How ESIC credit amount of Reimbursement of Medical Claim Bill

Regulation-96 A reads as follows:- Claims for reimbursement of expenses incurred in respect of medical treatment of IP and his family may be accepted in circumstances and subject to such conditions as the Corporation may by general or special order specify.

The following conditions have been laid down under this Regulation :-

Full authority is vested with the State Government concerned to reimburse expenditure in respect of medical treatment of IP and his family.

It may be left to the discretion of the State Government to decide the Authority within their machinery who will approve the expenditure in question; and

Time limit for submission of the claims for reimbursement is one yearThe State Government has to keep in view the following points while considering the cases of reimbursement of expenditure on Medical Care:

Whether such facilities for which reimbursement is recommended are not available with the State.

Whether the hospital where the IP was sent or proposed to be sent was/is the nearest hospital having required facilities/services.A List of Types of cases for which reimbursement is permitted is given below:-

• Reimbursement is permissible in case of failure of the mobile dispensary van due to technical defects or otherwise to adhere to its schedule timings or where IP attached to such a dispensary sustained serious injuries or suffered from serious illness during off hours of the dispensary.
• IPs and their family members had to resort to private treatment during the off hours of ESI dispensary/Emergency Centre due to unavoidable circumstances.
• Medicines prescribed by IMO/Specialist were out of stock in the ESI Dispensary/Approved Chemist thereby compelling the IPs to make purchases from the market.
• Medicines prescribed by Specialist and not provided by the IMO/IMP and where specialist considered such special Medicines absolutely necessary for the treatment of the beneficiaries as no substitute medicine was considered equally efficacious whether as an out patient or in patient.
• Special appliances prescribed by Specialist such as Spinal supports, Cervical Collars, Walking Callipers, and Crutches, etc. if considered necessary as part of the treatment.
• Where an IMO/IMP failed to make domiciliary visit requested by an IP thereby compelling the IP to make private arrangement for treatment. Under the panel system such cost is recoverable from the IMP if recommended after investigation by the Medical Service Committee.
• Serious cases of accident or illness admitted directly into recognised hospitals where owing to the clinical condition of the patient, being unconscious or otherwise, it was not possible to reveal his identity as an ESI patient and the hospital authorities recovered hospital expenses directly from the patient or the employer.
• Serious cases of accident/illness where a beneficiaries was admitted directly at a private hospital or in a non-recognised hospital where admission in a hospital recognised under the scheme would have seriously jeopardised his health like sudden heart attacks, fracture of the spine, cerebral haemorrhage, etc.
• Expenditure incurred on investigation for blood transfusion.
• Mental cases that may have incurred expenditure either as an out patient on specialised Therapy such as ECT etc.
• Serious cases of accident and illness admitted to recognised hospitals where all the reserved ESI beds were occupied.

ESIC to Proof the Coverage of Establishment under ESI Act

Case Name - 2021 LLR 1160

MADRAS HIGH COURT
Hon'ble Mr. M. Govindaraj, J.
C.M.A. No. 650 of 2016 and C.M.P. No. 5354 of 2016,
Dt/– 3-6-2019

M/s. Kandagiri Spinning Mills Ltd.

vs.

The Regional Director, ESI Corporation

JUDGMENT

1. The above appeal is directed against the order passed by the E.S.I.O.P.No.5 of 2003, dated 26.7.2015 by the ESI Corporation.
2. The brief facts leading to filing of the present Civil Miscellaneous Appeal is as follows;
• (i) The appellant is a spinning mill covered under the provisions of ESI Act and it is paying contribution for all the eligible employees promptly.
• (ii) The petitioner received notice in form C-18 dated 8.7.2002 on adhoc basis, directing the petitioner to pay a contribution of Rs.8,84,407/- comprising of repairs to building, machinery generator, vehicle maintenance, loading and unloading charges, stipend paid to staff and apprentice and exgratia payment made to trainees for the period from 1995 to 1996.
• (iii) In response to the show cause notice, the appellant by its letter dated 28.6.2003, submitted some split up figures along with the annexures to explain the same. They have also requested to adjust the dues from the excess amount remitted by them, and to drop the proceedings in respect of payment of stipend made to their apprentices/trainees.
• (iv) On 29.5.2003, the respondent passed an order under section 45-A of the ESI Act. The said order did not disclose as to how the contribution was determined at Rs.8,84,407/- even though it is stated that the order was passed based on the records available before him. Since the order passed under section 45 A of the Act did not disclose any material to arrive the contribution at Rs.8,84,407/-, the appellant preferred a petition in ESIOP.No.5 of 2003 under Sections 75 and 76 of Employee State Insurance Act 1948 before the ESI Court.
• (v) The appellant has examined 7 witnesses AW1 to AW7 and marked Exhibits A1 to A55. On the side of the respondent, RW1 to RW12 were examined as witnesses and Ex.R.1 to Ex.R.12 were marked.
• (vi) The ESI Court, considering the evidence, held that the Mill should have bifurcated the expenses incurred in respect of repairs to building, machinery, generator, vehicle maintenance, stipend paid to staff and apprentice , exgratia and wages, but in the absence of any bifurcation of expenditure and wages, the above expenditures would fall under the ambit of 'wage' and it is liable to pay the contribution as http://www.judis.nic.in per the judgment reported in 2012 LLR 1024 (Goa Bottling Co.Pvt. Ltd., Vs. Dy. Regional Director, ESIC, Goa and others) and thereby dismissed the petition.
• (vii) Aggrieved over the same, the appellant Management is before this Court.
3. According to the appellant, the certified standing order permits engagement of apprentices. The said apprentices will fall within the purview of ESI Act and no contribution need to be paid by the appellant.
• 3.1 Secondly, the expenses incurred towards machinery maintenance, buildings, construction, purchase of machineries cannot be treated as wages and no contribution need to be paid.
• 3.2 Thirdly the ESI Court failed to render a factual finding on the merits of the case, but confirmed the order passed under Section 45A of the ESI Act.
4. Insofar as the question of apprentice is concerned, Ex.P.1 dated 30.07.1983 is the standing orders of the appellant company. The employment standing orders empowers the company to engage the apprentices. Once the employment standing orders provide for engagement of the apprentices, they cannot be treated as workers/employees. Unless it is ascertained by the respondent that the workers are skilled and that the management is exploiting them in the guise of apprenticeship. Till it is proved, the contribution is exempted.
5. Infact, the witness RW1 who deposed on behalf of the respondent ESI Corporation would admit that the contribution is exempted in respect of apprentices. In his evidence, he has deposed that during the inspection of the appellant Mill, he heard from the Union Leaders that the management is engaging apprentices for 5, 6 years, but did not mention the name of the Union Leader not identified the apprentices through records and personal verification.
6. He would further depose that 40% of the employees were shown as trainees and apprentices, but he could not distinguish the duties and responsibilities between the regular workmen and the trainees or apprentices, the wages and stipend paid to them for want of bifurcation of expenditure by Management.
7. It is well settled the inspector shall discharge the initial onus to prove the persons employed in the factory are regular workers, their names and wages paid to them as well as the number of apprentices engaged and the stipend paid to them. There was a specific report stating that the apprentices were engaged beyond the permitted period and that they were paid their wages under the nomenclature of stipend in order to exempt them from the coverage of payment of contribution. A perusal of the documents marked as Ex.R.1 to Ex.R.12 would show only the correspondences and notices exchanged between the appellant and the respondent. There are no materials to show with respect to the engagement of apprentices and avoidance of contribution.
8. On the other hand, Ex.P.29 reads the terms and conditions of engaging apprentices and the stipend paid during the training period for them. The stipend varies from cadre to cadre on the basis of efficiency and experience in respect of various trades. The respondent corporation without producing relevant materials, has made a vague reply and let in unsubstantiated evidence in this regard.
9. The ESI Court relying on the judgment of the case reported in http://www.judis.nic.in 2011 LLR 604 (Sree Mangayarkarasi Mills (P) Ltd., Madurai District Vs. The Assistant Provident Fund Commissioner, Madurai and another) has held that it is improper to engage 300 apprentices and 300 regular workmen who were equal in number and non payment of contribution by the employer in respect of apprentices is incorrect. Further the payment of stipend varies from time to time and the quantum of stipend varies from person to person. The contention of the ESI corporation that the management is liable to pay contribution to the apprentices is held to be proper.
10. Since the Management had failed to produce relevant records before the ESI Authority, but produced the same before the ESI Court raises a reasonable doubt that they were fabricated. But, it is relevant to note that as discussed above, the appellant management has produced Ex.A.1 Employment standing Orders and Ex.A.29- book containing the terms and conditions of engagement of apprentices which cannot be fabricated as they are statutory requirements. Only because it is not produced before the ESI Authority, it cannot be construed what is produced before the ESI Court is a fabricated document. Perhaps, for want of legally trained brain, they could not act in strict adherence of the procedure as claimed by them.
11. When the very same management is assisted by a legally trained person like a lawyer, they could produce those documents before Court on his advice. Only because they were produced before the ESI Court, the presumption of the learned Judge that they were fabricated is not sustainable and erroneous. The evidence of respondent witness RW1 clearly shows that the Inspector has failed to record the names of the persons regularly employed and the names of the apprentices and the wages/stipend paid to them respectively. In such a situation, it should be construed that the initial onus on the shoulders of the respondent ESI Corporation was not discharged.
12. The evidence of RW1 is purely a hearsay without any specific details. During the cross examination, RW1 would state that he heard from the Labour Union Leader that the apprentices are engaged for 5, 6 years and that he was not aware of the name of the Union Leader. In the absence of materials with regard to the number of regular workmen, number of apprentices, name of the Union Leader, a vague statement made by the respondents witness cannot be relied on. Therefore, the finding of the ESI Court is absolutely without any valid http://www.judis.nic.in evidence and without appreciation of the evidence produced on the side of the appellant Management in proper perspective. Therefore, the finding in this regard is liable to be set aside.
13. Learned counsel for the appellant has relied on the judgment of this Court reported in 2015 LLR 1253 (Regional Provident Fund Commissioner, Employees Provident Fund Organisation, Madurai Vs. Employees' Provident Funds Appellate Tribunal, New Delhi and another), wherein, it is held as follows
    

    '4. The learned counsel appearing for the petitioner contends that the numbers of apprentices were more than the regular employees and therefore the impugned order cannot be sustained. This contention cannot be accepted, because the mode of appointment of apprentices is different from the regular appointment and on the basis of documents placed on record by the department and the employer, the Appellate Authority has recorded a fining of fact that the workers said to be regular were only apprentices and not regular employees and thus not covered under the Employees Provident Fund Act. This Court in exercise of Writ jurisdiction does not sit in appeal to reappraise the evidence unless the findings are perverse or are not capable of being arrived at, merely because other view is also possible cannot be a ground to interfere. The only ground of challenge is that apprentices were more than regular employee which cannot be accepted, as a positive finding of http://www.judis.nic.in fact cannot be interfered with on presumption.

14. He has also relied on a judgment of the Andhrapradesh High court reported in 2005 (1) LLN 726 (AP) reported in Boc India, Ltd. (Formerly known as Indian Oxygen, Ltd) Vs. Assistant Regional Director, Employees' State Insurance Corporation and another), wherein, it is held as follows;
    

    '12. In the present case, the respondents did not find any persons engaged in the activity of transport of cylinders within the premises of the factory. They only assumed that the activity of transport involves in persons entering the premises. In this regard, it needs to be borne in mind that the term “working on the premises of the establishment”, cannot take in its fold the situations of the casual or occasional presence of the persons in the factory. It is true that for the purpose of loading the cylinders and unloading the empty cylinders, the driver of the vehicle and the hamalies have to enter the premises. 

    So is the case with various persons who are required to unload the raw material, or even to transport the workers to the premises of the factory. If mere entry for such purposes alone is to be treated as the yardstick, every person who enters the factory for whatever purpose, deserves to be covered under the definition. It can never be said to be the purport of the expression. The words “ person who has undertaken execution on the premises of the factory” employed in the definition, indicate the presence of the persons for execution of the principal activity of the industrial establishment, and not a casual entry.” Therefore, in view of the above mentioned judgments, the finding of the trial court in this regard is erroneous and the same is liable to be set aside.

15. 15. Secondly, the expenses incurred towards machinery maintenance and payment towards building construction and payment towards purchase of machineries and spare parts is concerned, the appellant has filed exhibits P.1 to P.44 and P.52 in respect of loading and unloading, freight charges and weighment charges.
16. 16. A perusal of these documents clearly show that the payment for cotton loading and unloading through voucher numbers of specific dates and the amount paid towards the same. There are specific documents bifurcating the loading and unloading charges, freight charges and weighment charges. It cannot be held that the claim of contribution on the total amount is sustainable. The finding of the ESI Court that the bifurcation is not given to distinguish it from wages is factually illegal on the face of the records.
17. 17. Likewise, the documents marked vide Ex.P.45 to 55 would clearly show the details about the expenses and wages incurred in respect of building repair, purchase of spare parts and machinery repairs, purchase of materials and repair of vehicles. Therefore the finding of the ESI that there is no bifurcation of the labour charges and expenditure is also erroneous.
18. 18. In the judgment of this Court reported in Manu/TN/1930/2003 in the case of Regional Director, Employees' State Insurance Corporation Vs. Sundaram Clayton Ltd and others) , it is held as follows;
19. In Exhibit A3, marked in ESIOP.No.77 of 1987, the total value of the work is shown in which 10.21 per cent is shown towards labour charges and in the same petition under Exhibit A4, the total value of the work is shown in which 11.17 per cent is shown towards labour charges, but no evidentiary value can be attached to the same, in that they have been prepared by P.W.2, the Civil Engineer of the respondent-company. The fact remains that break up figures had not been furnished and shown in the account book of the respondent-company in respect of labour charges and the cost of construction of the buildings of the respondent-company for the relevant period. In such case, the claim of the Employees' State Insurance Corporation that such labour charges should constitute 25 percent in the total cost of construction is well founded. Therefore, the order of the Employees' Insurance Court that such labour charges would constitute only 17 per cent is not proper. In that view, the respondent-company is to make contribution at 25 per cent which is not unreasonable.
20. In the result, the common order of the Employees' Insurance Court is set aside only with respect to the labour charges fixed at 17 per cent and consequently these appeals are allowed to that extent and the respondent-company is liable to make contribution at 25 per cent in respect of labour charges of the total cost of the buildings of the respondent- company for the relevant period and in other respect the order of the Tribunal is confirmed. No costs.'
21. This Court, in its judgment dated 6.7.2007 in CMA.No.842 of 2000, has held as follows;' “ In view of the said submissions and having regard to the ESI code number furnished in respect of the security staff in the affidavit filed in support of the stay petition, I am of the view that the said claim can be verified by the ESI Corporation by giving sufficient opportunity and the ESI Court can pass fresh order.

7. In the result, the order in ESIOP.No.34 of 1991 dated 11.4.1997 is set aside only with regard to the direction to pay contribution towards security charges and the matter is remitted to the eSI Court to determine the said liability alone i.e., liability to pay contribution towards security charges. The direction in the order with regard to contribution towards the building maintenance and Driers' salary are confirmed. The appeal is allowed partly only in respect of the direction to pay Labour charges for Air Conditioning and servicing and Boiler maintenance.' 

20. It is seen from the records that the documents relied on by the parties have not been properly appreciated and contribution has not been correctly assessed. In view of the above judgments and for the foregoing discussions, the order of the Employees Insurance Court in ESIOP.No.5 of 2003, dated 28.7.2015 is not sustainable and accordingly set aside and the matter is remitted back to the respondent. The respondent corporation is directed to assess the contribution based on the documents marked before Employees' Insurance Court and issue appropriate demand based on the same.

21. In the result, the appeal is allowed with the above directions. No costs. Conseuquently, the connected C.M.P.No.5354 of 2016 is closed.

Public Holiday Not Applicable to Private Sector

Bharat Ratna “GanSamradni” Ms Lata Mangeshkar’s sad demise on 6th February 2022 has left an irrevocable void in the world of music and arts. To mourn the great singer’s departure and the resultant loss; under the authority conferred to the State Government by Negotiable Instruments Act ,1881(statute 26 of 1881) section 25, the Govt. of Maharashtra hereby declares Monday, 7th February 2022 as a public holiday for mourning.

Maharashtra Public Holiday on sad demise of Padmashree Ms Lata Mangeshkar

It is contended that on the demise of Bharat Ratna Ms Lata Mangeskar the Government of Maharashtra issued No. SarVasu-1122/Pr kra. 21/Karya– 29 under Negotiable Instruments Act, 1881.

The declaration of a holiday by the government under theNegotiable Instruments Act of 1881 will not be compulsory or mandatory to private companies falling under the Factories Act of 1948 and the State Shop and Establishment Act. It will be applicable to Banks and Financial Institutions and respective Governments departments only by which such notifications are issued.  If any company wants to give paid holiday then there is no law restricts to give such holiday.

 Refer –

1. Tara and Others vs. Director, Social Welfare and Others [(1998) 8 SCC 671], the Hon'ble Supreme Court
2. The Management Of vs The Presiding Officer on 4 October, 2019 by the Hon'ble Madras High Court
3. Does Public Holiday Include Private Companies Also 

Dose Public Holiday Include Private Companies Also

Does Public Holiday Include Private Companies Also

Bharat Ratna “GanSamradni” Ms Lata Mangeshkar’s sad demise on 6th February 2022 has left an irrevocable void in the world of music and arts.

To mourn the great singer’s departure and the resultant loss; under the authority conferred to the State Government by Negotiable Instruments Act ,1881(statute 26 of 1881) section 25, the Govt. of Maharashtra hereby declares Monday, 7th February 2022 as a public holiday for mourning.

For notification Visit :-  Public Holiday for Bharat Ratna Ms Lata Mangeshkar’s sad Demise

After getting Notification Public Holiday for the sad demise of Bharat Ratna Ms Lata Mangeskar, every one has started asking is Private Sector or company shall also remain closed on the public holiday for mourning by the Nation & State.

 

It is contended that on the demise of Bharat Ratna Ms Lata Mangeskar the Government of Maharashtra issued No. SarVasu-1122/Pr kra. 21/Karya – 29 under Negotiable Instruments Act, 1881

The object of the Negotiable Instruments Act, 1881 is only to define and amend the law relating to promissory notes, bills of exchange and cheques. Section 2(22) of the Negotiable Instruments Act, 1881, defines “Maturity” as follows:-

“The maturity of a promissory note or bill of exchange is the date at which it falls due.”

Section 25 of the Negotiable Instruments Act, 1881, deals with a situation when the day of maturity is a holiday by stating that 

“When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day”

It means “public holiday” includes Sundays and any other day declared by the Central Government, by notification in the Official Gazette, to be a public holiday.

A combined reading of preamble, Section 2(22), 24 and 25 of the Negotiable Instruments Act, 1881, would reveal that the power of the Government to declare public holiday under the Negotiable Instruments Act, 1881, is applicable only to Government Sector, Banks and Financial Institutions. The Negotiable Instruments Act, 1881 have no application to a private industry. 

In support of above expression please refer to the Tara and Others vs. Director, Social Welfare and Others [(1998) 8 SCC 671], the Hon'ble Supreme Court observed as follows

“2. There is no infirmity in the conclusion reached by the Labour Court on the basis of the decision of this Court in Ganesh Razak [(1995) 1 SCC 235 : 1995 SCC (L&S) 296 : (1995) 29 ATC 93] that the claim made by the appellants is not maintainable under Section 33-C(2) of the Act. This is obvious from the fact that the status and nature of employment of the appellants is itself disputed and unless there is a prior adjudication on merits of the status which is the foundation for making the claim for wages at the specified rates, the question of moving an application under Section 33-C(2) for computation of the wages does not arise. We find that the Labour Court has recorded some findings which may be relevant for the disputed status of the appellants as anganwadi workers/helpers even though it has rightly reached the conclusion that the applications do not lie under Section 33-C(2) of the Act. It is clear that the question of maintainability of the applications under Section 33-C(2) was required to be determined at the threshold and the question of examining the appellants' claim on merits relating to their status could have been gone into thereafter if the applications were held to be maintainable under Section 33-C(2). In view of the conclusion rightly reached by the Labour Court that the applications were not maintainable under Section 33-C(2), its other findings relating to the status and nature of employment of the anganwadi workers/helpers were wholly uncalled for. All such findings are, therefore, not to be construed as deciding any point relating to the status of the appellants.”

With reference to the facts presented in the lis on hand, admittedly, the Government declared a holiday in G.O.Ms.No.1005, 2018 (Protocol-I) Department, dated 28.07.2015. However, the said Government Order is inapplicable to the Private Companies, which all are otherwise governed under the provisions of the Factories Act

Also refer :- The Management Of vs The Presiding Officer on 4 October, 2019 by the Hon'ble Madras High Court which was contended that on the demise of the former President of India, Dr.A.P.J. Abdul Kalam on 27.07.2015, the Government of Tamil Nadu issued G.O.Ms.No.1005 Public (Protocol -I) Department dated 28.07.2015 announcing that 30.07.2015 was declared as a public holiday for all Educational Institutions and for all Government/Private Establishments under the Negotiable Instruments Act, 1881 as a mark of respect to the former President, said The said notification issued under Negotiable Instruments Act, 1881, is not applicable to the private sector employee. 

 Public Holiday for Bharat Ratna Ms Lata Mangeshkar’s sad Demise

Govt of Maharashtra

Notification

General Administrative Department

Mantralaya, Madam Cama Road,

Hutatma Rajguru Chowk,Mumbai 400062

Date 6th February 2022

No. SarVasu-1122/Pr kra. 21/Karya – 29

Bharat Ratna “GanSamradni” Ms Lata Mangeshkar’s sad demise on 6th February 2022 has left an irrevocable void in the world of music and arts.

To mourn the great singer’s departure and the resultant loss; under the authority conferred to the State Government by Negotiable Instruments Act ,1881(statute 26 of 1881) section 25, the Govt. of Maharashtra hereby declares Monday, 7th February 2022 as a public holiday for mourning.

This notification is available on the website www.maharashtra.gov.in and its unique identification number is 202202061710416407. This notification has been authorized through a digital signature and is signed by the Governor of Maharashtra.

Maharashtra Minimum Wages Notification January to June 2022

Maharashtra Minimum Wages Notification January to June 2022