Provide compensation for esic employees case affidavit mhc judges order notice
(Special Original Jurisdiction)
W.P. NO. of 2020
S.Ambigaidass
S/O .G.S.DASS
H408 Hansa court
643 TH Road
Chennai 600019
K.Shivakumar
S/O Karuppiah
Bharath nagar
Chennai 600057 …Petitioner
Vs.
The Secretary,
Ministry of Labor and Employment,
Union of India,
Rafi Marg, New Delhi-110001,
secy-labour@nic.in
Regional director,
Andhra Pradesh,
Panchdeep Bhavan,
Gunandala,Vijayawada-520004,
rd-andhrapradesh@esic.nic.in
Regional director,
Assam [NE],
Panchdeep Bhavan,
Guwahati – 781021,
rd-assam@esic.nic.in
Regional director,
Bihar
Panchdeep Bhavan
Patna-800001,
rd-bihar@esic@nic.in
Regional director,
Chhattisgarh,
Panchdeep Bhavan,
Kota,Raipur,
rd-cgarh@esic.nic.in
Regional director,
Delhi,
Rajendra Bhavan,
New Delhi-110008,
rd-delhi@esic.nic.in
Regional director,
Goa,
Panchdeep Bhavan,
Panaji-403001,
rd-goa@esic.nic.in
Regional director,
Gujarat,
Panchdeep Bhavan,
Ahmedabad-380014,
rd-gujarat@esic.nic.in
Regional director,
Haryana,
Panchdeep Bhavan,
Faridabad-121002,
rd-haryana@esic.nic.in
10.Regional director,
Himachal Pradesh,
Panchdeep Bhavan,
Baddi Dt,
Solan-173205,
rd-hp@esic.nic.in
Regional director,
Jammu & Kashmir,
Radha Bhavan,
Shashi nagar,
Jammu-180004
rd-jnk@esic.nic.in
Regional Director,
Jharkand,
Panchdeep Bhavan,
Ranchi-834010,
rd-jharkhand@esic.nic.in
Regional director,
Karnataka,
Panchdeep Bhavan,
Binnypet,
Bengaluru-560023,
rd-karnataka@esic.nic.in
13.Regional director,
Kerala,
Panchdeep Bhavan,
Thrissur-680020
rd-kerala@esic.nic.in
Regional director,
Madhya Pradesh,
Panchdeep Bhavan,
Indore-452011,
rd-mp@esic.nic.in
Regional director,
Maharashtra,
Panchdeep Bhavan,
Lower Parel,
Mumbai-400013
rd-maharashtra@esic.nic.in
Regional director,
Orissa,
Panchdeep Bhavan,
Bhubaneshwar-751022,
rd-orissa@esic.nic.in
Regional director,
Puducherry,
Panchdeep Bhavan,
Mudaliarpet,
rd-pondi@esic.nic.in
Regional director,
Punjab,
Panchdeep Bhavan,
Chandigarh-160019,
rd-punjab@esic.nic.in
Regional director,
Rajasthan,
Panchdeep Bhavan,
Jaipur,
rd-rajasthan@esic.nic.in
Regional director,
Tamilnadu,
Panchdeep Bhavan,
Nungabakkam,
Chennai-600034,
rd-tamilnadu@esic.nic.in
Regional Director,
Telangana,
Panchdeep Bhavan,
Hydrabad-500063,
rd-telangana@esic.nic.in
Regional Director,
Uttar Pradesh,
Panchdeep Bhavan,
Kanpur-208005,
rd-up@esic.nic.in
Regional Director,
Uttarpradesh,
Panchdeep Bhavan,
Dehradun-248007,
rd-uchal@esic.nic.in
Regional Director,
West Bengal,
Panchdeep Bhavan,
Kolakata-700012,
rd-westbengal@esic.nic.in …Respondents
To THE Hon’ble Chief Justice and His Lordship’s Companion Justices of the MADRAS HIGH COURT
PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS UNDER ARTICLES 14, 19 AND 21 OF THE CONSTITUTION OF INDIA.
AFFIDAVIT OF S.AMBIGAIDASS
The Humble petition of the Petitioner above named MOST RESPECTFULLY SHEWETH :
I, S.AMBIGAIDASS S/o. Mr G.SUDHANDIRADASS, Hindu, aged about 47 years, residing at H408 Hansa Court 643 TH Road Thiruvottriyur Chennai 600019, do hereby solemnly affirm and sincerely state as follows:
The Petitioner herein is filing the instant Writ Petition in public interest under Article 226 of the Constitution of India for the enforcement of rights under Articles 14, 19 and 21 of the citizens.
The Petitioner through this Writ Petition seeks directions to the Union and the Employees State Insurance Corporation to implement the scheme named ‘Atal Bimit Vyakti Kalyan Yojana’ (ABVKY) which, in case the Insured Person (IP) is rendered unemployed, provides relief to the extent of 25% of the average per day earning during the previous four contribution periods (total earning during the four contribution period / 730) to be paid up to maximum 90 days of unemployment once in lifetime of the IP on submission of claim in form of an Affidavit.
The ESIC was formed in 1952 and during the 69 years of existence, the members never faced a pandemic situation.
The social security provision made in the ESIC Act 1948 to counterbalance or negate the resulting physical or financial distress in such contingencies, are thus aimed at upholding human dignity in times of crises through protection from deprivation, destitution, and social degradation while enabling the society the retention and continuity of a socially useful and productive manpower.
The total no of insured persons is 3,49,67,080 and no of women employees insured is 51,20,174 as on 31.03.2019 with 34 states and union territories covered by the Employees state Insurance Corporation .
The Revenue income through the contribution paid by the employer and employees is Rs.27,312.64 crores ( Rupees twenty seven thousand three hundred and twelve crores and sixty four lakhs ) whereas cash benefit paid to members is Rs.1171 crores and other expenditure on medical benefit is Rs.8721.39 crores and administrative expenses is Rs 1155.55 crores and the total expenditure is around Rs.11,048 crores and the balance payment available with ESI Corporation is Rs. 16,264.64 ( Rupees Sixteen Thousand Two Hundred Sixty Four crores and Sixty Four Lakhs ) which was contributed by the insured members with their hard earned monthly salary and the balance sheet of ESIC uploaded in their website is ANNEXURE 1
The ESIC scheme is contributory in nature where all the employees in the factories or establishment or firm to which the act applies shall be insured in a manner provided in the Act. The contribution payable to the corporation combines both employer and employees contribution at a specified rate. Earlier it was 4.75% for employers and 1.75% for employees and with effect from 1.7.2019 it was 3.25% for employers and 0.75% for employees which should be contributed to the employees state insurance corporation before 15th of each month..
The petitioner seeks to forthwith implement the “ATAL BEEMIT VYAKTI KALYAN YOJNA “ to recompense to the persons from economically weaker backgrounds who are daily wage earners or self employed or wage earners in the unorganised sector , organized sector , MSME , SME , SSI in respect of the complete deprivation of income suffered by them by the lock down and forced cessation of their vocations and trade during the national lock down for Covid-19 and the gazette notification of “ ATAL BEEMIT VYAKTI KALYAN YOJNA “ is ANNEXURE 2
The main ingredients of the scheme named ‘Atal Bimit Vyakti Kalyan Yojana’ (ABVKY) is for humbly submitted for reference
“ The Scheme has been made effective from 01-07-2018. The scheme is implemented on pilot basis for a period of two years initially. The eligibility conditions and other features of the scheme are as under:-
The Insured Person should have been rendered unemployed during the period the relief is claimed.
The Insured Person should have been in insurable employment for a minimum period of two years.
The Insured Person should have contributed not less than 78 days during each of the preceding four contribution periods.
The contribution in respect of him should have been paid or payable by the employer.
The contingency of the unemployment should not have been as a result of any punishment for misconduct or superannuation or voluntary retirement.
Aadhar and Bank Account of the Insured Person should be linked with insured person data base.
In case the IP is working for more than one employers and is covered under the ESI scheme he will be considered unemployed only in case he is rendered unemployed with all employers.
As specified in Section 65 of the ESI Act, an IP shall not be entitled to any other cash compensation and the Relief under ABVKY simultaneously for the same period. However, periodical payments of Permanent Disability Benefit (PDB) under ESI Act and Regulations shall continue.
As specified under Section 61 of the ESI Act, an IP who is in receipt of Relief under ABVKY shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment.
The IP will be eligible for Medical benefit as provided under the Act for the period he is availing this relief.
The claim for Relief under ABVKY may be submitted by the claimant any time after rendering unemployed, but not later than one year from the date of unemployment to the appropriate Branch Office in form of affidavit in prescribed Form. No prospective claim i.e. claim for relief under ABVKY for any future period will be allowed. The IP will submit his claim online through the ESIC Portal.
The Relief under ABVKY shall be paid/ payable by Branch Office to IPs directly in their bank account “
The Petitioner further seeks that, given that States and Union Territories are under fiscal stress and revenues are badly impacted due to the near complete halt of economic activity, the Union of India be directed to provide to each of the states and union territories compensation for the loss of revenue caused to them as also the additional expenditure incurred by them due to Covid-19 including in respect of the recompense to the persons deprived of income during the lockdown.
The Petitioner has in the capacity of an Advocate has been active in various matters of public interest. The present petition is filed by the Petitioner personally. The petitioner has no personal interest, or private/oblique motive in filing the instant petition. There is no civil, criminal, revenue or any litigation involving the petitioner, which has or could have a legal nexus with the issues involved in the PIL.
The Petitioner states that the Petition is filed in the background of the ongoing Covid-19 pandemic. As the facts of the pandemic are well known the Petitioner is not setting out anything in detail on the same. The Petitioner states that it is well known that given Covid-19’s rapid spread and devastation in various countries and its mode of transmission having made the lockdown unavoidable as possibly the only option available to flatten the curve of infection spread, a national lockdown was enforced from midnight of 24.03.2020 till 03.05.2020. It is now widely expected that the same may be further extended for further period and the Ministry of Home Affairs Union of India in respect of the lockdown are collectively annexed herewith and marked as Annexure 3
The Petitioner states that as the exemptions from the lock down have been limited to essential services alone there is complete stop of economic activities across the country except in respect of essential services where also the activities have been allowed on limited scale.
The Petitioner states that the sudden imposition of lock down caused serious dislocation and in the initial days of lockdown there was substantial numbers of migrant workers, persons who had earlier migrated from rural areas to urban centres for work opportunities, attempting to return to their native placed for reason of loss of employment and lack of food and shelter at the urban centres post lockdown. The same have been addressed subsequently by intervention of this Hon’ble Court and quarantine centres having been created for the migrants in the urban centres itself with provision for food.
The Petitioner states that certain steps have been taken by the Union of India under the Pradhan Mantri Garib Kalyan Yojana, announced post lock down, for the poor. The same provides some support for farmers by way of advancing cash transfers. The scheme also provides for additional free food grain and pulses to poor persons covered by Antyodaya Anna Yojana and to priority households across the country. Some support is also provided for organised sector workers. There is no provision for support to the contractual wage earners and self employed. A copy of the Pradhan Mantri Garib Kalyan Yojana is annexed herewith as Annexure 4
The Petitioner states that large number of persons in the so called informal sectors of the country are dependent on daily income generation. While some of them are wage earners such as construction workers many are persons who are engaged themselves as contract employees working under various establishments and they were covered under the esic and also paying their contributions
The Petitioner states that the estimates are that 90% of the total workforce of the country is employed in the unorganised sector and through contract . There are innumerable people who are dependent on daily work for earning with no concept of leave or pay when not working. These are not people who are either homeless or in penury but people bravely leading lives by sheer dint of their own effort and earning a livelihood by their work. Such people have not needed to depend on the freebies of the governments as they have proudly till date earned their incomes and met their needs there from.
The Petitioner states that in view of the lockdown all such persons are now completely denied their income earning opportunity and left them totally income less. Given the economic profile of most of these persons they are not persons with large savings from which they can meet expenses during such extended periods of forced NIL income.
Even persons employed by owners of small workshops and such other micro businesses and MSMEs employing 10- 20 persons would not receive any income as even their “owners” or “ Proprietors “ of small or medium or micro enterpriseswould be in the same position as the self employed persons
The Petitioner states that the lockdown has been imposed at a time of national crisis to avert an even larger disaster. Almost all citizens of the country are extending their solidarity and following the lock down gritting their teeth despite personal suffering from the lockdown to be with the nation in this war against Covid-19.
The Petitioner states that in such facts all such people of poor economic means, at least those below the creamy layer as defined for other purposes, who are in the category of such persons being persons who were having daily incomes till lock down and are now rendered without livelihood are bound to be recompensed for their loss so that they can sustain themselves and their families. Need of such a person cannot only be grains and pulses even if they are covered by NFSA. The Union and the States having imposed a lock down in larger public interest have a responsibility to ensure that the economic loss to the persons who are ill-equipped to afford such loss are compensated at least partly even if not wholly.
The Petitioner states that these persons are prevented from doing work during the lock down and are in no manner responsible for their loss of livelihood. The Union government already formulated the scheme “ ATAL BEEMIT VYAKTI KALYAN YOJNA “ in which the organized and unorganized contractual workers has paid their contributions from their hard earned salary for their future safety and security of their family.
The Petitioner states that the Union has been alive to the issues that can arise from the lockdown. There have been notifications and advisories that salaries and wages should not be withheld for period of absence due to lockdown but no specific orders has been passed by the union government , States and union territories .
The Petitioner states that while the lock down is coming to an end there is need to compensate the affected persons for the period of lockdown and loss of livelihood already suffered whether the same is extended or not.
The Petitioner states that the Union of india and ESI Corporation are bound to implement the scheme to compensate the loss of incomes of the economically weaker sections of society who were hitherto self employed or quasi self employed. Some of them would have loans such as for their vehicles or even small homes and while a moratorium is allowed for loan repayment the same does not compensate for loss of income as loan moratorium is only a deferral and is with liability for interest for moratorium period as well .
The Petitioner states that even developed countries have offered income transfers given the nature of losses suffered by their citizens due to Covid-19. Given the marginal existence of the self employed and unorganised work force there is thus need to immediately formulate an income recompense scheme aimed at such persons who have lost livelihood due to the lockdown. Needless to say the creamy layer is not the focus of the Petitioner and the entire support sought is for those self employed or daily wage earning contract employees in the economically weaker sections who have had their livelihoods snatched away by the lockdown .
The Petitioner states that with the current lockdown the states revenue flows from SGST etc would become nil. The states are also meeting increased costs to battle the Covid-19 and costs of meeting the schemes formulated .
The Petitioner states that the contribution paid by the insured members in the ESIC who were covered under the scheme “ Atal Bimit Vyakti Kalyan Yojana” (ABVKY) should be given the financial relief without filing the affidavits as stated in the scheme, as the pandemic is not allowing the insured persons with such opportunities. The Petitioner states that the Union government as the ultimate sovereign and ESI Corproration is in best position to ensure that the insured employees are compensated for both the contraction in their incomes and also for their additional expenses related to the Covid-19 pandemic including compensation for which directions are sought in this Petition .
The Petitioner states that it was necessary given the unprecedented scale of the risks faced from Pandemic a lock down, never done on such scale even in war time, had to be enforced. Even in cases of floods and other disasters the same has been normally only in a small part of the country and for limited time . The specialty of the scheme is the insured person can utilize the scheme once in life time and this pandemic covid 19 lockdown is the correct and proper time for the insured persons to utilize the scheme which was formulated in social interest and social justice .
The Petitioner states that the loss of livelihood is ongoing and serious suffering is ensuing. With no savings to bank upon the said self earners and wage earners of weaker sections of society should be given support. The Petitioner states that each of Articles 14,19 and 21 of the Constitution are infringed in the matter. The right to carry on trade and profession has been denied by executive fiat and persons who were self sufficient till 25.03.2020 on which day lock down was announced have been left in the lurch endangering the very right to life of such persons . While support is given to farmers, as agricultural operations are exempted the complete exclusion of support to the persons for whose benefit this Petition is filed is discriminatory as well . The petitioner humbly submits the Hon’ble Court is required to intervene for each of these reasons cited .
The Petitioner states that there is emergent need for financial support schemes, to be activated in respect of all persons who are in the unorganised sector and who have been deprived of livelihood by the lockdown. There is urgent need for atleast some ad hoc support is to be provided to the affected persons and such support can be adjusted against the disbursement under the scheme as and when the same is finally decided
The petitioner has not filed any other writ petition regarding the matter in dispute in this Hon’ble Court or any High Court throughout the territory of India. The petitioner has no better remedy available than approaching this Hon’ble high court for proper implementation of the scheme and savior of RIGHT TO LIFE enshrined in article 21.
GROUNDSBecause the unorganised work force including self employed are dependent for their sustenance on daily earnings and in the absence of such daily earnings their sustenance itself is at stake
Because the nature of the pandemic being unprecedented and lock down was sudden and unanticipated there was no manner in which such persons could have been better prepared and averted the consequences of the difficulties now faced by them
Because when the livelihood is blocked in national interest and not for any fault of the persons denied livelihood themselves the Union as the ultimate guardian is bound to ensure their protection
Because the schemes already formulated do not cover any compensation for livelihood loss suffered by these segments of workforce
Because any continued deprivation of income would lead to serious and irreversible social consequences for such persons
Because many of these persons have been the engines that keep the nation working whether they are the mechanics or the plumbers and electricians or Helpers or facility providers or environment and public maintenance supporting the national infrastructure and oiling its wheels .
Because the scheme “ Atal Bimit Vyakti Kalyan Yojana “(ABVKY) is already formulated by the union government and was released in gazette notification which is effective from 01.07.2018 for a initial period of two years and the insured persons are eligible to utilize the scheme only once in their life time as insured member .
PRAYERIn view of the facts and circumstances stated above, it is prayed that this Hon’ble Court, in public interest, may be pleased to Issue appropriate writ directing the Union of India and Employees State Insurance corporation to implement the scheme “ÁTAL BEEMIT VYAKTI KALYAN YOJNA” to provide compensation in the form of solatium or in any other form for loss of income , partly or wholly The ESIC insured persons working in all sectors including as contract laborers or permanent laborers for loss of income caused by the lock down imposed to combat Covid-19 and ensure implementation of the same through the States and Union territories pending the same make ad hoc payment to all affected and insured persons with ESI Corporation or Issue any other appropriate and proper writ that this Hon’ble Court may deem fit with the facts & circumstances of this petition..
It is respectfully submitted that substantial public interest is involved and there is no iota of personal interest drawn-in in preferring this Writ Petition, which is purely in the interest of safeguarding the property belonging to the Government. The Petitioner has not filed any suit or any other Writ Petition before any Court for the same relief or any other public interest litigation seeking the very same relief
It is, therefore, humbly prayed that this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other order or direction in the nature of Writ directing the Respondents 1 to 25 to pass such further order or orders as deemed fit in the circumstance of the case and thus render justice.
Solemnly affirmed at :
Chennai on this the
:
26th day of april 2020 : Petitioner
I :
