The Employees State Insurence Act, 1948
THE EMPLOYEES' STATE INSURANCE ACT, 1948
Q.
1. Explain the following terms under the E.S.I. Act, 1948
(1)
Employee
(2)
Immediate Employer
(3)
Principal Employer
(4)
Dependant.
Ans.
(1) Employee.-'Employee' means any
person employed for wages in or in connection with the work of a factory or
establishment to which this Act applies, and
(i)
who is directly employed by the principal employer to do any work of or
incidental or preliminary to or connected with the work of the factory or
establishment, whether such work is done by the employee in the factory or
establishment or elsewhere, or
(ii)
who is employed by or through an immediate employer on the premises of the
factory or establishment, or under the supervision of the principal employer,
or his agent on work, which is ordinarily part of the work of the factory or
establishment, or which is preliminary to the work carried on or incidental to
the purpose of the factory or establishment, or,
(iii)
whose services are temporarily lent or let on hire to the principal employer by
the person with whom the person whose services are so lent. or let on hire has
entered into a contract of services. Employee in a Branch Office is employee if
Head Office is situated elsewhere, AIR 1977 Cal. 165.
It
also includes any person employed for wages on any work connected with the
administration of the factory or establishment, or any part. department of sale
of the products of the factory or establishment but does not include
(a)
any member of the Indian Naval, Military or Airforces, or
(b)
any person so employed whose wages excluding remuneration for overtime work
exceed such wages as may be prescribed by the Central Governmen. 'Employee'
term is of wide connotation.-Regional Director Estate, Insurance Corporation v.
S. Naidu, (1960) 2 LLJ 699.
The
amendment made in 2010 provides for inclusion of apprentice also Employee
includes such person engaged as apprentice whose training period is extended to
any length of time.
Casual
labour of Turf Club engaged on race-days for issue of tickets. perennial
activity are covered under definition of employee. [Roy Western India Turf Club
Ltd. v. E.S.I. Corporation, AIR 2016 SC 1143]
(2) Immediate Employer.-Immediate
Employer' in relation to employees employed by or through him, means a person
who has undertaken the execution on the premises of a factory or an
establishment, which this Act applies, or under the supervision of the
principal employer or his agent, or whole or any part of any work which is
ordinary 10 part of the factory or an establishment of the principal employer,
or is preliminary to the work carried on in or incidental to the purpose of any
such factory or establishment, and includes a person by whom the services of an
employer who has entered into a contract of service with him are temporarily
lent or let on hire to the principal employer.
(3) Principal Employer.-Principal
employer' means
(i)
in a factory, the owner or occupier of the factory and includes the managing
agent of such owner or occupier, the legal representatives of the deceased,
owner or occupier, and where a person has been named as the manager of the
factory under the Factories Act, 1948, the person so named.
(ii)
in any establishment under the contract of any department of any Government of
India, the authority appointed by such Government, in this behalf, or where no
authority is so appointed, the head of the department. (iii) in any other
establishment, any person responsible for the supervision and control of the
establishment. The definition of the principal employer is intended to catch
hold a person who is in a position to pay the contribution for the purposes of
this Act. For employees of canteen and cycle stand the principal employer is
Cinema Manager.-Royal Talkies Hyderabad v. ESI Corporation, AIR 1978 S.C. 1478.
It is held that turf clubs are not shop for the purpose of applicability of
this Act. [Bangalore Turf Club Ltd. v. Regional Director, E.S.I. Corporation,
AIR 2009 S.C. 2965].
(4) Dependant.-Dependant'
means any of the following relatives of a deceased insured person, namely
(i)
A widow, a legitimate or adopted son who has not attained the age of twenty
five years, an unmarried legitimate or adopted daughter, or a widowed mother.
(ii)
If wholly dependent on the earning of the insured person, at the time of his
death, a legitimate or adopted son, or daughter who has attained the age of
twenty-five years and is infirm.
(iii) If wholly or in part dependent on the
earning of the insured person at the time of his death :
(a)
a defendant parent other than the widowed mother whose income from all sources
does not exceed such income as may be prescribed by the Central Government:
(b)
a minor illegitimate son, an unmarried illegitimate daughter, or a daughter
legitimate or adopted or illegitimate if married and a minor, or if widowed and
a minor:
(c)
a minor brother or an unmarried sister or a widowed sister if minor:
(d)
a widowed daughter-in-law,
(e)
a minor child of a predeceased son;
(f) a minor child of a predeceased daughter
where no parent of the child is alive; or
In
case the insured person is unmarried and his or her not alive a minor brother
or sister wholly dependant upon the earning parents are
(g)
a paternal grand-parent if no parent of the insured person is alive.
The
test of dependency is the earning of the deceased, whose earnings was the only
source of livelihood. The burden lies on the claimant dependant to prove that
he was wholly dependent on the carnings of the deceased and had no other source
of income for pulling on the life.
Q. 2(a). Discuss composition,
rights and duties of Employees State Insurance Corporation.
Ans.
Composition.-Section 3(2) provides that the Corporation shall be a body
corporate and it will have its perpetual succession and common seal and shall
sue and be sued in its own name. According to Section 4, the Corporation shall
consist of the following members.
(a)
the Director General, the Employees' State Insurance Corporation ex-office as
Chairman.
(b)
the Director General, Health Services, ex-officio as Co-Chairman.
(c)
not more than five persons nominated by the Central Government.
(d)
one person from each State in which the Act is in force who are to be nominated
by the State Government of the State which he represents. (e) one
representative to represent the Union territories to be nominated by the
Central Government.
(f)
five persons representing employers to be nominated by the Central Government
in consultation with such organization of employers as may be recognized for
the purpose by the Central Government.
(g)
live persons representing employees to be nominated by the Central Government
in consultation with such organization of employees as may be recognized for
the purpose by the Central Government.
(h)
'two persons' representing the medical profession to be nominated by the
Central Government in consultation with such organizations of medical
practitioners as may be recognized for the purpose by the Central Government.
(i)
three members of Parliament, of whom two shall be the members of Lok Sabha, and
one of the Rajya Sabha, elected by their member respectively.
The
member shall cease to be member on becoming a Minister or Speaker or Deputy
speaker of Lok Sabha and Chairperson of Rajaya Sabha or when he ceases to be member of Parliament.
Rights:--(1)
The Corporation can convene its meetings.
(2)
The right of administration of the funds lies with it.
(3)
Corporation can receive grants and presents from Central and State Governments,
(4)
Corporation has to grant approval for the appointment operation of the fund by
the Standing Committee.
(5)
It has right to possess and purchase property. (6) It can take loans also under
Section 29 (3).
(7)
Corporation can manage fund for its staff or for any class of it.
(8) All the properties earned before the
establishment of the corporation shall vest in it.
(9)
All the contributions made shall vest in the corporations. (10) Newly inserted
Section 59B empowers the Corporation to manage for imparting medical and para
medical education. The Corporation may establish Medical Colleges, Nursing
Colleges and training institutes for its paramedical state and other employees
with a view to improve the quality of services provided under the E.S.L.
Scheme.
(11)
The power to prescribe the rate of contribution. (12) Right to receive returns
from the employers, and power to give directions in regard to their proforma
etc.
(13)
The Corporation has power to appoint social security officers also. Social
Security Officers.-Any officer of the Corporation authorized in this behalf by
it may carry out re-inspection or test inspection of the records and return
submitted under Section 44 for the purpose of certifying the correctness and
quality of the inspection carried out by a social security officer.
The
Corporation may also enter into agreement with any local authority, local body
or private body for commissioning and running Employees' State Insurance
Hospitals through third party participation fom providing medical treatment and
attendance to insured persons and where such medical benefit is extended to
their families.
An
insured person who has attained the age of superannuation, a person who retires
under a Voluntary Retirement Scheme or takes premature retirement, and his
spouse shall be eligible to receive medical benefit subject to payment of
contribution and such other conditions as may b prescribed by the Central
Government.
Duties.-(1) The main duties
of the corporation is to administer the insurance fund.
(2)
The corporation shall deposit the amount payable in this fund, under the
provisions, or other rules or regulations framed for this purpose, in the
Reserve Bank of India or any other bank which has been approved by the Central
Government.
(3)
The proper management of the fund by the Corporation is essential.
(4)
The Corporation shall defray the charge of audit from this fund.
(5)
The Corporation shall send the yearly reports of its transactions and
activities to the Central Government.
(6)
The duty of valuation of its assets and liabilities lies on the Corporation.
Q. 3 . Discuss the various benefits
available to employes under the provisions of the Employee's State Insurance
Act, 1948. it necessary that the employee claiming the benefit must be insure
under the Act?
OR
What are the benefits to the
employees under the Employees' State Insurance Act, 1948?
Ans. Benefits available to the
Employees.-According to the provisions of Sections 46 to 73,
the following benefits are available to the employees. They are available to
the insured person and their dependent.
(1) Sickness Benefit.-According
to Section 47. a person qualified to claim sickness benefit shall be entitled to receive such benefits at
the rates specified in the First Schedule, only for the period of sickness. The
claimant must be in such a condition which requires medical treatment, and
abstention from work. This fact should be certified by a competent recognized
medical practitioner. Such benefit cannot be given for more than 56 days and
for first days of sickness.
(2) Maternity Benefits.-An
insured woman can claim this benefit for confinement, but not for exceeding a
period of 12 weeks of which not more than 6 shall precede the expected date of
confinement (delivery). In case the insured woman dies within this period, the
child born shall get the benefit if alive for whole of that period, or her
legal nominee or legal representative shall get the benefit.
(3) Disablement Benefit-According
to Section 51, if any person who sustains temporary disablement for not less
than 3 days, excluding the day of accident shall be entitled to periodical
payment for the period of such disablement. For permanent disablement, he will
get in accordance with the provisions of First Schedule. Such person should be
certified to be entitled to such benefit by the prescribed authority under the
regulation. Accident should have arisen in course of employment-Regional
Director E.S.I.C. v. Lakshuni, 1979 Lab IC 167.
(4) Dependant Benefit.-The
dependants of the deceased shall be entitled to such benefits provided he died
due to the accident arising out of and in the course of employment. The
dependants, claiming the benefit should prove that they were really wholly or
partially depending on the earnings of the deceased. They should come under the
purview of dependants as defined under Section 6-A. Such benefit may be
reviewed.
(5) Medical Benefits.-According
to Section 56 an insured person or (where benefits extended to his family also)
any member of his family. which requires medical treatment of attendance, will
be entitled to the medical benefit, either as outdoor patient in the hospital
or by visits to the home by the doctors. Even the casual employees can get this
benefit. They shall not be entitled to claim reimbursement from Corporation of
any expenses incurred by him except what is thus provided.
(6) Funeral Benefits.-Such
benefit shall be given to the senior most member of the family of the deceased
if he had family, but which was not living with him, or to the person who
really borne the funeral expenses. The amount of such benefit shall not exceed
Rs. 5000/- Such benefit may be available only by the dependants of the deceased
person and not by any other person.
It
may be noted that the benefits shall not be combined; for example both sickness
benefit or maternity benefit, or both sickness and disablement benefit, or
maternity benefit and disablement benefit.
Central
Government may frame a scheme for other beneficiaries for medical facilities
with members of the insured person's family. Such facility may be provided in
any hospital established by the Corporation in any area which is underutilized
on payment of user charges which shall be deemed to be the contribution and
shall form part of Employees' State Insurance Fund. The time and manner of
availing of the medical facilities in such underutilized hospitals. Such
beneficiaries who pay user charges have to fill up a form furnishing
particulars about themselves and their family if required to do so.
The
amendment made by Act 18 of 2010 in Section 58 provides that the State
Government, may in addition to the Corporation under this Act with the previous
approval of the Central Government, establish such organization by whatever
name called to provide for benefits to employees in case of sickness, maternity
and employment injury. The reference to State Government shall also include
reference to such organization when established.
Such
established organization shall have such structure and discharge functions,
exercise powers and undertake such activities as may be prescribed by the
scheme framed by the Central Government.
There
is provision for exemption for providing benefits. Amended section 87 says
Provided that such exemption 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.
Provided
further that an application for renewal shall be made three months before the
date of expiry of the exemption period and a decision on the same shall be
taken by appropriate government within two months of the receipt of such
application.
References:-
https://www.casemine.com/act/in/5a979db74a93263ca60b72f0
https://mahakamgar.maharashtra.gov.in/images/pdf/employees-state-insurance-act-1948.pdf
https://indiankanoon.org/doc/88376/
https://www.esic.nic.in/Tender/ESIAct1948Amendedupto010610.pdf
https://www.ilo.org/dyn/travail/docs/687/Employees%20State%20Insurance%20Act%201948.pdf
https://azrefs.org/schedules-to-be-edited.html
https://www.casemine.com/act/in/5a979db74a93263ca60b72ef
https://www.ephjournal.com/index.php/hss/article/download/424/346
https://ccsuniversity.ac.in/bridge-library/pdf/Unit-25_State-Insurance-Act.pdf
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