Act or any of them, to any
other establishment or class of establishments, industrial,
commercial, agricultural or otherwise : PROVIDED that where the
provisions of this Act have been brought into force in any part ofa
State, the said provisions shall stand extended to any such
establishment or class ofestablishments within that part if the
provisions have already been extended to similarestablishment or
class of establishments in another part of that State.(6) A factory
or an establishment to which this Act applies shall continue to be
governed by this Act notwithstanding that the number of persons
employed therein at any time falls below the Limit specified by or
under this Act or the manufacturing process therein ceases to be
carried on with the aid of power.
CasesIn Cricket Club of India v. ESICorporation[footnoteRef:3]
case, where by some club not only sporting facilities but a kitchen
is also maintained, wherein abig number of members come, yet is not
necessary that they are participating only in sports activities,
they are also entertaining themselves and their guests by partaking
beverages and tea served by the club. Activity in the kitchen has a
direct connection with the activities carried on in the rest of the
club premises. It is necessary that the club be registered under
ESI Act as regards all the employees engaged by the club
irrespective of the fact in which department they are working.
Cricket Club of India satisfies the definition of the term
`factory' under s. 2(12) of the Act hence covered by it. [3: 1994
(69) FLR 19.eh]
InESI Corpn. v. Fariyar Hotel (P) Ltd [footnoteRef:4] case, the
scheme of the Act does not provide that the provisions should be
made applicable to all the areas and all the establishments at one
stroke or to none at all. It would defeat beneficial scheme
prescribed by the Act. The power conferred on the State Government
under s. 1(5) ofthe Act can be exercised only with the approval of
the Central Government, and therefore, it cannot be said that the
limit of extension only to certain areas out of the areas covered
unders. 1(3) of the Act would amount to encroachment of the powers
of the Central Government. Sec. 1(5) does not indicate that the
approval must be sought from the Central Government only after the
expiry of the period mentioned in the notice of intention but there
are circumstances to indicate that such approval must be secured
beforehand. Requirement of s.1(5) is that State Government can
extend the scheme provided Central Government gives approval and
after consultation with the corporation [4: 1989 (1) LLJ 356.]
Where in an establishment activities like that of clearing and
forwarding is going on, it would fall within the expression "shop"
even though clearing of documents is done in customs house meant
for export and import of goods. Person involved in such business is
catering to the needs of exporters and importers and others wanting
to carry the goods further.-- AIR1993 SC 252In Cochin Shipping
Company v. Employees' State Insurance Corporation [footnoteRef:5]
case, Sec. 1(4) in the first instance is made applicable to all the
factories. The Act envisages the extension of benefit to the
employees in other establishments or class of establishments,
industrial, commercial or otherwise. The extension of benefit is to
be done by means of a notification by the appropriate government.
Thus the benefits conferred by the Act cover a large area of
employees than what the Factories Act and the akin legislation
intended. [5: 1992 (65) FCR 676.]
In Cochin Shipping Co. v. ESI Corporation[footnoteRef:6] case,
it is not actually necessary that the delivery of the goods to the
purchaser should take place atthe premises in which the business of
buying or selling is carried on to constitute the saidpremises into
a shop. The delivery of the goods sold to the purchaser is only one
aspect oftrading activities. Negotiation of the terms of sale,
carrying on the survey of the goods imported, arranging for the
delivery of the goods sold, collection of the price of the goods
sold, etc. are all trading activities. If orders are received at a
place which ultimately fructify with sales and the resulting
trading activity is directed from there, that place comes to be
known as a "shop" [6: 1992 (65) FLR 676.]
In ESI Corporation v. R.K. Swamy[footnoteRef:7] case, anyone
having product may approach advertising agency. The advertising
agency willprepare an advertising campaign for him utilizing the
services of the experts it employs in thisbehalf. It sells the
campaign to the client and receives the price thereof. Indubitably,
the price will depend upon the nature of the campaign but that does
not make any great difference. Essentially, the advertising agency
sells its expert services to a client to enable the client to
launch an effective campaign of his products without staining the
language, the premises ofan advertising agency can be said to be a
"shop". [7: 1993 (67)FLR 1145 : 1993 (2) CLR 1068]
Act does not apply to: Seasonal factories engaged exclusively in
any of the activities like: cotton ginning, cotton or jute
pressing, decoration ofground nuts, manufacturing coffee, indigo,
lac, rubber, sugar, or tea or any manufacturing process incidental
to or connected with any of the afore said activities, and
including factories engaged for a period not exceeding seven months
in a year in blending, packing or repackaging tea or coffee, or in
such other processes as may be specified by the central govt.The
factories exempted as seasonal from the provisions ofthe act. Mines
Railway running sheds Govt. factories or establishments and Indian
naval, military,or air force Other Govt. notified exempted
establishments
Standing committee empowered to-1. Shall administer the affair
of the corporation2. Shall submit the consideration and decision of
the corporations3. Have discretion on other issues of
corporationMedical Benefit Council1. Advise to administration on
Medical Benefit, purpose of grants and related matter2. Have power
and duties of INVESTIGATION on Empanelled Medical practitioner, its
treatment and attendance3. Perform other dutiesInspectors- Duties-
PowersDuties - 1. Inquiring into the correctness in any return of
contribution 2. Ascertaining Provision of the Act has been complied
3. Other authorized / specified duties by the corporation.Powers -
1. To collect require and relevant information of employer /
contractor or both 2. To enter org / contractor premises at
reasonable time and examined relevant account books and relevant
documents, payment of wages etc. 3. To examine employer,
contractor, his agent / servant or IE in factory /office 4. To make
copies of extracts from any registrar, account books and other
books of maintenance of org.
Employer/ Employees Contribution It is the principle employers
responsibility to deposit his own as well as employees contribution
in respect of all employees including the contract labour, into the
E.S.I. Account. Non-availability of funds cannot be a ground for
non-payment of contributions under the act. There is no provision
to waive the contribution, damages and interestThe employer is
required to contribute at the rate of 4.75% of the wages paid/
payable in respect of every wage period. The employees are also
required to contribute at the rate of 1.75% of their wages except
when the average daily wages in a wage period are equal to or less
than Rs.40.The employer should get his factory or establishments
registered with the E.S.I. Corporation within 15 days after the Act
becoming applicable to it, and obtain the employers Code Number.
The regional officer will allot a code number to the employer,
which must be quoted in all documents and correspondence.
Benefits available to insured employeeThe purpose of the
Employee State Insurance Act is to provide benefits as detailed in
the Act particularly in section 46, to the insured persons or their
dependants.The following benefits are provided under section 46.1.
Sickness benefit2. Maternity benefit3. Disablement benefit4.
Dependents benefit5. Medical benefit6. Funeral expenses
1. SICKNESS BENEFITAcc. To Sec 46(1)(a) of the ESI Act, 1948,
Sickness benefit is a periodical payment to an insured person.
Sickness hasbeen defined under sec.2(20) of the ESI Act as
follows:Sickness means a condition which requires medical treatment
and attendance and necessitates abstention from work on medical
grounds.Certification of sicknessAcc. to Sec 49, for the claim of
sickness benefit, the sickness of the injured person must be
certified by a duly appointed medical practitioner.The
qualification of a person to claim sickness benefit, the condition
subject to which such =benefit may be given, the rates and period
thereof shall be such as may be prescribed by the central Govt.
Conditions to be observed by recipient of sickness benefit1.To
remain under medical treatment at a dispensary, hospital, clinic or
other institution provided under the Act.2. To carry out
instructions given by medical officer or medical attendant in
charge of clinic.3. Not to do anything which retard or prejudice
the chances ofrecovery from the sickness.4.Not to leave the area in
which the medical treatment providedby the Act is given. The
recipient can leave such area with thepermission of the medical
officer as may be specified by the regulation.5.Receipient allows
himself to be examined by any duly appointed medical officer.
Examination may be done by otherperson authorized by the
corporation in this behalf.
Disentitlement to sickness benefit (Sec 63)1.On the day on which
he works or remains on leave on a holiday in respect of which he
receives wages.2. On any day on which he remains on strike.
CasesM.L. Kuntarao v. Azam Johi Mills Ltd.
Warangal[footnoteRef:8] [8: 1970 Lab IC 585 (AP)]
In this case the court held that, where provision is made for
sick leave by standing order, the employer cannot require the
employee to seek sickness benefit provided under this
sub-section.
Management of Dioccsan Prees v. Labour Court
Madras[footnoteRef:9] [9: (1982) I L.L.J. 451 (Mad).]
In this case it was held that it was not possible to accept the
contention that since the employee has received sickness benefit
under the act,he is not entitled to receive the wages for the
period during which he was no sick leave. But the employer is
entitled to deduct the benefit received by the employee from the
leave salary payable to him.
Employees' State Insurance v. P.S.
Sreekantadatta[footnoteRef:10] [10: on 27 January, 2000]
Under the specific provisions of the Act, an employer is
required to pay his contribution within the time stipulated and
also to submit the return as required under the regulation. Section
85 of the Act provides for punishment for failure to pay the
contributions, etc., as detailed in clauses (a) to (g) to Section
85 of the Act. Therefore, non-compliance of the statutory
requirement is punishable under Section 85(i) of the ESI Act and
enhanced punishmentIn this background, an offence under Section 85
(a) to (g) of the Act is a continuing offence. The offence is
punishable under Section 85-A of the Act for his failure to submit
his return as required under Section 85(e) of the Act for the
second time. The punishment provided for the offence under Section
85-A of the Act is imprisonment for a term which may extend to two
years and with fine of Rs. 5,000/-. Therefore, the complaint now
filed by the appellant is well within time. The conclusion reached
contrary by the Trial Judge, in my opinion, is wholly erroneous and
is liable to be set aside. In the result, this appeal is allowed.
The respondent-accused is convicted for the offence punishable
under Section 85-A of the ESI Act of 1948. Section 85-A of the ESI
Act provides for imprisonment for a term which may extend to two
years and with fine of Rs. 5,000/. Heard the learned Counsel for
the respondent-accused regarding sentence. He pleaded for taking a
lenient view in the matter of punishment.
Associated Electrical Agencies v.Commissioner For
Workmen'S[footnoteRef:11] [11: on 4 August, 1994 ]
Court held that Section 61 of ESI Act, specifically provides
that when a person is entitled to any of the benefits provided by
the act, then he shall not be entitled to receive any similar
benefits admissible under the provisions of any other
enactment.Alembic Glass Industries v. Workmen[footnoteRef:12] [12:
AIR 1976 SC 2091.]
The workmen demanded sick leave. The Supreme Court held that the
act does not deal with the question question of sickness leave. The
benefit admissible under the act do not cover sick leave.
2.MATERNITY BENEFIT
Acc. To Sec 46(1)(b), maternity benefit is paid to an insured
woman in the form of periodical payment. The eligibility ofinsured
woman to receive maternity benefit is certified by the insurance
medical officer.Maternity benefit is paid to an insured woman in
case of:(I) Confinement(ii) Miscarriage(iii) Sickness arising out
of pregnancy, confinement or(iv) Premature birth of
childConfinement (Sec 2(3))Confinement means labour resulting in
the issue ofliving child or labour after twenty six weeks
ofpregnancy resulting in the issue of a child whetheralive or
dead.Miscarriage (Sec 2(14B))Miscarriage means expulsion of the
contents of apregnant uterus at any period prior to or during the
26weeks of pregnancy. Miscarriage for the purpose ofESI Act does
not include any miscarriage the causing of which is punishable
under the Indian penal code.Condition for and rate of maternity
benefit (Sec 50)The qualification of a person to claim
maternitybenefit, the condition subject to which such benefit may
be given, the rates & periods thereof shall be such as may be
prescribed by the central Govt.
3. DISABLEMENT BENEFITAcc. to Sec(46)(1)(c) and Sec(51), an
insured person is entitled to disablement benefit if he:a) Suffers
employment injuryb) Such employment injury causes; i. temporary
disablement for not less than three days ii. Permanent disablement
whether total or partial iii. Fulfils the other eligibility
condition specified in the regulations of the ESI Act.A.
EMPLOYEMENT INJURYSec 2(8) of the ESI Act.1948 define employment
injury as follows: employment injury means a personal injury to an
employee caused by accident or an occupational disease arising out
of and in the course of his employment, being an insurable
employment, whether the accident occurs or the occupational disease
is contracted within or outside the territorial limits of India.
Acc to Sec2(8), employment injury means personal injury caused to
the employee: I. By an accident arising out of & in the course
of employment II. By an occupational disease arising out of &
in the course ofemploymentIII. Such employment is an insurable
employmentB.DISABLEMENTTo claim disablement benefit under the ESI
Act, the employment injury suffered by the insured employee must
cause ;I. Temporary disablement for not less than three
days(excluding the day of accident)II. Permanent disablement
whether total or partial.TEMPORARY DISABLEMENT ( Sec
2(21))Temporary disablement means a condition resulting from an
employment injury which requires medical treatment and rendersan
employee, as a result of such injury, temporarily incapable ofdoing
the work which he was doing prior to or at the time
ofinjury.PERMANENT DISABLEMENTPermanent partial disablement (Sec
2(15A))Permanent partial disablement means such disablement of a
permanent nature, as reduces the earning capacity of an employee in
every employment which he was capable of under taking at the time
of accident resulting in the disablement.Permanent total
disablement (Sec 2(15 B)Permanent total disablement means such
disablement of a permanent nature as in capacitates an employee for
all work which he was capable ofperforming at the time of the
accident resulting in such disablementPresumption as to accident
arising in course of employment (Section-51A).For the purposes of
this Act, an accident arising in the course of an insured person's
employment shall be presumed, in the absence of evidence to the
contrary, also to have arisen out of that employment. Accidents
happening while acting in breach of regulations, etc
(Section-51B).An accident shall be deemed to arise out of and in
the course of an insured person's employment notwithstanding that
he is at the time of the accident acting in contravention of the
provisions of any law applicable to him, or of any orders given by
or on behalf of his employer or that he is acting without
instructions from his employer, if -(a) the accident would have
been deemed so to have arisen had the act not been done in
contravention as aforesaid or on without instructions from his
employer, as the case may be; and (b) the act is done for the
purpose of and in connection with the employer's trade or business.
Accidents happening while travelling in employer's transport
(Section-5IC).(1) An accident happening while an insured person is,
with the express or implied permission of his employer, travelling
as a passenger by any vehicle to or from his place of work shall,
notwithstanding that he is under no obligation to his employer to
travel by that vehicle, be deemed to arise out of and in the course
of his employment, if (a) the accident would have been deemed so to
have arisen had he been under such obligation;(b) at the time of
the accident, the vehicle (i) is being operated by or on behalf of
his employer or some other person by whom it is provided in
pursuance of arrangements made with his employer, and (ii) is not
being operated in the ordinary course of public transport service.
(2) In this section "vehicle" includes a vessel and an
aircraft.
Accidents happening while meeting emergency ( Section-51D )An
accident happening to an insured person in or about any premises at
which he is for the time being employed for the purpose of his
employer's trade or business shall be deemed to arise out of and in
the course of his employment, if it happens while he is taking
steps, on an actual or supposed emergency at those premises, to
rescue, succour or protect persons who are, or are thought to be or
possibly to be, injured or imperilled, or to avert or minimise
serious damage to property.
Conditions to be specified or observed by the recipient
oftemporary disablement benefit (Sec 64)i. To remain under medical
treatment at a dispensary, hospital, clinic or other institution
provided under the Act. To carry out the instruction given by the
medical attendant in charge of that dispensary, hospital, clinic or
other institution ,as the case may be.ii. While under treatment not
to do anything which might retard or prejudice his chances of
recovery.iii. To allow himself to be examined by any duly appointed
medical officer or other person authorized by the corporation in
this behalf.iv. Not to leave the area in which medical treatment
provided by the Act is being given, without the permission of the
medical officer, medical attendant or such other authority as may
be specified in this behalf by the regulations.
In Krishnan Kutty Nair v. P.B.V. Regional Director, E.S.I.
Corporation and Another[footnoteRef:13] [13: 2008 II L.L.J. 997
(S.C).]
The appellant who was a covered employee under the E.S.I scheme
,met with an accident in the course of his employment on June 15,
1990. The claimant suffered injury after he had ceased to be an
employee. Dismissing the appeal it was held that section-46(c) of
E.S.I. Act, 1948 specifically provides for two cumulative
conditions for its applicability: (i) first the claimant must be an
insured person; and (ii) second that such an injury must be
sustained when he was an employee. Hence, when the injury had been
sustained by the employee when he ceased to be an employee, he
would not be entitled to the benefit of disablement though his
contribution period and his status as insured person continues.
4. MEDICAL BENEFITAcc. To Sec 46(1)(e) of the ESI Act, the
medical benefit refers to medical treatment for and attendance on
insured treatment person. The medical benefit may be extended to
the family of the insured person by the corporation at the request
of the appropriate Govt.
Acc. To Sec 46(2), the extension of medical benefit to the
family of the insured person is subject to such conditions as may
be laid down in the regulation under the ESI Act,1948.Acc. To Sec
56(1), an insured person or where such medical benefit is extended
to his family, a member ofhis family whose condition requires
medical treatment& attendance shall be entitled to receive
medical benefitAcc. to Sec 56(2), medical benefit to the insured
person or to his family may be given in the form of ; i.
Out-patient treatment & attendance in a hospital or dispensary,
clinic or other institution.ii. Treatment as in-patient in a
hospital or other institution.iii.Visits to the home of the insured
persons.
Sec-2(11) of the ESI Act,1948 defines family as follows : family
means all or any of the following relatives of an insured person,
namely: i. a spouse ii. a minor legitimate or adopted child
dependent upon the injured personiii. a child who is wholly
dependent on the earning of the injured person and who is: a)
Receiving education, till he or she attains the age of 21years b)
an unmarried daughteriv. a child who is infirm by reason of any
physical or mental abnormality or injury and is wholly dependent on
the earnings of the insured person so long as infirmity continues.
v. dependent parents5. DEPENDENT BENEFITAcc. to Sec 46(1)(d),
dependents benefit is paid in the form ofperiodical payment to the
dependent of an insured person who has died as a result of an
employment injury. To claim dependentsbenefit according to Sec 52,
following conditions must be satisfiedby the dependents:i. The
insured person must have died as a result of an employment inju
ry.ii. The insured person must have sustained employment injury as
an employee under the ESI Act,1948.iii. The dependents of the
insured persons must fall within the definition of dependents under
Sec 2(6 A) of ESI Act,1948.
Dependent-The definition ofdependent under Sec 2(6A) of the ESI
Act divides dependents of the deceased insured employees into three
categories:i. First Category: The dependants of the first category
are widow, a minor legitimate son, or unmarried daughter, a widowed
mother of the deceased injured employee.ii.Second Category: The
dependants of the second category are a legitimate or adopted son
or daughter who has attained the age of 18 years and is
infirm.iii.Third category : [Sec2(6A(iii))] The third category of
dependents of the insured decease person are: a) a parent other
than a widowed mother b) a minor illegitimate son, an unmarried
illegitimate daughter or adopted or illegitimate if married and a
minor or if widowed and a minor. c) a minor brother or unmarried
sister or widow sister (minor) d) a minor child of a pre-deceased
son e) a minor child of pre-deceased daughter where no parent of
the child is alive, or f) a paternal grand parent if no parent of
the insured person is alive.In E.S.I Corporation v. Sayeeda Khatoon
Donawala and others[footnoteRef:14] [14: (1995) I L..L.J. 173
(Bom).]
A workmen waiting in the queue waiting for a bus provided by the
employer to reach the factory was runover by the same bus. It has
held that the workman sustained employment injury and the doctrine
of notional extension was applicable. Recovery of compensation from
the owner of motor vehicle or from the Insurance Company under the
Motar Vehicle Act will not absolve the employer from the making
payement under section 52 of the act.Occupational disease
(Section-52A).(1) If an employee employed in any employment
specified in Part A of the Third Schedule contracts any disease
specified therein as an occupational disease peculiar to that
employment or if an employee employed in the employment specified
in Part B of that Schedule for a continuous period of not less than
six months contracts any disease specified therein as an
occupational disease peculiar to that employment or if an employee
employed in any employment specified in Part C of that Schedule for
such continuous period as the Corporation may specify in respect of
each such employment, contracts any disease specified therein as an
occupational disease peculiar to that employment, the contracting
of the disease shall, unless the contrary is proved, be deemed to
be an 'employment injury' arising out of and in the course of
employment. (2)(i) Where the Central Government or a State
Government, as the case may be, adds any description of employment
to the employments specified in Schedule III to the Workmen's
Compensation Act, 1923, by virtue of the powers vested in it under
sub-section (3) of section 3 of the said Act, the said description
of employment and the occupational diseases specified under that
sub-section as peculiar to that description of employment shall be
deemed to form part of the Third Schedule. (ii) Without prejudice
to the provisions of clause (i), the Corporation after giving, by
notification in the Official Gazette, not less than three months'
notice of its intention so to do, may by a like notification add
any description of employment to the employments specified in the
Third Schedule and shall specify in the case of employments so
added the diseases which shall be deemed for the purposes of this
section to be occupational diseases peculiar to those employments
respectively and thereupon the provisions of this Act shall apply,
as if such diseases had been declared by this Act to be
occupational diseases peculiar to those employments. (3) Save as
provided by sub-sections (1) and (2) no benefit shall be payable to
an employee in respect of any disease unless the disease is
directly attributable to a specific injury by accident arising out
of and in the course of his employment. (4) The provisions of
section 51A shall not apply to the cases to which this section
applies.] 6. FUNERAL EXPENSESFuneral expenses is the expenditure
incurred towards the funeral of the deceased insured person. Acc.
To Sec 46(1)(f),funeral expenses are paid to the eldest surviving
member of the insured person. The insuredperson may not have a
family or may not be living with his family at the time of his
death. In such case, the funeral expenses are paid to the person
who actually incurs the expenditure on the funeral of the deceased
person.AMOUNT OF FUNERAL EXPENSESAcc. to Sec 46(f), the amount of
funeral expenses isprescribed by the central Govt. Acc to rule 59
of the ESI Central Rules, 1950, the amount of funeral expenses is
one thousand rupeesClaim for funeral expensesAcc. To Sec 46(1)(f),
the claim for funeral expenses must be made within three months of
the death of the insured person. The claim may be made with in an
extended period. Theperiod for claim may be extended by the
corporation or by any officer or authority authorized by the
corporation in thisbehalf.GENERAL PROVISIONS REGARDING ALL THE
BENEFITS Benefits not assignable or attachable [Sec(60)] Cash
benefits are not to be commuted [Sec(62)] Benefits not to be
combined [Sec (65)]Persons not entitled to receive benefit in
certain cases [Sec (63)]An insured person is not entitled to
SICKNESS BENEFIT AND DISABLEMENT BENEFIT for temporary
disablement:
On the day on which he works, or remains on leave or is on
holiday in respect of which he receive wages or, On the day on
which he remains on strike Payment of benefit to the nominated
person [Sec (71)]Adjudication of dispute & claimsEmployees
Insurance CourtInstitutions of proceedings, etc.Powers of employees
Insurance CourtReference to High CourtAppealStay of payment during
pending of appeal
Offences and penaltiesPunishment for false statement :- In this
case any false statement or false representation, shall be
punishable with imprisonment up to Rs.2000 or with bothPunishment
for failure to pay contributions :- if any person fails to pay any
contribution which under to this act he is liable to pay, he shall
be punishable with imprisonment up to three years.Punishment for
other contravention :- in contraventions like dismisses,
discharges, reduces or otherwise punishes an employee, shall be
punishable with imprisonment up to one year or with fine up to
Rs.4000 or with both
Power to recover damages :- If employer fails to pay the amount
ofcontribution then corporation may recover from the employer byway
of penality.Power of court to make orders :- If court makes order
for employer-if employer is not able to make this order within
period then employer shall be punishable with imprisonment in
respect thereofU/S.85 and shall also be liable to pay fine up to
Rs.1000 for everyday.
Miscellaneous ProvisionsExemption of a factory or establishment
(sec.87)Exemption may be granted to any factory or establishment
for maximum period of one year.Any exemption granted shall be
notified by the notification in the Official Gazette.The
appropriate Govt. while granting exemption can improve any terms
and conditions upon the factory/establishment.If required any
exemption can be renewed for max. one yearBefore granting any
exemption Corp. must be given opportunity to make representation
which has to be considered by the Govt.
Exemption of persons or class ofpersons (sec.88)
App. Govt. is authorized to exempt any person or class of person
from the operation of the actAny exemption granted shall be
notified by the notification in the Official Gazette.Such person or
class of persons must be working in a factory/establishmentAny
exemption granted shall be accompanied with such conditions as the
appropriate Govt. may think fit to impose
Exemption of a factory or establishment belonging to Govt./any
local authorityApp.Govt. must consult the CorporationAny exemption
granted shall be notified by the notification in the Official
Gazette.Exemptions shall always be subj. to the conditions imposed
by the Govt.Exemptions shall always be in order only if the
employees in any such factory/establishment are already in receipt
of benefits substantially similar or superior to the benefits
provided under this act.
Exemption from one or more provisions of the act
(sec.91)Exemption may be granted to any factory or establishment or
Any person or class of personby App.Govt.Any exemption granted
shall be notified by the notification in the Official Gazette.Any
exemption granted under the sec.87,88,90 or 91 in respect ofany
person or class of person may be enforced either prospectively or
retrospectively the date of its enforcement has to be
specified(sec.91A)
Obligation of the Employers 1). Get your Factory / establishment
registered with in 15 days after the Act becomes applicable. Submit
Form 01 to the Regional office for this purpose. Obtain Employers
code No. for use in all ESIC Forms / documents and correspondence
with the offices of the ESI Corporation.2). Fill up Declaration
Forms in respect of all coverable employees and submit the same to
the Regional Office/ Local Office of the corporation well before
the Appointed Day and obtain insurance Numbers from the concerned
Local Office/ Regional Office, In respect of newly appointed
employees, fill up the declaration form soon after appointment of
such employees and submit the same to the Local Office
Concerned.3). Pending receipt of identity cards/ identity
certificates you may issue certificate of employment in Form86 to
the covered employee(s) enabling them to avail cash/medical
Benefits4). Pay ESI contribution (Employee's Share @4.75% and the
Employers share @ 1.75% of the wages) with in 21 days of the month
following, in which the wages fall due.5) .Maintain an Accident
Book as prescribed under the Factory Act / ESI Act.6). Submit an
Accident Report to the Local Office / ESI Dispensary concerned
immediately in respect ofaccidents that could result in death or
disablement and within 24 hours of its occurrence otherwise. Minor
accidents which do not cause absence from work need not be
reported7). Grant leave to insured employees on the basis
ofsickness certificates issued by any authorized ESIdoctor.
Bar against receiving or recovery of compensation or damages
under any other law (Section-53)An insured person or his dependants
shall not be entitled to receive or recover, whether from the
employer of the insured person or from any other person, any
compensation or damages under the Workmen's Compensation Act, 1923
or any other law for the time being in force or otherwise, in
respect of an employment injury sustained by the insured person as
an employee under this Act.
Bhajan Ram v. E.S.I. Corporation[footnoteRef:15] [15: 71 Punj LR
641.]
It was held that the right of the dependent to claim benefit
under Section 53 is independent and the mere fact that some amount
of compensation has been paid to him under the Workmens
Compensation Act, 1923 would not disentitle him from realizing the
dependents benefit under the act.Deputy Genral Manager, Karnataka
State Road Transport Corporation v. Gopal Mudaliar[footnoteRef:16]
[16: (1983)I L.L.J. 340 (Karn).]
A workman while going on a bicycle met with an motor accident.
This accident does not amount to an employment injury and
therefore, no benefits are payable under section 53and so such
remedy under the Motar Vehicle Act is not barred. But if a person
is entitled to the benefits under the E.S.I Act he is debarred from
claiming any compensation under the Motor Vehicle
Act[footnoteRef:17] [17: V.Thangappan v. Tamil Nadu Industrial
Insurance Corpn., (1993) II L.L.J. 483 (Mad).]
Ashokan v. Western India Plywoods Ltd.[footnoteRef:18] [18:
(1987) II L.L.J. 183 (Kerala).]
It was held that the scheme does not purport to deal with the
tortuous liability of the employer. Therefore an employee covered
by tha E.S.I Act can sue for damages in torts because a liability
created under a statute and to be remedied under the statute does
not extinguish an accident liability existing under common law or
otherwise. The situation cannot be different even though the suit
for damages has been filed by an indigent person.
Biblography1. LABOUR INDUSTRIAL LAWS V.G. GOSWAMI2. LABOUR AND
INDUSTRIAL LAWS S.N.MISRA3. INTRODUCTION TO LABOUR AND INDUSTRIAL
LAWS -DR. AVTAR SINGH & DR. HARPREET KAUR4.
www.disabilitysecrets.com5. www.sarkaritel.com6. www.esic.nic7.
www.esickar.gov.in/esi_act.pdfSicknes benefitDefinition of
sickness: Sickness signifies a state of health necessitating
Medical treatment andattendance and abstention from work on Medical
grounds.Condition for sickness benefit :The recipient of sickness
and disablement benefit must observethe following condition.
Sickness benefit Sickness bebenefit
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