THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979
INTRODUCTION
In Orissa and in some other States the system
of employment of Inter-State migrant labour known as Dadan Labour (The Orissa
Dadan Labour (Control and Regulation) Act, 1975 ) is in vogue. In Orissa Dadan
Labour is recruited from various parts of the State through contractors or
agents called Sardars or Khatadars for work outside the State in large
construction projects. At the time of recruitment Sardars or Khatadars promise
that wages calculated in piece-rate basis would be settled every month but
usually this promise is never kept. Once the worker comes under the clutches of
the contractor, he takes him to a far-off place on payment of railway fare
only. No working hours are fixed for these workers and they have to work on all
the days in a week under extremely bad working conditions. The provisions of
the various labour laws are not being observed in their case and they are
subjected to various mal practices. The question of protection and welfare of
Dadan Labour was considered by the Twenty-eighth Session of the Labour
Ministers' Conference held on 26th October 1976 at New Delhi. It was
recommended to set up a Compact Committee to go into the whole question and to
suggest measures for eliminating the abuses prevalent in the system.
Accordingly in February, 1977 the Compact Committee was constituted and it
recommended, inter alia, that a separate Central legislation may be enacted to
regulate the employment of inter-State migrant workmen as it was felt that the
provisions of the Contract Labour (Regulation and Abolition) Act, 1970, even
after necessary amendments, would not adequately take care of the variety of
mal practices indulged in by the contractors, Sardars or Khatadars. The
recommendations of the Compact Committee were examined in consultation with the
State Government the and the Ministries in the Government of India. Accordingly
the Inter-State. Migrant Workmen (Regulation of Employment and Conditions of
Service) Bill, 1979 was introduced in the Parliament.
STATEMENT
OF OBJECTS AND REASONS
The system of employment of inter-State
migrant labour (known in Orissa as Dadan Labour) is an exploitative system
prevalent in Orissa and in some other States. In Orissa, Dadan Labour is
recruited from various parts of the State through contractors or agents called
Sardars/Khatadars for work outside the State in large construction projects.
This system lends itself to various abuses. Though the Sardars promise at the
time of recruitment that wages calculated on piece-rate basis would be settled
every month, the promise is not usually kept. Once the worker comes under the
clutches of the contractor, he takes him to a far-off place on payment of
railway fare only. No working hours are fixed for these workers and they have
to work on all the days in a week under extremely bad working conditions. The
provisions of the various labour laws are not being observed in their case and
they are subjected to various malpractices.
2. The Twenty-eighth Session of the 'Labour
Ministers' Conference (New Delhi, October 26, 1976) which considered the
question of protection and welfare of Dadan Labour recommended the setting up
of a small Compact Committee to go into the whole question and to suggest
measures for eliminating the abuses prevalent in this system. The inter-State
migrant workmen are generally illiterate, unorganised and have normally to work
under extremely adverse conditions and in view of these hardships, some
administrative and legislative arrangements both in the State from where they
are recruited and also in the State where they are engaged for work are
necessary to secure effective protection against their exploitation. The
Compact Committee which was constituted in February, 1977, therefore,
recommended the enactment of a separate Central legislation to regulate the employment
of inter-State migrant workmen as it was felt that thc provisions of the
Contract Labour (Regulation and Abolition) Act, 1970, even after necessary
amendments would not adequately take care of the variety of malpractices
indulged in by the contractors/Sardars/Khatadars, etc., and the facilities
required to be provided to these workmen in view of the peculiar circumstances
in which they have to work.
3. The recommendations of the Compact
Committee have been examined in consultation with the State Governments and the
Ministries of the Government of India and the suggestions made by them have
been taken into account in formulating the proposals for legislation. The main
features of the Bill are as follows:-
The proposed legislation will apply to every
establishment in which five or more inter-State migrant workmen are employed or
were employed on any day of the preceding twelve months. It will also apply to
every contractor who employs or employed five or more inter-State migrant
workmen on any day of the preceding twelve months.
The establishment proposing to employ
inter-State migrant workmen will be required to be registered with registering
officers appointed under the Central Government or the State Governments, as
the case may be, depending on whether the establishment falls under the Central
sphere or State sphere. Likewise, every contractor who proposes to recruit or
employ inter-State migrant workmen will be required to obtain a licence from
the specified authority both of the State to which the workman belongs (home
State) and the State in which he is proposed to be employed (host State).
The contractor will be required to furnish
particulars regarding the workmen in the form to be prescribed by rules to the
specified authority of both the home State and the host State. The contractor
will also be required to issue to every workman employed by him, a pass book
containing the details of the employment.
Specific guidelines have been indicated
regarding the wages payable to inter-State migrant workman and he is required
to be paid wages from the date of his recruitment.
The inter-State migrant workman will be
entitled to a displacement allowance and a journey allowance in addition to his
wages.
The amenities that are required to be provided
to the workmen would include provision of suitable residential accommodation,
adequate medical facilities, protective clothing to suit varying climatic
conditions and suitable conditions of work taking into account that they have
migrated from another State.
Inspectors will be appointed by the
appropriate Government to see that the provisions of the legislation are being
complied with. In addition, power has been given to the State Government of the
home State to appoint, after consultation with the Government of the host
State, inspectors for visiting the establishments wherein workmen from the
former State are employed to see whether the provisions of the legislation are
being complied with in the case of such workmen.
The inter-State migrant workman may raise an
industrial dispute arising out of his employment either in the host State or in
the home State after his return to that State after the completion of the
contract of employment. He will also be permitted to apply for the transfer of
proceedings in relation to an industrial dispute pending before an authority in
the host State to the corresponding authority in the Home State on the ground
that he has returned to the State after the completion of his contract.
Deterrent punishments have been proposed for
the contravention of the provisions of the legislation.
ACT 30 OF 1979
The Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Bill, 1979 was passed by both the Houses
of Parliament. It got the assent of the President on 11th June. 1979 and came
on the Statute Book as The Inter-State
Migrant Workmen (Regulation Of Employment And Conditions Of Service) Act, 1979
(30 Of 1979).
THE INTER-STATE MIGRANT WORKMEN
(REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979
(30
of 1979)
[11th June,
1979]
Act
to regulate the employment of inter-State migrant workmen and to provide for
their conditions of service and for matters connected therewith.
BE
it enacted by Parliament in tire Thirteenth Year of the Republic of India as
follow
CHAPTER I
PRELIMINARY
1. Short title, extent, commencement and
application.-
This Act may be called the Inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
It extends to the whole of India.
It shall come into force on such date as the
Central Government may, by notification in the Official Gazette, appoint:
Provided that if the Central Government
considers it necessary or expedient so to do in the public interest, it may
postpone or relax, to such extent as may be specified in such notification, the
operation of all or any of the provisions of this Act in any State or States
for such period not extending beyond one year from the date on which this Act
comes into force.
It applies-
(a) to every establishment in which five or
more inter-State migrant workmen (whether or not in addition to other workmen)
are employed or who were employed on any day of the preceding twelve months;
(b) to every contractor who employs or who
employed five or more inter-State migrant workmen (whether or not in addition
to other workmen) on any day of the preceding twelve months.
2.
Definitions.-
(1) In this Act, unless the context otherwise
requires,-
(a) "Appropriate Government"
means,-
i.
in relation to-
(1)
any establishment pertaining to any
industry carried on by or under the authority of the Central Government or
pertaining to any such controlled industry as may be specified in this behalf
by the Central Government; or
(2)
any establishment of any railway, Cantonment
Board, major port, mine or oil-field; or
(3)
any establishment of a banking or insurance
company the Central Government;
ii.
in relation to any other
establishment, the Government of the State in which that other establishment is
situated;
(b) "contractor",
in relation to an establishment, means a person who undertakes (whether as an
independent contractor, agent, employee or otherwise) to produce a given result
for the establishment, other than a mere supply of goods or articles of
manufacture to such establishment, by the employment of workmen or to supply
workmen to the establishment, and includes a sub-contractor, Khatadar, Sardar,
agent or any other person, by whatever name called, who recruits or employs
workmen;
(c) "controlled industry" means
any industry the control of which by the Union has been declared by any Central
Act to be expedient in the public interest;
(d) "establishment"
means-
(i)
any office or department of the
Government or a local authority; or
(ii)
any place where any industry, trade,
business, manufacture or occupation is carried on;
(e) "inter-State migrant workman"
means any person who is recruited by or through a contractor in one State under
an agreement or other arrangement for employment in an establishment in another
State, whether with or without the knowledge of the principal employer in
relation to such establishment;
(f)
"prescribed"
means prescribed by rules made under this Act;
(g) "principal employer"
means,-
i.
in relation to any office or
department of the Government or a local authority, the head of that office,
department or authority or such other officer as the Government or the local
authority, as the case may be, may specify in this behalf;
ii.
(ii) in relation to a factory, the
owner or occupier of the factory and where a person has been named as the
manager of the factory under the Factories Act, 1948 (63 of 1948), the person
so named;
iii.
in relation to amine, the owner or
agent of the mine and where a person has been named as the manager of the mine,
the person so named;
iv.
in relation to any other
establishment, any person responsible for the supervision and control of the
establishment.
Explanation.-For the purposes of sub-clause
(iii) of this clause, the expressions "mine", "owner" and
"agent" shall have the meanings respectively assigned to them in
clause (j), clause (e) and clause (c) of sub section (1) of section 2 of the
Mines Act, 1952 (35 of 1952);
(h) "recruitment" includes entering
into any agreement or other arrangement for recruitment and all its grammatical
variations and cognate expressions shall be construed accordingly;
(i)
"wages" shall have the meaning assigned to it in clause (vi) of
section 2 of the Payment of Wages Act, 1936 (4 of 1936);
(j)
"workman" means any person employed in or in connection with
the work of any establishment to do any skilled, semi-skilled or unskilled,
manual, supervisory, technical or clerical work for hire or reward, whether the
terms of employment be express or implied, but does not include any such
person-
(i)
who is employed mainly in a managerial
or administration capacity; or
(ii)
who, being employed in a supervisory
capacity, draws wages exceeding five hundred rupees per mensem, or exercises,
either by the nature of the duties attached to the office or by reason of the
powers vested in him, functions mainly of a managerial nature.
(1) Any
reference in this Act to any law which is not in force in any area shall, in
relation to that area, be construed as a reference to the corresponding law, if
any, in force in that area.
COMMENTS
(i) The expressions "mine",
"owner" and "agent" have the same meanings as respectively
assigned to them in clause (j), clause (1) and clause(c) of sub-section (1) of
section 2 of the Mines Act, 1952. Clause (j), (I) and (c) of the Mines Act,
1952 are as under:
(j) "Mine" means any excavation
where any operation for the purpose of searching for or obtaining minerals has
been or is being carried on and includes,-
(i) all borings, bore holes, oil wells and
accessory crude conditioning plants, including the pipe conveying mineral oil
within the oil fields;
(ii) all shafts, in or adjacent to and
belonging to a mine, whether in course of being sunk or not;
(iii) all levels and inclined planes in the
course of being driven;
(iv) all open cast workings;
(v) all conveyors or aerial rope way provided
for the bringing into or removal from a mine of minerals or other articles or
for the removal of refuse therefrom;
(vi) all adits, levels, planes, machinery,
works, railways, tramways and sidings in or adjusted to and belongings to a
mine;
(vii) all protective works being carried out
in or adjacent to a mine;
(viii) all workshops and stores situated
within the precincts of a mine and under the same management and used primarily
for the purposes connected with that mine or a number of mines under the same
management;
(ix) all power stations, transformer
sub-stations, convert or stations, rectifier stations and storage stations for
supplying electricity solely or mainly for the purpose of working the mine or a
number of mines under the same management;
(x) any premises for the time being used or
depositing sand or other material for use in amine or for depositing refuse from
a mine or in which any operations in connection with such sand, refuse or other
material is being carried on, being premises exclusively occupied by the owner
of the mine;
(xi) any premises in or adjacent to and
belonging to a mine on which any process ancillary to the getting, dressing or
preparations for sale of minerals or of coke is being carried on;
(1) "Owner", when used in relation
to a mine, means any person who is the immediate proprietor or lessee or
occupier of the mine or of any part thereof and in the case of a mine the
business whereof is being carried on by a liquidator or receiver, such
liquidator or receiver but does not include a person who merely receives a
royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject
it to any lease, grant or licence for the working there of, or is merely the
owner of the soil and not interested in the minerals of the mine; but any
contractor or sub-lessee for the working of a mine or any part there of shall
be subject to this Act in like manner as if he were an owner, but not so as to
exempt the owner from any liability;
(c) agent"', when used in relation to a
mine, means every person, whether appointed as such or not, who, acting or
purporting to act on behalf of the owner, take part in the management, control,
supervision or direction of the mine or of any part thereof;
(ii) Wages" have the same meaning as
assigned to it in clause (vi) of section 2 of the Payment of Wages Act, 1936
Clause (vi) of section 2 of the Payment of Wages Act, 1936 is as under:
(vi) wages" means all remuneration
(whether by way of salary, allowances, or otherwise) expressed in terms of
money or capable of being so expressed which would, if the terms of employment,
express or implied, were fulfilled, be payable to a person employed in respect
of his employment or of work done in such employment, and includes-
(a) any remuneration payable under any award
or settlement between the parties or order of a court;(b) any remuneration to
which the person employed is entitled in respect of over- time work or holidays
or any leave period;
(c) any additional remuneration payable under
the terms of employment (whether called a bonus or by any other name);
(d) any sum which by reason of the termination
of employment of the person employed is payable under any law, contractor
instrument which provides for the payment of such sum, whether with or without
deductions, but does not provide for the time within which the payment is to be
made;
(e) any sum to which the person employed is
entitled under any scheme framed under any law for the time being in force, but
does not include-
(1) any bonus (whether under a scheme of
profit sharing or otherwise) which does not form part of tile remuneration
payable under the terms of employment or which is not payable under any award
or settlement between the parties or order of a Court;
(2) the value of any house-accommodation, or
of the supply of light, water, medical attendance or other amenity or of any
service excluded from the computation of wages by general or special order of
the State Government;
(3) any contribution paid by the employer to
any pension or provident fund, and the interest which may have accrued thereon;
(4) any travelling allowance or the value of
any travelling concession:
(5) any sum paid to the employed person to
defray special expenses entailed on him by the nature of his employment; or
(6) any gratuity payable on the termination of
employment in cases other than those specified in sub-clause (d).
6. Prohibition against employment of inter-
State migrant workmen without registration.-
No principal employer of an establishment to which this Act applies shall
employ inter-State migrant workmen in the establishment unless a certificate of
registration in respect of such establishment issued under this Act is in
force:
Provided that nothing in this section shall
apply to any establishment in respect of which an application for registration
made within the period fixed, whether originally or on extension under sub-section
(1) of section 4 is pending before a registering officer and for the purposes
of this proviso, an application to which the provisions of sub-section (3) of
section 4 apply shall be deemed to be pending before the registering officer
concerned till certificate of registration is issued in accordance with the
provisions of that sub section.
COMMENTS
Employment of inter-State migrant workmen in
any establishment is prohibited unless it is duly registered under this Act.
CHAPTER
III
LICENSING
OF CONTRACTORS
7.
Appointment of licensing officers.- The
appropriate Government, by order notified in the Official Gazette,-
(a) appoint
such persons, being officers of Government, as it thinks fit to be licensing
officers for the purposes of this Chapter; and
(b) define
the limits, within which a licensing officer shall exercise the jurisdiction
and powers conferred on licensing officers by or under this Act:
COMMENTS
The appropriate Government may, by
notification in the Official Gazette, appoint licensing officers and define
their respective limits of jurisdiction and powers under this Act.
8.
Licensing of contractors.-
(1) With
effect from such date as the appropriate Government may, by notification in the
Official Gazette, appoint, no contractor to whom Act applies shall,-
(a)
recruit any person in a State for the
purpose of employing him in any establishment, situated in another State,
except under and in accordance with a licence issued in that behalf,-
(i)
if such establishment is an
establishment referred to in sub-clause (i) of clause (a) of sub-section (1) of
section 2, by the licensing officer appointed by the Central Government who has
jurisdiction in relation to the area wherein the recruitment is made;
(ii)
if such establishment is an
establishment referred to in sub-clause (ii) of clause (a) of sub-section (1)
of section 2, by the licensing officer appointed by the State Government who
has jurisdiction in relation to the area wherein the recruitment is made;
(b)
employ as workmen for the execution of
any work in any establishment in any State, persons from another State (whether
or not in addition to other workmen) except under and in accordance with a
licence issued in that behalf,-
(i)
if such establishment is an
establishment referred to in sub-clause (i) of clause (a) of sub-section (1) of
section 2, by the licensing officer appointed by the Central Government who has
jurisdiction in relation to the area wherein the establishment is situated;
(ii)
if such establishment is an
establishment referred to in sub-clause (ii) of clause (a) of sub-section (1)
of section 2, by the licensing officer appointed by the State Government who
has jurisdiction in relation to the area wherein the establishment is
situated.(2) Subject to the provisions of this Act, a licence under sub-section
(1) may contain such conditions including, in particular, the terms and
conditions of the agreement or other arrangement under which the workmen will
be recruited, the remuneration payable, hours of work, fixation of wages and
other essential amenities in respect of the inter-State migrant workmen, as the
appropriate Government may deem fit to impose in accordance with the rules, if
any, made under section, 35 and shall be issued on payment of such fees as may
be prescribed:
Provided that if for any special reasons, the
licensing officer is satisfied that it is necessary to require any person who
has applied for, or who has been issued, a licence to furnish any, security for
the due performance of the conditions of the licence, he may, after
communicating such reasons to such person and giving him an opportunity to
represent his case, determine in accordance with the rules made in this behalf
the security which shall be furnished by such person for obtaining or, as the
case may be, for continuing to hold the licence.
(3) The security which may be required to be
furnished under the proviso to sub-section (2) shall be reasonable and the
rules for the purposes of the said proviso shall, on the basis of the number of
workmen employed, the wages payable to them, the facilities which shall be
afforded to them and other relevant factors provide for the norms with
reference to which such security may be determined.
9.
Grant of licences.
(1)
Every application for the grant of a
licence under sub-section (1) of section 8 shall be made in the prescribed form
and shall contain the particulars regarding the location of the establishment,
the nature of process, operation or work for which inter-State migrant workmen
are to be employed and such other particulars as may be prescribed.
(2)
The licensing officer may make such
investigation in respect of the application received under sub-section (1) and
in making any such investigation; the licensing officer shall follow such
procedure as may be prescribed.
(3)
A licence granted under section 8,
shall be valid for the period specified therein and maybe renewed from time to
time for such period and on payment of such fees and on such conditions as may
be prescribed.
COMMENTS
The licensing officer may investigate in
respect of an application by following such procedure as may be prescribed.
10. Revocation, suspension and amendment of
licences. (1) If the licensing officer is satisfied, either on a reference
made to him in this behalf or otherwise, that-
(a) a licence
granted under section 8 has been obtained by misrepresentation or suppression
of any material fact, or
(b) the holder of
a licence has, without reasonable cause, failed to comply with the
conditions subject to which the licence has been granted or has contravened any
of the provisions of this Act or the rules made thereunder, then, without
prejudice to any other penalty to which the holder of the licence may be liable
under this Act, the licensing officer may, after giving the holder of the
licence an opportunity to be heard, by order in writing, revoke the licence or forfeit
the security furnished by him under the proviso to sub-section (2) of section 8
or any part thereof and communicate the order to the holder of the
licence:
Provided that where the licensing officer
considers it necessary so to do for special reasons, he may, pending such
revocation or forfeiture, by order, suspend the operation of the licence for
such period as may be specified in the order and serve, by registered post,
such order along with a statement of the reasons on the holder of the licence
and such order shall take effect on the date on which such service is affected.
(2) Subject to any rules that may be made in
this behalf, the licensing officer may vary or amend a licence granted under
section 8.
COMMENTS
The licensing officer may revoke, suspend and
amend the licence after giving the licensed holder an opportunity to be heard.
11.
Appeal.-
(1) Any person aggrieved by an order made
under section 4, section 5, section 8 or section 10 may, within thirty days
from the date on which the order is communicated to him, prefer an appeal to an
appellate officer who shall be a person nominated in this behalf by the
appropriate Government:
Provided that the appellate officer may
entertain the appeal after the expiry of the said period of thirty days, if he
is satisfied that the appellate was prevented by sufficient cause from filing
the appeal in time.
(2) On receipt of an appeal under sub-section
(1), the appellate officer shall, after giving the appellate an opportunity of
being heard, dispose of the appeal as expeditiously as possible.
COMMENTS
Any person aggrieved by an order made under
sections 4, 5, 8, and 10 may within thirty days from the knowledge of such
order, prefer an appeal to an appellate officer nominated by the appropriate Government
in this behalf. Sufficient cause have to be given for condonation of delay in
filing the appeal in statutory time under this Act.
CHAPTER
IV
DUTIES
AND OBLIGATIONS OF CONTRACTORS
12. Duties of contractors.-
(1) It shall be the duty of every contractor-
(a)
to furnish such particulars and in
such form as may be prescribed, to the specified authority in the State from
which an inter-State migrant workman is recruited and in the State in which
such workman is employed, within fifteen days from the date of recruitment, or,
as the case may be, the date of employment, and where any change occurs in any
of the particulars so furnished such change shall be notified to the specified authorities
of both the States;
(b)
to issue to every inter-State migrant
workmen, a pass book affixed with a passport size photograph of the workman and
indicating in Hindi and English languages, an where the language of the workman
is not Hindi or English, also in the language of the workman,-
i.
the name and place of the
establishment wherein the workman is employed:
ii.
the period of employment;
iii.
the proposed rates and modes of
payment of wages;
iv.
the displacement allowance
payable;
v.
the return fare payable to the workman
on the expiry of the period of his employment and in such contingencies as may
be prescribed and in such other contingencies as may be specified in the
contract of employment;
vi.
deductions made; and
vii.
such other particulars as may be
prescribed;
to furnish in respect of every
inter-State migrant workman who ceases to be employed, a return in such form
and in such manner as may be prescribed, to the specified authority in the
State from which he is recruited and in the State in which he is employed,
which shall include a declaration that all the wages and other dues payable to
the workman and the fare for the return journey back to his State have been
paid.
(2) The contractor shall maintain the
pass book referred to in sub-section (1) up-to-date and cause it to be retained
with the inter-State migrant workman concerned.
Explanation.-For the purposes of this
section and section 16 "specified authority" means such authority as
may be specified by the appropriate Government in this behalf.
CHAPTER
V
WAGES
WELFARE AND OTHER FACILITIES TO BE PROVIDED TO INTER-STATE MIGRANT WORKMEN
13. Wage rates and other conditions of service of inter-State
migrant workmen.
(1)
The wage rates, holidays, hours of
work and other conditions of service of an inter-State migrant workman shall,-
a.
in a case where such workman performs
in any establishment, the same or similar kind of work as is being performed by
any other workman in that establishment, be the same as those applicable to
such other workman; and
b.
in any other case, be such as may be
prescribed by the appropriate Government:
Provided that an inter-State migrant workman
shall in no case be paid less than the wages fixed under the Minimum Wages Act,
1948 (41 of 1948).
(2)
Notwithstanding anything contained in
any other law for the time being in force, wages payable to an inter-State
migrant workmen under this section shall be paid in cash.
COMMENTS
(i)
Section 13 deals with the wage rates,
holidays, hours of work and other conditions of service of inter-State migrant
workmen.
(ii)
An inter-State migrant workman shall
in no case be paid less than the wages fixed under the Minimum Wages Act, 1948.
(iii)
Wages payable to an inter-State
migrant workman/under this section shall be paid in 'cash' and not in any other
manner/form.
14. Displacement
allowance.-
(1) There shall be paid by the
contractor to every inter-State migrant workman at the time of recruitment, a
displacement allowance equal to fifty per cent. of the monthly wages payable to
him or seventy-five rupees, whichever is higher
(2) The amount paid to a workman as
displacement allowance under sub-section (1) shall not be refundable and shall
be in addition to the wages or other amount payable to him.
COMMENTS
Every inter-State migrant workman is entitled
to a displacement allowance at the time of recruitment, which may be either
seventy-five rupees or half of the monthly wages payable to him, whichever is
higher.
15.
Journey allowance etc.-A journey allowance of a sum not
less than the fare from the place of residence of the inter-State migrant
workman in his State to the place of work in the other State shall be payable
by the contractor to the workman both for the outward and return journeys and
such workman shall be entitled to payment of wages during the period of such
journeys as if he were on duty.
COMMENTS
Every inter-State migrant workman is entitled
to payment of wages during the period of journey son duty and is also entitled
to journey allowance for outward and return journeys from the place of
residence in his State to the place of work in the other State.
16.
Other facilities.-
It shall be the duty of every contractor
employing inter-State migrant workmen in connection with the work of an
establishment to which this Act applies,-
(a) to
ensure regular payment of wages to such workmen;
(b) to
ensure equal pay for equal work irrespective of sex;
(c) to
ensure suitable conditions of work to such workmen having regard to the fact
that they are required to work in a State different from their own State;
(d) to
provide and maintain suitable residential accommodation to such workmen during
the period of their employment;
(e) to
provide the prescribed medical facilities to the workmen, free of charge;
(f)
to provide such protective clothing to
the workmen as may be prescribed; and
(g) in
case of fatal accident or serious bodily injury to any such workman, to report
to the specified authorities of both the States and also the next of kin of the
workman.
17.
Responsibility for payment of wages.-
(1)
A contractor shall be responsible for
payment of wages to each inter-State migrant workman employed by him and such
wages shall be paid before the expiry of such period as may be prescribed.
(2)
Every principal employer shall
nominate a representative duly authorised by him to be present at the time of
disbursement of wages by the contractor and it shall be the duty of such
representative to certify the amounts paid as wages in such manner as may be
prescribed.
(3)
It shall be the duty of the contractor
to ensure the disbursement of wages in the presence of the authorised
representative of the principal employer.
(4)
In case the contractor fails to make
payment of wages within the prescribed period or makes short payment, then the
principal employer shall be liable to make payment of the wages in full or the
unpaid balance due, as the case may be, to the inter-State migrant workman
employed by the contractor and recover the amount so paid from the contractor
either by deduction from any amount payable to the contractor under any
contract or as a debt payable by the contractor.
18.
Liability of principal employer in certain cases. –
(1) If
any allowance required to be paid under section 14 or section 15 to an
inter-State migrant workman employed in an establishment to which this Act
applies is not paid by the contractor or if any facility specified in section
16 is not provided for the benefit of such workman, such allowance shall be
paid, or, as the case may be, the facility shall be provided, by the principal
employer within such time as may be prescribed.
(2) All
the allowances paid by the principal employer or all the expenses incurred by
him in providing the facility referred to in sub-section (1) may be recovered
by him from the contractor either by deduction from any amount payable to the
contractor under any contract or as a debt payable by the contractor.
19.
Past liabilities.- It shall be the duty of every
contractor and every principal employer to ensure that any loan given by such contractor
or principal employer to any inter-State migrant workman does not remain
outstanding after the completion of the period of employment of such workman
under the said contractor or, as the case may be, in the establishment of such
principal employer and accordingly every obligation of an inter-State migrant
workman to re-pay any debt obtained by him during the period of his employment
from the contractor or the principal employer and remaining unsatisfied before
the completion of such period shall, on such completion, be deemed to have been
extinguished and no suit or other proceeding shall lie in any court or before
any authority for the recovery of such debt or any part thereof.
CHAPTER
VI
INSPECTING
STAFF
20. Inspectors.-
(1)
The appropriate Government may, by
notification in the Official Gazette, appoint such persons as it thinks fit to
be inspectors for the purposes of this Act, and define the local limits within
which they shall exercise their powers under this Act.
(2)
(2) Subject to any rules made in this
behalf, within the local limits for which he is appointed, an inspector may-
a.
if he has reason to believe that any
inter-State migrant workmen are employed in any premises or place, enter, at
all reasonable hours, with such assistants (if any), being persons in the
service of the Government or any local or other public authority as he thinks
fit, such premises or place for the purpose of-
i.
satisfying himself whether the
provisions of this Act in relation to the payment of wages, conditions of
service, or facilities to be provided to such workmen are being complied
with;
ii.
examining any register or record or
notices required to be kept or exhibited by the provisions of this Act or the
rules made thereunder, and requiring the production thereof for inspection;
b.
examine any person found in any such
premises or place for the purpose of determining whether such person is an
inter-State migrant workman;
c.
require any person giving out
work to any workman, to give any information, which is in his power to give,
with respect to the names and addresses of the persons to, for and from whom
the work is given out or received, and with respect to the payments to be made
for the work;
d.
seize or take copies of such register,
record of wages, or notices or portions thereof as he may consider relevant in
respect of an offence under this Act which he has reason to believe has been
committed by a principal employer or contractor, and
e.
exercise such other powers as may be
prescribed.
(3)
Notwithstanding anything contained in
sub-sections (1) and (2), if a State Government considers it necessary for the
purpose of satisfying itself that the provisions of this Act are being complied
with in respect of any workmen belonging to that State and employed in an
establishment situated in another State, it may, by order in writing, appoint
such persons, being persons in the service of that Government, for the exercise
of such of the powers mentioned in sub-section (2), as may be specified in that
order:
Provided that no such order shall be issued
without the concurrence of the Government of the State in which such workmen
are employed or where the establishment is an establishment referred to in
sub-clause (i) of clause (a) of sub-section (1) of section 2, without the
concurrence of the Central Government.
(4)
Any person required to produce any
document or thing, or to give any information required, by an inspector under
sub-section (2), or by a person appointed under sub-section (3), shall be
deemed to be legally bound to do so within the meaning of section 175 and
section 176 of the Indian Penal Code (45 of 1860).
(5)
The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974), shall, so far as may be, apply to any search or
seizure under this section as they apply to any search or seizure made under
the authority of a warrant issued under section 94 of the said Code.
CHAPTER
VII
MISCELLANEOUS
21.Inter-State migrant workmen to be deemed to be in employment
from date of recruitment for the purposes of certain enactments.-
For
the purposes of the enactments specified in the Schedule, an inter-State
migrant workman shall, on and from the date of his recruitment, be deemed to be
employed and actually worked in the establishment or, as the case may be, the
first establishment in connection with the work of which he is employed.
22.
Provisions regarding industrial disputes
in relation to inter-State migrant workmen.-
(1) Notwithstanding
anything contained in the Industrial Disputes Act, 1947 (14 of 1947), any
dispute or difference in connection with the employment or non-employment or
the terms of employment or the conditions of labour, of an inter-State migrant
workman (hereafter in this section referred to as the industrial dispute),
may,-
(a)
if the industrial dispute is relatable
to an establishment referred to in sub-clause (i) of clause (a) of sub-section
(1) of section 2, be referred under the provisions of the said Act, by the
Central Government to any of the authorities referred to in Chapter of that Act
(hereafter in this section referred to as the said authorities),-
i.
in the State wherein the establishment
is situated;
ii.
in the State wherein the recruitment
of such workman was made if he makes an application in that behalf to that
Government on the ground that he has returned to that State after the
completion of his employment;
(b)
if the industrial dispute is relatable
to an establishment referred to in sub-clause (ii) of clause (a) of sub-section
(1) of section 2,-
i.
be referred under the provisions of
the said Act, by the Government of the State wherein the establishment is
situated, to any of the said authorities in that State; or
ii.
be referred under the provisions of
the said Act, by the Government of the State wherein the recruitment of such
workman was made to any of the said authorities in that State, if he makes an
application in that behalf to that Government on the ground that he has
returned to that State after the completion of his employment:
Provided
that-
(a)
no application referred to in
sub-clause (ii) of clause (a) or sub-clause (ii) of clause (b) shall be
entertained after the expiry of a period of six months from the date of his
return to the State wherein the recruitment was made after the completion of
his employment, unless the Government concerned is satisfied that the applicant
was prevented by sufficient cause from making the application within that
period;
(b)
no reference under the said sub-clause
(ii) of clause (b) shall be made except after obtaining the concurrence of the
Government of the State wherein the establishment concerned is situated.
(2) Without
prejudice to the provisions of section 338 of the Industrial Disputes Act, 1947
(14 of 1947), where during the pendency of any proceeding in respect of an
industrial dispute under that Act before any of the said authorities in the
State wherein the establishment is situated, an application is made to that
authority by an inter-State migrant workman for the transfer of such proceeding
to a corresponding authority in the State wherein his recruitment was made on
the ground that he has returned to that State after the completion of his
employment, that authority shall forward the application to the Central
Government, or, as the case may be, to the Government of the State wherein such
recruitment was made and transfer such proceeding in the prescribed manner to
such authority as may be specified in this behalf by that Government:
Provided that in a case where no authority has
been specified by the Government concerned within the prescribed period, the
authority before which the proceeding is pending shall, on a request being made
by the inter-State migrant workman and after obtaining the previous approval of
the Government which referred the dispute to that authority, forward such
proceeding to the Government concerned for reference of such dispute to an
authority in the State wherein such recruitment was made.
(3) Without
prejudice to the provisions of sub-section (2), if the Central Government is
satisfied that it is expedient in the interests of justice so to do, it may, by
order in writing and for reasons to be stated therein, withdraw any proceeding
in respect of any industrial dispute relating to an inter-State migrant workman
pending before an authority in the State in which the establishment concerned
is situated and transfer the same to such authority in the State wherein the
recruitment of such workman was made as may be specified in the order.
(4) The
authority to which any proceeding is transferred under this section may proceed
either de novo or from the stage at which it was so transferred.
23.
Registers and other records to be maintained.-
(1)
Every principal employer and every
contractor shall maintain such registers and records giving such particulars of
the inter-State migrant workmen employed, the nature of work performed by such
workmen, the rates of wages paid to the workmen and such other particulars in
such form as may be prescribed.
(2)
Every principal employer and every
contractor shall keep exhibited in such manner as may be prescribed within the
premises of the establishment where the inter-State migrant workmen are
employed, notices in the prescribed form containing particulars about the hours
of work, nature of duty and such other information as may be prescribed.
24.
Obstructions.-
(3)
Whoever obstructs an inspector or a
person appointed under sub-section (3) of section 20 (hereinafter referred to
as the authorised person) in the discharge of his duties under this Act or
refuses or wilfully neglects to afford the inspector or authorised person any
reasonable facility for making any inspection, examination, inquiry or
investigation authorised by or under this Act in relation to an establishment
to which, or a contractor to whom, this Act applies, shall be punishable with
imprisonment for a term which may extend to two years, or with fine which may
extend to two thousand rupees, or with both.
(4)
Whoever wilfully refuses to produce on
the demand of any inspector or authorised person any register or other document
kept in pursuance of this Act or prevents or attempts to prevent or does
anything which he has reason to believe is likely to prevent any person from
appearing before or being examined by any inspector or authorised person acting
in pursuance of his duties under this Act, shall be punishable with
imprisonment for a term which may extend to two years, or with fine which may
extend to two thousand rupees, or with both.
25.
Contravention of provisions regarding employment of inter-State migrant
workmen.-
Whoever contravenes any provisions of this Act
or of any rules made there under regulating the employment of inter State
migrant workmen, or contravenes any condition of a licence granted under this
Act, shall be punishable with imprisonment for a term which may extend to one
year, or with fine which may extend to one thousand rupees, or with both, and
in the case of a continuing contravention, with an additional fine which may
extend to one hundred rupees for every day during which such contravention
continues after conviction for the first such contravention.
26.Other
offences –
If any person contravenes any of the
provisions of this Act or of any rules made thereunder for which no other
penalty is elsewhere provided, he shall be punishable with imprisonment for a
term which may extend to two years, or with fine which may extend to two
thousand rupees, or with both.
27.
Offences by companies –
1)
Where an offence under this Act has
been committed by a company, every person who, at the time the offence was
committed, was in charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the company, shall be deemed
to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this
sub-section shall render any such person liable to any punishment, if he proves
that the offence was committed without his knowledge or that he had exercised
all due diligence to prevent the commission of such offence.
2)
Notwithstanding anything contained in
sub-section (1), where any offence under this Act has been committed by a
company and it is proved that the offence has been committed with the consent
or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall be deemed to be guilty of that
offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this
section,-
a)
"company" means anybody
corporate and includes a firm or other association of individuals; and
b)
"director", in
relation to a firm, means a partner in the firm.
28.
Cognizance of offences –
No court shall take cognizance of any offence
under this Act except on a complaint made by, or with the previous sanction in
writing of, an inspector or authorised person and no court inferior to that of
a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try
any offence punishable under this Act.
29.
Limitation of prosecutions –
No court shall take cognizance of an offence
punishable under this Act unless the complaint thereof is made within three
months from the date on which the alleged commission of the offence came to the
knowledge of the inspector or authorised person concerned:
Provided that where the offence consists of
disobeying a written order made by an inspector or authorised person, complaint
thereof may be made within six months of the date on which the offence is
alleged to have been committed
30.
Effect of laws and agreements inconsistent with the Act-
(1) The
provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law or in the terms of any agreement or
contract of service, or in any standing orders applicable to the establishment
whether made before or after the commencement of this Act:
Provided that where under any such law,
agreement, contract of service or standing orders, the inter-State migrant
workmen employed in the establishment are entitled to benefits in respect of
any matter which are more favourable to them than those to which they would be
entitled under this Act, the inter-State migrant workmen shall continue to be
entitled to the more favourable benefits in respect of that matter,
notwithstanding that they receive benefits in respect of other matters under
this Act.
(2) Nothing
contained in this Act shall be construed as precluding any inter-State migrant
workmen from entering into an agreement with the principal employer or the
contractor, as the case may be, for granting them rights or privileges in
respect of any matter which are more favourable to them than those to which
they would be entitled under this Act.
31.
Power to exempt in special cases –
The appropriate Government may, by
notification in the Official Gazette and subject to such conditions and
restrictions, if any, and for such period or periods as may be specified in the
notification, direct that all or any of the provisions of this Act or the rules
made thereunder shall not apply to or in relation to any establishment or class
of establishments or any contractor or class of contractors or any inter-State
migrant workmen in such establishments or class of such workmen, if that
Government is satisfied that it is just and proper so to do having regard to
the methods of recruitment and the conditions of employment in such
establishment or class of establishments and all other relevant circumstances.
32.
Protection of action taken under Act.-
(1) No suit, prosecution or other legal
proceedings shall lie against any registering officer, licensing officer or any
other employee of the Government for anything which is in good faith done or
intended to be done in pursuance of this Act or any rule or order made
thereunder.
(2) No suit or other legal proceedings shall
lie against the Government for any damage caused or likely to be caused by
anything which is in good faith done or intended to be done in pursuance of
this Act or any role or notification or order made or issued thereunder.
33.
Power to give directions –
The Central Government may give directions to
the Government of any State as to the carrying into execution in the State of
the provisions contained in this Act.
34.
Power to remove difficulties –
(1)
If any difficulty arises in giving
effect to the provisions of this Act, the Central Government may, by order
published in the Official Gazette, make such provisions not inconsistent with
the provisions of this Act, as appears to it to be necessary or expedient for
removing the difficulty:
Provided that no such order shall be
made after the expiry of two years from the date on which this Act comes into
force.
(2)
Every order made under this section
shall, as soon as may be after it is made, be laid before each House of
Parliament.
35.
Power to make rules.-
(5)
The appropriate Government may,
subject to the condition of previous publication, make rules for carrying out
the purposes of this Act.
(6)
In particular, and without prejudice
to the generality of the foregoing power, such rules may provide for all or any
of the following matters, namely:-
(a)
the form and manner in which an
application for the registration of an establishment may be made under section
4, the fees payable thereon and the form of a certificate of registration
issued under that section;
(b)
the form in which an application for
the grant or renewal of a licence may be made under section 9 and the
particulars it may contain;
(c)
the manner in which an investigation is to be
made in respect of an application for the grant of a licence and the matters to
be taken into account in granting or refusing a licence;
(d)
the form of a licence which may be
granted or renewed under this Act, the conditions subject to which the licence
may be granted or renewed, the fees payable for the grant or renewal of a
licence and the security, if any, required to be furnished for the performance
of the conditions of the licence;
(e)
the circumstances under which licence
may be varied or amended under section 10;
(f)
the form and the manner in which
appeals may be filed under section 11 and the procedure to be followed by
appellate officers in disposing of the appeals;
(g)
the wage rates, holidays, hours of
work and other conditions of service which an inter-State migrant workman is
entitled under section 13;
(h)
the period within which wages payable
to inter-State migrant workmen should be paid by the contractor under sub-section
(1) of section 17 and the manner of certification of such payment under
sub-section (2) thereof;
(i)
the time within which allowances or
facilities required by this Act to be provided and maintained may be so
provided by the contractor and in case of default on the part of the
contractor, by the principal employer under section 18;
(j)
the powers that may be exercised by
inspectors under section 20;
(k)
the form of registers and records to
be maintained, and the particulars and information to be contained in notices
to be exhibited, by the principal employers and contractors under section 23 ;
(l)
the manner of submission of returns,
and the forms in which, and the authorities to which, such returns may be
submitted;
(m) legal
aid to inter-State migrant workmen;
(n)
any other matter which is required to
be, or may be, prescribed under this Act.
(3) Every rule made by the Central
Government under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament is in session for a total period of thirty days
which may be comprised in one session or in two or more successive sessions and
if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in
the rule or both Houses agree that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
36.
Repeals and saving.-
(1) The
Orissa Dadan Labour (Control and Regulation) Act, 1975 (Orissa Act 42 of 1975)
and any law corresponding to this Act, in force in any State, shall stand
repealed.
(2) Notwithstanding
such repeal, anything done or any action taken under the provisions of the Act
or law so repealed shall, in so far as such thing or action is not inconsistent
with the provisions of this Act, be deemed to have been done or taken under the
provisions of this Act as if the said provisions were in force when such thing
was done or such action was taken and shall continue to be in force accordingly
until superseded by anything done or any action taken under this Act.
THE
SCHEDULE
(See
section 21)
(1) The
Workmen's Compensation Act, 1923 (8 of 1923).
(2) The
Payment of Wages Act, 1936 (4 of 1936).
(3) The
Industrial Disputes Act, 1947 (14 of 1947).
(4) The
Employees' State Insurance Act, 1948 (34 of 1948).
(5) The
Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of
1952).
(6) The
Maternity Benefit Act, 1961 (53 of 1961).
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