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Code on social security, 2020 Part II
- 1. CS Meenakshi Jayaraman Codeon Social Security, 2020 Part II
- 2.
- 3. 3 Legends used inthe presentation Code Code on Social Security CG Central Government CPC Civil Procedure Code HC High Court IRDA Insurance Regulatory and Development Authority SC Supreme Court Sec. Section
- 4. 4 Presentation Schema Gratuity Maternitybenefit Employee’s Compensation Case law: Dredging Corporation of India Limited v. P.K.Bhattacherjee
- 5. Definitions 5 Competent Authority meansan authority appointed under Chapter V (Gratuity) / Chapter VII (Employee’s Compensation) / notified under Chapter VI (Maternity Benefit) by the appropriate Government or the State Government, as the case may be Family means all or any of the relatives of an employee or an unorganised worker, viz., spouse, dependant minor legitimate / adopted child, if child wholly dependant on worker for receiving education then, till the age of 21, unmarried daughter, infirm child, dependent parents (including in-laws of a woman worker) and wholly dependant minor brother / sister (if the worker is unmarried and his parents are not alive) Fixed term employment means the engagement of an employee on the basis of a written contract of employment for a fixed period
- 6. Contd. 6 •Means the terminationof pregnancy permissible under the provisions of the Medical Termination of Pregnancy Act, 1971 •By the medical practitioners within a specified period, if it involves a risk to the life of the pregnant woman / of grave injury physical / mental health •Or when there is a substantial risk to the child if it were born Medical termination of pregnancy •means expulsion of the contents of a pregnant uterus at any period prior to / during the 26 week of pregnancy, but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code Miscarriage •means a disease specified in the Third Schedule as a disease peculiar to the employment of the employee Occupational disease
- 7. Contd. 7 Plantation means anyland used / intended to be used for growing tea, coffee, rubber, cinchona, cardamom / other plant which admeasures 5 hectares / more after obtaining approval from the appropriate Government and offices, hospitals, dispensaries, schools and any other premises used for any purpose connected with any plantation but does not include factory on the premises Seamen means any person forming part of the crew of any ship, but does not include the master of the ship
- 8. Chapter V –Gratuity 8
- 9. 9 Particulars Payment ofGratuity Act, 1972 Code on Social Security, 2020 Eligibility of gratuity Superannuation / resignation or retirement / death or disablement Includes fixed term employee / any event as specified by CG Authority Controlling authority (as per sec. 3 of the Act) Competent authority (as per sec. 58 of the Code) Provisions Maximum gratuity payable, eligibility of gratuity are clearly specified in the Act CG is empowered to prescribe any limit, applicability etc. under the Code Distinguish
- 10. 10 Definition of continuousservice Nomination by employee for receiving gratuity Powers of Competent authority are the same as the powers of Controlling authority with all powers of civil court while trying a suit under CPC, 1908 Obtaining insurance by every employer for his liability for payment towards gratuity from any Insurance Company regulated by IRDA Common provisions
- 11. Chapter VI –Maternity benefit 11
- 12. 12 Particulars Maternity benefitAct, 1961 Code on Social Security, 2020 Period during which woman is prohibited from working 6 weeks immediately following the day of delivery / miscarriage It includes 6 weeks immediately following the day of medical termination of pregnancy Maternity benefit Eligibility Maximum period Is available during the actual absence immediately preceding & including the day of delivery & 6 weeks immediately following that day If worked for a period of not less than 160 days in the preceding 12 months 12 weeks Is available during the actual absence immediately preceding the day of delivery & any period immediately following that day If worked for a period of not less than 80 days in the preceding 12 months 26 weeks Distinguish
- 13. 13 Particulars Maternity BenefitAct, 1961 Code on Social Security, 2020 Eligibility of benefit if child below the age of 3 months is adopted No such provision Can avail benefit for 12 weeks Payment of medical bonus Rs. 25/- Rs. 3,500/- Creche facility No such provision Every establishment having 50 / more employees Authority Inspector (as per section 16 of the Act) Inspector cum facilitator (as per section 72 of the Code) Contd.
- 14. 14 Giving a noticein writing to the Employer for claiming maternity benefit and payment thereof In case of death of a woman: Eligible for maternity benefit till the date and including the date of death Employer cannot discharge / dismiss a woman during the period or on account of such absence due to pregnancy Forfeiture of maternity benefit when a woman works for remuneration during the period when she has been permitted by the employer to absent herself Common provisions
- 15. Chapter VII –Employees Compensation 15
- 16. 16 Employer is liableto pay compensation- If any injury is caused to an employee by accident / occupational disease Death / injury to the worker / his family members as a result of collapse of a house provided by employer in the plantation Compensation has to be paid by the Employer when it becomes due, failing which interest has to be paid for delay Computation of compensation payable to the workers and distribution of such compensation has to be made in the manner as specified in the Code
- 17. Contd. 17 Persons eligible forcompensation also includes: Masters of ships / seamen Captain and other members of crew of aircraft Persons who are recruited by Company registered in India & working abroad Persons sent for work abroad along with motor vehicles as driver, helpers, mechanics, cleaners / other employee Any question arises as to liability of any person to pay compensation / amount or duration of compensation, the question shall be settled by a Competent authority (it was Commissioner in the Employee’s Compensation Act, 1923)
- 18.
- 19. 19 Dredging Corporation of IndiaLimited P.K. Bhattacherjee Facts of the case Respondent Appellant Respondent had met with an accident on 27/12/1999 while in employment of the Appellant Thus, the Commissioner, Workmen’s Compensation, West Bengal held on 24/06/2010 that considering the respondent’s age, wages & injury he was entitled to a Compensation of Rs. 12 lakhs together with simple interest @ 12% p.a. till the date of realisation Civil Appeal No.8278 of 2013
- 20. 20 Aggrieved by theorder of Commissioner, Appellant approached the HC, but without success as the division bench in its judgement dated 12/08/2011 had dismissed the appeal Aggrieved by the Order of HC, the Appellant approached the SC Learned counsel of Appellant held that: Respondent was diagnosed immediately after 27/12/1999 to be suffering from an ischaemic heart ailment, rendering it legally impermissible for the Appellant Company to continue any further with his services Appeal to HCContd. Appeal to SC
- 21. 21 • Health maladydid not arise as a consequence of the respondent’s service with the Appellant Company and hence, no compensation was payable • Compensation has to be paid only in the event of an employee suffering personal injury caused by an accident arising out of and in the course of employment • Ischaemic heart condition is personal to the constitution of the respondent, totally unrelated to his services Learned counsel of Respondent held that: Ischaemic heart condition can result from job stress which was continuously encountered by the employee and hence he is eligible for compensation Contd.
- 22. Contd. 22 Employee’s compensation Actis intended for the benefit of an employee & quintessentially is no-fault liability It ought to have distinguished between the discovery of the health condition while in service & the health condition having occurred during service It appears to be just and expedient to set aside the impugned order of HC and the order of Commissioner, West Bengal and allowed the Appeal made by the Appellant Company It appears that both the courts have misdirected themselves in law that because the illness of the employee was discovered while he was in actual service, it has led them to the conclusion that compensation is payable under the Employee’s Compensation Act SC Analysis and Decision as on 17th September, 2013
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