Kerala High Court
Lawyers Beyond Borders (Lbb) India vs Union Of India on 25 August, 2020
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
WP(C).No.13444 OF 2020(S)
PETITIONER:
LAWYERS BEYOND BORDERS (LBB) INDIA,
REPRESENTED BY ADV.SUBHASH CHANDRAN.K.R.,
435, NEW LAWYERS CHAMBERS,
SUPREME COURT OF INDIA, NEW DELHI,
PERMENANT R/O KUTTIPPURAM P.O.,
MALAPPURAM DIST., KERALA-679 571.
BY ADVS.
SRI.P.V.SURENDRANATH (SR.)
SHRI.SRIVIDYA K
SRI.B.S.SYAMANTHAK
RESPONDENTS:
1 UNION OF INDIA,
MINISTRY OF EXTERNAL AFFAIRS,
THROUGH ITS SECRETARY,
SOUTH BLOCK, CABINET SECRETARIAT,
RAISINA HILL, NEW DELHI-110 001.
2 MINISTRY OF HOME AFFAIRS,
THROUGH ITS SECRETARY,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI-110 001.
3 MINISTRY OF LABOUR AND EMPLOYMENT,
THROUGH ITS SECRETARY,
SHRAM SHAKTI BHAWAN,
RAFI MARG, NEW DELHI-110 001.
4 GOVERNMENT OF KERALA,
THROUGH ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
W.P.(C)Nos. 13444 & 14496 of 2020
2
5 NORKA ROOTS,
THROUGH ITS CHIEF EXECUTIVE OFFICER,
NORKA CENTRE, NEAR GOVERNMENT GUEST HOUSE,
THYCAUD, THIRUVANANTHAPURAM-695 014.
R1-2 BY SRI.GIRISH KUMAR.V., CGC
R1-3 BY ASSISTANT SOLICITOR GENERAL
R4 BY GOVERNMENT PLEADER
R4-5 BY SRI.K.V.SOHAN, STATE ATTORNEY
R5 BY ADV. SC, NORKA ROOTS
OTHER PRESENT:
SRI.P.VIJAYAKUMAR, ASG FOR R1 TO R3
SRI.GIRISH KUMAR V, CGC FOR R1 TO R3
SRI.K.V.SOHAN, STATE ATTORNEY FOR R4 AND R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.08.2020, ALONG WITH WP(C).14496/2020(S),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos. 13444 & 14496 of 2020
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
WP(C).No.14496 OF 2020(S)
PETITIONER:
PRAVASI LEGAL CELL
THROUGH ITS PRESIDENT ADV. JOSE ABRAHAM,
D/144/4, ASHRAM, NEW DELHI 110 014.
BY ADV. SRI.E.ADITHYAN
RESPONDENTS:
1 UNION OF INDIA
MINISTRY OF EXTERNAL AFFAIRS,
REPRESENTED BY ITS SECRETARY,
SOUTH BLOCK, CABINET SECRETARIAT,
RAISINA HILL, NEW DELHI 110 001
2 MINISTRY OF LAW AND JUSTICE (GOI)
REPRESENTED BY ITS SECRETARY, 4TH FLOOR,
A WING, SHASTRI BHAWAN, NEW DELHI 110 001.
3 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
4 THE DEPARTMENT OF NON RESIDENT KERALITES
AFFAIRS (NORKA)
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
NORKA CENTRE, NEAR GOVERNMENT GUEST HOUSE,
THYCAUD, THIRUVANANTHAPURAM 695 014.
R1-2 BY SRI.P.VIJAYAKUMAR, ASG
R1-2 BY SRI.P.L.VENUKUMAR, CGC
R3-4 BY SRI.K.V.SOHAN, STATE ATTORNEY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.08.2020, ALONG WITH WP(C).13444/2020(S),
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)Nos. 13444 & 14496 of 2020
4
"C.R."
JUDGMENT
[WP(C).13444/2020, WP(C).14496/2020] Dated this the 25th day of August, 2020 Manikumar, C.J.
W.P.(C) No.13444 of 2020 is filed for the following reliefs:
"(a) Direct the respondents to establish a Transitional Justice Mechanism immediately for documenting and capturing all kinds of claims and grievances of repatriated Indian migrant workers for negotiating and availing legal remedy for their rights including reduced or non-payment of wages, denial of other entitlements and workplace discrimination etc in future and/or;
(b) Direct the respondents to immediately formulate a mechanism for documenting and capturing all kind of claims and grievances of Indian migrant workers, to be returned from countries of destinations, through concerned Indian Missions / Embassies, for negotiating and availing legal remedy for their rights including reduced or non-payment of wages, denial of other entitlements and workplace discrimination etc in future and/or;
(c) Direct the respondents to immediately introduce an effective technique for documenting and capturing all kind of claims and grievances of families of Indian migrant workers who are died in abroad during COVID-19 to raise their claims for compensation / insurance etc., in future."
2. Short facts leading to the filing of W.P.(C)No.13444 of 2020 are W.P.(C)Nos. 13444 & 14496 of 2020 5 that, the present writ petition is filed in the nature of a Public Interest Litigation, by the petitioner-Lawyers Beyond Borders, an international network of legal experts interested in advocating for the rights of migrant workers. Indian migrants in destination countries are the worst affected group of workers during the Covid-19 pandemic. With the help of the Government's repatriation programme a large number of workers have already returned to the home land. The majority of those workers are returning empty-handed and are prone to debt-bondage.
3. Large numbers of employers at the destination countries are taking advantage of mass repatriation programmes to terminate and return workers who have not been paid their dues. Without due diligence to protect and fulfill the human rights and labour rights of repatriated migrant workers, states across the migration corridor become complex in overseeing procedures where millions of workers will be returning without their grievances being heard, nor seeing justice in their situation.
This is a clear case of wage theft and it accounts for millions of dollars.
4. Wage theft has become a serious issue especially during Covid-
19 pandemic and a transitional justice mechanism need to be introduced immediately to address the grievances of repatriated workers. All the migrant workers, including those who may have become undocumented or are in irregular status, should have access to legal remedies for unfair treatment. It is important to document the claims and grievances of the W.P.(C)Nos. 13444 & 14496 of 2020 6 Indian workers who come back during the period of pandemic. The documentation shall be done at both Indian missions abroad and upon return to the country through concerned ministries.
5. Hence, the petitioner urges the indulgence of this Court by directing the respondents to establish a Transitional Justice Mechanism immediately for documenting and capturing all kinds of claims and grievances of repatriated Indian migrant workers for negotiating and availing legal remedy for their rights, including reduced or non-payment of wages, denial of other entitlements and workplace discrimination etc., in future.
6. It is further contended that unfortunately, during COVID-19 mass repatriation, none of the Indian mechanisms abroad and within the country capture the grievances of returnee migrant workers who have not received dues and other compensations from employers.
7. The repatriation procedures have been undertaken hastily by countries of both origin and destination, without any proper redress mechanism. The civil and labour courts and other redressal mechanisms in the countries of destination have also been closed during the period of the lockdown. Therefore, these violations will pile up and either not be addressed or overburden the existing dispute resolution mechanisms.
Moreover, it further tells upon the already affected remittance flow to the largest remittance receiving country in the world. W.P.(C)Nos. 13444 & 14496 of 2020 7
8. The Hon'ble Supreme Court of India has already registered Suo Motu Writ Petition (C) No.6/2020 by noting serious problems and miseries of domestic migrant labourers and passed certain directions to the Central and State Governments.
9. Thousands of Indian migrants have lost their lives in foreign lands during COVID-19 pandemic. In many of the cases, relatives of the deceased are unable to register their grievance for compensation/ insurance claims as no mechanism exists for the same. It is submitted that Article 71 of 'International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families' adopted by General Assembly of United Nations (Resolution 45/158 of 18 December 1990) states that appropriate State parties shall provide assistance to the persons concerned in compensation matters relating to the death of a migrant worker or a member of his or her family, with a view to the prompt settlement of such matters.
10. It is categorically mentioned in the Resolution 60/147 adopted by General Assembly of United Nations titled as "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law" that the States are responsible to take appropriate legislative, administrative and other appropriate measures to prevent violations and to provide effective remedies to victims. Hence, W.P.(C)Nos. 13444 & 14496 of 2020 8 the writ petition for the reliefs as stated supra.
11. W.P.(C) No.14496 of 2020 is filed for the following reliefs:
"i. Issue a Writ of Mandamus or any other appropriate writ, order, direction, declaring that the Indian citizens living abroad are entitled to Fundamental rights conferred upon all the Citizens of India by the Constitution of India and consequently, declare that the Indian citizens living abroad are entitled to Free legal aid which is an essential fundamental right available to citizens of India.
ii. Issue a Writ of Mandamus or any other appropriate writ, order, direction or command to the respondents, to provide free legal aid to the Indian citizens living abroad and those who were repatriated and lost their livelihood by invoking Section 12(e) of the provisions of the Legal Services Authorities Act, 1987.
iii. Issue a Writ of Mandamus or any other appropriate writ, order, direction or command to the respondents, to ensure that the Indian citizens living abroad are provided free legal aid who are stranded in foreign countries.
iv. Issue a Writ of Mandamus or any other appropriate writ, order, direction or command to the respondents, to extend the benefit of the Indian Community Welfare Fund ("ICWF") for granting free legal aid to all the needy and deserving Indian citizens living abroad due to pandemic.
v. To issue a Writ of mandamus or any other appropriate writ, order or direction or command to the Respondents to consider and pass an appropriate order on Exhibit P6 Representation within a reasonable period."
12. Short facts leading to the filing of W.P.(C) No.14496 of 2020 W.P.(C)Nos. 13444 & 14496 of 2020 9 are that, the petitioner herein is a National Non-Government Organization functioning for more than 10 years. Its primary objective is to empower people on legal front and provide legal services to the common man.
Over the years, it has been providing pro-bono legal services to poor and destitute emigrants. It is submitted that the distress caused by the Outbreak of Covid-19 pandemic needs no introduction. It is stated that globally, the International Labour Organization (ILO) estimates that 195 Million jobs will be wiped off as a result of the pandemic. In the Middle East region alone, an estimated five million jobs will be lost, with many of those jobs held by migrant Indian workers. Since the start of the pandemic, Lakhs of migrant workers have been repatriated to India from different parts of the world. This number is expected to rise exponentially over the next few months. The situation in GCC (Gulf Cooperation Council) countries is the worst as more than half of the Indian emigrants working in these countries having fifteen to twenty years of impeccable service are being removed from service, without even a prior notice, due to the pandemic.
13. All Non-Resident Indians (NRIs), including the migrant workers, workers those who may have become undocumented or are in irregular status, should have access to legal remedies for meeting unfair treatment. They should be in a position to negotiate for their rights including seeking redress for non-payment of wages, denial of other W.P.(C)Nos. 13444 & 14496 of 2020 10 entitlements and workplace discrimination and should have access to legal advice and language interpretation services where necessary.
14. It is stated that the Indian citizens living abroad are entitled to the fundamental rights, conferred upon all the citizens of India by the Constitution of India. Hence, they are entitled to free legal aid which is an essential fundamental right available to citizens of India.
15. It is further stated that citizens living in India come under the ambit of the Legal Services Authorities Act, 1987, which prescribes for the formation of authorities at the Central, State, District and Taluk levels. The same also provides detailed prescriptions for the functions of these authorities. Section 12 of the Act, 1987, provides for the eligibility criteria for availing legal aid. It is pertinent to note that none of the guidelines exist for grant of legal aid to Indians living abroad. It is further stated that the petitioner is seeking to extend free legal aid to deserving Indian citizens living abroad and the funds for legal aid are provided through the Indian Community Welfare Fund (ICWF) and as of now only a minuscule portion of same is utilised.
16. There are no clear guidelines regarding the use of ICWF funds with respect to legal aid and as such, the same is grossly inadequate when it comes to assist distressed Indians in need of legal aid abroad.
On 16th December 2005, the General Assembly of the United Nations adopted the 'Basic Principles and Guidelines on the Right to a Remedy W.P.(C)Nos. 13444 & 14496 of 2020 11 and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law' and it is clearly mentioned in the above treaty that it is the obligation of the state to provide appropriate legal, administrative and other measures to prevent violations of their people.
17. Hence, the petitioner seeks indulgence of this Court by directing the respondents to take positive measure or step to extend free legal aid to needy Indian Emigrants for dealing with all kinds of claims and grievances, including reduced or non-payment of wages, denial of other entitlements and workplace discrimination by using the ICWF, which at present is not being used properly and only a very small portion is spent on giving legal aid to Indians abroad. More amount from the ICWF should be channelized for granting free legal aid for Indian Emigrants abroad who are in need. In the above circumstances the petitioner has approached this court with the writ petition.
18. In support of the reliefs sought for, the petitioner has raised the following grounds:
A. The Hon'ble Supreme Court in M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544 and Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98 has recognized that the right to free legal aid is guaranteed under Articles 14 and 21 of the Constitution.
B. The fundamental rights guaranteed to all citizens are not extinguished when the person travels or lives abroad. It is contended that the absence of a legal aid scheme for citizens living W.P.(C)Nos. 13444 & 14496 of 2020 12 abroad is violation of their rights under Articles 14 and 21 of the Constitution. Reliance is placed on a decision of the Hon'ble Supreme Court in Gaurav Kumar Bansal v Union of India, reported in (2015) 2 SCC 130, wherein the Hon'ble Apex Court held as under:
"8. There is no manner of doubt that a welfare State is the protector of life and liberty of its citizens not only within the country but also outside the country in certain situations. The concept of pareris patriae recognises the State as protector of its citizens as parent particularly when citizens are not in a position to protect themselves. The Preamble to the Constitution, read with directive principles, under Articles 38, 39 and 39-A enjoins the State to take all protective measures to which a social welfare State is committed. Interestingly, this doctrine has been recognised in India even before the Constitution came into force."
C. Funds for Legal aid are required to be provided through the Indian Community Welfare Fund ("ICWF"). It is humbly submitted that the ICWF is "aimed at assisting Overseas Indian nationals in times of distress and emergency in the 'most deserving cases' on a 'means tested basis'." The ICWF is a purely executive, self-financing scheme. Initial budgetary support is provided by the Ministry of External Affairs. Subsequently, the ICWF is sustained by:
i. Funds raised by the Indian Missions by levying a service charge on Consular Services.
ii. Voluntary contributions by the Indian Community Disbursement of funds is at the discretion of the Head of Mission and depends on the "seriousness or sensitivity of the circumstances on a case to case basis. It is humbly submitted that there exists no criteria for use of ICWF funds as far as legal aid is concerned. The Petitioner submits that the scheme of ICWF ire so far as no funds are allocated to providing legal aid to emigrants is arbitrary and thus unconstitutional. In Sharma Transport v. Govt. of A.P., (2002) 2 SCC 188, wherein W.P.(C)Nos. 13444 & 14496 of 2020 13 the Hon'ble Apex Court has held:
"In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone."
D. In January, 2019 report submitted by the Committee on External Affairs constituted by the Ministry of External Affairs to the Parliament on the 'Issues relating to migrant workers including appropriate legislative framework and skill development initiatives for prospective emigrants', the Committee has that the law provide legal aid to Indian emigrants. Relevant portion of the recommendation reads thus:
"The law should establish a separate department with powers of enforcement under the Protector of Emigrants to investigate complaints of exploitation and other abuses by recruiters. This department must provide legal aid, translation services, and other forms of assistance to workers, while initiating legal proceedings against recruitments engaging in illegal activities."
E. The 42nd Constitutional Amendment introduced Article 39A into the Constitution. The same is reproduced below:
"39A. Equal justice and free legal aid.-
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
The mandate of Article 39A is to provide free legal aid to every citizen. Through judicial interpretation, the right to free legal aid has been made a part of the right to life and personal liberty W.P.(C)Nos. 13444 & 14496 of 2020 14 guaranteed under Article 21 of the Constitution.
F. 64th plenary meeting of General Assembly of the United Nations adopted the Resolution 60/147 - "Basic principles and guidelines on the Right to a Remedy and Reparation for victims of Gross violations of International Human Rights Law and serious violations Of International Humanitarian Law" and it is categorically mentioned that it is the states obligation and responsibility to provide appropriate legal, and administrative and other appropriate measures to prevent violations of their people.
G. The Parliament has enacted the Legal Service Authorities Act 1987, among others to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Section 12 of the Act titled criteria for giving legal services enumerates the class of persons who are entitled to legal services under the Act.
Sub-section (e) of Section 12 of the Act ensures a person under circumstances of undeserved want such as being a victim of Mass disaster, etc as entitled to legal services under the Act. Undisputedly, The COVID 19 Pandemic is a mass disaster which has claimed several victims both in terms of life and by depriving the employment and livelihood of those it has spared.
The Act being a beneficial legislation, requires to be read in a manner which advances its objects. Read thus it cannot be doubted that Indian Migrants who have lost their employment due to COVID-
19 Pandemic are victims of Mass Disaster and are entitled to Free legal aid. The Hon'ble Supreme Court in a catena of decisions, including Hindustan Level Ltd. v. Ashok Vishnu Kate reported in (1995) SCC 1385, have taken the view that when it comes to beneficial legislation, wide interpretation has to be given.
Diplomatic or Foreign Missions enjoy extra territorial status W.P.(C)Nos. 13444 & 14496 of 2020 15 and are treated to be in the territory of the countries where they are situated. In other words, Diplomatic or Foreign Missions are extraterritorial extensions of Union Of India and therefore the Legal Services Act apply to them with full vigour. The respondents therefore are obliged to provide Free Legal Aid to the Emigrants abroad who have been left destitute of their income and other means of survival so that their Legal Rights are provided.
H. It is further contended that the respondents are duty bound to consider Exhibit P5 representation submitted by the petitioner, within a reasonable period, but has miserably failed to act upon.
19. In W.P.(C) No.13444/2020, the Central Government, on behalf of respondents 1 to 3, have filed a statement dated 10.8.2020, wherein it is contended as under:
A. There is already a mechanism for documenting and capturing all kinds of claims and grievances of repatriated Indian migrant workers for negotiating and availing legal remedy for their rights, including reduced/non-payment of wages. Mechanism for capturing claims/grievances of Indian migrant workers through concerned missions/embassies are also provided by the Central Government.
B. It is further contended that Indian Government has strengthened the Ecosystem that supports migrant workers in all stages of the migration cycle, towards ensuring a safe, orderly, legal and humane migration process as well as welfare and protective schemes for Indian workers in distress abroad. Government has also in place Agreements/MOUs with GCC countries, which include an institutional framework to discuss all ongoing issues related to labour and manpower.
C. Missions/Posts abroad have various mechanisms in place W.P.(C)Nos. 13444 & 14496 of 2020 16 which Indian workers can use to lodge their grievances such as the dedicated email of the Community Welfare Wing, 24X7 helpline, MADAD portal (`MEA' in Aid of Diaspora in Distress), CPGRAM portal (Central Public Grievance Redress and Monitoring System), etc. All such grievances, received through these mechanisms, are taken up by the Missions/Posts with the employers concerned for an amicable settlement. Wherever necessary, Missions/Posts engage with government authorities. The Missions/Posts also maintain a panel of lawyers for any legal assistance with regard to such grievances. These panel law firms provide free initial legal advice to Indian workers. Subsequently, the Indian workers can engage these law firms, if required, by executing a Power of Attorney (POA) in their favour to represent them in a court of law in connection with their grievances. In case, the worker has exited the country without registering a labour case or before the court proceedings are over, he can give POA to any lawyer or the Mission/Post to pursue his or her case in the concerned court. If POA is given to the Mission/Post, then the case is followed through one of the empanelled lawyers. When the amount is received, it is deposited in the bank account of the worker(s).
D. It is further contended that some countries have issued specific guidelines for migrant workers in the wake of the pandemic, for instance in Oman, the Supreme Committee tasked with tackling developments resulting from Coronavirus (Covid-19) pandemic has directed that private sector institutions and companies would be allowed to terminate their non-Omani workforce labour contracts, "provided that these institutions commit to paying all workers dues before leaving the country permanently". The Ministry of Manpower of Oman operates an online portal for labour grievances where workers can directly W.P.(C)Nos. 13444 & 14496 of 2020 17 lodge their complaints and follow up the same.
E. In Saudi Arabia, with the directives issued by Saudi Ministry of Human Resources and Social Development, Saudi private-sector employers whose businesses had been crippled by the coronavirus pandemic had been told by the Ministry that they can cut their employees' wages and working hours with the employees' consent and the reduced wages must accurately reflect the number of hours worked. Accordingly, the wages and salaries of migrant workers were negotiated by Saudi employers with their employees during a pandemic. In case, an employer had violated the directions issued by Saudi authorities, the affected worker had the right to file a case online through the Ministry's website. The Indian workers, who brought their grievance to the notice of the Missions during the pandemic, were guided to file their claim online with the Ministry of Human Resources and Social Development. Indian workers are also provided free interpretation services by Mission for filing their claims.
F. It is further contended that there is Effective technique for documenting and capturing grievances of family of migrant workers who have died abroad during COVID-19 pandemic. Whenever death of an Indian national is notified to the Mission/Post, the family of the deceased is informed and as per their consent, the Mortal Remains are either transported to India or buried locally. The local sponsor of the deceased is asked to settle the outstanding legal dues. Although in many cases the legal dues are settled before the dead body is buried or sent to India, in many cases, there are delays on the part of the sponsor. In such cases, the Mission/Post is authorized to receive the dues on behalf of the legal heirs of the deceased. W.P.(C)Nos. 13444 & 14496 of 2020 18 G. Any grievances of the family of migrant workers who have died abroad during COVID-19 pandemic could also be registered on the online platforms like MADAD, e-Migrate etc. The Mission/Post on receiving any such grievance immediately contacts the employer / sponsor of the deceased Indian worker for the release of death compensation, end of service benefits and insurance etc, if any. The amount received from the employers is sent by the Mission following due procedure, to the concerned district authorities in India for disbursal to the legal heirs of the deceased. In fact there were some cases of this nature and our Missions have acted upon them to help the families concerned. The legal heir/family of the deceased worker can launch a complaint with Mission/Post which on receipt will be taken up with their respective employers for possible resolution to the issue. Applicants also have the alternate option to register their complaints by filing a grievance on the MADAD portal.
H. The other welfare measures for assistance of Indian workers abroad are as under:
Indian Community Welfare Fund (ICWF) ICWF, set up in 2009, is aimed at assisting Overseas Indian nationals in times of distress and emergency in the most deserving cases on a means tested basis. The revision of ICWF guidelines w.e.f. September 1, 2017 have provided Indian Missions and Posts abroad greater flexibility in swiftly addressing requests for assistance by Indian nationals abroad. The guidelines cover three key areas: (i) assisting Overseas Indian nationals in distress situations (ii) support for community welfare activities and (iii) improvement in consular services. ICWF can also be utilized to provide legal assistance to deserving overseas Indian nationals who have committed minor crimes, offences or have been falsely implicated by their employer and put in jails. W.P.(C)Nos. 13444 & 14496 of 2020 19 Pravasi Bhartiya Bima Yojana (PBBY) PBBY is a mandatory insurance scheme for all Emigration Check Required (ECR) category workers going to ECR countries. The scheme provides an insurance cover of 10 Lakhs in case of accidental death or permanent disability and few other benefits at a nominal insurance premium of Rs. 275 and Rs.375 for a period of two and three years respectively. The Scheme, initially launched in 2003, has been amended from time to time with the overarching objective of expanding the benefits for migrant workers. The scheme, comprehensively revamped w.e.f. August 1, 2017 in consultation with concerned stakeholders, had been made simpler and more beneficial for migrant workers and is aimed at expeditious settlement of claims.
Pravasi Bharatiya Sahayata Kendras (PBSKs) and other support Pravasi Bharatiya Sahayata Kendras have been set up at Riyadh, Jeddah, Dubai, and Kuala Lumpur that provide guidance and counseling on all matters pertaining to overseas Indian workers. Shelter homes for distressed Indian nationals have been set up in Bahrain, Kingdom of Saudi Arabia, Kuwait, Qatar, UAE and Malaysia. Missions in Gulf countries also conduct Open Houses on a regular basis where workers can convey their grievances. Toll free Helplines are also available with our Missions/Posts. Kshetriya Pravasi Sahayata Kendras have also been set up in Kochi, Hyderabad, Delhi, Chennai and Lucknow. Grievances by migrant workers can also be registered with the Pravasi Bharatiya Sahayata Kendra (PBSK) at New Delhi which provides assistance through multilingual 24X7 Helpline.
20. In W.P.(C) No.14496 of 2020, the State Government have filed a statement dated 12.8.2020, which reads thus:
W.P.(C)Nos. 13444 & 14496 of 2020 20 A. Writ petitioner prays for a declaration that Indian citizens living abroad are entitled to free legal aid and seeks direction to the State to extend the free legal aid for distressed Indian citizens stranded in foreign countries. He also seeks invoking the provisions of 12(e) of The Legal Services Authorities Act.
B. It is contended that the State of Kerala as early as 1996 set up a separate department known as Non Resident Keralites Affairs Department. It is a fact that a large number of Keralites, estimated more than 32 million, are working abroad especially in the Gulf region. Conforming to the constitutional limitations under list II and III of VII Schedule, the State of Kerala enacted an Act called The Non Resident Keralites Welfare Act 2008 (Act 10 of 2009) with an object to provide for the constitution of a welfare fund to grant relief to ensure the welfare of and to pay pension and other benefits to the Non Resident Keralites and to promote Companies or Co-operative Societies or Societies or other Institutions of Non Resident Keralites for their welfare. The Act received the assent of the Governor and was published on 12.01.2009.
C. Subsequently, the State of Kerala also enacted The Non Resident Indians (Keralites) Commission Act 2015 (Act 3 of 2016). Section 3 of The Act provides the Constitution of the Commission which reads as follows:
"3. Constitution of the Commission. - (1) The Government shall as soon as may be after the commencement of this Act, constitute a body to be known as the Non-resident Indians' (Keralites) Commission to exercise the powers conferred upon and to perform the functions assigned to in under this Act. (2) The Commission shall consists of the following members nominated by the Government, namely: -
(i) A person who is or has been a Judge of the High Court W.P.(C)Nos. 13444 & 14496 of 2020 21 of Kerala, who shall be the Chairperson of the Commission;
(ii) Two members from Non-resident Indians (Keralites) who are abroad for not less than five years;
(iii) Two members from Non-resident Indians' (Keralites) who returned after being abroad for 5 or more years.
(iv) An officer not below the rank of a Joint Secretary to Government or a retired officer from All India Service not below the rank equivalent to that shall be the Secretary of the Commission and he shall exercise such powers and perform such functions as may be delegated to him by the Commission;
(v) A person who has completed the age of 65, shall not be continued as Chairperson or member."
D. The functions and powers of the Commission are respectively provided in Sections 9 and 10 of The NRIK Commission Act, which reads as under:
"9. Functions of the Commission.- (1) Subject to the provisions of this Act, it shall be the duty of the Commission to assist, promote and to develop the welfare of the Non-resident Indians' (Keralites) and to perform such other functions as the Government may assign to it, from time to time. (2) The Commission may in furtherance of its object, perform the following functions, namely: -
(a) help the Non-Resident Indians' (Keralites) and their family in protecting their rights, particularly in the issues of life and property in the State of Kerala;
(b) pursue the interests of the Non-Resident Indians' (Keralites) with the State and Central Government;
(c) Help to Safeguard the investment in all forms of Non Resident Indians' (Keralites) in Kerala;
(d) Facilitate Social Service Organisations for the Non-Resident Indians' (Keralites) and their spouses and parents living in Kerala for community life and health care;
(e) Inquire into unfair practice, against Non-Resident Indians' (Keralites) and make recommendations to concerned Government W.P.(C)Nos. 13444 & 14496 of 2020 22 Departments or Agencies on the action to be taken in the matter;
(f) Report to Government the inadequacies or shortcomings in the existing laws in force which affect the Indian Constitutional right to equality and fair treatment of Non-Resident Indians' (Keralites) and also on the remedial Legislative measures to be taken to meet the situation;
(g) To inquire into the unfair practices of recruitment agencies and to ensure that the interests of the Non-Resident Indians' (Keralites) are protected;
(h) Act for the protection of the interests, assets and deposits of the overseas citizen of Indian card holders who had been permanent resident in Kerala and has been registered as per the provisions of section 7 A of the Citizenship Act, 1955 (Central Act 57 of 1955) and family members and to facilitate the social service organizations for the health care of their family members in Kerala;
(i) to suggest suitable measures to be adopted in the issues of Non-
Resident Indians' (Keralites).
10. Powers of the Commission. - (1) The Commission shall, while performing its functions under section 9, have all the powers as are vested in a Civil court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely: -
(a) summoning and enforcing the attendance of any witness and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits,
(d) requisitioning any public records or copy thereof from any public office;
(e) appointing commissions for the examination of witnesses and documents; and
(f) any other matter which may be prescribed. (2) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of W.P.(C)Nos. 13444 & 14496 of 2020 23 the Indian Penal Code, 1860 (Central Act 45 of 1860) and the Commission shall be deemed to be a court for the purpose of section 195 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).
(3) The Commission shall, while conducting enquiry under section 9, shall afford opportunity to all parties to present their views by themselves or by their authorized representatives; (4) The findings of the Commission on any enquiry conducted under this Act shall be communicated to the Government with its recommendations for appropriate action or relief to the parties to the dispute.
E. The Government of Kerala noticed many Keralites involved in minor offences languishing in foreign prisons, facing legal issues in connection with their employment, passport and job visas and misguided and cheated by pars legal persons in Gulf countries and there is necessity for providing effective legal assistance to Keralites working abroad especially in Gulf Cooperation Council (GCC) Countries, Iraq and other South East Asian Countries. An order was issued with the intention of appointing designated Legal Consultants for giving effective legal assistance to the distressed Keralites in conflict with law abroad. True copy of the Government Order G.O. (Ms) No.7/2018/NORKA dated 02.11.2018 providing guidelines for appointment of Legal Consultants is produced herewith and marked as Annexure R4(a). In Annexure R3(a), the designation used was Legal Liaison Officer. It was corrected as NORKA Legal Consultant by an order, G.O.(Ms) No. 14/2019/NORKA dated 05.09.2019. True copy of G.O.(Ms) No. 14/2019/NORKA dated 05.09.2019 is produced herewith and marked as Annexure R4(b). True copy of the form of agreement approved to be executed between the Legal Consultants is produced herewith and marked as Annexure R4(c).
F. After calling applications, 11 persons who confirmed the W.P.(C)Nos. 13444 & 14496 of 2020 24 eligibility conditions prescribed in Annexure R3(a) Government Order, were appointed in various countries. True copy of proceedings from the Chief Executive Officer dated 18.10.2019 appointing eight NORKA Legal Consultants/ Advocates in respective countries is produced herewith and marked as Annexure R4(d).
G. As per the proceedings dated 19.11.2019, three more NORKA Legal Consultants were appointed in other countries. True copy of the Proceedings/ Order dated 19.11.2019 of Chief Executive Officer, NORKA is produced herewith and marked as Annexure R4(e). For easy reference, true copy of the name and respective country list of 11 NORKA Legal Consultants is produced herewith and marked as Annexure R4(f). KThe Government of Kerala is deeply concerned about the labour problems in Gulf countries like Saudi Arabia, Sultanate of Oman, Qatar and others. The condition of those who have worked there for years, yet forced to return without any benefits is very pitiable. Most of them are struggling to lead a reasonably good life in their home land. The Government has accorded the highest priority to their rehabilitation package NDPREM (Norka Department Project for Returned Emigrants). Under this scheme, Norka Roots has entered into an MoU with Canara Bank, SBT, SBI, South Indian Bank and Union Bank. Loans are sanctioned by the banks as per their norms and conditions in the MoU. Capital subsidy of 15% of the project cost, subject to a maximum of Rs. 20 lakhs and interest subsidy of 3% for the first 4 years will be given to those beneficiaries who are regular in payment. In case of default, the benefit can be availed only if the beneficiaries clear off his/her dues. During this short period of the current Government, 4520 returnees have applied under the scheme and 4110 have been selected. This year, orientation and training camps are conducted prior to screening/selection to boost the managerial capabilities of the entrepreneurs. W.P.(C)Nos. 13444 & 14496 of 2020 25 Santhwana Financial assistance is provided to NRKs who have returned back after at least 2 years of working abroad and whose annual income is below Rs. 1,50,000. Assistance is provided for medical treatment of the returnee or his closest relatives (up to Rs. 50,000), for funeral expenses (up to Rs. 1,00,000), for marriage assistance of daughters (Rs. 15,000) and to buy wheelchair/crutches (Rs. 10,000). Under this scheme, which started in 2005, the Government has spent Rs. 89.75 crores for total 18361 beneficiaries. Under the present Government an amount or Rs. 68.25- crores for 11511 beneficiaries has already been sanctioned.
Karunya It is a financial aid for bringing the dead bodies of NRK's from foreign countries to the homeland. Under the scheme, financial assistance is provided up to a maximum of Rs.50000 in case of death abroad and up to a maximum of Rs.15000 for death within India. In order to avail this service, the ill-fated person should have been legally employed abroad for more than two years.
Repatriation of Keralites from Sudan Following a telephone message that there were 35 Keralites held up in Juba in South Sudan, both the Embassy and the Deputy Secretary (States) was contacted by email and requested to initiate steps to repatriate them. In coordination with the Indian Air Force, a special flight was operated from Juba which would land at Thiruvananthapuram Airport at 02.45 AM on 15 July 2016. Arrangements were made to receive the expatriates and for their transport in coordination with Norka-Roots and KSRTC, apart from providing them with refreshments as welL In addition to the above repatriates, 32 persons from Tamil Nadu also arrived here. W.P.(C)Nos. 13444 & 14496 of 2020 26 Saudi Labour Crisis There was a labour issue in Saudi Arabia related to Oger Company Ltd. Hundreds of Indian conditions and the Citizens were trapped in Saudi Arabia without job and food. The Indian Mission was at work to repatriate them to India and help desks were set up at Delhi and Mumbai airports. On the directions of the Chief Minister, air tickets were provided from Delhi to Kerala and Rs. 2000 was provided to each of them for their pocket expenses.
H. Apart from the above stated schemes, in paragraph 8, the following schemes are also being implemented by the State for the welfare of Non Resident; Keralites and also for the returned Keralites:
A) Emergency Ambulance service at Airports The service aids financially backward NRKs with a free ambulance service, either while returning home for treatment or while transporting the body of a deceased one back home. The scheme is made operational at 4 airports in Kerala. Till date, 696 persons have been benefited.
B) Emergency Repatriation Fund For NRKs This fund is used for emergency repatriation of NRKs in very distressed circumstances. It could also include mass evacuation from strife torn countries. Repatriation of distressed persons and also transportation of mortal remains are covered under this scheme. Expenditure under this head is totally unpredictable.
C) Pre-departure Orientation Programme, Awareness Campaign on illegal Recruitment & amp; Visa Check It is intended to make overseas job aspirants aware about general job situations abroad and to impart essential information relating to visa, emigration rules, employment contract, travel formalities etc. It emphasizes on bridging the gap between the existing skill sets of W.P.(C)Nos. 13444 & 14496 of 2020 27 the job aspirants with that of the expected capability in terms of knowledge, skills & practical exposure of the overseas job market. Norka has initiated to conduct such programmes at every district in Kerala.
D) Global Contact Centre / 24 Hour Helpline/Call Centre It is intended to disseminate information on various schemes/projects implemented by Government and NORKA ROOTS, redress grievances of NRKs, create awareness among emigrants and prospective migrants against illegal exploitation, migration etc and act as a frontline service facilitator/one point client interaction point of NRKs. It is also envisaged to provide need based information and assistance to emigrants through the proposed helpline.
Toll Free No:- 1800-425-3939 (within India) :- 0091 8802 012345 (International) Huge response has been receiving till date 274432 calls and 2.8 lakhs chats on attended and clarified.
I. It is further contended that the Government of Kerala had already taken and is prepared to extend all possible help and legal assistance as well as financial assistance and brought out various schemes for Non Resident Keralites as well as repatriated Keralites after retirement and losing their employment.
21. Along with the Statement dated 12.8.2020, the State Government have filed some documents. Annexures R4(a), R4(b), R4(d) and R4(f) being relevant, are extracted:
I. Annexure R4(a) "GOVERNMENT OF KERALA Abstract Norka Department - Pravasi Legal Assistance Scheme - Guidelines for W.P.(C)Nos. 13444 & 14496 of 2020 28 appointment of Legal Liaison Officers - approved-Orders issued.
NORKA (A) DEPARTMENT G.O.(Ms) No.7/2018/NORKA Dated, Thiruvananthapuram, 02/11/2018 Read 1) GO No. 68/2013/NORKA dated 05.03.2013.
2) Letter No. 5574/A//2016/Roots, dated 30.06.2018 from the Chief Executive Officer, Norka Roots, Thiruvananthapuram.
ORDER It has come to the notice of the Government that many Keralites involved in minor offences are languishing in foreign prisons, facing legal issues in connection with their employment, passport and job visas, especially in Gulf Co-operation Council (GCC) countries, Iraq and other South East Asian countries.
2. In order to provide legal assistance to such distressed Malayalees, Government are pleased to engage Legal Liaison Officers (LLOs) in association with Malayalee Cultural Organizations of the respective countries, under Pravasi Legal Assistance Scheme as per the following guidelines:
A. Objectives a. Provide legal assistance to distressed Malayalees, who are involved in offences and facing difficulties with respect to passport, visa, employment and social issues of their relatives. b. Provide legal advice for filing cases, claim petitions, mercy petitions and take such other actions required. c. Conduct legal awareness programmes in liaison with Malayalee Cultural Organizations.
d. Provide help of bilingual experts for translation. e. And generally to take any legal action for giving assistance to a distressed Malayalee.
B. Eligibility for legal assistance a. Keralites who are in the above said foreign countries having a W.P.(C)Nos. 13444 & 14496 of 2020 29 valid passport and on a job visa or a visiting visa. b. Relatives or friends of distressed Malayalees who are in prison, detained or laid up in hospital or other places in the respective foreign country.
C. Eligibility to be selected a Legal Liaison Officer a. He/She shall be a native of Kerala and be able to read and write Malayalam and having efficiency to deal in the regional language of the respective country.
b. He/she shall have practised as a Lawyer for a minimum period of 2 years in Kerala and shall have the experience in dealing with legal issues of the respective country.
c. He/She who fulfills the conditions (a) and (b) above, skill also be a member of the Firm of Lawyers for a minimum period of 2 years in such a foreign country.
D. Selection of Legal Liaison Officer a. The Selection of Lewd Liaison Officer shall be conducted by a Selection Committee consisting of the following:
(i) Chief Executive Officer, NORKA Roots or his nominee shall be the Convener.
(ii) Secretary of Home Department or an officer nominated by him.
(iii) Secretary of Law Department or an officer nominated by him.
(iv) Secretary of NORKA Department or an officer nominated by him.
b. The selection shall be conducted after inviting applications from eligible persons.
c. The invitation shall be published in NORKA Roots website, official website of Government of Kerala and at least in one Malayalam newspaper having circulation in Kerala and Gulf countries and in its e.editions.
E. Terms and Conditions a. Terms and conditions including Honorarium shall be prescribed by W.P.(C)Nos. 13444 & 14496 of 2020 30 the Selection Committee uniformly or with respect to each country before calling for applications and shall be published in the e.gazette of NORKA.
b. The honorarium shall be paid in Indian Rupee and the selected person shall have a Bank Account in a Nationalized Rank prescribed by NORKA Roots.
c. The period of contract of appointment shall be 2 years, which is terminable on non-satisfaction of conditions in the agreement and NORKA Roots is entitled to renew the agreement for such other period not exceeding 2 years at a time.
d. The person selected shall enter into an agreement with NORKA Roots in the prescribed format.
4. The NORKA Roots or Norka Department in Government of Kerala shall have no obligation and shall not be held liable for any action of the panel of Legal Liaison Officers. They will be treated as professionals voluntarily selected by the distressed Keralites and they will be obliged as such.
5. The expenditure in this regard will be met from the Head of Account. 2230-01-103-23 (plan).
(By order of the Governor) JANARDHANAN K JOINT SECRETARY"
II. Annexure R4(b) "GOVERNMENT OF KERALA Abstract Norka Department- Guidelines for appointment of Legal Liaison Officers under Pravasi Legal Assistance Scheme- Designation changed - Modified orders issued.
NORKA (A) DEPARTMENT G.O.(Ms)No.14/2019/NORKA Dated, Thiruvananthapuram, 05/09/2019 Read 1. GO(Ms) No.7/2018/NORKA dated 02.11.2018
2. Letter No. 5574/A2/2016/Roots, dated 24.07.2019 from the Chief Executive Officer, Norka Roots, Thiruvananthapuram. W.P.(C)Nos. 13444 & 14496 of 2020 31 ORDER The designation 'Legal Liaison Officer' mentioned in the G.O. read above is changed to 'Norka Legal Consultant'.
The GO read as 1st paper above stands modified to this extent.
(By order of the Governor) JANARDHANAN K JOINT SECRETARY"
III. Annexure R4(d) "NORKA-ROOTS Head Office: Norka Centre, 3rd Floor, Thycaud P.O, Thiruvananthapuram-695014.
PROCEEDINGS OF THE CHIEF EXECUTIVE OFFICER, NORKA-
ROOTS (Present Shri.Hari Krishnan Namboothiri K) Sub: NORKA-ROOTS - Appointment of NORKA LEGAL CONSULTANT- Orders issued Read: 1. G.O(Rt) No. 302/2013/Norka dated 22/10/2013
2. G.O (Ms) No. 07/2018/Norka dated 02/11/2018
3. Notification dated 30.11.2018 inviting application for Legal Consultant.
4. Letter No. A2/173/2016/Norka dated 29/03/2019
5. Minutes of the meeting held by Selection committee dated 10/04/2019, 24/04/2019, 16/05/2019, 24/06/2019, 10/07/2019, 16/07/2019
6. Letter No. 5574/A/2016/Roots dated 24/07/2019
7. Govt. Letter No. A2/173/2016/Norka dated 04/09/2019
8. G.O(Ms) No.14/2019/Norka dated 05/09/2019
9. G.O(Ms) No. 15/2019/dated 23/09/2019 Order No.3591/MD/2017/ROOTS dated: 18/10/2019 As per the Government Order read as 1 st paper above, the Pravasi Legal Aid Cell (PLAC) was established to make available legal help, advice and representation in Gulf Co-operation Council Countries to those Non-Resident Keralites who are imprisoned for W.P.(C)Nos. 13444 & 14496 of 2020 32 no wilful default of their own. Most of the Keralites are ignorant about the relevant laws, procedures, culture and language of the destination countries. That makes them vulnerable to cheating by unscrupulous middlemen and exploitation by overseas employers. Many of them happen to be illegal migrants while being engaged overseas jobs without proper documentation or overstaying after the expiry of the work visa. In the absence of any sort of legal assistance, the poor workers are jailed and subjected to untold miseries. Hence, the Pravasi Legal Aid Cell (PLAC) was set up to assist those NRKs who are in need of legal assistance in their host countries.
As per the Government Order read as 2 nd paper above detailed guidelines were issued for appointment of Legal Liaison Officers with a view to provide legal assistance to distressed pravasi Malayalees involved in minor offences and are languishing in foreign prisons, facing legal issues in connection with their employment, passport, and job visa, especially in Gulf Co- operation Council (GCC) countries, Iraq and other South East Asian countries. By the above order Government granted permission to engage Legal Liaison Officers in association with Malayalee Cultural Organizations of the respective countries.
The main objectives of the scheme are as follows:
a. Provide legal assistance to distressed Malayalees, who are involved in offences and facing difficulties with respect to passport, visa, employment and social issues with their relatives.
b. Provide legal advice for filing cases, claim petitions, mercy petitions and take such other actions required. c. Conduct legal awareness programmes in liaison with Malayalee Cultural Organizations.
d. Provide the help of bilingual experts for translation. e. And generally to take any legal action for giving assistance to a W.P.(C)Nos. 13444 & 14496 of 2020 33 distressed Malayalee.
The eligibility criteria for Legal assistance is as follows:
a. Keralites who are in the above said foreign countries having a valid passport and on a job visa or a visiting visa. b. Relatives or friends of distressed Malayalee who are in prison, detained or laid up in hospital or other places in the respective foreign country.
By the above Government Order, Government entrusted the selection and empanelment of Legal Liaison Officers with a Selection Committee consisting of the following members:
(i) Chief Executive Officer, Norka Roots or his nominee shall be the convener.
(ii) Secretary of Home Department or an officer nominated by him.
(iii) Secretary of Law Department or an officer nominated by him
(iv) Secretary of Norka Department or an officer nominated by him.
Pursuant to this notification inviting application for legal liaison officers were issued as per the reference cited 3 rd above. A total number of 22 applications were received and out of which 11 were found valid. As per the minutes referred 5 th above, the Selection Committee has prepared the list of candidates after scrutinizing the bio-data, achievements and all the parameters envisaged in the guidelines including the performance in the interview.
As per the Government Letter read as 7th paper above, Government have approved the list of candidates for empanelment prepared by the Selection Committee. As per the Government Order referred to as 8th paper above, the Government have changed the designation 'Legal Liaison Officer as 'Norka Legal Consultant'. As per the Government Order read as 9 th paper above, Government have approved the agreement to be signed with the W.P.(C)Nos. 13444 & 14496 of 2020 34 Norka Legal Consultant at the time of appointment. In the above circumstances, the following candidates are selected as Norka Legal Consultant for the country/place noted against each of them for a period of 2 years as per the terms and conditions prescribed in the Government Order referred as 2 nd paper above.
Sl Name and present Enrollment Address in Country
No Address of Norka Legal No Kerala
Consultant
1 Advt. Rajesh Sagar 3054/1996 Rachana, Kuwait
Senior Legal Expert, Thekkenada,
KWIDL, Kuwait Airways Vaikom,
Head Office, P.O Box Kottayam. Pin-
No. 394, Safat-13004 686141
2 Advt. Sreejith Krishnan. K/2516/1999 Sreenilayam Bahrain
M Flat No. 25, Building House, V O
1413, Road 2321, Road, VadRkara
Manama 0323, Rasal 1, Kozhikkode-
Ruman, PO Box No. 673101
10499, Kindom of
Bahrain,
3 Advt.Gireesh Kumar K/1524/1999 Areekode OMAN
Athrangadan PO.Box Paramb House,
No. 1055, Postal Code Thachenna,
131, Mascot Mythra PO,
Mreekode,
Malappuram
4 Advt. Sabu R P.O Box 1359/1995 Deepthi, UAE
No. 7928, Abudhabi, Ponpara, (Abudhabi)
Adaax Tower, 1708, Vithura,
Reem Island, Abudhabi Thiruvananthap
uram-695 551
5 Advt. Femin P.S 58/2000 Panikkassery UAE
Global Links Legal & House, (Sharjah)
Migration Consultants, Chemmnoor
Flat No. 911, Makateb PO,
Building, Opposite to Kunnamkulam,
Green House, Deira, Porkkalengadu,
Dubai, PO Box No. Thrissur- 680
84981 517
6 Advt. Thaha P Y K/276/2000 Poovaluparambi UAE
Sharjah Investment l House, (Sharjah)
and Development Koolimuttam Ajaman,
Authority, PO Box No. PO, Ras Al
867, Sharjah, United Kodungaloor, gaima.
Arab Emirates Thrissur- 680 Fijra
691
W.P.(C)Nos. 13444 & 14496 of 2020
35
7 Advt. Anala Shibu, K/953/2004 Sabarmathi, Dubai
Post Box No. 90033, Puthupally,
Dubai Kayamkulam,
Alappuzha- 690
527
8 Advt. Bini Saroj.S K/3180/1999 Ithal, D-32, G R Dubai
Khalifa Bin Huwaidan, A, Pallotty Lane,
Advocates Office 804, Gandhipuram
City Avenue Building, Road,
PO Box No. 41333 Sreekaryam
The Norka Legal Consultant will be eligible for an honorarium as detailed below:
• Consolidated honorarium Rs.1,20,000/- (Rs.One lakh and twenty thousand only) per annum all inclusive of expenses like telephone charges, travelling, office and any miscellaneous, which shall be paid in four equal quarterly installments. • An additional amount of Rs.10,000/-(Rs.Ten thousand only) per each case entrusted by Norka Roots on settlement of the delegated issue. This shall be paid in quarterly installments. The Selected Norka Legal Consultant shall execute an agreement with Norka Roots.
Sd/-
Chief Executive Officer"
IV. Annexure R4(e) NORKA-ROOTS Head Office: Norka Centre, 3rd Floor, Thycaud P.O, Thiruvananthapuram-695014.
PROCEEDINGS OF THE CHIEF EXECUTIVE OFFICER, NORKA-ROOTS (Present Shri.Hari Krishnan Namboothiri K) Sub: NORKA-ROOTS - Appointment of NORKA LEGAL CONSULTANT-
Orders issued Read: 1. G.O(Rt) No. 302/2013/Norka dated 22/10/2013
2. G.O (Ms) No. 07/2018/Norka dated 02/11/2018
3. Notification dated 30.11.2018 inviting application for Legal Consultant.
4. Letter No. A2/173/2016/Norka dated 29/03/2019 W.P.(C)Nos. 13444 & 14496 of 2020 36
5. Minutes of the meeting held by Selection committee dated 10/04/2019, 24/04/2019, 16/05/2019, 24/06/2019, 10/07/2019, 16/07/2019, 07/09/2019 & 20/09/2019
6. Letter No. 5574/A/2016/Roots dated 24/07/2019
7. Govt. Letter No. A2/173/2016/Norka dated 13/11/2019
8. G.O(Ms)No.14/2019/Norka dated 05/09/2019
9. G.O(Ms) No. 15/2019/dated 23/09/2019 Order No.3591/MD/2017/ROOTS dated: 19/11/2019 As per the Government Order read as 1 st paper above, the Pravasi Legal Aid Cell (PLAC) was established to make available legal help, advice and representation in Gulf Co-operation Council Countries to those Non-Resident Keralites who are imprisoned for no wilful default of their own. Most of the Keralites are ignorant about the relevant laws, procedures, culture and language of the destination countries. That makes them vulnerable to cheating by unscrupulous middlemen and exploitation by overseas employers. Many of them happen to be illegal migrants while being engaged overseas jobs without proper documentation or overstaying after the expiry of the work visa. In the absence of any sort of legal assistance, the poor workers are jailed and subjected to untold miseries. Hence, the Pravasi Legal Aid Cell (PLAC) was set up to assist those NRKs who are in need of legal assistance in their host countries.
As per the Government Order read as 2 nd paper above detailed guidelines were issued for appointment of Legal Liaison Officers with a view to provide legal assistance to distressed pravasi Malayalees involved in minor offences and are languishing in foreign prisons, facing legal issues in connection with their employment, passport, and job visa, especially in Gulf Co-operation Council (GCC) countries, Iraq and other South East Asian countries. By the above order Government granted permission to engage Legal Liaison Officers in association with Malayalee Cultural Organizations of the W.P.(C)Nos. 13444 & 14496 of 2020 37 respective countries.
The main objectives of the scheme are as follows: a. Provide legal assistance to distressed Malayalees, who are involved in offences and facing difficulties with respect to passport, visa, employment and social issues with their relatives. b. Provide legal advice for filing cases, claim petitions, mercy petitions and take such other actions required. c. Conduct legal awareness programmes in liaison with Malayalee Cultural Organizations.
d. Provide the help of bilingual experts for translation. e. And generally to take any legal action for giving assistance to a distressed Malayalee.
The eligibility criteria for Legal assistance is as follows: a. Keralites who are in the above said foreign countries having a valid passport and on a job visa or a visiting visa. b. Relatives or friends of distressed Malayalee who are in prison, detained or laid up in hospital or other places in the respective foreign country.
By the above Government Order, Government entrusted the selection and empanelment of Legal Liaison Officers with a Selection Committee consisting of the following members:
(i) Chief Executive Officer, Norka Roots or his nominee shall be the convener.
(ii) Secretary of Home Department or an officer nominated by him
(iii) Secretary of Law Department or an officer nominated by him
(iv) Secretary of Norka Department or an officer nominated by him Pursuant to this notification inviting application for legal liaison officers were issued as per the reference cited 3 rd above. A total number of 22 applications were received and out of which 11 were found valid. As per the minutes referred 5 th above, the Selection Committee has prepared the list of candidates after scrutinizing the W.P.(C)Nos. 13444 & 14496 of 2020 38 bio-data, achievements and all the parameters envisaged in the guidelines including the performance in the interview.
As per the Government Letter read as 7th paper above, Government have approved the list of candidates for empanelment prepared by the Selection Committee. As per the Government Order referred as 8th paper above, Government have changed the designation 'Legal Liaison Officer' as 'Norka Legal Consultant'. As per the Government Order read as 9th paper above, Government have approved the agreement to be signed with the Norka Legal Consultant at the time of appointment.
In the above circumstances, the following candidates are selected as Norka Legal Consultant for the country/place noted against each of them for a period of 2 years as per the terms and conditions prescribed in the Government Order referred as 2 nd paper above.
Sl Name and present Address of Enrollment Address in Country
N Norka Legal Consultant No Kerala
o
1 Advt. Thomas P.M, K/207/2001 Palananiyil Saudi
Al Zahra Commercial, Market House, Arabia
Est. Al Khobur 31952, Madambam,
Dammam, Kingdom of Saudi Sreekandapuram
Arabia (via)
Kaithrapram PO,
Kannur -670631
2 Advt. Najumuddeen A K/1097/2000 Kunnparambil, Saudi
Al Juwabra Office centre, Arattupuzha Arabia
1st Floor, Office No. 6, North
Jedaadh Stree, Al Koobur, Thrikunnapuzha
Saudi Arabia PO, Alappuzha
3 Advt.Nizar Kocheri, K/607/2000 Kocheri House, Qatar
PO Box No. 55751, Office 20 Kanjiramattom
B, Al Mana Business Tower, PO, Ernakulam-
Suham Bin Hamed Street, C 682 315
Ring Road, Doha, Oatar
The Norka Legal Consultant will be eligible for an honorarium as detailed below:
• Consolidated honorarium Rs.1,20,000/- (Rs.One lakh and twenty thousand only) per annum all inclusive of expenses like telephone W.P.(C)Nos. 13444 & 14496 of 2020 39 charges, travelling, office and any miscellaneous, which shall be paid in four equal quarterly installments.
• An additional amount of Rs.10,000/- (Rs.Ten thousand only) per each case entrusted by Norka Roots on settlement of the delegated issue. This shall be paid in quarterly installments. The Selected Norka Legal Consultant shall execute an agreement with Norka Roots.
Sd/-
Chief Executive Officer"
22. In W.P.(C) No.13444 of 2020, the Central Government have filed a further statement dated 17.8.2020, reiterating and explaining the steps taken, which reads as follows:
Indian Community Welfare Fund (ICWF) The Indian Community Welfare Fund (ICWF), set up in 2009, is aimed at assisting Overseas Indian nationals in times of distress and emergency in the 'most deserving cases' on a 'means tested basis'. ICWF has also been a critical support in emergency evacuation of Indian nationals from conflict zones, countries affected by natural disasters and other challenging situations. In view of its immense utility, ICWF stands extended to all Indian Missions and Posts abroad.
The ICWF guidelines have been revised further to make them more broad-based and expand the scope of welfare measures that can be extended through the Fund. The revised ICWF guidelines have become operational w.e.f. September 1st, 2017 following the approval of the Union Cabinet. They are expected to provide Indian Missions and Posts abroad greater flexibility in swiftly addressing requests for assistance by Overseas Indian nationals. Over 1,60,000 people have benefited from the fund. The revised guidelines cover the following three key areas:
W.P.(C)Nos. 13444 & 14496 of 2020 40 A. Assisting Overseas Indian nationals in distress situations
a) Boarding and lodging for deserving distressed Indian nationals abroad on a means tested basis in budget category or shelters run by Mission/Post or NGOs empanelled with Mission.
b) Air passage to India to stranded Overseas Indian nationals.
c) Legal Assistance on a means tested basis to deserving overseas Indian nationals who have committed minor crimes, offences or have been falsely implicated by their employer and put in jails; fishermen / seamen / sailors / Indian students in distress;
d) Legal/financial assistance to Indian women abandoned/ cheated / abused by their NRI/PIO or foreign spouses (up to seven years after their marriage.
e) Payment for small fines and penalties in respect of Indian nationals for minor offences/crimes; for illegal stay in the host country where prima facie the worker is not at fault, and to enable release of Indian nationals from jail/detention centre.
f) Transportation of Mortal Remains and expenditure on incidentals of deceased Indian nationals to India or local cremation/burial of deceased in such cases where the employer, sponsor or insurance company is unable or unwilling to do so as per the contract and the family is unable to meet the cost.
g) Emergency Medical Care on means tested basis to overseas Indians who are involved in an accident (with serious life threatening injuries) have life-threatening medical conditions or suffer a serious disability.
B. Support for Community Welfare activities Indian Missions and Posts abroad, subject to availability of funds, may incur expenditure on community activities pertaining to the Indian community such as:
a) To promote Indian Culture by organizing cultural programmes by recognized Indian Diaspora organizations at major Indian W.P.(C)Nos. 13444 & 14496 of 2020 41 Festivals, National Days of India; Indian culture Programs by recognized local artists or Indian artists based in India etc.
b) Payment of honorarium for teachers/faculty teaching Indian languages, art forms.
c) Welfare activities for Indian students towards organizing Annual Day for Indian students at Universities/educational institutions to discuss problems, issues faced by Indian students, including their visa, residence status, work permit, financial, welfare and other issues with participation of students.
C. Improvement in Consular services Indian Missions and Posts abroad, subject to availability of funds, may incur administrative expenses pertaining to schemes / welfare measures etc. for the following purposes
a) Hiring of limited additional staff for rendering various consular services.
b) Hiring vehicles on a need basis for visits to jails, police stations;
detention centres; labour camps; welfare camps; shelters for distressed Indians; prisons; hospitals; morgues and to airports for deportation/repatriation of distressed Indian nationals.
c) Hiring of local interpreters on a case-to-case basis for consular visits.
d) Design, publication, translation costs of pamphlets by Mission/Post about local labour laws, regulations, norms, dos & don'ts, welfaremeasures pertaining to overseas employment in the host country.
e) Organizing labour camps / consular camps for interacting with Indian migrant workers and informing them about issues related to overseas employment; labour laws; welfare and protection measures of the government.
f) Setting up 24 x 7 toll-free helplines, walk-in resource centres for providing information, advice, guidance on problems faced by W.P.(C)Nos. 13444 & 14496 of 2020 42 distressed Indian nationals; and helping them register their grievance with the Mission/Post.
g) Development of e-Governance solutions, applications to address Consular/ welfare matters.
D. Criteria for Utilisation
a) ICWF funds can be used to assist only Indian citizens residing in the host country or those in distress while visiting a foreign country. Persons of Indian Origin and Overseas Citizens of India Card Holders are not eligible for individual financial assistance from ICWF.
b) ICWF can be utilized for the benefit of Indian nationals in distress on a means tested basis provided the officer approving ICWF expenditure has satisfied himself that the beneficiary deserves to be assisted.
c) Ordinarily, only such Indian National(s) who have entered the host country legally shall be eligible to receive benefits under this Fund. In cases where it is not so, assistance may be provided after the Head of Mission/Head of Post has recorded his satisfaction to the effect that the circumstances of the case necessitate providing assistance under ICWF.
E. Record about ICWF beneficiary An endorsement is mandatory in the Passport and relevant database of ICWF Beneficiary. Details regarding ICWF is available in https:// www.mea.gov.in/icwf.htm.
4. Pravasi Bharatiya Bima Yojana (PBBY) The revised scheme PBBY, 2017, operational w.e.f. August 1, 2017, has made settlement of claims simpler for the benefit of our workers and is aimed at ensuring expeditious settlement of claims. It now provides for:
(i) Global coverage irrespective of change of employer, employee's W.P.(C)Nos. 13444 & 14496 of 2020 43 location and place of work,
(ii) Acceptance by insurance companies of certification of accidental death/permanent disability by Indian missions/posts abroad, and
(iii) Facility for online renewal and copy of insurance policy is to be made available to the nominee(s). The Government promptly takes up the matter with the concerned insurance companies whenever any representation regarding settlement of claims is received.
5. The claimants under the scheme belong to various professions as defined under section 2(o) of Emigration Act, which are as follows:
i. any unskilled work, including any form of industrial or agricultural labour;
ii. any domestic service;
iii. any service, not being a service in a managerial capacity, in any hotel, restaurant, tea-house or other place of public resort; iv. work as a driver of a truck or other vehicle, mechanic, technician or skilled labourer or artisan; work as an office assistant or accountant or typist or stenographer or salesman, or nurse or operator of any machine;
v. work in connection with, or for the purposes of, any cinema, exhibition or entertainment;
Since the launch of e-migrate portal in 2014, the Government has been issuing online Emigration Clearance (EC). As per information received from insurance companies, premiums of INR 9,211.8 lakhs have been paid by the emigrants and 877 claims of INR 6,920.34 lakhs have been settled from 1.4.2014 till 31.1.2020. Detailed information about the Pravasi Bharatiya Bima Yojana, 2017 is also available at: http://www.egazette. nic.in/ WriteReadData/2017/ 177373.pdf
6. MADAD The MADAD portal, launched on February 21, 2015, is an online Consular Grievances Monitoring System to extend a helping hand to Indians abroad requiring consular assistance. MADAD seeks to W.P.(C)Nos. 13444 & 14496 of 2020 44 address grievances on issues related to workers abuse, recruiting agents, sponsorship and contract issues, repatriation of Indian nationals, tracing whereabouts of Indian nationals, death/injury compensation, transportation of mortal remains of deceased Indian nationals and marital dispute issues. MADAD portal (www.madad.gov.in, Madad App or Twitter Seva: @meaMADAD) enables online forwarding, filing tracking and escalation of grievances by members of the public and effective tracking of the entire grievance handling process all the way until the redressal of the grievance. All Indian Missions and Posts abroad have been linked to this portal for consular grievance tracking and follow-up. In addition, the names and contact details of all officers in Missions and Posts are available on their respective websites. The MADAD portal also stands integrated with e-Migrate system. On MADAD portal, from its commencement in February 2015 till 14 August, 2020, total 64311 grievances have been filed; out of which 55299 have been resolved/replied to. From January 2015 to July 2020, total 24335 mortal remains have been transported to India from abroad. In the last six years around 2,70,000 Indian nationals in distress have been repatriated to India. MADAD portal:
https://portal2.madad.gov.in/AppConsular/online/Welcome Message Outer.
7. e-Migrate The e-Migrate project has been rolled out in all Protector of Emigrants (PoE) offices with effect from September 25, 2014. The project is designed for facilitating emigration of ECR category emigrants going to notified countries for employment purposes. The project helps in making the recruitment of workers a smooth process and mitigates the scope for malpractices. The e-Migrate system provides the government a comprehensive and online database of emigrants, Missions, Recruiting Agents, Foreign W.P.(C)Nos. 13444 & 14496 of 2020 45 Employers, Insurance Agencies to make the whole emigration cycle faster, transparent and allows authentication/verification of credentials of all the stakeholders. The portal is integrated with Passport Seva Project (PSP) for validation of passport details of ECR category workers. The system is also integrated with Bureau of Immigration, MHA and is used at Immigration Check Post (ICP) at airports for online validation of the emigration clearance granted by POEs. Nurses and Seafarers have also been brought under Emigration Clearance.
8. Pravasi Bharatiya Sahayata Kendras (PBSKs)
a) 24x7 helpline in the PBSKs which have been receiving, registering and monitoring grievance petitions of Indians and providing necessary advice / resolution and providing clarification to information seeking queries. If not resolved, the cases are escalated to the Embassy /Consulate for further resolution.
b) Providing counseling sessions on legal, financial, medical and psychological matters.
c) Awareness camps that are conducted in labour camps which educates the workers on various issues they face during their employment, health related talks by experts, various schemes of Govt of India for the welfare of the workers.
d) Liaising with help-groups, individuals, social workers and related bodies to offer assistance to Indian Community Members.
e) To verify the genuineness of job offers received by Indians from companies in the respective countries.
9. Centralized Public Grievance Redress And Monitoring System (CPGRAMS) This is a Government of India Portal aimed at providing the citizens with a platform for redress of their grievances. Department of Administrative Reforms & Public Grievances is the nodal agency to formulate policy guidelines for citizen-centric governance in the country. The grievances received by the Department are forwarded to the concerned Ministries/Departments/State Governments/UTs, who are dealing with the substantive function linked with the W.P.(C)Nos. 13444 & 14496 of 2020 46 grievance for redress under intimation to the complainant."
23. Documents in support of the insurance scheme for Indian emigrants going abroad for employment, viz., Pravasi Bharatiya Bima Yojana and setting up of Indian Community Welfare Fund (ICWF) are as hereunder:
"MINISTRY OF EXTERNAL AFFAIRS (Overseas Indian Affairs Division-I) NOTIFICATION New Delhi, the 10th July, 2017.
G.S.R. 864(E).--Whereas an insurance scheme for Indian emigrants going abroad for employment, viz., Pravasi Bharatiya Bima Yojana, 2003 and amendment as per Pravasi Bharatiya Bima Yojana, 2006 and Pravasi Bharariya Bima Yojana, 2008, as carried out by the Government of India on 13th November, 2003, 25th January, 2006 and 1st April, 2008 respectively.
Whereas the Government of India considers it necessary to further amend the scheme with a view to strengthen the coverage to the emigrant workers.
Now, therefore, the Government of India hereby makes the following scheme, namely:-
1. Short title and commencement:
(i) This Scheme may he called the Pravasi Bharatiya Bima Yojana 2017.
(ii) It shall come into force from 1st August, 2017.
2. Application:-
(i) This Scheme shall be mandatory for all citizens of India who apply for and obtain an emigration clearance as required under tl1e Emigration Act, 1983 (31 of 1983) as well as emigrants going for overseas employment for various professions falling under work categories covered under Section 2 (o) of Emigration Act, i983 irrespective of the passport category.
(ii) The benefits under this Scheme shall not apply in the event W.P.(C)Nos. 13444 & 14496 of 2020 47 of war or internal conflict in the country to which the citizen of India holding the said policy has gone for work or where Government travel advisory not to travel is in place.
3. Definition:-
In this Scheme, unless the context otherwise requires, "Emigrant" means any citizen of India who intends to emigrate, or emigrates or has emigrated but does not include:
(a) a dependent of an emigrant, Whether such dependent accompanies that emigrant, or departs subsequently for the purpose of joining that emigrant in the country to which that emigrant has lawfully emigrated;
(b) any person who has resided outside India at any time afler attaining the age of eighteen years, for not less than three years or the spouse or child of such person;
"Protector of Emigrants" means a Protector of Emigrants appointed under section 3 and includes a person authorized under section 5 of the Emigration Act,1983.
"Insurance Company" means an insurer being a company formed and registered under the Insurance Act, 1938.
"Insurance Regulatory and Development Authority of India (lRDAI)" means the Insurance Regulatory and Development Authority of India (IRDAI) formed as per Insurance Regulatory and Development Authority Act, 1999.
4. Requirement of taking insurance policy by certain persons applying for emigration clearance:
(i) It shall be mandatory for all emigrants who need Emigration Clearance for overseas employment, to subscribe to an insurance policy from any Insurance Company operating in India and duly registered with the Insurance Regulatory and Development Authority of India (lRDAI).
(ii) Each citizen of India applying for emigration clearance from the concerned Protector of Emigrants (POE) shall obtain an Insurance policy covering the following:
a) The Insurance policy shall be valid for a minimum period of two/three years and renewable thereafter during the period of employment contract.
b) The Insured person shall be covered for a sum of ten lakh rupees in the event of accidental death or permanent disability leading to loss of employment while in employment abroad. The insurance shall remain valid irrespective of change of employer or the W.P.(C)Nos. 13444 & 14496 of 2020 48 insured's location during the policy period. The insurance shall also remain valid during visit of insured to India or any third country during the currency of insurance policy.
c) Certification of accidental death or permanent disability leading to loss in the employment by Indian Missions and Posts abroad shall be accepted by the insurance companies. While in third country, certification of accidental death/ permanent disability leading to loss in the employment by Indian Mission/Post in that country and in India, certification by concerned Protector of Emigrants shall be acceptable.
d) In case of accidental death, besides the cost of transporting the dead body, the cost incurred on economy class return airfare of one attendant upto the International airport in India nearest to the address of the insured shall also be reimbursed by the Insurance Company. In case of permanent disability of the insured, the economy class return airfare of one attendant upto the International airport nearest to the address of the insured shall also be reimbursed by the Insurance Company. The claim for reimbursement shall he filed with the Insurance Company within 90 days of completion of journey.
e) The insurance company shall pay the sum insured in case of accidental death or permanent disability due to any accident/physical injury sustained while in employment abroad occurring within twelve months from the date of such accident provided it occurs during the currency of insurance policy and such death or permanent disability shall be attributed to the said accident. In such cases, intimation about the accident/physical injury will be sent to the Insurance Company within 30 days from the date of such accident/physical injury. Further, claim has to be filed within 90 days from the date of accidental death/ permanent disability. In case of non-submission of claim documents within 90 days, certificate from the Indian Mission/Post stating that the circumstances were beyond the control of the insured, will be accepted by the Insurance Company. In case of accidental death/permanent disability in India, a certificate from Protector of Emigrants will be accepted.
f) The Insurance company shall provide medical insurance cover of Rupees one lakh only (up to Rupees Fifty thousand per hospitalization) in case of hospitalization of the insured in an emergency on grounds of accidental injuries and/or sickness/ailments/diseases occurring during the period of Insurance whether in India/third country or in the country of his employment.
g) The Insurance company shall reimburse the actual medical expenses in the event of 4 (f) above, and in case such medical treatment is taken in India, shall also provide cashless hospitalization.
W.P.(C)Nos. 13444 & 14496 of 2020 49
h) If the insured person falls sick or is declared medically unfit to commence or continue or resume work and the service contract is terminated by the foreign employer within first twelve months of taking the insurance cover, the actual one way Economy Class airfare up to the International airport nearest to the address of the insured shall be reimbursed by the Insurance company provided the grounds for repatriation are certified by the concerned Indian Mission/Post and Air-tickets are submitted in original.
i) On arrival at his workplace or destination abroad, if the emigrant worker is not received by the employer or if there is any substantive change in the job/Employment Contract/Agreement to the disadvantage of the insured person, or if the employment is prematurely terminated within the period of employment for no fault of the emigrant, one-way Economy Class airfare shall also be reimbursed by the Insurance company upto the international airport nearest to the address of the insured provided the grounds for repatriation are certified by the concerned Indian Mission/Post and the Air-tickets are submitted in original.
j) In cases where the repatriation is arranged by the Indian Mission/ Post, the Insurance Company shall reimburse the actual expenses to the concerned India Mission/Post.
k) The Insurance under this policy shall also provide maternity benefits to women emigrants, subject to a minimum cover of Thirty five thousand rupees in case of normal delivery and upto Rupees fifty thousand in case of caesarean operation per policy period. In case of medical treatment in the country of employment, the maternity benefits would be provided only if the requisite documents are certified by the concerned Indian Mission/Post. The reimbursement shall be restricted to actuals.
l) The family of the emigrant worker in India consisting of spouse and first two dependent children upto twenty one years of age shall be entitled to hospitalization cover in the event of death or permanent disability of the insured person for maximum fifty thousand rupees per annum during the policy period.
m) An insured person shall be covered for a sum of Rupees Forty five thousand in connection with the legal expenses incurred by him in any litigation relating to his/her employment, provided the necessity of filing such case is certified by the concerned Indian Mission/Post.
n) The Insurance Company shall provide facility of online renewal of the policy for a further period by the emigrants on its expiry subject to production of proof of employment.
o) The Insurance Company shall provide a copy of insurance policy to the nominee of the insured person.
W.P.(C)Nos. 13444 & 14496 of 2020 50
p) The Insurance companies shall charge fair and reasonable premium. Service tax will be charged as applicable.
5. The Pravasi Bharatiya Bima Yojana, 2017 will replace the existing Pravasi Bhatatiya Bima Yojana with effect from the date of its coming into force.
[F.No. Q/QIA-1/381/1/2017] MANISH GUPTA, Jt Secy. (OIA-I)"
"Indian Community Welfare Fund (ICWF) The Indian Community Welfare Fund (ICWF), set up in 2009, is aimed at assisting Overseas Indian nationals in times of distress and emergency in the 'most deserving cases' on a 'means tested basis'. ICWF has also been a critical support in emergency evacuation of Indian nationals from conflict zones, countries affected by natural disasters and other challenging situations. In view of its immense utility, ICWF stands extended to all Indian Missions and Posts abroad.
The ICWF guidelines have been revised further to make them more broad-based and expand the scope of welfare measures that can be extended through the Fund. The revised ICWF guidelines have become operational w.e.f. September 1st, 2017 following the approval of the Union Cabinet. They are expected to provide Indian Missions and Posts abroad greater flexibility in swiftly addressing to requests for assistance by Overseas Indian nationals. The revised guidelines cover the following three key areas:
Assisting Overseas Indian nationals in distress situations Boarding and lodging for deserving distressed Indian nationals abroad on a means tested basis in budget category or shelters run by Mission/Post or NGOs empanelled with Mission.
Air passage to India to stranded Overseas Indian nationals Legal Assistance on a means tested basis to deserving overseas Indian nationals who have committed minor crimes. offences or have been falsely implicated by their employer and put in jails; fishermen / seamen / sailors/ Indian students in distress; W.P.(C)Nos. 13444 & 14496 of 2020 51 Legal/financial assistance to Indian women abandoned/ cheated / abused by their NRI/PIO or foreign spouses (up to seven years after their marriage.
Payment for small fines and penalties in respect of Indian nationals for minor offences/ crimes; for illegal stay in the host country where prima facie the worker is not at fault, and to enable release of Indian nationals from jail/detention center Transportation of Mortal Remains and expenditure on incidentals of deceased Indian nationals to India or local cremation/burial of deceased in such cases where the employer, sponsor or insurance/ company is unable or unwilling to do so as per the contract and the family is unable to meet the cost.
Emergency Medical Care on means tested basis to overseas Indians who are involved in an accident (with serious life threatening injuries) have life-threatening medical conditions or suffer a serious disability.
Support for Community Welfare activities Indian Missions and Posts abroad, subject to availability of funds, may incur expenditure on community activities pertaining to the Indian community such as:
To promote Indian Culture by organizing cultural programmes by recognized Indian Diaspora organizations at major Indian Festivals, National Days of India; Indian culture Programs by recognized local artists or Indian artists based in India etc. Payment of honorarium for teachers/faculty teaching Indian languages, art forms.
Welfare activities for Indian students towards organizing Annual Day for Indian students at Universities/educational institutions to discuss problems, issues faced by Indian students, including their visa, residence status, work permit, financial, welfare and other issues with participation of students.
Improvement in Consular services Indian Missions and Posts abroad, subject to availability of funds, may incur administrative expenses pertaining to schemes/welfare measures etc. for the following purposes Hiring of limited additional staff for rendering various consular services Hiring vehicles on a need basis for visits to jails, police stations; detention centres; labour camps; welfare camps; shelters for W.P.(C)Nos. 13444 & 14496 of 2020 52 distressed Indians; prisons; hospitals; morgues and to airports for deportation/repatriation of distressed Indian nationals. Hiring of local interpreters on a case-to»case basis for consular visits. Design, publication, translation costs of pamphlets by Mission/Post about local labour laws, regulations, norms, dos & don'ts, welfare measures pertaining to overseas employment in the host country. Organizing labour camps / consular camps for interacting with Indian migrant workers and informing them about issues related to overseas employment; labour laws; welfare and protection measures of the government.
Setting up 24 x 7 toll-free helplines, walk-in resource centres for providing information, advise, guidance on problems faced by distressed Indian nationals; and helping them register their grievance with the Mission/Post.
Development of e-Governance solutions, applications to address Consular/ welfare matters.
Criteria for Utilisation ICWF funds can be used to assist only Indian citizens residing in the host country or those in distress while visiting a foreign country. Persons of Indian Origin and Overseas Citizens of India Card Holders are not eligible for individual financial assistance from ICWF.
ICWF can be utilized for the benefit of Indian nationals in distress on a means tested basis provided the officer approving ICWF expenditure has satisfied himself that the beneficiary deserves to be assisted.
Ordinarily, only such Indian National(s) who have entered the host country legally shall be eligible to receive benefits under this Fund. In cases where it is not so, assistance may be provided after the Head of Mission/Head of Post has recorded his satisfaction to the effect that the circumstances of the case necessitate providing assistance under ICWF.
Record about ECWF beneficiary An endorsement is mandatory in the Passport and relevant database of ICWF Beneficiary.
Frequently Asked Questions What kind of grievance will be dealt within the online Consular Services W.P.(C)Nos. 13444 & 14496 of 2020 53 management System (MADAD) ?
Asylum Cases Birth Certificate
Compensation Contract Problems
Domestic Help Dubious Job
Letter/Employer/Company
Fraudulent Calls/Emails Imprisoned Abroad
Marital disputes Mortal Remains
No Obligation to Return to
India (NORI) Certificate OCI Card Related Issues
Passport Issues Abroad Physical Abuse
Recruiting Agent Repatriation
Salary / Dues Seafarer Issues
Sexual Abuse Sponsor Problems
Student Issues Whereabouts Unknown
Worker Abuse
Student's educational matters and marital disputes are dealt with the Overseas Indian Affairs-II, Division, Ministry of External Affairs (MEA), Akbar Bhawan, Chanakyapuri, New Delhi (email:[email protected]) Contract problems and recruiting agents related cases are dealt with by the Protector General of Emigrants (PGE) Division, MEA, Chanakyapuri, New Delhi. Grievances may be filed at https://emigrate.gov.in/. Grievances relating to commercial matters are looked after by Department of Commerce in the Ministry of Commerce and Industry, Udyog Bhawan, New Delhi. (https://commerce.gov.in/InnerContent.aspx?Id=14) Grievances/queries with regard to visa and passport, emergency travel documents, attestation of documents are not within the scope of this portal.
For grievances relating to these, please approach:
Visa-Foreigners Division, Ministry of Home Affairs, New Delhi (please visit http://mha.nic.in/foreigndivision) Passport & Emergency Travel Document- PSP Division, Ministry of External Affairs, New Delhi (please visit http://passportindia.gov.in/App OnlineProject/ welcomeLink) Attestation/Apostille of documents- Attestation Section, CPV Division, W.P.(C)Nos. 13444 & 14496 of 2020 54 Ministry of External Affairs (please see details on http://mea.giv.in/apostille.htm) Emails:[email protected], [email protected] How to monitor the status of your grievance?
Status of your grievance can be tracked by using MADAD mobile application or through Madad Portal on URL www.madad.gov.in.
If you are not an Existing User, you may please register yourself under 'Grievant Registration (For Grievance)' and 'New Student Registration (for Student)' and get your login ID:
1. Click 'Grievant Registration (For Grievance)' and 'New Student Registration (For Student)'
2. Insert your details and get login ID Tracking grievance status using MADAD mobile application:
1. Go to Home page of MADAD mobile application and navigate to Track Grievances screen
2. Enter your Grievance ID Captcha (Security Code) and Click Submit.
What is the jurisdiction of the Indian Diplomatic Mission?
The grievance falling under the consular jurisdiction of the concerned Indian Diplomatic Mission mentioned in the grievance only will be entertained by the concerned Indian Diplomatic Mission. You should, therefore, fill this column carefully.
What is the mandatory information for registering grievances?
Information with regard to fields marked in red are mandatory. These include Passport Number, Date of Birth, E-Mail, Mobile Number, Current Address of the person about whom the grievance filed, and so on, Recruiting Agent"
24. Statements made by the Governments, both Central and State, can be adopted in the other writ petition, wherever it is not filed W.P.(C)Nos. 13444 & 14496 of 2020 55 separately. As pleadings and submissions made in both the writ petitions are similar, they are taken up together.
25. Heard the learned counsel for the parties and perused the material available on record.
26. Insofar as Central Government is concerned, there are agreements / Memorandum of Understandings with GCC countries, which include an institutional framework to discuss all the issues relating to labour and manpower. Missions/posts abroad have various mechanisms in place which the Indian Workers can lodge their grievances. Central Government have stated that all such claims received through the mechanisms are taken up by the Missions/Posts with the employers concerned for an amicable settlement. Wherever necessary, Missions/Posts engage with government authorities. The Missions/Posts also maintain a panel of lawyers for any legal assistance with regard to such grievances. These panel law firms provide free initial legal advice to Indian workers. Subsequently, the Indian workers can engage these law firms, if required, by executing a Power of Attorney (POA) in their favour to represent them in a court of law in connection with their grievances.
In case, the worker has exited the country, without registering a labour case or before the court proceedings are over, he can give POA to any lawyer or the Mission/Post to pursue his or her case in the concerned court. If POA is given to the Mission/Post, then the case is followed W.P.(C)Nos. 13444 & 14496 of 2020 56 through one of the empanelled lawyers. When the amount is received, it is deposited in the bank account of the workers.
27. In paragraphs 5 to 8 of the statement, the Central Government have also stated as to how the labour complaints and other issues relating to COVID-19 can be addressed, besides there is a fund called Indian Community Welfare Fund (ICWF), addressing specific issues.
There are schemes to address the grievance of emigrant workers.
28. Insofar as the Government of Kerala is concerned, a separate department known as Non-Resident Keralites Affairs Department has been set up as early as in 1996, to address the various issues pertaining to Non Resident Keralites. State of Kerala has also enacted an Act called the Non-Resident Keralites Welfare Act, 2008 (Act 10 of 2008) with an object to provide for the constitution of a welfare fund to grant relief to ensure the welfare of and to pay pension and other benefits to the Non Resident Keralites and to promote Companies or Co-operative Societies or Societies or other Institutions of Non Resident Keralites for their welfare. The Act has received the assent of the Governor and published on 12.01.2009. State of Kerala has also enacted another Act viz., the Non-Resident Indians (Keralites) Commission Act, 2015 (Act 3 of 2016) which provides for the constitution of a Commission. In the statement, the Government of Kerala, have set out the powers and functions of the Commission.
W.P.(C)Nos. 13444 & 14496 of 2020 57
29. Government of Kerala has also issued an order G.O.(MS) No.7/2018/NORKA dated 2.11.2018 providing guidelines for appointment of Legal Consultants. About 14 such Consultants have been appointed to assist Non-Resident Keralites. Government of Kerala have also furnished the details of the schemes and assistance given to various areas. Thus, from a reading of the statements filed by the Central as well as the State Governments, it could be deduced that steps have already been taken by the respective Governments to address the grievances of the Non-
Resident Indians, and in particular, Non-Resident Indians (Keralites).
There are mechanisms for documenting and capturing all kinds of grievances of the repatriated Indians, details of which are extracted in the foregoing paragraphs.
30. In reply to the statements filed by both, Central as well as State Governments, the petitioner in W.P.(C) No.13444 of 2020 has filed a statement, reiterating the stand adopted in the writ petition.
31. Further, a reply affidavit is filed by the petitioner in W.P.(C) No.14496 of 2020, wherein it is stated that though the respondents in their statement have mentioned about few mechanisms and online complaint register forums for redressal of the grievance of Indian Migrant Workers abroad, it is contended that there is no effective entitlement of free legal aid given to the migrants abroad and they are only schemes. It is also stated that the involvement of the Legal Service Authority alone W.P.(C)Nos. 13444 & 14496 of 2020 58 would be an adequate solution for settlement of problems of the expatriates.
32. Even though in W.P.(C) No.14496 of 2020, a relief to involve Legal Service Authority constituted under the Legal Services Authorities Act, 1987, for settlement of issues of the expatriates was sought for by the petitioner, in view of the provisions made by the State as well as the Central Governments and the adequacy of the same, we do not think that engagement of Legal Service Authority or any direction in that regard would be feasible and efficacious, especially due to the fact that the involvement of External Affairs Ministry is required in order to sort out the issues. Further, the Legal Service Authority is expected only to function under the Legal Services Authorities Act, 1987, and settle the matters within the country. Therefore, we are not inclined to grant the relief sought for by the petitioner, in that regard.
33. In the light of the statements filed by the Governments, there is no need to issue mandamus, as sought for, in both the writ petitions.
Suffice to say, the petitioners or any aggrieved persons shall make use of the schemes and the provisions of the statutes, as well as the orders issued thereon from time-to-time. In the light of the steps taken by the Governments, as discussed above, we have no reason to think that the respective Governments will not take appropriate action, as and when situation warrants, on an emergent basis.
W.P.(C)Nos. 13444 & 14496 of 2020 59 With the above observations, the writ petitions are disposed of.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S. Manikumar, Chief Justice Sd/-
Shaji P. Chaly, Judge vpv W.P.(C)Nos. 13444 & 14496 of 2020 60 APPENDIX OF WP(C) 13444/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 20.6.2020.
EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 9.6.2020 PASSED BY HON'BLE SUPREME COURT IN SUO MOTU WRIT PETITION (C)NO.6/2020.
EXHIBIT P3 A TRUE COPY OF RESOLUTION 60/147-ADOPTED BY GENERAL ASSEMBLY OF UNITED NATIONS DATED 16.12.2005.
RESPONDENTS' EXHIBITS:
ANNEXURE R4(A) TRUE COPY OF THE GOVERNMENT ORDER GO.
(MS)NO.7/2018/NORKA DATED 02.11.2018 PROVIDING GUIDELINES FOR APPOINTMENT OF LEGAL CONSULTANTS.
ANNEXURE R4(B) TRUE COPY OF GO(MS)NO.14/2019/NORKA DATED 5.9.19.
ANNEXURE R4(C) TRUE COPY OF THE FORM OF AGREEMENT APPROVED TO BE EXECUTED BETWEEN THE LEGAL CONSULTANTS.
ANNEXURE R4(D) TRUE COPY OF THE PROCEEDINGS FROM THE CHIEF EXECUTIVE OFFICER DATED 18.10.2019 APPOINTING EIGHT NORKA LEGAL CONSULTANTS/ ADVOCATES.
ANNEXURE R4(E) TRUE COPY OF THE PROCEEDINGS/ORDER DATED 19.11.2019 OF CHIEF EXECUTIVE OFFICER, NORKA.
ANNEXURE R4(F) TRUE COPY OF THE NAME AND RESPECTIVE COUNTRY LIST OF 11 NORKA LEGAL CONSULTANTS.
W.P.(C)Nos. 13444 & 14496 of 2020 61 APPENDIX OF WP(C) 14496/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ICWF SCHEME AS AVAILABLE ON THE WEBSITE OF THE MINISTRY OF EXTERNAL AFFAIRS EXHIBIT P2 A TRUE COPY OF THE REVISED ICWF SCHEME AS AVAILABLE ON THE WEBSITE OF THE MINISTRY OF EXTERNAL AFFAIRS.
EXHIBIT P3 TRUE COPY OF THE TWENTY-THIRD REPORT OF THE COMMITTEE ON EXTERNAL AFFAIRS, SIXTEENTH LOK SABHA EXHIBIT P4 TRUE COPY OF THE 'BASIC PRINCIPLES AND GUIDELINES ON THE RIGHT TO A REMEDY AND REPARATION FOR VICTIMS OF GROSS VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW', ADOPTED BY THE GENERAL ASSEMBLY OF UNITED NATIONS DATED 16-12-2005.
EXHIBIT P5 TRUE COPY OF A NEWS PAPERE ARTICLE THAT CAME ON ECONOMIC TIMES DATED 3RD DAY OF JULY 2019 EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 1-7- 2020 MADE BY THE PETITIONER TO THE RESPONDENTS.
EXHIBIT P7 TRUE COPY OF THE FRESH REQUEST FILED BY A PERSON NAMED AYSHA BEFORE THE MADAD WITH GRIEVANCE ID 'OMOPHY106311320' ON 24.1.2020 TAKEN FROM THE OFFICIAL WEBSITE OF CONSULAR SERVICES MANAGEMENT SYSTEM, MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA.
RESPONDENT'S EXHIBITS:
ANNEXURE R4(A) TRUE COPY OF THE GOVERNMENT ORDER GO.
(MS)NO.7/2018/NORKA DATED 02.11.2018 PROVIDING GUIDELINES FOR APPOINTMENT OF LEGAL CONSULTANTS.
ANNEXURE R4(B) TRUE COPY OF GO(MS)NO.14/2019/NORKA DATED 5.9.19.
ANNEXURE R4(C) TRUE COPY OF THE FORM OF AGREEMENT APPROVED TO BE EXECUTED BETWEEN THE LEGAL CONSULTANTS W.P.(C)Nos. 13444 & 14496 of 2020 62 ANNEXURE R4(D) TRUE COPY OF THE PROCEEDINGS FROM THE CHIEF EXECUTIVE OFFICER DATED 18.10.2019 APPOINTING EIGHT NORKA LEGAL CONSULTANTS/ADVOCATES.
ANNEXURE R4(E) TRUE COPY OF THE PROCEEDINGS/ORDER DATED 19.11.2019 OF CHIEF EXECUTIVE OFFICER, NORKA.
ANNEXURE R4(F) TRUE COPY OF THE NAME AND RESPECTIVE COUNTRY LIST OF 11 NORKA LEGAL CONSULTANTS.