Employment Law Alert- February 2023

• Law Firm: Singhania & Partners LLP, Solicitors and Advocates
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Retirement, Superannuation & Pensions, Employee Benefits & Compensation
• Author: Singhania & Partners
• Published date: 09 March 2023

Greetings!

We at Singhania and Partners are committed to keeping our readers informed about the latest legal developments across India. In this month's edition, we bring you the latest updates on employment laws in India.

Our Employment Law Alert is your one-stop destination for monthly updates on employment laws across the country. It includes recent circulars issued by Central and State Governments regarding employment law and significant decisions made by the Supreme Court and High Court.

We hope you find this edition informative and valuable. Happy reading!

REGULATORY UPDATE

1. Clarification regarding the minimum due benefit to be paid from the employees' deposit linked insurance scheme fund to the eligible family members

The Ministry of Labour and Employment, vide its notification dated January 2, 2023, has issued directions regarding the minimum due benefit to be paid from the Employees' Deposit Linked Insurance ("EDLI") Scheme fund, to the eligible family members who were beneficiaries in cases of death of eligible employees but the amount paid to them was less than the stipulated minimum assurance benefit of INR 2.5 Lakh (Rupees Two Lakh Fifty Thousand) resulting in short payments. The said directions provide that:

• All zonal officers ("ZO") are requested to ensure that regional officers ("RO") in their respective jurisdictions shall identify all such EDLI claims which have been settled and where, the minimum benefit has not been paid in the intervening period, such ZO shall immediately release the balance benefits due if any.
• A consolidated report shall be sent by the ZO to the Employee Provident Fund Organisation ("EPFO") head office confirming that the minimum EDLI benefits have been given in all eligible cases and there are no short payment cases.
• The report is to be sent within 15 (fifteen) days on or before January 16, 2023.

2.Launch of integrated online services portal, 'Silpasathi', in West Bengal

The Labour Department, Government of West Bengal, vide notification dated December 27, 2022, notified the integration of 13 (thirteen) services under the Labour Department, Government of West Bengal, through a single end-to-end 'State Single Window Portal' available at www.silpasathi.wb.gov.in.

These services include, inter alia, procurement and renewal of licenses and registrations under the Factories Act, 1948; Boilers Act, 1923; Contract Labour (Regulation and Abolition) Act, 1970 ("CLRA Act"); shops and Establishments Act, 1963, etc., with effect from January 1, 2023.

3. The West Bengal minimum wages notification

The office of the Labour Commissioner, West Bengal, vide notification dated January 16, 2023, has released the minimum rates of wages effective from January 1, 2023, to June 30, 2023.

4. Switching of Employees' State Insurance Corporation domains to https://esic.gov.in

All existing https://esic.nic.in¹ and https://esic.in have been moved to https://esic.gov.in. Further, all existing email ids are also mapped with the new domain.

5. Online filing of applications under the CLRA in Puducherry

The office of the Chief Inspector of Factories & Boilers, Puducherry, vide its notification dated January 12, 2023, has mandated online filing of the following applications:

• Application for a license under the CLRA for engagement in factories of Puducherry, Mahe and Yanam regions of Puducherry.
• Application for renewal of a license under the CLRA for engagement in factories of Puducherry, Mahe and Yanam regions of this Union Territory.

FROM THE BENCH

Supreme Court

1. Supreme Court refers to a larger bench the question of whether an employee covered under the Employee State Insurance Act, 1948 ("ESI Act") can claim compensation under the Motor Vehicles Act, 1988 ("MVA") for a motor accident.

In the case of Rajkumar Agrawal vs Vehicle Tata Venture¹, the division bench, constituting Justices A. S. Bopanna and Sudhanshu Dhulia, referred the matter to a larger bench in the absence of any authoritative judgements on the issue.

Brief Facts

The appellant suffered injuries resulting in his lower limb amputation. The Motor Accident Claims Tribunal (MACT) initially awarded him compensation, and the respondents contested this award.

The Allahabad High Court reversed the tribunal's judgement on the ground that an employee insured under the ESI Act would be barred from claiming compensation or damages of a similar kind by virtue of section 53 of the ESI Act. Hence the present appeal.

Issue

The matter being examined here is the potential contradiction in filing a compensation claim simultaneously under the ESI Act and the MVA.

Appellant's Claims

The bar under Sections 53 and 61 of the ESI Act are not absolute bars but merely bar compensation of a similar kind. There is a distinction between a claim for periodic insurance payment and damages or compensation - they are not benefits of a similar kind.

Furthermore, the MVA being a subsequent enactment, and by virtue of the provisions under sections 163(A) and 167 beginning with a non obstante (a clause that ensures the enforceability of one provision over another that is contradictory to it) clause, there is no bar against subsequently claiming compensation under the MVA.

Judgement Referred to by Appellant

1. Regional Director E.S.I Corporation & Anr. Vs Francis DE Costa & Anr¹.

The general law of tort or special law in the MVA or Workmen's Compensation Act, 1948, may provide a remedy for damages. The insurance coverage under the ESI Act in an insured employment is in addition to but not in substitution of the above remedies. It cannot, on that account, be denied to the employee.

Respondent's Claims

The benefit received under the ESI Act bars the employee from seeking a similar benefit (compensation or damages) under any other act.

Judgements Referred to by Respondents

1. Western India Plywood Ltd. vs P. Ashokan²
2. National Insurance Co. Ltd vs Hamida Khatoon &amp Ors³

Both reinforce the absolute bar against compensation as stated under Section 53 of the ESI Act, 1948.

Judgement

The division bench found a need for more authoritative judgements on this issue. Furthermore, due to the bench strength being the same as those in the Western India Plywood Ltd. vs P. Ashokan (supra) and National Insurance Co. Ltd vs Hamida Khatoon & Ors (supra) cases, the present bench did not find it prudent to rule on the matter. Therefore, the issue was referred to a larger bench.

2. ESI Act applies to factories or establishments,...