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QUES. Explain in details the various benefits available to employees under the provisions of the Employees State Insurance Act, 1948. How are the disputes and claims adjudicated under the Employess State insurance Act, 1948? State the powers of the Employees Insurance Court? ABOUT EMPLOYEE STATE INSURANCE ACT 1948 The Employees’ State Insurance Act, 1948 is one of the most important laws that provide social security. It contains six kinds of ESI benefits that injured employees can avail. All of these benefits must arise in the course of employment in order to enable workers to access them. Employees' State Insurance Scheme is a unique and unparalleled Social Security Scheme. Unique and unparalleled because no Social Security Scheme in the world provides as many benefits as ESI Scheme in India. The advent of Social Security is as old as trade Union Movement. The workmen in Industry or elsewhere did not get anything else than their wages. With the dawn of Trade Union Movement the bargaining power of the workers increased and thus slowly trickling of benefits started. Health hazards in the Industry made it imperative to have some Medical / health Insurance and it culminated in the Schemes like ESI. On the demand of Trade Unions in 1920s and 30s, the Government agreed to get the demands studied and a committee under the Chairmanship of Sh. B N. Adarkar was set up only in March 1947, just before Indian independence. He was appointed by the Government of India to create a Health Insurance scheme for industrial workers. A year later the report he submitted became the basis for the Employment State Insurance (ESI) Act of 1948. Employees' State Insurance Act, 1948 was promulgated to safeguard the workmen
in the contingencies like sickness, maternity, disablement and death due to employment injury and to provide medical care to insured persons and their families. The Scheme was started on 24th Feb, 1952 by the then PM at Kanpur and Delhi simultaneously with few thousand workers. Now the Scheme covers more than 2 Crore workers and total beneficiaries over 8 Crore in India and is operational in all States and UTs. The ESI Scheme applies to factories and other establishments wherein 10 or more persons are employed. Employees of the aforesaid categories of factories and establishments, drawing wages up to Rs.15, 000/- ( Now, it is proposed to extend the limit to Rs. 21,000/-. The notification has also been issued on 6.10.16.) a month as defined under Section 2(9) of the ESI Act. The ESI Scheme is financed by contributions from employers and employees. The rate of contribution by employers is 4.75% and that of employees is 1.75% of the wages payable to an employee. Employees, earning less than Rs.137/- a day as daily wages are exempted from payment of their share of contribution. The employer, once allotted an ESIC Code number in respect of a factory/ establishment can login through the employer page on the web portal and register the employees. Each employee is allotted an insurance number, which is unique and will be valid throughout the life of the employee despite changes in the jobs. On registration every insured person (IP) is provided with a 'Temporary Identification Certificate' (TIC) which is valid for a month. In the meantime s/he is required to register himself at an Enrolment Centre with his Photo and Finger prints with family to obtain a permanent Pehchan Card in Duplicate, one for him and other for the family. In case of loss a Duplicate card is issued on payment of Rs.25/- at the designated Branch Office.
ESI Benefits
Section 46 of the Act describes all benefits that an injured employee can avail. It is important to note that a worker can avail these benefits in the course of employment only. For example , if a worker suffers an injury, this injury must be an employment injury only.
1. Medical Benefit
Medical benefit includes the medical care package (free of cost) consisting of outpatient treatment, in-patient treatment, specialist consultation, X-ray and laboratory investigations, supply of drugs, dressings, artificial limbs, aids and appliances, health improvement services such as vaccination, preventive inoculations and periodical health check up, ante-natal care, confinement and post- natal care and family welfare services such as supply of condoms, oral pills and doing IUCDs, vasectomy and tubectomy. An insured person and his/ her dependents become entitled to medical care from the date he enters the insurable employment and the entitlement continues as long as the insured The Corporation provides the medical care mainly through a network of ESI dispensaries, hospitals and panel clinics set up all over the country. Super specialist treatments are provided through the country’s most advanced medical institutions for which payments are made directly by the ESI Corporation to the institution concerned. The Corporation also provides treatment for occupational diseases through the Occupational Diseases Centres set up. Medical care is provided by and large to the beneficiaries in modern system of medicine (Allopathic). Facilities in indigenous systems like Ayurvedic, Unani, Homoeopathic and Sidha are also being provided to the beneficiaries on demand. The ESI Scheme also provides for a comprehensive medical cover to the retired and disabled insured persons and their spouses on payment of anominal sum of Rs.120 per annum per couple. Cash Benefit
2. Sickness Benefit:
Sickness benefit consists of review costs in cash to an insured employee in the event of his sickness licensed by a duly allotted medical practitioner or by any other human being possessing such qualifications and experience as particular by the ESI Corporation [Sec. 46(a)]. Qualifying Conditions An insured employee is allowed to sickness benefit in reverence of his sickness during any benefit period, if during the corresponding contribution period, contributions in respect of him were payable for not less than 78 days. A newly appointed employee, who has a giving period of less than 156 days, is entitled to
claim sickness benefit if he pays involvement for not less than half the number of days available for working in such a contribution period. Rate of Sickness Benefit Presently, the sickness benefit is payable at 20 per cent more than the 'standard benefit rate' corresponding to his daily average wages. Duration Sickness benefit is to be paid an insured person for the duration of the period of sickness, but for not more than 91 days in any two successive benefit periods. Situations Under Which Sickness Benefit is Not Payable Sickness benefit is not due for any day on which the worker works, remains on go away, holiday or strike, for which he receives wages [Sec. 63]. However, sickness benefit is to be allowed to him for the days on which he remains on strike if: (i) he is receiving medical treatment and number present as an indoor patient in any ESI hospital or a hospital recognized by the ESI Corporation for such treatment; (ii) he is allowed to accept extended sickness benefit for any of the diseases for which such benefit is acceptable; or (iii) he is in receipt of sickness benefit directly earlier the date of commencement of notice of the strike given by the employees' union to the management of the factory or establishment apprehensive. Sickness benefit is also not payable for the first 2 days of sickness following at an period of less than 15 days after the sickness for which sickness benefits were last paid. Enhanced Sickness Benefits The sickness benefit of an insured employee fulfilling the eligibility conditions may be enhanced for a further period of 7 days in case of vasectomy on 100% wages on the basis of medical certificate. Extended Sickness Benefit Insured person’s (IPs) distress from confident specified diseases (presently 34 in number) are permitted to 'extended sickness benefit' for an extended period beyond 91 days of sickness benefit. An insured employee is entitled to 'extended sickness benefit' if he has been in continuous employment for a period of 2 years and has paid contributions for 156 days in four successive contribution periods. The benefit is complete for 124 days in the first case, but which may be extended for 2 years during a period of 3 years of insurable employment. The rate of extended sickness
Medical Bonus As insured woman and an insured man with respect to his wife are entitled to a medical bonus of 2,500 if confinement occurs at a place where necessary medical facilities under the ESI scheme is not available.
4. Disablement Benefit:
Disablement benefit is payable in the form of periodical payment to an insured person suffering from disablement as a result of employment injury sustained as an employee under the Act and for specified occupational diseases, but a certificate of disablement from an authority specified under regulations is necessary. [Secs. 46(C) 52(A)]. Disablement benefits is payable both for temporary and permanent disablement: (A) Temporary disablement benefit (TDB) : From day one of entering insurable employment & irrespective of having paid any contribution in case of employment injury. Temporary Disablement Benefit at the rate of 90% of wages is payable so long as disability continues. (B) Permanent disablement benefit (PDB) : The benefit is paid at the rate of 90% of wage in the form of monthly payment depending upon the extent of loss of earning capacity as certified by a Medical Board. . Qualifying condition: Insured employees are entitled to disablement benefit from the date of their coming into insurable employment, even if no contribution has been paid. Rate and duration of disablement benefit: The rates, duration and condition relating to payment of disablement benefit, whether for temporary or permanent disablement, are to be such as prescribe by the central government. [Sec. 51].
5. Occupational Diseases
Contracting of occupational diseases as specified in the Third Schedule of the Act is also deemed to be employment injury arising out of and in the course of
employment and disablement benefit at the 'full rate' is payable accordingly. If the government adds any occupational disease in the list of diseases specified in Schedule III of the Employees' Compensation Act, 1923 it will also be considered as an occupational disease for the purposes of this Act. The ESI Corporation is also empowered to add other occupational diseases and employments to which they are peculiar in the Third Schedule of this Act. Generally speaking, the occupational diseases specified in the Employees' Compensation Act, 1923, are the same as those specified under this Act [Sec. 52A, Third Schedule and Schedule III of Employees' Compensation Act, 1923].
6. Rehabilitation Allowances
The ESI Corporation also provides for vocational and physical rehabilitation allowances. Both allowances are payable in the case of physical disablement resulting from employment injury. Vocational rehabilitation allowance is the amount of the fee actually paid or ` 123 per day, whichever is higher, and is payable till the completion of training. The physical disablement allowance is payable at the rate of wages of the employee till he is in the artificial limb centre.
7. Dependents’ Benefit:
Dependants’ benefit is payable in the form of periodical payment of an insured person who dies as a result of employment injury sustained as an employee under the Act. [Sec.46(d)]. The dependents’’ benefits is payable to (i) a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter, (ii) (ii) a widowed mother, and (iii) (iii) if wholly dependent on the earnings of the insured person at the time of death, a legitimate or adopted son or daughter who has adained the age of 18 years and is infirm.[Sec.(1)].11 If there are3 no such dependents, the benefit is payable to other dependent. Qualifying conditions: Dependents’ benefits is payable to the dependents of the deceased employee even when he has paid no contributions during his insurable employment.
vocational rehabilitation in case of disabled insured persons under 45 years of age with 40 per cent or more disablement, free supply of aids and appliances such as crutches, wheelchairs, dentures, spectacles and other such physical aids and preventive health care services such as immunisation, HIV/ AIDS detection etc.
1. Funernal expenses
Funeral expenses include payment towards the expenses on the funeral of aninsured person who has died. It is payable to the eldest present member of the deceased person's family. Where the insured person did not have a family or was not living with his family, the benefit is payable to the person who actually incurs the expenses of the funeral. The sum of funeral benefit is not to go beyond the sum prescribed by the central government. The maximum sum of funeral expenses is pleasantly ` 5,000. A claim for payment of funeral expenses must be made within 3 months of death of the insured person or within such an extended period as allowed by the Corporation or an officer or authority of the Corporation authorized to do so [Sec. 46(1)].
2. Old age medical care: This benefit is available for retired employees,
or those who left employment after suffering an injury, with general compensation being Rs. 120 p/m.
3. Unemployment Allowance (Rajiv Gandhi Shramik
Kalyan Yojna)
The scheme, which was adopted in 2005, provides for payment of unemployment allowance to those insured employees who cease to continue in the insurable employment on account of closure of establishment, retrenchment or permanent invalidity due to nonemployment injury. The qualifying conditions for eligibility to the benefit are: (i) having remained insured prior to the loss of insurable employment, (ii) (ii) having paid c (iii) Contribution for 3 years preceding the date of loss of employment, and (iv) having been entitled to sickness benefit for the period corresponding to the immediately preceding four contribution periods. The daily rate of unemployment allowance is the 'standard benefit rate' corresponding to
the average daily wage of the insured employee during four contribution periods preceding the date of unemployment. It is payable to a maximum period of 12 months during lifetime. (v) Unemployment allowance cannot be combined with sickness benefit, maternity benefit or disablement benefit for temporary disablement. The scheme also provides for skill-upgradation training for a maximum period of 6 months. The insured employee and his or her dependent family members are also entitled to medical care for a period of 1 year from the date of unemployment.
How are the disputes and claims adjudicated under the
Employee’s State insurance Act, 1948?
ADJUDICATION OF DISPUTES AND CLAIMS
74. Constitution of Employees’ Insurance Court. — (1) The 1 [ State ] Government shall, by notification in the Official Gazette, constitute an Employees’ Insurance Court for such local area as may be specified in the notification. (2) The Court shall consist of such number of judges as the 1 [ State ] Government may think fit. (3) Any person who is or has been a judicial officer or is a legal practitioner of five years’ standing shall be qualified to be a Judge of the Employees’ Insurance Court. (4) The 1 [ State ] Government may appoint the same Court for two or more local areas or two or more Courts for the same local area.
(^2) [ (f) * * * ] (g) any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, 3 [ or any other matter required to be or which may be decided by the Employees’ Insurance Court under this Act ] , such question or dispute 4 [ subject to the provisions of sub-section (2A) ] shall be decided by the Employees’ Insurance Court in accordance with the provisions of this Act. (2)^5 [ Subject to the provisions of sub-section (2A), the following claims ] shall be decided by the Employees’ Insurance Court, namely : — (a) claim for the recovery of contribution from the principal employer ; (b) claim by a principal employer to recover contributions from any immediate employer ; 1 [ (c) * * * ] (d) claim against a principal employer under section 68 ; (e) claim under section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto ; and (f) If any claim for the recovery of any benefit admissible under this Act. (^2) [ (2A) If in any proceedings before the Employees’ Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees’ Insurance Court, that Court shall direct the Corporation to have the question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees’ Insurance Court under sub-section (2) of section 54-A in which case the Employees’ Insurance Court may itself determine all the issues arising before it. ]
(^3) [ (2-B) No matter which is in dispute between a principal employer and the Corporation in respect of any contribution or any other dues shall be raised by the principal employer in the Employees’ Insurance Court unless he has deposited with the Court fifty per cent. of the amount due from him as claimed by the Corporation : Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section. ] (3) No civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by 1 [ a medical board, or by a medical appeal tribunal or by the Employees’ Insurance Court ]. P. Asokan v. Western Indian Plywood Ltd. 1987 (1) LLJ 182. Where there is the filing of a suit after the payment of court fee, the suit at that stage cannot be dismissed without considering and deciding an issue as regards the sustainability of a statutory bar which the defendant may raise. Modi Steel Unit v. ESI Corporation 1989 (59) FLR 176. It is within the power of the tribunal to correct the mistakes or even set aside the ex parte orders. Such inherent powers must be vested in the authority, otherwise it would not be in a position to exercise its judicial or quasi-judicial functions in a proper manner so that the cause of justice is advanced. Radhey Shyam Chintamani v. ESI Corporation, 1989 (1) LLN 931. It is not for the Corporation to dismiss the claim on the ground of limitation that the claim for benefit was not in accordance with the regulation made in that behalf within a period of 12 months after the claim became due.
76. Institution of proceedings, etc. — (1) Subject to the provisions of this Act and any rules made by the 2 [ State ] Government, all proceedings before the Employees’ Insurance Court shall be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose.
(2) Every such application shall be in such form and shall contain such particulars and shall be accompanied by such fee if any, as may be prescribed by rules made by the State Government in consultation with the Corporation. ESI Corporation v. Moti Lal 1995 (71) FLR 82 Where after the scrutiny of the claim by the Corporation, the claim is denied by the Corporation, then and only then considering the language of s. 77, cause of action arises to an insured person so as to commence the proceedings before the ESI Court. ESI Corporation v. Kailash Narain 1995 (71) FLR 10 Where by an employee a claim is made before the Corporation and the claim is accepted but in part, it would be taken that the Corporation has refused to make payment to the extent the claim of the employee has not been accepted
78. Powers of Employees’ Insurance Court. — (1) The Employees’ Insurance Court shall have all the powers of a civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such Court shall be deemed to be a civil Court within the meaning of 1 [ section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974) ]. (2) The Employees’ Insurance Court shall follow such procedure as may be prescribed by rules made by the 2 [State] Governments. (3) All costs incidental to any proceeding before an Employees’ Insurance Court shall, subject to such rules as may be made in this behalf by the^2 [ State ] Government, be in the discretion of the Court. (4) An order of the Employees’ Insurance Court shall be enforceable as if it were a decree passed in a suit by a civil Court. S.C. Bose v. ESI Corporation 1991 (60) FLR 539.
Initiation of proceedings under Article 226 of the Constitution cannot be thrown out on the sole ground of availability of an alternative remedy at the stage of appeal. The position of the ESI court is as that of domestic tribunal. The court has to decide the questions in regard to entitlement of disablement benefit and the claim for recovery of benefit and while deciding the court acts in the capacity of exercising original jurisdiction and not as a court of appeal or a civil court reviewing a decision of domestic tribunal- 1992 (74) LT 280.
79. Appearance by legal practitioners, etc. — Any application, appearance or act required to be made or done by any person to or before an Employees’ Insurance Court (other than appearance of a person required for the purpose of this examination as a witness) may be made or done by a legal practitioner or by an officer of a registered trade union authorised in writing by such person or, with the permission of the Court, by any other person so authorised. [ 80. Benefit not admissible unless claimed in time. — * * * ] 81. Reference to High Court. — An Employees’ Insurance Court may submit any question of law for the decision of the High Court and if does so shall decide the question pending before it in accordance with such decision. 82. Appeal. — (1) Save as expressly provided in this section, no appeal shall lie from an order of an Employees’ Insurance Court. (2) An appeal shall lie to the High Court from an order of an Employees’ Insurance Court if it involves a substantial question of law. (3) The period of limitation for an appeal under this section shall be sixty days.
State the powers of the Employees Insurance Court?
Section 78 in The Employees' State Insurance Act, 1948.
- Powers of Employees Insurance Court. (1)The Employees Insurance Court shall have all the powers of a Civil Court for the purposes of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such court shall be deemed to be a Civil Court within the meaning of 1[section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)]. (2) The Employees Insurance Court shall follow such procedure as may be prescribed by rules made by the State Government. (3) All costs incidental to any proceeding before an Employees Insurance Court shall, subject to such rules as may be made in this behalf by the State Government, be in the discretion of the court. (4) An order of the Employees Insurance Court shall be enforcea ble as if it were a decree passed in a suit by a Civil Court. S.C. Bose v. ESI Corporation 1991 (60) FLR 539. Initiation of proceedings under Article 226 of the Constitution cannot be thrown out on the sole ground of availability of an alternative remedy at the stage of appeal. The position of the ESI court is as that of domestic tribunal. The court has to decide the questions in regard to entitlement of disablement benefit and the claim for recovery of benefit and while deciding the court acts in the capacity of exercising original jurisdiction and not as a court of appeal or a civil court reviewing a decision of domestic tribunal- 1992 (74) LT 280.
