Wednesday, March 24, 2010

Factories Act

FACTORIES ACT, 1948
The Factories Act, is a social legislation which has been enacted for occupational safety, health and welfare of workers at work places. This legislation is being enforced by technical officers i.e. Inspectors of Factories, Dy. Chief Inspectors of Factories who work under the control of the Chief Inspector of Factories and overall control of the Labour Commissioner, Government of National Capital Territory of Delhi
APPLICABILITY
It applies to factories covered under the Factories Act, 1948. The industries in which ten (10) or more than ten workers are employed and are engaged in manufacturing process being carried out with the aid of power or twenty or more than twenty workers are employed in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act

Salient Features of the Act
1. Approval of Factory Building Plans before construction/extension, under the Delhi Factories Rules, 1950 .
2. Grant of Licences under the Delhi Factories Rules, 1950, and to take action against factories running without obtaining Licence.
3. Renewal of Licences granted under the Delhi Factories Rules, 1950, by the Dy. Chief Inspectors of Factories .
4. Inspections of factories by District Inspectors of Factories, for investigation of complaints, serious/fatal accidents as well as suo moto inspections to check compliance of provisions of this Act relating to :-
I. Health II. Safety III. Welfare facilities IV. Working hours
V. Employment of young persons VI. Annual Leave with wages etc.

Definitions
FACTORY: means any premises:
- in which 10 or more than 10 workers are employed on any day of the preceding 12 months and are engaged in manufacturing process being carried out with the aid of power
- 20 or more than 20 workers are employed on any day of the preceding 12 months in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act.
OCCUPIER : who has the ultimate control over the affairs of the factory. An occupier may be an owner, a lessee, or a mere licensee.
Worker: A worker means a person employed in a manufacturing process, directly or by or through any agency with or without the knowledge of the principal employer.
Manufacturing process: means any process for-
• Making, altering, repairing, delivery or
• Pumping oil, water or
• Generating, transforming power or
• Constructing, reconstructing or
• Preserving or storing any article in cold storage etc.

Approval, Licensing and Registration of Factories• Sec. 6 of the Act empowers the State Government to make rules for the submission of plans, approval, licensing and registration of factories . The application in writing along with the plans and specifications of the factory, for permission, is submitted to the Chief Inspector or the State Government.
• In case nothing is heard within 3 months from the appropriate authority, the permission is deemed to be granted.
• If the State Government or the Chief Inspector refuses to give permission, the applicant may appeal to the Central Government or the State Government respectively with in 30 days of the date of refusal.


Notice by Occupier( sec.7)
Sec 7 of the Act requires the occupier to give notice to the Chief Inspector 15 days before he occupies any premises as a factory. The notice contains:
• Name & situation of the factory.
• Name & address of the occupier.
• Name & address of the owner of the premises.
• Address to which communication relating to the factory may be sent.
• Nature of the manufacturing process to be carried on in next 12 months.
• Total rated horsepower installed or to be installed in the factory.
• Name of the manager of the factory.
• Name of the workers likely to be employed.


Health Safety & Welfare Provisions
The occupier is obligatory to provide for the health, safety and welfare of the workers in the factory and also to maintain inspection staff.
HEALTH
Sec. 11-20 carries provisions relating to health of the workers.
1. Cleanliness: effective drainage & use of disinfectants.
2. Disposal of wastes & effluents after treatment.
3. Adequate ventilation & temperature-
• Adoption of prescribed standards by the State Government.
• Notice by the Chief Inspector to the occupier to adopt measures for reduction of temperature.
4. Dust & Fume.
5. Artificial humidification as per State Government standards.
6. Overcrowding: 9.9/ 14.2 cubic meter of space per worker. Notice of maximum workers to be employed in a workroom shall be posted in each workroom as per the written order of the Chief Inspector.
7. Sufficient & suitable lighting as per State Government standards.
8. Drinking water: suitable drinking points to be legibly marked & to be 6 meters away from washing area , urinals etc, unless shorter distance is approved in writing by the Chief Inspector. Cold water in factories where more than 250 workers are employed.
9. Urinals
10. Spittoons: Contravention of notice regarding the use of spittoons shall be punishable with fine not exceeding Rs. 5.

SAFETY PROVISIONS
Safety provisions are absolute and obligatory on the occupier to follow.
1. Fencing of machinery.
2. Examination of machinery in motion by a trained adult male worker.
3. Restriction on young persons to work on dangerous machines as specified by the State Government.
4. Hoists and lifts to be of good mechanical construction and examined once in every 6 months.
5. Protection of eyes.
Safety of building and machinery
7. Precautions in case of fire.
8. Precautions against dangerous fumes.
9. Precautions against explosive or inflammable dust, gas. etc.
10. Safety officers.
The State Government may make rules requiring the provisions in any factory of such further devices and measures for securing the safety of persons employed as it may deem necessary.


WELFARE PROVISIONS
The various provisions in regard to welfare of the workers are:
1. Washing facilities: separate for male and female should be conveniently accessible and clean
2. Facilities for storing and drying clothing.
3. Facilities for sitting for those workers who are obliged to work in a standing position.
4. First- aid box with prescribed contents for every 150 workers & ambulance room in a factory employing more than 500 workers.
5. Canteens in factory employing more than 250 workers.
6. Sufficiently lighted , ventilated, and clean shelters, rest rooms and lunch rooms in factory employing more than 150 workers.
7. Creches for children under the age of 6 years in factories employing more than 30 women workers.
8. Welfare officers in factories employing 500 or more workers.

Employment of young persons
• Prohibition on employment of young children ( below 14 years)
• A child above 14 or an adolescent may be allowed to work in a factory if
1. A certificate of fitness is in custody of the manager of the factory and
2. Such child or adolescent carries, while he is at work, a token giving reference to such certificate.
• Certificate of fitness: granted by a certifying surgeon after examining him and ascertaining his fitness for work in a factory. An application by the young person shall be accompanied by a document signed by manager. It is valid for 12 months and can be renewed. It can also be revoked any time if the holder is no longer fit to work.
• Certificate of fitness entitles:
A child:
• That he has completed his 14 years.
• That he has attained the prescribed physical standards
• That he is fit for such work
An adult:
• That he has completed his 15th year
• That he is fit for a full day’s work
• Effect of certificate: An adolescent granted a certificate of fitness to work in a factory as an adult shall be deemed to be an adult for all the purposes of Factories Act.
• Working hours: No child shall be employed to work in a factory:
1. for more than 4-1/2 hours in a day 2. during the night
Register of child workers: The manager of every factory where children are employed shall maintain a register of child workers showing:
1. Name of each child worker in the factory,
2. Nature of his work,
3. The group in which he is included,
4. Where his group work on shifts,
5. The number of his certificate of fitness.


Safety provisions for women.
All provisions regarding the employment of adults apply to adult female workers except the following provisions:
• Work on or near the machinery in motion.
• Crèches.
• A woman shall not be allowed to work in a factory for more than 48 hours in any week or 9 hours in a day.
• A woman shall be required to work in a factory only between 6 am. to 7 pm. The State Government by notification may vary these limits in respect of any factory etc.
• Prohibition of employment in dangerous operations.


GENERAL PENALTY FOR OFFENCES: ( sec. 92)
• If in any factory there is any contravention of any of the provisions of this Act or of any rules made there under or of any order in writing given there under, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued :
• Where contravention of any of the provisions under section 87 (dealing with dangerous operations) has resulted in an accident causing death or serious bodily injury, the fine shall not be less than twenty-five thousand rupees in the case of an accident causing death, and five thousand rupees in the case of an accident causing serious bodily injury.

Factories Act

FACTORIES ACT, 1948
The Factories Act, is a social legislation which has been enacted for occupational safety, health and welfare of workers at work places. This legislation is being enforced by technical officers i.e. Inspectors of Factories, Dy. Chief Inspectors of Factories who work under the control of the Chief Inspector of Factories and overall control of the Labour Commissioner, Government of National Capital Territory of Delhi
APPLICABILITY
It applies to factories covered under the Factories Act, 1948. The industries in which ten (10) or more than ten workers are employed and are engaged in manufacturing process being carried out with the aid of power or twenty or more than twenty workers are employed in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act

Salient Features of the Act
1. Approval of Factory Building Plans before construction/extension, under the Delhi Factories Rules, 1950 .
2. Grant of Licences under the Delhi Factories Rules, 1950, and to take action against factories running without obtaining Licence.
3. Renewal of Licences granted under the Delhi Factories Rules, 1950, by the Dy. Chief Inspectors of Factories .
4. Inspections of factories by District Inspectors of Factories, for investigation of complaints, serious/fatal accidents as well as suo moto inspections to check compliance of provisions of this Act relating to :-
I. Health II. Safety III. Welfare facilities IV. Working hours
V. Employment of young persons VI. Annual Leave with wages etc.

Definitions
FACTORY: means any premises:
- in which 10 or more than 10 workers are employed on any day of the preceding 12 months and are engaged in manufacturing process being carried out with the aid of power
- 20 or more than 20 workers are employed on any day of the preceding 12 months in manufacturing process being carried out without the aid of power, are covered under the provisions of this Act.
OCCUPIER : who has the ultimate control over the affairs of the factory. An occupier may be an owner, a lessee, or a mere licensee.
Worker: A worker means a person employed in a manufacturing process, directly or by or through any agency with or without the knowledge of the principal employer.
Manufacturing process: means any process for-
• Making, altering, repairing, delivery or
• Pumping oil, water or
• Generating, transforming power or
• Constructing, reconstructing or
• Preserving or storing any article in cold storage etc.

Approval, Licensing and Registration of Factories• Sec. 6 of the Act empowers the State Government to make rules for the submission of plans, approval, licensing and registration of factories . The application in writing along with the plans and specifications of the factory, for permission, is submitted to the Chief Inspector or the State Government.
• In case nothing is heard within 3 months from the appropriate authority, the permission is deemed to be granted.
• If the State Government or the Chief Inspector refuses to give permission, the applicant may appeal to the Central Government or the State Government respectively with in 30 days of the date of refusal.


Notice by Occupier( sec.7)
Sec 7 of the Act requires the occupier to give notice to the Chief Inspector 15 days before he occupies any premises as a factory. The notice contains:
• Name & situation of the factory.
• Name & address of the occupier.
• Name & address of the owner of the premises.
• Address to which communication relating to the factory may be sent.
• Nature of the manufacturing process to be carried on in next 12 months.
• Total rated horsepower installed or to be installed in the factory.
• Name of the manager of the factory.
• Name of the workers likely to be employed.


Health Safety & Welfare Provisions
The occupier is obligatory to provide for the health, safety and welfare of the workers in the factory and also to maintain inspection staff.
HEALTH
Sec. 11-20 carries provisions relating to health of the workers.
1. Cleanliness: effective drainage & use of disinfectants.
2. Disposal of wastes & effluents after treatment.
3. Adequate ventilation & temperature-
• Adoption of prescribed standards by the State Government.
• Notice by the Chief Inspector to the occupier to adopt measures for reduction of temperature.
4. Dust & Fume.
5. Artificial humidification as per State Government standards.
6. Overcrowding: 9.9/ 14.2 cubic meter of space per worker. Notice of maximum workers to be employed in a workroom shall be posted in each workroom as per the written order of the Chief Inspector.
7. Sufficient & suitable lighting as per State Government standards.
8. Drinking water: suitable drinking points to be legibly marked & to be 6 meters away from washing area , urinals etc, unless shorter distance is approved in writing by the Chief Inspector. Cold water in factories where more than 250 workers are employed.
9. Urinals
10. Spittoons: Contravention of notice regarding the use of spittoons shall be punishable with fine not exceeding Rs. 5.

SAFETY PROVISIONS
Safety provisions are absolute and obligatory on the occupier to follow.
1. Fencing of machinery.
2. Examination of machinery in motion by a trained adult male worker.
3. Restriction on young persons to work on dangerous machines as specified by the State Government.
4. Hoists and lifts to be of good mechanical construction and examined once in every 6 months.
5. Protection of eyes.
Safety of building and machinery
7. Precautions in case of fire.
8. Precautions against dangerous fumes.
9. Precautions against explosive or inflammable dust, gas. etc.
10. Safety officers.
The State Government may make rules requiring the provisions in any factory of such further devices and measures for securing the safety of persons employed as it may deem necessary.


WELFARE PROVISIONS
The various provisions in regard to welfare of the workers are:
1. Washing facilities: separate for male and female should be conveniently accessible and clean
2. Facilities for storing and drying clothing.
3. Facilities for sitting for those workers who are obliged to work in a standing position.
4. First- aid box with prescribed contents for every 150 workers & ambulance room in a factory employing more than 500 workers.
5. Canteens in factory employing more than 250 workers.
6. Sufficiently lighted , ventilated, and clean shelters, rest rooms and lunch rooms in factory employing more than 150 workers.
7. Creches for children under the age of 6 years in factories employing more than 30 women workers.
8. Welfare officers in factories employing 500 or more workers.

Employment of young persons
• Prohibition on employment of young children ( below 14 years)
• A child above 14 or an adolescent may be allowed to work in a factory if
1. A certificate of fitness is in custody of the manager of the factory and
2. Such child or adolescent carries, while he is at work, a token giving reference to such certificate.
• Certificate of fitness: granted by a certifying surgeon after examining him and ascertaining his fitness for work in a factory. An application by the young person shall be accompanied by a document signed by manager. It is valid for 12 months and can be renewed. It can also be revoked any time if the holder is no longer fit to work.
• Certificate of fitness entitles:
A child:
• That he has completed his 14 years.
• That he has attained the prescribed physical standards
• That he is fit for such work
An adult:
• That he has completed his 15th year
• That he is fit for a full day’s work
• Effect of certificate: An adolescent granted a certificate of fitness to work in a factory as an adult shall be deemed to be an adult for all the purposes of Factories Act.
• Working hours: No child shall be employed to work in a factory:
1. for more than 4-1/2 hours in a day 2. during the night
Register of child workers: The manager of every factory where children are employed shall maintain a register of child workers showing:
1. Name of each child worker in the factory,
2. Nature of his work,
3. The group in which he is included,
4. Where his group work on shifts,
5. The number of his certificate of fitness.


Safety provisions for women.
All provisions regarding the employment of adults apply to adult female workers except the following provisions:
• Work on or near the machinery in motion.
• Crèches.
• A woman shall not be allowed to work in a factory for more than 48 hours in any week or 9 hours in a day.
• A woman shall be required to work in a factory only between 6 am. to 7 pm. The State Government by notification may vary these limits in respect of any factory etc.
• Prohibition of employment in dangerous operations.


GENERAL PENALTY FOR OFFENCES: ( sec. 92)
• If in any factory there is any contravention of any of the provisions of this Act or of any rules made there under or of any order in writing given there under, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to one thousand rupees for each day on which the contravention is so continued :
• Where contravention of any of the provisions under section 87 (dealing with dangerous operations) has resulted in an accident causing death or serious bodily injury, the fine shall not be less than twenty-five thousand rupees in the case of an accident causing death, and five thousand rupees in the case of an accident causing serious bodily injury.

Sunday, February 21, 2010

Employees’ Provident Fund & Miscellaneous Provisions Act, 1952


Applicability

i) Every establishment which is a factory engaged in any industry
specified in Schedule 1 and in which 20 or more persons are
employed and

ii) Any other establishment employing 20 or more persons which
Central Government may, by notification, specify in this behalf.
(Infancy period of 3 years has been withdrawn by ordinance w.e.f.22-9-97)

iii) any establishment employing even less than 20 persons can be
covered voluntarily u/s 1(4) of the Act.



Eligibility
Any person who is employed for work of an establishment or employed through contractor in or in connection with the work of an establishment.



Benefits
Employees covered enjoy a benefit of Social Security in the form of an unattachable, unwithdrawable (except employees and employers contribute equally throughout the covered persons employment. This sum is payable normally on retirement or death. Other Benefits include Employes’ Pension Scheme and Employee’s Deposit Linked insurance Fund.




Penal Provisions

Liable to be arrested without warrant being a cognisable offense. Defaults by employer in paying contributions or inspection/ administration charges attract imprisonment up to 3 years and fines up to Rs. 10,000 (S.14.) For any retrospective application, all dues have to be paid by employer with damages up to 100% of arrears.


Benefits at a glance

1. Advance for Purchase of Dwelling Site.
2. Advance for Purchase of Dwelling House/flat.
3. Advance for Construction of a House.
4. Advance for Repayment of housing loan to State Govt. housing board or any other govt. recognised housing finance body.
5. Advance for IIIness viz. Hospitalisation for more than month, major surgical operations or suffering from TB, leprosy, paralysis, cancer, heart ailment etc.
6. Advance for Marriage of Self/Son/Daughter/Sister/Brother.
7. Advance for Post MatriculationEducation of Son/Daughter.
8. Advance for Damage to the property Due to Natural calamity (Flood Riot/Earthquake).
9. Advance for Member affected by cut in the supply of electricity.
10. Advance for Member who is physically handicapped.

[ A member employee can also withdraw full amount standing to his credit. in fund (para 69).....]

a) on Resignation.
b) On Retirement from the service on attaining the age of 58 yrs.
c) on Retirement on account for permanent or total incapacity to work.
d) immediately before Migration from India for permanent settlement abroad or for taking up employment abroad.
e) on Termination due to voluntary retirement Scheme, retrenchment, closure of the factory/establishment
.

Payment Of Wages Act, 1936


Applicability

i) Every person employed in any factory, upon any railway or through subcontractor in a railway and a person employed in an industrial or other establishment.
ii) The State Government may by notification extend the provisions to any class of person employed in any establishment or class of establishments.



Eligibility
Every person who is employed in any of the above mentioned establishments and who is drawing less than Rs. 1,600 per month.



Benefits :

The Act prescribes for
i) The regular and timely payment of wages (on or before 7th day or 10th day after last day of the wage period in respect of which the wages are payable)
ii) Preventing unauthorised deductions being made from wages and arbitrary fines.



Penal Provisions
Penalties are from Rs. 200-1000. Repeat offenses attract 1 to 6 months imprisonment and fine from Rs. 500-3000.
Delay wage payments attract penalty of Rs. 100 per day of delay.

Payment Of Gratuity Act, 1972

Applicability
Every factory (as defined in Factories Act), mine, oilfield, plantation, port and railway.

Every shop or establishment to which Shops & Establishment Act of a State applies in which 10 or more persons are employed at any time during the year end.

Any establishment employing 10 or more persons as may be notified by the Central Government.

Once Act applies, it continues to apply even if employment strength falls below 10.

Eligibility
Any person employed on wages/salary.

At the time of retirement or resignation or on superannuation, an employee should have rendered continuous service of not less than five years,

In case of death or disablement, the gratuity is payable, even if he has not completed 5 years of service.

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Benefits
The quantum of gratuity is to be computed at the rate of 15 days wages (7 days wages in case of seasonal establishments) based on rate of wages last drawn by the employee concerned for every completed year of service or a part thereof exceeding 6 months.

The total amount of gratuity payable shall not exceed the prescribed limit.

In case where higher benefit of gratuity is available under any gratuity scheme of the Co., the employee will be entitled to higher benefit

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Calculation of Gratuity
Gratuity = Monthly Salary x 15 days x No. of yrs. of service
26
Max. Gratuity payable under the Act is Rs. 3,50,000/- (w.e.f. 24-9-1997)


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Penal Provisions
Nonpayment of gratuity payable under the Act is punishable with imprisonment up to 2 years (minimum 6 months) and/or fine up to RS 20,000/-. Other contravention/offenses attract imprisonment up to 1 year and/or fine up to RS 10,000.

Payment of Bonus Act, 1965

Applicability
(a) Every factory (as def. in Factories Act), & (b) Every other establishment in which 20 or more persons (less than 20 but 10 or more if appropriate Govt. notifies) are employed on any day subject to certain exemptions.
ii) Employees' drawing remuneration of Rs. 3,500/- or more and those who have worked for less than 30 days are not eligible to receive bonus under the Act.
iii) Bonus to be paid within eight months from the expiry of the accounting year.




Eligibility

i) Every person (other than an apprentice) drawing salary up to RS 3,500 per month.
Ii) Every person drawing salary between RS 2,501/- and RS 3,500/- per month. The bonus payable to him is to be calculated as if his salary were RS 2,500/- p.m.

Disqualification for bonus -
Notwithstanding anything contained in this Act, an employee shall be disqualified from receiving bonus under this Act, if he is dismissed from service for-

(a) Fraud; or
(b) Riotous or violent behaviour while on the premises of the establishment; or

(c) Theft, misappropriation or sabotage of any property of the establishment.

Payment of minimum bonus -
Subject to the other provisions of this Act, every employer shall be bound to pay to every employee in respect of the accounting year commencing on any day in the year 1979 and in respect of every subsequent accounting year, a minimum bonus which shall be 8.33 per cent of the salary or wage earned by the employee during the accounting year or one hundred rupees, whichever is higher, whether or not the employer has any allocable surplus in the accounting year :

Provided that there an employee has not employed fifteen years of age at the beginning of the accounting year, the provision of this section shall have effect in relation to such employee as if for the words "one hundred rupees", the words "sixty rupees" were substituted.

Payment of maximum bonus -
(1) Where in respect of any accounting year referred to in Sec.10, the allocable surplus exceeds the amount of minimum bonus payable to the employees under that section, the employer shall, in lieu of such minimum bonus, be bound to pay to every employee in respect of that accounting year bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent of such salary or wage.

(2) In computing the allocable surplus under this section, the amount set on or the amount set-off under the provisions of Sec.15 shall be taken into account in accordance with the provisions of that section.









Benefits

i) Subject to other provisions :— Minimum bonus shall be 8.33% of salary/wages earned or RS 100 whichever is higher.
Ii) If allocable surplus exceeds the amount of minimum bonus, then bonus shall be payable at higher rate subject to a maximum 20% of salary/wages.
Iii) Computation of bonus is to be worked out as per Schedule I to IV of the Act.


Penal Provisions
Penalty - If any person -

(a) Contravenes any of the provisions of this Act or any rule made thereunder; or
(b) To whom a direction is given or a requisition is made under this Act fails to comply with the direction or requisition.

He shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Workmen's Compensation Act, 1923

Applicability
Employer includes any person whether incorporated or not and any agent of employer and when services are temporarily lent or let on hire to another person, then means such other person.





Eligibility

Any workman who is injured by accident arising out of and in the course of his employment in specified list of employment contracts any disease specified therein as an occupational disease peculiar to that occupation.

"partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time .

"total disablement"
means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement .

Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;



EMPLOYER'S LIABILITY FOR COMPENSATION. -

(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter :

Provided that the employer shall not be so liable -
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;

(b) in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to -
(i) the workman having been at the time thereof under the influence of drink or drugs, or

(ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or

(iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen,


(2) If a workman employed in any employment specified in Part A of Schedule III contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman, whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months (which period shall not include a period of service under any other employer in the same kind of employment) in any employment specified in Part B of Schedule III, contracts any disease specified therein as an occupational disease peculiar to that employment, or if a workman whilst in the service of one or more employers in any employment specified in Part C of Schedule III, for such continuous period as the Central Government may specify in respect of each such employment, contracts any disease specified therein as an occupational disease peculiar to that employment, the contracting of the disease shall be deemed to be an injury by accident within the meaning of this section and, unless the contrary is proved, the accident shall be deemed to have arisen out of, and in the course of, the employment :



(2A) If a workman employed in any employment specified in Part C of Schedule III contracts any occupational disease peculiar to that employment, the contracting whereof is deemed to be an injury by accident within the meaning of this section, and such employment was under more than one employer, all such employers shall be liable for the payment of the compensation in such proportion as the Commissioner may, in the circumstances, deem just.


(3) The Central Government or the State Government, after giving, by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by a like notification, add any description of employment to the employments specified in Schedule III, and shall specify in the case of employments so added the diseases which shall be deemed for the purposes of this section to be occupational diseases peculiar to those employments respectively, and thereupon the provisions of sub-section (2) shall apply In the case of a notification by the Central Government, within the territories to which this Act extends or, in case of a notification by the State Government, within the State as if such diseases had been declared by this Act to be occupational diseases peculiar to those employments.


(4) Save as provided by Sub-sections (2), (2A) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and in the course of his employment.


(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury -
(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner; or

(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.




REMEDIES OF EMPLOYER AGAINST STRANGER. -
Where a workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid to pay damages in respect thereof, the person by whom the compensation was paid and any person who has been called on to pay an indemnity under section 12 shall be entitled to be indemnified by the person so liable to pay damages as aforesaid.






Benefits:

Amount of compensation shall be payable by the employer
i) Where death results from injury 40% of monthly wages x relevant factor or Rs. 20,000/- whichever is more.
ii) Where permanent total disablement results from the injury 50% of monthly wages x relevant factor or Rs. 24,000/- whichever is more (relevant factor depends upon the age of a workman)
iii)Where permanent, partial disablement or temporary disablement results from injury as per prescribed schedule.





Penal Provisions
Any contract by a worker waiving his right to be compensated under this Act is null and void. Compensation should be paid early–delay beyond 1 month attract interest @ 6% p.a. and penalty of up to 50% of the compensation. Certain other offenses attract fine up to RS 5,000.

EMPLOYEES’ STATE INSURANCE ACT, 1948

Applicability

1) All factories excluding seasonal factories employing 10 or more persons and working with electric power.

2) All factories excluding seasonal factories employing 20 or more persons and working without electric power.

3) Any establishment which the Government may specifically notify as being covered.

4) Shop employing 20 or more persons.

Note: As soon as the above conditions are fulfilled the employer should furnish the details in Form-01 to ESI office for registration under the ESI Act, 1948 & Obtaining of the employer’s Code No.


Eligibility
1) Any person employed for wages (up to Rs. 6,500) in or in connection with the work of a factory or establishment end.

2) Any person who is directly employed by the employer in a factory or through his agent on work which is ordinarily part of the work of the factory or incidental to purpose of the factory.


Benefits
1) Free medical treatment is offered to covered employees at hospital and dispensaries run by the ESI Corporation.

2) About 7/12th of employees normal wage will be payable to him by ESI during sickness.

3) Maternity benefit for 12 weeks of which not more than 6 weeks should be preceding confinement.

4) Injury during/in course of employment resulting in temporary/permanent disablement entitles the covered employee to a regular payment to substitute his lost wages.

5) Death during course of employment entitles specified dependents to a regular payment.

6) One time payment of Rs. 1,500 to help meet funeral expenses.


Penal Provisions
1) For employees’ contribution : Imprisonment for minimum 2 yrs. to maximum 5 yrs. and/or fine of Rs. 25,000/- .

2) For employer’s contribution : Imprisonment for minimum 6 months to maximum 3 yrs. and/or fine of Rs. 10,000/- .

Sunday, February 7, 2010

Module V: Compensation and Insurance

The Maternity Benefit Act 1961

Short title, extent and commencement.-

(1) This Act may be called the Maternity Benefit Act, 1961.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as may be notified in this behalf in the Official Gazette,-(a) in relation to mines in the territories to which this Act extends, by the Central Government; and(b) in relation to other establishments in a State, by the State Government:


Application of Act.-
(1) It applies, in the first instance, to every establishment being a factory, mine or plantation including any such establishment belonging to Government:Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise
(2) Nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948, (34 of 1948) apply for the time being.


Right to payment of maternity benefit.-
(1) For the purpose of this , the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, which ever is higher.
(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom the claims maternity benefit, for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day.Provided that where a woman dies during this periods, the maternity benefit shall be payable only for the days up to and including the day of her death:Provided further that where a woman, having been delivered of a child, dies during her delivery or during the period of six weeks immediately following the date of her delivery, leaving behind in either case the child, the employer shall be liable for the maternity benefit case the child, the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following that day of her delivery but if the child also dies during the said period, then, for the days up to and including the day of the death of the child.

Payment of maternity benefit in case of death of a woman.- If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit , the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative.

Leave for miscarriage.- In case of miscarriage, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage.


Leave for illness arising out of pregnancy, delivery, premature birth of child, or miscarriage.- A woman suffering from illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made there under.

Sunday, January 17, 2010

The Industrial Employment ( Standing Orders) Act, 1946

The Industrial Employment ( Standing Orders) Act, 1946

It applies to every Industrial establishment wherein 100 or more workmen are employed or were employed on any day of the preceding 12 months
The Act does not apply to :
Any industry to which The Bombay Industrial Relations Act; 1946 apply.
Any industry to which The Madhya Pradesh Industrial Employment ( Standing Orders) Act 1961 apply

Object of the Act:

  1. Object of the Act is to require the employers in industrial establishments to define the conditions of employment under them and make the conditions known to workmen employed by them before they accept the employment .
  2. To maintain uniformity in terms and conditions of employment in respect of workmen belonging to the same category . The rules made in the regard to these conditions is called Standing Orders

MATTERS TO BE PROVIDED IN STANDING ORDERS UNDER THIS ACT

  1. Classification of workmen, e.g., whether permanent, temporary, apprentices, probationers, or badlis.
  2. Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.
  3. Shift working.
  4. Attendance and late coming.
  5. Conditions of, procedure in applying for, and the authority which may grant leave and holidays.
    Requirement to enter premises by certain gates, an liability to search.
  6. Closing and reporting of sections of the industrial establishment, temporary stoppages of work and the rights and liabilities of the employer and workmen arising there from.
  7. Termination of employment, and the notice to be given by employer and workmen.
  8. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
  9. Means of redress for workmen against unfair treatment or wrongful exactions by the employer or his agents or servants.
  10. Any other matter which may be prescribed.

Submission of draft standing orders.-
Within six months of the application of the Act , to an industrial establishment, the employer shall submit to the Certifying Officer five copies of the draft standing orders proposed by him for adoption in his industrial establishment.

Standing orders to be accompanied by particulars of workmen: The draft standing orders submitted shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union, if any, to which they belong.
Employers in similar establishments may submit a joint draft for their convenience.

Conditions for certification of standing orders.-

Standing orders shall be certified under this Act if--

(a) provision is made for every matter set out which is applicable to the industrial establishment, and

(b) the standing orders are otherwise in conformity with the provisions of this Act; the Certifying Officer is under an obligation to adjudicate upon the fairness or reasonableness of the provisions of any standing orders.

Certification of standing orders :

  • Copy of the draft standing order to be sent to trade union or workmen: On receipt of the draft, the Certifying Officer shall forward a copy to the trade union, if any, of the workmen, or where there is no such trade union, to the workmen ,in the prescribed form requiring objections, if any, which the workmen may desire to make to the draft standing orders to be submitted to him within fifteen days from the receipt of the notice.
  • After giving the employer and the trade union or representatives of the workmen an opportunity of being heard, the Certifying Officer shall decide whether or not any modification or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable under this Act, and shall make an order in writing accordingly
  • The Certifying Officer shall thereupon certify the draft standing orders, after making any modifications and within seven days send copies of the certified standing orders to the employer and to the trade union or other prescribed representatives of the workmen.

Appeals
Any employer, workman, trade union or other prescribed representatives of the workmen aggrieved by the order of the Certifying Officer within 30 days from the date on which copies are sent by the certifying officer, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing confirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications or additions as it thinks necessary to render the standing orders certifiable under this Act. The appellate authority shall, within seven days of its order , send copies of the Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen.

Date of operation of standing orders.-

Standing orders shall, unless an appeal is preferred , come into operation on the expiry of thirty days from the date on which authenticated copies are sent or where an appeal is preferred, on the expiry of seven days from the date on which copies of the order of the appellate authority are sent.

Register of standing orders.-

A copy of all standing orders as finally certified under this Act shall be filed by the Certifying Officer in a register in the prescribed form maintained for the purpose, and the Certifying Officer shall furnish a copy to any person on payment of the prescribed fee.

Posting of standing orders.-

The text of the certified standing orders shall be prominently posted by the employer in English and in the language understood by the majority of his workmen on special boards maintained for the purpose at or near the entrance through which the majority of the workmen enter the industrial establishment and in all departments where the workmen are employed.


Duration and modification of standing orders.-
A certified standing orders shall not, except on agreement between the employer and the workmen or a trade union or other representatives of the workmen be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation. An employer or workman or a trade union or other representative body of the workmen may apply to the Certifying Officer for the modification and such application shall be accompanied by five copies of the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workman or a trade union or other representative of the workmen, a certified copy of that agreement shall be filed along with the application.