How the Guptas tore through red tape to hire Indian nationals illegally

Source: News24, 19/09/2018

Gupta agents Ashu Chawla and Naresh Khosla fraudulently orchestrated
South African work permits for Indian nationals by falsifying and
backdating the Indian employment contracts on which these permits hinge.
An administrative sleight of hand allowed the Guptas to import and
employ foreign labour at the expense of local jobseekers, and
conveniently sidestepped the onerous legal red tape meant to protect
South African workers from being overlooked in favour of foreign
employees.
Chawla was a key Gupta lieutenant and director of the now-bust Sahara
Computers (Pty) Ltd (Sahara Computers), as well as its counterpart in
India, Sahara Computer and Electronics Ltd (SCEL).
Khosla was Chawla’s co-director on SES Technologies, another Indian
company belonging to the Guptas. The #GuptaLeaks show how the pair
abused their positions as directors to sign off on the dodgy contracts.
Home Affairs
As Parliament’s Home Affairs committee last week heard officials
explain the intricacies of the Gupta family’s dubious early
nationalisation, it also emerged that scores of their non-South
African employees were working locally using “intra-company transfer
visas”.
Department of Home Affairs Director-General of Immigration Jackson
McKay told committee members in his written answers that none of the
foreign employees employed by ANN7, or any other Gupta company, was
working in South Africa using visitor or tourist visas.
Instead, these Indian nationals were issued with “intra-company
transfer” permits. McKay told the committee that an earlier raid on
the Gupta-owned television station found 31 Indian nationals working
for ANN7 under such permits. A further nine were in South Africa using
visitor’s permits, but only to attend meetings.
This means at least 40 foreign employees were working at ANN7 alone.
In March 2018, former ANN7 editor and
Gupta-employee-turned-whistle-blower Rajesh Sundaram published his
book, Indentured: Behind the Scenes at Gupta TV. In it, he tells of
his turbulent months working for the Gupta family as they tried to get
the fledgling television news station off the ground. He also directly
implicates Chawla in circumventing visa requirements.
“I had heard his [Chawla’s] name mentioned for the first time when I
was asked to apply for my temporary residence permit under the
intra-company transfer process before I left India for South Africa,”
Sundaram wrote.
Sundaram tells how an Indian executive of one of the main shareholders
of Infinity Media, ANN7’s holding company, lamented about the
difficulties in obtaining a work visa for foreigners in South Africa.
“It can take months to get a South African work permit. It is a
cumbersome process. We have to advertise the position in South African
newspapers and then wait for six months, after which we provide
evidence that we have not found a suitable local candidate. Only then
can we start the process of getting a work permit. Even so, if there
is an official who does not agree, the request for a work permit can
still be rejected.”
But they had a plan.
“But Ashu-ji [Chawla] is a genius, and he has found a way around it.
We will show the visas of people going to work in South Africa as
intra-company transfer. Just fill in the visa form, get police and
medical clearance and get back to my office. My office will issue
papers certifying that you are an employee of Essel Media [the
shareholder in Infinity Media] being transferred to South Africa.”
Later in the book, Sundaram asked the same Indian executive a question
that hinted at how the operation worked:
“But all the people I have recruited to be the core team to launch
ANN7 have got contracts from Infinity Media [in South Africa] and not
Essel Media [in India]. They have never worked for Essel Media. I hope
this is not illegal?”
Legal Hoops
The Immigration Act of 2002 and its regulations require a South
African business seeking to employ a foreign national to first jump
through a plethora of legal hoops before the foreign employee can take
up work in a local business.
Björn van Niekerk, operations director for Intergate Immigration, told
News24 that a local employer needs to consider South African
applicants for the position first.
“An employer intending to employ a foreigner is required to confirm
that they have first made a reasonable effort to find, interview and
consider South African applicants for the position that is required to
be filled. The employer must confirm that:
• they have conducted a diligent search for a suitable South African
candidate;
• they were unable to find a suitable South African with the relevant
skills, experience etc.
“The lengths to which the employer went to advertise the position
nationally, how many South Africans were interviewed, and why the
South African candidates interviewed were not considered would all be
taken into account.
“These efforts are then assessed by the Department of Labour which
will offer a recommendation based on whether they consider the need
for a foreigner to be employed, over any potential South African, to
be justified. The applicant also needs to have their qualifications
assessed and evaluated by SAQA.”
These requirements are meant to protect South African job seekers, and
to prevent employers from simply shipping in cheap labour from
overseas to do the jobs local citizens can perform.
But the Gupta family found a way to circumvent these requirements.
Intra-company transfers
By claiming that these employees were “inter-company transfer visa”
instead of “general work visa” applications, Chawla and his Sahara
Computers only needed to show that these employees had been in the
service of one of their Indian sister companies for a period of at
least six months.
They did this by falsifying and backdating the Indian employment
contracts struck with these workers.
The fraud was trivialised because Chawla was also the director of the
Indian companies creating the forged records, as well as the South
African Sahara Computers that employed them locally. The same occurred
between Essel Media and Infinity Media, where the directors of the two
companies arranged employment contracts for ANN7 staff from India.
Karan Singh
The documents and emails contained in the #GuptaLeaks shed some light
on the logistics of the scheme. Between 15 October and 15 December,
2014, the 22-year-old Karan Singh visited South Africa from his home
country of India on the invitation of Sahara Computers and Chawla. He
was later joined by his parents and sister. Sunil, Sunita and Vidushi
Yadav were also invited by Sahara Computers on tourist visas from 4 to
10 December, 2014.
The invitation letter to Singh’s parents claimed that Singh was an
intern at Sahara Computers. This is despite a tourist visa prohibiting
a foreigner from being employed in the country while issued with such
a visa.
During his time in South Africa, Singh also met with Jitendra Tiwari,
the human resources professional for Sahara Computers. Tiwari was
responsible for the majority of the employment agreements between the
foreign employees and Sahara, and the #GuptaLeaks show he was involved
with most of the visa applications contained therein. Flight bookings
contained in the #GuptaLeaks show that Tiwari accompanied Singh and
his family on a flight from Johannesburg to Cape Town and back between
8 and 10 December, 2014.
On 16 December, 2014, the day after their return to India, Chawla
forwarded Singh’s passport to Tiwari, who responded with a draft
employment contract between Singh and the South African Sahara
Computers, appointing Singh as a “Project Manager” from 12 January, 2015.
Shortly afterwards, Chawla sent an email to Naresh Khosla, a fellow
director at SES Technologies in India, containing Singh’s passport.
“Please send me an appointment letter in SES for about 8 months before
as a project Manager and I am doing inter company Transfer for him.”
Khosla responded within hours, attaching a backdated letter stating
that Singh was appointed as a project manager at SES Technologies. SES
Technologies is an Indian company of which Chawla and Khosla were
co-directors.
Although the letter was backdated to 16 May, 2014, the pair made a
mistake. Singh’s commencement date with SES Technologies would only be
on 21 July, 2014, an error that was picked up on by the South African
consulate. They refused Singh his visa on the basis that he had not
been employed with SES Technologies for long enough, and on 11
January, 2015, Singh wrote to Chawla:
“I will submit [my visa application] tomorrow. They had rejected the
application before because the letter [you] had send earlier had date
of joining as 21 July 2014, so [they rejected] it as it was not
completing 6 months. Will submit it again tomorrow attaching the
letter u had again sent me showing 21 May 2014 as the joining date for
6 months in India. Hope the embassy will not complain for the change
in date.” (sic)
The consulate didn’t complain, and Singh obtained his visa. He landed
at OR Tambo International Airport on 8 February, 2015. Two days later
�` on 10 February, 2015 �` Singh sent Chawla an email containing a scan
of his passport and work permit, proudly displaying the words
“intra-company transfer permit”.
Esheetaa Gupta
A second example originated late in March of 2014. Chawla received an
email from Sanjeev Gupta, enclosing his daughter Esheetaa’s CV and
payslip for April 2014. Sanjeev Gupta, while unrelated to brothers
Tony, Atul and Ajay, was closely connected with the Bank of Baroda’s
chief executive officer in South Africa, Murari Lal Sharma. So close,
in fact, that Esheetaa Gupta’s CV used Sharma’s mobile number as her
South African contact number.
Esheetaa Gupta, an intellectual property lawyer working for a WIPRO
Technologies in India, was seemingly keen to secure work in South Africa.
On 4 April, 2014, Chawla forwarded Esheetaa Gupta’s passport, CV and
payslip to his secretary. Later that same day, she scanned and
forwarded a bundle of documents signed by Chawla.
Among these was an employment agreement between Sahara Computers and
Esheetaa Gupta, confirming she would be appointed as an “IP Analyst”
from 15 May, 2014. It contained a letter from Sahara Computers to the
South African consulate, stating the following:
“This letter serves to confirm that Ms Esheetaa Gupta will be
transferred from SES Technologies to Sahara Computers (Pty) Ltd for a
period of 24 months. This transfer qualifies as an intra-company
transfer since these companies form part of the same global group.
Esheetaa Gupta holds a foreign contract of employment with SES
Technologies in India.”
It also contained a letter dated 4 April, 2014, to the South African
consulate (erroneously referred to as an “embassy”) from SES
Technologies, the same company used to fabricate the employment
contract for Singh. The letter from SES Technologies was also signed
by Chawla and contained an exact copy of the paragraph confirming that
Esheetaa Gupta was employed by SES Technologies.
These documents were sent to Esheetaa Gupta’s father on the same day.
Esheetaa Gupta responded to Chawla on 8 May, 2014, requesting
additional documents, and in particular she required a “job offer
letter from Indian company provided earlier at the time of employment”.
A comedy of errors and mistakes followed, as Chawla and his secretary
compiled the documents requested by Esheetaa Gupta.
The pair could not keep their story straight. Suddenly, the employment
confirmation letters and backdated employment offer, previously done
on the SES Technologies letterhead, resurfaced sporting SCEL
letterheads, Sahara Computer’s sister company in India.
The initial set of documents also claimed that Esheetaa Gupta had
started working for SCEL as an IP analyst in 2010, a peculiar oddity
considering that her CV claimed that she only began working in the
intellectual property field a full year and a half later, in June of
2011. Her CV stated that at the time, she was employed as a project
trainee at Nucleus Software Exports Limited.
The final backdated employment offer sent to Esheetaa Gupta had a more
reasonable commencement date of 27 June, 2013, although this still
does not explain why Esheetaa Gupta’s CV sent to Chawla in April 2014
does not mention either SES Technologies or SCEL in either her
employment history or references.
It also does not explain how she obtained a payslip for April 2014 as
an employee of WIPRO Technologies, if she was an employee of either
SCEL or SES Technologies at the time.
Comment requested
Both Esheetaa Gupta and Karan Singh were sent detailed questions
regarding these allegations. Both were asked to confirm their
employment history with either SES Technologies or SCEL, and the
reasons for the subsequent intra-company transfers.
Despite follow-up attempts, neither Singh nor Gupta have responded to
our requests for comment.
Khosla was also requested to provide comment on the evidence contained
in the #GuptaLeaks but did not respond to our questions.