Employees' State Insurance Act, 1948 along with Commentary
[Act No. 34 of 1948]1
[19th April, 1948]
Preamble
An Act to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto.
Whereas it is expedient to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto;
It is hereby enacted as follows:--
Footnote:-
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For Statement of Objects and Reasons, see Gazette of India, 1946, Pt. V, pp. 319 to 357 and for Report of the Select Committee, see Gazette of India, 1948, Pt. V, pp. 124 to 159.
This Act has been extended to Jaunsar Bawar Parganas in the Dehra Dun District and the areas of South of Kaimpur range in the Mirzapur District of the State of Uttar Pradesh by Schedule IV of Act 20 of 1954; to Pondicherry by Reg. 7 of 1963, sec. 3 and Sch., and to Goa, Daman and Diu by Reg. 11 of 1963, sec. 3 and Sch.
Chapter: I - Preliminary
Section 1 - Short title, extent, commencement and application
(1) This Act may be called the Employees' State Insurance Act, 1948.
(2) It extends to the whole of India 1[***].
(3) It shall come into force on such date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and 2[for different States or for different parts thereof].
(4) It shall apply, in the first instance, to all factories (including factories belonging to the Government) other than seasonal factories:
3[Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.]
(5) The appropriate Government may, in consultation with the corporation and 4[where the appropriate Government is a State Government, with the approval of the Central Government], after giving 6[one month's'] notice of its intention of so doing by notification in the Official Gazette, extend the provisions of this Act or any of them, to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise:
5[Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State.]
5[(6) A factory or an establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under this Act or the manufacturing process therein ceases to be carried on with the aid of power.]
Footnotes:-
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The words "except the State of Jammu and Kashmir" which were subs. for "except Part B States" by Act 53 of 1951, sec. 2, have been omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971).
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Subs. by Act 53 of 1951, sec. 2, for "for different States" (w.e.f. 6-10-1951).
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Ins. by Act 29 of 1989, sec. 2(i) (w.e.f. 20-10-1989).
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Subs. by Act 53 of 1951, sec. 2, for "with the approval of the Central Government" (w.e.f. 6-10-1951).
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Ins. by Act 29 of 1989, sec. 2(ii) (w.e.f. 16-5-1990).
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Substituted by the Employees' State Insurance (Amendment) Act, 2010 w.e.f. 01.06.2010 for the following:- "six months'"
Section 2 - Definitions
In this Act, unless there is anything repugnant in the subject or context,--
(1) "appropriate Government" means, in respect of establishments under the control of the Central Government or 1[a railway administration] or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government;
Commentary
As per section 2(1) of the Act an appropriate Government, with respect to establishments under the control of the Central Government or a railway administration or a major port or a mine or oil-field is the Central Government, and in all other cases, the State Government.
~3>2[***]
(3) "confinement" means labour resulting in the issue of a living child or labour after twenty-six weeks of pregnancy resulting in the issue of a child whether alive or dead;
(4) "contribution" means the sum of money payable to the Corporation by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act;
Commentary
As per section 2(4) of the Act, "contribution" is the sum of money payable to the Corporation by the principal employer (as defined under section 2(17) of the Act) in respect of an employee (as defined under section 2(9) of the Act). Contribution includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act.
~3>3[***]
(6) "Corporation" means the Employees' State Insurance Corporation set up under this Act;
4[(6A) "dependant" means any of the following relatives of a deceased insured person, namely:--
22[(i) a widow, a legitimate or adopted son who has not attained the age of twenty-five years, an unmarried legitimate or adopted daughter,]
6[(ia) a widowed mother;]
(ii) if wholly dependant on the earnings of the insured person at the time of his death, a legitimate or adopted son or daughter who has attained the age of 23[twenty-five years] and is infirm;
(iii) if wholly or in part dependant on the earnings of the insured person at the time of his death,--
(a) a parent other than a widowed mother,
(b) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or adopted or illegitimate if married and a minor or if widowed and a minor,
(c) a minor brother or an unmarried sister or a widowed sister if a minor,
(d) a widowed daughter-in-law,
(e) a minor child of a pre-deceased son,
(f) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(g) a paternal grand-parent if no parent of the insured person is alive;]
(7) "duly appointed" means appointed in accordance with the provisions of this Act or with the rules or regulations made thereunder;
7[(8) "employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;]
Commentary
It is required to be noted that an injured employee claiming compensation for ''employment injury'' must be an ''employee'' under S.2(9) as well as ''workman'' under the Workmen''s Compensation Act. Further, unless such employee is entitled to compensation under the Workmen''s Compensation Act, he cannot claim compensation for employment injury from the Corporation.The word "accident", through not defined but used in the Act is assigned a separate and distinct meaning from its general or dictionary meaning. "Accident" means only such accident which arises out of and in the course of employment resulting in personal injury which reduces or extinguishes an employees'' physical or earning capacity. An "employment injury" for which the employer is liable to pay compensation for an employee''s death or injury must be as a consequence of an accident arising out of, and in the course of, his employment; However, where employment has no role in the incident or accident or in acceleration of the causes of death or personal injury, no compensation under the Act can be claimed by the employee.
In a case where an employee coming to duty on local bus met with an accident and died while he was waiting for the bus at the stand, it was held that the accident occurred in an area to which notional extension theory applied, he was on his way to the place of his dependents were entitled to accident benefits under the Act.
The phrase ''in course of employment'' does not exclude a happening which takes place outside, both in time and place, the actual handling of the tools. In a case, where the employee while going into the factory suffered a collapse on account of failure of the heart''s function, it was held that it was neither an accident as usually understood, nor one of the type as being at least theoretically possible. Nor was it the result of occupational disease. In such a case, the death could not, therefore, be said to have been caused, as a result of employment injury as defined in section 2(8) of the Act.
Accidental fall of employee- paralytic patient-Held, on facts, not injury suffered in course of employment and benefit under Act not available. E.S.I. Corpn. vs. Abdul Salam, 2003 (96) FLR 129.
Company providing bus subsidy to workers-Workman not on any bus route, going on bicycle to the work-place-Getting injured on way to work-spot in an accident-He can be said to have been involved in the accident, arising out of and in the course of employment. Indian Rare Earths, Ltd., vs. Subaida Beevi. 1981 (2) LLJ 293, 1981 LIC 1359.
Employment injury- scope-Aworkman while carrying on stocks of cloth sheets on his head falling down-Other bundles of clothes also falling on his face and chest-On removal of the bundles from over him such workman found dead on the spot-No evidence adduced by the employer to show that the workman had a weak heart or was suffering from any ailment prior to the accident-The death of such workman, in the circumstances. Held, was the result of "employment injury" within the meaning of section 2(8) of the Act. Shyama Devi vs. ESIC, AIR 1964 All 427, 1963 (7) FLR 443.
Meaning of-Employee getting injured on public road when returning to hishouse-Held, injury not, sustained in course of, or arose out of employment'-Hence not employment injury. Regl. Director, ESI...
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