Q: Whether Bonus is payable on back-wages?
A: On this issue the High Courts differed in their opinion. As per the decision of the Madras High Court the case of Bonus is based on the principles of Labour and Management jointly contributing to the earning of profit. But when the workers had not been actually in service and hav made no contribution to profit, the employees will not be entitled to Bonus.
Rangarathinam Pillai v. Lab our Court, Coimb atore, 1969 II LLJ 41 (Mad.).
BONUS: IF PAYABLE TO APPRENTICE, PROBATIONERS, PART TIME , EMPLOYEE OR ON COMMISSION:
Our Company has Apprentices, Probationers, Part Time Employees. Some of the employees in addition to their salaries are paid commission.
Q: Whether bonus is payable to Apprentices, Probationers, Part Time Employees and on Commission paid to employees?
A: The definition of Employee u/s. 2(13) of the Payment of Bonus Act, 1965 only excludes from the scope of the term "employee" an apprentice. Therefore~apprentice shall not be eligible for bonus but probationer and part time employee shall be eligible for bonus under the Payment of Bonus Act, 1965.
Secretary Bank of Madura Ltd. v. General Secretary, Bank of Madura Employees Anion, Coimbatore & Anr. 1970 II LLJ 91 (Mad.H. C.).
The definition of salary or wage under Section 2(21) of the Payment of Bonus Act, 1965 does not include any commission payable to the employee as part of his salary or wage for the purpose of Bonus under the Payment of Bonus Act, 1965, therefore Bonus is not payable on commission.
All India Voltas and Volkart Employees' Federation, Bombay v. Mis. Voltas Ltd. & Anr. 1972 I LLJ 326 (Bom.H.C.).
BONUS: SALESMAN IF ENTITLED TO:
Our Company is engaged in the manufacturing of detergents. It has a sales network throughout the country. The company is employing large number of salesmen, whose main job is canvass for the Company's products. This is the 2nd year of Company's manufacturing activities. The Company made profits last year and therefore it paid bonus to its employees at the factory. On being advised that the salesmen are not entitled to bonus no bonus was paid to salesman. The salesman have now raised the demand of bonus.
Q: Whether salesman are entitled to Bonus under Payment of Bonus Act, 1965?
A.: Under the Payment of Bonus Act, 1965 only those persons who are employee within the meaning of S. 2(13) of the Payment of Bonus Act are entitled to Bonus under the Act. Salesman do not fall under any of the categories enumerated u/s. 2(13) of the Act and therefore as per the: decision of Bombay High Court in the case of Voltas Ltd. Salesman are not entitled to Bonus.
All India Voltas & Volkart Employees' Federation v. Voltas Ltd. 1972 I LLJ 326 (Bom.H.C.).
PRODUCTION BONUS - IF CAN BE CLAIMED BY SALES STAFF:
The workers of our company who are employed in the factory are represented by a Union which is in existence for the last 15 years. There is an elaborate Bonus Scheme under which the workers engaged in production are entitled to Production Bonus as per the terms of the Scheme which in turn is a part of the Settlement signed with the Union. In the factory there also exists a sales office and since Production Bonus has always been paid to the workers engaged in production, the staff members of the sales department were never paid Production Bonus. The staff members who are members of another Union this time have put up a demand for Production Bonus. The management resisted their claim mainly on the ground that they being not engaged in production, how can they demand Production Bonus which is meant exclusively for the workers engaged in production.
Friday, March 26, 2010
Chapter: 8.2.1 Quations of The Payment of Bonus Act
Bonus to Contract Labour - Who is to Pay?
A Public Limited Company has engaged a Garden Contractor. The Garden Contractor has engaged Thirty Five employees to maintain the Garden of the Company and two employees to maintain its Garden at the Rest House. The contract between the Company and Garden Contractor stipulates the rates of wages to be paid to the employees as well as their number. The contract also provides that the contractor is to pay the wages to the employees as mentioned in the contract. The contractor was to be paid only service charges at the rate of Rs. 2,000/- per month. Accordingly the Contractor was raising the bill of actual wages paid to the employees + Rs. 2,000/- as his service charges. The company was making the payment to the Contractor on this basis. The Company was also making all payments to the Contractor in respect of the other expenses incurred for maintaining the Gardens on the actual. The workmen of the Contractor demanded bonus from the Contractor on the plea that the contractor should pay the bonus to the employee like wages and should recover the same from the Company by billing the Company. The Contractor approached the management of the Company but the management refused to entertain the request of the Contractor. Being aggrieved, the employees raised the dispute. The Industrial Tribunal rejected the demand of the workmen in respect of Bonus against the Management of the Company. The matter went to High Court and the High Cart ; miffing the writ petition.
Q: Who is to pay Bonus to Contract Labour?
A: The nature of Contract has a direct bearing on this question. If the Contract is of a kind where the contractor undertakes to do certain work for a certain sum, in that case the
Contractor will be responsible for payment of bonus. But in your case in fact it is the company which is paying the wages through the Contractor at a fixed rate and the Contractor is paid only nominal service charges therefore it becomes inconceivable to expect the contractor to pay bonus to the contract employees. Assistance can be taken from the Obiter of Hochtief Gamon, case.
M/s. Hochtief Gamon v. State of Orissa, AIR 1975 (SC) 2226.
Bonus: Contract Employee if Can Demand
From Principal Employer
In our factory. there are about 300 workers. The Company has also engaged a canteen contractor who is employing about 25 workmen. The canteen workers employed by the contractor, through their union have raised demand of Bonus on the Company.
Q: Can contract employee legally demand Bonus from the principal employer?
A: The principal employer's liability to pay the wages to the workmen engaged in the canteen on contractors failure to pay the wages is recognized in Sec. 21(4) of the Contract Labour Regulation & Abolition Act, 1970. The wages due to the contract workmen does not include Bonus and Gratuity. This is made clear by the definition of wages in the Industrial Disputes Act and Payment of Wages Act. Therefore, the principal employer is not liable to pay Bonus to the contract workmen.
Cominco Binani Zinc Ltd. v. Pappachan, 1989
ICLR 151 = 1989 I LLJ 452 (Ker. H. C.)
Bonus - If Payable n Bakwages
By an Award the Industrial Tribunal granted reinstatement with back-wages to seven employees of our Company. The Industrial Tribunal also granted the employees 50% back wages. The amount of back wages was calculated and the calculations were shown to the employees concerned. However, there occurred a dispute in respect of the calculations of back wages as well as on the point of Bonus on back wages. The first one is resolved through mutual discussions. But the Bonus issue is again taken to the Court.
The Payment of Bonus Act, 1965
A Public Limited Company has engaged a Garden Contractor. The Garden Contractor has engaged Thirty Five employees to maintain the Garden of the Company and two employees to maintain its Garden at the Rest House. The contract between the Company and Garden Contractor stipulates the rates of wages to be paid to the employees as well as their number. The contract also provides that the contractor is to pay the wages to the employees as mentioned in the contract. The contractor was to be paid only service charges at the rate of Rs. 2,000/- per month. Accordingly the Contractor was raising the bill of actual wages paid to the employees + Rs. 2,000/- as his service charges. The company was making the payment to the Contractor on this basis. The Company was also making all payments to the Contractor in respect of the other expenses incurred for maintaining the Gardens on the actual. The workmen of the Contractor demanded bonus from the Contractor on the plea that the contractor should pay the bonus to the employee like wages and should recover the same from the Company by billing the Company. The Contractor approached the management of the Company but the management refused to entertain the request of the Contractor. Being aggrieved, the employees raised the dispute. The Industrial Tribunal rejected the demand of the workmen in respect of Bonus against the Management of the Company. The matter went to High Court and the High Cart ; miffing the writ petition.
Q: Who is to pay Bonus to Contract Labour?
A: The nature of Contract has a direct bearing on this question. If the Contract is of a kind where the contractor undertakes to do certain work for a certain sum, in that case the
Contractor will be responsible for payment of bonus. But in your case in fact it is the company which is paying the wages through the Contractor at a fixed rate and the Contractor is paid only nominal service charges therefore it becomes inconceivable to expect the contractor to pay bonus to the contract employees. Assistance can be taken from the Obiter of Hochtief Gamon, case.
M/s. Hochtief Gamon v. State of Orissa, AIR 1975 (SC) 2226.
Bonus: Contract Employee if Can Demand
From Principal Employer
In our factory. there are about 300 workers. The Company has also engaged a canteen contractor who is employing about 25 workmen. The canteen workers employed by the contractor, through their union have raised demand of Bonus on the Company.
Q: Can contract employee legally demand Bonus from the principal employer?
A: The principal employer's liability to pay the wages to the workmen engaged in the canteen on contractors failure to pay the wages is recognized in Sec. 21(4) of the Contract Labour Regulation & Abolition Act, 1970. The wages due to the contract workmen does not include Bonus and Gratuity. This is made clear by the definition of wages in the Industrial Disputes Act and Payment of Wages Act. Therefore, the principal employer is not liable to pay Bonus to the contract workmen.
Cominco Binani Zinc Ltd. v. Pappachan, 1989
ICLR 151 = 1989 I LLJ 452 (Ker. H. C.)
Bonus - If Payable n Bakwages
By an Award the Industrial Tribunal granted reinstatement with back-wages to seven employees of our Company. The Industrial Tribunal also granted the employees 50% back wages. The amount of back wages was calculated and the calculations were shown to the employees concerned. However, there occurred a dispute in respect of the calculations of back wages as well as on the point of Bonus on back wages. The first one is resolved through mutual discussions. But the Bonus issue is again taken to the Court.
The Payment of Bonus Act, 1965
Chapter: 8 The Payment of Bonus Act 1965
The Payment of Bonus Act 1965
Introduction
This is a central Act. The Act applies to every factory or every other establishment employing 20 or more persons employed on any day during an accounting year. However the Government is empowered to make it applicable to any establishment/ Factory employing less than twenty but more than ten persons.
The Government of Maharashtra has made it applicable to factories and other establishment employing ten or more but less than twenty persons, with effect from the accounting year 1983. The Notification is dated 11-04-1984.
Eligibility
At present every employee drawing a salary / wages up to Rs. 3,500/- per month and who has worked for minimum 30 days in a year is entitled to receive Bonus, The employee in respect of salary/wages more than Rs. 2,500/- per month but less than Rs. 3,500/- is entitled for bonus on the amount of Rs 2,500/- only. The rate of minimum bonus to be paid is 8.33% of the salary/wages or Rs. 100/- which ever is higher and the rate of maximum bonus payable in the year is 20% of the salary or wage. The principle behind fixing these limits is that rates should not widely fluctuate from year to year.
(Jalan Trading Company V/s Mazdoor Sabha, 1966 II (L) L.J. 546 (Supreme Court))
• Sec. 32 of the Act exclusive certain classes of employees
1) Employees employed by the Life Insurance Corporation of India.
2) Seamen as defined in clause 42 of Section 3 of the Merchant Shipping Act 1958.
3) Employees registered or listed under any Scheme made under the Dock workers (Regulation of Employments Act, 1948.
4) Employees employed by an establishment engaged in any industr carried on by or under the Authority of any department of the Central Government or State Government or Local Body.
5) (a) Employees employed by the Indian Red Cross Society or any institution of the like nature.
(b) Universities and Educational Institutions.
(c) Institutions including Hospitals, Chambers of Commerce and Social Welfare Institutions establishments not for the purpose of profit.
6) Employees employed through contractors on building operations.
7) Employees of the Reserve Bank of India.
8) Employees employed by Industrial Financial Corporation of India, Financial Corporations and State Financial Corporation, Deposit Insurance Corporation, National Bank for Agricultural and Rural Development, Unit Trust of India, Industrial Development Bank of India, Small Industries Development Bank of India, National Housing Bank and other Financial Institutions
Case Law
Canteen Stores Department is rendering exclusive service to Defence personnel. It is an establishment engaged in an Industry carried on by or under Authority of Central Government namely, Ministry of Defence. Hence, Section 32(4) is applicable and employees of the Establishment are not entitled to benefit of the Act.
The Act exempts the Local Authority from paying bonus to its employees. The submission was that the classification of employees of Local Authority and other employees is hit by Article 14 of the Constitution. Rejecting the connection, it is held that the classification has a nexus with the object which the Act intends to achieve namely not to burden such establishments which run in the public interest with an additional liability by way of payment of bonus.
Introduction
This is a central Act. The Act applies to every factory or every other establishment employing 20 or more persons employed on any day during an accounting year. However the Government is empowered to make it applicable to any establishment/ Factory employing less than twenty but more than ten persons.
The Government of Maharashtra has made it applicable to factories and other establishment employing ten or more but less than twenty persons, with effect from the accounting year 1983. The Notification is dated 11-04-1984.
Eligibility
At present every employee drawing a salary / wages up to Rs. 3,500/- per month and who has worked for minimum 30 days in a year is entitled to receive Bonus, The employee in respect of salary/wages more than Rs. 2,500/- per month but less than Rs. 3,500/- is entitled for bonus on the amount of Rs 2,500/- only. The rate of minimum bonus to be paid is 8.33% of the salary/wages or Rs. 100/- which ever is higher and the rate of maximum bonus payable in the year is 20% of the salary or wage. The principle behind fixing these limits is that rates should not widely fluctuate from year to year.
(Jalan Trading Company V/s Mazdoor Sabha, 1966 II (L) L.J. 546 (Supreme Court))
• Sec. 32 of the Act exclusive certain classes of employees
1) Employees employed by the Life Insurance Corporation of India.
2) Seamen as defined in clause 42 of Section 3 of the Merchant Shipping Act 1958.
3) Employees registered or listed under any Scheme made under the Dock workers (Regulation of Employments Act, 1948.
4) Employees employed by an establishment engaged in any industr carried on by or under the Authority of any department of the Central Government or State Government or Local Body.
5) (a) Employees employed by the Indian Red Cross Society or any institution of the like nature.
(b) Universities and Educational Institutions.
(c) Institutions including Hospitals, Chambers of Commerce and Social Welfare Institutions establishments not for the purpose of profit.
6) Employees employed through contractors on building operations.
7) Employees of the Reserve Bank of India.
8) Employees employed by Industrial Financial Corporation of India, Financial Corporations and State Financial Corporation, Deposit Insurance Corporation, National Bank for Agricultural and Rural Development, Unit Trust of India, Industrial Development Bank of India, Small Industries Development Bank of India, National Housing Bank and other Financial Institutions
Case Law
Canteen Stores Department is rendering exclusive service to Defence personnel. It is an establishment engaged in an Industry carried on by or under Authority of Central Government namely, Ministry of Defence. Hence, Section 32(4) is applicable and employees of the Establishment are not entitled to benefit of the Act.
The Act exempts the Local Authority from paying bonus to its employees. The submission was that the classification of employees of Local Authority and other employees is hit by Article 14 of the Constitution. Rejecting the connection, it is held that the classification has a nexus with the object which the Act intends to achieve namely not to burden such establishments which run in the public interest with an additional liability by way of payment of bonus.
Chapter: 7.1.2 The Modes in the Employees Provident Fund and Miscellaneous Provisions Act
Sec. 16 Act not to apply to certain establishments - This act shall not apply
a) to any establishment registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any state relating to co-operative societies, employing less than fifty persons and working without the aid of power; or
b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributed provident fund or old age pension in accordance with any scheme or rule framed by the Central Government t or the State Government governing such benefits; or
c) To any other establishment setup under any Central provincial or State; act and whose employees are entitled to the benefits of contributory, provident fund or old age pension in accordance with any scheme or rule framed under that act governing such benefits.
On an application made by the employer and the majority of the employees in relation to an establishment employing more than 100 employees may authorize the employer by an order in writing to maintain a provident fund, in relation to the establishment. Provided that no authorization shall be made if the establishment has made a default or has committed an offence during the period of three years after the authorization.
Where the establishment is authorized to maintain a provident fund account the employer shall maintain such account submit such return deposit the contribution in such manner for the facilities of inspection and pay the charges and abide by such other terms and conditions as may be specified in the scheme.
The Government may by a notification in the Gazette exempt certain establishments from the purview of the Act.
The employer shall establish a Board of trustees for the administration of the provident fund consisting of such number of members as may be specified, t maintain detailed accounts, to show the contributions credited, withdrawals made and interest accrued in respect of each person and to invest the fund monies in accordance with the directions issued by the central government and to transfer where the provident fund account of any employee and perform such other duties as may be specified in the scheme.
Further the government may exempt the establishment or class of establishment from the operation of the pension scheme.
Where an employee employed in an establishment to which this act applies leaves his employment and obtains re-employment in another establishment to which this act does not apply, the amount of accumulations to the credit of such employee in the fund or as the case may be, shall be transferred within such time as may be to the credit of his account in the provident fund of the establishment in which he is reemployed and provided the employee permits the said transfer.
Where an employer in relation to an establishment transfers that establishment in whole or in part by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under the act.
a) to any establishment registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any state relating to co-operative societies, employing less than fifty persons and working without the aid of power; or
b) to any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributed provident fund or old age pension in accordance with any scheme or rule framed by the Central Government t or the State Government governing such benefits; or
c) To any other establishment setup under any Central provincial or State; act and whose employees are entitled to the benefits of contributory, provident fund or old age pension in accordance with any scheme or rule framed under that act governing such benefits.
On an application made by the employer and the majority of the employees in relation to an establishment employing more than 100 employees may authorize the employer by an order in writing to maintain a provident fund, in relation to the establishment. Provided that no authorization shall be made if the establishment has made a default or has committed an offence during the period of three years after the authorization.
Where the establishment is authorized to maintain a provident fund account the employer shall maintain such account submit such return deposit the contribution in such manner for the facilities of inspection and pay the charges and abide by such other terms and conditions as may be specified in the scheme.
The Government may by a notification in the Gazette exempt certain establishments from the purview of the Act.
The employer shall establish a Board of trustees for the administration of the provident fund consisting of such number of members as may be specified, t maintain detailed accounts, to show the contributions credited, withdrawals made and interest accrued in respect of each person and to invest the fund monies in accordance with the directions issued by the central government and to transfer where the provident fund account of any employee and perform such other duties as may be specified in the scheme.
Further the government may exempt the establishment or class of establishment from the operation of the pension scheme.
Where an employee employed in an establishment to which this act applies leaves his employment and obtains re-employment in another establishment to which this act does not apply, the amount of accumulations to the credit of such employee in the fund or as the case may be, shall be transferred within such time as may be to the credit of his account in the provident fund of the establishment in which he is reemployed and provided the employee permits the said transfer.
Where an employer in relation to an establishment transfers that establishment in whole or in part by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under the act.
Chapter: 7.1 The Modes in the Employees Provident Fund and Miscellaneous Provisions Act
• The Modes are
1. attachment and sale of the immovable as well as movable property of the establishment
2. arrest of the employer and detention in prison.
3. appointment of a receiver for the immovable and movable properties of the employer.
The authorized officer may forward the said certificate to the Recovery officer within whose jurisdiction the employer carries on the business or profession or resides or any of the movable or immovable properties are situated.
Where the establishment or the employer has property within the jurisdiction of more than one recovery officer and the recovery officer to whom the certificate is sent is not able to recover the entire amount by sale of the property or is in the opinion for the purpose of expediating the recovery of the whole or any part of the amount, it is necessary for him to send the certificate. If only a part of the amount is to be recovered, a copy of the certificate certified in the prescribed manner and specifying the amount to be recovered is sent to the recovery officer within whose jurisdiction the establishment or property resides.
Under section 11 of the Act where the employer is adjudicated insolvent or being a company an order for winding up is made the amount due from the employer in relation to which any scheme applies in respect of any contribution payable under the fund damages recoverable under section 14 B accumulations required to be transferred or charges payable by him under any other provision of this act or from the exempted establishment in respect of the contributions shall when the liability arises before the order of adjudication is made, be deemed to be included in the debts.
No employer can reduce the wages either directly or indirectly to which the scheme of the fund is applicable.
The appropriate government shall appoint by notification, inspectors for the purpose of this act or scheme. The inspector appointed will inquire into the correctness of the information furnished by the employer and whether the provisions of the act have been complied with.
Further in case of an exempted establishment the employer may require to furnish the information as may be necessary.
At any reasonable time, he may ask the employer to furnish the accounts books, registers and other documents relating to the employment of the persons.
He may examine the said records for the purpose of coverage of the establishment and make copies of the said extracts and documents maintained by the establishment and if he deems fit may seize the said documents to consider the relevancy of the offence and to exercise the powers under the scheme.
Any employer failing to make payment of contributions or makes a false statement or false representation shall be punished with imprisonment for a term of 1 year or with a fine of Rs. 5000/- or both.
Any employer who makes a default of payment of administrative charges shall be fined with Rs. 10,000/- and imprisonment of a year or both.
Where an offence has been committed under the act by a company or is attributable to any neglect on the part of any director or manager or any other officer, shall be deemed to be guilty of that offence and shall be liable to be produced against and punished accordingly.
Every employee who is the subscriber to any provident fund to which the act applies, shall continue to be entitled to the benefits accrued to him under the act.
1. attachment and sale of the immovable as well as movable property of the establishment
2. arrest of the employer and detention in prison.
3. appointment of a receiver for the immovable and movable properties of the employer.
The authorized officer may forward the said certificate to the Recovery officer within whose jurisdiction the employer carries on the business or profession or resides or any of the movable or immovable properties are situated.
Where the establishment or the employer has property within the jurisdiction of more than one recovery officer and the recovery officer to whom the certificate is sent is not able to recover the entire amount by sale of the property or is in the opinion for the purpose of expediating the recovery of the whole or any part of the amount, it is necessary for him to send the certificate. If only a part of the amount is to be recovered, a copy of the certificate certified in the prescribed manner and specifying the amount to be recovered is sent to the recovery officer within whose jurisdiction the establishment or property resides.
Under section 11 of the Act where the employer is adjudicated insolvent or being a company an order for winding up is made the amount due from the employer in relation to which any scheme applies in respect of any contribution payable under the fund damages recoverable under section 14 B accumulations required to be transferred or charges payable by him under any other provision of this act or from the exempted establishment in respect of the contributions shall when the liability arises before the order of adjudication is made, be deemed to be included in the debts.
No employer can reduce the wages either directly or indirectly to which the scheme of the fund is applicable.
The appropriate government shall appoint by notification, inspectors for the purpose of this act or scheme. The inspector appointed will inquire into the correctness of the information furnished by the employer and whether the provisions of the act have been complied with.
Further in case of an exempted establishment the employer may require to furnish the information as may be necessary.
At any reasonable time, he may ask the employer to furnish the accounts books, registers and other documents relating to the employment of the persons.
He may examine the said records for the purpose of coverage of the establishment and make copies of the said extracts and documents maintained by the establishment and if he deems fit may seize the said documents to consider the relevancy of the offence and to exercise the powers under the scheme.
Any employer failing to make payment of contributions or makes a false statement or false representation shall be punished with imprisonment for a term of 1 year or with a fine of Rs. 5000/- or both.
Any employer who makes a default of payment of administrative charges shall be fined with Rs. 10,000/- and imprisonment of a year or both.
Where an offence has been committed under the act by a company or is attributable to any neglect on the part of any director or manager or any other officer, shall be deemed to be guilty of that offence and shall be liable to be produced against and punished accordingly.
Every employee who is the subscriber to any provident fund to which the act applies, shall continue to be entitled to the benefits accrued to him under the act.
Chapter: 7 Employees Provident Fund any Miscellaneous Provisions Act, 1952
Employees Provident Fund any Miscellaneous Provisions Act, 1952
This is an Act to provide for the institution of Provident Funds (Pension Fund) and Deposit Linked Insurance Fund for employees in factories and other establishments.
The provisions are applicable to every establishment engaging 20 or more persons, the Act shall continue to govern any establishment though the number of persons may fall from 20.
This Act is a beneficient measure enacted for the purpose of institution of Provident Fund for employees, the provisions has e been made for the better future for the industrial workers, on their retirement and for the benefit of their dependents in case of death while in employment.
The Act is a beneficient piece of social welfare legislation aimed at promoting and securing the well being of the employees and the Court will not adopt a narrow interpretation which will have the effect of defeating the every object and purpose of the Act -1986 LIC 103 (S.C.)
Since the Act does not make any distinction between savages and salary it applies not merely to wage earners but also to salaried serf ants - AIR 1964 S.C. 980. Basic wages under this Act means all emoluments which are earned by an employee while on duty or in accordance w ith the terms of the contract of employment and which are paid or payable in case to him but does not include - cash value of food concession, any dearness allowance, HRA, OT. Bonus commission or any similar allowance payable to the employee or any if presents given by employer.
This definition of employee is completely different from that of a worker under the I.D. Act or Factories Act. The definition of employee brings in contract labour within the scope - AIR 1965 AP 200.
However, casual labour engaged by or through a contractor falls outside the scope of the definition - Nezeena Traders Ltd. V/s RPFC 1966 I LLJ 334.
The Act shall apply to all establishments consisting of different departments or its branches whether they are in the same place or different places unless this establishment has applied for exemption under section of the Act.
The employer shall pay contribution to the fund 81/3 of the Basic Wages, (D.A. and R.A.) and the employees contribution shall be equal to the contribution of the employer.
R.A. i.e. Retaining Allowance means an allowance payable for the time being to an employee of any factory or establishment during any period in which the establishment is not working for retaining his services.
Under Section 6 - A of the Act, the Central Government by its notification has framed a scheme called the Employees Pension Scheme for the purpose of providing superannuation pension, retiring pension or permanent total disablement pension to the employees of the establishment or class of establishments and widow or widowers pension, children pension or orphan pension payable to the beneficiaries. Under the Pension Scheme, the sums of employers' contribution not exceeding 81/3% of basic wages, D.A. and R.A., sums payable by the employers of exempted establishments, net assets of Employees Family Pensions Fund, any other sums after due appropriation of Parliament.
On the establishment of Pension Fund, the Family Pension Scheme shall cease to operate and all the assets of the ceased scheme shall be transferred to the Pension Fund.
Furthermore, the Act provides for Employees Deposit Linked Insurance Scheme for the purpose of Providing Life Insurance benefits to the employers. soon as this scheme is framed, the employer shall from time to time pay in respect of every employee an amount not being more than 1% of the aggregate of the basic wages, D.A. and R.A.
The Central Provident Fund Commissioner, or Additional Central Provident Fund Commissioner or Deputy Provident Fund Commissioner, or Regional Provident Fund Commissioner may by its order in case of whether the Act is applicable to any establishment decide this dispute and determine the amount due from any employer under the provisions of the Act, Scheme, Pension Scheme or Insurance Scheme.
The Officer conducting this enquiry may have the powers or the powers vested in the Court under the Code of Civil Procedure 1908 in respect of trying the suit namely, enforcing the attendance of any person or examining him on oath, requiring the discovery and production of documents, receiving evidence on affidavits, issuing commission for the examination of witnesses. The Commissioner should not necessarily pass any orders unless a reasonable opportunity is given to the employer to represent his case. Where the employer, employee or any other person is required to attend the inquiry fails to attend the enquiry without valid reasons or fails to produce documents or file any report or return in order to determine the amount due from the employer and where the order has been passed against an employee exparte he can within a period of 3 months from the date of communication apply to the office to set aside the said order provided, he is satisfied that there was sufficient cause for non appearance of the employer and that the show cause notice was not duly served on time;
1) Glamour V/s RPFC 1975 LIC 954
2) The News Paper Publishing Pvt. Ltd. V/s RPFC 1972 LIC 1392
3) Swamy V/s RPFC 1987 (I) LLN 94
4) Royal Talkies V/s ESIC AIR 1978 S.C. 1478
An employer aggrieved by an Order made under Sub-section 1 of Sec. 7A but where no appeal has been preferred and there is a discovery of new and important matter or evidence and which was not within the knowledge or could not be produced at that time when order was made and there is an apparent error on the fact of the record, the order can be reviewed, by the officer on his own mention and may grant the review by giving previous notice to all the parties to appear and be heard to support the order. The Commissioner is liable to reopen a matter within a period of 5 years from the date of communication of the order to re-determine the amount due from the employer if he has reasons to believe that by any reason there has been failure or omission on the part of the employer to make any document or report available or to disclose fully and truly all material facts necessary for determination of the dispute. No order for redetermining shall be passed unless the employer is given reasonable opportunity to represent his case. An employer is liable to pay simple interest at the rate of 12% p.a. or any amount due under this Act.
Under Sec. 7B of the Act any person aggrieved by the order passed under sec. 7A by the Regional Provident Fund Commissioner in which no appeal has been made can on the discovery of new evidence or facts which were not within his knowledge at the time of passing the order and on account of which the mistake was made can make a order for review before the same Commissioner who had passed the order.
Provided that the officer who has passed that order find the said application in order and if he comes to the conclusion that there is no sufficient ground for review he may reject the said application.
Where the officer comes to the conclusion that the said order needs to be reviewed then the said application should be heard by giving the parties an opportunity of being heard. Further proof of the said new evidence of having been discovered should be produced before the commissioner. This order has no appeal.
Where an order determining the amount due from the employer under section 7A or 7B has been passed, and the officer who has passed the said order has reason to believe that by reason of the omission or failure on the part of the employer to make any document or report available or to disclose fully or truly all materials facts necessary for determining the correct amount for any period has escaped his notice or, has in consequence of information in his possession reason to believe that any amount to be determined under section 7A or 7B has escaped from his determination for any period, he may within a period of years from the date of communication of the order may re-open the said case for the redetermination of the amount. The employer must be given an opportunity of being heard.
Under Sec. 7 (O) of the Act no appeal shall be entertained unless the employer has deposited an amount of 75% of the amount of claim determined by the officer under Sec. 7A of the Act.
If the employer fails to pay the amount determined by the officer then he is liable to pay 12% interest on the amount per annum till the actual payment is made.
Any amount due from the employer in relation to which any scheme applies in respect of contributions payable to the fund damages are recoverable under section 14 B.
Any amount due from the employer in relation to the exempted establishment in respect of damages recoverable under 14 B may be recovered as arrears.
The amount of contribution as well as the employees contribution in pursuance of any scheme and any charges for meeting the cost of administering the fund paid or payable by an employer in respect of an employee by or through a contractor either by deduction from any amount payable to the contractor under a contract or a contractor from whom the amounts mentioned may be recovered in respect of any employee employed by or through him may recover from such employee the employees contribution by deduction of basic wages, dearness allowance and retaining allowance payable to the employee. Notwithstanding any contract to the contrary, no contractor shall be entitled to deduct the employers contribution or the charges from the basic wages, dearness allowances or the retaining allowances.
Where any amount is in arrears the officer may issue and order to the Recovery officer under his signature and for the amount specified to recover t he said amount from the establishment.
This is an Act to provide for the institution of Provident Funds (Pension Fund) and Deposit Linked Insurance Fund for employees in factories and other establishments.
The provisions are applicable to every establishment engaging 20 or more persons, the Act shall continue to govern any establishment though the number of persons may fall from 20.
This Act is a beneficient measure enacted for the purpose of institution of Provident Fund for employees, the provisions has e been made for the better future for the industrial workers, on their retirement and for the benefit of their dependents in case of death while in employment.
The Act is a beneficient piece of social welfare legislation aimed at promoting and securing the well being of the employees and the Court will not adopt a narrow interpretation which will have the effect of defeating the every object and purpose of the Act -1986 LIC 103 (S.C.)
Since the Act does not make any distinction between savages and salary it applies not merely to wage earners but also to salaried serf ants - AIR 1964 S.C. 980. Basic wages under this Act means all emoluments which are earned by an employee while on duty or in accordance w ith the terms of the contract of employment and which are paid or payable in case to him but does not include - cash value of food concession, any dearness allowance, HRA, OT. Bonus commission or any similar allowance payable to the employee or any if presents given by employer.
This definition of employee is completely different from that of a worker under the I.D. Act or Factories Act. The definition of employee brings in contract labour within the scope - AIR 1965 AP 200.
However, casual labour engaged by or through a contractor falls outside the scope of the definition - Nezeena Traders Ltd. V/s RPFC 1966 I LLJ 334.
The Act shall apply to all establishments consisting of different departments or its branches whether they are in the same place or different places unless this establishment has applied for exemption under section of the Act.
The employer shall pay contribution to the fund 81/3 of the Basic Wages, (D.A. and R.A.) and the employees contribution shall be equal to the contribution of the employer.
R.A. i.e. Retaining Allowance means an allowance payable for the time being to an employee of any factory or establishment during any period in which the establishment is not working for retaining his services.
Under Section 6 - A of the Act, the Central Government by its notification has framed a scheme called the Employees Pension Scheme for the purpose of providing superannuation pension, retiring pension or permanent total disablement pension to the employees of the establishment or class of establishments and widow or widowers pension, children pension or orphan pension payable to the beneficiaries. Under the Pension Scheme, the sums of employers' contribution not exceeding 81/3% of basic wages, D.A. and R.A., sums payable by the employers of exempted establishments, net assets of Employees Family Pensions Fund, any other sums after due appropriation of Parliament.
On the establishment of Pension Fund, the Family Pension Scheme shall cease to operate and all the assets of the ceased scheme shall be transferred to the Pension Fund.
Furthermore, the Act provides for Employees Deposit Linked Insurance Scheme for the purpose of Providing Life Insurance benefits to the employers. soon as this scheme is framed, the employer shall from time to time pay in respect of every employee an amount not being more than 1% of the aggregate of the basic wages, D.A. and R.A.
The Central Provident Fund Commissioner, or Additional Central Provident Fund Commissioner or Deputy Provident Fund Commissioner, or Regional Provident Fund Commissioner may by its order in case of whether the Act is applicable to any establishment decide this dispute and determine the amount due from any employer under the provisions of the Act, Scheme, Pension Scheme or Insurance Scheme.
The Officer conducting this enquiry may have the powers or the powers vested in the Court under the Code of Civil Procedure 1908 in respect of trying the suit namely, enforcing the attendance of any person or examining him on oath, requiring the discovery and production of documents, receiving evidence on affidavits, issuing commission for the examination of witnesses. The Commissioner should not necessarily pass any orders unless a reasonable opportunity is given to the employer to represent his case. Where the employer, employee or any other person is required to attend the inquiry fails to attend the enquiry without valid reasons or fails to produce documents or file any report or return in order to determine the amount due from the employer and where the order has been passed against an employee exparte he can within a period of 3 months from the date of communication apply to the office to set aside the said order provided, he is satisfied that there was sufficient cause for non appearance of the employer and that the show cause notice was not duly served on time;
1) Glamour V/s RPFC 1975 LIC 954
2) The News Paper Publishing Pvt. Ltd. V/s RPFC 1972 LIC 1392
3) Swamy V/s RPFC 1987 (I) LLN 94
4) Royal Talkies V/s ESIC AIR 1978 S.C. 1478
An employer aggrieved by an Order made under Sub-section 1 of Sec. 7A but where no appeal has been preferred and there is a discovery of new and important matter or evidence and which was not within the knowledge or could not be produced at that time when order was made and there is an apparent error on the fact of the record, the order can be reviewed, by the officer on his own mention and may grant the review by giving previous notice to all the parties to appear and be heard to support the order. The Commissioner is liable to reopen a matter within a period of 5 years from the date of communication of the order to re-determine the amount due from the employer if he has reasons to believe that by any reason there has been failure or omission on the part of the employer to make any document or report available or to disclose fully and truly all material facts necessary for determination of the dispute. No order for redetermining shall be passed unless the employer is given reasonable opportunity to represent his case. An employer is liable to pay simple interest at the rate of 12% p.a. or any amount due under this Act.
Under Sec. 7B of the Act any person aggrieved by the order passed under sec. 7A by the Regional Provident Fund Commissioner in which no appeal has been made can on the discovery of new evidence or facts which were not within his knowledge at the time of passing the order and on account of which the mistake was made can make a order for review before the same Commissioner who had passed the order.
Provided that the officer who has passed that order find the said application in order and if he comes to the conclusion that there is no sufficient ground for review he may reject the said application.
Where the officer comes to the conclusion that the said order needs to be reviewed then the said application should be heard by giving the parties an opportunity of being heard. Further proof of the said new evidence of having been discovered should be produced before the commissioner. This order has no appeal.
Where an order determining the amount due from the employer under section 7A or 7B has been passed, and the officer who has passed the said order has reason to believe that by reason of the omission or failure on the part of the employer to make any document or report available or to disclose fully or truly all materials facts necessary for determining the correct amount for any period has escaped his notice or, has in consequence of information in his possession reason to believe that any amount to be determined under section 7A or 7B has escaped from his determination for any period, he may within a period of years from the date of communication of the order may re-open the said case for the redetermination of the amount. The employer must be given an opportunity of being heard.
Under Sec. 7 (O) of the Act no appeal shall be entertained unless the employer has deposited an amount of 75% of the amount of claim determined by the officer under Sec. 7A of the Act.
If the employer fails to pay the amount determined by the officer then he is liable to pay 12% interest on the amount per annum till the actual payment is made.
Any amount due from the employer in relation to which any scheme applies in respect of contributions payable to the fund damages are recoverable under section 14 B.
Any amount due from the employer in relation to the exempted establishment in respect of damages recoverable under 14 B may be recovered as arrears.
The amount of contribution as well as the employees contribution in pursuance of any scheme and any charges for meeting the cost of administering the fund paid or payable by an employer in respect of an employee by or through a contractor either by deduction from any amount payable to the contractor under a contract or a contractor from whom the amounts mentioned may be recovered in respect of any employee employed by or through him may recover from such employee the employees contribution by deduction of basic wages, dearness allowance and retaining allowance payable to the employee. Notwithstanding any contract to the contrary, no contractor shall be entitled to deduct the employers contribution or the charges from the basic wages, dearness allowances or the retaining allowances.
Where any amount is in arrears the officer may issue and order to the Recovery officer under his signature and for the amount specified to recover t he said amount from the establishment.
Chapter: 6.2.4 Part-time Workers in the Minimum Wages Act
• Part-time Workers
Any claim of employees in any of these employment working up to and inclusive of 4 hours per day - 60% of the total enrollment fixed for full time workers.
Explanation: For the purposes of this notification.
(1) Competent Authority means the Competent Authority appointed by the Government of Maharashtra, Industries, Energy and labour Department, Notification No. MWA 5284/5819/Lab. 7, dated the 3rd August, 1984.
(2) Zone System
(a) Zone-I shall comprise of the areas within the limits of all Municipal Corporations, and adjoining cantonment areas (if any).
(b) Zone-II shall comprise the areas with the limits of all "A" Class Municipal Council and adjoining cantonment areas (if any).
(c) Zone-III shall comprise rest of the areas of the State (excluding areas in Zone I and II).
(3) In cases where the employee is employed on a basis other than monthly basis, the minimum rates of daily wages payable shall be computed by dividing the minimum rate of monthly wages fixed for the category of the employees to which he belongs by 26, the portion being stepped up to the nearest paisa.
(4) The minimum rates of wages shall consist of all inclusive rate allowing for the basic rate, the cost of living allowance and cash value of concession, if any.
(5) The average Consumer Price Index Number in respect of Ten Centers in the State of Maharashtra for working class (New Series 1982 = 100) shall be the cost of living index number applicable to the employees employed in the said Scheduled Employment (in pursuance of Clause (d) of the Section 2 of the said Act) and the Competent Authority shall after expiry of every six months commencing on the first day of January and the first day of July calculate the average of the cost of living index number applicable to the said employees for those six months and ascertain the rise of such of such average over the Consumer Price Index Number 3()0. For such rise of every point, special allowance (hereinafter referred to as "the cost of living allowances") payable to the employees in the said scheduled employment for each of the six months immediately following the six months in respect of which such average has been calculated as aforesaid, shall be at the rate of Rs. 3.85 per month in respect of all Zones.
(6) The Competent Authority shall compute the cost of living allowance in accordance with the directions made under the preceding para.
(7) The cost of living allowance computed as aforesaid shall be declared by the competent authority by Notification in the Official Gazette, in the last week of July when allowance is payable for each of the months of July to December and last week of January when such allowance is payable for each of the months of January to June.
Provided that the Competent Authority shall declare the cost of living allowance payable in respect of the period from the date of revision of the rates of minimum wages to the end of June or December as the case may be immediately after the said date, with effect from which the Minimum rates of wages are revised.
Any claim of employees in any of these employment working up to and inclusive of 4 hours per day - 60% of the total enrollment fixed for full time workers.
Explanation: For the purposes of this notification.
(1) Competent Authority means the Competent Authority appointed by the Government of Maharashtra, Industries, Energy and labour Department, Notification No. MWA 5284/5819/Lab. 7, dated the 3rd August, 1984.
(2) Zone System
(a) Zone-I shall comprise of the areas within the limits of all Municipal Corporations, and adjoining cantonment areas (if any).
(b) Zone-II shall comprise the areas with the limits of all "A" Class Municipal Council and adjoining cantonment areas (if any).
(c) Zone-III shall comprise rest of the areas of the State (excluding areas in Zone I and II).
(3) In cases where the employee is employed on a basis other than monthly basis, the minimum rates of daily wages payable shall be computed by dividing the minimum rate of monthly wages fixed for the category of the employees to which he belongs by 26, the portion being stepped up to the nearest paisa.
(4) The minimum rates of wages shall consist of all inclusive rate allowing for the basic rate, the cost of living allowance and cash value of concession, if any.
(5) The average Consumer Price Index Number in respect of Ten Centers in the State of Maharashtra for working class (New Series 1982 = 100) shall be the cost of living index number applicable to the employees employed in the said Scheduled Employment (in pursuance of Clause (d) of the Section 2 of the said Act) and the Competent Authority shall after expiry of every six months commencing on the first day of January and the first day of July calculate the average of the cost of living index number applicable to the said employees for those six months and ascertain the rise of such of such average over the Consumer Price Index Number 3()0. For such rise of every point, special allowance (hereinafter referred to as "the cost of living allowances") payable to the employees in the said scheduled employment for each of the six months immediately following the six months in respect of which such average has been calculated as aforesaid, shall be at the rate of Rs. 3.85 per month in respect of all Zones.
(6) The Competent Authority shall compute the cost of living allowance in accordance with the directions made under the preceding para.
(7) The cost of living allowance computed as aforesaid shall be declared by the competent authority by Notification in the Official Gazette, in the last week of July when allowance is payable for each of the months of July to December and last week of January when such allowance is payable for each of the months of January to June.
Provided that the Competent Authority shall declare the cost of living allowance payable in respect of the period from the date of revision of the rates of minimum wages to the end of June or December as the case may be immediately after the said date, with effect from which the Minimum rates of wages are revised.
Chapter: 6.2.3 Notification Fixing of Minimum Rates of Wages
• Penalities in respect of Certain Offenses
Any employer who pays to an employee less than minimum rates of wages fixed for the employees class of work and thinks to do so and contravenes the provisions of the Minimum Wages Act shall be punishable with imprisonment for six months or fine which shall not exceed Rs. 500/- or both. Furthermore, the penalty for wilfully obstructing the Inspector in the exercise of any power conferred unto him by the Act or fails to produce any demand made by the Inspector in respect of wages of registers, records or documents in the custody of the employer shall be punished with the fine which may extend to Rs. 500/- or conviction.
• Exemption of Employers from Liability
Under Certain Cases
Where an employer is charged with an offence against this Act, he shall be entitled to, upon complaint duly made by him, to have any other person whom he charges as the actual offender to be brought before the court at the time appointed for hearing charge. If after the commission of the offence, the employer proves to the satisfaction of the court that he has used due diligence to enforce the execution of this Act, and the said other person committed the offence in question without his knowledge or consent, that other person shall be convicted of the offence and he is liable to light punishment as if he were the employer and the employer shall be discharged.
Employment in Dispensary
With effect from 01/07/2002 to 31/12/2002
(Special allowance Rs. 485.10 All zones)
Any employer who pays to an employee less than minimum rates of wages fixed for the employees class of work and thinks to do so and contravenes the provisions of the Minimum Wages Act shall be punishable with imprisonment for six months or fine which shall not exceed Rs. 500/- or both. Furthermore, the penalty for wilfully obstructing the Inspector in the exercise of any power conferred unto him by the Act or fails to produce any demand made by the Inspector in respect of wages of registers, records or documents in the custody of the employer shall be punished with the fine which may extend to Rs. 500/- or conviction.
• Exemption of Employers from Liability
Under Certain Cases
Where an employer is charged with an offence against this Act, he shall be entitled to, upon complaint duly made by him, to have any other person whom he charges as the actual offender to be brought before the court at the time appointed for hearing charge. If after the commission of the offence, the employer proves to the satisfaction of the court that he has used due diligence to enforce the execution of this Act, and the said other person committed the offence in question without his knowledge or consent, that other person shall be convicted of the offence and he is liable to light punishment as if he were the employer and the employer shall be discharged.
Employment in Dispensary
With effect from 01/07/2002 to 31/12/2002
(Special allowance Rs. 485.10 All zones)
Chapter: 6.2.2 Notification Fixing of Minimum Rates of Wages
• Inspectors:
The Government may appoint by an Official Notification persons it thinks fit as Inspectors for the purposes of the Act and may also define the local limits within which they have to function. The Inspectors may examine any Person whom he finds in such premises or place and he has a reason to believe that such person is an employer or an employee who works there. The Inspector may also cease or take copies of registers, record of wages, notices or portion thereof as he may consider relevant in respect of an offense under this Act which he has reason to-believe that has been committed by an employer.
• Claims
The Appropriate Government by a Notification in the Official Gazette appoints any Commissioner for Workmen's Compensation or any officer of Central Government exercising functions as a labour Commissioner or any other officer with the experience of a Judge of the Civil Judge of the Civil Court to be the Authority to hear and decide for a specified area, all claims arising out of the payment of less than the minimum wages. In respect of the employees, any claim of the nature referred above, the employee himself or through any Legal Practitioner or any official of a Registered Trade Union authorised in writing to act on his behalf or any Inspector or any person acting with the permission of the authority, may apply to the authority for directions. Provided that at least such application shall be made within a period of six months from the date on which the minimum wages became applicable and it can be admitted after a period of six months when the Applicant satisfies the Authority that he had sufficient causes for not making that application within the said period. The authority shall hear applicant as well as employer and after giving them opportunity of being heard and after such further enquiry, may consider necessary to impose penalty on the employer if he is liable.
In case a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of an amount which is less than the minimum wages payable to them exceeds the amount actually paid together with the payment of such compensation as the authority may think fit, not exceeding 10 times of the amount of excess. If the Authority hearing that application is satisfied that it was either malicious, vexatious application made, it may direct penalty to the person presenting such application against the employer.
The Government may appoint by an Official Notification persons it thinks fit as Inspectors for the purposes of the Act and may also define the local limits within which they have to function. The Inspectors may examine any Person whom he finds in such premises or place and he has a reason to believe that such person is an employer or an employee who works there. The Inspector may also cease or take copies of registers, record of wages, notices or portion thereof as he may consider relevant in respect of an offense under this Act which he has reason to-believe that has been committed by an employer.
• Claims
The Appropriate Government by a Notification in the Official Gazette appoints any Commissioner for Workmen's Compensation or any officer of Central Government exercising functions as a labour Commissioner or any other officer with the experience of a Judge of the Civil Judge of the Civil Court to be the Authority to hear and decide for a specified area, all claims arising out of the payment of less than the minimum wages. In respect of the employees, any claim of the nature referred above, the employee himself or through any Legal Practitioner or any official of a Registered Trade Union authorised in writing to act on his behalf or any Inspector or any person acting with the permission of the authority, may apply to the authority for directions. Provided that at least such application shall be made within a period of six months from the date on which the minimum wages became applicable and it can be admitted after a period of six months when the Applicant satisfies the Authority that he had sufficient causes for not making that application within the said period. The authority shall hear applicant as well as employer and after giving them opportunity of being heard and after such further enquiry, may consider necessary to impose penalty on the employer if he is liable.
In case a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of an amount which is less than the minimum wages payable to them exceeds the amount actually paid together with the payment of such compensation as the authority may think fit, not exceeding 10 times of the amount of excess. If the Authority hearing that application is satisfied that it was either malicious, vexatious application made, it may direct penalty to the person presenting such application against the employer.
Chapter: 6.2.1 Notification Fixing of Minimum Rates of Wages
Notification Fixing of Minimum Rates of Wages
• Validity of:
Any notification issued by the State Government after first complaint with the formalities under Section 5(1) and after considering the evidence of committee and all representations received is perfectly valid and not open to challenge. Manohar88 Narayan Joshi V/s State of Maharashtra, 1979~39~ FLR page 394. Section 5 does not valid the fundamental rights under Article 19(1~(g~ of the constitution. Vijay Cloth Cotton Mills V/s State of Ajmir, AIR 1955, page 33, Supreme Court.
• In fixing the minimum wage:
The fact that an employer might find it difficult to carry on his business on the basis of minimum wages is an irrelevant consideration. The Act contemplates that minimum rates of wages must ensure not merely the physical need of the worker which would keep him just above starvation but must ensure for him not only his subsistence and that of his family but also preserve the efficiency as a workman. It should therefore, provide not merely for his care subsistence of his life but for the preservation of the worker and so must provide for some measure of education, medical requirement and amenities. (AIR 1969, Supreme Court, Page 182 Hydro (Engineers) Pvt. Ltd. V/s its workmen.)
A casual worker cannot by the very nature of his employment expect the same rate of wages as is given to a permanent worker. (Workmen of Orient Paper Mills V/s Orient Paper Mills, AIR 1969, Supreme Court, Page 976.)
• Section 11 - Wages in Kind
1) Minimum wages payable under the Act shall be in cash.
2) Where there has been the custom to pay wages only or partly in kind, the Appropriate Government is of the opinion that it is necessary in the circumstances by a Notification in the Official Gazette to authorize the payment to be either made in cash or wholly or partly in kind.
3) The Appropriate Government is of the opinion that provisions should be made for the supply of essential commodities at concessional rates. The Appropriate Government may by the notification in Official Gazette authorize the provisions of such supplies at concessional rate.
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 the rate not less than the minimum rates of wages fixed by such notification for that class of employees in that employment without any deductions as may be, except as may be authorize within such time and subject to the conditions.
In regard to the scheduled employment, Minimum rates of wages in respect have been fixed. The Appropriate Government may fix the numbers of hours of work which shall constitute a normal working day inclusive of specified intervals.
It also shall provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest. It shall also provide for payment of work on a day of rest at a rate not less than overtime rate. Overtime has been discussed under Section 14 of the Minimum Wages Act, where an employee whose minimum rates of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed and the employee 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 hour so worked in excess of the overtime rate fixed under this Act or under any law of the Appropriate Government for the time being in force, whichever is higher.
In fact, employee whose minimum rates of wage has been fixed under this Act by the day, works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall be entitled to receive wages in respect of work done by him on that day as if he had worked for the full normal working day.
Every employer employing persons shall maintain such registers and records giving such particulars of employees employed by him, the work performed by them, the wages paid to them, the receipts given to them and such other particulars and forms. The Appropriate Government may provide for the issue of wages book or wage slip (attendance card) to employees employed in the scheduled employment in which minimum rates of wages have been fixed and also may prescribe in the manner in which the entries are to be made and shall be made in such wage books.
• Validity of:
Any notification issued by the State Government after first complaint with the formalities under Section 5(1) and after considering the evidence of committee and all representations received is perfectly valid and not open to challenge. Manohar88 Narayan Joshi V/s State of Maharashtra, 1979~39~ FLR page 394. Section 5 does not valid the fundamental rights under Article 19(1~(g~ of the constitution. Vijay Cloth Cotton Mills V/s State of Ajmir, AIR 1955, page 33, Supreme Court.
• In fixing the minimum wage:
The fact that an employer might find it difficult to carry on his business on the basis of minimum wages is an irrelevant consideration. The Act contemplates that minimum rates of wages must ensure not merely the physical need of the worker which would keep him just above starvation but must ensure for him not only his subsistence and that of his family but also preserve the efficiency as a workman. It should therefore, provide not merely for his care subsistence of his life but for the preservation of the worker and so must provide for some measure of education, medical requirement and amenities. (AIR 1969, Supreme Court, Page 182 Hydro (Engineers) Pvt. Ltd. V/s its workmen.)
A casual worker cannot by the very nature of his employment expect the same rate of wages as is given to a permanent worker. (Workmen of Orient Paper Mills V/s Orient Paper Mills, AIR 1969, Supreme Court, Page 976.)
• Section 11 - Wages in Kind
1) Minimum wages payable under the Act shall be in cash.
2) Where there has been the custom to pay wages only or partly in kind, the Appropriate Government is of the opinion that it is necessary in the circumstances by a Notification in the Official Gazette to authorize the payment to be either made in cash or wholly or partly in kind.
3) The Appropriate Government is of the opinion that provisions should be made for the supply of essential commodities at concessional rates. The Appropriate Government may by the notification in Official Gazette authorize the provisions of such supplies at concessional rate.
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 the rate not less than the minimum rates of wages fixed by such notification for that class of employees in that employment without any deductions as may be, except as may be authorize within such time and subject to the conditions.
In regard to the scheduled employment, Minimum rates of wages in respect have been fixed. The Appropriate Government may fix the numbers of hours of work which shall constitute a normal working day inclusive of specified intervals.
It also shall provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest. It shall also provide for payment of work on a day of rest at a rate not less than overtime rate. Overtime has been discussed under Section 14 of the Minimum Wages Act, where an employee whose minimum rates of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed and the employee 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 hour so worked in excess of the overtime rate fixed under this Act or under any law of the Appropriate Government for the time being in force, whichever is higher.
In fact, employee whose minimum rates of wage has been fixed under this Act by the day, works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall be entitled to receive wages in respect of work done by him on that day as if he had worked for the full normal working day.
Every employer employing persons shall maintain such registers and records giving such particulars of employees employed by him, the work performed by them, the wages paid to them, the receipts given to them and such other particulars and forms. The Appropriate Government may provide for the issue of wages book or wage slip (attendance card) to employees employed in the scheduled employment in which minimum rates of wages have been fixed and also may prescribe in the manner in which the entries are to be made and shall be made in such wage books.
Chapter: 6.1 Fixing Of Minimum Rates Of Wages
Fixing Of Minimum Rates Of Wages
The Appropriate Government shall in the manner and hereinafter provide fixing the minimum rates of wages applicable to employees employed in an employment specified in part 1 or 2 of the schedule which the State Government may review at such intervals as it thinks fit. Such intervals should not exceed 5 years.
The minimum rates of wages are fixed in the following manner:
1) The appropriate Government may fix a minimum rate of wages for time work.
2) Minimum rates of wages for piece work.
3) A minimum rate to apply in substitution for the minimum rate which would otherwise be applicable in respect of overtime work done by the employees.
In fixing or revising wages under this section differing minimum rates of wages may be fixed for
a) Different scheduled employment.
b) Different classes of work for the same scheduled employment.
c) Adults, Adolescents, children and apprentices.
d) Different localities.
Minimum rates of wages may be fixed by one or more of the following wage periods namely by the hours, by the day, by the month. Under sections of the said Act, it is a definite indication that the basic wage is an integral part of the minimum wage. Section 4(1) postulates that the minimum rate fixed or revised by the Appropriate Government under Section 3 may constitute a basic rate of wages and a special allowance at the rate to be adjusted at such intervals, and in such manner, as the appropriate Government may direct to afford as merely as practical, with the variation in the cost of living index number applicable to such employees.
Example:
Basic Wage + Special Allowances* = Minimum Wage
• Special Allowance is based on Cost of Living Index which fluctuates according to the Govt. declarations.
This has been discussed in the following case :
Kan~ataka Film Chamber of Commerce, Bangalore V/s State of Karnatalca, 1986 LIC, Page 1890 Karnataka High Court.
• The Proceduce of Fixing and Rensing Minimum Wages
1) In fixing minimum rate of wages in respect of any scheduled employment for the first time under the Act in revising minimum rates of wages so fixed, the Appropriate Government shall appoint as many committees and sub-Committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be.
2) By notification in the Official Gazette published its proposal for the information of persons likely to be effected thereby and specify a date not less than 2 months from the date of notification on which the proposals will be taken into consideration.
The Appropriate Government shall in the manner and hereinafter provide fixing the minimum rates of wages applicable to employees employed in an employment specified in part 1 or 2 of the schedule which the State Government may review at such intervals as it thinks fit. Such intervals should not exceed 5 years.
The minimum rates of wages are fixed in the following manner:
1) The appropriate Government may fix a minimum rate of wages for time work.
2) Minimum rates of wages for piece work.
3) A minimum rate to apply in substitution for the minimum rate which would otherwise be applicable in respect of overtime work done by the employees.
In fixing or revising wages under this section differing minimum rates of wages may be fixed for
a) Different scheduled employment.
b) Different classes of work for the same scheduled employment.
c) Adults, Adolescents, children and apprentices.
d) Different localities.
Minimum rates of wages may be fixed by one or more of the following wage periods namely by the hours, by the day, by the month. Under sections of the said Act, it is a definite indication that the basic wage is an integral part of the minimum wage. Section 4(1) postulates that the minimum rate fixed or revised by the Appropriate Government under Section 3 may constitute a basic rate of wages and a special allowance at the rate to be adjusted at such intervals, and in such manner, as the appropriate Government may direct to afford as merely as practical, with the variation in the cost of living index number applicable to such employees.
Example:
Basic Wage + Special Allowances* = Minimum Wage
• Special Allowance is based on Cost of Living Index which fluctuates according to the Govt. declarations.
This has been discussed in the following case :
Kan~ataka Film Chamber of Commerce, Bangalore V/s State of Karnatalca, 1986 LIC, Page 1890 Karnataka High Court.
• The Proceduce of Fixing and Rensing Minimum Wages
1) In fixing minimum rate of wages in respect of any scheduled employment for the first time under the Act in revising minimum rates of wages so fixed, the Appropriate Government shall appoint as many committees and sub-Committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be.
2) By notification in the Official Gazette published its proposal for the information of persons likely to be effected thereby and specify a date not less than 2 months from the date of notification on which the proposals will be taken into consideration.
Chapter: 6 The Minimum Wages Act, 1948
The Minimum Wages Act, 1948
Introduction
This is an Act to provide for fixing minimum rate of wages in certain employments. This Act extends to the whole of India except for the State of Jammu and Kashmir. Under the Act, the Appropriate Government, means any scheduled employment carried on by and under the authority of the Central Government or a Railway Administration or in relation to a Mine, Oil field or Major Port or any Corporation established by a Central Act or the Central Government or in relation to any other scheduled employment in cases of the State Government
The Competent Authority means the authority appointed by the Appropriate Government by Notification in the Official Gazette, to ascertain from time to time, the cost of living index number applicable to the employees employed in the scheduled employment specified in the Notification.
Cost of living index number in relation to employees in any scheduled employment in respect of which minimum rates of wages have been filed means the index number ascertained and declared by the Competent Authority by notifications in Official Gazette to be the costs of living index number applicable to the employees in such employment.
Wages means "all remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment express or implied were fulfilled, be able to present in respect of his employment or of work done in such employment".
Employee means "any person who is employed for hire or reward to do any work skilled or unskilled, manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed and includes workers to whom any articles or materials are given out by another person to be made up cleaned, washed, altered, ornamented, finished, prepared, adopted or otherwise processed for sale for the purposes of the trade or business of that person".
The definition of term wages postulates the binding nature of the other terms of the contract and brings within the purview of the Act only term and related wages and no other. It is difficult to hold that by implication the very basic concept of the wages can be ignored and other terms of contract can be dealt with by a notification issued under this Act.
The relationship of employer and employee arises out of a contract of employment or by contract of service. The relationship implies the right of the master to direct not only what work has to be done but also the manner of doing it. The extent and extent of control which is requisite to establish the relationship of employer and employee must necessarily vary with each business and is by its very nature incapable of prescribed definition. But the correct approach is to consider having regard to the nature of work whether or not there is due control and supervision over the manner of execution of the work.
Introduction
This is an Act to provide for fixing minimum rate of wages in certain employments. This Act extends to the whole of India except for the State of Jammu and Kashmir. Under the Act, the Appropriate Government, means any scheduled employment carried on by and under the authority of the Central Government or a Railway Administration or in relation to a Mine, Oil field or Major Port or any Corporation established by a Central Act or the Central Government or in relation to any other scheduled employment in cases of the State Government
The Competent Authority means the authority appointed by the Appropriate Government by Notification in the Official Gazette, to ascertain from time to time, the cost of living index number applicable to the employees employed in the scheduled employment specified in the Notification.
Cost of living index number in relation to employees in any scheduled employment in respect of which minimum rates of wages have been filed means the index number ascertained and declared by the Competent Authority by notifications in Official Gazette to be the costs of living index number applicable to the employees in such employment.
Wages means "all remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment express or implied were fulfilled, be able to present in respect of his employment or of work done in such employment".
Employee means "any person who is employed for hire or reward to do any work skilled or unskilled, manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed and includes workers to whom any articles or materials are given out by another person to be made up cleaned, washed, altered, ornamented, finished, prepared, adopted or otherwise processed for sale for the purposes of the trade or business of that person".
The definition of term wages postulates the binding nature of the other terms of the contract and brings within the purview of the Act only term and related wages and no other. It is difficult to hold that by implication the very basic concept of the wages can be ignored and other terms of contract can be dealt with by a notification issued under this Act.
The relationship of employer and employee arises out of a contract of employment or by contract of service. The relationship implies the right of the master to direct not only what work has to be done but also the manner of doing it. The extent and extent of control which is requisite to establish the relationship of employer and employee must necessarily vary with each business and is by its very nature incapable of prescribed definition. But the correct approach is to consider having regard to the nature of work whether or not there is due control and supervision over the manner of execution of the work.
Chapter: 5.1 Rules in the Maternity Bnefit Act
Rules
1) Proof pregnancy death - The production of a certificate from Registered Medical Practitioner certifying the cause of death on account of pregnancy, delivery and other related diseases shall be given to the employer.
a) A certificate from the Registered Midwife is also admissible.
2) A certificate from the Police Patil or a certified extract from the register of Births maintained under the provisions of any Law relating to registration of births.
The duration of breaks allowed to a woman under Section. 11 shall be of 15 minutes provided that the time reasonably required by the woman to reach creche or place where the child kept while she is on duty and the time required for coming back to the place of duty the duration of such break shall not be less than 5 minutes and not more than 15 minutes.
Every employer in a factory wherein women are employed shall prepare, maintain and update a register which shall be called a maternity benefit register wherein all the entries shall be made in ink and shall be kept open for inspection by the Inspector during working hours. After the receipt of an application from a woman, the employer shall supply copies of Forms No 9t 10 and 11.
No employer shall dismiss of discharge a woman at the time of pregnancy provided that the dismissal is for the following acts and the employer by order in writing communicates to the woman depriving her of the maternity benefit or medical bonus or both.
i) Wilfully destroying the goods or property of the employer.
ii) Assaulting superiors or colleagues at the place of work.
iii) Criminal offense involving moral turpitude resulting in conviction by a courtof law.
iv) Theft, fraud, dishonesty in relation to the employer's business or employers property at the premises where she is employed.
v) Wilful failure to observe the safety measures of the Rules on that subject. vi) Wilfully interfering with safety devices or fire fighting equipment.
A woman deprived of such benefits shall make an appeal to the Competent Authority within a period of 60 days from the date on which she has received the communication of such deprivation. The inspector may on a receipt of such a complaint make an enquiry and if satisfied that the payment has been wrongfully withheld may direct the payment to be made. The decision of the Inspector lies for appeal before the Competent Authority within a period of 30 days. The decision of the Competent Authority is final
The employer of every factory shall on or before 15th January in each year submit a written in Form 11 to the Competent Authority.
The Appropriate Government after being satisfied with regard to the establishment or a class of establishments providing for the grant benefits which are less favourable than those provided in this Act may by a Government Official Gazette exempt, subject to conditions and restrictions the establishment or class of establishments from the operation of all or any of the provisions of this Act.
1) Proof pregnancy death - The production of a certificate from Registered Medical Practitioner certifying the cause of death on account of pregnancy, delivery and other related diseases shall be given to the employer.
a) A certificate from the Registered Midwife is also admissible.
2) A certificate from the Police Patil or a certified extract from the register of Births maintained under the provisions of any Law relating to registration of births.
The duration of breaks allowed to a woman under Section. 11 shall be of 15 minutes provided that the time reasonably required by the woman to reach creche or place where the child kept while she is on duty and the time required for coming back to the place of duty the duration of such break shall not be less than 5 minutes and not more than 15 minutes.
Every employer in a factory wherein women are employed shall prepare, maintain and update a register which shall be called a maternity benefit register wherein all the entries shall be made in ink and shall be kept open for inspection by the Inspector during working hours. After the receipt of an application from a woman, the employer shall supply copies of Forms No 9t 10 and 11.
No employer shall dismiss of discharge a woman at the time of pregnancy provided that the dismissal is for the following acts and the employer by order in writing communicates to the woman depriving her of the maternity benefit or medical bonus or both.
i) Wilfully destroying the goods or property of the employer.
ii) Assaulting superiors or colleagues at the place of work.
iii) Criminal offense involving moral turpitude resulting in conviction by a courtof law.
iv) Theft, fraud, dishonesty in relation to the employer's business or employers property at the premises where she is employed.
v) Wilful failure to observe the safety measures of the Rules on that subject. vi) Wilfully interfering with safety devices or fire fighting equipment.
A woman deprived of such benefits shall make an appeal to the Competent Authority within a period of 60 days from the date on which she has received the communication of such deprivation. The inspector may on a receipt of such a complaint make an enquiry and if satisfied that the payment has been wrongfully withheld may direct the payment to be made. The decision of the Inspector lies for appeal before the Competent Authority within a period of 30 days. The decision of the Competent Authority is final
The employer of every factory shall on or before 15th January in each year submit a written in Form 11 to the Competent Authority.
The Appropriate Government after being satisfied with regard to the establishment or a class of establishments providing for the grant benefits which are less favourable than those provided in this Act may by a Government Official Gazette exempt, subject to conditions and restrictions the establishment or class of establishments from the operation of all or any of the provisions of this Act.
Chapter: 5 The Maternity Benefit Act, 1961
The Maternity Benefit Act, 1961
Introduction
This is the central Act. Prior to the passing of this Act, in 1961 there were in force several central and state maternity Benefit Acts In order to bring uniformity in their provisions the central Government at last passed this Act, in 1961. It gives uniform Maternity Benefits for all women workers: in Err; industries not covered by the E.S.I. Act.
With the growing industrialization and urbanization and the high cost of living, it has become necessary for every family to get a substantial amount of income to maintain the family. This has given rise to female employment in the factories. Women are employed in all types of manufacturing activities now. Earlier, their arena was only restricted to packing and light work. But now, the women form an integral part of the manufacturing process.
A woman who is employed has to manage not only the work in the office/factory but also, the domestic front. Marriage, child birth and female problems are faced by a woman simultaneously with the employment. Taking into consideration, these different problems faced by women, an Act to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide maternity benefit was drawn out, which is called the Maternity Benefit Act, 1961.
This Act extends to the whole of India except to the State of Jammu and Kashmir.
The Act applies to every establishment be it a factory, mine or plantation, any establishment belonging to the Govt., persons employed for exhibition of equestrian, acrobatic and other performances, any shop or establishment or establishment in which 10 or more employees are employed for the preceding 12 months, provided that nothing contained in this Act shall apply to any factory or establishment to which the provisions of the Employees State Insurance Act, 1948 applies.
The appropriate government in respect of a mine is the Central Government whilst in the case of the exhibition of equestrian, acrobatic and other performances is the State Government.
A woman under the Act means a woman employed either directly or through any agency for wages in any establishment.
Section 3(b) defines child and includes even a stillborn child.
Wages as per Section 3a includes all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied were fulfilled and includes:
- Cash allowances (including dearness allowance and House Rent Allowanced, incentive bonus, money value of the concessional supply of food grains, but it does not include any bonus other than incentive bonus, overtime earnings and deductions made on account of fines, contribution paid or payable under pension or provident fund/ gratuity payable on termination of services.
The woman is prohibited from working in the establishment during 6 weeks immediately following the day of her delivery or her miscarriage. Furthermore, no pregnant woman shall on a request made by her, be required by her employer to do work of an arduous nature or which involves long hours of standing which is likely to interfere with her pregnancy or abnormal development of the foetus and is likely to cause miscarriage.
The employer is liable for the payment of maternity benefit at the rate of average daily wages for the period of her actual absence i.e. periods immediately preceding the day of delivery and, the actual day of her delivery and any period immediately following that day. The claim can be made for maternity benefit only if she has actually worked in the establishment for not less than 80 days out of 12 months prior to her delivery.
Any woman employed in the establishment is entitled to the benefit provided she gives a notice in writing in the prescribed form to the employer stating for benefit and any other amount which she is entitled under the Act. This payment can either be made to her or anybody whom she nominates in the notice and that she will not be able to work in the establishment till she receives her maternity benefit.
On receipt of the notice, the employer shall permit such a woman to absent herself from the establishment during the period for which she receives the maternity benefit. The amount of the benefit preceding the date of her excepted delivery shall be paid in advance by the employer to the woman on production of such proof that the woman is pregnant and the payment shall be made within 48 hours of production of such proof that the woman has delivered a child. The failure not to give such a notice shall not disentitle a woman the maternity benefit which she is entitled to.
In case the woman entitled to the benefit dies before receiving such benefit, the employer shall pay such benefit to the nominated person given by the woman in her notice for maternity benefit and in case of no nominee, it shall be paid to the legal representative.
A woman who is suffering from any illness arising out of premature birth of child, delivery, pregnancy, miscarriage shall on the production of proof be entitled to leave with wages at the rate of maternity benefit for a maximum period of one month.
Every woman who returns back to duty after such leave shall in addition to the interval for rest be allowed in the course of her daily work two breaks to nurse the child till the child attains the age of 15 months. A woman who is absent from work in accordance with the provisions of the Act shall not be dismissed or discharged from the services of the establishment on account of her absence.
Introduction
This is the central Act. Prior to the passing of this Act, in 1961 there were in force several central and state maternity Benefit Acts In order to bring uniformity in their provisions the central Government at last passed this Act, in 1961. It gives uniform Maternity Benefits for all women workers: in Err; industries not covered by the E.S.I. Act.
With the growing industrialization and urbanization and the high cost of living, it has become necessary for every family to get a substantial amount of income to maintain the family. This has given rise to female employment in the factories. Women are employed in all types of manufacturing activities now. Earlier, their arena was only restricted to packing and light work. But now, the women form an integral part of the manufacturing process.
A woman who is employed has to manage not only the work in the office/factory but also, the domestic front. Marriage, child birth and female problems are faced by a woman simultaneously with the employment. Taking into consideration, these different problems faced by women, an Act to regulate the employment of women in certain establishments for certain periods before and after child birth and to provide maternity benefit was drawn out, which is called the Maternity Benefit Act, 1961.
This Act extends to the whole of India except to the State of Jammu and Kashmir.
The Act applies to every establishment be it a factory, mine or plantation, any establishment belonging to the Govt., persons employed for exhibition of equestrian, acrobatic and other performances, any shop or establishment or establishment in which 10 or more employees are employed for the preceding 12 months, provided that nothing contained in this Act shall apply to any factory or establishment to which the provisions of the Employees State Insurance Act, 1948 applies.
The appropriate government in respect of a mine is the Central Government whilst in the case of the exhibition of equestrian, acrobatic and other performances is the State Government.
A woman under the Act means a woman employed either directly or through any agency for wages in any establishment.
Section 3(b) defines child and includes even a stillborn child.
Wages as per Section 3a includes all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied were fulfilled and includes:
- Cash allowances (including dearness allowance and House Rent Allowanced, incentive bonus, money value of the concessional supply of food grains, but it does not include any bonus other than incentive bonus, overtime earnings and deductions made on account of fines, contribution paid or payable under pension or provident fund/ gratuity payable on termination of services.
The woman is prohibited from working in the establishment during 6 weeks immediately following the day of her delivery or her miscarriage. Furthermore, no pregnant woman shall on a request made by her, be required by her employer to do work of an arduous nature or which involves long hours of standing which is likely to interfere with her pregnancy or abnormal development of the foetus and is likely to cause miscarriage.
The employer is liable for the payment of maternity benefit at the rate of average daily wages for the period of her actual absence i.e. periods immediately preceding the day of delivery and, the actual day of her delivery and any period immediately following that day. The claim can be made for maternity benefit only if she has actually worked in the establishment for not less than 80 days out of 12 months prior to her delivery.
Any woman employed in the establishment is entitled to the benefit provided she gives a notice in writing in the prescribed form to the employer stating for benefit and any other amount which she is entitled under the Act. This payment can either be made to her or anybody whom she nominates in the notice and that she will not be able to work in the establishment till she receives her maternity benefit.
On receipt of the notice, the employer shall permit such a woman to absent herself from the establishment during the period for which she receives the maternity benefit. The amount of the benefit preceding the date of her excepted delivery shall be paid in advance by the employer to the woman on production of such proof that the woman is pregnant and the payment shall be made within 48 hours of production of such proof that the woman has delivered a child. The failure not to give such a notice shall not disentitle a woman the maternity benefit which she is entitled to.
In case the woman entitled to the benefit dies before receiving such benefit, the employer shall pay such benefit to the nominated person given by the woman in her notice for maternity benefit and in case of no nominee, it shall be paid to the legal representative.
A woman who is suffering from any illness arising out of premature birth of child, delivery, pregnancy, miscarriage shall on the production of proof be entitled to leave with wages at the rate of maternity benefit for a maximum period of one month.
Every woman who returns back to duty after such leave shall in addition to the interval for rest be allowed in the course of her daily work two breaks to nurse the child till the child attains the age of 15 months. A woman who is absent from work in accordance with the provisions of the Act shall not be dismissed or discharged from the services of the establishment on account of her absence.
Thursday, March 25, 2010
Chapter: 4.6 Social Security Schemes in the Workmens Compensation Act
Social Security Schemes
This enactment it a kind of social security legislation. It came in force in the year 1923 and thus it is an oldest enactment of the kind. In the year 1948 the Employees state Insurance Act was introduced and through it another social insurance scheme took place. The later scheme rests on joint contribution by workers, employers and Government. This is not the case with the earlier Act of 1923. These two legislations i.e. the Act of 1923 and the Act of 1948 together could be called code of social security benefits for the workers. However it must be noted that only one of these two Acts is applicable.
Hospital Industry is at present covered by the workmen's compensation Act of 1923.
• Occupational Diseases
The schedule No.3 of the Act gives the list of occupational diseases. This schedule should be read and remembered along with the provisions of section 3(2), (2-A), (3), (4) & (5)
• Employer not liable for compensation
Section 3 of the Act speaks of employer's liability for compensation with some exceptions enumerated therein. Exceptions:
1. In respect of any injury which does not result in total or partial disablement of the workman for a period exceeding three days.
2 In respect of any injury (injury Not resulting in Death) (OR permanent total disablement) caused by an accident which is directly attributable to
i) Workman under influence of drink, drugs or
ii) Wilful disobedience of the workman to an order expressly given, o r to rule expressly framed, for the purpose of securing the safety of workman, or
iii) The wilful removal or disregard by the workman of any safety guard or other device which he knew - to have been provided for the purpose of securing the safety of workman.
This enactment it a kind of social security legislation. It came in force in the year 1923 and thus it is an oldest enactment of the kind. In the year 1948 the Employees state Insurance Act was introduced and through it another social insurance scheme took place. The later scheme rests on joint contribution by workers, employers and Government. This is not the case with the earlier Act of 1923. These two legislations i.e. the Act of 1923 and the Act of 1948 together could be called code of social security benefits for the workers. However it must be noted that only one of these two Acts is applicable.
Hospital Industry is at present covered by the workmen's compensation Act of 1923.
• Occupational Diseases
The schedule No.3 of the Act gives the list of occupational diseases. This schedule should be read and remembered along with the provisions of section 3(2), (2-A), (3), (4) & (5)
• Employer not liable for compensation
Section 3 of the Act speaks of employer's liability for compensation with some exceptions enumerated therein. Exceptions:
1. In respect of any injury which does not result in total or partial disablement of the workman for a period exceeding three days.
2 In respect of any injury (injury Not resulting in Death) (OR permanent total disablement) caused by an accident which is directly attributable to
i) Workman under influence of drink, drugs or
ii) Wilful disobedience of the workman to an order expressly given, o r to rule expressly framed, for the purpose of securing the safety of workman, or
iii) The wilful removal or disregard by the workman of any safety guard or other device which he knew - to have been provided for the purpose of securing the safety of workman.
Chapter: 4.5.3 Amputation Cases Lower Limbs in the Workmens Compensation Act
Amputation Cases Lower Limbs
Chapter: 4.5.2 List of Injuries Deemed to Result in Permanent in the Workmens Compensation Act
List of Injuries Deemed to Result in Permanent
Chapter: 4.5.1 Schedule in the Workmens Compensation Act
Insolvency of Employer - Where any employer has entered into a contract with any is serves in respect of any liability to any workman, then in the event of the employer becoming insolvent, in the event of the company having commenced to be worked up, the rights of the employers against the insurers in respects of the liability, notwithstanding any thing in law for the time being in forces relating to insolvency or winding up for companies, be transferred to the insurers shall leave the same rights and remedies as of the employer.
The liability of the insurers to the workman is less than the liability of the employer to the workman. In case of the contract of the employer with the insurers is void or voidable by reason of noncompliance on the part of the employer with any terms and conditions of the Contract, the insurers shall be entitled to prove in the insolvency proceedings or liquidation for the amount paid to the workman United India Insurance Corporation V/s Alphonsa 1988 II CLR 25 (Ker H.C.) - Insurers instead of the employer can be directed to pay compensation to the workman.
Special provisions relating to workman abroad of companies and motor vehicles:
In case of workman who are persons recruited by companies registered in India and working as such abroad and persons sent for work aboard alongwith motor vehicles registered under the Motor Vehicles Act 1988 as drivers, helpers, Mechanics cleaners or other workman, the notice of accident and the claim for compensation may be served on the local agent of the company or the local agent of the owner of the motor vehicle in the country of the accident. In case of death of the workman in respect of the claim of the compensation, it shall be made within 1 year after the news of death received by claimant. Where an injured workman is discharged or left behind in any part of India or in any other country any deposition taken by any Judge or Magistrate in that part or by any consular officer in the foreign country and transmitted by the person by whom they are taken to the Central Government or State Government shall in any proceedings for enforcing the claims be admission in evidence if,
(a) the deposition is authenticated by the signature of a Judge magistrate
(b) if the defendant had an opportunity by himself or his agent to cross examine the witness
(c) if the deposition was made in the course of a criminal proceeding on proof that the deposition was made in the presence of the person accused and it shall not be necessary in any case to prove the signature or official character of the person appearing to have signed any such deposition.
Every person employing workman shall send at such time and in such form to the authority a correct return specifying the number of injuries in respect of the compensation has been paid by the employer during previous year and the amount of compensation together with the particulars.
Any contract or agreement whether made before the commencement of this Act whereby a workman relinquishes any right of compensation from the employer for personal injuries arising out of or in they course of the employment shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.
If any question arises in any proceedings under this Act as to the liability of any person to any compensation or as to the amount of or duration of compensation the question shall, in default of agreement be settled by a commissioner.
Where any matter is under this Act to be done by or before a commissioner the same shall subject to the provisions of this Act and to any rules thereunder be done by of before a commissioner for the area in which.
(a) The accident took place which resulted in the injury.
(b) The workman or in case of his death the dependent claiming the compensation ordinarily resides.
(c) The employer has his registered office.
Provided that the commissioner shall not proceed on the matter unless the commissioner has jurisdiction over the area in which the accident took place.
Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may subject to the, provisions of this Act.
No application for the settlement of any matter by a commissioner other than an application by a dependent or dependents for compensation shall be mad unless and until some question has arisen between the parties in connectio therewith which they have been unable to settle by agreement.
An application to the commissioner may be made in such form and shall b f accompanied by such fee as may be fixed and shall contact in the particular a concise statement of the circumstances in which the application is made an I, the relief or order which the applicant claims.
In case of a claim for compensation against the employer the date of service o , notice of accident on the employer and such notice has not been served upo the employer in due time and the reasons for such omissions the names a addresses of the parties the concise statement of the matters on which 1 agreement has come and those in the agreement which has not come.
If the applicant is illiterate and is unable to furnish the required information in writing the application shall if the applicant so desires be prepared under the direction of the commissioner.
The commissioner shall have the powers of the Civil Court under the Code of Civil Procedure for the purpose of recording evidence, enforcing the attendance of witnesses, compelling the production of documents and material objects.
Where the amount of any lump sum payable as compensation has been steeled by agreement whether by way of redemption of a half monthly payment or otherwise where any compensation has been so settled a being payable a memorandum thereof shall be sent to the commissioner on being satisfied as to the genuineness record the memorandum in a register in the prescribed manner.
Provided that no such memorandum shall be recorded seven days after the communication by the commissioner of notice to the parties concerned, The commissioner may at any time rectify the register.
Where it appears to the commissioner that an agreement as to the payment of lump sum whether by way of redemption of a half monthly payment or otherwise of an agreement as to the amount of compensation payable ought not to be registered by reason of the inadequacy of the sum or amount or by reason of the agreement been obtained by fraud or undue influence or other improper means.
The commissioner may recover the amount of compensation as an arrear of land revenue any amount under the act whether under the agreement or otherwise.
The liability of the insurers to the workman is less than the liability of the employer to the workman. In case of the contract of the employer with the insurers is void or voidable by reason of noncompliance on the part of the employer with any terms and conditions of the Contract, the insurers shall be entitled to prove in the insolvency proceedings or liquidation for the amount paid to the workman United India Insurance Corporation V/s Alphonsa 1988 II CLR 25 (Ker H.C.) - Insurers instead of the employer can be directed to pay compensation to the workman.
Special provisions relating to workman abroad of companies and motor vehicles:
In case of workman who are persons recruited by companies registered in India and working as such abroad and persons sent for work aboard alongwith motor vehicles registered under the Motor Vehicles Act 1988 as drivers, helpers, Mechanics cleaners or other workman, the notice of accident and the claim for compensation may be served on the local agent of the company or the local agent of the owner of the motor vehicle in the country of the accident. In case of death of the workman in respect of the claim of the compensation, it shall be made within 1 year after the news of death received by claimant. Where an injured workman is discharged or left behind in any part of India or in any other country any deposition taken by any Judge or Magistrate in that part or by any consular officer in the foreign country and transmitted by the person by whom they are taken to the Central Government or State Government shall in any proceedings for enforcing the claims be admission in evidence if,
(a) the deposition is authenticated by the signature of a Judge magistrate
(b) if the defendant had an opportunity by himself or his agent to cross examine the witness
(c) if the deposition was made in the course of a criminal proceeding on proof that the deposition was made in the presence of the person accused and it shall not be necessary in any case to prove the signature or official character of the person appearing to have signed any such deposition.
Every person employing workman shall send at such time and in such form to the authority a correct return specifying the number of injuries in respect of the compensation has been paid by the employer during previous year and the amount of compensation together with the particulars.
Any contract or agreement whether made before the commencement of this Act whereby a workman relinquishes any right of compensation from the employer for personal injuries arising out of or in they course of the employment shall be null and void in so far as it purports to remove or reduce the liability of any person to pay compensation under this Act.
If any question arises in any proceedings under this Act as to the liability of any person to any compensation or as to the amount of or duration of compensation the question shall, in default of agreement be settled by a commissioner.
Where any matter is under this Act to be done by or before a commissioner the same shall subject to the provisions of this Act and to any rules thereunder be done by of before a commissioner for the area in which.
(a) The accident took place which resulted in the injury.
(b) The workman or in case of his death the dependent claiming the compensation ordinarily resides.
(c) The employer has his registered office.
Provided that the commissioner shall not proceed on the matter unless the commissioner has jurisdiction over the area in which the accident took place.
Where an accident occurs in respect of which liability to pay compensation under this Act arises, a claim for such compensation may subject to the, provisions of this Act.
No application for the settlement of any matter by a commissioner other than an application by a dependent or dependents for compensation shall be mad unless and until some question has arisen between the parties in connectio therewith which they have been unable to settle by agreement.
An application to the commissioner may be made in such form and shall b f accompanied by such fee as may be fixed and shall contact in the particular a concise statement of the circumstances in which the application is made an I, the relief or order which the applicant claims.
In case of a claim for compensation against the employer the date of service o , notice of accident on the employer and such notice has not been served upo the employer in due time and the reasons for such omissions the names a addresses of the parties the concise statement of the matters on which 1 agreement has come and those in the agreement which has not come.
If the applicant is illiterate and is unable to furnish the required information in writing the application shall if the applicant so desires be prepared under the direction of the commissioner.
The commissioner shall have the powers of the Civil Court under the Code of Civil Procedure for the purpose of recording evidence, enforcing the attendance of witnesses, compelling the production of documents and material objects.
Where the amount of any lump sum payable as compensation has been steeled by agreement whether by way of redemption of a half monthly payment or otherwise where any compensation has been so settled a being payable a memorandum thereof shall be sent to the commissioner on being satisfied as to the genuineness record the memorandum in a register in the prescribed manner.
Provided that no such memorandum shall be recorded seven days after the communication by the commissioner of notice to the parties concerned, The commissioner may at any time rectify the register.
Where it appears to the commissioner that an agreement as to the payment of lump sum whether by way of redemption of a half monthly payment or otherwise of an agreement as to the amount of compensation payable ought not to be registered by reason of the inadequacy of the sum or amount or by reason of the agreement been obtained by fraud or undue influence or other improper means.
The commissioner may recover the amount of compensation as an arrear of land revenue any amount under the act whether under the agreement or otherwise.
Chapter: 4.5 Schedule in the Workmens Compensation Act
Factors for working out lump sum equivalent of compensation amount in case of permanent disablement and death.
Completed years of age immediately proceeding the date on which the compensation fell due
In case pay is less than Rs. 2000, then calculate daily wages & multiply by 26 (26 working days in a month). Multiply the result of the above process by the factor for that age.
Relevant date of determination entitlement to compensation is the date on which the employee died and not the date on which enquiry was made - Raru V/ s Deputy Commissioner of Labour 1985 (I) LLN 365.
Where any order of payment of compensation has been obtained by fraud, impersonation or other improper means, any amount so paid shall be recovered as follows :
The Commissioner may recover as an arrears of land revenue whether under an agreement for payment of compensation or otherwise as per Section 5 of Revenue Recovery Act, 1890.
No claim for compensation shall be entertained by a Commissioner, unless notice of the accident has been given in the manner referred to hereinafter, after the happening and within a period of 2 years in the case of death.
The period of 2 years shall be counted from the day the workman gives noti of the disablement to his employer - (partial disablement.)
Where the workman is continuously employed and ceases to be employ and develops symptoms of any occupational disease peculiar to th employment within 2 years of the cessation of the employment, the accide shall be due to employment, provided that the accident shall not be barred the entertainment of a claim.
a) If the claim is in respect of the death of a workman resulting from accident which occurred on the premises of the employer or any pi where the workman at the time of the accident was working under control of the employer and the workman died on such premises without having left the vicinity has died in the accident.
b) Where if the employer had knowledge of the accident from any ot] source at or about the time when it occurred.
Where the Commissioner received information from any source that workman had died as a result of accident arising out of and in the course of his employment, then a notice may be sent to the employer by RPAD giving him 30 days to submit his submissions regarding the circumstances attending the death of the workman) indicating whether in the opinion of the employer, he is not liable to deposit compensation for the death of the workman.
If the employer is liable, he may deposit the amount within 30 days, if he is not liable then the grounds indicating his disclaims. Where the employer has so disclaimed his liability the Commissioner may inform the dependents of the deceased workman and it is open for the dependents to prefer a claim for compensation.
Where any accident occurring on the premises of the employer results in death, the person required to give the notice within 7 days of the death send a report to the Commissioner giving the circumstances of the death.
"Serious bodily injury" means an injury which involves, the permanent loss of the use of or permanent injury to any limb loss or injury to the sight or hearing or of the facture of any limb or the enforced absence of the injured from work for a period exceeding 20 days.
Where the workman giving notice of the accident, he shall before the expiry of 3 days from the time at which service of the notice is effected offers himself for medical examination free of charge by a qualified Medical Practitioner and any workman who receives half monthly payment shall submit himself for such examination from time to time.
Any workman who refuses to submit himself for medical examination, the right to compensation shall be suspended during the continuance of refusal or obstruction.
Where a person in the course of or for the execution by or under the contract or of the whole or part of any work which is ordinarily part of the trade or business of the principal employer, he shall be liable to pay to any workman employed in the execution of work any compensation which he would be liable to pay if the workman has been immediately employed by him.
Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor and all questions regarding the amount and right and default of agreement be settled by the Commissioner.
Nothing shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.
Where an accident has occurred elsewhere in or about the premises on which the principal has undertaken or usually undertaken to execute the work or which are otherwise under his control or management.
Where the workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid, the person by whom the compensation was paid and any person who is called on to pay or indemnify shall be entitled to be indemnified by the person to pay damages.
Completed years of age immediately proceeding the date on which the compensation fell due
In case pay is less than Rs. 2000, then calculate daily wages & multiply by 26 (26 working days in a month). Multiply the result of the above process by the factor for that age.
Relevant date of determination entitlement to compensation is the date on which the employee died and not the date on which enquiry was made - Raru V/ s Deputy Commissioner of Labour 1985 (I) LLN 365.
Where any order of payment of compensation has been obtained by fraud, impersonation or other improper means, any amount so paid shall be recovered as follows :
The Commissioner may recover as an arrears of land revenue whether under an agreement for payment of compensation or otherwise as per Section 5 of Revenue Recovery Act, 1890.
No claim for compensation shall be entertained by a Commissioner, unless notice of the accident has been given in the manner referred to hereinafter, after the happening and within a period of 2 years in the case of death.
The period of 2 years shall be counted from the day the workman gives noti of the disablement to his employer - (partial disablement.)
Where the workman is continuously employed and ceases to be employ and develops symptoms of any occupational disease peculiar to th employment within 2 years of the cessation of the employment, the accide shall be due to employment, provided that the accident shall not be barred the entertainment of a claim.
a) If the claim is in respect of the death of a workman resulting from accident which occurred on the premises of the employer or any pi where the workman at the time of the accident was working under control of the employer and the workman died on such premises without having left the vicinity has died in the accident.
b) Where if the employer had knowledge of the accident from any ot] source at or about the time when it occurred.
Where the Commissioner received information from any source that workman had died as a result of accident arising out of and in the course of his employment, then a notice may be sent to the employer by RPAD giving him 30 days to submit his submissions regarding the circumstances attending the death of the workman) indicating whether in the opinion of the employer, he is not liable to deposit compensation for the death of the workman.
If the employer is liable, he may deposit the amount within 30 days, if he is not liable then the grounds indicating his disclaims. Where the employer has so disclaimed his liability the Commissioner may inform the dependents of the deceased workman and it is open for the dependents to prefer a claim for compensation.
Where any accident occurring on the premises of the employer results in death, the person required to give the notice within 7 days of the death send a report to the Commissioner giving the circumstances of the death.
"Serious bodily injury" means an injury which involves, the permanent loss of the use of or permanent injury to any limb loss or injury to the sight or hearing or of the facture of any limb or the enforced absence of the injured from work for a period exceeding 20 days.
Where the workman giving notice of the accident, he shall before the expiry of 3 days from the time at which service of the notice is effected offers himself for medical examination free of charge by a qualified Medical Practitioner and any workman who receives half monthly payment shall submit himself for such examination from time to time.
Any workman who refuses to submit himself for medical examination, the right to compensation shall be suspended during the continuance of refusal or obstruction.
Where a person in the course of or for the execution by or under the contract or of the whole or part of any work which is ordinarily part of the trade or business of the principal employer, he shall be liable to pay to any workman employed in the execution of work any compensation which he would be liable to pay if the workman has been immediately employed by him.
Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor and all questions regarding the amount and right and default of agreement be settled by the Commissioner.
Nothing shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal.
Where an accident has occurred elsewhere in or about the premises on which the principal has undertaken or usually undertaken to execute the work or which are otherwise under his control or management.
Where the workman has recovered compensation in respect of any injury caused under circumstances creating a legal liability of some person other than the person by whom the compensation was paid, the person by whom the compensation was paid and any person who is called on to pay or indemnify shall be entitled to be indemnified by the person to pay damages.
Chapter: 4.4 Distribution of Compention in the Workmens Compensation Act
Distribution of Compention
A workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability shall deposit with the Commissioner. Any payment made by the Employer directly cannot be said to the payment of compensation.
In case of a deceased workman, an employer may make any dependen advances on account of compensation, i.e. amount equivalent to 3 month wages and does not exceed the compensation payable to that dependent, thi amount shall be deducted by the Commissioner from the compensatio payable to the employee (deceased).
On deposit of money, the Commissioner of Workmen's Compensation shall necessary publish or serve a notice to the dependent calling the dependents It appear before him on such a date for the distribution of the compensation After necessary inquiry which the Commissioner deems necessary, that n dependent exists, he shall pay the balance amount to the employer. The employer if demands the disbursement of the amount, the details of amoun shall be furnished. The amount of compensation deposited shall b apportioned amongst the dependents of the deceased workman. The discretion is that of the Commissioner whom to give the amount o compensation.
When the lump sum amount is payable to a workman or a person under lega disability, the sum may be reinvested or otherwise dealt with for the bene of the woman, and may be paid half-monthly, payment is payable to an person under legal disability on his own notion of payment be made for the welfare of the workman. Where an application is made to the commissioner an amount of neglect of children on the part of the parent or variation circumstances of the dependent or of any other sufficient cause, t Commissioner may make such orders for the variation of the former order he thinks just in the circumstances. No orders be passed unless such persor has been given an opportunity of showing cause as to why such an order should not be made.
A workman whose injury has resulted in death, and no payment of a lump sum as compensation to a woman or a person under a legal disability shall deposit with the Commissioner. Any payment made by the Employer directly cannot be said to the payment of compensation.
In case of a deceased workman, an employer may make any dependen advances on account of compensation, i.e. amount equivalent to 3 month wages and does not exceed the compensation payable to that dependent, thi amount shall be deducted by the Commissioner from the compensatio payable to the employee (deceased).
On deposit of money, the Commissioner of Workmen's Compensation shall necessary publish or serve a notice to the dependent calling the dependents It appear before him on such a date for the distribution of the compensation After necessary inquiry which the Commissioner deems necessary, that n dependent exists, he shall pay the balance amount to the employer. The employer if demands the disbursement of the amount, the details of amoun shall be furnished. The amount of compensation deposited shall b apportioned amongst the dependents of the deceased workman. The discretion is that of the Commissioner whom to give the amount o compensation.
When the lump sum amount is payable to a workman or a person under lega disability, the sum may be reinvested or otherwise dealt with for the bene of the woman, and may be paid half-monthly, payment is payable to an person under legal disability on his own notion of payment be made for the welfare of the workman. Where an application is made to the commissioner an amount of neglect of children on the part of the parent or variation circumstances of the dependent or of any other sufficient cause, t Commissioner may make such orders for the variation of the former order he thinks just in the circumstances. No orders be passed unless such persor has been given an opportunity of showing cause as to why such an order should not be made.
Chapter: 4.3 Driver in the Workmens Compensation Act
• Driver:
A driver of a truck belonging to a company who was engaged by the Company during the absence or leave of a permanent Driver is nonetheless workman if he dies on duty.
1960 (I) FLR 547. Mohammed Sadiq V/s Chhoti.
The- Section. 4 of the W.C. Act 1923, gives us the details as to how the amount of compensation is to be calculated.
In case of death of an employee, The compensation shall be equal to 50% of the monthly wages of the deceased workman multiplied by the relevant factor or 50,000/- whichever is more.
In case of permanent total disablement resulting from an injury the compensation is 60% of the monthly wages multiplied by the relevant factor or Rs. 60,000/- whichever is more. The relevant factor in relation to the workman means, the factor specified in the column of Schedule - IV and against the entry in the first column of that Schedule specifying the Number of years which are the same as the completed years of the age of the workman preceding the date on which the compensation is due.
Where the monthly wages of the workman exceed Rs. 2000/- his monthly wages for the purpose of the compensation be deemed as Rs. 2000/-.
In case of permanent partial disablement results from the injury such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein being % of loss of earning capacity caused by the injury.
In case of the injury not specified in Sch. I, such % of the compensation payable in case of permanent total disablement as in proportionate to the loss of earning capacity.
Where more injuries than one are caused by the same accident, the amount of compensation payable under this Head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement and resulted injuries.
In assessing the loss of earning capacity for the purposes of the injury in Sch - I the qualified Medical Practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuies.
Where temporary disablement whether total or partial results from injury a half-monthly payment of the sum equivalent to twenty five percent of monthly wages be paid.
The payment of half monthly payment shall be payable on the 16th day from the date of disablement where such disablement lasts for a period of 28 days or more, or after the expiry of a waiting period of 3 days from the disablement where such disablement lasts for a period of less than 28 days and thereafter half monthly during the disablement or during a period of 3 years whichever is shorter. Provided that the deduction from any lump sum or half monthly payments to which the workman is entitled, the amount of any payment or allowance which the workman is entitled, the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement. Prior to the lump sum of first half monthly payment, no half monthly payment shall in any case exceed the amount by which half the amount of monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.
The monthly wages means the amount of wages deemed to be payable for a month's services as follows:
a) Where as workman has worked for a continuous period of 12 months immediately preceding the accident, the employer is liable to pay compensation, the monthly wages of the workman shall be 1/12 of the total wages due for payment.
b) Where the continuous period of service is one month, the monthly wages of the workman shall be the average of the monthly amount.
c) In other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages under the Clause (B) the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident.
A driver of a truck belonging to a company who was engaged by the Company during the absence or leave of a permanent Driver is nonetheless workman if he dies on duty.
1960 (I) FLR 547. Mohammed Sadiq V/s Chhoti.
The- Section. 4 of the W.C. Act 1923, gives us the details as to how the amount of compensation is to be calculated.
In case of death of an employee, The compensation shall be equal to 50% of the monthly wages of the deceased workman multiplied by the relevant factor or 50,000/- whichever is more.
In case of permanent total disablement resulting from an injury the compensation is 60% of the monthly wages multiplied by the relevant factor or Rs. 60,000/- whichever is more. The relevant factor in relation to the workman means, the factor specified in the column of Schedule - IV and against the entry in the first column of that Schedule specifying the Number of years which are the same as the completed years of the age of the workman preceding the date on which the compensation is due.
Where the monthly wages of the workman exceed Rs. 2000/- his monthly wages for the purpose of the compensation be deemed as Rs. 2000/-.
In case of permanent partial disablement results from the injury such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein being % of loss of earning capacity caused by the injury.
In case of the injury not specified in Sch. I, such % of the compensation payable in case of permanent total disablement as in proportionate to the loss of earning capacity.
Where more injuries than one are caused by the same accident, the amount of compensation payable under this Head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement and resulted injuries.
In assessing the loss of earning capacity for the purposes of the injury in Sch - I the qualified Medical Practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuies.
Where temporary disablement whether total or partial results from injury a half-monthly payment of the sum equivalent to twenty five percent of monthly wages be paid.
The payment of half monthly payment shall be payable on the 16th day from the date of disablement where such disablement lasts for a period of 28 days or more, or after the expiry of a waiting period of 3 days from the disablement where such disablement lasts for a period of less than 28 days and thereafter half monthly during the disablement or during a period of 3 years whichever is shorter. Provided that the deduction from any lump sum or half monthly payments to which the workman is entitled, the amount of any payment or allowance which the workman is entitled, the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement. Prior to the lump sum of first half monthly payment, no half monthly payment shall in any case exceed the amount by which half the amount of monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.
The monthly wages means the amount of wages deemed to be payable for a month's services as follows:
a) Where as workman has worked for a continuous period of 12 months immediately preceding the accident, the employer is liable to pay compensation, the monthly wages of the workman shall be 1/12 of the total wages due for payment.
b) Where the continuous period of service is one month, the monthly wages of the workman shall be the average of the monthly amount.
c) In other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages under the Clause (B) the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident.
Chapter: 4.2 Case Law in the Workmens Compensation Act
• Case Law
1) Section 3, Accident arising out of employment and during the course of employment.
Indian Rave Earths Ltd. V/s Subaida Beevi - 1981 (TAC) 359 (Ker). Company allowed the workman to reach the work place on a bicycle - He started from his residence to place of work on bicycle at 4 P.M, but on the way a car dashed him and he died.
2) Water drum kept by employee for drinkirig purposes. Two employees drank the water and fell sick with acute gastro/enteritis. One dies other survived. This accident is during and out of employment.
The deceased employee through his legal representative or heirs can make a claim to the commissioner for Workmen's Compensation. However, the claimant can make a choice between either 2 Forums 110-AA of the Motor Vehicles Act, 1939 or the W.C. Act. But no two claims can lie at the same time.
Under Section 3, it is very essential to find out the commencement and discontinuance of the workman's employment i.e. the National extension of the employers prances - Saurashtra Salt Manufacturing Co. V/s Bai Value Raja, AIR 1958 S.C. 881 BEST V/s Mrs. Agnes AIR 1964 S.C. 193.
From the above discussion, it can be seen that the claimant has to fulfil the following test for payment of compensation.
1) There must be personal injury to the workman.
2) Personal injury must have been occasioned by an accident.
3) Accident must have arisen out and in the course of employment.
4) Injury must have resulted in the death or total or partial disablement for a period exceeding 3 days.
Casual connection between cause of death and nature of duties is sufficient to claim compensation. Strenuous duty and working condition in which cook was working accelerated his death and dependents of the deceased are entitled to get compensation.
1994 (II) LLJ 795 (Raj H.C.)
Divisional Personal Officer V/s Ashiya Begam.
Casual Labour is a workman, though a person may be employed casually he would be deemed to be a workman, if his employment is for the purpose of employers trade or business.
Hirajibhai V/s DamodarAIR 1957 (MP) 49.
A person whose employment is of a casual nature and employed otherwise than for employer's trade or business is not workman -1989 (59) FLR Page 55 (Ker).
Parameshwaram V/s Parameshwaram Nair
A daily wage earner may be a workman under Section 2(1) (n) of the W.C. Act. Daily wage earner may be workman, if other conditions of definition fulfilled - AIR 1955 Pat 260 - Ram Newas Khandelwal V/s Mariam.
1) Section 3, Accident arising out of employment and during the course of employment.
Indian Rave Earths Ltd. V/s Subaida Beevi - 1981 (TAC) 359 (Ker). Company allowed the workman to reach the work place on a bicycle - He started from his residence to place of work on bicycle at 4 P.M, but on the way a car dashed him and he died.
2) Water drum kept by employee for drinkirig purposes. Two employees drank the water and fell sick with acute gastro/enteritis. One dies other survived. This accident is during and out of employment.
The deceased employee through his legal representative or heirs can make a claim to the commissioner for Workmen's Compensation. However, the claimant can make a choice between either 2 Forums 110-AA of the Motor Vehicles Act, 1939 or the W.C. Act. But no two claims can lie at the same time.
Under Section 3, it is very essential to find out the commencement and discontinuance of the workman's employment i.e. the National extension of the employers prances - Saurashtra Salt Manufacturing Co. V/s Bai Value Raja, AIR 1958 S.C. 881 BEST V/s Mrs. Agnes AIR 1964 S.C. 193.
From the above discussion, it can be seen that the claimant has to fulfil the following test for payment of compensation.
1) There must be personal injury to the workman.
2) Personal injury must have been occasioned by an accident.
3) Accident must have arisen out and in the course of employment.
4) Injury must have resulted in the death or total or partial disablement for a period exceeding 3 days.
Casual connection between cause of death and nature of duties is sufficient to claim compensation. Strenuous duty and working condition in which cook was working accelerated his death and dependents of the deceased are entitled to get compensation.
1994 (II) LLJ 795 (Raj H.C.)
Divisional Personal Officer V/s Ashiya Begam.
Casual Labour is a workman, though a person may be employed casually he would be deemed to be a workman, if his employment is for the purpose of employers trade or business.
Hirajibhai V/s DamodarAIR 1957 (MP) 49.
A person whose employment is of a casual nature and employed otherwise than for employer's trade or business is not workman -1989 (59) FLR Page 55 (Ker).
Parameshwaram V/s Parameshwaram Nair
A daily wage earner may be a workman under Section 2(1) (n) of the W.C. Act. Daily wage earner may be workman, if other conditions of definition fulfilled - AIR 1955 Pat 260 - Ram Newas Khandelwal V/s Mariam.
Chapter: 4.1.1 Workmens Compensation Act, 1923
Under the Act a dependent means any of the following relatives of a deceased workman i.e. widow, minor legitimate son, an unmarried legitimate daughter or a widowed mother and if wholly dependent on the earning of the workman at the time of his death a son or a daughter who has attained the age of 18 years and who is infirm, if wholly or in part dependent on the earnings of the workman at the time of his death:-
(a) a widower
(b) a parent other than a widowed mother
(c) a minor illegitimate son, an unmarried illegitimate daughter or daughter legitimate or illegitimate of married and a minor if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor
(e) a widowed daughter in law
(f) a minor child of a pre-deceased son
(g) a minor child of a pre-deceased daughter where no parent of the child is alive
(h) a paternal grandparent if the parent of the workman is alive.
The employer under the Act includes any body of persons whether incorporated or not and any managing agent of an employer and the legal Representative of a deceased employer and when the services of a workman are temporarily lent or let on hire to another person by the person whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him.
A managing Agent means any person appointed or acting as the representative of another person for the purpose of carrying on the other person's trade or business but does not include an individual manager subordinate to an employer.
Partial disablement means "Where the disablement is of a temporary nature such disablement reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time, provided that the injury is deemed to result into a permanent partial disablement". Total disablement means "such disablement whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement".
Under Section 3 of the Workmen's Compensation Act, the Employer is liable for payment of compensation, if personal injury is caused to a workman by accident arising out of and in the course of his employment, the employer is liable to pay compensation as per the calculations.
The employer is not liable to pay compensation in respect of any injury which does not result in total or partial disablement of the workmen for a period exceeding 3 days. Secondly, injury not resulting into death or permanent total disablement caused by accident which is directly attributable to the workman being under influence of drug or drinks, wilful disobedience of the workman, wilful removal or disregard by the workman of any safety guard or device which was being provided for safety.
(a) a widower
(b) a parent other than a widowed mother
(c) a minor illegitimate son, an unmarried illegitimate daughter or daughter legitimate or illegitimate of married and a minor if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor
(e) a widowed daughter in law
(f) a minor child of a pre-deceased son
(g) a minor child of a pre-deceased daughter where no parent of the child is alive
(h) a paternal grandparent if the parent of the workman is alive.
The employer under the Act includes any body of persons whether incorporated or not and any managing agent of an employer and the legal Representative of a deceased employer and when the services of a workman are temporarily lent or let on hire to another person by the person whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him.
A managing Agent means any person appointed or acting as the representative of another person for the purpose of carrying on the other person's trade or business but does not include an individual manager subordinate to an employer.
Partial disablement means "Where the disablement is of a temporary nature such disablement reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement and where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time, provided that the injury is deemed to result into a permanent partial disablement". Total disablement means "such disablement whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement".
Under Section 3 of the Workmen's Compensation Act, the Employer is liable for payment of compensation, if personal injury is caused to a workman by accident arising out of and in the course of his employment, the employer is liable to pay compensation as per the calculations.
The employer is not liable to pay compensation in respect of any injury which does not result in total or partial disablement of the workmen for a period exceeding 3 days. Secondly, injury not resulting into death or permanent total disablement caused by accident which is directly attributable to the workman being under influence of drug or drinks, wilful disobedience of the workman, wilful removal or disregard by the workman of any safety guard or device which was being provided for safety.
Chapter: 4 Workmens Compensation Act, 1923
Workmens Compensation Act, 1923
Introduction
This is a central Act. It provides for the compensation to be paid to the workers, for personal injury, including death, suffered by them on account of accidents arising out of and in the course of employment.
Only the persons enlisted in schedule II of the Act are eligible for the compensation. A pecular meaning is attributed to the term compensation under the Act as it becomes payable not because of a tort or wrong doing by the employer. The employer's liability under the Act has in fact no connection with any wrong doing by him. The general principle is that a workman who suffers injury in the course of and out of his employment is entitled for compensation, in case of his accidental death in the course of his employment his dependents should be compensated.
The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as possible, from hardship arising from accidents.
The general principle is that compensation should ordinarily be given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment, compensation will also be given in certain limited circumstances for diseases. Provision has been made for special Tribunals to deal cheaply and expeditiously with any disputes that may arise, and generally to assist the parties in the manner which is not possible for the civil Court. This Act is a quasi penal statute and it must not be interpreted with sympathetic leniency but must be construed strictly.
Introduction
This is a central Act. It provides for the compensation to be paid to the workers, for personal injury, including death, suffered by them on account of accidents arising out of and in the course of employment.
Only the persons enlisted in schedule II of the Act are eligible for the compensation. A pecular meaning is attributed to the term compensation under the Act as it becomes payable not because of a tort or wrong doing by the employer. The employer's liability under the Act has in fact no connection with any wrong doing by him. The general principle is that a workman who suffers injury in the course of and out of his employment is entitled for compensation, in case of his accidental death in the course of his employment his dependents should be compensated.
The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as possible, from hardship arising from accidents.
The general principle is that compensation should ordinarily be given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment, compensation will also be given in certain limited circumstances for diseases. Provision has been made for special Tribunals to deal cheaply and expeditiously with any disputes that may arise, and generally to assist the parties in the manner which is not possible for the civil Court. This Act is a quasi penal statute and it must not be interpreted with sympathetic leniency but must be construed strictly.
Chapter: 3.2 Domestic Enquiry in the Industrial Employment Act
Domestic Enquiry
No employer can punish his employee without holding enquiry into the acts of misconduct committed by him. The principle involved is that nobody should be punished unheard. Domestic Enquiry is the process of investigating facts and to establish whether an act of misconduct has really been committed by the delinquent.
• The Enquiry in a Nutshell (sequence & Stage)
1. Misconduct committed,
2. Complaint or report
3. Preliminary enquiry (if not necessary, may be dropped).
4. Framing and issuing chargesheet.
5. Serving the chargesheet.
6. Considering workers reply
7. Appointing enquiry officer - Notice of enquiry.
8. Holding actual enquiry.
i) Recording employer's evidence
ii) Cross examination by defence
iii) Recording Evidence of defence and plea of delinquent.
iv) Goss examination by the Management
9. Report of the enquiry officer.
10. The management must send this report to the delinquent & invite his reply / comments
11. Awarding punishment
Principles of Natural Justice
At every stage, the enquiry must confirm to the principle of natural justice. Normally enquiry must be held in the presence of the delinquent and he should be allowed to be defended by his representative.
No employer can punish his employee without holding enquiry into the acts of misconduct committed by him. The principle involved is that nobody should be punished unheard. Domestic Enquiry is the process of investigating facts and to establish whether an act of misconduct has really been committed by the delinquent.
• The Enquiry in a Nutshell (sequence & Stage)
1. Misconduct committed,
2. Complaint or report
3. Preliminary enquiry (if not necessary, may be dropped).
4. Framing and issuing chargesheet.
5. Serving the chargesheet.
6. Considering workers reply
7. Appointing enquiry officer - Notice of enquiry.
8. Holding actual enquiry.
i) Recording employer's evidence
ii) Cross examination by defence
iii) Recording Evidence of defence and plea of delinquent.
iv) Goss examination by the Management
9. Report of the enquiry officer.
10. The management must send this report to the delinquent & invite his reply / comments
11. Awarding punishment
Principles of Natural Justice
At every stage, the enquiry must confirm to the principle of natural justice. Normally enquiry must be held in the presence of the delinquent and he should be allowed to be defended by his representative.
Chapter: 3.1.2 Schedule 1 in the Industrial Employment Act
The following acts and commission on the part of the workman shall amount to misconduct.
(a) wilful insubordination or disobedience whether or not in combination with another or any lawful and reasonable order of the superior.
(b) going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof.
(c) wilful slowing down in performance of work or abetment or instigation thereof.
(d) theft, fraud or dishonesty in connection with the employers business o property of the theft or property of another workman within premises of the establishment.
(e) taking or giving bribes or any illegal gratification.
(f) habitual absence without leave of absence for the period of more than 10 days or overstaying the sanctioned leave without the permission of the employer, and also for not proper and sufficient grounds.
(g) late attendance on not less than 4 occasions within a month.
(h) habitual breach of any standing order or any law applicable to the establishment or the rules made thereunder.
(i) engaging in trade within the premises of the establishment
(j) collection without the permission of the manager of any money within the premises of ' the establishment except as sanctioned by any law in force.
(k) drunkenness, riotous disorderly or indecent behavior on the peruses of the establishment.
(l) habitual neglect of work, or gross or habitful negligence
(m) habitual breach of any rules of instruction for the maintenance and running of any department or the maintenance of the cleanliness of any portion of the establishment.
(n) habitual commission of any act dr omission for which a fine may be imposed.
(o) canvassing for union membership or the membership or the collection of union dues within the premises of the establishment except in accordance with any law or with the permission of the manager.
(p) wilfull damage to work in process or to any property of the establishment.
(q) holding meeting inside the premises of the establishment without the previous permission of the manager or except in accordance with the provision of any law for the time being in force.
(r) disclosing to any unauthorized person any information in regard to the processes of the establishment which may come into the possession of the workman in the course of his work.
(s) gambling within the premises of the establishment.
(t) smoking or spitting on the premises of the establishment where prohibited by the employer.
(u) failure to observe safety instructions notified by the employer or interference with the safety device or equipment installed in the establishment.
(v) distributing or exhibiting within the premises of the establishment hand bills pamphlets posters and other thing cause in to be displayed by means of signs or writing or other visible representation on any matter without previous sanction.
(w) refusal to accept a chargesheet order or other communication served in accordance with these standing orders.
(x) unauthorized possession of any lethal weapon in the establishment.
No act which is committed on less than three occasions within a space of one year shall be treated as habitual.
Under standing order No. 25 a workman guilty of misconduct may be warned of censured or fined subject to any in accordance with the provisions of the payment of wages Act 1936 suspended by an order in writing signed by the manager for a period not exceeding 4 days, dismissed without notice.
No order shall be made unless the workman is given an opportunity of explanation of circumstances.
No order of dismissal shall be passed unless an enquiry is held into the charges levelled against the workman.
A workman against whom the enquiry is proposed to be held shall be given a chargesheet clearly setting the circumstances appearing against him and requiring his explanation. He shall be permitted to appear in person or through a workman working in the same department or through a office bearer of the trade union of which he is a member. Except for the reasons recorded in writing the workman shall produce witness in his defence and cross examine any witness on whose evidence the charges rests. A concise summary of the evidence led on either side and the workman's pleas shall be recorded.
All proceedings of the enquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman.
The enquiry shall be completed within a period of 3 months and for reasons recorded in writing may be extended to such further period as may be deemed necessary by the enquiry officer.
The workman against whom the action or the enquiry is being conducted may be suspended pending enquiry. The workman who is suspended shall be paid subsequent allowance at the following rates.
For the first ninety days of the period of suspension the subsistence allowance shall be paid at 50% of the total wages i.e. half of the wages drawn per month (basic wages + dearness allowance + other compensatory allowance.
If the enquiry gets prolonged the workman continues to be under suspension for a period exceeding ninety days the subsistence allowance is 75% of the total wages.
Further if the enquiry exceeds beyond a period of 180 days then the suspended employee gets 100% wages.
However if the findings of the enquiry officer show that the workman has been directly liable for the delay then the subsequent allowance may be reduced to half of the rate.
The payment of subsequent allowance shall be subject to the workman taking up employment during the period of suspension.
The punishment shall be awarded taking into account the gravity of the misconduct and the previous record.
In case the employee refuses to take the chargesheet the same may be served upon the employee as per the chargesheet in the presence of two witnesses and if the employee further remains absent in the enquiry then the enquiry may proceed expertise.
A workman may be warned, censured or fined for any of the following acts and omissions
(a) absence without leave without sufficient cause.
(b) negligence in performing duties.
(c) late attendance.
(d) neglect of work.
(e) absence without leave or without sufficient cause from the appointed place of work.
(f) entering or leaving or attempting to leave the premises of the establishment except by a gate or entrance appointed.
(g) committing nuisance on the premises of the establishment.
(h) breach of any rule of instruction for maintenance or running of any; department.
The normal age for retirement shall be 60 years unless it has been expressly agreed upon by the parties by a settlement or agreement that the age of retirement shall be different and this shall be binding on the parties.
Every employee who leaves service retires or is dismissed, discharged shall without avoidable delay be given a service certificate if he asks for one.
• Case Paw
A controversy regarding the interpretation of the standing orders, model standing orders can be decided by the Labour Court.
Ramkumar Singh v. Tannary and Footwear Corporation 1 1979 (34) FLR 1
(a) wilful insubordination or disobedience whether or not in combination with another or any lawful and reasonable order of the superior.
(b) going on an illegal strike or abetting, inciting, instigating or acting in furtherance thereof.
(c) wilful slowing down in performance of work or abetment or instigation thereof.
(d) theft, fraud or dishonesty in connection with the employers business o property of the theft or property of another workman within premises of the establishment.
(e) taking or giving bribes or any illegal gratification.
(f) habitual absence without leave of absence for the period of more than 10 days or overstaying the sanctioned leave without the permission of the employer, and also for not proper and sufficient grounds.
(g) late attendance on not less than 4 occasions within a month.
(h) habitual breach of any standing order or any law applicable to the establishment or the rules made thereunder.
(i) engaging in trade within the premises of the establishment
(j) collection without the permission of the manager of any money within the premises of ' the establishment except as sanctioned by any law in force.
(k) drunkenness, riotous disorderly or indecent behavior on the peruses of the establishment.
(l) habitual neglect of work, or gross or habitful negligence
(m) habitual breach of any rules of instruction for the maintenance and running of any department or the maintenance of the cleanliness of any portion of the establishment.
(n) habitual commission of any act dr omission for which a fine may be imposed.
(o) canvassing for union membership or the membership or the collection of union dues within the premises of the establishment except in accordance with any law or with the permission of the manager.
(p) wilfull damage to work in process or to any property of the establishment.
(q) holding meeting inside the premises of the establishment without the previous permission of the manager or except in accordance with the provision of any law for the time being in force.
(r) disclosing to any unauthorized person any information in regard to the processes of the establishment which may come into the possession of the workman in the course of his work.
(s) gambling within the premises of the establishment.
(t) smoking or spitting on the premises of the establishment where prohibited by the employer.
(u) failure to observe safety instructions notified by the employer or interference with the safety device or equipment installed in the establishment.
(v) distributing or exhibiting within the premises of the establishment hand bills pamphlets posters and other thing cause in to be displayed by means of signs or writing or other visible representation on any matter without previous sanction.
(w) refusal to accept a chargesheet order or other communication served in accordance with these standing orders.
(x) unauthorized possession of any lethal weapon in the establishment.
No act which is committed on less than three occasions within a space of one year shall be treated as habitual.
Under standing order No. 25 a workman guilty of misconduct may be warned of censured or fined subject to any in accordance with the provisions of the payment of wages Act 1936 suspended by an order in writing signed by the manager for a period not exceeding 4 days, dismissed without notice.
No order shall be made unless the workman is given an opportunity of explanation of circumstances.
No order of dismissal shall be passed unless an enquiry is held into the charges levelled against the workman.
A workman against whom the enquiry is proposed to be held shall be given a chargesheet clearly setting the circumstances appearing against him and requiring his explanation. He shall be permitted to appear in person or through a workman working in the same department or through a office bearer of the trade union of which he is a member. Except for the reasons recorded in writing the workman shall produce witness in his defence and cross examine any witness on whose evidence the charges rests. A concise summary of the evidence led on either side and the workman's pleas shall be recorded.
All proceedings of the enquiry shall be conducted in English, Hindi or Marathi according to the choice of the workman.
The enquiry shall be completed within a period of 3 months and for reasons recorded in writing may be extended to such further period as may be deemed necessary by the enquiry officer.
The workman against whom the action or the enquiry is being conducted may be suspended pending enquiry. The workman who is suspended shall be paid subsequent allowance at the following rates.
For the first ninety days of the period of suspension the subsistence allowance shall be paid at 50% of the total wages i.e. half of the wages drawn per month (basic wages + dearness allowance + other compensatory allowance.
If the enquiry gets prolonged the workman continues to be under suspension for a period exceeding ninety days the subsistence allowance is 75% of the total wages.
Further if the enquiry exceeds beyond a period of 180 days then the suspended employee gets 100% wages.
However if the findings of the enquiry officer show that the workman has been directly liable for the delay then the subsequent allowance may be reduced to half of the rate.
The payment of subsequent allowance shall be subject to the workman taking up employment during the period of suspension.
The punishment shall be awarded taking into account the gravity of the misconduct and the previous record.
In case the employee refuses to take the chargesheet the same may be served upon the employee as per the chargesheet in the presence of two witnesses and if the employee further remains absent in the enquiry then the enquiry may proceed expertise.
A workman may be warned, censured or fined for any of the following acts and omissions
(a) absence without leave without sufficient cause.
(b) negligence in performing duties.
(c) late attendance.
(d) neglect of work.
(e) absence without leave or without sufficient cause from the appointed place of work.
(f) entering or leaving or attempting to leave the premises of the establishment except by a gate or entrance appointed.
(g) committing nuisance on the premises of the establishment.
(h) breach of any rule of instruction for maintenance or running of any; department.
The normal age for retirement shall be 60 years unless it has been expressly agreed upon by the parties by a settlement or agreement that the age of retirement shall be different and this shall be binding on the parties.
Every employee who leaves service retires or is dismissed, discharged shall without avoidable delay be given a service certificate if he asks for one.
• Case Paw
A controversy regarding the interpretation of the standing orders, model standing orders can be decided by the Labour Court.
Ramkumar Singh v. Tannary and Footwear Corporation 1 1979 (34) FLR 1
Chapter: 3.1.1 Schedule 1 in the Industrial Employment Act
Schedule 1
These standing orders apply to all workmen employed in the establishment doing manual or technical work.
These workmen shall be classified as
Permanent workman, Probationers, badlis or substitutes, Temporaries or casual workman, apprentices.
Every probationer who has completed the period of three months of uninterrupted service in the post in which he is provisionally shall be made permanent in the post by the order in writing within 7 days from the date of completion of service.
Wherever badli system is prevalent the Manager shall maintain a register of badlis shiftwise with the following particulars.
The names and addresses, the nature of the work and the nature of their occupation in which they are employed the shift in which they are working while in employment the wages paid to them during employment and the dates of termination of their services.
The names of badlis who are found to be irregular in attendance or inefficient in work may be removed from such register after giving them sufficient opportunity to improve.
All temporary vacancies of permanent workman shall be filled up appointing their badlis whose names are entered in the register maintained.
After filling up any of the permanent vacancies in any class the badlis who have worked in that class of occupation shall be given preference wherever they are employed.
All badli's who have put in 190 days of uninterrupted service in a seasonal establishment, and the services of whom have been terminated on account of the completion of the work.
Whenever the vacancies are to be filled the names of the persons on the waiting list are to be considered.
No person whose name is not entered in the waiting list shall be given preference unless his or her name is entered in the waiting list.
Every class of workman shall be given his ticket number and the name of the department and his name.
Notices displaying the periods and hours of work and shifts shall be displayed on the notice boards of the different departments and notices specifying the weekly off and weekly holidays, dates of the compensatory holidays, the days of the wages, the rates of the wages and allowance payable if any shall also be displayed.
Where there are more than one shifts working in the department then the services are liable to be shifted from one shift to the other.
When there is any alteration or discontinuance of any shift then a notice of 7 days is to be given.
When there is discontinuance of any shift then one months notice has to be given to the permanent employees as well as the principle of last come first go has to be adopted.
On the restart of any shift the employer has to give a notice in the newspaper having large circulation so that the workmen at large come to know of the said intention of the employer. Preference of the employees who have rendered more number of years should be given.
A department may be closed down after giving one month's notice to the workman.
The grant of leave is the sole discretion of the employer taking into consideration the-exigencies of work in the establishment.
A workman desirous of proceeding on leave shall make an application to the employer in writing and obtain necessary permission for the leave. The employer may grant or refuse the leave as the case may be and may record the said in the register maintained for the said purpose. In case the employee can intimate to him in writing at the address given by him.
An employee remaining absent for a period more than that of his leave then there is a possibility of he losing his lien of appointment unless he returns back within a period of 8 days.
However a employee who returns back after he loses his lien of appointment shall be appointed as badlis if he returns back after a period of 15 days.
Every employee is entitled to casual leave however this leave shall be limited to three days at a time and casual leave is intended to meet the special or unforeseen circumstances for which provision can not be made by exact rules.
No workman shall enter or leave the premises of the establishment except by the gates or gate appointed for the purpose.
A female worker may be detained by the gateman appointed by the employer in case of suspect of some wrongful possession of property and may be searched by a female searcher. But the search shall be done in the presence of two witnesses and not in the presence of the male persons except with her consent.
In case of stoppage of work the employees shall be intimated immediately about the same.
All notices given under the Standing Orders shall be displayed in writing and particularly on the notice board.
In case of a strike affecting the whole or part of the establishment or the department of the establishment, the employer may choose to close down the whole or part of the department. The said closure may be intimated by the employer in writing or displayed in the department on the notice board.
Under Sec. 23 of the standing orders, the permanent employees may be terminated by giving them 14 days notice or by giving them 13 days wages including all admissable allowances in lieu of notice. Further if the permanent employee desirous of leaving service may give 14 days notice to the employer. The employment of a permanent workman employed on the monthly rates of wages may be terminated by giving him one month notice or on payment of one month wages in lieu of notice. The reason for termination may be recorded in writing and communicated to him at the time of discharge.
If the permanent workman leaves the service without giving notice no deduction on that account shall be made from his wages.
All the other employees other than the permanent employees shall be terminated on the basis of their leave without one months notice.
An order of termination of service shall be in writing and shall be signed by the manager concerned and a copy shall be supplied to the workman concerned, in cases of general retrenchment and closing down of departments or termination of services as a result of strike no such order shall be given.
These standing orders apply to all workmen employed in the establishment doing manual or technical work.
These workmen shall be classified as
Permanent workman, Probationers, badlis or substitutes, Temporaries or casual workman, apprentices.
Every probationer who has completed the period of three months of uninterrupted service in the post in which he is provisionally shall be made permanent in the post by the order in writing within 7 days from the date of completion of service.
Wherever badli system is prevalent the Manager shall maintain a register of badlis shiftwise with the following particulars.
The names and addresses, the nature of the work and the nature of their occupation in which they are employed the shift in which they are working while in employment the wages paid to them during employment and the dates of termination of their services.
The names of badlis who are found to be irregular in attendance or inefficient in work may be removed from such register after giving them sufficient opportunity to improve.
All temporary vacancies of permanent workman shall be filled up appointing their badlis whose names are entered in the register maintained.
After filling up any of the permanent vacancies in any class the badlis who have worked in that class of occupation shall be given preference wherever they are employed.
All badli's who have put in 190 days of uninterrupted service in a seasonal establishment, and the services of whom have been terminated on account of the completion of the work.
Whenever the vacancies are to be filled the names of the persons on the waiting list are to be considered.
No person whose name is not entered in the waiting list shall be given preference unless his or her name is entered in the waiting list.
Every class of workman shall be given his ticket number and the name of the department and his name.
Notices displaying the periods and hours of work and shifts shall be displayed on the notice boards of the different departments and notices specifying the weekly off and weekly holidays, dates of the compensatory holidays, the days of the wages, the rates of the wages and allowance payable if any shall also be displayed.
Where there are more than one shifts working in the department then the services are liable to be shifted from one shift to the other.
When there is any alteration or discontinuance of any shift then a notice of 7 days is to be given.
When there is discontinuance of any shift then one months notice has to be given to the permanent employees as well as the principle of last come first go has to be adopted.
On the restart of any shift the employer has to give a notice in the newspaper having large circulation so that the workmen at large come to know of the said intention of the employer. Preference of the employees who have rendered more number of years should be given.
A department may be closed down after giving one month's notice to the workman.
The grant of leave is the sole discretion of the employer taking into consideration the-exigencies of work in the establishment.
A workman desirous of proceeding on leave shall make an application to the employer in writing and obtain necessary permission for the leave. The employer may grant or refuse the leave as the case may be and may record the said in the register maintained for the said purpose. In case the employee can intimate to him in writing at the address given by him.
An employee remaining absent for a period more than that of his leave then there is a possibility of he losing his lien of appointment unless he returns back within a period of 8 days.
However a employee who returns back after he loses his lien of appointment shall be appointed as badlis if he returns back after a period of 15 days.
Every employee is entitled to casual leave however this leave shall be limited to three days at a time and casual leave is intended to meet the special or unforeseen circumstances for which provision can not be made by exact rules.
No workman shall enter or leave the premises of the establishment except by the gates or gate appointed for the purpose.
A female worker may be detained by the gateman appointed by the employer in case of suspect of some wrongful possession of property and may be searched by a female searcher. But the search shall be done in the presence of two witnesses and not in the presence of the male persons except with her consent.
In case of stoppage of work the employees shall be intimated immediately about the same.
All notices given under the Standing Orders shall be displayed in writing and particularly on the notice board.
In case of a strike affecting the whole or part of the establishment or the department of the establishment, the employer may choose to close down the whole or part of the department. The said closure may be intimated by the employer in writing or displayed in the department on the notice board.
Under Sec. 23 of the standing orders, the permanent employees may be terminated by giving them 14 days notice or by giving them 13 days wages including all admissable allowances in lieu of notice. Further if the permanent employee desirous of leaving service may give 14 days notice to the employer. The employment of a permanent workman employed on the monthly rates of wages may be terminated by giving him one month notice or on payment of one month wages in lieu of notice. The reason for termination may be recorded in writing and communicated to him at the time of discharge.
If the permanent workman leaves the service without giving notice no deduction on that account shall be made from his wages.
All the other employees other than the permanent employees shall be terminated on the basis of their leave without one months notice.
An order of termination of service shall be in writing and shall be signed by the manager concerned and a copy shall be supplied to the workman concerned, in cases of general retrenchment and closing down of departments or termination of services as a result of strike no such order shall be given.
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