Dear All,
To bring more clarity in the subject matter, I submit / re-submit as under:
1. I completely agree with Harsh Kumar ji that, the construction agencies who are employing 10 ( or 20 depending on State Govt. notification under section 1(5)), number of employees in their offices and the office is situated in an implemented area,are to be covered.
2. I also completely agree with Harsh Kumar ji that, If the construction workers are engaged in a covered factory or establishment, they are to be considered to be the employees of that covered factory/establishment which engaged them, are to be covered.
3. Now the question is, whether the construction workers engaged at construction sites in implemented area are to be covered under the Scheme or not?
I repeat what I said earlier in regards to Serial No. 3 above:
1. The Practice of Law is, construction workers are not covered under the Scheme, invariably.
2. However, there is a difference of opinion on it.
3. I came across some cases wherein the Corporation is claiming contribution from constructions companies in respect of construction workers.
I want to share that some the construction companies have made representation at various places i.e. during inspection, in personal hearing (C-18), in the matter under section 75(2B) on following points:
1. By virtue Circular 4/99, ESIS is not applicable construction workers at site;
2. The Central Ministry is well aware of non-implementation of ESIS for construction workers and proposed decision of its' implementation is pending for want of Notification in this regards;
3. In the previous inspections, no such demand raised by the corporation and why it is now only?
4. And many more.
Even I have seen that the applicants i.e. Construction Companies had strong prima-facie cases to prove in their favour, the court has not granted exemption from depositing 50% of the claim amount or less in the court.
I have seen the representation made to the ESIC Head Quarters as well as to the Central Ministry before filing an application by some of the construction companies under section 75(2B) but in vein.
All this thing I am not suppose to share in public but still I am doing it in good faith so that my professional colleagues will get a picture on applicability of ESIS to construction workers.
Experts should do value additions in this.
From India, Mumbai
2556To bring more clarity in the subject matter, I submit / re-submit as under:
1. I completely agree with Harsh Kumar ji that, the construction agencies who are employing 10 ( or 20 depending on State Govt. notification under section 1(5)), number of employees in their offices and the office is situated in an implemented area,are to be covered.
2. I also completely agree with Harsh Kumar ji that, If the construction workers are engaged in a covered factory or establishment, they are to be considered to be the employees of that covered factory/establishment which engaged them, are to be covered.
3. Now the question is, whether the construction workers engaged at construction sites in implemented area are to be covered under the Scheme or not?
I repeat what I said earlier in regards to Serial No. 3 above:
1. The Practice of Law is, construction workers are not covered under the Scheme, invariably.
2. However, there is a difference of opinion on it.
3. I came across some cases wherein the Corporation is claiming contribution from constructions companies in respect of construction workers.
I want to share that some the construction companies have made representation at various places i.e. during inspection, in personal hearing (C-18), in the matter under section 75(2B) on following points:
1. By virtue Circular 4/99, ESIS is not applicable construction workers at site;
2. The Central Ministry is well aware of non-implementation of ESIS for construction workers and proposed decision of its' implementation is pending for want of Notification in this regards;
3. In the previous inspections, no such demand raised by the corporation and why it is now only?
4. And many more.
Even I have seen that the applicants i.e. Construction Companies had strong prima-facie cases to prove in their favour, the court has not granted exemption from depositing 50% of the claim amount or less in the court.
I have seen the representation made to the ESIC Head Quarters as well as to the Central Ministry before filing an application by some of the construction companies under section 75(2B) but in vein.
All this thing I am not suppose to share in public but still I am doing it in good faith so that my professional colleagues will get a picture on applicability of ESIS to construction workers.
Experts should do value additions in this.
From India, Mumbai
Dear All,
I want to just add that, we must read the Circular 4/99 very carefully and interpret as to where it is mentioned that the constructions sites or all the construction workers are exempted from coverage of ESIS.
From India, Mumbai
I want to just add that, we must read the Circular 4/99 very carefully and interpret as to where it is mentioned that the constructions sites or all the construction workers are exempted from coverage of ESIS.
From India, Mumbai
Dear Bijay ji,
ESI Act and BOCW Act are two different enactments with different objects all together. The benefits under ESIS, therefore, can not be substituted by the medical benefits or benefits under BOCW Act. The benefits under both the enactments are separate in nature.
From India, Mumbai
ESI Act and BOCW Act are two different enactments with different objects all together. The benefits under ESIS, therefore, can not be substituted by the medical benefits or benefits under BOCW Act. The benefits under both the enactments are separate in nature.
From India, Mumbai
I appreciate the efforts made by learned members Harsh kumar and keshavji to clarify the issue of coverage of construction workers under ESI with reference to the circular 4/99. My views on the interpretation of circular are as under:
If one goes by the language of Sec.1(5) which empowers the appropriate government to cover an establishment other than a factory by a notification.Thus it makes it clear that the coverage is only in respect of an establishment but not with reference to the employees.However the question whether all persons employed in a covered establishment are to be admitted to ESI benefits or not is to be decided with reference to the definition of 'employee' under Sec.2(9) read with Rule (50) which lays down the wage and the employment nexus criteria.Thus there are cases where the courts held that labour engaged casually or on daily wage basis can also fall within the purview of the definition of 'employee'. If so the question thus arises is why not construction labour?.In my view the object of a welfare legislation like ESI is to implement the various schemes under it successfully by ensuring that the employees covered under the Act shall be able to avail them in times of need but not merely covering as many employees as possible, This is possible only where the employees are identifiable.Probably the ESIC must have found it difficult to implement the schemes with reference to construction labour because of their migratory and highly mobile nature.This part, the conditions of minimum contributions for certain benefits might alos be difficult to comply with in respect of migrant labour. The.The ESIC thus referred to these factors in the said circular to exempt construction workers at project sites.
As keshavji pointed out, I have not come across use of any language in the circular 4/99 that specifically exempts project sites or all employees working at project sites from coverage. This is obvious from the language that the permanent employees of the construction agencies like Engineers or supervisors at project sites are very much covered.
This is my interpretation. Any other view is welcome.
B.Saikumar
In-House HR & IR Advisor
From India, Mumbai
If one goes by the language of Sec.1(5) which empowers the appropriate government to cover an establishment other than a factory by a notification.Thus it makes it clear that the coverage is only in respect of an establishment but not with reference to the employees.However the question whether all persons employed in a covered establishment are to be admitted to ESI benefits or not is to be decided with reference to the definition of 'employee' under Sec.2(9) read with Rule (50) which lays down the wage and the employment nexus criteria.Thus there are cases where the courts held that labour engaged casually or on daily wage basis can also fall within the purview of the definition of 'employee'. If so the question thus arises is why not construction labour?.In my view the object of a welfare legislation like ESI is to implement the various schemes under it successfully by ensuring that the employees covered under the Act shall be able to avail them in times of need but not merely covering as many employees as possible, This is possible only where the employees are identifiable.Probably the ESIC must have found it difficult to implement the schemes with reference to construction labour because of their migratory and highly mobile nature.This part, the conditions of minimum contributions for certain benefits might alos be difficult to comply with in respect of migrant labour. The.The ESIC thus referred to these factors in the said circular to exempt construction workers at project sites.
As keshavji pointed out, I have not come across use of any language in the circular 4/99 that specifically exempts project sites or all employees working at project sites from coverage. This is obvious from the language that the permanent employees of the construction agencies like Engineers or supervisors at project sites are very much covered.
This is my interpretation. Any other view is welcome.
B.Saikumar
In-House HR & IR Advisor
From India, Mumbai
Dear Sai Kumar ji,
You are absolutely right, Sir. Also, Construction Industry is an accident prone.
Yes. This circular is interpreted this way only. Not only Engineers or Supervisors but also the Carpenters, Masons, Fitters, Welders etc. are to be covered under ESIS. Only the helpers, male coolie and female collie who are engaged on purely temporary basis are to be excluded.
From India, Mumbai
You are absolutely right, Sir. Also, Construction Industry is an accident prone.
Yes. This circular is interpreted this way only. Not only Engineers or Supervisors but also the Carpenters, Masons, Fitters, Welders etc. are to be covered under ESIS. Only the helpers, male coolie and female collie who are engaged on purely temporary basis are to be excluded.
From India, Mumbai
@Mr. Keshav Sir,
Agree the enactments are different and benefits too.Concept of welfare of these employees were being considered so i mentioned the BOCW act.
Also your attention is sought towards how the benefit part is neglected.
Yet Appreciate your efforts in education us.Thanks to citehr too.
Thanks all.
Bijay
From India, Vadodara
Agree the enactments are different and benefits too.Concept of welfare of these employees were being considered so i mentioned the BOCW act.
Also your attention is sought towards how the benefit part is neglected.
Yet Appreciate your efforts in education us.Thanks to citehr too.
Thanks all.
Bijay
From India, Vadodara
Dear All,
ESIC is applicable for all the construction workers w.e.f 01/05/2011. There is a official letter from ESIC (X-II/14/1/2008-P&D dated
27/08/2010) and notified in Gazette of india Notification No-501.
From India, Bangalore
ESIC is applicable for all the construction workers w.e.f 01/05/2011. There is a official letter from ESIC (X-II/14/1/2008-P&D dated
27/08/2010) and notified in Gazette of india Notification No-501.
From India, Bangalore
Dear Praveen446,
Can you please provide the forum the said notification?
Such an important Notification how the HR fraternity is not aware of?
The circular which you refered here, my request to you to read it carefully.
From India, Mumbai
Can you please provide the forum the said notification?
Such an important Notification how the HR fraternity is not aware of?
The circular which you refered here, my request to you to read it carefully.
From India, Mumbai
Dear All,
I am extremely sorry for referring the wrong official letter.
Kindly refer Circular No- P-12/11/11/60/2010-Rev-II dated January 03, 2011 issued by the ESIC, New Delhi.
Best Regards
Praveen Bhosale
9204959753
From India, Bangalore
I am extremely sorry for referring the wrong official letter.
Kindly refer Circular No- P-12/11/11/60/2010-Rev-II dated January 03, 2011 issued by the ESIC, New Delhi.
Best Regards
Praveen Bhosale
9204959753
From India, Bangalore
Dear Mr. Praveen Bhosale,
Thanks for quoting the right No. of Circular issued by ESIC , New Delhi .
Wish to inform through this forum to all concerned HR /IR fraternity members that after seeing the said circular ( No. P-12/11/11/60/2010-Rev-II ,Dt.03-Jan-11) , I had instantly met Mr. Sanjay Sinha , the then Jt. Director, ESIC, Wagale Estate,Thane ; who had clarified my genuine doubts about the extension/ implementation of the ESIC Scheme to the construction site workers.
He categorically explained about Central Govt intension of the said circular and told to wait till final circular is issued regarding implementation of the ESIC Act @ construction site. However, till date no such circular issued by ESIC for implementation / extension of the ESIC Schemes to construction site. Therefore there is no question of implementation of the ESIC Act @ site.
If you go through the last para of the said circular wherein is clearly mentioned that " all RDs/ Directors/ Jt. Director Incharges are requested to conduct survey in the first phase of Public Limited Companies engaged in construction activities in the implemented areas and submit a report latest by 31- Jan-2011"
We don't know , whether any survey report was submitted by ESIC RDs / Directors / Jt. Director in this regard till date ( more than three years have passed) , and if submitted what was its findings and afterwards we don't come across any official circular by ESIC from New Delhi till date.
Therefore , I request to all concerned don't become panic by reading any Govt Circulars/ Notifications. It should be read it very carefully and then discuss with your team members and other HR fraternity forums and then line of action may please be taken , based on consensus.
By giving such above explanation, I feel there is no space for further ambiguity/confusion in this regard . However , members are requested to post their comments for further healthy discussion from HR/IR fraternity point of view.
Thanks,
Anil Sharma
From India, Pune
Thanks for quoting the right No. of Circular issued by ESIC , New Delhi .
Wish to inform through this forum to all concerned HR /IR fraternity members that after seeing the said circular ( No. P-12/11/11/60/2010-Rev-II ,Dt.03-Jan-11) , I had instantly met Mr. Sanjay Sinha , the then Jt. Director, ESIC, Wagale Estate,Thane ; who had clarified my genuine doubts about the extension/ implementation of the ESIC Scheme to the construction site workers.
He categorically explained about Central Govt intension of the said circular and told to wait till final circular is issued regarding implementation of the ESIC Act @ construction site. However, till date no such circular issued by ESIC for implementation / extension of the ESIC Schemes to construction site. Therefore there is no question of implementation of the ESIC Act @ site.
If you go through the last para of the said circular wherein is clearly mentioned that " all RDs/ Directors/ Jt. Director Incharges are requested to conduct survey in the first phase of Public Limited Companies engaged in construction activities in the implemented areas and submit a report latest by 31- Jan-2011"
We don't know , whether any survey report was submitted by ESIC RDs / Directors / Jt. Director in this regard till date ( more than three years have passed) , and if submitted what was its findings and afterwards we don't come across any official circular by ESIC from New Delhi till date.
Therefore , I request to all concerned don't become panic by reading any Govt Circulars/ Notifications. It should be read it very carefully and then discuss with your team members and other HR fraternity forums and then line of action may please be taken , based on consensus.
By giving such above explanation, I feel there is no space for further ambiguity/confusion in this regard . However , members are requested to post their comments for further healthy discussion from HR/IR fraternity point of view.
Thanks,
Anil Sharma
From India, Pune
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ESI - Construction site workers.pdf
ESI- Construction workers.doc