I Employees' State Insurance (Amendment) Act, 2010!

Transcription

1 .... c: ~. < - EMPLOYEES' STATE INSURANCE CORPORATION PANCHDEEP BHAWAN, CIG ROAD, NEW DELHI (Website address: ) No. X-11114/1/2002-P&D Dated: 5th June, 2010 To All Regional Directors/Jt.Dir(IIC)/SMCs/SSMCs i SubjecT:- rs in the Employees' State Insurance Act Vid~l I Employees' State Insurance () Act, 2010!.._..l.~,,_...'"._n I Sir, The ESI Act, 1948, was last amended in Taking into account the changes in economic scenario in the country since 1989, the ESI Corporation, at its 139 tn meeting held on , while discussing amendments in certain provisions of the ESI Act, decided that a sub-committee of the Corporation be constituted for reviewing the entire Act and suggesting comprehensive amendments therein taking into account the changed economic scenario. 2 Accordingly, the ESI Corporation constituted a Sub-Committee comprising of representatives of employers, employees, Members of Parliament, State and Central Government. The Committee submitted its report to the Corporation which was considered and approved by the ESI Corporation at its 142 nd meeting held on 22208, facilitating coverage of smaller factories;, Enhancing age limit of dependant children for eligibility to dependants benefit;, Extending medical benefit to dependant minor brother/sister in case of IPs not having own family and whose oarents are also not alive; 3 Based on the recommendations of the Corporation, the Government of India, Ministry of Labour & Employment formulated proposals for comprehensive amendment in the ESI Act, The ESI () Bill, 2009 which was approved by the Cabinet on and introduced in the Lok-Sabha on was referred to the Standing Committee of Parliament which presented its report to the Lok-Sabha and Rajya Sabha on The ESI () Bill, 2010, alongwith further amendments as suggested by the Parliamentary Standing Committee, was passed by the Lok-Sabha on and Rajya Sabha on , The Bill received assent of Hon'ble President of India on and has been enacted as the Employees' State Insurance () Act, 2010 (No.18 of 2010) (Copy enclosed), All the provisions of the Act (except Section - 18) have come into effect from 1st June, 2010 vide Government of India, Ministry of Labour & Employment Notification (S,Q.No,1296 (E) dated (copy enclosed). The salient features of the Act are as under:- -1-

2 , streamlining the procedure for assessment of dues from defaulting employers;,. providing an Appellate Authority within the Corporation against assessment to avoid unnecessary litigation;, Continuing medical benefit to insured persons retiring under VRS scheme or taking premature retirement;,. Treating commuting accidents as employment injury;, Streamlining the procedure for grant of exemptions;,. third party participation in commissioning and running of the Hospitals;, opening of medical/dental/paramedical/nursing colleges to improve quality of medical care;, Making an enabling provision for extending medical care to other beneficiaries against payment of user charges to facilitate providing of medical care from under-utilised ESI Hospitals to the BPL families covered under the Rashtriya Swasthaya Bima Yojana introduced by the Ministry of Labour & Employment w.e.f b.,. Reducing duration of notice period for extension of the Act to new classes of establishments from six months to one month.»: Empowering State governments to set up autonomous Corporations for administering medical benefit in the States for bringing autonomy and efficiency in the working. 4 The following sections of the ESI () Act, 2010, which do not require consequent changes in the ESI (Central) Rules, ESI (General) Regulations, 1950, will become operable from 1 st June, i) As a result of amendment in Sec.1 (5) of the Act, the notice period for extending the scheme to new sectors of employment by the 'appropriate government' have been reduced from existing six months to one month. You may bring this to the notice of the State Government and in case the final notification for extending the scheme to educational and medical institutions in the State is pending, you may request the state government to issue the final notification in case one month period after issue of intention notification is over. ii) With the amendment in Sec.2 (9) of the Act, the apprentices appointed under the Standing orders of the establishment who were earlier excluded from coverage have now become coverable. Necessary instructions may be issued to Branch Officers of Revenue Branches and Social Security Officers to ensure coverage of all such persons. iii) As a result of amendment in the definition of 'factory' in Sec.2(12) of the Act. any premises or precincts thereof where ten or more persons are employed or were employed on any day of the preceding twelve months, and in any part of which manufacturing process is carried on or is ordinarily so carried on, have become coverable. Necessary instructions may be issued to all Social Security Officers to ensure coverage of all such factories. The changed provision may also be brought into the notice of employers' organizations through notices in local newspapers. iv) Vide Sec.45 (4), a provision has been made for test inspection/reinspection. You may make use of this provision as and when required. v) Vide amendment in Sec.45-A, it has now been provided that an order passed by the Corporation under Sec.45-A can be passed only in respect of period upto 5 years. This may be brought to the notice of all officers dealing with Revenue Branches for strict compliance. vi) In Sec.51 (A) to Sec.51 (D), the words 'Insured Persons' has been substituted with the word 'employee'. This provision has been made with a view to prevent misuse of the provision by persons who have gone out of insurable -2-

3 employment but continue to be insured persons and sustain injury after ceasing to be employees. This may be brought into notice of all officers dealing with Benefit Division as well as Branch Office Manager. vii) A new Section 51-E has been inserted as a result of which an accident occurring to an employee while commuting from his residence to the place of employment for duty or vice-versa shall be treated as employment injury if nexus between the circumstances, time and place in which accident occurred and the employment is established. viii) In Sec.58 of the Act, a new provision has been made vide Sec.58 (5) and (6) empowering the State Govts. to set up autonomous organizations for administering medical benefit. This provision may be brought to the notice of concerned authorities in the state. Necessary model Bill & rules for setting up of such Corporations will be sent to the State Govts. separately. ix) A provision has been made in Sec.59 (3) for third party participation for commissioning and running ESI Hospitals. This may be taken note of and brought to the notice of State Govt. x) A new provision in Sec.5gB has been made empowering the Corporation to establish Medical Colleges, Nursing Colleges and trailing institutes for para-medical staff and other employees with a view to improve the quality of services. xi) A new chapter V(A)-Sec.73(A) to 73(F) has been created under which medical care can be provided from under utilized ESJ Hospitals on payment of user charges. Necessary detailed instructions in this regard will be issued separately by Medical Commissioner. xii) Vide amendment in Sec.87 and Sec.91(A), it has been provided that exemptions shall be granted by State Govts. only in case of substantially similar or superior benefits are provided by the employers. Further, exemptions are to be granted only prospectively and not from retrospective date. This provision may be brought to the notice of State Govts. with the request to keep this in view while granting exemptions in future. Contribution be collected from such institutions which have applied for exemption till the time they get such exemption. This issues with the approval of Director General. Receipt of this letter may please be acknowledged. Hindi version will follow. your~c (R.C.SHARMA) Director (P &0) Copy for information and necessary action to : Medical Commissioner, ESIC Hqrs. Office, New Delhi. All Officers/Branches at HORs Office. Ql AC(NTA)- for taking suitable action for training. JD(System) for putting it on the web-site. Director (P&D) -3-

4 REGD. NO. D. L l99 ~apt.t CfIT Q:he <Ga': ette of ;gjndia m:m:mut EXTRAORDINARY 'iwtj1-~ 3~-1Jq' (Ii) PART li-section 3---Sub-section Cii) ~ it litfi,"'ih PUBLISHED BY AUTHORITY ~~) ti'imslj{,~ 1, 2010~ 11,1932 xrw DELHI, TUESDAY, JUNE 1, 2010/JYAISTHA 11, 1932 MTh1'STRY OF LABOUR AND EMPLOYMENT NOTIFICATION New Delhi. the 1st June,2010 -'.. :r,; 2'1o( 31)-~ c';::;:l.< <trtn. ~tc.r) 2UIl' ~.x "''o<,:{i! q:fj '3'I-m\[ (2) ;< -' :;-:1-",,-,-;1If.l V7W1 ~ ~_ ~~ mctir ~, 20 I 0 ~ ~iib 'lii ~ 'i'itfug ~ ~ t ~ 31f~ qfr '0;- ~ ~ mt#!m1 Wf~irrn I S.O. 1296(E).-ln exercise of the powers conferred by sub-section (2) of Section I of the Employees' State Insurance () Act, 20 I 0 ( I 8 0(2010), the Central Government hereby appoints the l st day of June, 2010, as the date on which the said Act, except Section 18 thereof, shall come into force. [F. No. S-38012/0W008-S.S.-I(Vol. VII)] S. K. DEV VERMAN, Jt. Secy. "."c, :l"- --:,lh.'c.:,;," em men; ()( India i'res,. Ring Road. Mayapuri.. 'ie\\ Dclhi-l 100[>4 ~L; _' ; r~;i~ne:~;!l>:.hit' (untr\jlie! pt" I'unhcauons. DeH,,! 10054

5 REGISTERED NO. DL-(N)1l4/UU07/200J-10 Cfi1 ~he <6a~ette(f(~io 31m~ EXTRAORDINARY 'frrt 11 - ~ I PART Il-Section I ~~~ PUBLISHED BY AUTIIORITY 1,1c lj: "i' ~jl -::rt ~, ~, ll't 25, 2010 I ~ 4, 1932 NEW DELHI, TUESDAY, MAY 25, 2010 / JYAlSTHA 4,1932 ~ 'WT if f'r-r ~ ~ ~ \iffiit t mm ~ ~ amtt ~ et ~ -q \ T 'iit ~ I Separate paging is given to this Part in order that it may be filed as a separate compilation. MINISTRYOF LAW AA1>JUSTICE (Legislative Department) New Delhi. the 25th May, 201 OUyaistha (Saw) ]4tl1 The foliowmg Act of Parliament received the assent of the President on the May, 20 l U. and is hereby published for general information:- THE EMPLOYEES' STATE INSURANCE (AMENDMENT) ACT (No. 18 OF 2010) [24th MCI}\ An Act further to amend the Employees' State Insurance Act, I0.] K: It enacted by Parliament in the Sixty-first Year of the Republic oflndia as tollows.-> I. ( I ) This ACi may be called the Employees' State Insurance () Act. 20 I O. Short title and commencement. \l) Section 18 shall be deemed to have come into force on the 3rd day of July, 2008 and the remaining provisions of this Act shall come into force on such date as the Central Governrnent mav, hy notification in the Official Gazette, appoint. ;;. in the Employees' State Insurance Act, 1948 (hereinafter referred to as the principal A..:: I. In section 1. In sub-section (5), for the words "six months' ", the words "one month's" shal i be substituted of section I.

6 2 THE GAZETTE OF INDIA EXTRAORDINARY [partii- of section 2 3. In section 2 of the principal Act, - G4) in clause (6A),- (a) for sub-clause (i), the following sub-clause shall be substituted, namely:- "U) a widow, a legitimate or adopted son who has not attained the ageof'twenty-five years, an unmarried legitimate or adopted daughter, "; (h) in sub-clause (ii), for the words "eighteen years", the words "twentyfive years" shall be substituted; (B) in clause (9), for the words "or under the standing orders of the establishment;", the words "and includes such person engaged as apprentice whose training period is extended to any length of time" shall be substituted; "(v) dependant parents, whose income from all sources does not exceed such income as may be prescribed by the Central Government; (VI) in case the insured person is unmarried and his or her parents are not alive, a minor brother or sister wholly dependant upon the earnings of the insured person;"; (D) for clause (12), the following clause shall be substituted, (C) in clause (11), for sub-clause (v), the following sub-clauses shall be substituted, namely:- namely:- '(12) "factory" means any premises including the precincts thereof whereon ten or more persons are employed or were employed on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 or a railway running shed;'. 35 of In section 10 of the principal Act, in sub-section (1), for clauses (0) and (b), the of section 10. following clauses shall be substituted, namely:- "(a) the Director General, the Employees' State Insurance Corporation, ex officio as Chairman; (b) the Director General, Health Services, ex officio as Cc-chairman;". of section In section 12 of the principal Act, for sub-section (3), the following sub-section shall be substituted, namely:- "(3) A person referred to in clause (I) of section 4 shall cease to be a member on becoming a Minister or Speaker or Deputy Speaker of the House of the People or Deputy Chairman of the Council of States or when he ceases to be a member ofparliament.". of section I In section 17 of the principal Act, in sub-section (2), in clause (a), after the proviso, the following proviso shall be inserted, namely:- "Provided further that this' sub-section shall not apply to appointment of consultants and specialists in various fields appointed on contract basis,". of section 37 of section In section 37 of the principal Act, for the words "five years", the words "three years" shall be substituted. 8. In section 45 of the principal Act,- (a) for the words "Inspectors" and "Inspector", wherever they occur, the words "Social Security Officers" and "Social Security Officer" shall respectively be substituted;

7 Ssc.l ] THE GAZETfE OF INDIA EXTRAORDINARY 3 (b) after sub-section (3), the following sub-section shall be inserted, namely:- "(4) Any officer of the Corporation authorised in this behalf by it may, carry out re-inspection or test inspection of the records and returns submitted under section 44 for the purpose of verifying the correctness and quality of the inspection carried out by a Social Security Officer. ". 9. In section 45A of the principal Act, in sub-section (1),- (I) for the word "Inspector", the words "Social Security Officer" shall be substituted; (it) after the proviso, the following proviso shall be inserted, namely:- "Provided further that no such order shall be passed by the Corporation in respect of the period beyond five years from the date on which the contnbution. shall become payable.". 10. After section 45A of the principal Act, the following section shall be inserted, nameiy:- "45AA. If an employer is not satisfied with the order referred to in section 45A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the Corporation: Provided that if the employer finally succeeds in the appeal, the Corporation shall refund such deposit to the employer together with such interest as may be specified in the regulation.". n. In the principal Act, in sections 51Aand 5IB, for the words "an insured person's", the words "an employee's" shall be substituted. 12. In the principal Act, in sections 51 C and 51D, for the words "insured person", the word "employee" shall be substituted. 13. After section 510 of the principal Act, the following section shall be inserted, narnely:- "51 E. An accident occurring to an employee while commuting from his residence to the place of employment for duty or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and the employment is established.". of section 45A. Insertion of new section 45AA. Appellate authority. of sections 5lA and SIB. of sections SIC and 5ID. Insertion of new section 51E. Accidents happening while commutin& to the place of work and vice versa. 14. In section 56 of the principal Act, in sub-section (3), for the third proviso, the following proviso shall be substituted, namely:- of section 56. "Provided also that 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 benefits subject to payment of contribution and such other conditions as may be prescribed by the Central Government.". IS. In section 58 of the principal Act, after sub-section (4), the following Amendmeat sub-sections shall be inserted, namely:- of section 58. "(5) The State Government may, in addition to the Corporation under this Act, with the previous approval of the Central Government, establish such organisation (by whatever name called) to provide for certain benefits to employees in case of sickness, maternity and employment injury:

8 4 THE GAZETTE OF INDIA EXTRAORDINARY (PARTIl- Provided that any reference to the State Government in the Act shall also include reference to the organisation as and when such organisation is established by the State Government. (6) The organisation referred to in sub-section (5) shall have such structure and discharge functions, exercise powers and undertake such activities as may be prescribed. ". of section n section 59 of the principal Act, after sub-section (2), the following sub-section shall be inserted, namely:- "(3) 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 for providing medical treatment and attendance to insured persons and where such medical benefit has been extended to their families, to their families.". Insertion of new section 59B. Medical and para-medical education. Substitution of new Chapter for Chapter VA. 17. After section 59A of the principal Act, the following section shall be inserted, namely:- "59B. The Corporation may establish medical colleges, nursing colleges and training institutes for its para-medical staff and other employees with a view to improve the quality of services provided under the Employees' State Insurance$cheme.". 18. For Chapter VA of the principal Act, the following Chapter shall be substituted, namely:- 'CHAPTERVA SCHEME FOR OTHER BENEFICIARIES Defimtrons. 73A. In this Chapter,- (a) "other beneficiaries" means persons other than the person insured under this Act; (b) "Scheme" means any Scheme framed by the Central Government from time to time under section 73B for the medical facility for other beneficiaries; (c) "underutilised insured under this Act; hospital" means any hospital not fully utilised by the persons (d) "user charges" means the amount which is to be charged from the other beneficiaries for medical facilities as maybe notified by the Corporation in consultation with the Central Government from time to time. Power If) frame Schemes. Collecuon of user charges. Scheme for other benefic lanes. 73B. Notwithstanding anything contained in this Act, the Central Government may, by notification in the Official Gazette, frame Scheme for other beneficiaries and the members of their families for providing medical facility in any hospital established by the Corporation in any area which is underutilised on payment of user charges. 73C. The user charges collected from the other beneficiaries shall be deemed to be the contribution and shall form part of the Employees' State Insurance Fund. 73D. The Scheme may provide for all or any of the following matters, namely:- (i) the other beneficiaries who may be covered under this Scheme; (ii) the time and manner in which the medical facilities may be availed by the other beneficiaries;

9 SEC.I] THE GAZETTE OF INDIA EXTRAORDINARY 5 (iii) the form in which the other beneficiary shall furnish particulars about himself and his family whenever required as may be specified by the Corporation; (ill) any other matter which is to be provided for in the Scheme or which may be necessary or proper for the purpose of implementing the Scheme. 73E. The Central Government may, by notification in the Official Gazette, add to, amend, vary or rescind the Scheme. 73F. Every Scheme framed under this Chapter shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the Scheme or both Houses agree that the Scheme should not be made, the Scheme shall thereafter have effect only in such modified form or to be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Scheme.'. 19. All things done, or, omitted to be done, and all actions or measures taken or not taken during the period beginning on or after the 3rd day of July, 2008 and ending immediately before the date of commencement of the Employees' State Insurance () Act, 2010, shall in so far as they are in conformity with the provisions of this Act, as amended by the Employees' State Insurance () Act, 2010, be deemed to have been done, or taken, or not taken, under the provisions of this Act, as amended by the Employees' State Insurance () Act, 2010, as if such p.r()'vi~iooswere in force at the time such things were done or omitted to be done and actions or measures taken or not taken during the said period. 20. In section 87 of the principal Act, the following provisos shall be inserted at the end, namely:- Power to amend Scheme. Laying of Scheme framed under this Chapter. Validation. of section 87. "Provided that such exemptions 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 the appropriate Government within two months of receipt of such application.". 21. In section 91A of the principal Act, for the words "either prospectively or retrospectively", the word "prospectively" shall be substituted. 22. After section 91A of the principal Act, the following section shall be inserted, namely:- "91 AA. Notwithstanding anything contained in this Act, in respect of establishments located in the States where medical benefit is provided by the Corporation, the Central Government shall be the appropriate Government. ". 23. In section 95 of the principal Act, in sub-section (2),- (i) after clause (e.fj, the following clause shall be inserted, namely:- of section 91A. Insertion of new section 91AA. Central Government to be appropriate Government. of section 95. "(ejj) the income of dependant parents from all sources;"; (ii) after clause (eh), the following clause shall be inserted, namely:- "(ehh) the conditions under which the medical benefits shall be payable to the insured person and spouse of an insured person who has attained the age of

10 / 6 THE GAZETTE OF INDIA EXTRAORDINARY [PARTll-SEC.1] ) superannuation, the person who retires under Voluntary Retirement Scheme and the person who takes pre-mature retirement;". 24. In section 96 of the principal Act, in sub-section (I), after clause (e), the following of section 96. clause shall be inserted, namely:- of section 97. "(ee) the organisational structure, functions, powers, activities and other matters for the establishment of the organisation;". 25. In section 97 of the principal Act, in sub-section (2),- (l) in clause (zr), for the word "Inspectors", shall be substituted; the words "Social Security Officers" (ii) after clause (xx), the following clause shall be inserted, namely:- "(xxa) the constitution of the appellate authority and the interest on amount deposited by the employer with the Corporation.". V. K. BHASIN, Secy. to the Govt. of India. --_._--_..._---- PRlN1'ED BY THE GENERAL MANAGER. COV1' Of INDIA PRESS, iiolinto ROAD, NEW DELHI AND PUBLlSHF.D BY!'HE CONTROLLER OF PUBLlCArl0NS DELHI 20tO. GMGIPMRND-2626GI(S4) ,