Dear Anil ji,
With due respect to you Sir, I am not agree with your above quoted sentence.
There is an ambiguity. There is a confusion. I came across many cases wherein the Corporation is demanding contribution from Construction Employers in respect of construction workers. I came across some cases in courts in this regards. I came across a representation made to various level of bureaucrats and to the ministry at Central. One of the learned members of this forum Sai Kumar ji has also said that he has not come across the use of any language in the circular 4/99 that specifically exempts project sites or all employees working at project sites from coverage. The subject title of the circular 4/99 says "coverage of construction agencies/offices of builders under ESI Act - Clarification thereof" can be read in different perception in my view.
So, there is an ambiguity. There is a confusion. You may agree to disagree with me.
In our whole Legal system, there is ambiguity and confusion. ESI Act is not free from it. In fact, ambiguities and confusions in ESI are many. Even there is no uniformity across the country in many respects.
My question to you and other HR fraternity is, under such situation, what we should do?
I am asking this question so that some thing may came out by which we can really contribute to bring uniformity in the system of Law.
Similar question is asked my me in another thread on Coverage of Petrol Pumps under Factories Act wherein also there is a presence of multiple interpretations. Link of this thread is https://www.citehr.com/492917-covera...ct-1948-a.html
From India, Mumbai
2556With due respect to you Sir, I am not agree with your above quoted sentence.
There is an ambiguity. There is a confusion. I came across many cases wherein the Corporation is demanding contribution from Construction Employers in respect of construction workers. I came across some cases in courts in this regards. I came across a representation made to various level of bureaucrats and to the ministry at Central. One of the learned members of this forum Sai Kumar ji has also said that he has not come across the use of any language in the circular 4/99 that specifically exempts project sites or all employees working at project sites from coverage. The subject title of the circular 4/99 says "coverage of construction agencies/offices of builders under ESI Act - Clarification thereof" can be read in different perception in my view.
So, there is an ambiguity. There is a confusion. You may agree to disagree with me.
In our whole Legal system, there is ambiguity and confusion. ESI Act is not free from it. In fact, ambiguities and confusions in ESI are many. Even there is no uniformity across the country in many respects.
My question to you and other HR fraternity is, under such situation, what we should do?
I am asking this question so that some thing may came out by which we can really contribute to bring uniformity in the system of Law.
Similar question is asked my me in another thread on Coverage of Petrol Pumps under Factories Act wherein also there is a presence of multiple interpretations. Link of this thread is https://www.citehr.com/492917-covera...ct-1948-a.html
From India, Mumbai
Dear Mr. Koregaonkar,
For purpose of coverage you can go through the Bare Act elaborating the coverage of ESIC. No where in the Act, construction companies are excluded from the coverage. Referring to instruction no: 4/99, same also reads that "Such construction agencies which are employing 20 or more persons in their offices and the offices are situated in implemented areas are coverable under the scheme." Only the worker located at remote sites where ESIC benefits can not be extended are excluded.
I have my own experience on this when we got written NOC from regional ESIC office at Rajasthan for excluding workers posted at site for a Highway project from the coverage of ESIC.
Secondly, all such construction companies situate their registered offices at Metro locations or big cities which are covered under Shops & Establishments act as well as ESIC. But work sites are supposed to obtain separate licenses under Factories Act as in case of installation RMC plant or under Mining Act where quarrying is involved.
From India, Gurgaon
For purpose of coverage you can go through the Bare Act elaborating the coverage of ESIC. No where in the Act, construction companies are excluded from the coverage. Referring to instruction no: 4/99, same also reads that "Such construction agencies which are employing 20 or more persons in their offices and the offices are situated in implemented areas are coverable under the scheme." Only the worker located at remote sites where ESIC benefits can not be extended are excluded.
I have my own experience on this when we got written NOC from regional ESIC office at Rajasthan for excluding workers posted at site for a Highway project from the coverage of ESIC.
Secondly, all such construction companies situate their registered offices at Metro locations or big cities which are covered under Shops & Establishments act as well as ESIC. But work sites are supposed to obtain separate licenses under Factories Act as in case of installation RMC plant or under Mining Act where quarrying is involved.
From India, Gurgaon
Dear Aniltoexcel,
Thank you for your participation.
May I request for the copy of NOC from regional ESIC office at Rajasthan for excluding workers posted at site for a Highway project from the coverage of ESIC? This may help me in the cases with me.
From India, Mumbai
Thank you for your participation.
May I request for the copy of NOC from regional ESIC office at Rajasthan for excluding workers posted at site for a Highway project from the coverage of ESIC? This may help me in the cases with me.
From India, Mumbai
Dear All PFA copy of Circular dated 02 01 2011 regarding extension of ESI coverage to the Construction workers for information. N Nataraajhan
From India, Bangalore
From India, Bangalore
Dear Mr. N Nataraajhan It is an internal circular of ESIC , not for general public.So the old circular is still in force.
From India, Kolkata
From India, Kolkata
Apart from what Soubhik said, the circular of 20111, in my view, does not seem to be the final word on the coverage of construction sites since it proposes to conduct a survey and collect necessary data to examine whether it should review the position taken in the circular 4/99. and till then the circular 4/99 rules the subject.
B.Saikumar
In-House HR & IR Advisor
Navi Mubai
From India, Mumbai
B.Saikumar
In-House HR & IR Advisor
Navi Mubai
From India, Mumbai
Dear Friends,
Most of the arguments are < & > so it is better to engage any Contractor who is having all ESI & PF registration code numbers . Because there is no clarity among Government Departments / State to State . As a HR persons we can not disobey the orders of authorities , we can not go in argument way with them. The PF / ESI circulars are frequently issuing or changing firstly there is no a single circular on STAND.
Regards,
PBS KUMAR
From India, Kakinada
Most of the arguments are < & > so it is better to engage any Contractor who is having all ESI & PF registration code numbers . Because there is no clarity among Government Departments / State to State . As a HR persons we can not disobey the orders of authorities , we can not go in argument way with them. The PF / ESI circulars are frequently issuing or changing firstly there is no a single circular on STAND.
Regards,
PBS KUMAR
From India, Kakinada
Sir(s),
With reference to remarks of seniors and experienced HR officials and Advisors as mentioned above, I may submit as follows:-
(1) In my opinion, there is no ambiguity or it is also wrong to say that there is no clarity in the circulars issued by ESIC on coverage of construction sites.
(2) The correct position, in my opinion, has been mentioned by me in my remarks in this thread earlier. "Construction sites/agencies' are treated as separate class of establishments under section 1(5). Only the employees of construction agencies doing (a) repair/extension work in covered establishments/factories ( as per section 2(9) and (b) their offices located in implemented areas( u/s 1(5) are coverable as shops under said Act. This is what the circular No. 4/99 dated 14/6/99 of ESIC tries to explain.
(3) If there is no proper implementation of policy guidelines, the issue can be contested either at higher level or in honourable courts. The policy guidelines are required to be interpreted with reference to provisions of Act/rules/regulations and notifications issued under section 1(3) or 1(5) of ESI Act, 1948. Some of the contributors are interpreting the circular dated 3/1/2011 as notification for coverage of construction sites, which is not correct. The circular dated 3/1/2011 is just a internal circular of ESIC and is not relevant for general public.
(4) The appropriate governments have never issued any notification covering "construction sites" under provisions of ESI Act, 1948. It is another aspect, that by virtue of judicial interpretations that offices of such construction companies, are treated as "shop", hence coverable in view of notifications issued under section 1(5) by the appropriate governments.
(5) I hope that on account of my this submission, Seniors, HR officials etc. may kindly re-consider their opinion so that they may be able to form proper opinion to avoid any wrong interpretation and unnecessary litigation in the matter.
From India, Noida
With reference to remarks of seniors and experienced HR officials and Advisors as mentioned above, I may submit as follows:-
(1) In my opinion, there is no ambiguity or it is also wrong to say that there is no clarity in the circulars issued by ESIC on coverage of construction sites.
(2) The correct position, in my opinion, has been mentioned by me in my remarks in this thread earlier. "Construction sites/agencies' are treated as separate class of establishments under section 1(5). Only the employees of construction agencies doing (a) repair/extension work in covered establishments/factories ( as per section 2(9) and (b) their offices located in implemented areas( u/s 1(5) are coverable as shops under said Act. This is what the circular No. 4/99 dated 14/6/99 of ESIC tries to explain.
(3) If there is no proper implementation of policy guidelines, the issue can be contested either at higher level or in honourable courts. The policy guidelines are required to be interpreted with reference to provisions of Act/rules/regulations and notifications issued under section 1(3) or 1(5) of ESI Act, 1948. Some of the contributors are interpreting the circular dated 3/1/2011 as notification for coverage of construction sites, which is not correct. The circular dated 3/1/2011 is just a internal circular of ESIC and is not relevant for general public.
(4) The appropriate governments have never issued any notification covering "construction sites" under provisions of ESI Act, 1948. It is another aspect, that by virtue of judicial interpretations that offices of such construction companies, are treated as "shop", hence coverable in view of notifications issued under section 1(5) by the appropriate governments.
(5) I hope that on account of my this submission, Seniors, HR officials etc. may kindly re-consider their opinion so that they may be able to form proper opinion to avoid any wrong interpretation and unnecessary litigation in the matter.
From India, Noida
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ESI - Construction site workers.pdf
ESI- Construction workers.doc