CHAPTER VIII- MISCELLANEOUS
87. Exemption of a factory or establishment or class of factories or establishments
The appropriate government may, by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment or class of factories or establishments in any specified area from the operation of this Act for a period not exceeding one year and may from time to time by like notification renew any such exemption for periods not exceeding one year at a time.
COMMENTS
The appropriate government while taking decision upon the question of exemption of a factory has to conclude whether the benefits which the employer provides are substantially similar or superior to the benefits which the Act provides. It would be reasonable to give a hearing so as to satisfy the mind of the government in this regard.-- Orissa Industries Ltd. v. Union of India 1992(1) LLJ 182.
88. Exemption of persons or class of persons
The appropriate government may, by notification in the Official Gazette and subject to such conditions as it may deem fit to impose, exempt any persons or class of persons employed in any factory or establishment, or class of factories or establishments to which this Act applies from the operation of the Act.
COMMENTS
Legislature never intended the imposition of double penalty on the factories or establishments. Keeping that in view and avoidance of harassment, sections 87, 88 and 91 have been incorporated under the Act.-- 1992 Lab. IC 2404.
Power to grant exemption to the factories or establishment in a specified area has been conferred upon the State Government alone. Declaration to effectuate that cannot be sought from Insurance Court.-- 1992 Lab. IC 1825.
89. Corporation to make representation
No exemption shall be granted or renewed under section 87 or section 88, unless a reasonable opportunity has been given to the Corporation to make any representation it may wish to make in regard to the proposal and such representation has been considered by the appropriate government.
90. Exemption of factories or establishments belonging to government or any local authority
The appropriate government may, after consultation with the Corporation, by notification in the Official Gazette and subject to such conditions as may be specified in the notification, exempt any factory or establishment belonging to [* * *] any local authority, from the operation of the Act], if the employees in any such factory or establishment are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.
91. Exemption from one or more provisions of the Act
The appropriate government may, with the consent of the Corporation, by notification in the Official Gazette, exempt any employees or class of employees in any factory or establishment or class of factories or establishments from one or more of the provisions relating to the benefits provided under this Act.
91A. Exemptions to be either prospective or retrospective
Any notification granting exemption under section 87, section 88, section 90 or section 91 may be issued so as to take effect either prospectively or retrospectively on such date as may be specified therein.
91B. Misuse of benefits
If the Central Government is satisfied that the benefits under this Act are being misused by insured persons in a factory or establishment, that Government may, by order, published in the Official Gazette, disentitle such persons from such of the benefits as it thinks fit:
PROVIDED that no such order shall be passed unless a reasonable opportunity of being heard is given to the concerned factory or establishment, insured persons and the trade unions registered under the Trade Unions Act, 1926 having members in the factory or establishment.
91C. Writing off of losses
Subject to the conditions as may be prescribed by the Central Government, where the Corporation is of opinion that the amount of contribution, interest and damages due to the Corporation is irrecoverable, the Corporation may sanction the writing off finally of the said amount.
92. Power of Central Government to give directions
(1) The Central Government may give directions to a State Government as to the carrying into execution of this Act in the State.
(2) The Central Government may, from time to time, give such directions to the Corporation as it may think fit for the efficient administration of the Act, and if any such direction is given, the Corporation shall comply with such direction.
93. Corporation officers and servants to be public servants
All officers and servants of the Corporation shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.
93A. Liability in case of transfer of establishment
Where an employer, in relation to a factory or establishment transfers that factory or establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the factory or establishment is so transferred shall jointly and severally be liable to pay the amount due in respect of any contribution or any other amount payable under this Act in respect of the periods up to the date of such transfer:
PROVIDED that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.
COMMENTS
Section 93A using the expression "employer" requires an interpretation in reference with the definition of the "principal employer" as laid down under s. 2(17) of the Act. And the term "employer" under s. 93A of the Act indicates towards the owner of the factory.-- Vemly Hotels v. Kuldeep Singh 1987 (59) FLR 182.
94. Contributions, etc., due to Corporation to have priority over other debts
There shall be deemed to be included among the debts which, under section 49 of the Presidency-Towns Insolvency Act, 1909, or under section 61 of the Provincial Insolvency Act, 1920, or under any law relating to insolvency in force in the territories which, immediately before the 1st November, 1956 were comprised in a Part B State, or under section 530 of the Companies Act, 1956), are in the distribution of the property of the insolvent or in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, the amount due in respect of any contribution or any other amount payable under this Act the liability wherefor accrued before the date of the order of adjudication of the insolvent or the date of the winding up, as the case may be.
94A. Delegation of powers
The Corporation, and, subject to any regulations made by the Corporation in this behalf, the Standing Committee may direct that all or any of the powers and functions which may be exercised or performed by the Corporation or the Standing Committee, as the case may be, may, in relation to such matters and subject to such conditions, if any, as may be specified, be also exercisable by any officer or authority subordinate to the Corporation.
COMMENTS
Very wide powers of delegation are conferred upon the Corporation by this s. 94A. While exercising discretion, powers may be conferred by the Corporation upon its subordinates. Such a direction may well be to either exercise such power itself or there may be in addition a condition of authorising another to do so.-- Rameshwar Jute Mills Ltd. v. Union of India 1986 (1) LLN 387.
Sec. 94A gives authority to the Corporation to delegate its power and does not empower any sub-delegation and in the case of delegation of judicial or quasi judicial power as is contained in s. 85B (1) of the Act, s. 94A has to be strictly construed.-- 1981 (59) FJR 343.
95. Power of Central Government to make rules
(1) The Central Government may, after consultation with the Corporation and subject to the condition of previous publication, make rules not inconsistent with this Act for the purpose of giving effect to the provisions thereof.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely,--
(a) the limit of wages beyond which a person shall not be deemed to be an employee;
(ab) the limit of maximum monthly salary for the purpose of sub-section (1) of section 17;
(ac) the manner in which appointments and elections of members of the Corporation, the Standing Committee and the Medical Benefit Council shall be made;
(b) the quorum at meetings of the Corporation, the Standing Committee and the Medical Benefit Council and the minimum number of meetings of those bodies to be held in a year;
(c) the records to be kept of the transaction of business by the Corporation, the Standing Committee and the Medical Benefit Council;
(d) the powers and duties of the Director General and the Financial Commissioner and the conditions of their service;
(e) the powers and duties of the Medical Benefit Council;
(ea) the types of expenses which may be termed as administrative expenses, the percentage of income of the Corporation which may be spent for such expenses;
(eb) the rates of contributions and limits of wages below which employees are not liable to pay contribution;
(ec) the manner of calculation of the average daily wage;
(ed) the manner of certifying the certificate to recover amount by the Recovery Officer;
(ee) the amount of funeral expenses;
(ef) the qualifications, conditions, rates and period of sickness benefit, maternity benefit, disablement benefit and dependents benefit;
(eg) the conditions for grant of medical benefits for insured persons who cease to be in insurable employment on account of permanent disablement;
(eh) the conditions for grant of medical benefits for persons who have attained the age of superannuation;
(ei) the manner in which and the time within which appeals may be filed to medical appeal tribunals or Employees' Insurance Courts;
(f) the procedure to be adopted in the execution of contracts;
(g) the acquisition, holding and disposal of property by the Corporation;
(h) the raising and repayment of loans;
(i) the investment of the funds of the Corporation and of any provident or other benefit fund and their transfer or realisation;
(j) the basis on which the periodical valuation of the assets and liabilities of the Corporation shall be made;
(k) the bank or banks in which the funds of the Corporation may be deposited, the procedure to be followed in regard to the crediting of moneys accruing or payable to the Corporation and the manner in which any sums may be paid out of the Corporation funds and the officers by whom such payment may be authorised;
(l) the accounts to be maintained by the Corporation and the forms in which such accounts shall be kept and the times at which such accounts shall be audited;
(m) the publication of the accounts of the Corporation and the report of auditors, the action to be taken on the audit report, the powers of auditors to disallow and surcharge items of expenditure and the recovery of sums so disallowed or surcharged;
(n) the preparation of budget estimates and of supplementary estimates and the manner in which such estimates shall be sanctioned and published;
(o) the establishment and maintenance of provident or other benefit fund for officers and servants of the Corporation;
(oa) the period of non-entitlement for cash benefit in case of conviction of an insured person;
(p) any matter which is required or allowed by this Act to be prescribed by the Central Government.
(2A) The power to make rules conferred by this section shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person other than the Corporation to whom such rule may be applicable.
(3) Rules made under this section shall be published in the Official Gazette and thereupon shall have effect as if enacted in this Act.
(4) Every rule made under this section 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 rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or 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 rule.
COMMENTS
The rule is valid with effect from the date on which it is brought in force and it will stand confirmed, notified or annuled as the case may be if both the Houses concur modify or annul the same.-- 1992(2) Ker LT 910.
The requirement of placing the rule before each House of Parliament while in session, for a duration of 30 days, whether the said 30 days comprise in one session or two or more successive sessions is not such a condition precedent which is to be followed before the rule is brought into force. Provisions of s. 95(4) in clear terms lay down that if both the Houses reach an agreement as regards any modification in the rule or where there is an agreement to the effect that the rules should not be made, the rule shall have effect only in such modified form or be of no effect at all.-- Tata Employees Union v. Union of India 1993 (1) LLJ 580.
96. Power of State Government to make rules
(1) The State Government may, after consultation with the Corporation and, subject to the condition of previous publication, make rules not inconsistent with this Act in regard to all or any of the following matters, namely--
(a) the constitution of Employees' Insurance Courts, the qualifications of persons who may be appointed Judges thereof, and the conditions of service of such Judges;
(b) the procedure to be followed in proceedings before such Courts and the execution of orders made by such Courts;
(c) the fee payable in respect of applications made to the Employees' Insurance Court, the costs incidental to the proceedings in such Court, the form in which applications should be made to it and the particulars to be specified in such applications;
(d) the establishment of hospitals, dispensaries and other institutions, the allotment of insured persons or their families to any such hospital, dispensary or other institution;
(e) the scale of medical benefit which shall be provided at any hospital, clinic, dispensary or institution, the keeping of medical records and the furnishing of statistical returns;
(f) the nature and extent of the staff, equipment and medicines that shall be provided at such hospitals, dispensaries and institutions;
(g) the conditions of service of the staff employed at such hospitals, dispensaries and institutions; and
(h) any other matter which is required or allowed by this Act to be prescribed by the State Government.
(2) Rules made under this section shall be published in the Official Gazette and thereupon shall have effect as if enacted in this Act.
(3) Every rule made under this section shall be laid as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or, where such Legislature consists of one House, before that House.
97. Power of Corporation to make regulations
(1) The Corporation may, subject to the condition of previous publication, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation and for carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely--
(i) the time and place of meetings of the Corporation, the Standing Committee and the Medical Benefit Council and the procedure to be followed at such meetings;
(ia) the time within which and the manner in which a factory or establishment shall be registered;
(ii) the matters which shall be referred by the Standing Committee to the Corporation for decision;
(iii) the manner in which any contribution payable under this Act shall be assessed and collected;
(iiia) the rate of interest higher than twelve per cent on delayed payment of contributions;
(iv) reckoning of wages for the purpose of fixing the contribution payable under this Act;
(iva) the register of employees to be maintained by the immediate employer;
(ivb) the entitlement of sickness benefit or disablement benefit for temporary disablement on any day on which person works or remains on leave or on holiday and in respect of which he receives wages or for any day on which he remains on strike;
(v) the certification of sickness and eligibility for any cash benefit;
(vi) the method of determining whether an insured person is suffering from one or more of the diseases specified in the Third Schedule;
(vii) the assessing of the money value of any benefit which is not a cash benefit;
(viii) the time within which and the form and manner in which any claim for a benefit may be made and the particulars to be specified in such claim;
(ix) the circumstances in which an employee in receipt of disablement benefit may be dismissed, discharged, reduced or otherwise punished;
(x) the manner in which and the place and time at which any benefit shall be paid;
(xi) the method of calculating the amount of cash benefit payable and the circumstances in which and the extent to which commutation of disablement and dependant's benefits, may be allowed and the method of calculating the commutation value;
(xii) the notice of pregnancy or of confinement and notice and proof of sickness;
(xiia) specifying the authority competent to give certificate of eligibility for maternity benefit;
(xiib) the manner of nomination by an insured woman for payment of maternity benefit in case of her or her child's death;
(xiic) the production of proof in support of claim for maternity benefit or additional maternity benefit;
(xiii) the conditions under which any benefit may be suspended;
(xiv) the conditions to be observed by a person when in receipt of any benefit and the periodical medical examination of such person;
(xv) [* * * * *]
(xvi) the appointment of medical practitioners for the purposes of this Act, the duties of such practitioners and the form of medical certificates;
(xvia) the qualifications and experience which a person should possess for giving certificate of sickness;
(xvib) the constitution of medical boards and medical appeal tribunals;
(xvii) the penalties for breach of regulations by fine (not exceeding two days' wages for a first breach and not exceeding three days' wages for any subsequent breach) which may be imposed on employees;
(xviia) the amount of damages to be recovered as penalty;
(xviib) the terms and conditions for reduction or waiver of damages in relation to a sick industrial company;
(xviii) the circumstances in which and the conditions subject to which any regulation may be relaxed, the extent of such relaxation, and the authority by whom such relaxation may be granted;
(xix) the returns to be submitted and the registers or records to be maintained by the principal and immediate employers, the forms of such returns, registers or records, and the times at which such returns should be submitted and the particulars which such returns, registers and records should contain;
(xx) the duties and powers of Inspectors and other officers and servants of the Corporation;
(xxi) the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the Director General and Financial Commissioner;
(xxii) the procedure to be followed in remitting contributions to the Corporation; and
(xxiii) any matter in respect of which regulations are required or permitted to be made by this Act.
(2A) The condition of previous publication shall not apply to any regulations of the nature specified in clause
(xxi) of sub-section (2).
(3) Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act.
(4) Every regulation shall, as soon as may be, after it is made by the Corporation, be forwarded to the Central Government and the government shall cause a copy of the same to be laid 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 regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or 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 regulation.
98. Corporation may undertake duties in Part B States
[Repealed by Act 53 of 1951, section 26.]
99. Medical care for the families of insured persons
At any time when its funds so permit, the Corporation may provide or contribute towards the cost of medical care for the families of insured persons.
99A. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions or give such directions, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty.
(2) Any order made under this section shall have effect notwithstanding anything inconsistent therewith in any rules or regulations made under this Act.
100. Repeal and saving
If, immediately before the day on which this Act comes into force in any part of the territories which, immediately before the 1st November, 1956, were comprised in a Part B State, there is in force in that part any law corresponding to this Act, that law shall, on such day, stand repealed:
PROVIDED that the repeal shall not affect--
(a) the previous operations of any such law, or
(b) any penalty, forfeiture or punishment incurred in respect of any offence committed against any such law; or
(c) any investigation or remedy in respect of any such penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed:
PROVIDED FURTHER that subject to the preceding proviso anything done or any action taken under any such law shall be deemed to have been done or taken under the corresponding provision of this Act and shall continue in force accordingly unless and until superseded by anything done or any action taken under this Act.
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