Tuesday 31 December 2019

The Bombay Workmens Compensation Rules, 1934

The Bombay Workmens Compensation Rules, 1934

Preliminary

Rule 1: Short title

These rules may be called the Bombay Workmens Compensation Rules, 1934.

Rule 2: Definitions

In these rules, unless there is anything repugnant in the subject or context,-
(a) "The Act" means the Workmens Compensation Act, 1923.
(b) "Form" means a form appended to these rules.
(c) "Section" means a section of the Act.

Scales of costs and the fees payable in respect of proceedings before a Commissioner

Rule 3: Cost

(1) Where the Commissioner directs that any costs shall not follow the event, he shall state his reasons in writing.
(2) The costs which may be awarded shall include-
(a) the charges necessarily incurred on account of court fees;
(b) the charges necessarily incurred on subsistence money to witnesses; and
(c) pleaders' fees on the scale prescribed in the following rule.
(3)(a) In any proceeding involving an application for compensation in the form of a lumpsum, an application for review or an application for indemnification, the fee allowed shall be Rs. 25 subject to a special order of the Commissioner to diminution to a sum not less than Rs. 15 and to increase to a sum not more than Rs. 150 for each such proceeding. In all other applications, the fee allowed shall be Rs. 15 subject to increase by special order to a sum not exceeding Rs.50.
(b) No fee shall be charged in excess of the amount determined under clause (a).
(4) When a party engages more pleaders than one to conduct or defend a case, he shall be allowed one set of costs only.
(5) When several defendants having substantially one defence to make employ several pleaders, they shall be allowed one set of costs only. In such cases, it will be for the applicant, at the time of hearing, to ask for a direction of the Court that separate costs be not allowed.
(6) When two or more defendants having separate substantial defenses have engaged the services of one pleader, they shall be allowed separate sets of costs. In this case, it will be for the defendants interested to apply at the hearing for separate costs.
(7) When several defendants having separate defenses are represented by separate pleaders, they shall be entitled to separate costs.
(8) The Commissioner shall, out of the amount deposited as compensation and costs, arrange to disburse the amount of compensation and costs in accordance with the order made in that behalf.

Rule 4: Fees

The fees specified in column 3 of the subjoined schedule shall be payable in respect of the proceeding mentioned in the second column of the said schedule

Rule 5: Applicant may be required to deposit excess fees

If in any case the Commissioner considers that he ought to pass orders granting relief of a different kind or to a different extend from that claimed by the applicant, and if the fee which would have been payable by the applicant on an application for the relief which the Commissioner considers to be due is greater than the fee which has actually been paid the Commissioner may require the applicant to deposit fees to the extend of the difference.

Maintenance of Registers, Language of Court Records, Certified Copies And Allowance To Witnesses

Rule 6: Register of applications

All application presented to the Commissioner shall be registered in a register in From A.

Rule 7: Register of fatal accidents

Every Commissioner shall maintain a separate register in From B of fatal accidents which come to his knowledge either on account of deposits made by or on behalf of employees or applications made by dependants of a deceased workman for an order for deposit and payment of compensation.

Rule 8: Register of non-fatal accidents

Every Commissioner shall maintain a separate register in From C of non-fatal accidents which come to his knowledge in any of the following ways:-

(1) On account of applications for registration of memoranda of agreements.
(2) On account of applications for commutation of half- monthly payments.
(3) On account of amount of compensation deposited with the Commissioner under section 8(2).
(4) On account of applications for settlement of claim made by the injured workman.

Rule 9: Language of the record

The record of the Commissioner shall be kept in the English language.

Rule 10: Supply of certified copies to parties

Certified copies of any paper in any proceeding before a Commissioner should be supplied to parties in accordance with the rules in Chapter XIII (in so far as they are consistent with the Act) of the Manual of Circulars issued by the High Court of Bombay for the guidance of Civil Courts.

Rule 11: Allowance to witnesses

In cases where a Commissioner has to issues him summons to a witness either at the instance of a party to a proceedings before or on his own initiative, the allowances to be paid to the witness shall be on the same scales as obtains in the Court of Small Causes.

Chapter IV

Rule 12: Fees to assessors

Where in pursuance of the provisions of section (2) of section 20 any person possessing special knowledge of any matter relevant to the case under inquiry is chosen by the Commissioner to assist him in holding the same, he shall be entitled to such fee as the Commissioner may fix, subject to a maximum of rupees fifty and a minimum of rupees twenty:

Provided that he shall be entitled to an additional fee of rupees ten-
(a) for each extra case if he is required to sit in more than one case on the same day; and
(b) for each of the second and third days of any one case.

Chapter V

Rule 13: Notice Under Section 10-A and The Statement By the Employer in Reply Thereto

The notice sent by a Commissioner under sub-section (1) of section 10-A shall be in Form D and shall be accompanied by a copy of Form E


Rule 14: Notice Under Section 10-A and The Statement By the Employer in Reply Thereto

The statement submitted by an employer under section 10-A shall be in Form E.

Chapter VI

Rule 15: Display of notices containing abstracts of the Act by employers

Notices containing abstracts from the Act together with the designation and full address of the Commissioner shall be displayed by every employer at a conspicuous place near the Time Keeper's office or the main gate through which majority of the workmen employed by them enter, in English and in language understood by the majority of workmen and shall be maintained in a clear and legible condition. The abstracts of the Act shall be in Form 'F'.

Parliamentary Board Observes Changes in Labour Code

Parliamentary Panel may seek changes in Occupational Safety, Health and Working Conditions Code

A Parliamentary board may look for key changes in the Occupational Safety, Health and Working Conditions Code after it was overwhelmed with requests by different associations and exchange bodies to be increasingly adaptable over rules for little and medium undertakings and to enable them to work longer hours, and have shared offices, for example, crèches. The parliamentary council on work is looking into the OSH code, 1 of the 4 codes planned for redesigning India's age-old work segment laws to make them more industry-and laborer benevolent. Out of the 4 codes, the pay code has just been cleared by Parliament. Another, the code on mechanical relations, has been cleared by the Union bureau. The OSH code has endorsed that "occasions and working hours or some other condition to be seen by the business might be recommended by the suitable Govt."

According to prevailing laws & international norms, up to 8 hours of work is allowed following the first International Labour Organization (ILO) convention in 1919. A 6 time MP from the Biju Janata Dal and labour panel chief Bhartruhari Mahtab said that “Many organisations who deposed before us feel that the eight hour-schedule was sacrosanct in the backdrop of the Industrial Revolution. But now, a hundred years after the first ILO convention, the world has changed. So, there is an opportunity to look into the issue". Another panel member added on condition of anonymity that at least in some sectors such as textiles & information technology, the Govt. can think of extending working hours.

Panel members also said that the extended fixed hours would be at higher wages. Trade unions affiliated to the Left parties submitted a memorandum to the panel & are vehemently opposed to any such plan. Centre of Indian Trade Unions (CITU) General Secretary Tapan Sen said that “The historic May Day is a result of the workers’ demand for fix working hours. International conventions have divided the day into eight hours of sleep, eight hours for work & eight hours for recreation for workers". The code puts the onus on the employers to provide a crèche & other facilities for women workers who are allowed to work in night shifts. These provisions, many members said, are capital-intensive & place a burden on people who run small & medium sector enterprises. The panel may consider asking the Govt. to allow common facilities for workers in a particular sector & area which can be maintained by a group of enterprises. “As it is the MSMEs (micro, small, & medium enterprises) work on slender profit margins amid tough competition. Individual enterprises may find it difficult to maintain their separate facilities. So a joint facility can be a feasible idea,” said a third panel member, also on condition of anonymity.

The labour committee has so far met the Indian Film & TV Producers Council, Indian Council of Medical Research (ICMR), National Institute of Occupational Health (NIOH), Federation of Medical & Sales Representatives’ Associations of India, Action Aid Association, National Labour Law Association, Federation of Indian Chambers of Commerce & Industry (FICCI), Confederation of Indian Industry (CII), Joint Forum of Plantation Workers Unions, Darjeeling Planters Association, Tea Association of India & several trade unions. “The panel will now meet a few states before finalising its report,” Mahtab added. 

During the debates, many members & different organisations have also shown out that the OSH Code is applicable only for establishments with ten or more workers, excluding a large number of workers who work in micro, family-run establishments. The panel may ask the Govt to devise a mechanism to ensure safety & good health of a worker in such establishments as health & safety of all workers are important

Wages Code :- Many Provisions, No Enforcement Mechanisms

Critics:- Code on Wages 2019 - Part 1

Rather than strengthening implementing mechanisms to realise its provisions, the Wage Code dismantles the inspection systems present in previous legislations, under which labour inspectors could carry out “surprise checks” and “examine persons” (Sundar 2017). There has been a constant vilification of labour inspectors through the narrative of the "inspector raj," highlighting corrupt practices of inspecting officials as the key deterrent to economic growth (Sundar 2017). However, such an analysis is misleading.

Under the previous wage legislations, few inspections and prosecutions could be carried out due to limited financial and human resources. For example, Maharashtra’s grossly understaffed labour department would take three years to carry out one visit per inspector of the 5,602 sites covered by the previous non-universalised minimum wage systems (Sundar and Sapkal 2018). In such a scenario, an overarching claim paints inspectors with too broad a brush, hiding the inefficiencies of the system that inhibits them from carrying out their work.

Furthermore, inspectors have now been termed "facilitators," the term itself making a mockery of their regulatory and enforcement authority. The task of facilitators to “supply information and advice to employers and workers concerning the most effective means of complying with the provisions of the code,” takes a more benevolent approach to wage violations by employers. At the same time, they will also be responsible for undertaking inspection based on the directions of the state governments. However, state inspection schemes provide for web-based inspections through an automated centralised system. This means that labour inspectors cannot conduct surprise checks after receiving information about suspected violations, make inquiries about employers or their agents, or enter workplaces as they please, other than when the time of inspection comes every three to five years through the automated system.

This system allows for a web-based self-certification scheme, where employers can certify themselves as being compliant to the provisions of the code. Such a self-certification scheme assumes that employers are keen to, and will naturally, comply with labour regulations. This is a misinformed position as there are a large number of instances of non-compliance with the existing labour laws. For instance, a study conducted by Aajeevika Bureau (2008) revealed that 68% of surveyed workers in southern Rajasthan had suffered a grave labour law violation in the previous year alone. These provisions for dismantling the inspections system have already been in action in some states for inspecting compliance to several labour laws, following which, violations have allegedly increased (Sundar 2017).
Along with this, the penalties on employers for not complying with wage laws have also been weakened, with penal inspections being replaced by guidance inspections. For instance, under the existing Minimum Wages Act, any payment less than the minimum wages is punishable by imprisonment in the first instance. The Supreme Court had pointed out in Sanjit Roy v State of Rajasthan in 1983, that non-compliance with minimum wages amounts to forced labour, which is constitutionally prohibited (PUDR 2017). While before, employers had criminal liability, under the present Wage Code, they only have a civil liability. Further, employers found to be violating the Wage Code will be given the opportunity to comply with the provisions of the Wage Code or give reasons for violation, and only compounded offences will lead to penalties.



The Wage Code also takes away the jurisdiction of courts in providing justice to workers who have faced violations with respect to their wages. This means that workers can no longer access courts to contest the wages paid to them by their employers, but can only approach the quasi-judicial body and appellate authority set up under the provisions of the Wage Code. The government is claiming that the setting up of an appellate authority to redress violations regarding workers’ wages will lead to speedy, cheap and effective resolution of wage disputes. However, it gives the appellate authority, whose membership is not defined, the sole power to adjudicate on wage disputes, which are not subject to review by the courts. This is in clear violation of the Civil Procedure Code, Section 9, which mandates that every law or decision made under its authority be subjected to review by the judiciary. A claim can only be filed by an appropriate authority, employee or trade union. This means that undocumented, casual and informal workers, as well as workers who do not belong to a trade union, will find it extremely difficult to file a case, thereby further disempowering them to assert their right to be paid the legally mandated wages. This move is a serious blow to workers’ access to basic rights in a country where 93% of workers have informal livelihoods (NCEUS 2008), more than 80% of workers do not have access to written contracts to prove their employee status (Sundar and Sapkal 2017), and less than 10% of workers are included in trade union membership (Ratnam and Jain 2002).

Sunday 29 December 2019

Santusht - Portal for Grievance Redressal of Worker


Labour Ministry Mulls 'Santusht' Portal for Resolution of Grievances



The labour ministry has present a plan to launch a new portal for Grievance Redressal of Worker as well as employer grievances and ensuring effective implementation of labour laws at the grassroot level - 'Santusht'. Currently this portal would monitor all services provided by EPFO and ESIC. Later, the portal would cover other wings of the ministry as well. It would also have data on real time basis to assess the performance of each and every official. Workers and employers can lodge their complaints on the portal, which would be managed by an internal monitoring cell comprising five to six officers.


"I appreciate the systematic and professional work this government website is doing, which is beneficial both to the companies and the set of individuals"
Presently, the ministry is in the process of categorising 44 central labour laws into four broad codes on wages, industrial relations, social security and occupational safety, health and working conditions (OSH). The ministry top brass is hopeful of getting all the four codes operational by 2020.
"It is not enough to have legislations for safeguarding workers' rights and providing various facilities to employers for creating conducive environment for job creation and robust economic growth. The effective implementation of all codes is required. That would be ensured by Santusht"
This portal shall have all data related to EPFO and ESIC. There have been grievances of the subscribers of the two bodies as well as other workers regarding poor implementation of labour laws in the country. We have seen workers have faced issues like delay in settling claims by Employees' Provident Fund Organisation (EPFO) and Employees' State Insurance Corporation (ESIC).

Some workers do not get minimum wages, while other issues related to labour law implementation at the grassroot level affects both employees and employers.
The portal would help the labour ministry to assess the performance of officials, which would be given due weightage at the time of their appraisals, transfers and postings, the source added. Santusht is envisaged to fix transparency, accountability and effective implementation of labour laws.

Consequences of non-filing of returns under GST

Consequences of non-filing of returns under GST

CGST Act (Section 46) read with CGST Rules 2017 (Rule 68) requires issuance of a notice in FORM GSTR-3A to a registered person who fails to furnish return i.e. GSTR-3B under section 39 or Annual return or final return (defaulter) requiring him to furnish such return within fifteen days.
Further section 62 provides for assessment of non-filers of return of registered persons who fails to furnish return under section 39 or section 45 even after service of notice under section 46 in FORM GSTR-3A.

Following guidelines are hereby prescribed to ensure the compliances of above provisions:
S No.         Days                     Action
1.3 Days Before Due Date of filing of returnSystem generated message would be sent for filing of the return for the tax period by the due date.
2.Immediately after Due Datea system generated mail / message would be sent to all the defaulters immediately after the due date to the effect that the said registered person has not furnished his return for the said tax period
3.5 days after the due date of furnishing the returnA notice in FORM GSTR-3A shall be issued  electronically  to  such  registered  person  who  fails  to  furnish  return requiring him to furnish such return within fifteen days
4.After 15 days of Notice in GSTR-3AThe proper officer may proceed to assess the tax liability to the best of his judgement taking into account all the relevant material which is available or which he has gathered and would issue order in FORM GST ASMT-13.
The proper officer would then be required to upload the summary thereof in FORM GST DRC-07;
For the purpose of assessment of tax the proper officer may take into account the
  • details of outward supplies available in the statement furnished under section 37 (FORM GSTR-1),
  • details of supplies auto-populated in FORM GSTR-2A,
  • information available from e-way bills, or
  • any other information available from any other source, including from inspection under section 71;
5.After 30 Day of the above ASMT 13In case the defaulter furnishes a valid return within thirty days of the service of assessment order in FORM GST ASMT-13, the said assessment order shall be deemed to have been withdrawn.
However, if the said return remains unfurnished within the statutory period of 30 days from issuance of order in FORM ASMT-13, then proper officer may initiate proceedings under section 78 and recovery under section 79 of the CGST Act;


In deserving cases, based on the facts of the case, the Commissioner may resort to provisional attachment to protect revenue before issuance of FORM GST ASMT-13.


Further, the proper officer would initiate action under sub-section (2) of section 29 of the CGST Act 2017 for cancellation of registration in cases where the return has not been furnished for the period specified in section 29.

Source :- TAXGuru

Happy New Year - Modi Regime to benefit 630,000 Pensioners

Advance Pension

Here is good news from Modi government from EPFO

The Labour Ministry shall enforce the EPFO's decision to restore pension commutation, or advance part-withdrawal, under the Employees' Pension Scheme (EPS) from January 1, 2020.
PTI news agency quoting a source says reports that the labour ministry would issue a notification on January 1, 2020, to implement the Employees' Provident Fund Organisation (EPFO) decision to restore commutation, or advance part-withdrawal, under the Employees' Pension Scheme.
It is essential to note here that these 630,000 retired people had picked compensation of their annuity. Besides, these beneficiaries got a singular amount sum at the hour of retirement from their benefits aggregations or reserve before 2009. The arrangement for substitution of annuity was pulled back by the EPFO in 2009.

What is pension commutation or advance part-withdrawal?

Under the Pension commutation or advance part-withdrawal, monthly pension used to be cut by one-third for the next 15 years and the reduced amount was given in lump sum. After the 15 years, pensioners were entitled to get the full pension.

EPFO recommendation?

An EPFO panel had recommended for amendment in EPS-95 (Employees' Pension Scheme 19995) for restoration of commuted value of pension to pensioners after 15 years of drawing commutation.

Friday 27 December 2019

State being 'Safe for Women' SHe-Box Report

Number of Sexual harassment complaints 
received from private/public entities through 
SHe-box in State
Maharashtra beat the graph of instances of sexual harassment of women at work places, registered at the SHe-Box, against the general perception of the state being 'safe for women.' The data of complaints registered on this portal was released by the Union Ministry of Women and Child Development
The Sexual Harassment electronic Box or SHe-Box is an online complaint management system, developed by the Ministry, Government of India, for registering complaints related to sexual harassment at workplaces by women, including government and private employees. 
Once a complaint is submitted to the SHe-Box portal, it directly reaches to the concerned authority having jurisdiction to take action in the matter. 
According to the data, total number of 203 cases had been disposed of so far, which includes cases under Central Government, State Government and the Private sector. 
The details of number of sexual harassment complaints received from private/public entities through the SHe-Box in States/UTs since 2017 was also given in the detail in which :- 
  • Maharashtra showed most number of cases, i.e. 82 registered on the platform.
  • Uttar Pradesh was at number two with a total 65 cases registered on the SHe Box. 
  • Delhi had 50 cases registered and 
  • Tamil Nadu had 48 cases
The Ministry said that it expected the states to make women aware of such platform in order to strengthen the mechanism to fight against the sexual harassment at workplace. 

"There are states where zero complaints were registered, but that doesn't mean that there are no complaints in those states. There may be cases, but women sometimes do not register the complaint. States must encourage women to come forward and register the crime. This platform makes the registration of the crime most convenient, said a ministry spokesperson."

Sexual Harassment - One Stop Centre receives 331 complaints in 2 years

COIMBATORE: The One Stop Centre (SOC), started by the state government in September 2018 to assist women in distress, had received 331 complaints till now.
Unlike the local complaints committee, the SOC has received five sexual harassment at workplace complaints.
Even though some of the women in distress just drop in at the centre, we have also been receiving complaints through women’s helpline number 181 and advocates. A lot of complaints especially issues related to domestic violence were received from rural areas,” an official of the social welfare department, which manages the centre, said. The centre has the facilities to accommodate five women for a maximum of five days.

Explaining that they had received five sexual harassment at workplace complaints in the last two years, the official said that they could not proceed further with their inquiry as the complainants were not cooperative. They had received two such complaints in November.

“We would either receive an anonymous letter barely revealing any details or friends of the victims would approach us through phone. When we seek more details pertaining to the issue, they would not reveal any even though we assure to protect their identify. After a point, they would stop responding to us,” the official said.
“Sexual harassment is a serious issue and how could we inquire a person when we don’t know what happened,” she said. Women are willing to lodge complaints when it comes to other issues but not sexual harassments, especially at the workplace, she added.
“There is still a stigma attached to it. Once their identity is revealed, the woman will not have any comfortable environment at her workplace. Even though she is the victim, her colleagues would continue to ill-treat her. Due to their financial dependence on the job, they would have no other go but to tolerate and stick to the job,” Nandhini Parthiban, an IT employee, said.
Recalling a similar complaint at her workplace, she said that the management had sacked the accused but still the victim had to undergo mental harassment at the workplace.

Source Credit :- Times of India 

Sexual Harassment - POSH Analysis

BRIEF ANALYSIS OF THE POSH ACT AND RULES


After 16 years of Vishaka, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 ("the Act") was enacted with the objective to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto.

The Act defines sexual harassment as unwelcome acts or behavior (whether directly or by implication) namely, physical contact and advances, a demand or request for sexual favors, making sexually colored remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Any act of unwelcome and sexual nature shall be considered as sexual harassment.

The Delhi High Court in Shanta Kumar vs CSIR held that 
"undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour… a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment." 
The Act also provides the circumstances under which an act may amount to sexual harassment. These are:
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment ; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work
environment for her; or
(v) humiliating treatment likely to affect her health or safety.
The important feature of the Act is that it envisages the setting up of Internal Complaints Committee at every office of the organisation or institution, having more than 10 employees, to hear and redress complaints pertaining to sexual harassment. Where the number of employees are less than 10, the Act provide for setting up of Local Committee in every district by the District Officer. The committee while inquiring into such complaint shall have the same power as vested in a civil court.
The Delhi High Court in its judgment in Ruchika Singh Chhabra vs M/s Air France India and Anr
"...directed that the ICC should be constituted in strict compliance with the requirements under law...". 
An aggrieved woman can file a written complaint to ICC/LC from three months from the date of the incident and in case of series of such incidents within three months from the last such incident. However, any delay in filing the complaint can be condoned by the committee upto further three months. In case of physical or mental incapability of the aggrieved woman, her legal heirs or such other person as described in Rule 6 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("the Rules") may make a complaint.

On receiving the complaint the committee, before initiating an inquiry, may take steps to settle the matter between her and the respondent through conciliation and when a settlement is arrived no further inquiry is conducted. If the conciliation fails or any term of the settlement arrived at has not been complied with by the respondent, the committee shall proceed further with the inquiry.

In case of a domestic worker, the Local Committee shall, if prima facie case exists, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of Indian Penal Code or any other relevant provisions of the said Code where applicable.
Where both the parties are employees, the principle of natural justice is followed and both the parties are heard and opportunity is given to make representations against the findings of the committee. For the purpose of making an inquiry, the committee shall have the same powers as are vested in a civil court. The committee has to complete the inquiry within a period of 90 days.The committee can give certain interim reliefs to the aggrieved woman during the pendency of the inquiry.
The committee within 10 days after completion of the inquiry shall provide the report of its findings to the employer/District Officer and the concerned parties. When the allegation against the respondent has been proved the committee shall recommend the employer/District Officer to take action for sexual harassment as misconduct in accordance with provisions of service rules or where no such rules have been made, as prescribed in Rule 9 of the Rules and to pay such sum to the aggrieved woman as it consider appropriate, in accordance with the provisions of section 15, from the salary of the respondent. The employer/District Officer shall act upon the recommendations within 60 days.
In case of filing of false or malicious complaint or false evidence the committee may recommend to the employer or District Officer to take action in accordance with the provisions of service rules or where no such service rules exist, in such manner as prescribed in Rule 10 of the Rules.
An appeal can be filed against the recommendations made by the committee before the court or tribunal, within 90 days from the recommendations, in accordance with service rules and in absence of service rules, to the Appellate Authority under Section 2 of the Industrial Employment (Standing Orders) Act, 1946. 
There is a prohibition on publication of identity of the aggrieved woman, respondent, witnesses, contents of the complaint, inquiry proceedings or recommendations of the committee, except information regarding the justice secured to any victim of sexual harassment. In contravention of Section 16 of the Act, such person shall be liable for penalty in accordance with service rules and in absence of service rules, in accordance with Rule 12.

The Act lays down certain duties of the employer and District Officer under Section 19 and 20 respectively such as creating awareness on sexual harassment at workplace, sensitize the employees, assist the complaints committee in conducting the inquiry, act upon recommendations of the committee, monitor timely submissions of reports of the committee etc.

The non compliance of the provisions of the Act by the employer may result in fine which may extend to fifty thousand rupees and can also lead to cancellation of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be.

Even though the Act is in force since 2013, the awareness regarding consequences of sexual harassment and its redressal against the same is limited. The effective implementation of POSH Act not only requires creating an environment where women can speak up about their grievances without fear and get justice but sensitization of men towards treatment of women at workplace is equally necessary.

Wednesday 25 December 2019

Sexual Harassment at Workplace in India

Sexual Harassment at Workplace



The Ministry of Women and Child Development states the number of cases of sexual harassment in the workplace registered in India increased from 54% from 371 cases in 2014 to 570 in 2017. With improved access to education and employment, many Indian women are entering the country's workforce today. Many working women face sexual harassment at the workplace on a daily basis. It is crucial therefore that as a country, we strive to eliminate work-place sexual harassment since women have the right to work in safe and secure environment. It is the responsibility of every employer to ensure the safety of women in a work environment and improve their participation. This will contribute to the realization of their right to gender equality and result in economic empowerment and inclusive growth and benefit the nation as a whole.

Sexual harassment results in violation of the fundamental rights of a woman to equality as per Articles 14 and 15 and her right to live with dignity as mentioned under Article 21 of the Constitution, the Government of India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act is an extension of the Vishaka Guidelines issued by the Supreme Court in 1997. The Supreme Court of India, for the first time in the Vishaka Guidelines, acknowledged Sexual Harassment at the workplace as a human rights violation. Further, the Act also reflects the commitment of the Government to the ratification of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) on July 09, 1993. This new legislation makes every effort to be a user friendly tool in the hands of employers and employees, to create a safe and secure workplace for all women. 

Still sexual harassment is as often as possible ignored in India, even in the age of the "MeToo" movement which saw survivors share their accounts and prompted the destruction of various open figures around the world, in governmental issues, business, media outlets, and beyond.


One must have the option to feel ready to have a sense of security and agreeable in the work environment. Badgering of any representative comprising of any unwelcome explicitly decided conduct, regardless of whether legitimately, in a roundabout way, by any male/female responsible for the administration or a male/female co-worker either separately or in relationship with different people to abuse the sexuality of co-worker to pester him/her in a way which forestalls or weakens his/her full use of full advantages, offices or openings or whatever other conduct which is commonly viewed as injurious. In connection to the working environment, a woman of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by anyone.

The organizations expects to receive zero resilience frames of mind against any sort of Sexual Harassment or segregation brought about by any representative during their residency, towards some other individual being a worker of Company, Client, Vendor and Contractor in Company premises or somewhere else in India or abroad . 
We have seen there is certain increase of cases, in an IT company which gives maximum opportunity to women workers.
SHe-Box
One of the good initiatives taken by the Ministry of Women & Child Development department is the it has launched Sexual Harassment electronic Box (SHe-Box) - http://www.shebox.nic.in/ - an effort of GoI to provide a single window access to every woman, irrespective of her work status, whether working in organised or unorganised, private or public sector, to facilitate the registration of complaint related to sexual harassment. Any woman facing sexual harassment at workplace can register their complaint through this portal. Once a complaint is submitted to the ‘SHe-Box’, it will be directly sent to the concerned authority having jurisdiction to take action into the matter.

The major challenges which we observe that even the internal complain committees that are set up both in government and private sectors do not have the teeth to act on complaints of sexual harassment. Members of such committees are not aware of the law and are afraid of taking any action against seniors. This was one of the reasons few people coming forward to lodge complaints. There is no government mechanism to make it compulsory for the staff of corporate sector to undergo any training on sexual harassment to make them aware of their rights by government officials.

The risk of viciousness and harassment in the work environment adds to a shortage of female interest in the work power in India, at impressive expense to the economy and to India's socio economic development. Without tending to both sexual harassment and violence and the issues which take into account it to multiply all through the nation, India will keep on observing its socio-economic improvement kept down – and the wellbeing and welfare of its women compromised.


Sexual Harassment at Workplace

Meghalaya - Holiday List 2020

Meghalaya Holiday Notification 2020

As per notification No.GAA.229/2019/16 the Government of Meghalaya has declared the List of General Holidays in the State of Meghalaya for the calendar year 2020

Meghalaya Holiday Notification 2020

Meghalaya Holiday Notification 2020



Tuesday 24 December 2019

Rajasthan - Pay Onetime fee S&E Registration

Rajasthan Shops And Commercial Establishment (Amendment) Rules, 2019

Government of Rajasthan vide notification No. G.S.R.43 has amended the Rajasthan Shops and Commercial Establishment Rules 1959. As per the amendment, the provision for renewal of registration certificate has been omitted and the establishment with certificate of registration issued before the commencement of the Rajasthan Shops and Commercial Establishment (Amendment) Rules, 2019 shall remain valid till the expiry date of the certificate. The validity of the certificate may be extended forever, after depositing the newly prescribed one time fees. Please refer the notification for detailed information


    • The employer of every establishment shall submit to the inspector concerned a statement as required by section 4 in form 1 for the registration for the establishment and grant of registration certificate along with proof of payment of onetime fee.
    • The certificate of registration of the establishment before the commencement of amendment rule 2019,shall remain valid till the expiry date of the certificate. The validity of the certificate may be extended forever after depositing onetime fee as per rule.
    The one time fees shall be as under:
    S. No.Maximum Number of employees employed on any day during the yearAmount of one time Fees (in Rs.)
    10-10 employees5000/-
    211 to 50 employees20000/-
    351 to 100 employees50000/-
    4101 & above employees150000/-





    ESIC Circular On Delay In Registration Of Employee

    ESIC Circular On Delay In Registration Of Employee
    Circular No:-P-11/12/Misc./SST Misuse/2019-Rev.II

    ESIC based on representations received from employers on recently introduced restriction in system for registration of employee, vide circular No:-P-11/12/Misc./SST Misuse/2019-Rev.II has approved new process for employer in the system while carrying out the online registration of an employee wherein date of appointment is more than ten days before, from the date of online registration. In this regard the ESIC portal will accept the registration of employees where difference between the date of appointment and date of registration is more than 10 days, provided that system will request to accept or reject the conditions mentioned for registration of an employee. If employer accepts the conditions insurance number will be allotted and a show cause notice shall be issued to the registered email id of the employer. The employer shall submit relevant reply/records within 15 days of issue of Show Cause Notice to the concerned RO/SRO in the prescribed proforma. If employer rejects the conditions, then the system will redirect the employer to change the date of appointment. Please refer the notification for detailed information

    Economic Survey - Shifting Gears

    Economic Survey - Shifting Gears: Private Investment as the Key Driver of Growth, Jobs, Exports and Demand


    During the last five years, India’s economy has performed well. By opening up several pathways for trickle-down, the government has ensured that the benefits of growth and macroeconomic stability reach the bottom of the pyramid. To achieve the objective of becoming a USD 5 trillion economy by 2024-25, as laid down by the Prime Minister, India needs to sustain a real GDP growth rate of 8%. International experience, especially from high-growth East Asian economies, suggests that such growth can only be sustained by a “virtuous cycle” of savings, investment and exports catalysed and supported by a favourable demographic phase. Investment, especially private investment, is the “key driver” that drives demand, creates capacity, increases labour productivity, introduces new technology, allows creative destruction, and generates jobs.
    Exports must form an integral part of the growth model because higher savings preclude domestic consumption as the driver of final demand. Similarly, job creation is driven by this virtuous cycle. While the claim is often made that investment displaces jobs, this remains true only when viewed within the silo of a specific activity. When examined across the entire value chain, capital investment fosters job creation as the production of capital goods, research & development and supply chains generate jobs.
    The Survey departs from traditional Anglo-Saxon thinking by advocating a growth model for India that views the economy as being either in a virtuous or a vicious cycle, and thus never in equilibrium. This model, in turn, stems from two key departures from the traditional view. First, the Survey departs from the concept of equilibrium as a key tenet, which is being challenged increasingly following the Global Financial Crisis. Second, the traditional view often attempts to solve job creation, demand, exports, and economic growth as separate problems. As these macro-economic phenomena exhibit significant complementarities, the Survey postulates the centrality of the triggering macro-economic variable that catalyses the economy into a virtuous cycle.
    The Survey makes the case for investment as that key driver. By presenting data as a public good, emphasizing legal reform, ensuring policy consistency, and encouraging behaviour change using principles of behavioural economics, the Survey aims to enable a self-sustaining virtuous cycle. Key ingredients include a focus on policies that nourish MSMEs to create more jobs and become more productive, reduce the cost of capital, and rationalise the risk-return trade-off for investments


    Employer is Liable to Pay Overtime not for All Employee

    Employer is Liable to Pay Overtime not for All Employee

    Bombay High Court Union Of India And Anr. vs B.D. Rathi And Ors. on 26 April, 1962

    Equivalent citations: AIR 1963 Bom 54, (1962) 64 BOMLR 676, 1962 (5) FLR 435, ILR 1962 Bom 830

    The employees applied to the Authority alleging that they worked for 51 hours a week, although according to the provisions and rules framed under the said Act they were required to work only for 48 hours during a week; thus they have worked overtime for three hours per week, and hence they were entitled to extra wages payable as per rules framed under the said Act for the overtime work done by tem during the period beginning with 1-4-1952 upto the date of the applications. It is common ground that the employees are monthly rated employees, and that they are workers in a scheduled employment.

    These applications were opposed by the Central Railway on the ground that the Authority had no jurisdiction to entertain claims prior to 1957, and that the Minimum Wages Act, 1948, was not applicable to the employees-applicants, as these employees are entitled to remuneration as per Prescribed Scale of Pay and Hours of Employment Regulations of Central Railway, from the moment they are brought on monthly rates of pay.
    It was not disputed before the Authority, nor before us, that the employees concerned are railway servants whose employment is "continuous," and their cases fall under Rule 5 of 'Railway Servants (Hours of Employment) Rules 1951.' The point that was urged before the Authority was that the rules framed under Section 71E of the Indian Railways Act provide for the remuneration, i.e., wages, payable to employees, including wages for overtime work, the employees concerned are governed by these rules, and hence the provisions of the Minimum Wages Act, 1948, and rules framed thereunder do not apply to the cases of these employees.

    The Authority over-ruled this contention

     It was also urged before the Authority that in view of Rule 32 of the Minimum Wages (Central) Rules, 1950, the provisions of the Minimum Wages Act did not apply.

    This contention also was over-ruled.

    In view of these conclusions, the Authority held that the employees-applicants were entitled to the benefits conferred on them by the Minimum Wages Act, and were entitled to claim wages for overtime work as provided by the said Act, and rules framed thereunder. It is against this decision that these Special Civil Applications are preferred to this Court under Article 227 of the Constitution.
    Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces.
    The main question for consideration is: what is the liability of the employer, in view of the provisions of the Minimum Wages Act, 1948 ?

    Section 2(h) defines "wages" and that definition indicates that the expression "wages" includes all remuneration capable of being expressed in terms of money payable to an employee, but it excludes certain items mentioned in the said definition. This definition makes it clear that the expression "wages," as used in the said Act includes not only the basic wages, but also other types of remuneration included in that definition. Section 3 casts a duty on the appropriate Government to fix the minimum rates of wages. Section 3 Sub-section (2) reads thus:
    "The appropriate Government may fix,
    (a) a minimum rate of wages for time work (hereinafter referred to as "a minimum time rate");
    (b) a minimum rate of wages for piece work (hereinafter referred to as "a minimum piece rate");
    (c) a minimum rate of remuneration to apply in the case of employees employed on piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis (hereinafter referred to as "a guaranteed time rate");
    (d) a minimum rate (whether a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable, in respect of overtime work done by employees (hereinafter referred to as "overtime rate")"

    Section 3 Sub-section (2) thus makes it clear that the expression "wages" consists of component parts, one of which is 'overtime rate.' Section 3 Sub-section (3) makes it clear that the fixation of minimum rates of wages would be in relation to the factors mentioned in that sub-section, such as different scheduled employments, different classes of work in the same scheduled employment, adults, adolescents, children and apprentices, and different localities; so also the fixation of minimum rates of wages would be with reference to the period of work, viz. by the hour, by the day, by the month, or by such other larger wage period as may be prescribed by rules under the said Act Section 4 provides inter alia that the minimum rate of wages fixed or revised by the appropriate Government shall consist of not only the basic rate of wages with or without the cost of living allowance, but also of the cash value of the concessions in respect of supplies of essential commodities at a concession rate where so authorised. Thus the cost of living allowance and the cash value of the said concessions are to be computed while fixing of revising the minimum wages.
    Section 5 lays down the procedure for fixing and revising minimum wages. Sections 7 to 9 provide for Advisory Board, Central Advisory Board, composition Committees, etc. to help and advise the committees mentioned in Section 5 and the appropriate Government in fixing and revising minimum wages. Section 11 lays down that minimum wages shall be payable in cash unless otherwise provided for. Section 12, which is material for the determination of the question arising in these applications, lays down the liability of an employer. Relevant portion of that section reads thus:

    "12. Payment of minimum rates of wages. (1) where in respect of any scheduled employment a notification under Section 5 is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages, at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deduction except as may be authorised within such time and subject to such conditions as may be prescribed."
    "14. Over-time - (1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage-period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher."

    It is clear that from the wording of Section 14 that section imposes liability on the employer to pay the employees wages for the overtime work done by them at the rate fixed under the provisions of the said Act or under any law of the appropriate Government for the time being in force, whichever is higher.
    This section makes it clear that the employees doing overtime work are entitled to get wages for the overtime work either at the rate fixed under the provision and rules of the said Act, or under any other law of the appropriate Government, if such wages fixed by the latter law are higher than those fixed by the former one.

    Section 22 lays down penalties for breach of some of the provisions of the said Act by employers. For example, if an employer pays less than the minimum rates of wages fixed according to the provisions of the said Act, he will be liable to punishment; so also if he contravenes any rule or order under Section 13, he will be liable to punishment as provided by Section 22. Section 22A provides for punishment for contravention of those provisions of the said Act, which are not covered by Section 22. Section 25 reads thus:

    "25. Contracting out.- Any contract agreement, whether made before or after the commencement of this Act, whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under this Act."

    It is clear that Section 25 is intended to secure for scheduled employees minimum wages as prescribed by the said Act, and hence may contract by which an employee agrees to relinquish or reduce his right to get minimum rate of wages is declared void. These are the provisions of the Minimum Wages Act, 1948, with which we are concerned.

    Karnataka - Standing Order Exempted for a Period of Five Years

    Exemption For Certain Establishments From Application Of Industrial Employment Standing Order Act, 1946 In Karnataka


    Government of Karnataka vide notification bearing no LD 194 LET 2016 has further exempted IT/ITES/Startups/Animation/ Gaming/ Computer Graphics/ Telecom/BPO/KPO/other knowledge based Industries for a period of another five years from the applicability of Industrial Employment (Standing Order) Act, 1946.

    This in continuation to the earlier notification dated on 25th January 2014, vide notification no LD 53 LET 2013 released towards exempting IT/ITES/Startups/Animation/ Gaming/ Computer Graphics/ Telecom/BPO/KPO/other knowledge-based Industries for a period of five years from the applicability of Industrial Employment (Standing Order) Act, 1946. However the said exemption from the applicability of Industrial Employment (Standing Order) Act, 1946 are subject to the conditions as mentioned
    a) Each IT/ITES/Startups/Animation/ Gaming/ Computer Graphics/ Telecom/BPO/KPO/other knowledge-based Industries shall constitute Internal Committee as per Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013,
    b)Each IT/ITES/Startups/Animation/ Gaming/ Computer Graphics/ Telecom/BPO/KPO/other knowledge-based Industries shall constitute a grievance Redressal Committee (GRC) comprising of equal number of persons representing employer and employee to address complaint/grievances of any employee. The GRC shall be provided with all powers to handle all types of complaint/ grievances of employee within reasonable time,
    c) Each IT/ITES/Startups/Animation/ Gaming/ Computer Graphics/ Telecom/BPO/KPO/other knowledge-based Industries shall intimate information about the cases of disciplinary action like suspension, discharge, termination, demotion, dismissal of its employee to the Jurisdictional Deputy Labour Commissioner and Commissioner of Labour in Karnataka,
    d)Information regarding service condition of employees of IT/ITES/Startups/Animation/ Gaming/ Computer Graphics/ Telecom/BPO/KPO/other knowledge-based Industries, as required by the jurisdictional Deputy Labour Commissioner and Commissioner of Labour In Karnataka shall be promptly and fully submitted by every employer within the reasonable timeline fixed by the authority.

    Andhra Pradesh - ESIC exemption to Re-drying of Unmanufactured Leaf Tobacco

    Exemption For Certain Establishment Or Factories From The Applicability Of Employees State Insurance Act


    Government of Andhra Pradesh vide notification no G.430 has exempted Factories / Establishments in Andhra Pradesh State engaged in the seasonal processing and re-drying of unmanufactured leaf tobacco or processes incidental and connected there with; from the operation of the Employees State Insurance Act, 1948 till 02.07.2020 with effect from 12th December, 2019 subject to usual terms and conditions.


    Chhattisgarh - S&E Renewal of Registration Certificate - Omitted

    Chhattisgarh - S&E Renewal of Registration Certificate - Omitted

    Government of Chhattisgarh vide notification No. F 10-5/2019/16 has amended the Chhattisgarh Shops and Commercial Establishment Rules 1959. As per the amendment, the provision for renewal of registration certificate has been omitted and the registration Certificate granted shall remain valid till the date of closure as notified by the employer. It is further provided that all the employers who have obtained registration before 25th June 2014 shall compulsorily obtain registration after the amendment of these rules and the same shall be issued on payment of the newly below mentioned prescribed fees

    Fee specified below as per class of establishment.
    S. No.Class of EstablishmentRegistration/Renewal fee in rupees
    1All establishments having no employees.Rs. One hundred
    2All establishments employing not more than 03 employees.Rs. One hundred fifty
    3All establishments employing not more than 03 employees but less than 10 employees.Rs. Two hundred
    4All establishments employing 10 or more than 10 employees.Rs. Two hundred fifty