CHAPTER – 4

LABOUR LEGISLATION FOR CONSTRUCTION INDUSTRY IN INDIA

4.1 Introduction

The Construction Industry i.e. Industry engaged in building Bridges, Flyovers,

Residential Apartments, Shopping Malls, Roads, Schools, Canals, Dams etc., plays an
important role in building the economic infrastructure in country. Hence, labour and
industrial laws applicable to this industry are also important. Constitution of India
also secures social and economic justice to people of the country. Importance of social
security and health safety & welfare is indispensable for the dignity and free
development of personality of every member of the society. In this Chapter,
researcher will explore various provisions of Constitution of India, Labour
Legislation, which are directly / indirectly relevant to Construction Industry. The new
Four Labour Codes are also expressed in a comprehensive manner. The same are
discussed hereunder:

These labour laws are ensuring Health, Safety and Welfare of workers. But, still it has
been observed that condition of workers in construction industry is worse.
Construction Companies, Builders and Contractors works for the profit and their
motive is money making. They do not show any concern about the health, safety and
welfare of workers. Even basic personal protective equipments like safety belts for
working at heights, masks for safety from dust & fumes, helmet for head safety,
equipments for protection from excessive noise and vibration, protection from
electrical hazards, hand gloves, ear plugs for controlling noise, safety shoes etc., are
not provided. Consequently, accidents at sites, fatal injuries resulting in partial /
permanent disablement, health problems like eyes weakness, deafness, backaches etc.,
tends to increase. In construction industry, women workers are not getting enough
facilities as compared to manufacturing sector. So despite legislative provisions, the
same are not benefiting the women workers and their children due to the reasons like,
non-intervention of controlling authorities appointed under the Acts, no inspection by
Labour Inspectors, no supervision by Labour Commission office at construction sites,
no control by authorities / Inspectors appointed under the various Act etc.

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4.2 The Constitution of India

4.2.1 Preamble to the Constitution of India

4.2.2 Fundamental Rights
4.2.3 Directive Principles of State Policy

4.3 Labour Laws in India

Some laws are directly related to Construction Industry, while other are
indirectly related. Both are listed below:

4.3.1 Directly Related: Laws which are directly related to Construction

Industry:

A. The Building and Other Construction Workers (Regulation of Employment

and Conditions of Services) Act, 1996 (Act No. 27 of 1996)
B. The Building and Other Construction Workers Welfare Cess Act, 1996 (Act
No. 28 of 1996)
4.3.2 Indirectly Related: Laws, which are indirectly related to Construction
Industry:

A. The Employees Compensation Act, 1923 (Act No. 8 of 1923)

B. The Trade Unions Act, 1926 (Act No. 16 of 1926)
C. The Payment of Wages Act, 1936 (Act No. 4 of 1936)
D. The Industrial Disputes Act, 1947 (Act No. 14 of 1947)
E. The Minimum Wages Act, 1948 (Act No. 11 of 1948)
F. The Employees’ State Insurance Act, 1948 (Act No. 34 of 1948)
G. The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act
No. 19 of 1952)
H. The Maternity Benefit, 1961 (Act No. 53 of 1961)
I. The Payment of Bonus Act, 1965 (Act No. 21 of 1965)
J. The Contract Labour (Regulation and Abolition) Act, 1970 (Act No. 37 of
1970)
K. The Payment of Gratuity Act, 1972 (Act No. 39 of 1972)
L. The Equal Remuneration Act, 1976 (Act No. 25 of 1976)
M. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (Act No. 14 of 2013)

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4.3.3 The New / Latest Labour Codes

A. The Code on Wages, 2019 (No. 29 of 2019)

B. The Industrial Relations Code, 2020 (Code 35 of 2020)
C. The Code of Social Security, 2020 (Code 36 of 2020)
D. The Occupational Safety, Health and Working Conditions Code, 2020 (Code
37 of 2020)

4.2 The Constitution of India

Matters which are related to Labour Laws are enshrined in List III of the Constitution
of India i.e. called Concurrent List of the Seventh Schedule. Related entries to Labour
Laws in this list are as follows597:

 Entry No. 22 – Trade Unions, Labour & Industrial disputes

 Entry No. 23 – Social Security, social insurance
a. Entry No. 24 – Welfare of labour comprising working conditions, provident fund,
liability of employer, compensation to workmen, invalidity, maternity benefits and
old age pensions

b. Entry No. 36 – Factories

Thus both the Central & the State Government can pass laws with respect to labour
matters. Most of labour statutes have been passed by the Parliament and are uniform
all over India for example, The Employees State Insurance Act, 1948, The Employees
Provident Funds & Miscellaneous Provisions Act, 1952, The Payment of Gratuity
Act, 1972, The Building and Other Constructions Workers (Regulation of
Employment and Conditions of Service) Act, 1996, The Building and Other
Construction Workers Welfare Cess Act, 1996598.

4.2.1 Preamble of the Constitution of India

Preamble is actually defined as an introduction and is introductory part regarding the

Statute599. A Preamble of a Statute is generally accepted as a key to clear the intention
of the legislation600.

597
P.K. Padhi, Labour and Industrial Laws 1 (Prentice Hall of India Private Limited, New Delhi, 2nd
edn., 2011)
598
Ibid.
599
Collins, New Gem Dictionary, 1965, 401
600
A Thangal Kunju Musaliar v. M. Venkatachalam Potti, AIR 1956 SC 246

114
A. Socialist

The term ‘socialist’ simply indicate that the goal of the State was to securing a better
and healthy life for the people and providing & ensuring equality of opportunity601.

The Court in D.S. Nakara v. Union of India602 observed that “the basic framework of
socialism is to grant a descent life standard to the working class and especially give
security in job from cradle to grave”. The prime aim of a socialist state is to eliminate
inequalities in income, status & standards of life.

The Supreme Court again in Samatha v. State of Andhra Pradesh 603 held that the
word “socialist” used in the Preamble surely be read in order to reduce income
inequalities & status, to given equal facilities & opportunities.

B. Justice

The Preamble also secures to all Indian citizens 604

 Justice – Social, Economic and Political

Social Justice simply means eradicate all inequalities resulting due to inequalities of
wealth, race, status, religion, opportunity, title, caste system and the similar
reasons605.
In Air India Statutory Corporation v. United Labour Union606, it has been ruled by the
Court that social justice is to mitigate & lessen the sufferings of the poor, dalits, weak,
deprived and tribal sections of the society and to raise their level of equality so that
they enjoy a dignified life. Moreover, social justice is the arch to ensure a meaningful
life and livable with dignity.

The expression “economic justice” means equal pay for equal work i.e. every person
or workmen should get his dues for performing hardwork, labour irrespective of
social status, caste or sex607.

601
Prof. Narender Kumar, Constitutional Law of India 32 (Allahabad Law Agency, Faridabad
(Haryana), 8th edn., 2011, Reprint 2012)
602
AIR 1983 SC 130
603
AIR 1997 SC 3297. See also Valsamma Paul v. Cochin University, AIR 1996 SC 1011
604
Prof. Narender Kumar, Constitutional Law of India 37 (Allahabad Law Agency, Faridabad
(Haryana), 8th edn., 2011, Reprint 2012)
605
Consumer Educational & Research Centre v. Union of India, AIR 1995 SC 922
606
AIR 1997 SC 645. See also Harjinder Singh v. P.S.W. Corpn., AIR 2010 SC 116
607
The Constitution of India, art. 39(d)

115
 4.2.2 Fundamental Rights under Constitution of India

The fundamental rights as guaranteed by Indian Constitution represents the basic

rights cherished by the people and to protect the individual’s dignity and create and
maintain conditions so that every human being can develop and raise his personality
to the fullest extent608.

A. Protection of Life and Personal Liberty

It is provided in the Indian Constitution that life or personal liberty of a person shall
not be deprived except according to the legal procedure established609. This right is
very important as it has been held to be the heart of the Constitution and the most
organic & progressive legal provision of our laws610.

Right to life comprises many human rights aspects like right to live with human
dignity, right to privacy, right to livelihood, right to health, right to shelter and facility
of medical assistance, right to get pollution free air and water, right to free legal aid,
right to education, right to speedy trial, protection of working women from sexual
harassment etc. Most of the time, labour legislation also rotates within the sphere of
right to life611.

i. Right to Life

The right to life means quality of life and to live decently as a citizen of a civilized
society. It is to ensure all advantages and freedom that would make life agreeable. The
right straightway implies a good standard of comfort & decency612.

In Confederation of Ex-Servicemen Association v. Union of India613 , the Supreme

Court held that right to life includes the right to live a peaceful life, to sleep in peace
and the right to relax & health.

ii. Right to Live with Human Dignity

608
P.K. Padhi, Labour and Industrial Laws 2 (Prentice Hall of India Private Limited, New Delhi, 2007)
609
The Constitution of India, art. 21
610
I.R. Coelho v. State of T.N., AIR 2007 SC 861
611
Ibid.
612
See K.T. Shah’s “Note on Fundamental Rights”, B. Shiva Rao, The Framing of India’s Constitution,
Select Documents, refer Confederation Of Ex-Servicemen Association v. Union of India, AIR 2006 SC
2945
613
AIR 2006 SC 2945

116
In Francis Coralie v. Union Territory of Delhi614, the Supreme Court held that the
right to life includes in itself right to live with human dignity & that goes alongwith,
bare necessities of life viz., clothing, adequate nutrition & shelter over the head and
facilities for writing, reading and conveying oneself in diverse forms, moving freely
and mixing with fellow human beings 615.

The depriving workers from minimum rates of wages, has been held by the Supreme
Court in People’s Union for Democratic Rights v. Union of India616, as violation of
the basic right i.e. “right to life”. The Court held the Contract Labour (Regulation &
Abolition) Act, 1970 and the Inter-State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979 which conferred the benefits and
rights on the contractor’s workmen employed, were clearly enacted to ensure human
dignity to workmen. The non-implementation was held to be violative of the worker’s
fundamental right “to live with human dignity” as guaranteed under Article 21.

Following Francis Coralie 617 , in Bandhua Mukti Morcha v. Union of India 618 ,
Bhagwati, J. observed: It is the fundamental right of every individual to live with a
dignified life purely free from exploitation. This right to live with human dignity must
include protection of health & strength of the employees and workers, men & women,
opportunities for children to develop properly in a healthy manner, education facilities
with just & humane conditions of work and right to maternity relief for female
workers and employees619.

In Suo Motu v. State of Rajasthan620, the court held that the right to life is, thus, held
to include the right to food, shelter and clothing, the right to enjoy decent

614
AIR 1981 SC 746. Also see State of Punjab v. Baldeo Singh, AIR 1999 SC 2378. In this case, the
Court ruled that Article 21 of the Constitution of India ensured the right of women to be treated with
decency and proper dignity.
615
Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979
616
AIR 1982 SC 1473. See also Kapila Hingorani v. State of Bihar, JT 2003(5) SC 1, wherein non-
payment of salaries to the employees of Public Sector Undertakings / Government Companies etc.,
resulted in starvation deaths/suicide by the employees
617
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746
618
AIR 1984 SC 802. See also Neeraja Chaudhary v. State of M.P., AIR 1984 SC 1099
619
See also Vikram Deo Singh Tomar v. State of Bihar, AIR 1988 SC 1782; S.R. Kapoor v. Union of
India, AIR 1990 SC 752. See also Hinch Lal Tiwari v. Kamla Devi, AIR 2001 SC 3211, wherein it was
held that material resources, like forests, tanks, ponds, mountains, etc., need to be protected for a
proper and healthy environment, which enables people to enjoy a quality of life, essence of Article 21
of the Constitution of India.
620
AIR 2005 Raj. 82

117
 environment, reasonable accommodation to life and also the right to live with
cleanliness.
In M/s Shantisar Builders v. N.K. Totame621, the Court held that right to clothing,
right to food, right to decent environment guaranteed under Article 21.

The fundamental right “right to life” is also helpful in protecting the rights of
workforce in the construction industry. Despite specialized labour legislations enacted
for workers, the right to life enshrined in the Constitution is also benefitting them in
better manner. However, in actual conditions, the workers in the construction industry
are not getting proper facilities from their employer like neat and clean living
accommodation, health and welfare facilities like potable drinking water, canteen
facility for having food, first aid boxes, ambulances rooms and many other related
facilities. All this ultimately affects their right to life somewhat in negative manner.

iii. Right to Live in Unpolluted Environment

The “Right to Life” as available under Article 21 of the Constitution of India means
dignified life where there is proper clean environment free from diseases and
infections622. In Milkmen C.V. Samiti v. State of Rajasthan623, the Court observed that
clean surroundings results in healthy body & mind. The right to life includes right of
enjoyment of clean water in sufficient quantity and clean for enjoying life 624.

iv. Right to Social Security & Family Protection

Right to life as available under Article 21 of the Constitution of India also covers “the
right to protection of the family and right to social security”. So, it is helpful for our
research work as construction workers generally live within the construction site
premises or near about. So it is discussed hereunder:

K. Ramaswamy, J. in Calcutta Electricity Supply Corporation (India) Limited

(C.E.S.C Limited) v. Subhas Chandra Bose625, held that right to social & economic
justice is undoubtedly a fundamental right. The right to protection of the family and
right to social security are combined part of the right to life.

621
AIR 1990, SC 630
622
Ratlam Municipality v. Vardhi Chand, AIR 1980 SC 1622
623
(2007), 2 SCC 413
624
S. Joseph v. State of Kerala, AIR 2007 NOC 545 (Ker).
625
AIR 1992 SC 573, Minority Opinion

118
 In Regional Director, ESI Corporation v. Francis De Costa 626, the Apex Court held
that security for protection from sickness & disablement is absolutely a fundamental
right guaranteed under Article 21 of the Indian Constitution. The right to pension
benefit for the family is held to be forming part of right to life 627.

v. Right to Health and Timely Medical Aid

The right to life includes right to health and medical facilities and medical care628. It
includes the right to live a healthy life and enjoy all faculties of the human body629.

In Consumer Education and Research Centre v. Union of India630, the Supreme Court
laid down that the health & strength of the workers is joint aspect of right to life631.

In a Welfare State, it is the prime duty of the Government to provide & secure the
people’s welfare. Providing sufficient medical facilities to the people, the Hon’ble
Court ruled in P.B. Khet Mazdoor Samity v. State of W.B.632, is an mandatory part of
the obligations agreed by the Government.

The right to reimbursement of payment for medical expenditure incurred personally

by the employees, pensioners and workers on medical treatment and examinations in
hospitals other than the Government hospitals, has been upheld in State of Punjab v.
Ram Labhaya Bagga633 to be part of the fundamental right i.e. “right to life”634.

626
(1993) Supp 4 SCC 100. People starving, ought to be provided with food, by the State, free of cost,
out of its surplus stock lying unused and rotting. See P.U.C.L. v. Union of India, 2000(5) SCALE 30.
627
S.K. Mastan Bee v. G.M., South Central Railway, JT 2002 (10) SC 50
628
State of Punjab v. M.S. Chawla, AIR 1997 SC 1225
629
Mr. ‘X’ v. Hospital ‘Z’ AIR 1999 SC 495
630
AIR 1995 SC 922. Timely medical aid has been held forming part of the right guaranteed under
Article 21 of the Constitution of India.
631
The Constitution of India, art. 39(e), 41, 43 and 48A. The Article 39(e) provides that the State shall
direct its policy towards securing that the health and strength of workers, men and women, and the
tender age of children are not abused.
The Constitution of India, art. 41. It provides that the State shall make effective provision for securing
right to work, old age, sickness and disablement.
The Constitution of India, art. 43 It lays down that the State shall endeavour to secure, by suitable
legislation to all workers a living wage, decent standard of life.
632
AIR 1996 SC 2426. See also Consumer Education & Research Centre v. Union of India, AIR 1995
SC 922, wherein the Supreme Court held that health insurance, while in service or after retirement, was
a fundamental right under Article 21 of the Constitution of India.
633
AIR 1998 SC 1703
634
Sec. to the Government of Haryana v. Vidya Sagar, AIR 2010 SC 196. See also State of Karnataka
v. R. Vivekananda, AIR 2008 SC 2080

119
vi. Duty to Preserve Life

In Parmanand Katara v. Union of India635, the Apex Court called upon the doctors to
extend their services to save, protect and preserve the life of the persons injured in any
way without undue delay in completing legal formalities. The Court held that right to
life requires the State to preserve life of persons in the country.

A citizens of India has right to preservation of their life not at hands of police, but at
the hands of the public authorities which ultimately includes hospital authorities636.

A Division Bench of the Apex Court in P.B. Khet Mazdoor Samity v. State of W.B.637
held that if a Government hospital fails to provide prompt medical treatment to the
needy person, it would violate his right to life. Hence, preserving human life is
paramount important.

4.2.3 Directive Principles of State Policy

The main object to create the Directive Principles is only to attain the ideal of
economic democracy638.

The Directive Principles of State Policy contains the economic, social, educational
and cultural objectives of the State. These also provides for economic upliftment of
the citizens of India. It is pertinent to mention here that the Directive Principles are
non-enforceable in nature and cannot be enforced by any Court639. It has been laid
down that it is the State’s duty to apply the Directive Principles while making laws 640.

A. Social Order for the Promotion of People’s Welfare

The State shall strive in minimizing the income inequalities, and endeavour to reduce
inequalities in status, opportunities and facilities641.

635
AIR 1989 SC 2039
636
Poonam Sharma v. Union of India, AIR 2003 Del 50
637
AIR 1996 SC 2426
638
Prof. Narender Kumar, Constitutional Law of India 479 (Allahabad Law Agency, Faridabad
(Haryana), 8th edn., 2011, Reprint 2012)
639
The Constitution of India, art. 37
640
Ibid.
641
The Constitution of India, art. 38(2) inserted vide the Constitution (44th Amendment) Act, 1978

120
The International Labour Organization (ILO) is also performing at its best level to
promote social justice and recognized human & labour rights internationally
alongwith an aim that social justice is necessary for universal & lasting peace. The
ILO brings together tripartite structure i.e. Government, Employer and Workers
representatives to establish labour standards, modify and develop various policies and
frame new programmes with prime objective to promote decent work for women and
men642.

B. Principles of Policy that State has to follow

The State shall frame and direct its policies in such a way that that the citizens have
equal rights to sufficient means of livelihood. Policies are required to be framed in
such manner that economic system does not create concentration of wealth.
Moreover, there should be equal pay for equal work for men & women. Programmes
must protect the health and strength of workers from exploitation and save the tender
age of children from abuse. Children must be developed in a healthy way and youth to
be protected from exploitation643.

In Re: Sant Ram v. Unknown644 case, the Court ruled that right to livelihood is an
important issue to be taken into account. The Hon’ble Supreme Court in Randhir
Singh v. Union of India645 held that the concept “equal pay for equal work” is derived
from Article 39(d) i.e. equality in pay for equal work and required to be properly
applied and implemented.

The Court held that Article 39A promotes justice on the basis of equality in
opportunities646. It requires the State to provide and extend free legal aid to the poor
class of people 647 with an aim that poor litigants have easy access to a Court of
Law648. Moreover, it has been ruled that free legal aid is enforceable in the Court as it
constitutes right to personal liberty as available under Article 21 of the Constitution of

642
International Labour Organization, available at: https://www.ilo.org/global/about-the-ilo/mission-
and-objectives/lang--en/index.htm (last visited on September 16, 2021)
643
The Constitution of India, art. 39
644
AIR 1960 SC 932
645
AIR 1982 SC 879
646
Damo v. State of Rajasthan, AIR 1985 Raj. 230
647
The Constitution of India, art. 39A
648
Krishna Iyer J., “Processual Justice to the People”, CMLJ, 1985. See also State of Maharashtra v.
Manubhai Pragaji, AIR 1996 SC 1.

121
India649. The State is duty bound to provide services of lawyer to a poor man and the
State shall make payment of fees to the lawyer as Court fixes650.

C. Just & Humane Conditions of Work & Benefit of Maternity Relief

The directive principles requires that the State shall make statutory provisions in all
its policies & schemes and laws for securing just & humane conditions of work and
benefit of maternity relief651. The provision is drafted keeping in view the welfare of
the employees and workers652.
In M.C. of Delhi v. Female Workers (Muster Roll)653, the benefit of maternity relief
has been extended exclusively to women (muster roll) employees, employed on the
basis of daily wages.

D. Living Wage etc., for workers

It has been ensured by the directive principles that the state shall to all workers secure
by way of legislation living wages and such conditions of work that ensures decent &
quality life so that leisure, social and cultural opportunities are enjoyed by workers654.

Unfair Labour Practices practiced by the employer violates the Principles of Article
43 i.e. living wages for workforce, which could results in industrial strife 655 . The
mandatory closure of the industrial units and establishments on account of National &
Festival Holidays has been found justified so that workers could enjoy their leisure in
complete way656.

Minimum rate of wages is to be fixed for industries, establishments and

manufacturing units and each and every employee has right for getting payment of
minimum rate of wages irrespective of employer’s capacity to pay657. A ‘fair wage’ is
a mean amid ‘living wage’ & ‘minimum wage’658. It has been held by the Court that

649
The Court is held under a duty to inform, the litigants of enumerated categories, of their right to free
legal aid. See Sugreev v. Sushila Bai, AIR 2003 Raj. 149.
650
State of Maharashtra v. Manubhai Pragaji, AIR 1996 SC 1.
651
The Constitution of India, art. 42
652
UPSC Board v. Hari Shankar, AIR 1979 SC 65
653
AIR 2000 SC 1274. See also M.P. Electric. Board v. J.C. Sharma, 2005 (3) SCC 401
654
The Constitution of India, art. 43
655
Eveready Flash Light Co. v. Labour Court, AIR 1962 All 497
656
M.R.F. Ltd., v. Inspector, Kerala Government, AIR 1999 SC 188
657
Express Newspapers Ltd., v. Union of India, AIR 1958 SC 578
658
Prof. Narender Kumar, Constitutional Law of India 489 (Allahabad Law Agency, Faridabad
(Haryana), 8th edn., 2011, Reprint 2012)

122
despite the constitutional aim to grant ‘living wage’ for workers, in fact, our general
wage & salary structure has reached to the lowest level of ‘fair wages’659.

E. Participation of Workers in the Management of Industries

The State shall by enacting & enforcing suitable statutes and legislations secure the
contribution of workers & employees in the management of industrial units,
establishments and organizations660. In Mumbai Kamgar Sabha v. Abdul Bhai661, the
Supreme Court held that labour is backbone of the Country, specifically in aspect of
economic self-reliance.
In Hindustan Tin Works v. Its employees662, it was observed by the Court that since
Article 43A had make workers partners in industry.
In National Textile Worker’s Union v. P.R. Ramakrishnan 663 , the Supreme Court
upheld that workers have right to be heard in the procedure of winding up of a
company.

F. State’s Duty to Raise the Nutrition Level and the Living Standard

The State shall specifically regard the improving and raising the nutrition level and
the living standard of people of the Nation664.

4.3 Labour Laws in India

4.3.1 Laws Directly Related to Indian Construction Industry are discussed

below:

A. The Building and Other Constructions Workers (Regulation of Employment

and Conditions of Service) Act, 1996 (Act No. 27 of 1996)
B. The Building and Other Construction Workers’ Welfare Cess Act, 1996 (Act
No. 28 of 1996)

A. The Building and Other Construction Workers (Regulation of

Employment and Conditions of Service) Act, 1996 (Act No. 27 of 1996)

659
All India Reserve Bank Employees v. Reserve Bank, AIR 1966 SC 305
660
The Constitution of India, art. 43A
661
AIR 1976 SC 1455
662
AIR 1979 SC 75
663
AIR 1983 SC 75
664
The Constitution of India, art. 47

123
 There are more than 28 million skilled and unskilled workers engaged in the
construction sector in India. This sector is labour intensive and most of the labourers
are unskilled, illiterate and hence tend to work under inhuman and pitiful conditions.
Risk to life and limb is also inherent. To address such inhuman working conditions
and poor health & safety standards in the real estate industry, the Government of India
enacted a comprehensive central legislation i.e. The Building and Other Constructions
Workers (Regulation of Employment and Conditions of Service) Act, 1996 665 for
regulating the health, safety, welfare and other conditions of workers. The Act is a
social welfare legislation the prime objective of which is to benefit worker class
engaged in building and construction activities across the country. The Preamble of
the Act, 1996 provides that the Act is to regulate the employment and service
conditions of building & other construction workers. The Act contains legal
provisions related to Safety, Health and Welfare of building workers666.The Act is
extended to the whole of India and came into force on 1 st March 1996667. The object
of the Act is to grant various benefits in favour of the construction workers and
building workers viz., fixing normal working hours, granting weekly rests with
payment, release overtime payment, arrangement and extending welfare amenities at
worksite, hygienic living accommodation at or nearby the site alongwith proper safety
and health facilities668.

i. General Provisions of the BOCW (RECS) Act, 1996

Act covers and is applicable to every establishment employing ten or more than ten
building & construction workers in any establishments dealing in building or
construction work on any day of the preceding twelve months 669. Building workers
working or employed in different relays or shifts in a day either by the employer side

665
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 has been repealed by the Occupational Safety, Health and Working Conditions
Code, 2020 (37 of 2020) vide Sec. 143. The notification for the date of enforcement of Occupational
Safety, Health and Working Conditions Code, 2020 (37 of 2020) has not come till date.
666
Mondaq, Connecting knowledge & people, available at:
http://www.mondaq.com/india/x/599764/Building+Construction/Applicability+Of+The+BOCW+Act+
1996+On+Factories (last visited on December 22, 2020)
667
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), ss. 1(2), 1(3)
668
National Campaign Committee for Central Legislation on Construction Labour v. Union of India,
(2010) 9 SCALE 442
669
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 1(4)

124
or on contractor’s payrolls shall be considered and counted while calculating the
number of employed workers.

As per the BOCW (RECS) Act, 1996 the “Building or Construction Work” means
thereby construction, demolition or maintenance, alteration, repairs of roads, streets,
buildings, railways, airfields, tramways, drainage, embankment & navigation works,
irrigation, flood control works & activities (comprising storm water drainage
activities or works), generation, transmission & further distributing power, water
works (comprising different channels for distributing water), electric lines, radio, oil
and gas installations, wireless, television, telephone, telegraph and overseas
communications, reservoirs, dams, tunnels, canals, bridges, viaducts, watercourses,
aquaducts, pipelines, cooling towers, towers, transmission towers and other related
works, functions, operations and activities as specified by the appropriate
Government, through publishing notification but excluding building or construction
work for which statutory provisions contained in the Factories Act, 1948 (63 of 1948),
or the Mines Act, 1952 (35 of 1952), apply670.

The Act defines “Building Worker” means thereby an individual or person employed
or engaged to perform any skilled, semi-skilled, unskilled, supervisory, manual,
clerical or other relevant technical activity or work for any reward or hire, whether the
employment terms be clearly expressed or otherwise implied relevant with any
building or construction activity or work but excluding any such individual or person
(i) who is engaged or employed or working particularly in a managerial or
administrative position; or (ii) who, being employed or engaged in a particular
supervisory position is extracting wages more than rupees one thousand and six
hundred per mensem or handles, either by nature of activity attached with office or
due to the causes of the powers he is handling or functions or activities particularly of
a managerial type671.

The term “Contractor” under the said Act, 1996 means thereby an individual or
person who has taken the responsibility to produce a particular output or result for
industrial unit or establishment, except just supplying articles, items or goods of

670
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 2(1)(d)
671
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 2(1)(e)

125
 manufacture, by providing employment to building or construction workers. The
contractor also means a person involved in supplying building workers to perform for
any activity, functions or work for the industrial unit or establishment, and comprising
a sub-contractor also672.

The term “Employer” in respect of an industrial unit or establishment means thereby:

 With respect to building or construction work and activity carried on by the

Government without engaging any contractor, the specified appropriate authority
or HoD i.e. head of the department.
 With respect to building or construction works carried on by local authority
without any engaging or employing any contractor, the Chief Executive Officer
appointed in the establishment.
 With respect to Buildings or relevant construction works carried through a
contractor, the contractor would be employer673.

As per the Building and Other Construction Workers (RECS) Act, 1996 the term
“Establishment” means any establishment that is under the control or belongs to
Government, any corporate organization, a person or an individual, body of
individuals or associates offering employment to construction workers in any
establishment dealing with building or construction activity, functions, operations or
works; and also comprises an industrial unit or establishment that belongs to a
contractor, but except an individual engaging or employing workers in building or
contraction work for his own residence involving cost not more than Rs. 10,00,000/-
(Rupees Ten Lakhs)674.

ii. Registration of Establishments

Registration of establishment is compulsory for employing contract labour.

The Act provides that every employer of establishment to which provisions of this
Act applies w.e.f. its enforcement, within period of sixty days from such enforcement

672
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 2(1)(g)
673
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 2(1)(i)
674
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 2(1)(j)

126
 and for other establishments attracting provisions of this statute applies at any time
after that enforcement within a sixty days of time period w.e.f. the date when this
statute becomes enforceable or applicable to such industrial unit or establishment
submits an application with the office of registering officer for the said objective675.

When employer makes application with required fees, the registering officer shall
make registration of the establishment and issue registration certificate (RC) in favour
of the employer. After registration, if any change occurs in such establishment, the
particulars related to the change shall mandatorily be further communicated by the
employer towards the office of registering officer within time period of 30 (thirty)
days 676 . No employer can employ building worker in the establishment without
completing the necessary / mandatory process of registration of establishment 677.

iii. Beneficiaries of the Fund

Every building worker performing duty for the employer in an industrial unit or
establishment covered under this Act, shall compulsorily be registered as a
beneficiary and definitely be eligible for all advantages & benefits as offered and
granted by the Board from its fund678. A State Welfare Board is constituted by every
State Government for providing benefits to building workers679.

For example, the Punjab Building and Other Construction Workers Welfare Board
was constituted under “The Building and Other Construction Workers (RECS) Act,
1996680. The function of the board is to register the building and construction workers
in the Punjab State, to frame and design welfare schemes for these workers and to
provide them various financial benefits. The mission of the Board is to uplift the
living standards of the construction workers and their family members by providing
basic amenities and welfare schemes after enrolling them as beneficiaries with the

675
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), ss. 7(1)(a), 7(1)(b)
676
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), ss. 7(2), 7(3), 7(4)
677
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 10
678
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 11
679
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 18
680
The Board is constituted vide Punjab Govt. Notification No. S.O.17/C.A.27/96/S.18/2/2009 dated
30/04/2009

127
 Board and making them eligible for benefits under various welfare schemes of the
board in a clear and efficient manner 681.

iv. Registration of Building Workers as Beneficiaries

Registration is necessary for every building worker who has completed the age equal
or more than 18 (eighteen) years, but under 60 (sixty) years and who is working and
engaged in any construction or building operations & works. Working for minimum
90 (ninety) days during the last gone 12 (twelve) months is compulsory requirement
for the said purpose682.

An application for registration in prescribed form along with requisite fees

accompanied by required documents shall be made to the officer authorised by the
Board, so that benefits can be granted to beneficiaries. After satisfaction of the
documents submitted by the worker, the registering officer shall register in his records
the name of the building & construction worker as beneficiary683.

v. Cessation as a beneficiary

A building worker shall cease to be a beneficiary upon attaining the age of 60 (sixty
years) or upon leaving the construction or building activities & operations for not less
than 90 (ninety) days in a year 684.

It is also for the benefit of building workers that if a person or individual had been a
beneficiary and availing advantages & benefits for at least 03 (three) years regularly
immediately before reaching the age of 60 (sixty) years, then prescribed benefits shall
be given to him as per the legal provisions685.

vi. Constitution of the State Welfare Board

Every State Government is required under the BOCW (RECS) Act, 1996 to constitute
a Board called the (State’s Name) Building and Other Construction Worker’s Welfare
681
Punjab Building and Other Construction Workers Welfare Board, available at:
https://bocw.punjab.gov.in/bocwstatic/about (last visited on September 16, 2021)
682
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 12
683
Ibid.
684
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 14(1)
685
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 14(2)

128
 Board to use the powers as bestowed upon, and shall execute such functions as
allocated to it, under the Act. The constituted Board shall include an equal number of
members representing the State Government, the Employers and the Building
Workers with at least one woman member of the Board686. The functions of the Board
can be described as under:
 To provide support at the very earliest to beneficiary in accident cases
 Granting pension payment favouring beneficiaries over the age of 60 (sixty) years
 Providing advances, loans and sums towards beneficiary for house construction
 Premium payment for Group Insurance Scheme favouring beneficiaries
 Financial Assistance favouring for study of children of beneficiaries
 Meeting of medical expenses for treatment of major ailments of a beneficiary
 Payment of maternity benefit and advantages towards female workers
 Improvement in welfare measures keeping in view the circumstances
 Annual payments for grants-in-aid to a local authority / employer for benefiting
building and construction workers and their family members687.

vii. Fixing Hours in Routine Working Day, etc.

The appropriate Government has the power to fix the number of hours for working
which shall comprise a normal routine working day for a building & construction
worker with one or more than one intervals as specified. A rest day in every serven
days of period must be allowed to all building & construction workers and
accordingly payment of remuneration shall be released688. If a building worker works
on any day of rest, he shall be paid not less than the overtime rate.

Government is empowered to fix the number of hours of work for a building worker,
so that a day of rest in every period of 7 days and for the payment of remuneration for
such days of rest, to provide for payment of work done on a day of rest at a rate not
less than overtime rate of payment689.

686
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 18
687
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 22
688
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 28
689
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 28

129
viii. Wages for Overtime Work

If a building worker in his normal working day has to perform work in excess of the
normal hours of working in a day, he shall compulsorily be paid wages for overtime at
the twice rate of his ordinary wages rates. “Ordinary Rates of Wages” comprises basic
wages including that allowances as the worker is eligible for, but not including bonus
payment etc.690.

ix. Prohibition of employment of Certain Persons in Construction Work

A person suffering from deafness, defective vision or tendency to giddiness as it

involves a risk of accident to the worker himself and other persons691.

x. Drinking Water Facility

At the place, where the building / construction work is going on, an employer is
bound to make available effective arrangements at suitable points conveniently
situated for all persons employed therein, wholesome drinking water in sufficient
supply with legibly marked with “Drinking Water” in that words or language as
majority of the persons employed understood. Such point of drinking water shall be
situated atleast 06 (six) metres far away from place of washing, urinals or latrines692.

xi. Latrines and Urinals

Act requires employer to provide sufficient latrine and urinal accommodation for use
of building workers at place where building or other construction work is going on.
The latrine and urinal accommodation should be easily accessible for workers. No
separate urinals in any place where less than 50 (Fifty) persons are employed or where
the latrines are connected with a water-borne sewage system693.

xii. Accommodation for Building Workers

690
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 29
691
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 31
692
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 32
693
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 33

130
 The employer shall provide at cost free temporary living accommodation within the
work site or nearby. The living accommodation shall be arranged with separate
cooking place, washing, bathing and lavatory facilities for all building workers
employed by him for till the period as the building / construction work is in progress.
The employer at his own cost has to restore the ground in good level and clean
condition after the completion of building work694.

xiii. Crèches

It is good provision in the Act that at every construction site / place where more than
50 (Fifty) female building workers are employed, the employer has to provide and
maintain a suitable room(s) for the use of children below the age of six years of such
female workers. The room should be adequately lighted and ventilated & clean. This
all should be under the supervision of a woman who must be trained in caring
children and infants695.

xiv. First Aid

First aid facilities are to be arranged and provided by the employer free of any cost to
building workers in a best way696. The facility is required for the purpose of treatment
of minor injuries of construction workers.
xv. Canteens etc.

Canteen facility for use of workers is required to be provided and maintained by

employer where two hundred and fifty building workers or more are generally
employed with other welfare measures for the benefit of building workers697.

xvi. Safety Committee and Safety Officers

Safety Committee consisting of representatives of employer and building workers is

mandatory to be constituted in every establishment employing five hundred or more
workforce. It is the condition that representatives of employer and building workers

694
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 34
695
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 35
696
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 36
697
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 37

131
 are equal in proportion. Appointment of a safety officer is also mandatory in
establishment employing five hundred or more workforce / building workers 698. Some
duties of safety officers are given below:
 Imparting Safety Training to Building Workers
 Inspections of Construction Sites
 Investigation of Accidents and Incidents
 Ensuring various Compliances at Work Site
 Review Safety Programmes and Policies 699

xvii. Notice of Accidents

Where an accident occurs in an establishment causing fatality or any bodily injury

preventing injured person from working for a period of 48 hours or more immediately
after the accident, the employer is required to give notice thereof to authority as
appointed under the Act. The said authority shall make investigation / inquiry of
accident occurred if deems necessary. It is also an important provision which is
required to be mentioned here that where an accident causing death of five or more
than five persons, the authority shall conduct an inquiry / investigation for finding
reasons of accident within period of 01 (one) month of receiving the accident
report700.

xviii. Power of Authority to Draft Rules for the Health & Safety of Building &
Construction Workers

Rules can be drafted by the Appropriate Government through mode of publishing

notification for the safety, health and wellbeing of building & construction workers in
their employment course and the required appliances, articles & equipments to be
supplied to them for their proper safety, health, well being and protection during that
service or employment. Such drafted rules may includes, namely701.

698
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 38
699
Kiri Align, available at: https://www.kirialign.com/blogs/duties-responsibilities-of-a-safety-officer-
in-the-construction-industry (last visited on September 16, 2021)
700
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 39
701
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 40

132
 the safe and best accessing means, and safety of working place, comprising the
suitable, best and sufficient scaffolding at different stages when duty or work is so
difficult to be performed from the bottom level or ground level or from ladder or
any other method of support.
 the precautions to be efficiently adopted while demolishing building or building
structure under the direction, proper supervision & management of a competent &
efficient person & individual and the avoiding danger from collapsing of any
structure or building while removing & erasing any structure by shoring.
 handling of explosive substances under the control of able & competent persons to
avoid risk of injury & harms from flying material or explosion.
 erection, maintenance and installation & use of transporting devices & equipments
viz., wagons, trucks, vehicles, locomotives and trailers and appointing
capable/competent persons for the purpose of driving or operating equipments.
 erection, proper installation with use of technology, use and best maintenance of
lifting appliances, hoists and lifting gears comprising periodical testing and
inspection and heat treatment, wherever required, special and mandatory
precautions to be adopted while lowering or raising loads, prescribed restrictions
on carrying persons and appointing competent and capable persons on lifting
equipments, appliances or hoists etc.
 the best, sufficient, adequate and proper lighting of workplace and in path thereto,
of every place where operations, works and activities of lowering down or raising
up using hoists, lifting appliances or gears are in full progress and of all paths
seems dangerous for building & construction workers engaged at site.
 the precautions to be adopted for preventing inhalation of dirty fumes, dust,
vapours, gases or dirty air during grinding, cleaning, spraying procedure or
necessary steps to be taken for maintaining & securing adequate & best ventilation
of every working site.
 the precautions to be adopted efficiently during process of stowing or un-stowing
of materials, articles, goods, stacking or un-stacking or their handling.
 the proper safeguarding of equipments, machineries comprising fencing of each
revolving part of prime mover and each flywheels and each part of transmission

133
 etc., unless ensuring safety for every building & construction worker performing
work on construction site as if it were fenced in secure way702.
 the handling safely and making use of plant, including tools & equipment as
operated by compressed air.
 the precautions to be adopted in situations of
o fire
o lifting, lowering down, moving here and there weights by workforce
o the safe moving workers from one place to another by way of water. Also to
ensure rescue means from drowning
o protecting workers from dangers from live electricity & electrical wires
comprising electrical tools, articles, machineries and also wires overhead
o to keep readily available big & medium size safety nets, best quality safety
belts, high quality safety sheets for the ensuring safety of the building &
construction workers
o the high quality standards to be complied in relation to lifting appliances &
articles, ropes, high & small ladders, temporary & permanent scaffoldings,
iron & wooden stairs, chains and relevant accessories, floating operational
articles & equipments and heavy & light earth moving equipments
o the precautions in high manner to be adopted for handling hot asphalt, pile
driving, dust & concrete work, tar work, operations of demolishing, insulation
work & activities, construction under the earth703
o the safety policy fir ensuring wellbeing, safe working environment, safety &
health of the building & construction workers
o the Medical Facilities for workers working at construction site 704.

xix. Powers of Inspectors

An Inspector appointed may within the limits of his area has following powers
 He can enter at all reasonable hours any premises or place where building or other
construction work is carried on, for the purpose of checking / examining any

702
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 40
703
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 40
704
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 40

134
 register or record or notices required to be kept or exhibited by or under this Act,
and require the production thereof for inspection.
 Inspector can examine any person who is a building worker employed
 To require any person or building worker to give any relevant information
 To take or seize copies of register, wages record, ledgers or notices or portions
thereof and any other powers as assigned to him by the Government705

xx. Responsibility of Employers

An employer shall totally be responsible for extending best supervision of any

building or construction activity in the establishment for ensuring compliance under
the BOCW (RECS) Act, 1996 relating to wellbeing, safety and health for taking all
practical ways for preventing mis-happenings & accidents 706 . Timely payment of
wages to workers is the prime responsibility of employer. If contract labour is
working on the site and contractor not making timely payments, then principal
employer shall be responsible & liable to release those payments in event of worker’s
death or his total or partial disablement707. However, employer has right to recover
the paid amount from the contractor. Employer is required to send a written notice at
least thirty days before the starting or commencement of building or other
construction work to Inspector appointed under the BOCW (RECS) Act, 1996. A
written notice must display information like name with place where building or
construction activity or operations are proposed to be started alongwith name and
address of the wholly responsible person at such site, address for the purpose of
communication, information related with plant, equipments and machinery,
manpower to be employed etc708.

xxi. Penalty for Various Contraventions under the BOCW (RECS) Act, 1996

Contravention of any rules made for the safety and health of building and other
construction workers is punishable with imprisonment upto three months, or with fine

705
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 43
706
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 44
707
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 45
708
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 46

135
upto two thousand rupees or with both. Continuing contravention is punishable with
extra fine upto rupees one hundred for every day for the first contravention after
conviction. Person convicted of any crime or offence as cited above and is proved
again guilty of crime or offence including failure or contravention of compliance of
the same norm or rule, punishment shall be awarded on a succeeding conviction with
six months of imprisonment, or with fine atleast rupees five hundred, but which may
be extended upto rupees two thousand rupees or with both709.

Failure to issue notice of starting of building or construction operation, activity or

work to the concerned area’s Appropriate Authority is strictly punishable with three
months of imprisonment, or with fine upto rupees two thousand or with both710.

Obstructing an Inspector in discharging the official duties or refusing inspector to

inspecting & examining construction site or straightway refusal to show any register
to an Inspector, then punishment shall be three months of imprisonment, or fine upto
rupees one thousand or with both711.

Contravention or failure in complying with any provision of the BOCW (RECS) Act
or any rules prepared there-under is, where no express penalty is given for such
contravention / failure shall be punishable with fine upto one thousand rupees for
every such contravention or failure. Continuation of contravention or failure in
complying the provisions of this Act is punishable with additional fine upto one
hundred rupees for every day during which such failure or contravention continues
after the conviction for the first failure or contravention712.

Exercising the powers as granted under the sections 40 & 62 of the BOCW (RECS)
Act, 1996, the rules relevant with construction were made by the Central Government.
The rules are known as “The Building & Other Construction Workers (Regulation of
Employment & Conditions of Service) Central Rules, 1998”. The rules are
undoubtedly applicable to the building operations or construction works & activities

709
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 47
710
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 48
711
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 49
712
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Act, 1996 (Act 27 of 1996), s. 50

136
 related with any industrial unit or establishment in relation to which appropriate Govt.
is the Central Govt. under this Act713. The said rules shall come into force w.e.f. the
date714 of their publication in the India’s Official Gazette.

xxii. Duties and Responsibilities of Employers & Employees

The duties and responsibilities of employer and employees are discussed below 715
 Every employer undertaking building or other construction work is duty bound to
comply with rules made under the BOCW (RECS) Act, 1996 provided that the
requirements shall not affect any building worker permitted by his employer to do
the work.
 Every employer has to follow rules related to the erection or alteration of
scaffoldings etc. in the completion of building / construction work.
 Contractor is also required under the rules to comply with necessary norms as
affect that tradesman, artisan etc.
 Every employee must comply with the requirements of such rules and co-operate
sincerely at construction sites.
 No person dealing with building operations & construction activity shall wilfully
perform any act that may cause injuries & damages to himself and colleagues.
 Employer is duty bound not to allow lifting gears & appliances, transport
equipments, lifting devices & vehicles or equipments to be used by that category
of building workers not complying with the requirement as needed under rules.
 Employer must maintain the urinals, latrines, canteen & washing facilities in a
proper hygienic, neat and clean condition, so that building workers could use. The
canteen should be away from the urinals & latrines, dirty & polluted atmosphere.
The canteen must be easily reachable for the building & construction workers.
 Employer must release wages in favour of building workers following the
provisions of the said rules. Any change in dates must be communicated to the
building & construction workers and the concerned Inspector of the area under the
BOCW (RECS) Act, 1996.

713
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 1
714
Vide Notification No. G.S.R 689(E), dated 19-11-1998 Published in the Gazette of India, Extra Pt.
II Sec 3(i) dated 19-11-1998 (w.e.f 19-11-1998)
715
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 5

137
  Contractor should also ensure that the payment of wages to the building workers
are paid and disbursed in the presence of employer’s representative from whom he
has taken work on contract as a witness.
 Employer is also duty bound to ensure that the earth moving machines &
equipments, lifting appliances, transport vehicles used in the building operations
or construction activities & works undertaken must match & comply with the
testing requirements, examining and inspecting equipments under the rules716.

xxiii. Responsibilities and Duties of Building Workers

 Every building worker has been made duty bound to comply with rules, and
cooperate properly. If a worker found any defect(s) in the lifting device, lifting
gear, lifting appliance related to transport vehicles or equipments, he should
immediately communicate such defect to employer or responsible person.
 No building worker shall unless authorised or without any approval from
employer or responsible person except in very urgent necessity or need, interfere,
alter or remove any gear, fencing, hatch covering, gangway, ladder, lighting, life-
saving appliances.
 Building worker are encouraged to keep and maintain the latrines, urinals,
washing points, canteen and other related facilities extended from employer side
for securing wellbeing & welfare in utmost neat, hygienic & clean situation717.

xxiv. Safety & Health of Building Workers

Safety and health of building workers is prime concern. So some of the rules related
to protection of safety and health of building workers is discussed below:
 Vibration & Excessive Noise

Employer must ensure at a construction site that adequate measures are taken for the
protection of building workers from bad & harmful effects of extreme & excessive
noise, sound & vibration at construction site where building operations & construction

716
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, Rule 5
717
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, Rule 8

138
work is in progress and the sound & noise level not exceeds the prescribed limits as
set in the Schedule VI718 of the rules719.
 Protection against Fire

Employer must ensure that construction site is provided and equipped with:
 Fire extinguishing equipments enough to extinguish any kind of fire at such
construction site
 Adequate supply of water at ample pressure
 Well trained personnel to operate the fire extinguishing equipments
 Fire extinguishing equipments must be properly maintained & inspected at
regular intervals of not less than one time in a year by the responsible person
and to maintain record of the same.
 Fire extinguishing equipments shall be provided at launch, boat, craft, lifting
appliance for transport of building workers from one place to another720.

 Action Plans for Emergency

It is the duty of an employer to ensure at a construction site where building /

construction work is going one, that in case where more than five hundred building

718
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Schedule VI
Permissible Exposure in Cases of Continuous Noise
(See Rule 34)
Total time of exposure (continuous or a number of short-time Sound pressure level (in
exposure) per day (in hours) dBA)
(1) (2)
8 90
6 92
4 95
3 97
2 100
1½ 102
1 105
¾ 107
½ 110
¼ 115
Notes:
(1) No exposure in excess of 115 dBA is to be permitted.
(2) For any period of exposure falling in between any figure and the next higher or lower figure as
indicated in column (1), the permissible sound pressure level is to be determined by extrapolation of a
proportionate basis
719
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 34
720
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 35

139
workers are employed and working, emergency action plan is required to cope the
emergency situations viz., (i) Fire & Explosions (ii) Collapsing of transport
equipments & lifting appliances (iii) collapse of any buildings, structures and sheds
etc., (iv) Leakage of gas and chemicals (v) escaping building workers from drowning
& sinking of vessels etc., and (vi) landslides resulting in burying of building workers.
Natural calamities like floods, storms are also required to keep under control. Action
plans are required to be submitted with the Director General for approval721.

 Fencing of Motors

An employer employing building & construction workers at the site must ensure that
all chains, friction, all cogwheels, gearing, motors, shafting, flywheels, dangerous,
unsafe & revolving parts of any steam pipes & machinery are safely & securely
lagged and properly covered & fenced. Building workers should be well trained for
not removing any fencing of parts of machinery, while in use or in motion. Moreover,
it is provided in the rules that no part of any moving machine will be examined,
lubricated, repaired or adjusted except by trained/skilled personnel for such
examination, adjustment, lubrication or repairs. Cleaning of the parts must be done
after its stoppage and it must be ensured that machine does not restart due to mistake
while repairing, servicing or lubricating 722.

 Provisions for Carrying and Lifting Excessive Weight

An employer shall ensure at site that no any building or construction worker working
shall lifts manually or on shoulders or over his back or on head any tools, appliances,
article or material more than weight as listed below723:
Person Maximum Weight Load
Adult man 55 (Fifty Five) kg
Adult woman 30 (Thirty) kg
Adolescent male 30 (Thirty) kg
Adolescent female 20 (Twenty) kg724

 Health and Safety Policy

721
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 36
722
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 37
723
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 38
724
Ibid.

140
A safety policy of an organisation is a recognized, written statement committing to
protect the health & safety of the employees. The safety policy also describes
measures to protect the life, limb & health of employees725. It is mandatory under the
rules to prepare Health & Safety Policy of building workers, where fifty or more
workers are employed. The same is required to be approved from Director General.
The safety policy should describe the purposes, wish, commitment and intention of
the industrial establishment for safety, health, wellbeing and environmental guarding
of building & construction workers. Techniques and methods for assessing the risk to
health and safety of building & construction workers, supervisors, trainers, or other
personnel working at construction site is also to be taken into account in safety
policy726. Efforts must be adopted for making safety policy more effective. A copy of
safety policy in Hindi language and in that language as usual among the majority of
building & construction workers shall be displayed at all the conspicuous places at
construction site727.

 Dangerous and Harmful Environment

It must be ensured by an employer that at a construction site:

 To keep the carbon monoxide contents of internal combustion engine below
fifty parts per million and suitable measures to be taken at workplace in order
to avoid exposure of those contents to building workers. The purpose is to
avoid health hazards.
 No building worker is allowed to enter into any confined tank, space, trench
and excavation where vapours, dust, impurity, poisonous gases, fumes likely
to be affect building workers in offensive manner.
 Building worker is also prohibited from entering into any confined space,
trench and tank where there is possibility of dust, impurities, fumes and
deficiency of oxygen, unless & until all sensible steps have been adopted to
remove that fumes, dust or other impure vapours and related dangers.
Workplace viz., tank or trench or excavation is required to be authorized by

725
Safe o Pedia, available at: https://www.safeopedia.com/definition/450/safety-
policy#:~:text=Explains%20Safety%20Policy-
,What%20Does%20Safety%20Policy%20Mean%3F,well%20as%20the%20surrounding%20communit
y. (last visited on October 25, 2020)
726
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 39
727
Ibid.

141
 the answerable person to be fit & safe for the entry of building & construction
workers728.

 Overhead Protection

 The employer under these rules is duty bound to ensure at the site where
building or other construction work is going one that overhead protection
would be raised along side-line of each & every building undergoing
construction, which must be of 15 (fifteen) metres or more than 15 (meters) in
height after completion.
 Overhead protection referred above shall not be less than 02 (two) metres in
width & to be erected at elevation not greater than 05 (five) metres above the
building base & the outer side edge of erected overhead protection will be 150
(one hundred fifty) millimetres greater than the inner edge or to be erected at
an angle of not greater than 20 (twenty) degrees towards its straight sloping
into building.
 The employer is also bound to ensure at the construction site that any area
involving risk related to falling of object, article or material is cordoned off or
roped off or effectively guarded from unplanned entry of public/persons
except building & construction workers at work in that area729.

 Cutting, Slipping, Tripping, Drowning & Falling Hazards

 All passageways, places, platforms besides other construction work at the site
shall be kept free from any kind of accumulations of dust, related material,
debris (Construction Malwa) & from similar obstructions & obstacles that
may cause & results in tripping.
 Any sharp projections / protruding nails / similar projections that may cause
any injury to a building & construction worker at the construction site shall be
taken away and must be made secure & safe by adopting best & suitable
measures from the employer side.
 No employer shall allow any building worker at the site where building / other
construction work is in progress to use any passageway, scaffold and platform

728
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 40
729
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 41

142
 or any kind of elevated working surface which is found to be slippery and
dangerous in nature and shall ensure that water, oil, grease or other similar
nature of substances which makes the surface slippery, be removed or covered
with sand, saw dusted or cover it with some other best quality material to
make it secure & safe from slipping dangers at site of construction work730.
 Whenever building workers are exposed to the hazards like falling into water,
employer shall provide them required equipments for saving themselves from
drowning and to be rescued from that hazard. Trained personnel & staff shall
be employed by the employer at the construction work site for protecting
building workers from such kind of dangers.
 Every open side where there is a danger of falling at a building or construction
work shall be safely guarded or covered by the employer to prevent fall.
 Wherever building workers are exposed to the hazards specially filing from
height, employer shall provide them the equipments for the purpose of safety
from such hazards.
 If there is a possibility of falling of any tools, material, articles, equipments or
building & construction worker at a construction site, safety net in accordance
with national standards or of a highly quality shall be provided by employer
side free of cost keeping in view the safety of building workers731.

 Gases, Dust and Fumes etc.

 An employer shall prevent by suitable means concentration of dust, fumes and

gases that they may not results in causing injuries or creating health hazard to
building workers at construction site732.

 Corrosive Substances

 It must be ensured by the employer that corrosive substances like alkalis, acids
shall be kept, stored & used by a professional person dealing with such
substances at work site in such a way that it does not affect & endanger the life

730
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 42
731
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 42
732
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 43

143
 of building workers. Suitable, effective and protective equipments shall be
arranged and provided from the employer side towards a building worker
during usage & handling such substances733.

 Protection of Eyes

 Personal Protective Equipments for the protection of eyes is necessary in

construction industry. The same shall be provided by an employer for the use
of building workers employed in operations like welding, chipping, grinding,
cutting and other like operations, which may cause hazards and danger to his
eyes while doing construction work734.

 Protection of Head and Other Protective Apparels

 Safety helmets should be provided to every building worker by the employer.

 Suitable waterproof hats, raincoat & boots should be provided to building
workers by the employer without charging any cost to perform work during
rain or in similar kind of wet condition at construction site. Water-proof
raincoat with hood or hat is also to be provided to building worker.
 Personal Protective Equipments (PPEs) should also to be provided to every
building worker for handling alkalies, acid or other similar corrosive
substances while at work.
 Suitable hand gloves must be given to every building worker to handle sharp
objects.
 All PPEs provided must be in accordance with national standards like ISI
mark735.

 Safety from Electrical hazards

 Adequate measures to be adopted for protecting worker from bodily contact

with electrical wires, equipments or apparatus, any machines or live electrical

733
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 44
734
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 45
735
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 46

144
 circuits and wires which can results in electrical hazard during working at a
construction site.
 The employer is required to display & maintain warning signs at suitable
places at a construction site in Hindi or in a language popular locally among
the building workers majority.
 Insulated protective gloves and Footwear should be provided to building
worker for protection from hazards while using crow bars, jack hammers,
other hand articles & tools, which may easily be came into contact with
electricity or live electrical lines / wires.
 Employer is required to ensure that no live electrical wires, wirings, which
may easily come physically into contact with water or is totally or partially
mechanically broken is left on floor, bottom level or ground at a place where
building or construction work is going on.
 It must be ensured by the employer that all electrical wires, appliances
carrying current equipments utilized at a building work site should be made up
of high quality and of sound material and are earthed in proper & effective
way. All electrical installations must have earth-leakage circuit breakers.
 All electrical installations must comply with the statutes, legal provisions and
norms for the time being in force 736.

 Vehicular Traffic

 All vehicular traffic which is danger for building workers must be barricaded
and warning signs, boards and lights must be displayed or raised with an aim
to prevent that danger. Authorities can be contacted to control such situation.
 Vehicles utilized at construction site must comply with the rules & regulations
as contained in the Motor Vehicles Act, 1988 (Act No. 59 of 1988).
 Drivers of vehicles must hold a valid driving licence737.

 Stability of Structures

 It must be ensured from the employer side that no wall, structure, chimney or
any part of a structure is remained unguarded. That structure should not fall,

736
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 47
737
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 48

145
 weaken or collapse due to vibration by wind pressure or because of other
causes at construction site where building work or construction operation is
going on738.

 Passageways Illuminations etc.

 Employer is required to maintain sufficient illumination for maintaining safe

working conditions at a site for passageways, stairways & landing. Such
illumination must comply with the national standards set in the country739.

 Stacking of materials

 All building materials must be stored in a safe and orderly manner for the
purpose of avoiding any obstruction to passageway or place of work.
 Under these rules, material piles must be stored and stacked in such a way so
as to ensure stability740.

 Disposal of debris

 The employer under is duty bound to ensure at a site of construction that:

 Debris (Construction Malba) are handled in very effective way and disposed
of through a procedure that does not endanger the person’s safety.
 Debris must be managed in proper manner and not be allowed to accumulate
which ultimately results in constituting hazards at the site.
 Debris is prohibited to be thrown from height/floors and to be kept properly
moist to bring down the dust within the limit which is permissible.
 When the work is completed, left over building material, concrete or debris are
disposed of in proper manner to avoid hazards to persons or concerned
workers741.

 Construction and Proper Maintenance of Lifting Machines & Appliances:

738
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 49
739
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 50
740
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 51
741
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 52

146
 It must be ensured by the employer at a construction site that:
 All Lifting appliances to be utilized in construction activity are of sound and
of a quality material, and strong enough to be used and related appliances must
be free from patent defects and required to be maintained in good repair &
working condition.
 Lifting appliances must be strong to prevent fall of a load and act without any
shock742.

 Operator’s Cabin or Cab

At construction site, it must be ensured by an employer engaged in construction that

the operator or driver of each lifting machine during outdoor working is given a
facility of cabin or cab manufactured by using material which is totally fire resistant
with suitably fitted seat, a footrest & protection from vibration. It is also to be ensured
that operator has an adequate/proper view of the area under operation and is protected
against bad weather conditions. He must also be provided suitable fire extinguishers
systems743.

 Carrying of persons by means of lifting appliances, etc.

No building worker should be carried, raised or lowered by a lifting appliance which

is power-driven except on the platform of driver in the crane’s cage, on approved
suspended scaffold or on hoist744.

 Breathing Apparatus

 The employer must ensure that suitable breathing apparatus is provided to

every building worker where air is compressed in working environment for his
use at tunnelling / excavation work. The breathing apparatus must be kept in
well working condition all the times745.

 Construction and Safe Use

742
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 55
743
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 63
744
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 77
745
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 131

147
  It must be ensured by the employer that at a construction site, every
ladder/step ladder to be utilized in building operations or construction work is
of good construction, manufactured by using sound and high quality material
and adequately strengthen. Rule provides that a ladder never set on loose
bricks and has a level & firm footing746.

 Safety Belts and its Use

The employer shall ensure the following instructions at the construction site:

 Every building worker must be provided Safety Belt and also Safety Lifelines
for safety, security and protection.
 All building and construction workers utilizing safety belts, safety lifelines
must possess the knowledge of its safe & secure utilization and maintenance.
Workers can be trained in this regard.
 Safety belts, Safety lifelines must be fit for use before utilization by workers at
every time747.

 Safety Committees

 Establishment or undertakings employing five hundred or more than five

hundred building & construction workers ordinarily shall constitute & setup a
Safety Committee. The safety committee must comprise equal number of
employer’s and building worker’s representatives748.

 Safety Committee-Main Functions

 To examine probable reasons of unsafe practices & accidents prevailing in

building operations or construction work and to offer remedial measures.
 To inspire interest in safety by arranging safety competition, safety weeks,
talks and related film shows on security, safety, wellbeing and preparing
posters or adopting similar other measures with regard to wellbeing & safety.

746
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 172
747
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 178
748
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 208

148
  To detect unsafe environment, situations, conditions & practices and to offer
and suggest remedial ways for rectification comprising first aid, welfare
facilities and Medical Facilities.
 To inspect the hazards against health arising from handling chemicals,
explosives and other construction material and to suggest remedial measures
like using PPEs.
 To improve welfare amenities at the construction site.
 To develop safety, health and welfare measures in building or other
construction work749.
 The Safety Committee constituted must organise meeting at least one in every
months in calendar year. The meeting must be held under the chairmanship of
senior most official, who has ultimate control over construction site 750.

 Safety Officer

It is provided that establishment employing five hundred or more building workers

ordinarily shall appoint Safety Officers assisted by staff team. Appointment of Safety
Officer should be done with the prior permission of the concerned Director
General751.

 Medical Examination of Building Workers

The employer has to ensure that a building worker engaged in work which is risky or
involve hazards must be medically examined at various intervals as per the
requirement from time-to-time. The medical examination involve like diagnosis of
occupational disease or any other health hazards752.

 Ambulance Room

 It is provided that Ambulance Room is required to be arranged at a

construction site where five hundred or less workers are employed or an

749
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 208
750
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 208
751
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 209
752
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 223

149
 arrangement in a nearby hospital for making availability of an ambulance
room. Such ambulance room should be supervised by a qualified nurse and the
ambulance room service must be made readily available to all building
workers working at work site.
 If employer has employed number of building workers more than five hundred
at site where building / construction work is going on, an ambulance room
with excellent communication system is required to be arranged and
maintained. Ambulance Room must be supervised by a qualified nurse.
Ambulance room should be made available to every building worker at every
time when he is performing work at site.
 It is provided under the rules that Medical Officer is required to be deployed
for the purpose of supervision of Ambulance Room753.

 Ambulance Van

Accidents are very common in construction industry. Therefore, it is mandatory for

the employer that an ambulance van is provided at work site for transportation of
serious accident cases or sickness of the construction workers to the hospital timely.
Ambulance van shall necessarily be maintained in excellent working condition to
avoid any kind of harassment during its need 754.

 Stretchers

The employer is bound under rules to ensure at a construction site that sufficient
number of stretchers are made available for meeting emergency situations755.

 Occupational Health Services for Workers in the Construction Industry

It is the duty of an employer to ensure at a work site of a building / construction work,

where 500 (Five Hundred) or more than 500 (five hundred) building & construction
workers are employed that:

753
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 226
754
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 227
755
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 228

150
  Special Medical Services readily available for building & construction
workers at all times
 First-aid and proper emergency treatments are ready
 Special Medical Examinations will be conducted for examining building
workers before and after their employment
 Trainings will be imparted to first-aid staff / personnel of Medical Services
 Employer will be informed for improvements in conditions for avoiding
hazards at work site
 Health education schemes and family welfare policies will be explored among
building workers
 Building workers will be immunized against tetanus, typhoid, cholera and
some other contagious diseases756.

 First-Aid Boxes

It is provided that the employer / contractor shall ensure at work site where building /
construction work is going on that sufficient first-aid boxes, cupboards are provided
and maintained for extending facility of first-aid towards the building workers. First-
aid boxes, cupboards should be marked clearly as “First-Aid” and contains the items
as provided in Schedule III757.

756
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 229
757
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Schedule III
CONTENTS OF A FIRST-AID BOX
[SEE RULE 231(B)]
(i) A sufficient number of eye wash bottles filled with distilled water or suitable liquid
clearly indicated by a distinctive sign which shall be visible at all times.
(ii) 4 per cent xylocaine eye drops, and boric acid eye drops and soda bicarbonate eye drops,
(iii) Twenty-four small sterilised dressings
(iv) Twelve medium sized sterilised dressings
(v) Twelve large sized sterilised dressings
(vi) Twelve large sized sterilised burn dressings
(vii) Twelve (fifteen cm) packets of sterilised cotton wool.
(viii) (Two hundred ml) bottle of certimide solution (1 per cent) or suitable antiseptic solution.
(ix) One (Two hundred ml) bottle of mercurochrome (2 per cent) solution in water.
(x) One (One hundred twenty ml) bottle of salvolatile having the doses and mode of
administration indicated on the label
(xi) One pair of scissors
(xii) One roll of adhesive plaster (six cm x one metre)
(xiii) Two rolls of adhesive plaster (two cms x one metre)
(xiv) Twelve pieces of sterilised eye pads in separate sealed packets
(xv) A bottle containing hundred tablets (each of three hundred twenty-five mg) of aspirin or
any other analgesic

151
First-aid box, cupboards etc., are to be kept protected from contamination through
dust and moisture. Personnel trained in first-aid treatment have to supervise and must
always be readily available during working hours at construction site758.

 Emergency Caring Service or Emergency Treatment

The employer shall ensure for building workers:

 essential life-saving aids and appliances for treatment of head & spinal
injuries, fractures, dislocations of bones, bleeding, and displacement of joints,
shock, comprising electric shocks, crush injuries, dehydration due to any
cause, snake or insect bite, scorpion and bee stings, any burns comprise of
burns due to chemical reactions, divers or bends paralysis, other
gynaecological, surgical, paediatric or obstetric critical situations, sunstroke
attacks, drowning and frost bite.
 The life saving appliances for handling above mentioned problems should be
maintained under the supervision of a qualified Construction Medical Officer
(CMO)759.

 Hours of Work, Rest Intervals, Spread Over etc.

 It is provided in the rules that no any building worker working in construction

operations shall perform work/duty for more than 09 (nine) hours in a normal
working day or 48 (forty eight) hours in a week.

 Provision of rest is a good initiative for workers. Consequently, it is ruled that

no building worker shall perform duty / work continuously for more than five
hours unless there is rest interval for minimum ½ (half) an hour duration.

(xvi) Twelve roller bandages ten cms wide

(xvii) Twelve roller bandages five cms wide
(xviii) One tourniquet
(xix) A supply of suitable splints
(xx) Three packets of safety pins
(xxi) Kidney tray
(xxii) A snake bite lancet
(xxiii) One (thirty ml) bottle containing potassium permanganate crystals
(xxiv) One copy of first-aid leaflet issued by the Directorate General
(xxv) Six triangular bandages
(xxvi) Two pairs of suitable, sterilised, latex hand gloves
758
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 231
759
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 232

152
  The working day of construction worker shall be arranged by the employer in
such a manner that inclusive of all rest intervals, if granted, shall never be
spread over more than 12 (Twelve) hours in normal day.

 Provision for payment of overtime is also given in the rules. It is ruled that
when a building & construction worker perform duty / work for more than 09
(nine) hours in full day or for more than 48 (forty-eight) hours in normal
week, he shall, with regard to work performed during overtime, be paid wages
at double the ordinary wage rates760.

 Rest in Week, Payment for Work performed on Rest Day at Overtime Rates
etc.

 Each building worker shall be granted a rest day in every week. A day of rest
may be any day in a week. Building worker must be informed about the day
fixed for rest and a notice must be displayed in this regard761.
 Building worker is prohibited from doing work on the day of rest unless he is
having or will have a compensatory or substituted rest day for a full day
during five days immediately before or after such day of rest.
 If a building worker worked for more than ten days repeatedly without any full
day rest, then no substitution of rest day shall be made.
 A building worker shall be granted payment of wages for a day of rest, similar
to the rates as applicable to the day preceding such rest day. In case, building
worker has performed duty on a rest day and has been granted substituted rest
day, payment of wages shall be made for such rest day on which he
worked/performed duty, at the overtime rates and wages for such substituted
day of rest at the rates applicable to the day preceding such substitute day of
rest762.

xxv. Welfare Provisions for Building Workers are Discussed Below

 Latrine and Urinal Accommodation

760
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 234
761
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 235
762
Ibid.

153
  Latrines or urinals shall be under cover and so partitioned off securing privacy
and shall have a proper doors and fastenings and accessible at all times of
working.
 If male and female building workers are employed at site, then there shall be
marked outside each place of urinals or latrines a note i.e. “For Male Only” or
“For Females Only” as required and it should be written in the language
understandable by the majority of concerned building workers.
 Latrine / Urinals shall be lighted adequately and must be maintained in a neat,
clean & hygienic during all times.
 The partitions, walls, ceilings of every urinal or latrine shall be colour washed
or whitewashed once in every upcoming four months763.

 Canteens

 Canteen is also a welfare provision for building workers. It is provided that at

every site wherein two hundred and fifty building workers or more are
employed ordinarily, the employer of such building workers is required to
provide a canteen facility for the use of such building workers.
 A dining hall with furniture which must be sufficient to accommodate building
workers shall be arranged in Canteen. Kitchen, store-room, pantry and
washing places should be operated separately. Canteen shall be sufficiently
lighted at all times and floor must be made up of impervious & smooth
material. The inside walls of canteen must be colour or lime washed atleast
one time in period of every six months. However, walls inside the kitchen of
canteen must be lime-washed one time in every time period of three months.
Canteen is required to be maintained in a clean and sanitary condition.
Canteen building shall be located at the minimum distance of 15.2 meters
(fifteen point two metres) far away from urinal or latrine area or of smoke,
dust and obnoxious fumes764.

763
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 243
764
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 244

154
  It is further ruled that the foodstuff & other related items to be served to the
building workers in the canteen shall confirm with their normal dietary
habits765.
 If construction work is situated 0.2 Kilometre far away from canteen, it has
been ruled mandatory for the employer to serve light refreshment with tea for
building workers at construction site766.
 The foodstuff charges shall be based on no gain and no loss basis and price list
shall be displayed at common place in Canteen767.

 Payment of wages

Building workers must be paid wages before the expiry of the seventh day where less
than 1000 (one thousand) building & construction workers are working and in other
cases before the tenth day of the month expires768.

B. The Building and Other Construction Workers Welfare Cess Act, 1996 (Act
No. 28 of 1996)

The Building and Other Construction Workers Welfare Cess Act, 1996 769 aims to
provide for the levy and collection of a cess on the cost of construction incurred by
employers with a view to supplement the available resources connected with building
and construction workers state welfare boards as established & constituted under the
BOCW (RECS) Act, 1996770. It is extended to the whole of India and came into force
on 3rd November 1995771.

Levy and Collection of Cess

765
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 245
766
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 246
767
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 247
768
The Building and Other Construction Workers (Regulation of Employment and Conditions of
Service) Central Rules, 1998, Rule 248
769
The Building and Other Construction Workers Welfare Cess Act, 1996 (Act 28 of 1996) repealed by
the Code on Social Security, 2020 (No. 36 of 2020) vide Section 164. However, notification for date of
enforcement of the Code on Social Security, 2020 has not come till date.
770
Ministry of Law and Justice, Government of India, available at:
http://legislative.gov.in/sites/default/files/A1996-28_0.pdf (last visited on December 22, 2020)
771
The Building and Other Construction Workers Welfare Cess Act, 1996 (Act 28 of 1996), s. 1

155
A Cess shall be levied and collected for the purposes of the Building and Other
Construction Workers (Regulation of Employment and Conditions of Service) Act,
1996 (27 of 1996), at rate not exceeding two per cent, but not less than one per cent.
of the cost of construction incurred by an employer. The Cess shall be collected from
every employer in the manner set by the Government. Government may also specify
such rate772.

The employer shall pay the amount of Cess levied, within a period of 30 (thirty) days
w.e.f. the date of construction project completion or within 30 (thirty) days w.e.f. the
date on which payable Cess assessment is finalized, whichever will be earlier, to the
Cess collector773.

If duration of the construction work exceeds one year, Cess shall be paid within thirty
days of completion of one year from the date of commencement of work 774 . It is
option with an employer to pay Cess in advance calculated on the basis of the
estimated cost of construction along with the notice of commencement of work775.

The proceeds of the Cess collected shall be paid by the local authority or the State
Government collecting the Cess to the Board after deducting the cost of collection of
such Cess not exceeding one per cent. of the amount collected 776. The authority shall
assess the amount of Cess payable by the employer 777.

4.3.2 Laws Indirectly related to Construction Industry in India are explored

hereunder:

Labour Laws which are Indirectly related to Construction Industry

A. The Employees Compensation Act, 1923 (Act No. 8 of 1923)

B. The Trade Unions Act, 1926 (Act No. 16 of 1926)
C. The Payment of Wages Act, 1936 (Act No. 4 of 1936)
D. The Industrial Disputes Act, 1947 (Act No. 14 of 1947)
E. The Minimum Wages Act, 1948 (Act No. 11 of 1948)
F. The Employees State Insurance Act, 1948 (Act No. 34 of 1948)

772
The Building and Other Construction Workers Welfare Cess Act, 1996 (Act 28 of 1996), s. 3
773
The Building and Other Construction Workers’ Welfare Cess Rules, 1998, Rule 4(1)
774
The Building and Other Construction Workers’ Welfare Cess Rules, 1998, Rule 4(2)
775
The Building and Other Construction Workers’ Welfare Cess Rules, 1998, Rule 4(5)
776
The Building and Other Construction Workers Welfare Cess Act, 1996 (Act 28 of 1996), s. 3
777
The Building and Other Construction Workers Welfare Cess Act, 1996 (Act 28 of 1996), s. 5

156
 G. The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act
No. 19 of 1952)
H. The Maternity Benefit, 1961 (Act No. 53 of 1961)
I. The Payment of Bonus Act, 1965 (Act No. 21 of 1965)
J. The Contract Labour (Regulation and Abolition) Act, 1970 (Act No. 37 of 1970)
K. The Payment of Gratuity Act, 1972 (Act No. 39 of 1972)
L. The Equal Remuneration Act, 1976 (Act No. 25 of 1976)
M. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (Act No. 14 of 2013)

A. The Employees Compensation Act, 1923 (Act No. 8 of 1923)

i. An Overview

The Employees Compensation Act, 1923778 is an Act which is enacted with an aim to
provide for making payment of compensation by employers in favour of their
employees for injuries arising by employment accidents779. It is well settled that the
Employees Compensation Act, 1923 is a piece of social security and welfare
legislation in India with prime purpose and objective to protect the employees &
workmen. The Legislature intends to make the employer an Insurer of the workman /
employee responsible for the loss caused due to injuries, death which ought to have
occurred, while the employee / workman was performing his work780. The Act covers
the employees and workers in the construction industry and benefits them. They get
compensation for injuries arise out of and in the course of employment according to
the provisions of the Act.

The Act is extended to the whole India and came into force w.e.f. 1st July 1924781. The
Act came into existence due to reason of growing industrial complexity with the rise
in usage of machinery and danger to employees that make it compulsorily advisable
that they should be protected as far as possible from facing monetary difficulties
arising due to accidents782.

778
The Employees Compensation Act, 1923 (Act 8 of 1923) has been repealed by the Code on Social
Security, 2020 (No. 36 of 2020) vide Sec. 164. However, the notification for the date of enforcement of
the Code on Social Security, 2020 (No. 36 of 2020) has not come till date.
779
The Employee’s Compensation Act, 1923 (Act 8 of 1923), Preamble
780
Sunita Devi v. Autar Singh, (2004) 104 FJR 1007 (Jhar)
781
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 1
782
S.N. Misra, Labour & Industrial Laws, 403 (Central Law Publications, Allahabad, 27th edn., 2013)

157
 The Employees Compensation Act, 1923 came into existence with prime aim to make
payment of compensation to employees incapacitated by injury caused due to accident
arising out of & in the course of his service / employment. It is a kind of financial
protection against hazards of work which an employee has to face by reason of his
service / employment783. Compensation is not only a singular benefit flowing from the
Employees Compensation Act; it has various important provisions ultimately
benefiting workers in a better way and making industry more lucrative & attractive784.

ii. Employee’s Compensation

 Liability to pay Compensation by an Employer

It is employer’s liability to make payment of compensation, in case, employee sustain

personal injury by accident occurred out of / in the course of employment. The
liability of employer to make payment of compensation is very limited785. The four
conditions are required for making employer liable to pay compensation in favour of
employee786:

 Employee must suffered personal injury;

 The injury suffered must have been resulted from an accident;
 Accident must arise out of & in the course of services or employment; and
 Injury must results either in employee’s death or total or partial disablement
from work for a time period exceeding 03 (three) days.

The reasons, which are mentioned under set the employer free from liability to pay
compensation to an employee787:
 If the injury caused to an employee did not resulted in total or partial
disablement of an employee for a time period exceeding 03 (three) days;
 In respect of any injury, which does not results in death or permanent total
disablement, employer has right to plead:
 That at the time of accident, employee was under the influence of drugs, drinks or
alcohol;

783
In Re, B. Habeebullah Periaswami, A.I.R. 1977 Mad. 330
784
S.N. Misra, Labour & Industrial Laws, 403 (Central Law Publications, Allahabad, 27th edn., 2013)
785
The Employee’s Compensation Act, 1923 (Act 8 of 1923), s. 3
786
The Employee’s Compensation Act, 1923 (Act 8 of 1923), s. 3(1)
787
S.N. Misra, Labour & Industrial Laws, 431 (Central Law Publications, Allahabad, 27th edn., 2013)

158
  That the orders expressly issued or rules expressly framed with an aim to secure
safety of employees are wilfully disobeyed and neglected; and
 That the employee concerned wilfully and knowingly disregarded or removed the
devices and guards specifically fitted/provided with an aim for securing the
employee’s safety.

The plea can be succeeded by an employer when it is established that the injury was
caused due to any one of the above reasons788.
iii. Employer’s Liability in case of Occupational Diseases:

The provision deals with the payment of compensation in case of an injury resulting
from occupational diseases789. The Schedule III790 of the Employees Compensation

788
Ibid.
789
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 3(2)
790
The Employees Compensation Act, 1923 (Act 8 of 1923), Schedule III
(See section 3)
List Of Occupational Diseases
Part A
Sr. No. Occupational disease Employment
(1) (2) (3)
1. Infectious and parasitic diseases contracted in an (a) All work involving exposure to health or
occupation where there is a particular risk of laboratory work;
contamination. (b) All work involving exposure to veterinary
work;
(c) Work relating to handling animals, animal
carcasses, part of such carcasses, or
merchandise which may have been
contaminated by animals or animal carcasses;
(d) other work carrying a particular risk of
contamination.
2. Diseases caused by work in compressed air. All work involving exposure to the risk
concerned.
3. Diseases caused by lead or its toxic compounds. All work involving exposure to the risk
concerned.
4. Poisoning by nitrous fumes. All work involving exposure to the risk
concerned.
5. Poisoning by organophosphorus compounds All work involving exposure to the risk
concerned.
PART B

159
1. Diseases caused by phosphorus or its toxic All work involving exposure to the risk
compounds. concerned.
2. Diseases caused by mercury or its toxic compounds. All work involving exposure to the risk
3. Diseases caused by benzene or its toxic concerned.
homologues. All work involving exposure to the risk
4. Diseases caused by nitro and amido toxic concerned.
derivatives of benzene or its homologues. All work involving exposure to the risk
5. Diseases caused by chromium or its toxic concerned.
compounds. All work involving exposure to the risk
6. Diseases caused by arsenic or its toxic compounds. concerned.
7. Diseases caused by radioactive substances and All work involving exposure to the risk
ionising radiations; concerned.
All work involving exposure to the action of
radioactive substances or ionising radiations.
8. Primary epitheliomatous cancer of the skin caused All work involving exposure to the risk
by tar, pitch, bitumen, mineral oil, anthracene, or concerned.
the compounds, products or residues of these
substances.
9. Diseases caused by the toxic halogen derivatives of All work involving exposure to the risk
hydrocarbons (of the aliphatic and aromatic series). concerned.
10. Diseases caused by carbon disulphide.
All work involving exposure to the risk
11. Occupational cataract due to infra-red radiations. concerned.
All work involving exposure to the risk
12. Diseases caused by manganese or its toxic concerned.
compounds. All work involving exposure to the risk
13. Skin diseases caused by physical, chemical or concerned.
biological agents not included in other items. All work involving exposure to the risk
concerned.
14. Hearing impairment caused by noise.
All work involving exposure to the risk
15. Poisoning by dinitrophenol or a homologue or by concerned.
substituted dinitrophenol or by the salts of such All work involving exposure to the risk
substances. concerned.
16. Diseases caused by beryllium or its toxic
compounds. All work involving exposure to the risk
17. Diseases caused by cadmium or its toxic concerned.
compounds. All work involving exposure to the risk
18. Occupational asthma caused by recognized concerned.
sensitising agents inherent to the work process. All work involving exposure to the risk
concerned.
19. Diseases caused by fluorine or its toxic compounds.
20. Diseases caused by nitroglycerine or other nitroacid All work involving exposure to the risk
esters. concerned.
21. Diseases caused by alcohols and ketones. All work involving exposure to the risk
concerned.
22. Diseases caused by asphyxiants: carbon monoxide, All work involving exposure to the risk
and its toxic derivatives, hydrogen sulfide. concerned.
23. Lung cancer and mesotheliomas caused by asbestos. All work involving exposure to the risk
concerned.
All work involving exposure to the risk
concerned.

160
Act, 1923 contains the list of the occupational diseases and Schedule III791 is having
three parts, Part A, Part B and Part C. The disease which is contracted necessarily be
an occupational disease atypical to employment as specifically mentioned in Schedule
III792. A list of a employments is given with respect to every disease as specified in
Schedule III793. To support any compensation claim if occupational disease is in Part
A, then, no specified tenure of employment is required; for diseases as mentioned in
Part B, the requirement is that employee must be in continuous service / employment
with the same employer for six months duration as specified in that part; and for
diseases as specified in Part C, the duration of employment would be detailed by the
Central Government for every employment whether employee is in the service of one
or more than one employers. If an employee contracts any disease as listed in
Schedule III794 it shall be considered as an injury through accident arising out of & in
the course of service or employment until the contrary is proved795.

 Part A of the Schedule III:

The payment of compensation shall be made by an employer in favour of an
employee for injury that results from an occupational disease as specified in Part A of

24. Primary neoplasm of the epithelial lining of the All work involving exposure to the risk
urinary bladder or the kidney or the ureter. concerned.
25. Snow blindness in snow bound areas. All work involving exposure to the risk
26. Disease due to effect of heat in extreme hot climate. concerned.
27. Disease due to effect of cold in extreme cold All work involving exposure to the risk
climate. concerned.
All work involving exposure to the risk
concerned.
PART C
1. Pneumoconioses caused by sclerogenic mineral dust (silicoses, All work involving exposure to
anthraoo-silicosis, asbestosis) and silico-tuberculosis provided the risk concerned.
that silicosis is an essential factor in causing the resultant
incapacity or death.
2. Bagassosis All work involving exposure to
the risk concerned.
3. Bronchopulmonary diseases caused by cotton, flax hemp and All work involving exposure to
sisal dust (Byssionsis) the risk concerned.
4. Extrinsic allergic alveelitis caused by the inhalation of organic All work involving exposure to
dusts. the risk concerned
5. Bronchopulmonary diseases caused by hard metals. All work involving exposure to
the risk concerned.
791
Supra note 790 at 159
792
Supra note 790 at 159
793
Ibid.
794
Ibid.
795
S.N. Misra, Labour & Industrial Laws, 431 (Central Law Publications, Allahabad, 27th edn., 2013)

161
Schedule III796, if an employee engaged in any employment as mentioned in Part A of
Schedule III797 contracts any of the disease as listed therein as occupational disease
peculiar to the employment. The contracting of disease shall be considered to be an
injury due to accident and unless & until the contrary is proved, the accident would be
totally deemed to have arisen out of & in the course of employment 798.

 Contracting of an occupational disease after discontinuance of service:

If any disease as listed in Part A of Schedule III799 develops after employee has left
the employment, no any compensation shall be due for payment in his favour800.

 Part B of Schedule III:

In an employee contracts any disease as listed in Part B of Schedule III 801 the
employer shall be liable to pay compensation if an employee while working in the
service of an employer in whose employment / service, he has been engaged for a
continuous time period of not less than 06 (six) months in any employment as listed in
Part B of Schedule III 802 contracts any of the disease as mentioned therein as an
occupational disease peculiar to the employment. The contracting of disease shall be
considered as an injury by accident, and unless & until contrary is proved, the
accident shall be considered as arising out of & in the course of the employment 803.

 Contracting of an occupational disease after discontinuance of service:

The employer has to pay compensation in favour of an employee where any disease is
contracted by an employee as said above after leaving his employment, if following
conditions are fulfilled804:
 If an employee has worked under any employer in those employments as specified
in part B of Schedule III805 for six months of continuous period.
 If any disease as listed in Part B of Schedule III806 contracted by an employee
after completion of service as an occupational disease peculiar to the employment.

796
Supra note 790 at 159
797
Ibid.
798
The Employees Compensation Act, 1923 (Act 8 of 1923), Section 3(2)
799
Supra note 790 at 159
800
S.N. Misra, Labour & Industrial Laws, 432 (Central Law Publications, Allahabad, 27th edn., 2013)
801
Supra note 790 at 159
802
Ibid.
803
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 3(2)
804
S.N. Misra, Labour & Industrial Laws, 432 (Central Law Publications, Allahabad, 27th edn., 2013)
805
Supra note 790 at 159

162
 If it is clearly proved that such disease clearly arose out of the employment.

The contracting of disease shall then be deemed & considered to be an injury by

accident within the meaning and coverage of this section807.

 Part C of Schedule III:

Where any disease has been contracted by an employee as specified in Part C of

Schedule III808 the liability of an employer shall be due809:
a) If an employee was in the employment of one or more than one employers in any
employments as listed in Part C of Schedule III 810 for such regular/continuous
time period as specified by the Central Government with respect to each such
employment; and
b) If an employee contracts any disease as listed therein as occupational disease
peculiar to the employment.

If the above stated two requirements are fulfilled, the contracting of the disease by an
employee would be deemed to be an injury through accident and unless & until
contrary is proved, the accident would be deemed to have arising out of & in the
course of employment 811.

It is provided that, if it is proved812:

a) That an employee during service of one or more than one employers in any of the
employments as listed in Part C of Schedule III 813 has contracted disease as
mentioned therein as an occupational disease peculiar to that employment in the
duration of a continuous time period, which is less than the time period as laid
down under section 3(2) stated above for that employment, and
b) That the disease has arisen out of & in the course of the employment;
the contracting of such disease would be deemed to be an injury through accident
within the scope of section 3 of the Employees Compensation Act, 1923814.

806
Ibid.
807
S.N. Misra, Labour & Industrial Laws, 433 (Central Law Publications, Allahabad, 27th edn., 2013)
808
Supra note 790 at 159
809
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 3(2)
810
Supra note 790 at 159
811
S.N. Misra, Labour & Industrial Laws, 432 (Central Law Publications, Allahabad, 27th edn., 2013)
812
The Employees Compensation Act, 1923 (Act 8 of 1923), first proviso to s. 3(2)
813
Supra note 790 at 159
814
The Employees Compensation Act, 1923 (Act 8 of 1923), first proviso to s.3(2)

163
  Contracting of an Occupational Disease after Discontinuance of Service:

Where an occupational disease has been contracted by an employee after

discontinuance of his services, the concerned employer shall be deemed to pay
compensation liability815:
a) If it is clearly proved that the employee has worked under one or more than one
employers in any of the employments as listed in Part C of Schedule III816 for
continuous period as specified by the Central Government with respect to that
employment;
b) If he has after discontinuance of his services contracted any of the disease as
mentioned in Part C of Schedule III817 as occupational disease to the employment;
and
c) If it is clearly established and proved that such disease has resulted from the
employment.

The contracting of the disease shall be considered to be an employment injury by way

of accident within the scope of this section as explored above818.

In case of any employment specified in Part C of Schedule III819, where more than
one employers are there, the Commissioner is then having authorisation to fix up the
extent of different employer’s responsibility with respect to the compensation amount
payable in favour of an employee820.

The Central or the State Government after notifying in the Official Gazette, minimum
of three month’s notice of its intention for doing, may by a similar notification, add
any employment description to the employments as mentioned in Schedule III821 and
shall also states in the case of employments that are added the diseases which shall be
deemed to be occupational disease peculiar to the employments respectively and
thereupon provisions of section 3(2) shall be applicable in the case of notification
published by the Central Government, within those territories for which this Act

815
S.N. Misra, Labour & Industrial Laws, 433 (Central Law Publications, Allahabad, 27th edn., 2013)
816
Supra note 790 at 159
817
Supra note 790 at 159
818
S.N. Misra, Labour & Industrial Laws, 433 (Central Law Publications, Allahabad, 27th edn., 2013)
819
Supra note 790 at 159
820
The Employee’s Compensation Act, 1923 (Act 8 of 1923), s. 3(2-A)
821
Supra note 790 at 159

164
 extends or if notification issued by the State Government as if such diseases had been
declared to be occupational diseases peculiar to the employments822.

The compensation shall be paid by an employer only if the disease can be clearly and
directly attributed to a particular injury by accident arising out of & in the course of
employment823.

In the case of Jaya Biswal v. Branch Manager, IFFCO TOKIO General Insurance
Company824, the Hon’ble Court held that employer is not permitted under section 3 to
avoid his liability, if negligence is there on the part of an employee. Compensation
payable in favour of an employee not to be reduced as there is contributory
negligence.

iv. Employment

The employment comprises an employer, an employee and third one is contract of

employment among them. In simple words, employment means a contract of service
among an employer and employee following which employee consents to serve under
employer’s control & supervision825.

v. Accident:

The Employees Compensation Act, 1923 does not define the term “accident”.
However, the expression “accident” is required to be construed in its famous sense826.
The general meaning of the word “accident” is obtained from Lexicons is “an
unforeseen” or “unexpected event”. Accident is defined as “any organic injury to the
health as well as physical modification because of an exterior, violent and sudden
reason, arising out of & in the course of work and resulting in either death or in
absolute or temporary, partial or permanent incapacity to perform work” 827 . An
accident is an occurrence which disturbs with the serial wise work progress in an

822
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 3(3)
823
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 3(4)
824
AIR 2016 SC 956
825
Chintaman Rao v. State of M.P., A.I.R. 1958 S.C. 388
826
S.N. Misra, Labour & Industrial Laws, 434 (Central Law Publications, Allahabad, 27th edn., 2013)
827
International Labour Organisation, Recording and notification of occupational accidents and
diseases and ILO list of occupational diseases, Report No. V, 90th Session, Geneva, (June 1, 2002)

165
 industrial unit / establishment828. Accident is mis-happening causing bodily injury to a
person, which ultimately makes him unfit to perform his duties in the upcoming 48
hours829.

vi. Arising out of and in the course of employment:

Every case and matter depends has its own merits and demerits. For instance, an
accident occurred due to risk, which is an event of employment, then the
compensation claim can succeed but the condition is that the workman has not
exposed himself towards an added peril at his own irresponsible act 830 . The term
“arising out of” reflects the reason of accident and the word “in the course of” means
thereby towards the place, circumstances & conditions under which accident happens
and time of occurrence. A casual relation or association among the injury by accident
& employment is required. The responsibility is on the person claiming compensation
to prove the fact that accident has arisen out of & in the course of employment 831. For
clearance, we can refer following cases:

In New India Assurance Co. Ltd., v. Smt. Noorjahan Begum832, the contention of the
insurance company was upheld by the High Court and it was observed that person
died because of head injury after felling on the ground because of violent attack on
the person deceased. Therefore, liability for compensation cannot be fastened with the
insurance company.
In State of Rajasthan v. Ram Prasad and another833, the employee’s death happened
due to reason of natural lightning while performing work at the site. It was held that
employee died because of natural lightning force and no rational connection with
employment.
In R.B. Mondra and Co. v. Mst. Bhanwari834 case, employee was engaged as a truck
driver for carrying petrol. As there was leakage in the truck, the driver entered the
tank of the truck and lighted a match stick. As a result, tank catches fire due to which

828
H. L. Kumar, Practical Guide to Employee’s Compensation Act & Rules, 132 (Universal, Lexis
Nexis Publications, Gurgaon, 9th edn., 2019)
829
The Factories Act, 1948 (Act 63 of 1948), s. 88(1)
830
H L Kumar, Practical Guide to Employee’s Compensation Act & Rules, 147 (Universal, Lexis
Nexis Publications, Gurgaon, 9th edn., 2019)
831
M/s. Chowgule and Co. (Pvt.) Ltd., v. Smt. Felicidate, A.I.R. 1970 Goa 127
832
2011 (4) LLN 106 : 2011 LLR 1221 : 2012 (2) LLJ 495 (AP HC)
833
(2001) I L.L.J. 177 (SC).
834
A.I.R. 1970 Raj. 111

166
 he suffered burning injuries. It was held by the Court that accident arose out of
employment and the widow has right to claim compensation.
In Harrisons Malayalam Ltd., v. Ashraf835, the Court held that employer’s liability to
pay compensation arises on the day of suffering injury.
In The National Insurance Co Ltd., v. Nirmala Devi 836 , while driving the truck
collided with bus and driver died. Ultimately, compensation is due to be paid in this
case.
In Smt. Koduri v. Polongi Atchamma837, a person was employed with the lorry and he
fell down from the lorry due to which he died. This mater can be covered under the
concept of accident arising out of & in the course of employment. Hence,
compensation is required to be released in favour of nominee.

The principle test to identify whether the accident has occurred out of & in the course
of employment:

 That at the time of the accident, the employee was actually performing his duties.
 That the accident happened while he was performing his duties.
 That the immediate act causing accident had casual relation with the work
performed.
 The onus is upon the applicant claiming compensation. Person concerned has to
prove that it was the work that aggravated the injury838.

No suit for related damages shall be instituted in any Court of Law by an employee839:

(1) If compensation claim is instituted before a Commissioner; or

(2) If the compensation amount with respect to the injury has already been settled
through agreement among the employee and employer following the provisions of
the EC Act, 1923840.

vii. Amount of Compensation

The Compensation Amount shall be payable in the following manner841:

835
2009 LLR 685 (SN) (Ker HC)
836
FAO No. 74/2017 decided on October 25, 2017 (Del HC): LNIND 2017 DEL 4354
837
(1969) Lab. I.C. 1415 (Andh. Pra.)
838
S.N. Misra, Labour & Industrial Laws, 445 (Central Law Publications, Allahabad, 28th edn., 2018)
839
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 3(5)
840
Ibid.
841
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(1)

167
(a) When death is an amount equal to 50% (Fifty percent) of the per month
resulted from the wages of the employee who is deceased multiplied by the
injury factor which is relevant;
OR
an amount of Rupees One Lakh Twenty Thousand,
whichever will be more842;
(b) When Permanent A sum or an amount equal to 60% (Sixty percent) of the
Total Disablement per month wages of the injured employee multiplied by
has been resulted the factor which is relevant;
from injury OR
A sum or an amount of Rupees One Lakh Forty
Thousand, whichever will be more843

Provided that the amount of compensation mentioned in clause (a) and (b) above may
be enhanced by the Central Government through the process of notification in the
official gazette of India from time to time.

 Explanation I:
For the purposes of clause (a) and (b) as stated above for amount of compensation,
“relevant factor”, in respect of an employee means that factor as specified in the 2nd
column of schedule IV844 against entry in the 1st column of that schedule specifying

842
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(1)(a)
843
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(1)(b)
844
The Employees Compensation Act, 1923 (Act 8 of 1923), Schedule IV
(See section 4)
FACTORS FOR WORKING OUT LUMP SUM EQUIVALENT OF COMPENSATION AMOUNT
IN CASE OF PERMANENT DISABLEMENT AND DEATH
Completed years of age on the last birthday of the employee immediately Factors
preceding the date on which the compensation fell due
1 2

Not more than 16 228.54

17 227.49
18 226.38
19 225.22
20 224.00
21 222.71
22 221.37
23 219.95
24 218.47
25 216.91

168
number of years which are as same as the completed years of age of employee on
his/her last gone birthday immediately preceding date on which compensation
becomes due845.

(c) When (i) In case, of an injury as mentioned in the Part II of

permanent Schedule I 846 , such %age of the compensation, that

26 215.28
27 213.57
28 211.79
29 209.92
30 207.98
31 205.95
32 203.85
33 201.66
34 199.40
35 197.06
36 194.64
37 192.14
38 189.56
39 186.90
40 184.17
41 181.37
42 178.49
43 175.54
44 172.52
45 169.44
46 166.29
47 163.07
48 159.80
49 156.47
50 153.09
51 149.67
52 146.20
53 142.68
54 139.13
55 135.56
56 131.95
57 128.33
58 124.70
59 121.05
60 117.41
61 113.77
62 110.14
63 106.52
64 102.93
65 or more 99.37.

845
The Employees Compensation Act, 1923 (Act 8 of 1923), Explanation I to the ss. 4(1)(a), 4(1)(b)
846
The Employees Compensation Act, 1923 (Act 8 of 1923), Schedule I
See sections 2(1) and (4)
Part I
LIST OF INJURIES DEEMED TO RESULT IN PERMANENT TOTAL DISABLEMENT

169
 Serial Description of injury Percentage of loss of
No. earning capacity
1. Loss of both hands or amputation at higher sites 100
2. Loss of a hand and a foot 100
3. Double amputation through leg or thigh, or 100
amputation through leg or thigh on one side and
loss of other foot
4. Loss of sight to such an extent as to render the 100
claimant unable to perform any work for which eye
sight is essential
5. Very severe facial disfigurement 100
6. Absolute deafness 100

PART II
LIST OF INJURIES DEEMED TO- RESULT IN PERMANENT PARTIAL DISABLEMENT
Serial Description of injury Percentage of loss of earning
No. capacity
Amputation cases—upper limbs (either arm)
[1] Amputation through shoulder joint 90
[2] Amputation below shoulder with stump less than 80
20.32 Cms. from tip of acromion
[3] Amputation from 20.32 Cms. from tip of acromion 70
to less than 11.43 Cms. below tip of olecranon
[4] Loss of a hand or of the thumb and four fingers of 60
one hand or amputation from 11.43Cms. below tip
of olecranon
[5] Loss of thumb 30
[6] Loss of thumb and its metacarpal bone 40
[7] Loss of four fingers of one hand 50
[8] Loss of three fingers of one hand 30
[9] Loss of two fingers of one hand 20
[10] Loss of terminal phalanx of thumb 20
[10A] Guillotine Amputation of tip of thumb without loss 10
of bone
Amputation cases—lower limbs
[11] Amputation of both feet resulting in end-bearing 90
stumps
[12] Amputation through both feet proximal to the 80
metatarso-phalangeal joint
[13] Loss of all toes of both feet through the metatarso- 40
phalangeal joint
[14] Loss of all toes of both feet proximal to the 30
proximal inter-phalangeal joint
[15] Loss of all toes of both feet distal to the proximal 20
inter-phalangeal joint
[16] Amputation at hip 90
[17] Amputation below hip with stump not exceeding 80
12.70 cms. in length measured from tip of great
trenchanter
[18] Amputation below hip with stump exceeding 12.70 70
cms. in length measured from tip of great
trenchanter but not beyond middle thigh
[19] Amputation below middle thigh to 8.89cms. below 60
knee
[20] Amputation below knee with stump exceeding 8.89 50
Cms. but not exceeding 12.70 Cms.
[21] Amputation below knee with stump exceeding 50
12.70 cms.

170
 partial would be payable in permanent total disablement case,
disablement is as is mentioned therein as being the %age of the
resulted from earning capacity loss of due to that injury, and
injury (ii) In case, injury not listed in Schedule I847, such %age of
payable compensation in situation of permanent total

[22] Amputation of one foot resulting in end-bearing 50

[23] Amputation through one foot proximal to the 50
metatarso-phalangeal joint
[24] Loss of all toes of one foot through the metatarso- 20
phalangeal joint
Other injuries
[25] Loss of one eye, without complication, the other 40
being normal
[26] Loss of vision of one eye, without complications or 30
disfigurement of eyeball, the other being normal
[26A] Loss of partial vision of one eye 10
Serial Description of injury Percentage of loss of earning
No. capacity
A.—Fingers of right or left hand
Index finger
[27] Whole 14
[28] Two phalanges 11
[29] One phalanx 9
[30] Guillotine amputation of tip without loss of bone 5
Middle Finger
[31] Whole 12
[32] Two phalanges 9
[33] One phalanx 7
[34] Guillotine amputation of tip without loss of bone 4
Ring or little finger
[35] Whole 7
[36] Two phalanges 6
[37] One phalanx 5
[38] Guillotine amputation of tip without loss of bone 2
B.—Toes of right or left foot Great toe
[39] Through metatarso-phalangcal joint 14
[40] Part, with some loss of bone 3
Any other toe
[41] Through metatarso-phalangcal joint 3
[42] Part, with some loss of bone 1
Two toes of one foot, excluding great toe
[43] Through metatarso-phalangcal joint 5
[44] Part, with some loss of bone 2
Three toes of one foot, excluding great toe
[45] Through metatarso-phalangcal joint 6
[46] Part, with some loss of bone 3
Four toes of one foot, excluding great toe
[47] Through metatarso-phalangcal joint 9
[48] Part, with some loss of bone 3

[NOTE.—Complete and permanent loss of the use of any limb or member referred to in this Schedule
shall be deemed to be the equivalent of the loss of that limb or member.]
847
Supra note 846 at 169

171
 disablement as in proportion to the earning capacity
loss (as examined & checked by the Qualified Medical
Practitioner) permanently caused by suffered injury848.

 Explanation I:
Where more injuries are caused by the similar accident, the compensation amount
payable shall be aggregated but in no any issue & case, not to go beyond that amount,
that would be payable in condition of permanent total disablement arisen from the
injuries849.

 Explanation II:
In computing the earning capacity loss for the purposes of sub-clause (ii), the medical
practitioner qualified shall pay due regard with respect to percentages of earning
capacity loss in relation to different and various injuries as listed in Schedule I850;

(d) Where temporary disablement, A ½ (half) monthly payment of the sum

whether it is total or partial, resulted equivalent to 25% (twenty five percent)
from injury. of per month wages of employee, to be
paid according to the provisions of sub-
section (2)851.

It is provided that while fixing the payable compensation amount in favour of an

employee for an accident happened outside India, the Commissioner shall take into
consideration the compensation amount, awarded to such employee according to the
law of country where accident happened & shall ultimately reduce the amount as
fixed by him by the compensation amount awarded to the employee according to the
legal provisions/law of that country852.

848
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(1)(c)
849
The Employees Compensation Act, 1923 (Act 8 of 1923), Explanation I to s. 4(1)(c)
850
The Employees Compensation Act, 1923 (Act 8 of 1923), Explanation II to s. 4(1)(c)
851
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(1)(d)
852
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(1A)

172
The Central Government may by way of notification 853 publishing in the official
gazette, specify such monthly wages with respect to an employee as deems necessary
for sub-section (1) as explored above.

(2) The half-monthly payment as referred in clause (d) of sub-section (1) above shall
be payable on the 16th (sixteenth) day
(i) From the disablement date, where disablement lasts for a time period of 28
(twenty eight) days or more854, or
(ii) After the waiting period of three days expires w.e.f. the disablement date,
where disablement lasts for a time period of less than 28 (twenty eight)
days; and thereafter ½ (half) monthly during the period of 05 (five) years
or disablement, whichever is shorter period855.

It is provided that:
a) The deductions shall be recovered from lump sum or ½ (half) monthly payments
for which an employee is having entitlement for the amount of any allowance or
payment, which an employer has paid in favour of an employee by way of
compensation during the disablement period prior to receiving such lump sum or
of the first ½ (half) monthly payment, as per the case856; and
b) No ½ (half) monthly payment shall exceed the amount in any case, if any, by
which ½ (half) the monthly wages amount of an employee before accident
exceeds ½ (half) the amount of that wages, which an employee is earning after the
accident857.

It is hereby explained that any allowance or payment which has been received by an
employee from the employer against his medical treatment shall not be considered to

853
Notification: In exercise of the powers conferred by sub-section (1B) of section 4 of the Employee’s
Compensation Act, 1923 (Act No. 8 of 1923) and in supersession of the notification of the Ministry of
Labour and Employment issued vide number, S.O. 1258(E), dated 31st May, 2010; published in the
Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated 31st May, 2010, the Central
Government hereby specified for the purposes of sub-section (1) of the said section, the following
amount as monthly wages with effect from the date of publication of this notification in the Official
Gazette, namely: - “Fifteen Thousand Rupees” [Vide S.O. 71(E), dated 3rd January, 2020, published in
the Gazette of India, Extra., Pt. II, sec. 3(ii) No. 69, dated 3rd January, 2020]
854
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(2)(i)
855
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(2)(ii)
856
The Employees Compensation Act, 1923 (Act 8 of 1923), Proviso (a) to s. 4(2)
857
The Employees Compensation Act, 1923 (Act 8 of 1923), Proviso (b) to s. 4(2)

173
 be an allowance or payment received by him through compensation within the scope
of clause (a) of the proviso as discussed above858.

The actual medical expenses incurred for medical treatment of injuries caused during
the course of employment shall be reimbursed to an employee 859.

On the disablement ceasing, before the date on which ½ (half) monthly payment
becomes due, there shall be payable with respect to that ½ (half) month a sum i.e.
proportionate to the time period of disablement in that ½ (half) month860.
If the injury caused death of an employee, the employer shall deposit with the
Commissioner an amount not less than rupees five thousand for further payment of
the same amount to the surviving eldest dependant of employee in addition to
compensation as defined under sub-section (1), towards the expenses for funeral of
concerned employee. If an employee died without leaving behind any dependant or
was not residing with his dependant when death happens, the funeral expenses shall
be paid to the person by whom expenditure in actually incurred861.

It is also provided that the Central Government may through notification published in
the Official Gazette enhance the amount from time to time as said above.

In Lipton (India) Ltd., v. Gokul Chandra Mondal862, it was held that loss of one eye’s
vision as referred in entry 26 of Schedule I - Part II is not intended to apply only for
total loss of vision, but also comprises partial loss of vision.
In Management of Sree Lalithambika Enterprises, Salem v. S. Kailasam863 , it was
held by the Court that an accident of an employee on a holiday when cleaning
machines is declared as accident arising out of & in the course of employment.

viii. Compensation to be paid when due & penalty for default:

Compensation to employee shall be paid at the very earliest when falls due 864 . In
cases, where employer not accepting the liability for payment of compensation to the
extent, upto which it is claimed, he shall be duty bound to make payment

858
S.N. Misra, Labour & Industrial Laws, 454 (Central Law Publications, Allahabad, 27th edn., 2013)
859
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(2A)
860
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(3)
861
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4(4)
862
(1982) I L.L.J., 255 (Cal)
863
(1988) I L.L.J., 63 (Madras)
864
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4A(1)

174
 provisionally based on that extent of liability, which he is accepting, and, further, such
payment shall be as soon as possible deposited with the Commissioner or to be paid in
favour of an employee without any prejudice to the employee’s right to make any
further claim865. If any employer is defaulter in making payment of compensation as
due within the period of one month w.e.f. the date it fell due, the employer shall be
directed by the Commissioner to release payment supplement to the amount of
arrears, simple interest at 12% (twelve per cent) rate per annum or at that larger rate
not greater than the maximum rates as declared by the popular lending banks on the
due amount866 and if there is no explanation available for the undue delay, directions
may be issued to the employer to pay in addition to the amount of the arrears &
interest, make further payment of sum not more than 50% (fifty per cent) of that
amount through penalty867. It is provided that employer must be given a reasonable
opportunity to show cause when order for payment of penalty should not be passed
against him 868 . The interest & penalty as discussed shall be paid to employee or
dependant as per the case869.

ix. Penalties

The provision is here for following penalty of the offences as under 870:
A defaulting person shall be punished with fine of not less than Rupees Fifty
Thousand and may extend to Rupees One Lakh, if (a) failed to maintain a notice book
as required under section 10(3). (b) failed to send a statement to the Commissioner as
required under section 10A(1) (c) failed to send report to under section 10B (d) fails
to file returns under section 16. (e) fails to aware and inform employees regarding
their rights of compensation as compulsorily required under section 17A871.

B. Trade Unions Act, 1926 (Act No. 16 of 1926)

i. An Overview

865
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4A(2)
866
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4A(3)(a)
867
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4A(3)(b)
868
The Employees Compensation Act, 1923 (Act 8 of 1923), Proviso to s. 4A(3)
869
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 4A
870
The Employees Compensation Act, 1923 (Act 8 of 1923), s. 18A
871
Meenu Paul, Labour & Industrial Laws, 433 (Allahabad Law Agency, Faridabad (Haryana), 10th
edn., 2017)

175
 The Trade Unions Act, 1926872 is an Act that contains provisions for the registration
of Trade Unions and define the rights, liabilities and law relevant to registered Trade
Unions873. The Act is extended to the entire India and enforced w.e.f. 01-06-1927874.
Trade Union can be formed by persons engaged in the Trade / Industry875 . Trade
Unions primarily have the right to announce strikes and to do various acts relevant to
their trade disputes876. The primary object of a registered Trade Union is Collective
Bargaining877.

Act defines “trade dispute” as any dispute among employers & workmen, between
workmen & workmen or amongst employers & employers. The dispute must be
related to labour conditions, employment, working, non-employment or employment
terms of any worker etc878.

As per the Act, “Trade Union” indicate any association, grouping, either temporary or
permanent, established with an aim to regulate & maintain the relations among
workmen & workmen, amid workmen & employers or amongst employers &
employers, or for levying provisional conditions on the performance of any
undertaking / business / industry / trade, and also comprises association of two or
more than two Trade Unions879.

ii. Mode of Registration of Trade Union:

 It is provided in the Act that any seven members or more than seven members of a
Trade Union may submit their application for getting their Trade Union registered.
But Workmen’s Trade Union shall never be registered unless minimum of 10% or
100 of workmen, whichever will be less, working or engaged in the industry or
establishment are the Trade Union’s member i.e. on the date of submitting
application for registration purpose and moreover, no registration of a Trade
Union will be entertained unless & until minimum seven member persons who are

872
The Trade Unions Act, 1926 (Act No. 16 of 1926) has been repealed by the Industrial Relations
Code, 202 (35 of 2020) vide Sec. 104. The notification regarding date for the enforcement of the
Industrial Relations Code, 2020 (35 of 2020) has not come not till date.
873
The Trade Unions Act, 1926 (Act 16 of 1926), Preamble
874
See Gazette of India, 1927 Pt. I, p. 467
875
Rangaswami v. Registrar of Trade Unions, AIR 1962 Mad 231
876
R.S. Ruikar v. Emperor, AIR 1935 Nag 149
877
Bank of India Employees Association v. Reserve Bank of India, (1983) 2 LLN 872 (Bom)
878
The Trade Unions Act, 1926 (Act 16 of 1926), s. 2(g)
879
The Trade Unions Act, 1926 (Act 16 of 1926), s. 2(h)

176
 workmen working in the establishment or industrial unit with which it is
connected880.
 If we discuss regarding the minimum requirement for membership of Trade
Union, then a registered Trade Union of workers mandatorily have all times
minimum of 10% or 100 of workers, whatever will be less, but minimum of
seven are employed or working in industry, unit or establishment with which it is
having connection as it members881.

iii. Rights and Liabilities of Registered Trade Unions:

 The general funds of registered Trade Union can be spent on following, namely:
 Payment of expenses for administration of the Trade Union
 Prosecution of legal proceedings in which its member/Trade Union is party
 Handling trade disputes favouring Trade Union / any of its member thereof
 Compensation to members for losses resulted from trade disputes
 Payment of allowances to members of Trade Union or to the dependants of its
members due to death, accidents old age, sickness or unemployment of its
members

C. The Payment of Wages Act, 1936 (Act No. 4 of 1936)

i. An Overview

The Payment of Wages Act, 1936882 is good piece of Central Legislation, applicable
to the payment of wages to persons engaged & employed in the factories and
industrial or other establishments i.e. establishments handling works related to
construction, maintenance or development of buildings, bridges, roads, canals and
generating, transmitting and distributing electricity. It is an Act for regulating the
payment of wages of employed persons 883 . The Act sets time period for making
payment of wages. Employer is duty bound to wages in favour of the workers of the
industrial establishments i.e. if workforce is less than one thousand wages to be paid
before the 7th day of the month expires and other establishments shall release payment

880
The Trade Unions Act, 1926 (Act 16 of 1926), s. 4
881
The Trade Unions Act, 1926 (Act 16 of 1926), s. 9A
882
The Payment of Wages Act, 1936 (Act No. 4 of 1936) has been repealed by the Code on Wages,
2019 (29 of 2019) vide Sec. 69. However, the notification regarding the date for the enforcement of the
Code on Wages, 2019 (29 of 2019) has not come till date.
883
The Payment of Wages Act, 1936 (Act 4 of 1936), Preamble

177
 of wages before the 10th day of a month expires. The payment of wages is required to
be released in current currency coins or notes884. The Payment of Wages Act, 1936 is
extended to the whole India and enforced w.e.f. dated 28-03-1937885.

The Act under consideration is based mostly on the recommendations of Royal

Commission. At that time, the Commission opined that legislation for deductions
from wages & fines was essential for smooth functioning of industries.

The Act is applicable for making payment of wages in favour of the employees in
establishments engaged and employed in works/activities relevant with the
construction, maintenance or development of buildings, bridges, roads or canals or the
supply of water or related to generation, transmission & distributing electricity886.

ii. Responsibility regarding Payment of Wages

It is the responsibility of every employer to make payment of all wages to persons

employed by him and in the case of persons engaged in industrial units,
establishments or undertakings, the person answerable to the employer for supervising
the site. In case of contractor, a person incharge appointed by contractor shall make
payment of wages as per provisions of the Act 887. It is settled law that employer or
person working as a manager would be liable for payment of wages. It is
contemplated that either the employer or the manager would be responsible for the
payment of wages to the workers, but not both will be liable at the same time 888.

The responsibility for payment of wages is to be fixed keeping in view the date of
accrual of wages. Employer also includes legal representative of employer who is
deceased. If there is no proper named manager of the establishment / industry, then
the occupier would be deemed to be the person responsible under the Act 889.

iii. Fixation of Wages Periods

884
P.K. Padhi, Labour and Industrial Laws 523-524 (Prentice Hall of India Private Limited, New
Delhi, 2nd edn., 2011)
885
See Gazette of India, 1937, Pt. 1, p. 626
886
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 2(ii)(g)
887
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 3
888
Avtar Singh and Harpreet Kaur, Introduction to Labour and Industrial Law, 389 (Universal, Lexis
Nexis, Gurgaon, 3rd edn., 2014)
889
Ibid.

178
 It is provided in the Act that wages period shall be fixed by the person responsible for
payment of wages under Section 3 as explored above. Such fixed wage period shall
not in any case exceed one month890.

iv. Time of Payment of Wages

Timely payment of wages to workforce is a sign of good legal system. The Payment
of Wages Act, 1936 provides that if the number of workers working in any industrial
unit or undertaking or establishment is less than 1000 workers, then wages shall be
credited/paid before expiry of seventh day of the month after the very last day of the
set wage period. The wages of persons employed in any other industrial establishment
shall be paid before the tenth day of wage month expires after the final day of the set
period for wages891.

Where the employer terminates employment / services of any building or construction

worker, the due wages shall be paid or credited or released before second working day
expires w.e.f. the day when the services are terminated892.

Where employment/services of any person are terminated by reason of closure of an

establishment, wages which are earned will be paid before the second day expires
from the day of termination of employment 893.

The wages earned by workers shall be paid in current notes or currency coins or both
combined or by way of cheque or through the process of crediting wages in Bank
Account894.

When workers work in any establishment/industry, then he has right to payment of

wages without any kind of unauthorised deductions. In this regard, a provision in
there, vide which an employed person shall get payment of wages without unjustified
and unnecessary deductions of any kind. But deductions which are authorised under
the Payment of Wages Act, 1936 can be made from wages. There is a prohibition
against any unauthorised deduction from the wages of an employed person895.

890
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 4
891
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 5
892
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 5(2)
893
The Payment of Wages Act, 1936 (Act 4 of 1936), Proviso to s. 5(2)
894
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 6
895
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 7(1)

179
The deductions from wages, which are permissible and are in accordance with the
provisions of the PWA, 1936 is discussed hereunder896:

Permissible deductions from the wages of employed person are of following kinds,
namely:
 Fines,
 Deduction for Absenteeism from duties
 Deductions for damages due to loss of employer’s goods and money, for which
employed person is accountable, damages due to neglect or default of employee
 Deductions for accommodation / housing facility provided by the employer
 Deductions for special amenities & services given by employer
 Deductions for recovering advances, viz., travelling allowance expenses,
expenditure for conveyance allowance or adjusting overpayment of wages
 Deductions for recovering amount of Loans issued for building houses
 Deductions of payment of Income Tax
 Deductions for social security payment like provident funds
 Deductions for making payments towards cooperative societies
 Deductions for paying premium of Life Insurance Corporation of India with
written approval of employed person
 Deductions for paying contribution towards any fund constituted by the Employer
or a Registered Trade Union. Written authorisation is required in this regard.
 Deductions for payment towards membership of a Trade Union, but with written
approval of employed person
 Deduction for Prime Minister’s National Relief Fund payment with written
approval of employee
 Deduction for making payment towards insurance scheme prepared by Central
Government for benefiting employees897

The total amount of deductions as discussed above in any wage-period to be

recovered from the wages of employed person shall not go beyond:

896
S.N. Misra, Labour & Industrial Laws, 754 (Central Law Publications, Allahabad, 27th edn., 2013)
897
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 7(2)

180
 In cases, where deductions are wholly / partly recovered for payments towards
cooperative societies: 75% (Seventy Five Per Cent) of such wages, and
 In other cases: 50% (Fifty Per Cent) of such wages:

It is also provided under the PWA, 1936 that where the total authorised deduction
exceeds 75% (Seventy Five Per Cent) OR 50% (Fifty Per Cent.) of the wages, then
recovery of excess may be done in the authorised manner898.

Employer can recover from the employed person’s wages any due amount under any
statutory norms & provisions for the time being in force899.

The person employed is eligible for payment of wages without deductions of any
kind900. But authorised deductions as per the legal provision can be made from his
wages. Every payment which is made to the employer or his agent by the employed
person shall be considered as deduction from wages901. Secondly, it is laid down that
where loss of wages is resulted due to the reason of imposing penalties on employed
person with good and sufficient cause shall not be considered towards deduction from
wages902. The penalties are:
 To withhold Increment / Promotion
 Re-designate to a lower position / Time Scale; or
 Suspension
The penalties as stated above shall not be considered as deductions from wages with
the condition that the employer has imposed these penalties following the legal
requirements as specified in this regard by the State Government 903.

In Modi Industries v. State of Uttar Pradesh904, the Court rules that if workmen did
not work, however work was offered to them, they are not eligible for payment of
wages.
In French Motor Car Co. Ltd., Workers Union v. French Motor Car Co. Ltd.,905the
Court held that employer has right to deduct wages under section 7(2) of the PWA,

898
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 7(3)
899
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 7(4)
900
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 7(1)
901
The Payment of Wages Act, 1936 (Act 4 of 1936), Explanation I to s.7(1)
902
The Payment of Wages Act, 1936 (Act 4 of 1936), Explanation II to s. 7(1)
903
S.N. Misra, Labour & Industrial Laws, 754 (Central Law Publications, Allahabad, 27th edn., 2013)
904
(1992) 64 FLR 471 (All)
905
(1990) LLR 366

181
 1936 if workman is absence from duty. Employee must be absented from duty on his
own wish.
In J.D.A. v. Labour Centre 906 , it has been held by the Court that when workman
reported for duty and employer has not taken work from him, then payment of wages
will be made in favour of workman by the employer.
In Bank of India v. T.S. Kalewala907, the Court ruled that “Go-Slow” is a serious kind
of misconduct.

v. Deduction of Fines from Wages

There is also provision related to the general requirement for imposing and deducting
fines. If fines are to be charged from the wages of employed person, then the previous
approval of the Appropriate Government is required and notice showing acts and
omissions must be displayed in the premises where work is going on. Employee must
be given an opportunity for submitting show cause against the imposed fine. The
maximum fine which can be imposed in one wage-period shall not to go beyond an
amount equal to 3% of the wages payable to employed person with regard to the set
wage-period908.
An employed person under fifteen years of age is exempted from payment of fines.
Recovery of fines via mode of instalments is not allowed and imposed fine cannot be
recovered from employed person after the expiry of 90 days from its imposition. The
day of Act or Omission will be considered as a day for imposing fines 909.

vi. Deductions regarding absence from duty

As it has already been discussed regarding deductions from wages. So, deductions can
be made from wages of employed person if he absents himself from the workplace.
Such absence may be for full day or for some time period for which he has to work.
An employed person will be treated as absent from duty if he refused to work or stay-
in-strike or for any other unjustified reasons to carry out the work910.
If ten workers or more than ten workers, acting in concert, without giving suitable
notice and reasonable reason, absents themselves, such deduction from their wages

906
(1990) 60 FLR 81 (Raj)
907
(1990) LLR 313 (SC)
908
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 8
909
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 8(7)
910
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 9

182
 includes such amount not more than his wages for 08 (Eight) days911. The provisions
discussed are subject to rules and regulations issued in this behalf by the Appropriate
Government.

Earlier, deductions from salary and wages of employed persons are explored. So, it is
provided that deductions for damage or loss of goods or loss of money due to default
or neglect of employer person shall not exceed the amount actually caused to the
employer 912 . Before the recovery of such amount, employee must be given an
opportunity for submitting his reason / showing cause 913.

vii. Deductions for Services Rendered

Many services are offered as perks to their employees. So deduction for any house
accommodation, amenity & service can be made if the same is accepted by employed
person as employment terms. Amount to be deducted must not go beyond the value of
the house accommodation, service & amenity supplied as the case may be914.

viii. Deductions for Recovering Advances

Every employer has right to recover amount of advances released against wages. The
amount released as advance before beginning of employment can be recovered from
the 1st payment of wages, but no recovery is allowed for any advance issued as
travelling expenses. Recovery of advances shall be subject to rules & regulations as
issued from time to time by the Appropriate Government915.

ix. Deduction for Recovery of Loans

Any loans which are taken by an employed person for house building can be deducted
from wages by an employer subject to rules as prepared by the Appropriate
Government regulating extent of loan and rate of interest916.

x. Deduction for Payment to Co-operative Societies and Insurance Schemes

911
S.N. Misra, Labour & Industrial Laws, 760 (Central Law Publications, Allahabad, 27th edn., 2013)
912
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 10
913
S.N. Misra, Labour & Industrial Laws, 762 (Central Law Publications, Allahabad, 27th edn., 2013)
914
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 11
915
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 12
916
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 12A

183
 Any payment to co-operative societies and premium for insurance schemes like LIC
etc., can be deducted from wages by an employer subject to regulations as framed and
imposed by Appropriate Government917.

Thus, the Payment of Wages Act is protecting rights of construction workers.

Employer cannot make unjustified deductions from wages of employed provisions.
These provisions are more beneficial for workforce in construction industry.

D. The Industrial Disputes Act, 1947 (Act No. 14 of 1947)

i. An Overview

Before the year of independence i.e. 1947, settlement of industrial disputes was done
following the legal terms of the Trade Disputes Act, 1929. The aim of the legislation
related to industrial relations is peace in industry and develop economic justice. The
Industrial Disputes Act, 1947918 is no doubt, a piece of legislation enacted with an aim
to establish industrial peace by protecting workmen’s interests exploited from
employer’s side919. The object of the Act is to frame provisions for the investigation
& settlement of industrial disputes and maintain industrial harmony920. The machinery
of this Act has been formulated in such a way to prevent & control industrial strikes,
maintaining industrial peace and establishing collective amity between labour &
management by way of conciliation, mediation and adjudication921.

The emergence of the idea of Welfare State meaning thereby an end to workmen’s
exploitation and as a result to that collective bargaining came into force922. The object
the ID Act, 1947 is to ensure fair terms for workers and prevention of disputes among
employers & employees, so that production might not be negatively affected and the
interests of the public at large might not suffer923.

ii. Extent and Objectives

917
The Payment of Wages Act, 1936 (Act 4 of 1936), s. 13
918
The Industrial Disputes Act, 1947 (Act 14 of 1947) has been repealed by the Industrial Relations
Code, 2020 (35 of 2020) vide Sec. 104. However, the notification for commencement of the Industrial
Relations Code, 2020 (35 of 2020) has not come till date.
919
Dhanalakshmi v. Reserve Bank of India, 1999 LLR 278 (Kant HC)
920
The Industrial Disputes Act, 1947 (Act 14 of 1947), Preamble
921
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 2 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
922
Ibid.
923
Ibid.

184
 The Industrial Disputes Act, 1947 is extended to the whole of India and implemented
w.e.f. 1st April 1947. The prime object of the statute is investigation & accordingly
settlement of industrial disputes 924 . The Hon’ble Apex Court analysed below
mentioned aims of the ID Act, 1947:
 The Act promotes amity & harmonious relations among Management and
Workmen
 To settle industrial disputes between employees & employers, employers &
workmen or workmen & workmen. The disputes can be settled through
participation of representatives of registered Trade Unions and Associations of
Employers/Management etc.
 The Act prevents illegal strikes & lock-outs
 Collective Bargaining 925

The Industrial Disputes Act, 1947 is that piece of legislation aiming to ameliorate
conditions of workmen in the industry926.

The High Court of Delhi has also observed that the prime object of the Industrial
Disputes Act, 1947 is to deliver social justice to the workman. But, conduct of the
workman will never be ignored927.

Some important definitions are important to discuss here keeping in view the work
under consideration.

iii. Industry

The term “Industry” means any trade, undertaking, business, manufacture, production
or calling of employers & comprises any handicraft, employment, calling services,
avocation of workmen or industrial occupation928.

In Bangalore Water Supply v. A. Rajappa929, the Hon’ble Supreme Court thoroughly

considered the scope of “industry” and the laid down the test i.e. Triple Test 930.

924
Banaras Ice Factory Ltd. v. Its Workmen, AIR 1957 SC 167
925
Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353
926
S.N. Rai v. Vishwanath Lal, AIR 1960 Patna 10
927
Ravi N Tikoo v. Deputy Commissioner (SW), 2006 LLR 496 (Del. HC)
928
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 2(j)
929
AIR 1978 SC 548

185
 So, the construction industry is covered under this definition and ultimately the
provisions of the ID Act, 1947 are applicable.

iv. Industrial Dispute

The “Industrial Dispute” means any disagreement among employers & employers or
amid employers & workmen, or among workmen & workmen, which must have
connection with the employment or employment norms or with labour conditions or
working environment of labour or worker931.

The definition of “Industrial Dispute” comprises of two limitations. Firstly, the term
“industrial” is relevant to disputes to an industry as defined in the Industrial Disputes
Act, 1947. Secondly, the definition expressly describes that not disputes &
disagreements of all sorts, but specifically those which bear upon the association of
employers & workmen and the employment terms and labour conditions are
considered. As such disputes may occur among different parties. The Industrial
Disputes Act, 1947 equally considers disagreements/disputes between employers &
employers or among employers & workmen or amongst workmen & workmen932. A
dispute or difference must be among employers & employers or amid employers &
workmen or amongst workmen & workmen, but dispute must have connection with
the employment, services terms or labour conditions 933 . Thus, it is clear that an
individual grievance against an employer cannot be treated as industrial dispute unless
community of interest is there934. A dispute regarding validity of agreement between
employer & workmen comes within the purview of the ID Act, 1947 935 . When
workmen demands for confirmation of services of employees, it would undoubtedly

930
Triple Test: where there is (i) systematic activity, (ii) organized by co-operation between employer
and employee (the direct and substantial element is chimerical), (iii) for the production and / or
distribution of goods and services calculated to satisfy human wants and wishes, prima facie there is an
“industry” in that enterprise. This is called Triple Test. Some points are also emphasized i.e. (a)
Industry does not include spiritual or religious services or services geared to celestial bliss e.g., making
on a large scale, prasad or food. It includes material services and things. (b) Absence of profit motive
or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. (c) The true
focus is functional and the decisive test is the nature of the activity with special emphasis on the
employer-employee relations. (d) If the organization is a trade or business it does not cease to be one
because of philanthropy animating the undertaking.
931
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 2(k)
932
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 33 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
933
Hindustan Lever Limited v. Tata Oil Mills & Allied Companies Karamchari Union, 1997 (III) LLJ
(Supp) 685 (Cal HC) (DB)
934
Somasundaram v. Liyakat Ali, 1998 (II) LLJ 719 (Mad HC)
935
Indian Iron and Steel Co. Ltd., v. Tarak Nath Sen Gupta, 1999 (II) LLJ 291 (Cal HC) (DB)

186
 be treated as an industrial dispute 936 . A difference between an employer and his
workmen in connection with non-employment of “any person” may be an Industrial
Dispute937.

v. Dismissal, Discharge etc., of a Workman to be Deemed as an Industrial

Dispute

Where an individual workman is discharged, dismissed, retrenched or otherwise

terminated by his employer, then, any dispute between them arising out of that
discharge, retrenchment, dismissal or termination shall be considered as an industrial
dispute despite the fact that other workmen or their union is a party to the dispute or
not938. Any such workman may submit an application directly with the Labour Court
or Tribunal for the purpose of adjudication of his dispute after the expiration of 45
(forty five) days w.e.f. the date of lodging application letter with the Conciliation
Officer appointed by the Appropriate Govt. with conciliation aim of the issue, matter
or dispute. Entertaining application, the Tribunal, Court or Labour Court shall have
jurisdiction and ultimate powers to adjudicate upon such mater, issue or dispute, in
the same way as such dispute is referred by the Appropriate Govt. following the
provisions of the ID Act, 1947939.
The application referred as above is required to be submitted with the Labour Court or
Tribunal before expiration of 03 (three) years w.e.f. date when an employee has been
discharged, dismissed, retrenched or terminated from services as aforesaid.

vi. Authorities under the Act

 Works Committee

 The provision lays down that industrial establishments employing 100 (One
Hundred) or more than 100 (One Hundred) workmen on any day in the
foregoing twelve months, the Appropriate Authority or Appropriate
Government may via special or general order call employer to establish or
constitute a “Works Committee” comprising of employer’s representatives and
workmen as engaged in that establishment. The number of representatives of
workers in the Works Committee shall not in any case, be lower than the

936
Workmen v. Hindustan Lever Ltd., 1984 (II) LLJ 391 (SC)
937
Delhi Municipal Worker’s Union v. Management of MCD, 1999 (2) CLR 570 (Del HC)
938
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 2A(1)
939
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 2A(2)

187
 number of employer’s representatives. The workmen’s representatives shall be
selected through the prescribed method from the workmen working in the
industrial unit or establishment and after consulting the registered Trade
Union 940 . The members to be included in the Works Committee must be
elected and member representatives should be in equal proportion941.
 Works Committee always strives to promote harmonious relations between the
employer and workmen942.
The Works Committee is an authority under the Act. The following are the duties of
the Works Committee:
 To promote in every situation cordial relations between the employers and
workmen;
 To build up and maintain understanding & trust between them
 Always promote such measures that results in enhanced productivity
 To secure best welfare and safety measures
 To reduce any material differences between Management and Workers943.
 The responsibility of Committee can never go beyond recommendations and
the decisions of the Works Committee weigh, but not binding / conclusive944.

The chief purpose of forming the “Works Committee” is to develop and maintain a
sense of partnership among the Management & Workmen. It is a kind of body which
always promotes good-will945.

 Conciliation Officer

 Conciliation is an effort by a third party by way of suggestions or advices to

help in the settlement of differences & disputes between employer and his
workmen. The Appropriate Government by using power can appoint
conciliation officers by issuing notification in the Indian Official Gazette.
These officers are given responsibility for mediating in & to promote the
industrial disputes settlements. The Appropriate Government may appoint one

940
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 3(1)
941
Bengali Raje v UOI, 1993 LLR 547 (Pat HC)
942
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 3(2)
943
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 3
944
Kemp & Co. Ltd., v. Workmen, 1955 (I) LLJ 48
945
S.N. Misra, Labour & Industrial Laws, 91 (Central Law Publications, Allahabad, 27th edn., 2013)

188
 or more conciliation officers, as deems fit 946 . A conciliation officer can be
appointed either permanently or for limited period especially for specified
areas / industries or for one / more specified industries. The powers,
jurisdiction & other relevant matters with regard to the conciliation officer
shall be published in the Official Gazette following the required process947.
Conciliation Officer does not perform any quasi-judicial functions.
Conciliation officer investigate the industrial disputes and bring settlement of
the disputes948.

 In actual manner, Conciliation Officer is not an adjudicator for resolving

industrial dispute. His main function is to settle down the dispute. For this
purpose, he investigates the matter as having power granted to him by the
statute. The prime purpose is to bring a fair and amicable settlement of the
dispute among parties. On settlement or non-settlement, a Conciliation Officer
has to submit a report to the Appropriate Government. Even if workman
expires, the conciliation proceedings can be continued by involving his legal
heirs949. Under the provisions of the ID Act, 1947, when Conciliation Officer
receives the complaint, he performs as a mediator between the parties and
promote amicable settlement of the industrial dispute. But he cannot act as
adjudicator in such dispute and interfere with the employer’s actions 950 .
Hence, the jurisdiction of the Conciliation Officer is only upto settlement of
dispute and crossing its jurisdiction is not tenable951.

 Board of Conciliation

 The provision in respect of constituting Boards of Conciliation is available

under the Act to bring the two disputed parties to sit together with prime
purpose to settle the issues. The provision provides that the Board of
Conciliation may be constituted by the Appropriate Government by notifying

946
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 4
947
S.N. Misra, Labour & Industrial Laws, 93 (Central Law Publications, Allahabad, 27th edn., 2013)
948
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 93 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
949
Dhanalaxmi v. Reserve Bank of India, Bombay, 1999 LLR 278: 1999 (I) CLR 328: 1999 (83) FLR
8: 1999 (I) LLJ 1018 (Karn HC)
950
Maharashtra General Kamgar Union, through its Joint Secretary v. Pix Transmissions Ltd., 2011
LLR 193 (Bom HC)
951
Vidyut Metalics Employees Union, Thane v. Vidyut Metalics Pvt. Ltd., Thane, 2011 LLR 1262 (Bom
HC)

189
 in the Official Gazette for settling industrial disputes among parties 952. The
chairman appointed shall be an independent personality 953.

 Provision favour that the Chairman must be an “independent person” i.e. a

person who has no relation with the industrial dispute or with related industry.
Of course, the Board promotes for the settlement of industrial disputes of
parties954.

The constitution of the Board of Conciliation is having tripartite feature which is

headed by the Chairman with equal number of employer’s and the workmen’s
representatives955.

 Courts of Inquiry

 If there is need arises, a Court of Inquiry may be constituted by the

Appropriate Government for inquiring any matter which is related to or having
connection with an industrial dispute956. The same has to be notified in the
Official Gazette of India. Thus, it is clear that the Court of Inquiry for
inquiring purpose may be constituted when any industrial dispute came into
existence957.

 Labour Courts

 One or more than one Labour Courts may be constituted by the appropriate
Government958. The constitution of the Labour Court may be notified in the
Official Gazette. The Labour Court is obviously a quasi-judicial body
constituted specifically for the purpose of adjudication of industrial disputes.
The objectives of Labour Court are:
 Adjudicating industrial disputes or issues relevant with the matters as
mentioned in the second schedule959 of the ID Act, 1947.

952
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 5
953
S.N. Misra, Labour & Industrial Laws, 93 (Central Law Publications, Allahabad, 27th edn., 2013)
954
Ibid.
955
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 94 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
956
The Industrial Disputes Act, 1947 (Act 14 of 1947) s. 6(1)
957
S.N. Misra, Labour & Industrial Laws, 94 (Central Law Publications, Allahabad, 27th edn., 2013)
958
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 7
959
The Industrial Disputes Act, 1947 (Act 14 of 1947), The Second Schedule
(See section 7)

190
  Performing functions and tasks as allocated to it under the legal norms of
the ID Act, 1947 for resolving industrial issues and disputes.

 Tribunals

 The chief aim of Tribunals is also adjudicating industrial disputes. The

Appropriate Government is empowered to constitute by notification one or
more than one Industrial Tribunals 960 for adjudicating the industrial disputes as
given in the Second Schedule961 or Third Schedule962 of the ID Act, 1947 or
other assigned relevant functions963. The required condition for constituting a
Tribunal is to notify in the official Gazette964.
 In our country, the Industrial Tribunals are created by the ID Act, 1947. The
Apex Court revealed that status of these tribunals is not same as of other
Courts of Law965. The power of constituting Industrial Tribunal lies with the
Appropriate Government. These Tribunals play an important role in so many
practical reasons. Firstly, persons of high integrity having rich experience are
eligible to preside over the Tribunal. Important matters viz., relating to wages,
provident fund, bonus, dismissal of workmen, gratuity etc., can be submitted

Matters Within The Jurisdiction Of Labour Courts

1. The propriety or legality of an order passed by an employer under the standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to,
workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and
6. All matters other than those specified in the Third Schedule
960
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 7A
961
Supra note 959 at 190
962
The Industrial Disputes Act, 1947 (Act 14 of 1947), The Third Schedule
(See section 7A)
Matters Within The Jurisdiction Of Industrial Tribunals
1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed
963
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 97 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
964
Ibid.
965
J.K. Iron and Steel Co., Kanpur v. Iron and Steel Mazdoor Union, AIR 1956 SC 231

191
 for adjudication to the Tribunal. The Tribunals have unlimited powers, but
upto extent of its authority. If we examine the powers of Tribunals, it is a
judicial body in nature or say a quasi-judicial body. Therefore, notice can be
served upon parties by a Tribunal keeping in view their fundamental rights and
make award for developing harmonious relations among employers &
workmen and can establish industrial peace966.

 National Tribunals

 It is provided that by notifying in the Official Gazette, the Central Government

may constitute one National Tribunal or more than one National Industrial
Tribunals for the purpose of adjudicating industrial issues & disputes, which
the Central Government opines (i) involving problem of national importance
or (ii) are of such type that the industrial establishments located in more than
one State are seems to be interested in or affected from such dispute. It is
totally the discretion of Central Government to decide whether the industrial
dispute is involving a problem of national significance / industrial
undertakings, establishments and units located in more than one Indian State
are attentive to / affected by such issue or dispute967.

 The Central Government is having an option to take action if industrial dispute

involves a question of national importance or affects industries
located/situated in more than one State. The discussed provision as above is
only an enabling one968.

vii. Notice of Change in Conditions of Service

 The provision prohibits an employer from making any unilateral change in the
service conditions applicable to his workmen with regard to any matter as
specified in the Fourth Schedule 969of the ID Act, 1947, unless he has complied
with two pre-conditions970:

966
S.N. Misra, Labour & Industrial Laws, 98 (Central Law Publications, Allahabad, 27th edn., 2013)
967
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 7-B
968
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 99 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
969
The Industrial Disputes Act, 1947 (Act 14 of 1947), The Fourth Schedule
(See section 9A)
Conditions Of Service For Change Of Which Notice Is To Be Given

192
  The employer is required to issue notice in prescribed manner to the workmen
who is getting affected by such changes in conditions of service. The notice
must show proposed changes.
 The employer has to wait for twenty one days after issuing such notice. Any
changes effected before the prescribed period of twenty-one days would be
invalid.
 However, no such notice as stated above will be necessary to issue when change is
effected following the settlement or award971.

 The provision aims to give an opportunity to the workmen to assess the effects of
proposed changes. He may present his view on such proposal972.

 The conditions of service are mentioned in the Fourth Schedule 973

and
retrenchment is not covered under that. Since retrenchment is another different
issue and does not comprise any item mentioned in Fourth Schedule 974 . So,
provisions related to notice of change U/s 9-A shall not be attracted and therefore,
no notice is necessary975.

viii. Grievance Redressal Machinery

 Setting up of Machinery for Redressal of Grievances

1. Wages, including the period and mode of payment;

2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the
benefit of the workmen under any law for the time being in force;
3. Compensatory and other allowances;
4. Hours of work and rest intervals;
5. Leave with wages and holidays;
6. Starting, alteration or discontinuance of shift working otherwise than in accordance with
standing orders;
7. Classification by grades;
8. Withdrawal of any customary concession or privilege or change in usage;
9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are
provided in standing orders;
10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to
retrenchment of workmen;
11. Any increases or reduction (other than casual) in the number of persons employed or to be
employed in any occupation or process or department or shift, not occasioned by circumstances
over which the employer has no control.
970
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 9A
971
H.L. Kumar, Practical Guide to Industrial Disputes, Act & Rules with Model Forms 2 (Universal,
Lexis Nexis, Gurgaon, 8th edn., 2019)
972
A.M. Co., v. Sen, AIR 1973 SC 2155
973
Supra note 969 at 192
974
Supra note 969 at 192
975
L. Robert D’Souza v. Executive Engineer, Southern Railway, (1982) I L.L.J., 330 (SC)

193
  The provisions for redressal of workmen’s grieances are included in Chapter
IIB of the ID Act, 1947. It is provided that industrial establishments in which
twenty or more than twenty workmen are working shall have one or more than
one Grievance Redressal Committee with prime objective to resolve disputes
and issues arising due to individual grievances976.
 Members representing employer and workmen shall be equal in Grievance
Redressal Committee. The Chairperson of the Committee will be selected
from employer & workmen interchangeably on rational basis year by year.
 The Grievance Redressal Committee has to complete proceedings within thirty
days from the date of receiving written application from aggrieved party. If a
workman is not satisfied by the decision of the Committee, he has option to
appeal to the employer. After this, employer has to dispose of the same within
one month. Workmen will be provided a copy of the decision from employer
side977.

ix. REFERENCE OF INDUSTRIAL DISPUTES TO BOARDS, COURTS OR

TRIBUNALS

The provision lays down that where the Appropriate Government is of view that there
exists any industrial dispute or is apprehended, it may at any time in written order978

 refer such dispute to a Board for the purpose of settlement thereof979; or

 refer any matter or issue appearing to be relevant or connected with such dispute
to a Court for inquiry980; or
 refer the matter or dispute appearing to be relevant to or connected with the
dispute, if such dispute is relevant with any matter as listed in the Second
Schedule981 of the ID Act, 1974, to a Labour Court for adjudication purpose982; or
 refer any matter or dispute seems to be relevant to or connected with the dispute,
whether it is relevant with any matter as listed in the Second Schedule983 or Third
Schedule984 to a Tribunal to adjudicate985.

976
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 9-C
977
S.N. Misra, Labour & Industrial Laws, 109 (Central Law Publications, Allahabad, 27th edn., 2013)
978
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(1)
979
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(1)(a)
980
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(1)(b)
981
Supra note 959 at 190
982
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(1)(c)

194
The proviso to the above lays down that where the dispute is related to any matter as
listed in the Third Schedule 986 & is expected not to affect more than 100 (one
hundred) workmen, the appropriate Government may, if thinks fit, refer the matter to
a Labour Court under clause (c) as discussed above987.

The proviso further lays down that where the industrial dispute is related to public
utility services & a notice concerned with strike or lock-out under section 22988 i.e.
(Prohibition of Strikes & Lock-Outs) of the ID Act, 1947 has been issued, the
appropriate Government shall, unless considers that notice as said has been
vexatiously or frivolously issued or inexpedient so to do, refer under this sub-section
despite the fact regarding any other proceedings under the ID Act, 1947 with respect
to the industrial dispute may have commenced 989.

The proviso also lays down that where the industrial dispute with respect to which the
Central Govt. is appropriate Govt., it shall be competent for the Govt. to refer such

983
Supra note 959 at 190
984
Supra note 926 at 191
985
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(1)(d)
986
Supra note 926 at 191
987
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s. 10(1)
988
The Industrial Disputes Act (Act 14 of 1947), s. 22: Prohibition of strikes and lock-outs–
(1) No person employed in a public utility service shall go on strike in breach of contract—
(a) without giving to the employer notice of strike, as hereinafter provided, within six weeks
before striking; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of strike specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conclusion of such proceedings.
(2) No employer carrying on any public utility service shall lock-out any of his workmen—
(a) without giving them notice of lock-out as hereinafter provided, within six weeks before
locking-out; or
(b) within fourteen days of giving such notice; or
(c) before the expiry of the date of lock-out specified in any such notice as aforesaid; or
(d) during the pendency of any conciliation proceedings before a conciliation officer and
seven days after the conclusion of such proceedings.
(3) The notice of lock-out or strike under this section shall not be necessary where there is already in
existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall
send intimation of such lock-out or strike on the day on which it is declared, to such authority as may
be specified by the appropriate Government either generally or for a particular area or for a particular
class of public utility services.
(4) The notice of strike referred to in sub-section (1) shall be given by such number of persons to such
person or persons and in such manner as may be prescribed.
(5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may be
prescribed.
(6) If on any day an employer receives from any persons employed by him any such notices as are
referred to in sub-section (1) or gives to any persons employed by him any such notices as are referred
to in sub-section (2), he shall within five days thereof report to the appropriate Government or to such
authority as that Government may prescribe the number of such notices received or given on that day.
989
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s. 10(1)

195
dispute to Labour Court or Industrial Tribunal, as per the case, as constituted by the
State Govt990.

Where the Central Govt. is of view that any industrial dispute exists there or is
apprehended and such dispute involves question of national importance or of such a
nature that establishments & industries of more than one Indian State are probably be
influenced by or interested in that dispute & that the National Tribunal should
adjudicate the dispute, then, the Central Govt. may, whether it is or not the
appropriate Government with regard to that dispute, by written order, at any time,
refer the matter or dispute appearing to be relevant with or connected with, the
dispute, whether related to any matter as listed in the Second 991 or the Third
Schedule992, for adjudication to a National Tribunal993.

Industrial disputes are very common in industry, so where the disputed parties
whether separately or jointly make an application in the prescribed way, for referring
their dispute towards the Labour Boards, Labour Court, Court, Tribunal or National
Tribunal, the Appropriate Govt., after satisfaction that the application is submitted by
parties with the majority of each party, then reference shall be made accordingly994. It
is laid down that an order for making reference of an industrial dispute to Labour
Court, Tribunal, National Tribunal shall clearly specify that time period within which
award on such dispute shall be submitted to the appropriate Government by Labour
Court, Tribunal, National Tribunal995. The proviso to the above provision lays down
that where industrial dispute is related to an individual workman, then time period
shall not exceed three months996.

The proviso further lays down that where the parties in dispute lodge an application in
the approved way, either separately or jointly, to Labour Court, Tribunal, National
Tribunal for extending such period or due to any other cause, and the concerned
presiding officer of Labour Court, Tribunal, National Tribunal thinks it expedient or
necessary to extend such period, he may with due reasons & causes to be recorded in

990
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s. 10(1)
991
Supra note 959 at 190
992
Supra note 926 at 191
993
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(1A)
994
The Industrial Disputes Act, 1947 (Act 14 of 1947), s.10(2)
995
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(2A)
996
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s.10(2A)

196
written manner, grant extension for such time period by that further period as he
deems fit and necessary997.

It is also particularly laid down in the proviso that in calculating any period as
mentioned in this provision, the period for which proceedings in Labour Court,
Tribunal, National Tribunal are stayed due to any order or injunction of a Civil Court
shall definitely be excluded998:

It is also given in proviso that no proceedings shall lapse before a Labour Court,
Tribunal, or National Tribunal just on the ground that any time period mentioned
under the said provision had expired without completion of such proceedings999.

The provision lays down that where an industrial dispute of establishment or industry
has been referred to a Labour Court, Board, National Tribunal or Tribunal under this
section, the Appropriate Govt. may by issuing order prohibit to continue any strike or
lock-out having connection with such industrial dispute, which may be existing on
date of reference1000.

Where an order vide which an industrial dispute has been referred towards Labour
Court, Tribunal, or National Tribunal in this provision or in subsequent order, the
Appropriate Govt. has mentioned the points of dispute to adjudicate, the Labour
Court, the Tribunal or National Tribunal, as per the case, shall confine the
adjudication to those matters, points and issues incidental thereto1001.

Where an dispute concerned with any establishment has been or is to be referred

towards the Labour Court, the Tribunal or the National Tribunal in this section & the
Appropriate Govt. is having opinion, that the dispute or issue is of that kind that other
establishment, class or group of establishments having similar nature is affected or
likely to be interested in such dispute, the Appropriate Govt. may, while making the
reference or thereafter at any time, but before announcing the award, make an
addition in that reference the establishment, class or group of establishments, whether

997
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s.10(2A)
998
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s.10(2A)
999
The Industrial Disputes Act, 1947 (Act 14 of 1947), Proviso to s. 10(2A)
1000
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(3)
1001
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(4)

197
 or not during such inclusion any industrial dispute exists there or is apprehended in
such establishment, class or group of establishments1002.

Where an industrial dispute has been referred under section 10(1A) towards National
Tribunal, then despite anything in this Industrial Disputes Act contained, no Labour
Court or the Tribunal shall have authority or jurisdiction for adjudicating upon any
matter and issue which is before the National Tribunal for adjudication and
accordingly1003

 If the matter for the purpose of adjudication before National Tribunal is at pending
stage in a proceeding before the Tribunal or a Labour Court, the proceeding before
the Tribunal or a Labour Court, as per the case, in so far as related to such issue &
matter, shall definitely be deemed as quashed on referring such to the National
Tribunal1004; and
 It shall not be legally right for the Appropriate Govt. to refer the dispute or matter
under process of adjudication before National Tribunal to any Tribunal or Labour
Court for the purpose of adjudication during the proceeding as pending with
respect to such dispute or matter before the National Tribunal1005.

It is hereby explained that “Labour Court” or “Tribunal” comprises any Court or

Tribunal or Authority as established under any law related to investigate and settle the
industrial disputes and issues in force in any State1006.

It is laid down that no proceedings as in process or pending before Labour Court,

Tribunal or the National Tribunal related to an industrial dispute shall discontinue or
lapse just due to death of any party or parties concerned with dispute being a
workman. Such Labour Court, the Tribunal or the National Tribunal must complete
proceedings & submit the announced award to the Appropriate Government1007.

x. Voluntary Reference of Disputes to Arbitration

This authorizes the concerned parties to a dispute to choose by themselves an

“arbitrator” including a Labour Court, Tribunal or National Tribunal.

1002
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(5)
1003
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(6)
1004
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(6)(a)
1005
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(6)(b)
1006
The Industrial Disputes Act, 1947 (Act 14 of 1947), Explanation to s. 10(6)
1007
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10(8)

198
 Where there exists an industrial dispute or is apprehended and it is agreed between the
employer & the workmen to refer such dispute for arbitration purpose, they have
option, at any time, but before referring that dispute to a Labour Court or the Tribunal
or the National Tribunal in written way / written agreement, to refer such industrial
dispute for arbitration. The reference shall be made towards that person or persons (he
may be presiding officer of Tribunal, Labour Court or National Tribunal) as an
“arbitrator” or as arbitrators as they mentioned in the arbitration agreement 1008.
It is laid down that where in arbitration agreement it is provided for referring the
dispute to even number of arbitrators, then a person to act as umpire shall be
mentioned in agreement, if the arbitrators are divided equally in their view or opinion,
& the umpire’s award shall prevail and shall be considered as an arbitration award1009.

An arbitration agreement is required to be signed by the parties in prescribed

manner1010. The investigation of the dispute shall be made by arbitrator or arbitrators
and they have to submit the arbitration award duly signed by the arbitrator(s) to the
Appropriate Govt., as per the requirement of the case 1011 . No provision of the
Arbitration Act, 1940 (10 of 1940) shall be applicable to arbitration as stated above.

xi. Payment of Full Wages in Favour of Workman While Proceedings are

Pending in Higher Courts

It is laid down that where a Labour Court, a Tribunal or a National Tribunal awards
reinstatement of workman and further it is preferred by the employer to initiate any
proceedings challenging award in Hon’ble High Court or the Hon’ble Supreme Court,
then employer has to pay in favour of that workman, during the time period when
proceedings are pending in the Hon’ble High Court or the Hon’ble Supreme Court,
full wages as lastly withdrawn by him, including maintenance allowance if any if
workman was not employed or engaged in any establishment during that period and
affidavit is required to be filed by workman in this regard. If the workman had been
engaged or employed and receiving sufficient remuneration in the said period, the
Court shall absolutely order that no any payment of wages shall be made1012.

1008
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10A(1)
1009
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10A(1A)
1010
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10A(2)
1011
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 10A(4)
1012
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 17B

199
xii. Prohibition of Strikes & Lock Outs

The provision lays down that no person engaged in a public utility service in breach
of contract shall commence strike1013:
 without communicating strike notice towards the employer within 06 (six) weeks
before striking1014; or
 within 14 (fourteen) days of submitting such notice1015; or
 before the strike date expired as communicated in notice1016; or
 during pendency of conciliation proceedings before a conciliation officer & 07
(seven) days after completion of such proceedings1017.

Secondly if we talk about lock-out, then it is laid down that employer cannot lock-out
in any public utility services1018.
 without communicating notice of lock-out towards the workmen within the period
of 06 (six) weeks before commencing that lock-out1019; or
 within 14 (fourteen) days of communicating such notice1020; or
 before the lock-out date expires as mentioned in such notice as stated above1021; or
 during any conciliation proceedings as pending with a conciliation officer & 07
(seven) days after conclusion of that proceedings1022.
However, the notice regarding strike or lock-out as stated above is not necessary if a
strike or lock-out is already existing in the public utility services, but it is the duty of
an employer to communicate such strike or lock-out on the day of declaring it, to such
authority as the appropriate Government may specify1023. Employer is duty bound to
report the appropriate Government regarding notices received or issued on the day as
explored above1024.

xiii. General Prohibition of Strikes & Lock-outs

1013
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(1)
1014
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(1)(a)
1015
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(1)(b)
1016
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(1)(c)
1017
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(1)(d)
1018
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(2)
1019
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(2) (a)
1020
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(2) (b)
1021
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(2) (c)
1022
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(2)(d)
1023
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(3)
1024
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 22(6)

200
 No any industrial establishment workman in breach of a contract shall go on strike
and secondly, no a lock-out shall be declared by an employer of said workman1025.

 during the period when conciliation proceedings are pending with a Board & 07
(seven) days after completion of that proceedings;
 during the proceedings with a Tribunal, Labour Court or National Tribunal are
pending, and 02 (two) months after completion of that proceedings;
 during the arbitration proceedings are pending before an arbitrator & 2 (two)
months after completion of that proceedings, where notification under section
10A(3A) has been released;
 during that period when award or settlement is in operation, with respect to any
matters as covered by an award or settlement.

xiv. Illegal Strikes & Lock-outs

A strike or lock-out shall be treated as illegal if1026

 it is declared or started contravening rules & norms as in section 22, section 23 as
already explored above 1027; or
 it is regularly going on contravening an order released & issued under section
10(3), section 10A(4A) 1028.

Where a strike or lock-out pursuant to an industrial dispute has already started and
existing at the time of the referring the dispute towards Board, Labour Court,
Tribunal, an Arbitrator, or National Tribunal, the continuation of that lock-out or
strike shall not be considered as illegal, but the conditions required is that such lock-
out or strike at its beginning was not contravening the provisions of the ID Act, 1947
or continuation of it was not disallowed under section 10(3), section 10A(4A)1029.

A lock-out initiated due to an illegal strike or a strike announced as a result of an

illegal lock-out shall never be deemed as illegal1030.

xv. Prohibition of Lay-off

1025
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 23
1026
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 24(1)
1027
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 24(1)(i)
1028
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 24(1)(ii)
1029
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 24(2)
1030
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 24(3)

201
  For the purpose of prohibiting lay off, it is laid down that no workman (other
than a badli or a casual workman) having name on the muster rolls of an
establishment shall be laid-off by employer without getting prior permission
from the Appropriate Government unless the lay-off is due to reason of power
shortage, natural calamity1031.
 An application seeking permission from appropriate Government shall be
submitted by employer in the mentioning the reasons for lay-off. A copy of
that application is required to be communicated to the workmen concerned 1032.

xvi. Conditions Precedent to Retrenchment of Workmen

It is laid down that no workman engaged in any industrial establishment having

continuous service for minimum of one year shall be retrenched by his employer
unless & until1033

 three months’ of notice in written manner showing the retrenchment reasons has
been issued and the notice period has expired, or in lieu of such notice, the
building worker & employee has been rewarded wages for the notice period; and
 the prior approval has been taken from the Appropriate Government by way of
application submitted in this regard.

An application for getting approval is to be lodged by the employer in the authorised

way clearly mentioning reasons for intended retrenchment. A copy of that application
is to be served upon the concerned workmen in the prescribed way.

E. The Minimum Wages Act, 1948 (Act No. 11 of 1948)

i. An Overview

The prime object of the Act is to save workers from exploitation. It aims at fixing
minimum wages rates mandatorily by an employer 1034 . The Minimum Wages Act,
1948 1035 simply comprises the provisions which are relevant to fix the rate of

1031
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 25M(1)
1032
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 25M(2)
1033
The Industrial Disputes Act, 1947 (Act 14 of 1947), s. 25N(1)
1034
P.K. Padhi, Labour and Industrial Laws 473 (Prentice Hall of India Private Limited, New Delhi,
2007)
1035
The Minimum Wages Act, 1948 (Act 11 of 1948) has been repealed by the Code on Wages, 2019
(No. 29 of 2019) vide Sec. 69. The notification for date of enforcement of the Code on Wages, 2019
(No. 29 of 2019) has not come till date.

202
 minimum wages in certain employments 1036 . The Minimum Wages Act, 1948 was
passed for the welfare of the workers and is contributing towards benefiting workers
in the building & construction industry.

In Bakhshish Singh v. Darshan Engineering Works1037 case, the Apex Court observed
that there is one principle to which no exception applies. In industry, no employer has
right to sustain, if such employer is unable to pay minimum wage to the workers.

In T.G. Lakshmaiah Setty Sons, Adoni. v. State of Andhra Pradesh 1038, it has been
held by the Hon’ble Court that the Minimum Wages Act does not violate fundamental
rights in any way. Rather, it fulfils to some extent the State’s obligations as described
in the Directive Principles of State Policy.

ii. Salient Features of the Act

 This Act contains provisions regarding fixation minimum rate of wages for
different occupations, localities or classes of work.
 The Act requires the employer to pay wages in cash. However, the Appropriate
Government is authorised to pay wages, either wholly / partly in kind1039.
 The Appropriate Government is empowered by the Act to fix the number of
working hours per day & to grant holiday in a week and for paying overtime
wages w.r.t. any employment in Schedule1040 in regard to which minimum wages
are fixed.
 The Inspectors and authorities have power to take notice of issues & decide claims
arising due to payment of wages.
 The Act contains penalties for violating provisions of the Act1041.

1036
The Minimum Wages Act, 1948 (Act 11 of 1948), Preamble
1037
1994 LLR 61 SC
1038
1981 Lab IC 690
1039
S.N. Misra, Labour & Industrial Laws, 707 (Central Law Publications, Allahabad, 27 th edn., 2013)
1040
The Minimum Wages Act, 1948, The Schedule
[See Section 2(g) and 27]
PART I
 Employment on the construction or maintenance of roads or in building operations
 Employment in stone breaking or stone crushing
 Employment in laying of underground cables, electric lines, water supply lines and sewerage
pipe lines
 Employment of Sweeping and Cleaning excluding activities prohibited under the Employment
of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993
1041
S.N. Misra, Labour & Industrial Laws, 707 (Central Law Publications, Allahabad, 27th edn., 2013)

203
 The term “Minimum Wages” is not specifically defined in the Act as it is not possible
to fix a standard minimum wages for all industrial groups for entire country because
all states have varying conditions1042.

iii. Fixation of Minimum Rates of Wages

The Appropriate Government under the provision has to fix & set the minimum
wages rates for engaging workers on the construction, roads maintenance, buildings
operations, stone breaking/crushing, work related to laying of underground cables,
water supply lines, electric lines and sewerage pipelines 1043.

The Appropriate Government has power to review the minimum rates of wages at
various intervals not exceed than five years1044. It is provided that the Appropriate
Government may fix minimum wages for time work i.e. minimum time rate wages
and for piece work i.e. minimum piece rate wages1045.

There is also a provision for employees working on time work basis. A minimum
remuneration rate shall apply to employees working on piece work basis with an aim
to secure minimum rate of wages to such employees. That will be known as
guaranteed time rate 1046 . The provision is intended secure minimum wage for all
workers1047.

A minimum rate i.e. whether time rate / piece rate shall be applicable substituting the
minimum rate, which would or else be apply with regard to overtime work as done by
employees, which is obviously known as “overtime rate”1048.

If there is grievance due to any personal reasons of the worker, then no proceedings or
issue can be raised in establishment1049.

1042
Hydro (Engineers) Pvt. Ltd., v. The Workmen, AIR 1969 SC 182
1043
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 3
1044
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 3(1)(b)
1045
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 3(2)
1046
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 3(2)(c)
1047
Hydro (Engineers) Pvt. Ltd., v. Workmen, AIR 1969 SC 182
1048
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 3(2)(d)
1049
M.G.A. Pai & Sons v. State, AIR 1971 Mys 46

204
The different minimum wages rates may be fixed by the Appropriate Government for
different scheduled services & occupations, adults, children, adolescents &
apprentices, various categories of work in the similar scheduled employment and for
different localities. Similarly, minimum wages rates may be fixed for the following
wage periods viz. hours wise, day wise, month wise & for other approved longer
wage periods. Where such minimum wage rates are fixed day wise or per month wise,
the way of estimating monthly wages, day wise wages, as per the circumstances of the
case, may be indicated1050.

In Woolcombers of India v. Workers Union 1051 , the Court held that despite the
financial capacity of an employer, it is mandatory to pay minimum wages in favour of
the workers.

In President, Cinema Workers Union affiliated to Bhartiya Mazdoor Sangh v.

Secretary, Social Welfare and Labour Department1052, the Court held that the process
of issuing revised notification concerned with fixing rates for minimum wages cannot
be indefinitely postponed by the Govt.

It is provided that basic wage & special allowance may be joint part of the minimum
wages as fixed / revised by the Appropriate Govt. 1053 . The Payment of D.A. i.e.
dearness allowance would come into existence only when the basic wage fixed fell
short than the minimum rates of wages, which the Appropriate Government has to
fix/revise keeping in view the needs & requirements of the worker’s family 1054.

The considerations mentioned hereunder are irrelevant with regard to fixing minimum
rates of wages.
(a) The fact that employer cannot carry on business and pay minimum wages1055.
(b) The employer’s weak financial capacity for paying minimum wages1056.
(c) The fact that establishment suffered losses in the previous years.

1050
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 3(3)
1051
AIR 1973 SC 2758: 1973 (27) FLR 38
1052
2005 LLR 648
1053
S.N. Misra, Labour & Industrial Laws, 719 to 720 (Central Law Publications, Allahabad, 27th edn.,
2013)
1054
Karnataka Film Chamber of Commerce, Bangalore v. State of Karnataka, 1986 Lab IC 1890: ILR
1986 Kant 2183
1055
Hydro (Engineers) Pvt. Ltd., v. The Workmen, AIR 1969 SC 182
1056
Sangam Press v. Workmen, AIR 1969 SC 2035

205
(d) Raw material crisis faced by Employer; and
(e) The industry and region principles

It has been held by the Court that minimum wages must be paid despite extent of
profits & financial stability of the establishment. Even if workers are willing to work
on wages lower than minimum wages, employer is bound to pay minimum rates of
wages1057. The minimum wages is independent and applicable to all industrial units
and industrial establishments. Minimum rates of wages are those rates, below which
wages are not allowed to sink1058.

It is laid down that the employer is liable to make payment of minimum wages in
favour of every employee & worker engaged under him in scheduled1059 employment.
Employer must ensure that wages paid are not under the amount of minimum rate of
wages as fixed by notification issued under section 51060 of the Minimum Wages Act,
1948. However, deductions are allowed to be made from wages as authorised under
the provisions of the Payment of Wages Act, 19361061.

In Militant Security Bureau Pvt. Ltd., v. B.R. Hehar1062, it has been held by the Court
that employees working under contractor have to be cover under the Minimum Wages

1057
Kamani Metals and Alloys Ltd., v. Workmen AIR 1967 SC 1175
1058
S.N. Misra, Labour & Industrial Laws, 721 (Central Law Publications, Allahabad, 27 th edn., 2013)
1059
Supra note 1040 at 203
1060
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 5: Procedure for fixing & revising minimum
wages
(1) In fixing minimum rates of wages in respect of any scheduled employment for the first time
under this Act or in revising minimum rates of wages so fixed, the appropriate Government
shall either
(a) 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, or
(b) by notification in the Official Gazette, publish its proposals for the information of persons
likely to be affected thereby and specify a date, not less than two months from the date of the
notification, on which the proposals will be taken into consideration.
(2) After considering the advice of the committee or committees appointed under clause (a) of
sub-section (1), or as the case may be, all representations received by it before the date
specified in the notification under clause (b) of that sub-section, the appropriate Government
shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum
rates of wages in respect of each scheduled employment, and unless such notification
otherwise provides, it shall come into force on the expiry of three months from the date of its
issue:
Provided that where the appropriate Government proposes to revise the minimum rates of wages
by the mode specified in clause (b) of sub-section (1), the appropriate Government shall consult
the Advisory Board also.
1061
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 12
1062
(1991) 2 CLR 245 (Bom)

206
 Act. The contractor’s workers are also entitled for wages as fixed by Appropriate
Government under the Minimum Wages Act, 1948.

iv. Penalties

Any employer who contravenes the provisions of the Minimum Wages Act, 1948 and
make payment to any employee wages less than the amount of minimum rates of
wages due to him shall be punished by six months of imprisonment or with fine. The
fine may be extended to rupees five hundred or with both1063.

F. The Employees State Insurance Act, 1948 (Act No. 34 of 1948)

i. An Overview

The Employees State Insurance Act, 1948 1064 was enacted for making available a
health scheme for workers in industrial units and establishments. The ESI Act, 1948 is
an Act with prime objective to deliver various benefits favouring industrial workers in
cases of sickness, injuries out of and in the course of employment and maternity
etc.,1065.

Accidents are very common in industries especially in construction industry due to

certain reasons like working at heights, in sunlight, in rain, hot and cold weather, on
and side road working etc. So, the ESI Act, 1948 provides various benefits to workers
in the construction industry like Sickness & Disablement Benefit, Dependants
Benefit, Medical Benefit, Maternity Benefit for females and Funeral Expenses to
dependant of deceased employee etc.,1066.

In Kuriacose v. Employee’s State Insurance Corporation1067, the Court held that once
an industry or establishment is covered under the ESI Act, 1948, then it will be
covered continuously.

1063
The Minimum Wages Act, 1948 (Act 11 of 1948), s. 22
1064
The Employees State Insurance Act, 1948 (Act No. 34 of 1948) has been repealed by the Code on
Social Security, 2020 (No. 36 of 2020) vide Sec. 164. However, the notification for the date of
enforcement of the Code on Social Security, 2020 (No. 36 of 2020) has not come till date.
1065
The Employees State Insurance Act, 1948 (Act No. 34 of 1948), Preamble
1066
P.K. Padhi, Labour and Industrial Laws 674-676 (Prentice Hall of India Private Limited, New
Delhi, 2007)
1067
(1989) I L.L.J. 1 (Kerala)

207
It is provided in the Act that an industry or an establishment to which the ESI Act,
1948 is applicable shall continuously be covered even if the number of employed
workers falls below the specified limit as required under the Act at any time1068. It is
required under the Act that all the workers employed in the industrial establishments
must be insured1069.

Social security measures in a country are dependent on so many factors viz.,

population size, standard of living of people, availability of technical experts &
industrial development. The ESI Act, 1948 was the first one which guaranteed social
insurance for industrial workers. This Act brought social & economic justice to the
poor labour class in Indian Industry. The prime aim of the Act is labour welfare1070. In
fact, labour welfare is not fixed term but an elastic term1071.

An accident or injury arising during the tenure of an insured employee’s service or

occupation shall be deemed to have happened out of & in the course of that
employment, if no contrary evidence come to notice1072.

Accidents happened while performing duty contrary to rules & regulations, etc.: An
accident or injury shall be believed to arise out of & in the tenure of an employee’s
service despite that:
a) At the time of accident, employee was acting contrary to any legal provisions /
law as applicable to him.
b) Employee was performing duty without receiving instructions and orders from
his employer 1073.

It means that any accident or an injury sustained by an employee is considered to have

arisen out of & in the tenure of his employment/services, even if it has happened by
reason of violation of given directions & instructions or orders or for violation of any
legal provisions applicable to employee if such act would have considered so to have

1068
The Employees State Insurance Act, 1948 (Act 34 of 1948), s. 1(6)
1069
Transport Corporation of India v. Employees State Insurance Corporation, AIR 2000 SC 238
1070
S.N. Misra, Labour and Industrial Laws 504 (Central Law Publications, Allahabad, 26th edn.,
2011)
1071
S.N. Misra, Labour and Industrial Laws 505 (Central Law Publications, Allahabad, 26th edn.,
2011)
1072
The Employees State Insurance Act, 1948 (Act 34 of 1948), s. 51A
1073
The Employees State Insurance Act, 1948 (Act 34 of 1948), s. 51-B

208
 came into existence had the act not been performed contravening as said above or
without directions & instructions from the side of his employer as the case may be.

It also comprises the accident which may have been faced by an employee while he is
performing duty / act in connection with the employer’s business or trade. Actually,
an employee who is performing duty contravening the statutory and mandatory
provisions or directions or orders issued from his employer with respect to conduct of
business / trade cannot claim even damages from an employer. But employees are
provided special protections under this Act as discussed above. In all these
circumstances, an employee has right to claim benefits as guaranteed under this
Act1074.

ii. Happening of Accidents during Travel in Employer’s Transport

It is very common in construction industry that workers have to travel in employer’s

transport from one place to another. So, the provision lays down that if an employee
with the permission (express/implied) from his employer met with an accident, then it
shall be presumed that accident has arisen out of & in the course of employment, if at
the time of occurrence of accident, the vehicle was driven or not operated in public
transport service ordinarily. The term “vehicle” covers vessel & an aircraft 1075.

After analysis, it has been come to notice that if any accident happened with an
employee during the period within which he is travelling by transport vehicle with the
permission of his employer either expressly or impliedly shall be deemed to have
been happened out of & in the employment course. It shall be deemed even if he is
under no any obligation towards his employer to travel using that vehicle. Any person
even not under legal obligation travelling for his employer is also covered in case of
accident, but with the condition that vehicle in which he is travelling has been
operated / driven by or on behalf of employer or other person following the
arrangements by the employer. However, if an accident happened by vehicle
operated/driven in the ordinary course of public transportation service, then such

1074
Dr. V.G. Goswami, Labour and Industrial Laws (Volume 1) Social Security Legislation in India
303 (Central Law Publications, Allahabad, 9th edn., 2011)
1075
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 51-B

209
 accident shall not be presumed to have arisen out of & in the course of employment.
The term vehicle covers vessel & an aircraft1076.

iii. Accidents happened during meeting emergencies

Emergencies are very common in construction industry. If an employee met with an

accident and injured, then accident shall be deemed to have arisen out of & in the
course of employment with condition that, accident happened while handling
emergency situation at the premises, to rescuing, succouring or protecting people who
are injured / imperilled, or escaping property from damages1077.

Various emergencies are there which can be seen in construction industries like fire,
flood or other abnormal situations. It is provided that if an employee inured in an
accident, then accident shall be presumed to have happened/occurred in the course of
employment1078.

iv. Benefits under the ESI Act, 1948

The prime purpose of the Employee’s State Insurance Act, 1948 is to provide benefits
to the insured persons and their dependants depending upon case to case. The
following benefits are guaranteed under the ESI Act, 19481079.

 Sickness Benefit

It is in the form of periodical payments to every insured person during

sickness/illness, provided his sickness is certified by a duly appointed and authorised
medical practitioner, or any person having qualifications and experience as may be
specified by regulations of the Corporation1080. In case, an employee covered under
the ESI Act, 1948 is on Sick Leave as guaranteed under the standing orders, employer
cannot compel employee avail sickness benefit as guaranteed1081.

1076
Dr. V.G. Goswami, Labour and Industrial Laws (Volume 1) Social Security Legislation in India
304 (Central Law Publications, Allahabad, 9th edn., 2011)
1077
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 51-D
1078
Dr. V.G. Goswami, Labour and Industrial Laws (Volume 1) Social Security Legislation in India
304 (Central Law Publications, Allahabad, 9th edn., 2011)
1079
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 46(1)
1080
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 46(1)(a)
1081
M.L. Kuntarao v. Azam Johi Mills Ltd., Warangal, (1970) Lab IC 585 (AP)

210
In Management of Dioccsan Press v. Labour Court Madras1082, it was held that since
employee has availed sickness benefit, then he is not entitled to avail the wages for
the period of sick leave. In simple words, double benefit cannot be availed by an
employee.

 Maternity Benefit

This benefit is guaranteed in the form of periodical payment in favour of an insured

woman. It is payable in case of
(i) Confinement; or
(ii) Sickness coming out of or due to pregnancy: or
(iii) Miscarriage; or
(iv) Premature birth of a child; or
(v) Miscarriage1083
Before payment, the maternity benefit to an insured woman required to be certified by
an Insurance Medical Officer as mandatory under the regulations1084. The maternity
benefit is granted under section 50 of the ESIC Act, 1948. The insured woman has
right to avail maternity benefit as per the rates and periods prescribed by the
Government1085.

 Disablement Benefit

Every insured person has right to periodical payments if:

(i) He suffers from disablement due to employment injury/injuries;
(ii) He suffered employment injury as an employee under required conditions in
the Act
(iii) The disablement benefit is payable after completion of process of certification
of injury by an Insurance Medical Officer 1086.
In Krishan Kutty Nair v. P.B.V. Regional Director, ESI Corporation and Another1087,
the appellant was an insured employee under the E.S.I. Scheme and met with an
accident. The injury arisen out of course of employment. The claimant sustained

1082
(1982) I L.L.J. 451 (Mad)
1083
The Employees State Insurance Act, 1948 (Act 34 of 1948), s. 46(1)(b)
1084
S.N. Misra, Labour and Industrial Laws 572 (Central Law Publications, Allahabad, 26th edn.,
2011)
1085
The Employees State Insurance Act, 1948 (Act 34 of 1948), s. 50
1086
The Employees State Insurance Act, 1948 (Act 34 of 1948), s. 46(1)(C)
1087
2008 II L.L.J. 997 (S.C.)

211
injury after completion of employment tenure. The appeal was dismissed and it was
held that disablement benefit requires fulfilment of two conditions:
(1) The employee must be an insured person.
(2) Injury must be sustained during employment period.
The Appeal was dismissed as his employment was ceased while he suffered injury 1088.

A person who is temporarily disabled for minimum three days (excluding day on
which accident happened) is eligible for periodical payments on rates as prescribed by
the Central Government from time to time. Secondly, a person who is permanently
disabled whether totally or partially shall be entitled to periodical payments at rates
prescribed as prescribed by the Central Government from time to time1089.

 Dependents Benefit

This benefit is in the form of periodical payments provided to those dependant family
members of an insured person who is expired due to an employment injury suffered as
an employee under the ESI Act, 1948 and eligible for compensation under the Act1090.

Construction industry workers injured while working. It is very common for them. If
due to an employment injuries, any employee who is insured under the ESI Act, 1948
dies, then his dependants i.e. those who are mentioned in sub-clause (i), (i-a) and (ii)
of clause (6A) of Section 21091 of the ESI Act, 1948 will be paid dependant’s benefits
at the rates prescribed by the Central Government from time to time1092.
Secondly, if the insured person died without leaving behind him any of the
dependants as discussed above, then the dependant’s benefit shall be released in

1088
S.N. Misra, Labour and Industrial Laws 573 (Central Law Publications, Allahabad, 26th edn.,
2011)
1089
The Employees State Insurance Act, 1948, (Act 34 of 1948), s. 51
1090
The Employees State Insurance Act, 1948, (Act 34 of 1948), s. 46(1)(d)
1091
The Employees State Insurance Act, 1948, (Act 34 of 1948), s. 2. Definitions.—In this Act, unless
there is anything repugnant in the subject or context:
Clause (6A) “dependant” means any of the following relatives of a deceased insured person,
namely:
sub-clause (i) a widow, a legitimate or adopted son who has not attained the age of twenty-five
years, an unmarried legitimate or adopted daughter,
sub-clause (ia) a widowed, mother;
sub-clause (ii) if wholly dependent on the earnings of the insured person at the time of his death, a
legitimate or adopted son or daughter who has attained the age of twenty-five years and is infirm;
1092
The Employees State Insurance Act, 1948, (Act 34 of 1948), s. 52(1)

212
favour of other dependants of such deceased person on the prescribed rates/period
following the conditions as required by the Central Government from time to time1093.

In E.S.I. Corporation v. Sayeeda Khatoon Donawala & Others1094, a workman was

run-over by the bus while going to factory. The Court held that injury sustained by the
workman is considered as out of & in the course of his employment. Employer was
not escaped from making payment in favour of dependant of deceased employee.

 Occupational Diseases

The term “Occupational Disease” is nowhere defined in the ESI Act, 1948. However,
a list of occupational diseases is provided in the third schedule 1095 of the ESI Act

1093
The Employees State Insurance Act, 1948, (Act 34 of 1948), s. 52(2)
1094
(1995) I L.L.J. 173 (Bom.)
1095
The Employees State Insurance Act, 1948, (Act 34 of 1948), The Third Schedule
(See section 52A)
List Of Occupational Diseases
Sr. Occupational disease Employment
No.
(1) (2) (3)
PART A
1. Infectious and parasitic diseases contracted in an (a) All work involving exposure
occupation where there is a particular risk of contamination to health or laboratory work;
(b) All work involving exposure
to veterinary work;
(c) Work relating to handling
animals, animal carcasses, part
of such carcasses, or
merchandise which may have
been contaminated by animals or
animal carcasses;
(d) Other work carrying a
particular risk of contamination.
2. Diseases caused by work in compressed air All work involving exposure to
the risk concerned.
3. Diseases caused by lead or its toxic compounds All work involving exposure to
the risk concerned.
4. Poisoning by nitrous fumes All work involving exposure to
the risk concerned.
5. Poisoning by organphosphorus compounds. All work involving exposure to
the risk concerned.
PART B
1. Diseases caused by phosphorus or its toxic compounds All work involving
exposure to the risk
concerned.
2. Diseases caused by mercury or its toxic compounds All work involving
exposure to the risk
concerned.
3. Diseases caused by benzene or its toxic homologues. All work involving
exposure to the risk
concerned.

213
4. Diseases caused by nitro and amido toxic derivatives of benzene All work involving
or its homologues. exposure to the risk
concerned.
5. Diseases caused by chromium or its toxic compounds. All work involving
exposure to the risk
concerned.
6. Diseases caused by arsenic or its toxic compounds. All work involving
exposure to the risk
concerned.
7. Diseases caused by radioactive substances and ionising All work involving
radiations exposure to the action of
radioactive substances or
ionising radiations.
8. Primary epithelomatous cancer of the skin caused by tar, pitch, All work involving
bitumen, mineral oil, anthracene, or the compounds, products of exposure to the risk
residues of these substances concerned.
9. Diseases caused by the toxic halogen derivatives of All work involving
hydrocarbons (of the aliphatic and aromatic series) exposure to the risk
concerned.
10. Diseases caused by the carbon disulphide All work involving
exposure to the risk
concerned.
11. Occupational cataract due to infra-red radiations All work involving
exposure to the risk
concerned.
12. Diseases caused by manganese or its toxic compounds All work involving
exposure to the risk
concerned.
13. Skin diseases caused by physical, chemical or biological agents All work involving
not included in other items. exposure to the risk
concerned.
14. Hearing impairment caused by noise All work involving
exposure to the risk
concerned.
15. Poisoning by dinitrophenol or a homologue or by substituted All work involving
dinitrophenol or by the salts of such substances exposure to the risk
concerned.
16. Diseases caused by beryllium or its toxic compounds All work involving
exposure to the risk
concerned.
17. Diseases caused by cadmium or its toxic compounds All work involving
exposure to the risk
concerned.
18. Occupational asthama caused by recognised sensitising agents All work involving
inherent to the work process. exposure to the risk
concerned.
19. Diseases caused by flourine or its toxic compounds All work involving
exposure to the risk
concerned.
20. Diseases caused by nitro-glycerine or other nitroacid esters All work involving
exposure to the risk
concerned.
21. Diseases caused by alcohols and ketones. All work involving
exposure to the risk
concerned.
22. Diseases caused by asphyxiants: carbon monoxide, and its toxic All work involving
derivatives, hydrogen sulfide exposure to the risk
concerned.

214
1948. The area of working of construction workers as compared to workers in
manufacturing units/factories is more difficult. Construction workers have to work in
dusty area, under sunlight, breath smoke from coal fumes etc. So, they suffered from
various diseases while working. It is provided that if an employee contracts any
occupational disease as detailed in third schedule1096 shall be considered that he has
contracted an employment injury which has arisen out of & in the course of
employment. The third schedule 1097 is in three parts Part A, Part B & Part C. For
occupational disease as listed in Part A, no definite tenure of employment is
necessary. But, for other diseases as listed in Part B of Schedule III 1098 , the
requirement is that an employee who is insured must have worked in the
establishment peculiar to that disease for a minimum period of 6 months. For
occupational disease as listed in Part C of third schedule1099, the working period of
employment shall be that as Corporation specify with regard to that employment. If an
employee contracted the disease as discussed and described above, it shall be
considered to be an “employment injury” and deemed to be arising out of & in the
course of employment 1100.

23. Lung cancer and mesotheliomas caused by asbestos. All work involving
exposure to the risk
concerned.
24. Primary neoplasm of the epithelial, lining of the urinary bladder All work involving
or the kidney or the ureter. exposure to the risk
concerned.
Part C
1. Pneumoconioses caused by sclerogenic mineral dust (silicosis, All work involving
anthraoosilicosis asbestosis) and silico-tuberculosis provided exposure to the risk
that silicosis is an essential factor in causing the resultant concerned.
incapacity or death
2. Bagassosis All work involving
exposure to the risk
concerned.
3. Bronchopulmonary diseases caused by the cotton, flax hemp and All work involving
sisal dust (Byssinosis) exposure to the risk
concerned.
4. Extrinsic allergic alveelitis caused by the inhalation of organic All work involving
dusts exposure to the risk
concerned.
5. Bronchopulmonary diseases caused by hard metals All work involving
exposure to the risk
concerned.
1096
Supra note 1095 at 213
1097
Ibid.
1098
Ibid.
1099
Ibid.
1100
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 52A(1)

215
No disease except those which are mentioned as occupational diseases in third
Schedule 1101 is recognised as “employment injury” under the Act. If an employee
contracts any other disease, then employee will not be eligible for any benefit with
respect to such disease unless & until the contracted disease proved arising out of &
in the course of his services / employment. Evidently, the burden of proof lies upon
that person who is claiming benefit that there is casual connection between
employment & disease1102.

Bar against Recovery/Receiving of Damages/Compensation under any other law:

Double benefit is prohibited. It is provided that an employee who is insured under the
ESI Act, 1948 or his dependants and received / recovered compensation for
employment injury sustained, then further damages/compensation cannot be claimed
under other statues namely:

(a) The Employee’s Compensation Act, 1923 or

(b) Any other law / statute for the period or moment being in force / otherwise from:
(i) The employer, or
(ii) From any other person1103

It has been observed that the employee who is insured and covered under the ESI Act,
1948 has no alternate to select the kind of remedy. The bar for receiving
compensation as discussed above comes into action irrespective of the truth that the
insured person / employee has received/recovered the benefits available under the Act
or not1104.

 Medical Benefit

Medical Benefit is available to an insured person or to a member of his family. This

benefit is in the following forms 1105:
(ii) Out-patient treatment, assistance, care in a hospital or any clinic

1101
Supra note 1095 at 213
1102
S.N. Misra, Labour and Industrial Laws 576 (Central Law Publications, Allahabad, 26th edn.,
2011)
1103
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 53
1104
S.N. Misra, Labour and Industrial Laws 576 (Central Law Publications, Allahabad, 26th edn.,
2011)
1105
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 56

216
 (iii) By attending insured employee at his home who is insured; or
(iv) Medical consultation & relevant treatment as in-patient in clinic or hospital

It is provided that medical benefits can be claimed by an insured person or his family
member, where the said benefit is extended further to his family. Medical benefit can
be claimed by an insured person / by his family member, whose condition is such that
requires at-least medical examination & attendance1106. So, medical benefit is offered
by the Corporation in following way1107:
(i) Outpatient treatment; or
(ii) Attendance in a hospital, clinic or dispensary; or
(iii) By home visit of the insured person; or
(iv) Treatment as inpatient in Institution / hospital
Accordingly, an insured person has right to receive medical benefits in periods:
(i) In which contributions are released & paid in respect of him; or
(ii) In which person insured is eligible to claim benefit for sickness /
maternity;
(iii) In which insured person is receiving disablement benefits as does not
make him ineligible towards medical benefit under the rules &
regulations1108.

However, it is provided that if contributions are stopped in respect of a person, he

may still be provided medical benefits for certain defined periods following the rules
& regulations framed by the Corporation1109.

It is further provided that a person who is insured who is not a member in insurable
employment due to reason of disablement (permanent) shall continue, but subject to
paying contribution in corporation & similar other conditions as required by the
Central Government, so that he could avail medical benefit upto the date on which he
left the services/employment on completing age of superannuation, had that person
not sustained permanent disablement 1110.

1106
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 56
1107
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 56(2)
1108
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 56(3)
1109
S.N. Misra, Labour and Industrial Laws 580 (Central Law Publications, Allahabad, 26th edn.,
2011)
1110
Ibid.

217
 It is also provided that an insured person who has reached the superannuation age /
retires under VRS i.e., Voluntary Retirement Scheme / prematurely retired & his
spouse shall have right to avail the medical benefits subject to releasing payment of
contribution towards corporation & similar other conditions to follow as may be
required by the Central Government 1111.

v. Provision for Arrangement of Medical Treatment by State Government

This provision makes the State Government responsible for providing medical
treatment to the insured person & to his family a reasonable surgical, medical and
obstetric treatment1112.
With Corporation’s consent, the State Government may arrange medical treatment at
medical practitioner’s clinics on agreed scales and terms & conditions 1113 . The
Corporation and the State Government may share the excess amount incurred on
treatment. The Corporation has authority to waive off the share to be borne by the
Government at the State level1114.

The Corporation after entering into an agreement/contract with the State Government
may take decision on1115:
(i) The nature, type & scale related to medical treatment forwarded towards
insured persons & their families and dependants.
(ii) The arrangements i.e. infrastructure, buildings, medicines, equipments & staff.
(iii) The contribution in sharing cost & expenditure incurred on offering benefits.
(iv) The ratio of sharing amount spent more than the All India Average.

The arbitrator appointed by the CJI i.e. Chief Justice of India may decide the above
matters if there is no agreement between the Corporation & the State Government.

vi. Establishment & Maintaining Hospitals etc., by the Corporation

The Corporation is authorised under the Act to establish and well maintain in a State
i.e. hospitals, dispensaries and other relevant medical & surgical services for

1111
Ibid.
1112
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 58
1113
S.N. Misra, Labour and Industrial Laws 580 (Central Law Publications, Allahabad, 26th edn.,
2011)
1114
S.N. Misra, Labour and Industrial Laws 581 (Central Law Publications, Allahabad, 26th edn.,
2011)
1115
Ibid.

218
 enhancing benefits to insured persons & their families / dependants. For achieving
this objective, the corporation has to ensure approval from the Government at State
level1116. The Corporation can prepare agreement with authority at local level, private
firm/body or agency ensuring medical examination, care & attendance for insured
persons and their dependants / families in any areas. The cost incurred can also be
shared thereof1117.
The agreement can also be entered into between Corporation and local authority, local
/ private body for running Employee’s State Insurance hospitals (ESI Hospitals)
through third party for enhancing care, well being, medical examination, care and
treatment favouring insured individuals and their family members1118.

vii. Provisions for Medical Benefits to be provided by the Corporation in lieu of

the State Government

It is provided that the Corporation after consulting the State Government may hold the
responsibility for offering medical benefits to the person who are insured and to their
families. Ratio of expenditure involved for providing medical benefit to families of
insured persons may be shared as agreed among the State Govt. and the
Corporation.1119.

viii. Employer not to Punish / Dismiss an Employee during Sickness Period etc.,

The provision is for the benefit of building & construction workers. The section lays
down that that the employer shall not discharge, dismiss or reduce or punish an
employed person1120:
 During the period in which an employee is receiving sickness benefits or
maternity benefits.
 Who is receiving disablement benefits during temporary disablement.
 Who is undergoing medical treatment for illness / sickness.
 Who is absent from work due to reason of illness arising out of pregnancy or
confinement which renders an employee unwell for duty/work. The illness is
required to be duly certified according to rules & regulations.

1116
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 59(1)
1117
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 59(2)
1118
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 59(3)
1119
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 59-A
1120
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 73

219
For protecting the rights of employees and workers, it is laid down that no any notice
issued for the purpose of dismissing, discharging or reduction to an employee for
above discussed periods shall be operative / valid1121.

In Management of Guest Keen Williams Ltd., v. Presiding Officers, 2nd Addl. Labour
Court1122, the Court held that an employer has no right to discharge, dismiss or issue
reduction order for punishing employee who is receiving sickness benefits or on
maternity leave.

 Funeral Expenses

Funeral expenses are those which are paid when an employee covered under the ESIC
Scheme expires. Funeral Expenses are payable to the surviving member who is eldest
one of the family or payable to that person who in fact, incurs funeral expenditure. An
amount of Rs.15,000/- is payable in favour of the dependents or in favour of the
person by whom last rites are performed 1123 . For claiming amount of funeral
expenses, prescribed forms with relevant documents can be submitted within 03
(three) months w.e.f. date of death of the insured individual1124.

 Sickness Benefit

The sickness benefit is in the form of periodical payments to insured persons during
sickness 1125 . The sickness is required to be certified by prescribed Medical
Practitioner. The qualification for claiming sickness benefit, the rates & periods shall
be such as the Central Government may prescribe1126.

Therefore, these are the benefits which are readily available to workers in
construction industry. As injuries and accidents are common in construction industry,
the Employees State Insurance Corporation is proved to be a very helpful for
workforce in the construction industry.

1121
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 73
1122
(1992) 1 CLR 433 (Karn)
1123
Employees State Insurance Corporation, available at: https://www.esic.nic.in/information-benefits
(last visited on August 29, 2021)
1124
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 46(f)
1125
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 46(1)(a)
1126
The Employee’s State Insurance Act, 1948 (Act 34 of 1948), s. 49

220
 G. The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act
No. 19 of 1952)

i. An Overview

The EPF and MP Act, 19521127 is an Act to secure future and institute provident
funds, pension fund and make available employees deposited linked insurance scheme
fund for employees in factories & establishments 1128 . The Directive Principles as
enshrined in the Indian Constitution, inter-alia direct the State for promoting people’s
welfare in the country. The EPF & MP Act, 1952 was enacted for saving future of the
industrial worker after his superannuation or to his dependants/family in case of his
early death1129. Three schemes are framed under the Act viz., the EPF Scheme, 1952,
the EDLI scheme, 1976 and the Employees Pension Scheme (EPS) 19951130. It is the
duty of principal employer to put the Provident Fund Scheme into operation.
Employee’s share to be deducted from their wages and employer’s share is
contributed to the fund1131. The Act is applicable to every establishment where twenty
or more than twenty persons are employed1132.

For the applicability of the Act to any establishment/factory, engaged in Scheduled

industry, the two conditions that must be fulfilled are:
 The premises must carries manufacturing process in any of its part including
in itself the precincts of the factory, using / without using the aid of power.
 Minimum twenty persons statutorily employed in an establishment.

As per the Act, it is required that twenty or more than twenty employees in a year
should be shown as working to make an establishment covered under the EPF & MP
Act, 19521133.

1127
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 has been repealed by the
Code on Social Security, 2020 (No. 36 of 2020) vide Sec. 164. The notification for the date of
enforcement of the Code on Social Security, 2020 (No. 36 of 2020) has not come till date.
1128
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act 19 of 1952),
Preamble
1129
P.K. Padhi, Labour and Industrial Laws 713 (Prentice Hall of India Private Limited, New Delhi,
2007)
1130
Ibid.
1131
Kumar Brothers (Bidi) Private Ltd., v. Regional Provident Fund Commissioner, Bihar, (1968) Lab
IC1578 (Pat).
1132
S.N. Misra, Labour and Industrial Laws 615 (Central Law Publications, Allahabad, 26th edn.,
2011)
1133
V.K. Bhatt v. A.C.B. & T Mfg. Co., AIR 1974 SC 337

221
 Once an establishment comes under the EPF & MP Act, 1952, it shall continuously be
remained under the Act, even if number of employees falls below twenty1134.

In L.N. Gadodia & Sons and another v. Regional Provident Fund Commissioner1135,
the Court held that two companies whose Managing Director is same can be clubbed
for covering under the Employees Provident Funds and Miscellaneous Provisions Act,
1952.

ii. Beneficial Piece of Legislation

After speaking about the Act, the Supreme Court in Balbir Kaur v. Steel Authority of
India1136 case, observed that the EPF and MP Act, 1952 is undoubtedly that statute
benefitting industrial workers in a better way. Shortly said, it is a social security Act.
Its objective is to ensure better future after retirement and of dependants after his
death. The amount which is given to dependants of an employee after his death
benefits the whole family. However, no any payment may results into creating
problems to the family.

The EPF & MP Act, 1952 is enacted for protecting weaker section of the society. The
building workers are also benefitted from this. Ultimately, the Act accelerates the
growth & development of the country 1137 . Thus, a labour legislation enacted for
benefiting building & construction workers deserves a liberal & purposive
interpretation on the basis of Directive Principles of State Policy as defined in Article
381138 and Article 431139 of the Indian Constitution1140.

1134
S.N. Misra, Labour and Industrial Laws 625 (Central Law Publications, Allahabad, 26th edn.,
2011)
1135
2011 IV L.L.J. 503 (S.C.)
1136
(2000) 2 Lab LJ I : AIR 2000 SC 1596 : (2000) 6 SCC 1596
1137
Avtar Singh and Harpreet Kaur, Introduction to Labour and Industrial Law, 761 (Universal, Lexis
Nexis, Gurgaon 3rd edn., 2014)
1138
The Constitution of India, art. 38 states that State to secure a social order for the promotion of
welfare of the people: The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life.
1139
The Constitution of India, art. 43 lays down regarding Living wage, etc, for workers: the State shall
endeavour to secure, by suitable legislation or economic organisation or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a
decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in
particular, the State shall endeavour to promote cottage industries on an individual or co operative basis
in rural areas
1140
Employees Provident Fund Commissioner v. Official Liquidator, (2011) 10 SCC 727

222
iii. Schemes under the EPF & MP Act, 1952

 Employees Provident Fund Scheme

A scheme named employees provident fund scheme is framed for benefitting building
workers. The Act authorises the Central Government to frame Employees Provident
Fund Scheme for establishing Provident Funds for employees. The scheme shall apply
to employees as specified in it. After the framing of the scheme, a Fund shall be
established at the earliest following statutory provisions of this Act & the scheme1141.
Two distinct powers granted to the Central Government namely, (i) to frame EPF
scheme (ii) to specify factories and establishments to which the scheme shall be
applicable. These powers can be used by moving single notification1142. Further, the
scheme must contain complete information regarding its application on factories and
establishments1143.

 Employee’s Pension Scheme

A pension scheme is available for building workers. Pension is granted after

superannuation. The scheme under the Act is elaborated hereunder:
The Central Government framed a scheme known as the Employee’s Pension Scheme
with an aim for providing for1144:
 Superannuation pension, pension after retirement, pension for permanent total
disablement to the employees & building workers of an establishment to
which the provisions of this statute is applicable.
 Widow Pension / Widower’s Pension, Pension for Children or Orphan Pension
granted to the beneficiaries of member employees.
 A Pension Fund is formed for the purpose of depositing pension contribution
of every employee covered under the scheme from employer side 1145.
 Contribution sum from the employer’s account not more than 8.33% (Eight &
One-Third percent) of the basic wages, dearness allowance (DA) and retaining

1141
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s. 5
1142
S.N. Misra, Labour and Industrial Laws 643 (Central Law Publications, Allahabad, 26th edn.,
2011)
1143
R.P.F. Commr. v. L.R.F. Works, AIR 1962 Punj 507
1144
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s. 6A
1145
S.N. Misra, Labour and Industrial Laws 653 (Central Law Publications, Allahabad, 26th edn.,
2011)

223
 allowance, if paid any, of the member employees, as described in the Pension
Scheme.
 The net assets of the Employees (FPF) Family Pension Fund w.e.f. the date of
the opening/establishment of the Pension Fund.
 Such sum and amount as the Central Government may by appropriating the
law in this regard1146.

 Employee’s Deposit-linked Insurance Scheme

 A scheme called the Employee’s Deposit Linked Insurance Scheme has been
framed for the purpose of giving benefit of Life Insurance to the workers &
employees of any establishment to which the provisions of EPF & MP Act,
1952 are applicable1147.
 After the starting of the Insurance Scheme, a Deposit Linked Insurance Fund
will be created. The employer submits contribution of every member
employee of the scheme. The contribution will be paid on basic wages,
dearness allowance (DA) & retaining allowance1148.

iv. Protection Against Attachment

The building workers are benefitted yet in another way. The amount of provident fund
is escaped from attachment under any order or decree Court of Law 1149.
It is provided that any amount of provident fund at the time when member employee
expires shall be payable to his nominee as per the Scheme1150. The amount payable to
nominee is also exempted from attachment under any order / decree of any Court1151.
The rule as discussed above shall also apply to the amount of family pension, Family
Pension Scheme and to any amount of Insurance Scheme1152.
Therefore, the above discussed three schemes are proved to be beneficial in favour of
construction industry workers. This is an important step towards protecting future of

1146
Ibid.
1147
The Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s.
6(C)(1)
1148
The Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s.
6(VC)(2)
1149
The Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s. 10
1150
The Employee’s Provident Fund and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s. 10(2)
1151
S.N. Misra, Labour and Industrial Laws 668 (Central Law Publications, Allahabad, 26th edn.,
2011)
1152
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Act 19 of 1952), s. 10(3)

224
 employees of industry and is counted as a strong tool. This is a valuable social
security welfare legislation saving future of workers in construction industry.

H. The Maternity Benefit, 1961 (Act No. 53 of 1961)

i. An Overview

The Maternity Benefit Act, 19611153 was enacted for regulating the employment of
women workers and employees in establishments for a particular period before &
after the birth of a child and to grant maternity and other benefits1154. It is intended for
achieving aim of providing social justice towards female workers1155. Therefore the
enactment of this statute support woman worker not for subsistence, but to boost her
dissipated energy, to nurse child, improve efficiency as a worker and to maintain
previous level of efficiency & output1156.

It covers every establishment employing ten or more than ten persons, or employed on
any day of the previous twelve months. But this Act shall become inapplicable, where
provisions of the Employee’s State Insurance Act, 1948 are enforced1157.

In Municipal Corporation of Delhi v. Female Workers (Muster Roll)1158, the Court

held that a Corporation employing more than a thousand female workers, it should be
covered within the scope of the Act, so that maternity benefits as contemplated under
the Act could be extended towards women workers of the Corporation.

ii. Prohibition of Employment of Woman during Certain Period

The employer is prohibited from knowingly employing any woman in any

establishment for the period of six weeks instantly following:
 the delivery day
 miscarriage

1153
The Maternity Benefit Act, 1961 (Act No. 53 of 1961) has been repealed by the Code on Social
Security, 2020 (No. 36 of 2020), Sec. 164. The notification for the date of enforcement of the Code on
Social Security, 2020 (No. 36 of 2020) has not come till date.
1154
The Maternity Benefit Act, 1961 (Act No. 53 of 1961), Preamble
1155
S.N. Misra, Labour and Industrial Laws 1002 (Central Law Publications, Allahabad, 26th edn.,
2011)
1156
B. Shah v. Labour Court, Coimbatore, AIR 1978 SC 12
1157
The Maternity Benefit Act, 1961 (Act No. 53 of 1961), s. 2
1158
AIR 2000 SC 1274

225
  medical termination of pregnancy1159
Woman is prohibited to work in any industrial establishment, manufacturing unit or
building or construction work for the period of 06 (six) weeks instantly subsequent to
the day of her:
 Delivery
 Miscarriage
 Medical termination of pregnancy1160

Without any prejudice to provisions under section 61161, no pregnant woman shall be
required by employer to perform work of below mentioned nature during the period
of 01 (one) month instantly precedes the period of 06 (six) weeks prior to expected
delivery date and during period of 06 (six) weeks for which woman under pregnancy
not taken the absenteeism leave as granted under section 6 1162 of the Maternity
Benefit Act, 19611163. The work which is prohibited as stated above is:

 Arduous nature work.

 Any work involving long standing hours.
 Work that interfere with pregnancy condition of woman
 Work affecting normal development of foetus.
 Work which may results in miscarriage.

1159
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 4(1)
1160
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 4(2)
1161
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 6 is a provision regarding Notice of claim for
maternity benefit and payment thereof.—(1) Any woman employed in an establishment and entitled to
maternity benefit under the provisions of this Act may give notice in writing in such form as may be
prescribed, to her employer, stating that her maternity benefit and any other amount to which she may
be entitled under this Act may be paid to her or to such person as she may nominate in the notice and
that she will not work in any establishment during the period for which she receives maternity benefit.
(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be
absent from work, not being a date earlier than six weeks from the date of her expected delivery. (3)
Any woman who has not given the notice when she was pregnant may give such notice as soon as
possible after the delivery. (4) On receipt of the notice, the employer shall permit such woman to
absent herself from the establishment during the period for which she receives the maternity benefit. (5)
The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid
in advance by the employer to the woman on production of such proof as may be prescribed that the
woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the
woman within forty-eight hours of production of such proof as may be prescribed that the woman has
been delivered of a child. (6) The failure to give notice under this section shall not disentitle a woman
to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or
amount and in any such case an Inspector may either of his own motion or on an application made to
him by the woman, order the payment of such benefit or amount within such period as may be
specified in the order.
1162
Ibid.
1163
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 4(4)

226
  Work that may adversely and badly affect health of pregnant woman1164.
iii. Right to Payment of Maternity Benefits

The maternity benefit is paid by every employer to each woman is a payment of

calculated at the rate of the average daily wages for the period of her actual absence
i.e. the period which is immediately precedes and including day on which child
delivered and any period immediately following the day of delivery1165.

It is also laid down that no maternity benefit shall be paid to woman if she has not
actually performed work in an employer’s establishment for a time period not lower
than 80 (eighty) days in 12 (twelve) months that immediately precedes the expected
day of delivering child1166. If a woman is immigrated to the Assam State of India and
under pregnancy at that immigration time, then the condition of working for time
period of eighty days shall be inapplicable1167.

The maximum period of maternity benefit which shall be granted to any woman is 26
(twenty six) weeks out of which not more than 08 (eight) weeks preceding the
expected date of delivery 1168 . The proviso expresses that the maximum period of
maternity benefit which can be given to a woman already having two or more
surviving children is twelve weeks. Out of these twelve weeks, not more than six
weeks shall be preceding expected date of her delivery 1169 . The proviso further
expresses that if a woman dies during the said period, then the payable maternity
benefit shall be only upto & including the day on which she dies1170.

The proviso further clears that where a child has been delivered by a woman and she
dies during process of her delivery or during that period as immediately following her
delivery date leaving behind the child, the employer is under obligation for providing
maternity benefit for that full period. But if the born child also expires during the
above stated period, then, maternity benefit shall be payable for the days upto &
including the date on which child died 1171.

1164
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 4(3)
1165
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 5(1)
1166
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 5(2)
1167
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 5(2)
1168
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 5(3)
1169
The Maternity Benefit Act, 1961 (Act 53 of 1961), Proviso to s. 5(3)
1170
The Maternity Benefit Act, 1961 (Act 53 of 1961), Proviso to s. 5(3)
1171
The Maternity Benefit Act, 1961 (Act 53 of 1961), Proviso to s. 5(3)

227
 A woman worker who is adopting a child below three months of age following legal
procedure or commissioning mother shall be entitled for payment of 12 weeks
maternity benefit w.e.f. the date on which child is given under the custody of the
commissioning or adopting mother as per the necessity of the case1172.

In case, where the job profile or nature of work given to a woman is of such a nature
that she can work from her home, she must be allowed for the same by the employer
after receiving the maternity benefit for such time period and on such terms &
conditions as mutually agreed upon between employer & the woman1173.

In Municipal Corporation of Delhi v. Female Workers (Muster Roll)1174, it was held

by the Hon’ble Court that women employees working on casual basis or their names
are borne on muster rolls can also get maternity benefit. Maternity benefit is not only
for regular women employees.

iv. Payment of Maternity Benefit in case of Women’s Death

If a woman dies before receiving due payment of maternity benefit or payable

amount, the employer is bound to release the payment in favour of the person as
statutorily nominated by the woman died following the provisions of the Maternity
Benefit Act, 19611175.

v. Payment of Medical Bonus

Every woman eligible for maternity benefits as per the provisions of this Act shall
have right to receive from employer side payment for medical bonus amounting to Rs.
1,000/- (Rupees One Thousand only), if no any pre-natal confinement & post-natal
care is arranged / provided by the employer at free of cost1176.

The amount of medical bonus to be paid to women worker may be revised by the
Central Government before the completion of every three years of time period, but
maximum upto twenty thousand rupees1177.

1172
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 5(4)
1173
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 5(5)
1174
2000, LLR 449
1175
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 7
1176
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 8(1)
1177
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 8(2)

228
 vi. Leave for Miscarriage, etc.

If medical termination of pregnancy or miscarriage suffered by a woman and proof of

the same is produced, then she shall be entitled to benefit of leave with wages on the
rates of maternity benefit, for a time period of six weeks that immediately following
the day on which miscarriage occurs or medical termination of pregnancy
happened1178.

vii. Leave for illness due to pregnancy condition, premature child’s birth,
premature delivery, medical termination of pregnancy, tubectomy operation
or miscarriage

A woman who is suffering illness due to pregnancy, premature birth of child,

delivery, medical termination of pregnancy, miscarriage, tubectomy operation shall be
eligible for leave with wages payable and due at maternity benefit rate upto one
month of maximum period1179.

viii. Nursing breaks

Newly born child needs care. So, as per the Act, every woman who returns to perform
duty at establishment after delivering a child, shall be allowed two breaks of such
duration as prescribed in the due course of her daily routine work. This benefit will be
provided in addition to the rest interval already guaranteed. The two breaks will be
granted for the purpose of nursing the child till the child attains fifteen months of
age1180.

ix. Crèche facility

Every establishment employing fifty or more than fifty employees is required to

arrange and maintain crèche facility along with other required common facilities
within the premises1181.
Woman has right to visit crèche four times in a day including the rest interval already
allowed to her1182.

1178
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 9
1179
The Maternity Benefit Act, 1961 (Act 53 of 1961), s.10
1180
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 11
1181
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 11A(1)
1182
The Maternity Benefit Act, 1961 (Act 53 of 1961), Proviso to s. 11A(1)

229
 Employer is statutorily bound to inform every women at the time of her appointment
in written manner and in electronic way the benefits which are available under the
Maternity Benefit Act, 19611183.

x. Dismissal during Absence of Pregnancy

Employer is prohibited from taking action of discharge or dismissal against a woman

who is absent from duty within the provisions of the Maternity Benefit Act, 1961. It
shall be treated as unlawful if an employer issue notice of discharge or dismissal to a
woman who is remaining absent from work1184.

A woman having right to avail maternity benefit or payment of medical bonus during
her pregnancy can never be deprived off for this benefit mere due to the discharge or
dismissal by employer 1185.

However, the proviso laid down that if dismissal of woman from work is due to any
specific reason of gross misconduct, the employer has right to issue orders in written
manner to the concerned woman, depriving her from maternity benefits or medical
bonus or both1186.

Any woman aggrieved due to depriving her from maternity benefits or payment of
medical bonus or dismissed or discharged during or due to reason of absenting herself
from duty /work may before sixty days of completion w.e.f. the date on which order
related to depriving her from benefits or dismissal or discharge is intimated to her has
right to appeal to appointed authority. The decision of that authority for the appeal on
the basis of facts shall be final1187.

xi. No Deduction of Wages in Certain Cases

The provision is very good favouring women workers of construction industry.

Deductions from wages of woman who is entitled to payment of maternity benefits

1183
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 11A(2)
1184
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 12(1)
1185
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 12(2)(a)
1186
The Maternity Benefit Act, 1961 (Act 53 of 1961), Proviso to s.12(2)(a)
1187
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 12(2)(b)

230
 shall not be made for such breaks as to nursing the child and work of arduous nature
& longs standing hours1188.
xii. Forfeiture for maternity benefit

It is provided that a woman shall forfeit her right to the maternity benefit if she
performs work in any other establishment, despite the fact that she was given
permission from employer to remain absent following the provisions under Section
61189 of the Maternity Benefit Act, 19611190.

I. The Payment of Bonus Act, 1965 (Act No. 21 of 1965)

i. An Overview

The Payment of Bonus Act, 19651191 is enacted with prime objective to release bonus
payment in favour of workers and employees working in establishments, units or
building or construction work based on profits, production and output 1192 . The
meaning of the word “bonus” is a “boon” or “gift” above the normal rate of
remuneration. In fact, we can say bonus is that sum of money to be paid in addition to
ordinary payment to the recipient1193.

The Act is applicable to every establishment employing twenty or more persons on

any day in an accounting year 1194 . Even if number of employed persons in an
establishment falls below twenty, the Payment of Bonus Act, 1965 shall continuously
remain applicable to such establishments1195.

ii. Eligibility for Bonus

Employees and workers who have worked for minimum thirty days in a financial year
shall be paid bonus amount. All employees whose monthly wages (Basic + Dearness

1188
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 13
1189
Supra note 1161 at 226
1190
The Maternity Benefit Act, 1961 (Act 53 of 1961), s. 18
1191
The Payment of Bonus Act, 1965 (Act 21 of 1965) has been repealed by the Code on Wages, 2019
(No. 29 of 2019) vide Sec. 69. The notification related to date of enforcement of the Code on Wages,
2019 (No. 29 of 2019) has not come till date.
1192
The Payment of Bonus Act, 1965 (Act 21 of 1965), Preamble
1193
P.K. Padhi, Labour and Industrial Laws 328 (Prentice Hall of India Private Limited, New Delhi,
2nd edn., 2011)
1194
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 1(3)
1195
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 1(5)

231
 Allowance) are amounting to Rs. 21,000/- or less are covered under the scheme1196.
Each employee as covered under the Act shall be paid by his employer the payment of
bonus1197.

In Mahabir Tiles Work v. Union of India1198, the Court held that every employee as
covered under the ceiling for bonus is entitled to bonus.
In Bank of Madura Ltd., v. Bank of Madura Employee’s Union1199, the Court gave its
decision that even a probationer is also eligible for bonus payment.
The Court in Arun Mills Ltd., v. Dr. Chandra Parshad C. Trivedi 1200 , held that
employees engaged by establishment for doing part time work are also eligible for
getting payment of bonus in their faovur.

iii. Disqualification for Bonus

The provision related to disqualification from bonus is also available under the Act.
An employee shall loose the right to claim payment of bonus, if dismissed from the
services for reasons i.e.1201
 Fraud in the establishment
 Riotous and behave in violent manner while working in the establishment
 Theft, sabotaging and misappropriating any employer’s property1202

In a case, KLJ Plastics Ltd., v. Labour Court-III Hyderabad1203, the Court observed
that bar of disqualification for bonus as imposed under section 9 of the Payment of
Bonus Act, 1965 is a clear & unequivocal bar.
In Himalaya Drug Co. v. P.O., 2nd Addl., Labour Court-III, Hyderabad1204, the Court
held that payment of bonus can be forfeited if fraud and theft etc., is committed by an
employee.

iv. Payment of Minimum Bonus

1196
Greyt HR, Essential HR Business Tools to Survive and Thrive, available at:
https://www.greythr.com/blog/payment-of-bonus-act-applicability-calculation-eligibility/ (last visited
on December 13, 2021)
1197
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 8
1198
AIR 1968 Ker 143
1199
1970 Lab IC1215
1200
(1976) 32 FLR 323
1201
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 9
1202
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 9
1203
2002 (3) LLJ 619 Bom.
1204
(1986) 52 FLR 704

232
 Every employee has right to payment of a minimum bonus at 8.33% of wages earned
by him in an accounting year from his employer whether any allocable surplus / profit
has been earned by his employer or not1205. After enactment of this statute, bonus is
paid by the employer and it is not dependant on the profits of organisation 1206 .
Festival bonus is a different payment payable to employees if there exist any implied
agreement etc1207.

The payment of minimum bonus i.e. 8.33% of wages earned by employee is a right
guaranteed under the Payment of Bonus Act, 1965. It is simply an existing statutory
right.

The Hon’ble Court in R.P.C. Officer’s Association v. R.P.C.1208 held that ex-gratia
bonus is not treated as that bonus which is paid under the Payment of Bonus Act,
1965.

v. Payment of Maximum Bonus

`
Where in an accounting year, the allocable surplus exceeds the amount of minimum
bonus as payable in favour of the employees, the employer shall pay an amount
proportionate with the wages or salary earned by building workers, workmen or
employee during the fiscal year or accounting year but that payment must be subject
to maximum of 20% (Twenty percent) of that wages or salary1209.

vi. Penalty

Contravening any provisions of the Payment of Bonus Act, 1965 attract punishment
i.e. imprisonment that may extend to six months, or levying fine that may extend to
Rs. 1,000/- (Rupees One Thousand) or both1210.

Therefore, the Payment of Bonus Act, 1965 is benefiting building workers in

construction industry.

1205
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 10
1206
Gopalan v. Angamali Chit Fund, AIR 1977 Ker 120
1207
J.B.K. Panchayat v. J.E. Supply Co., AIR 1972 SC 70
1208
1990 LLR 222 (Raj.)
1209
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 11(1)
1210
The Payment of Bonus Act, 1965 (Act 21 of 1965), s. 28

233
 J. The Contract Labour (Regulation and Abolition) Act, 1970 (Act No. 37 of
1970)

i. An Overview

The Contract Labour (Regulation and Abolition) Act, 1970 1211 is enacted for
preventing exploitation of contract labour in industry and to generate best working
conditions. Contract workers are hired through third party i.e. outsourcing agencies
and their terms and conditions differ as compared to regular workman 1212 .The
construction industry completes its projects by engaging contract labour and
workers1213.

The principal employer engages contract labour due to reason to escape from the
statutory responsibilities. The prime aim of employer is only making profit and prefer
outsourcing workers for avoiding various labour issues 1214 . It has been generally
observed that the Contract Labour always abused in the establishments and
industry 1215 . The Act is extended to the whole India 1216 and enforced w.e.f. 10th
February 1971 1217 . The CL (R&A) Act, 1970 is applicable to each industrial
establishment, industrial unit or firms engaged in building or construction work and
operations employing 20 (twenty) or more than 20 (twenty) workmen on any day of
the last gone i.e. preceding one year as Contractual Labour and secondly to each
contractor engaging 20 (twenty) or more than 20 (twenty) workmen on any day of the
last completed i.e. preceding one year1218.

1211
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970) has been repealed by
the Occupational Safety, Health and Working Conditions Code, 2020 (No. 37 of 2020) vide Sec. 143.
The notification for the date of enforcement of the Occupational Safety, Health and Working
Conditions Code, 2020 (No. 37 of 2020) has not come till date.
1212
P.K. Padhi, Labour and Industrial Laws 251 (Prentice Hall of India Private Limited, New Delhi,
2007)
1213
Ibid.
1214
Ibid.
1215
S.N. Misra, Labour and Industrial Laws 1063 (Central Law Publications, Allahabad, 26th edn.,
2011)
1216
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 1(2)
1217
Came into force on 10-02-1971, vide G.S.R. 190, dated 1st February, 1971, published in the Gazette
of India, Pt. II, Sec. 3(i), dated 10th February 1971
1218
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 1(4)

234
 The International Labour Organisation has defined the contract labour which means
work performed by a person called contract labour pursuant to a contractual
arrangement other than a contract of employment direct with the user enterprise1219.

ii. Prohibition regarding Employing Contractual Labour

After consulting the Central or the State Board, the Government may by way of
issuing or releasing notification prohibits employing or engaging contractual labour in
any operation, works, process, procedure or some other work in any industrial unit,
establishment or organization 1220 . Notification in the official gazette of India is
requirement in this regard.

Before issuance of notification in the official gazette, the appropriate Government

shall take into consideration factors like, conditions of work, related benefits and
other facts extended in favour of contract labour in such establishment1221. Some are
given under:
 Whether the manufacturing process, other processing, operational or other activity
and work is necessary for the industry, establishment, business, trade, manufacture
or occupation which is in process in the establishment.
 Whether process/operation is of perennial nature keeping in view the nature of
industry, establishment, trade or business etc. going on in establishment.
 Whether the work is performed ordinarily by regular workmen in establishment.
 Whether it is sufficient to provide employment to large number of full time and
regular workmen1222.

It is upto the appropriate Government to decide whether any process or work is of

perennial nature or not1223.

In the case of Steel Authority of India Ltd., v. Union of India1224, the Court held that
Industrial Courts have no authorisation to give decision on the question that whether

1219
International Labour Organization, available at:
https://www.ilo.org/public/english/standards/relm/ilc/ilc86/rep-v.htm (last visited on July 10th 2021)
1220
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 10(1)
1221
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 10(2)
1222
Ibid.
1223
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), Explanation to s. 10
1224
AIR 2006 SC 3229

235
 the contract labour required to be abolished or not. The appropriate Government has
exclusive domain for the same.

The Apex Court in R.K. Panda v. Steel Authority of India1225, held that the Contract
Labour (R&A) Act, 1970 is enacted to prevent exploitation of contract workers in an
establishment. However, the CL (R&A) Act, 1970 does not claim to abolish contract
labour system in toto.

In Deena Nath v. National Fertilizers Ltd.1226, the Act aims to abolish contract labour
in appropriate cases.

Where an establishment comes under the purview of the CL (R & A) Act, 1970, then,
it is for the appropriate Government U/s 10 to prohibit the employment of contract
labour1227.

The Court held that the workmen engaged by the employer for collecting and
manufacturing quarry goods to be further supplied to the establishment were
considered as “contract labour” as the petitioner was a Contractor1228.

iii. Welfare and Health of Contract Labour under Contract Labour (R&A) Act,
1970

 Canteens

It is provided that every establishment employing contract labour numbered one

hundred or more than one hundred through a third party i.e. contractor/agency is
bound to provide Canteen facility. The canteen is to be arranged and maintained by
the contractor so that contractual workers could make use of it1229.

 Rest Rooms

It is provided in the CL (R&A) Act, 1970, that in every establishment wherein

workers on contractor’s rolls have to halt at night in relation to work of an
establishment, the contractor has to provide, arrange and maintain rest rooms for the

1225
(1994) 69 FLR 256 (SC)
1226
1992 LLR 46 (SC)
1227
Philips Workers Union, Thane v. State of Maharashtra and another, (1987), II, L.L.J. 91 (Bom)
1228
H.C. Bothra v. Union of India, 1976 Lab IC 1199 (Gau)
1229
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 16(1)

236
use of the contract labour. The rest rooms are required to be properly lighted and
fully ventilated in addition to excellent cleanliness and comfortableness1230.

 Other Facilities

Every contractor employing contract labour is duty bound to provide & maintain:
 Sufficient wholesome drinking water supplied for the use of contract labour at
places which are convenient accessible
 Sufficient latrines & urinals easily reachable, so that contract labour could use in
an undertaking or establishment
 Washing amenities1231

 First Aid Amenities

It is mandatory for the contractor to arrange & maintain first aid boxes at places
which must be conveniently accessible on all working days and hours. The first aid
boxes must be equipped with the contents statutorily required 1232 . The same are
required for immediate treatment of injuries suffered by building workers.

 Principal Employer’s Liability in Certain Cases

If any amenities i.e. canteens, rest rooms, drinking water facilities, latrines & urinals,
washing and first-aid facilities for the benefit of & use by the contractual workers
working in an undertaking or industrial establishment are not arranged, maintained &
provided by the contractor, then principal employer has to provide & maintain the
said amenities within prescribed time period 1233 . However, principal employer can
recover all the expenses incurred in providing the said amenities from the contractor’s
bill or any debt as payable by the contractor1234.

In People’s Union or Democratic Rights v. Union of India1235, the Court straightway

held that it is the responsibility of principal employer to offer amenities statutorily
required under the CL (R&A) Act, 1970 to the workers employed through contractor.

1230
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), ss. 17(1), 17(2)
1231
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 18
1232
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 19
1233
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 20(1)
1234
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 20(2)
1235
1982 (3) SCC 235

237
 Responsibility related to Payment of Wages

It is the statutory responsibility of a contractor to make payment of wages to each

contractual worker engaged and employed by him in an establishment within the
prescribed time period without any delay1236.
A representative duly authorised by principal employer is required to be physically
available at the time when wages are to be disbursed by the contractor and that
representative person shall certify the amounts which are paid as wages to contractual
workers1237.
Contractor must ensure that the process of disbursing wages to contractual workers
shall be started when authorised person of principal employer is available at that place
of disbursing wages1238.
If contractor fails to pay wages or make short payment to contractual workers, then
the principal employer is statutorily responsible for paying wages to the contract
labour engaged or employed by the contractor. However, the amount paid by the
principal employer as wages can be recovered from the contractor’s bills or any debt
as payable by the contractor1239.

In General Manager, Aligarh Dugdh Utpadak Sahakari Sangh Ltd. (Parag Dairy)
Sasni, Hathras v. Prescribed Authority, Minimum Wages and Dy. Labour
Commissioner, Aligarh1240, the Hon’ble Court held that a Principal Employer or his
authorised representative must ensure that minimum wages are paid to contractor’s
workers.

The Hon’ble Court in Cominco Benani Zinc Ltd., v. Pappachan1241 gave its decision
that if the contractor or contractor’s agency fails to disburse wages to employees,
consequently, the same becomes the liability of principal employer.

Therefore, it can be said that the provisions of the Contract Labour (R&A) Act, 1970
are more beneficial to construction workers. But contractual workers have to face
more difficulties in actual working environment. There is more exploitation of

1236
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 21(1)
1237
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 21(2)
1238
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 21(3)
1239
The Contract Labour (Regulation and Abolition) Act, 1970 (Act 37 of 1970), s. 21(4)
1240
2009 LLR 316 (All HC)
1241
1989 LLR 123 (Ker)

238
 contract workers in construction industries. The facilities related to Health, Safety and
Welfare are just in written mode, but a little is provided to them. So, Government
Authorities must put their attention in serious way towards implementation of this Act
in practical way.

K. The Payment of Gratuity Act, 1972 (Act No. 39 of 1972)

i. An Overview
The Payment of Gratuity Act, 19721242 is enacted with an aim to make payment of
gratuity to employees working in industries, mines and establishments etc.1243.

In D.V. Kapoor v. Union of India1244, the Apex Court reiterated that employees and
workers have right to receive gratuity. This right is valuable right enjoyed by an
employee during the evening phase of his life.

Gratuity is counted as a lump sum amount paid as a benefit after retirement or after
superannuation of employees/workers or on termination of services due to justified
reasons. The gratuity is a statutory right to be paid to all the employees and workers
after the completion of five years of continuous service on account of superannuation,
resignation, retirement, death, disablement due to accident/disease or death1245.

The Payment of Gratuity Act, 1972 covers up each industrial undertaking,

establishment, manufacturing unit employing 10 (ten) or more than 10 (ten)
employees on any day in the last gone i.e. preceding 12 (Twelve) months 1246 . An
establishment to which the provisions of this Act are applicable shall remains covered
under the purview of the Act even the number of employed persons falls below
ten1247. The Act came into force w.e.f. 16-09-19721248.

1242
The Payment of Gratuity Act, 1972 (Act 39 of 1972) has been repealed by the Code on Social
Security, 2020 (No. 36 of 2020) vide Sec. 164. The notification for the date of enforcement of the Code
on Social Security, 2020 (No. 36 of 2020) has not come till date.
1243
The Payment of Gratuity Act, 1972 (Act 39 of 1972), Preamble
1244
AIR 1990 SC 1923
1245
P.K. Padhi, Labour and Industrial Laws 371 (Prentice Hall of India Private Limited, New Delhi,
2007)
1246
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 1(3)
1247
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 1(3A)
1248
The Payment of Gratuity Act, 1972 (Act 39 of 1972) has come into force w.e.f. 16-09-1972 vide
S.O. 601(E), dated 16th September 1972, published in the Gazette of India, Extra., Pt. II, Sec. 3(ii), p.
1641

239
 ii. Continuous Service

An employee or building worker shall be counted in continuous service for a period if

the contractual worker has actually engaged under the employer in construction
industry for a period not less than two hundred and forty days1249.

Every service provided by an employee shall be treated as continuous service for a

period, even if the service is interrupted due to:
 Sickness, Leave, Accident, Absence from duty without leave (not absent for
which any orders terming absence as break in service has been issued
following standing orders, rules or regulations as applicable to employees of
an establishment)
 Lay-off, lock-out, strike or cessation of work not by reason of any fault from
employee’s side1250.

In Kothari Industrial Corporation v. Appellate Authority (Deputy Commissioner of

Labour), Karnool1251, the Court held that mere absence from work cannot be said to
result in breaking continuity of employment for the sake of the Payment of Gratuity
Act, 1972.

iii. Payment of Gratuity

 If an employee who has worked for minimum five years in any establishment to
which the Payment of Gratuity Act, 1972 is applicable, then Gratuity shall be paid
to workers / employees, when their employment is terminated due to:
 Superannuation
 Retirement, Resignation
 Death or disablement by reason of accident or disease1252

The mandatory provision i.e. completion of continuous employment/service of five

years is not required where the employment is terminated due to reason of death or
disablement1253.

1249
The Payment of Gratuity Act, 1972 (Act 39 of 1972) ss. 2A(1), 2A(2)(a)(ii)
1250
Dr. Meenu Paul, Labour and industrial Laws 814 (Allahabad Law Agency, Faridabad (Haryana)
10th edn., 2017)
1251
1998 LLR 223
1252
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 4(1)
1253
The Payment of Gratuity Act, 1972 (Act 39 of 1972), Proviso to s. 4(1)

240
 It is also provided that if an employee dies without receiving gratuity payable to him,
then his nominee or to his legal heirs have right to receive gratuity amount. Moreover,
if such nominee or legal heir is minor, then his share stands deposited with the
Controlling Authority under the Act. The amount as stated further shall be invested ini
bank or financial organisation by that authority for benefitting such minor and paid to
minor on attaining majority1254.

The term disablement refers to situation vide which employee is incapacitated to

perform work which he was performing well before an accident or disease which
leads to disablement1255.

The employer shall make payment of gratuity to an employee calculated at the rate of
15 (fifteen) days wages which shall be based on the last drawn wage rates by the
concerned workers or employees for each completed employment year or part
exceeding 06 (six) months1256.

In case, employee is getting monthly rated wages, the 15 (fifteen) days wages are to
be computed by division with last withdrawn monthly wage rates by employee by 26
(twenty-six) and further multiplying the amount with the quotient by 15 (fifteen)1257.

The maximum amount of gratuity which can be paid to an employee not to exceeded
by Rupees Twenty Lakh 1258. Employer is having due option to extend better gratuity
terms under any other award, contract or agreement1259.

iv. Forfeiture of Gratuity

Firstly, if termination of services of an employee are done for any conduct, act, wilful
omission or negligence, resulting in damages or losses to or destructing employer’s
property, then gratuity of an employee shall be forfeited but equivalent to amount of
damage or loss so caused to an employer 1260.

1254
The Payment of Gratuity Act, 1972 (Act 39 of 1972), Proviso to s. 4(1)
1255
The Payment of Gratuity Act, 1972 (Act 39 of 1972), Explanation to s. 4(1)
1256
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 4(2)
1257
The Payment of Gratuity Act, 1972 (Act 39 of 1972), Explanation to s. 4(2)
1258
Vide S.O. 1420(E), dated 29-3-2018
1259
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 4(5)
1260
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 4(6)

241
Secondly, the sum of gratuity payable in favour of an employee may be forfeited
either wholly or partially if the services / employment of such employee have been
terminated for any riotous or disorderly behaviour & conduct and further if the
employment / services are terminated for any act constituting an offence/crime
involving moral turpitude, but condition requires that he has committed offence
during the course of his services/employment1261.

In Jaswant Singh Gill v. Bharat Coking Coal Ltd.1262, it has been held by the Court
that terminating services on the grounds of reasons as elaborated in section 4(6) is
imperative. So, forfeiting gratuity by order of disciplinary authority after
superannuation of the petitioner was improper and invalid.

In K.C. Mathew v. Plantation Corporation of Kerala Ltd. 1263 the court held that
gratuity is a statutory right and withholding gratuity amount is not permissible except
the reasons as enumerated under section 4(6) of the Payment of Gratuity Act, 1972.

In Permali Wallance Ltd., v. State of M.P.1264 it has been reiterated by the Court that
employer can forfeit gratuity amount of an employee if his services were terminated
due to any act, wilful negligence or omission resulting in damage to the employer but
upto the extent of the damage caused.

In an important case i.e. Pattathurila K. Damodaran v. M. Kassim Kanju 1265 , the

Court held that if there is any change in ownership, the employer employee
relationship always subsists and moreover, the new employer has to make payment of
gratuity to the employees.

In Texmaco Ltd., v. Shri Ram Dhan 1266 , it has been held by the Court that an
employee who has resigned & left the services is eligible for payment to gratuity
amount, but tenure of five years continuous service is required.

1261
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 4(6)
1262
2007 (112) FLR 196
1263
2001 LLR 123 (Ker)
1264
(1996) II LLJ 515 (MP)
1265
(1993) I LLJ 1211 (Ker)
1266
1992 LLR 369 (Del)

242
 In Bharat Gold Mines Ltd., v. Regional Labour Commissioner (Central) 1267 when an
employee is held guilty for offence of theft under law, gratuity stands forfeited
keeping in view section 4(6) of the Payment of Gratuity Act, 1972.

In an important case i.e. Mettur Spinning Mills v. Deputy Commissioner of

Labour1268, the Court held that even if an employer has not accepted resignation of an
employee, employee still has right to claim gratuity amount.

A retrenched employee from services of organisation or establishment is also entitled

to gratuity amount under the Payment of Gratuity Act, 19721269.

v. Recovery of Gratuity

If an employer refuses to release payment of gratuity amount to the employee, within

the time limit prescribed, he can make an application to the controlling authority and
amount shall be recovered along with compound interest at such prescribed rates from
employer 1270.
Reasonable opportunity shall be given by the controlling authority to the employer for
showing cause his side1271. Amount of interest payable to be levied shall never exceed
the gratuity amount payable1272.

In Nagar Palika v. Controlling Authority1273, the Court held that if an employer did
not release gratuity amount within due time period, the same must be released in
addition to compound interest at the prescribed rates U/s 8 of the Payment Gratuity
Act, 1972 calculating the amount till the due date of payment.

vi. Penalties

Whoever with an intent to avoid any payment or sum to be released by himself or

enabling other individuals to evade from releasing such payment in favour of an
employee and willingly makes any bogus statement or false representation shall be
punished with imprisonment for a time period which may be extended upto six

1267
(1987) 70 FJR 11 (Karn)
1268
(1983) II LLJ 188
1269
State of Punjab v. Labour Court, (1980) 1 SCR 953
1270
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 8
1271
Ibid.
1272
Ibid.
1273
(1988) 57 FLR 425 (All)

243
 months or alongwith fine. The fine can also be extended upto rupees ten thousand or
with both1274.

Contravening or defaulting in complying with the provisions of the Payment of

Gratuity Act from employer side shall definitely be punishable with imprisonment,
the term of which shall not be less than three months and that may be extended upto
duration of one year, or with imposition of fine i.e. not less than rupees ten thousand,
that may be extended upto rupees twenty thousand or with both1275.

Provided that if the offence is related to non-payment of any amount of gratuity

payable, the punishment for employer shall be imprisonment terming not less than six
months but may extended to two years of duration unless the Court taking cognizance
of the offence, for reasons be recorded in written manner opined that imprisonment
for lesser term or imposing fine would definitely meet the ends of justice1276.

vii. Protection of Gratuity Amount

Amount of gratuity payable is not liable to attachment under any decree. No gratuity
as payable under the provisions of the Payment of Gratuity Act, 1972 shall be liable to
attachment in executing order or decree of any Civil, Criminal or Revenue Court1277.

In Yada Laxmi v. A.P. State Coop. Bank, Hyderabad1278, the Court held that amount
of gratuity payable cannot be adjusted against amount withdrawn by the employee as
any Housing / Personal loan.

In another case, Taxmaco Limited v. Roshan Singh 1279 , the Court observed the
Payment of Gratuity Act, 1972 is an employee’s welfare legislation.

The Court in the case of Chrisotom v. Federal Bank Ltd., 1280 held that Gratuity
Amount cannot be attached in execution of any order / decree of Court of Law.

1274
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 9(1)
1275
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 9(2)
1276
The Payment of Gratuity Act, 1972 (Act 39 of 1972), Proviso to s. 9
1277
The Payment of Gratuity Act, 1972 (Act 39 of 1972), s. 13
1278
2006 LLR 451: 2006 (108) FLR 1178
1279
2001 LLR 890 (Del.)
1280
(1993) 1 LLJ 422 (Ker)

244
 Amount of Gratuity which is payable by an employer to his employee after
termination of five years of continuous service is totally protected from
attachment1281.

L. The Equal Remuneration Act, 1976 (Act No. 25 of 1976)

i. An Overview

The Equal Remuneration Act, 1976 1282 extends to the whole of India 1283 . The
principle of equal pay for equal work is enshrined in Article 39(d) of the Indian
Constitution vide which the State shall direct its policy towards ensuring equal pay for
equal work for men & women both. This principle implies that individuals holding
identical positions may not be differentiated in the matter of their pay scales merely
because they are working in different departments. In Randhir Singh v. Union of
India1284, the Apex Court held that although the equal pay for equal work principle is
not a fundamental right, but can be enforced by way of constitutional remedies
available under Article 32 of the Indian Constitution. Persons working on daily wages
cannot be deprived off from availing the right of equal pay for equal work. Daily
wagers performing identical work must be paid wages as equivalent to permanent
employees working in the department 1285.

The Equal Remuneration Act, 1976 is an enacted for ensuring equal remuneration to
both men & women workers and to prevent discrimination based on sex, against
women especially in the matters of employment 1286. The Act came into force w.e.f.
08-03-1976 1287 . However, reasonable classification on the grounds of intelligible
criteria, having nexus related to the object sought to be achieved, is permitted1288.

ii. Employer’s duty to make Equal Remuneration Payment in favour of Men &
Women Workforce for the Work of Identical or Similar Nature

1281
Calcutta Dock Labour v. Sandhya Mitra, (1985) Lab IC 714 (SC)
1282
The Equal Remuneration Act, 1976 (Act 25 of 1976) has been repealed by the Code on Wages,
2019 (No. 29 of 2019) vide Sec. 69. The notification for the date of enforcement of the Code on
Wages, 2019 (No. 29 of 2019) has not come till date.
1283
The Equal Remuneration Act, 1976 (Act 25 of 1976), s. 1(2)
1284
(1982) L.L.J., 344
1285
Surinder Singh v. Engineer-in-Chief, C.P.W.D., AIR 1986 SC 534
1286
The Equal Remuneration Act, 1976 (Act 25 of 1976), Preamble
1287
The Equal Remuneration Act, 1976 (Act 25 of 1976) came into force on 08-03-1976, vide S.O.
175(E), dated 6th March, 1976
1288
State of A.P. and others v. G. Sreenivasa Rao & Others, (1989) II L.L.J. 149 (SC)

245
 Every employee work to earn his livelihood. No employer shall make payment of
remuneration in favour of any worker at lower rates than that rate as released by him
in favour of the workers of opposite sex in service, occupation or employment for
performing the same or identical work1289. However, remuneration of worker shall not
be reduced for complying with the above stated provision1290.

In C. Girijambal v. Government of Andhra Pradesh1291, the principle of equal pay for

equal work is required to apply in professional services.

In Mackinnon Mackenzie and Co. v. Audrey D’ Costa 1292 , the Court ruled that
financial incapability of an employer is no any ground for taking exemption from
paying equal remuneration.

iii. No Discrimination in Recruitment of Men & Women Workers

It is provided that from the date of commencement of this Act, discrimination against
women is prohibited in recruitment for work of similar nature from employer side.
However, employing women workforce in any operations, activities and works can be
regulated, restricted or say prohibited by enacting legislation or amending statute for
the time being in force1293.
It is laid down that the above provisions would not affect policy of reservation for
recruitment of Scheduled Castes, Ex-servicemen, Scheduled Tribes, Retrenched
Employees or any class of persons 1294.

iv. Penalty

After the date of commencement of the Equal Remuneration Act, 1976, if an

employer contravene the provisions of this Act or differentiate in paying remuneration
in favour of men & women workers for the identical work or practice favouritism
among men & women workers contravening norms & legal provisions of this statute
or fails to follow the Government directions, then fine not less than rupees ten
thousand, that may further be extended upto rupees twenty thousand or imprisonment
1289
The Equal Remuneration Act, 1976 (Act 25 of 1976), s. 4(1)
1290
The Equal Remuneration Act, 1976 (Act 25 of 1976), s. 4(2)
1291
(1981) 2 SCC 155
1292
(1987) 2 SCC 469
1293
The Equal Remuneration Act, 1976 (Act 25 of 1976), s. 5
1294
Ibid.

246
 the term of which shall not be less than three months, that may further be extended
upto one year for 1st time or imprisonment which may be extended to duration of two
years for the 2nd time and subsequent offences1295.

M. The Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013 (Act No. 14 of 2013)

i. An Overview

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 was enacted to protect women from sexual harassment at
workplaces and redressing complaints related to sexual harassment 1296 . Sexual
harassment results in violation of the fundamental rights of a woman i.e. right to
equality and right to life & liberty1297. The international instrument i.e. Convention on
the Elimination of all Forms of Discrimination against Women (CEDAW) vide its
article 11 requires State Parties to eliminate all acts of discrimination against women
in employment1298.

The Sexual harassment of women at workplace (Prevention, Prohibition and

Redressal) Act, 2013 came into force w.e.f. 9th December 20131299. The Act defined
the term “aggrieved woman” as a woman of any age group employed or unemployed
who alleged to have been sexually harassed by the act of respondent and in respect to
a dwelling place/house, a woman of any age group employed in dwelling
place/house 1300 . Act defined the term “employee” that means a person having
employed at a workplace for doing any work on regular basis, temporarily, ad hoc
basis, or daily wage basis, either in direct way or through contractor, agent with or
without principal employer’s information, whether employed and engaged for
remuneration, salary, wages or not, or employed on a voluntary basis or otherwise,

1295
The Equal Remuneration Act, 1976 (Act 25 of 1976), s. 10
1296
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), Preamble
1297
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), Introduction
1298
United Nations, Peace, dignity and equality on a healthy planet, available at:
https://www.un.org/womenwatch/daw/cedaw/ (last visited on October 18, 2021)
1299
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
come into force w.e.f. 9-12-2013 vide S.O. 3606(E), dated 9th December 2013 published in the Gazette
of India, Extra., Pt. II Sec. 3(ii), No. 2733, dated 9th December 2013
1300
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 2(a)

247
 whether terms & conditions of employment are in express or implied way and
includes a co-worker, a contractual worker, person on probation, apprentice, trainee or
called by other name 1301 . The “sexual harassment” covers physical contacts &
advances, demanding or requesting sexual favours, showing sexually coloured
remarks, displaying pornography, any similar unwelcome verbal or non-verbal,
physical act of sexual nature1302. As per the Act, 2013, the term “workplace” includes
any private sector enterprise or organisation or a private venture, institution,
undertaking, establishment, trust, society, non-governmental organisation, any unit or
service provider carrying on commercial, vocational, professional, educational,
industrial, entertainment, financial activities or health services including production,
sale, supply, servicing or distribution1303.

ii. Prevention of Sexual Harassment

The Act provides that no woman shall be sexually harassed at any workplace 1304 .
There are circumstances if occurs or connected with any act or behaviour or is present
in relation to sexual harassment leads to sexual harassment 1305
 preferential treatment by implied or explicit promise in her employment; or
 detrimental treatment by implied or explicit threat in her employment; or
 present or future employment status by implied or explicit threat about her; or
 interfering with her work or creating an offensive or intimidating or aggressive
work environment for her; or
 humiliating treatment that may affect her safety or health.

iii. Constitution of Internal Complaints Committee

Every employer shall constitute by issuing orders in written manner a Committee

called “Internal Complaints Committee” 1306 . This Committee shall consist of the

1301
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 2(f)
1302
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 2(n)
1303
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 2(o) (ii)
1304
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 3(1)
1305
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 3(2)
1306
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 4(1)

248
 members as nominated by employer viz.1307, (a) a Woman Presiding Officer of senior
level amongst other employees. Where senior level woman employee is not available
at workplace, employer shall nominate Presiding Officer from any other workplace or
establishment; (b) minimum two members having experience in social work / having
legal knowledge; (c) one member to be nominated from amongst NGOs having
commitment to the cause of women or other person having familiarity with Sexual
Harassment issues and cases. But, at least one-half of the total Members of the
Internal Complaints Committee shall be women.

iv. Constitution of Local Committee

It is obligatory for every District Officer to constitute in the concerned district, a

committee to be known as the “Local Committee” for receiving and attending
complaints of sexual harassment of woman from establishments where the Internal
Committee is not constituted due to reason of having less than ten number of workers
or if the issue / complaint is against the employer himself 1308.

The Nodal Officer shall be designated by every District Officer in every block, tehsil
and taluka in rural area, tribal area and ward / municipality area in the urban sector, to
receive and attend complaints and further forwarding the same to the concerned
“Local Committee” without any delay within a period of seven days1309. The Local
Committee shall have jurisdiction extended to the areas of the concerned district
where it is constituted.

v. Complaint of Sexual Harassment

It is provided that any aggrieved woman may submit her complaint regarding sexual
harassment at workplace in writing to the Internal Committee or the Local Committee
within a time period of three months w.e.f. the date of incident and series of incidents,
within a time period of three months w.e.f. the date on which last incident happened.
Reasonable assistance shall be given by Presiding Officer or Member of the said
committee to the aggrieved woman for submitting her complaint in written

1307
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 4(2)
1308
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 6(1)
1309
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 6(2)

249
manner 1310. If circumstances are preventing woman from filing the complaint then
Internal Committee or Local Committee may extend the prescribed time limit for
filing complaint. Legal heir can also file complaint on behalf of the aggrieved woman
if she is unable to file complaint due to any physical or any mental incapacity1311.

The Internal Committee or Local Committee may at the request of the aggrieved
woman take necessary so that matter could be settled the issue between her and the
respondent through mode of conciliation1312. But monetary settlement as a basis of
conciliation is not allowed. The copies of the settlement shall be provided to the
aggrieved woman & the respondent 1313. Where the matter or issue is sorted out via
conciliation, then any no further inquiry is required to be conducted by Internal
Committee or Local Committee1314.

It is the duty of the employer to provide for employees a safe & good working
environment and to organise trainings, workshops and awareness camps &
programmes at regular intervals for creating awareness among the employees
regarding legal provisions for curbing sexual harassment. Women also have a right
for getting assistance to register / file complaint against the defaulter. Employer shall
treat case of sexual harassment as misconduct and timely monitor & track the reports
by the Internal Committee1315. Appropriate Government is also bound to publicise the
Act and develop related information, communication & training materials, education
and organise awareness camps & programmes to enhance the understanding of the
public for protecting women against sexual harassment at workplaces and also
prepare orientation & training programmes for maintaining knowledge of the
members of the Local Committee1316.

1310
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 9(1)
1311
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 9(2)
1312
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 10(1)
1313
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 10(3)
1314
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 10(4)
1315
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 19
1316
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(Act 14 of 2013), s. 24

250
 The Act can really benefits the women workers in Construction Industry in India if
awareness is created amongst them regarding the available provisions. As women
workers are mostly illiterate and unaware about their rights, they even don’t raise their
voice against sexual harassment. So, the provisions of this Act may help women
workers in right manner if the said statute is practically applied in construction
industry.

The Labour Codes, which are newly enacted are elaborated as follows: -

4.3.3 The New / Latest Four Labour Codes

A. The Code on Wages, 2019 (No. 29 of 2019)
B. The Industrial Relations Code, 2020 (No. 35 of 2020)
C. The Code on Social Security, 2020 (No. 36 of 2020)
D. The Occupational Safety, Health and Working Conditions Code, 2020
(No. 37 of 2020)

A. The Code on Wages, 2019 (No. 29 of 2019)

i. An Overview

The 2nd National Commission on Labour, which submitted its report in the year June,
2002 with recommendation that the current Labour Legislation, Statutes required to
be merged into below mentioned groups1317:

(a) Industrial Relations Management

(b) Social Security Benefits
(c) Payment of Wages
(d) Welfare & Working Conditions
(e) Safety Procedures and Measures

Following the recommendations, suggestions, ideas and proposals of the said

Commission and the reflections raised in the tripartite conference of the Government,
Industry Representatives and Employers, it has been finally settled to introduce the

1317
The Indian Labour Conference, 39th Session, Report of the Second National Commission on
Labour with emphasis on Rationalization of Labour Laws and Unorganized Labour National
Commission on Labour (NCL), (Ministry of Labour and Employment, Government of India, October
2003)

251
 proposed statutes and legislations. This statute intends to merge, simplify and
rationalise the related norms, provisions of the below mentioned Acts, namely1318:
(a) The Payment of Wages Act, 1936;
(b) The Minimum Wages Act, 1948;
(c) The Payment of Bonus Act, 1965; and
(d) The Equal Remuneration Act, 1976

The amalgamation of the above stated statutes will facilitate in the implementation
and also helps in removing the number of definitions and authorities without any
compromise on the general welfare model and advantages to workforce. Technology
would be used by this Code in its enforcement and ultimately transparency, good
governance and responsibility will come after these measures that ultimately results in
effective enforcement 1319.

The Act is enacted with prime objective to amend & consolidate the legal provisions
related to wages and bonus1320. It is extended to the whole of India1321. It shall be
enforced w.e.f. date 1322 as the Central Government may by issuing notification.
Different dates for enforcing different provisions may be chosen under this Code1323.

ii. Prohibition of Discrimination on Ground of Gender

It is laid down in the Act that no discrimination in any establishment is allowed to

prevail amid employees and workers on gender basis in wages related by the similar
employer, with regard to the work and activity of identical nature performed by
workers & employees1324. Wages of an employee shall not be reduced by an employer
merely to comply with the said provision1325. No any kind of discrimination based on
sex shall be made by an employer in recruitment recruiting of employees for the
similar work or identical nature work and in the employment terms & conditions,

1318
The Code on Wages, 2019 (Code 29 of 2019), Introduction
1319
The Indian Labour Conference, 39th Session, Report of the Second National Commission on
Labour with emphasis on Rationalization of Labour Laws and Unorganized Labour National
Commission on Labour (NCL), (Ministry of Labour and Employment, Government of India, October
2003)
1320
The Code on Wages, 2019 (Code 29 of 2019), Preamble
1321
The Code on Wages, 2019 (Code 29 of 2019), s. 1(2)
1322
The notification for the date of enforcement of the Code on Wages, 2019 (Code 29 of 2019) has not
come till date.
1323
The Code on Wages, 2019 (Code 29 of 2019), s. 1(3)
1324
The Code on Wages, 2019 (Code 29 of 2019), s. 3(1)
1325
The Code on Wages, 2019 (Code 29 of 2019), s. 3(2)(i)

252
 except the situations where the employment of women in that identical work is
restricted or prohibited under any law1326. Appropriate Authority shall have right to
decide whether a work is of an identical nature or not1327.

The Minimum Wages are decided by the Appropriate Government at various intervals
in a year. So, it is provided in the Act that employer has to pay in favour of an
employee minimum rate of wages as Appropriate Government notified from time to
time1328. Employer’s financial incapability to pay minimum rate of wages shall not be
taken into account in this regard.

There is a provision in the Code that provides for fixation of minimum rates of wages.
The minimum wages to be paid to employees shall be fixed subject to the powers of
fixing floor wage by the Central Government 1329. The minimum wages shall be fixed
by the Appropriate Government for time work, for piece work1330. Where employees
are engaged on the basis of piece work, the minimum wages for them shall be fixed
on a time work basis by the Appropriate Government 1331. The minimum wages on the
basis of time work may be fixed according to wage periods viz., hour wise, day wise
and month wise1332. The appropriate Government while fixing minimum wages shall
taken in consideration skill of workers necessarily essential for working under the
various categories i.e. skilled, unskilled, highly skilled and semi skilled or
geographical areas may 1333.

iii. Power of Central Government to Fix Floor Wage

The Central Government shall fix floor wage considering minimum living standards
of workers in the prescribed manner 1334 . Different floor wage can be fixed by the
Central Government for different geographical areas.
The minimum wages which the Appropriate Government fix shall never be less than
the floor wage. If the rate of minimum wages as fixed is greater than the amount of
floor wage, then minimum wages in no case shall be reduced1335.
1326
The Code on Wages, 2019 (Code 29 of 2019), s. 3(2)(ii)
1327
The Code on Wages, 2019 (Code 29 of 2019), s. 4
1328
The Code on Wages, 2019 (Code 29 of 2019), s. 5
1329
The Code on Wages, 2019 (Code 29 of 2019), s. 6(1)
1330
The Code on Wages, 2019 (Code 29 of 2019), s. 6(2)
1331
The Code on Wages, 2019 (Code 29 of 2019), s. 6(3)
1332
The Code on Wages, 2019 (Code 29 of 2019), s. 6(4)
1333
The Code on Wages, 2019 (Code 29 of 2019), s. 6 (6)
1334
The Code on Wages, 2019 (Code 29 of 2019), s. 9(1)

253
 iv. Mode of Payment of Wages

Employer shall release payment of wages in favour of employee in currency notes,

current coins, through cheque payment or by way of crediting in the bank account of
the employee concerned or through electronic mode1336.
v. Fixation of Wage Period

The employer under this provision shall fix the period of wages for employees. That
wage period may daily, weekly, fortnightly or monthly basis, but no wage period in
any case shall be more than one month. Different period of wages may be fixed for
different types of establishments1337.

vi. Time Limit regarding Payment of Wages

There is a provision regarding payment of wages. The provision clears that the
employer shall make payment of wages in favour of the employees and workers
working on:

 Daily basis: Release payment when shift ends

 Weekly basis: Release payment on final working day of week. Payment to be
released before coming of weekly holiday
 Fortnightly basis: Release payment before second day ends. Payment to be
released after fortnight ends
 Monthly basis: Release Payment before 7th day expires of the succeeding 1338

Secondly, it is also provided that where an employee has been dismissed or removed
from the service or resigned or retrenched from service, or is unemployed because of
closure of an establishment, then the employer has to release the wages payable to
him within two working days w.e.f. the day when an employee is dismissed, removed,
resigned or retrenched as the case may be1339.

vii. Permissible Deductions from Wages

1335
The Code on Wages, 2019 (Code 29 of 2019), s. 9(2)
1336
The Code on Wages, 2019 (Code 29 of 2019), s. 15
1337
The Code on Wages, 2019 (Code 29 of 2019), s. 16
1338
The Code on Wages, 2019 (Code 29 of 2019), s. 17(1)
1339
The Code on Wages, 2019 (Code 29 of 2019), s. 17(2)

254
It is expressed in the provision that only authorized deductions can be made from the
wages of the employee1340.

It has been clearly mention that any payment done by an employee in favour of
employer or employer’s agent shall be considered as deduction from employee’s
wages. Secondly, any loss of wages faced by an employee due to good & sufficient
reason as resulted from withholding promotion or increment, comprising increment
stoppage, demotion to position at lower grade or time scale or suspension from
service, the reduction to designation at lower grade post or time-scale shall not be
counted in the category of deduction from wages1341.

Deductions from the employee’s wages may be made only for the purposes as given
under1342:

 Imposing fines on him

 Absence from duty
 Damaging goods expressly handed over to the employee for taking care and such
damage is due to employee’s negligence or default
 House accommodation amenity extended to the employee by the employer or any
other legally based housing board facility
 Deductions for amenities & services supplied from the employer side, but, amount
of deduction shall not be more than amount similar to the value of such services &
amenities
 Deductions for recovering advances and the interest due and adjusting overpaid
wages
 Loans granted and released from the fund constituted for Labour Welfare
 Deductions for recovering loans released for building houses or related purposes
 Deductions of Income tax as levied by the Central / State Government
 Deductions for membership and for repaying advances towards social security
fund or relevant schemes framed under the law comprising of provident funds,
pension funds and any other health insurance scheme
 Deductions for making payment towards cooperative societies

1340
The Code on Wages, 2019 (Code 29 of 2019), s. 18(1)
1341
The Code on Wages, 2019 (Code 29 of 2019), s. 18(1)
1342
The Code on Wages, 2019 (Code 29 of 2019), s. 18(2)

255
  Deductions for joining any registered Trade Union as a member
 Deductions for contributing in favour of the Prime Minister’s National Relief
Fund with written authorisation of an employee 1343.

The total amount of deductions from the employee’s wages in any wage period shall
not exceed 50% (fifty percent) of such wages1344.

Every employee shall be given an opportunity before imposing fine according to

prescribed procedure1345. The total fine amount that can be imposed on any employee
in one wage period shall never be more than amount equal to 3% (three per cent) of
the payable wages in his favour with regard to such wage period 1346 . It is also
provided that no fine imposed shall be recovered from an employee by way of
installments or after the completing ninety days of period w.e.f. the day of imposing
fine1347.

viii. Payment of Bonus

Every employee who has worked for atleast 30 days in an accounting year shall be
paid annual minimum bonus @ 8.33% of wages earned by him or one hundred rupees
whichever amount will be higher irrespective of any allocable surplus earned by his
employer during preceding accounting year. The appropriate Government shall
declare wage ceiling for eligibility of bonus by way of publication of notification 1348.

The maximum amount of bonus which can be paid to an employee is 20% (twenty per
cent) of earned wages1349.

Where an employee has remained absent from duty and not worked for full working
days in an accounting year, the payment of minimum bonus accordingly shall be
reduced proportionately, if such bonus amount is more than 8.33% of the wage or
salary1350.

1343
The Code on Wages, 2019 (Code 29 of 2019), s. 18(2)
1344
The Code on Wages, 2019 (Code 29 of 2019), s. 18(3)
1345
The Code on Wages, 2019 (Code 29 of 2019), s. 19(3)
1346
The Code on Wages, 2019 (Code 29 of 2019), s. 19(4)
1347
The Code on Wages, 2019 (Code 29 of 2019), s. 19(6)
1348
The Code on Wages, 2019 (Code 29 of 2019), s. 26(1)
1349
The Code on Wages, 2019 (Code 29 of 2019), s. 26(3)
1350
The Code on Wages, 2019 (Code 29 of 2019), s. 27

256
 An employee shall lose his right to bonus if he is dismissed from the service due to
reasons like (a) fraud in establishment; or (b) behave in violent manner during
working in the premises or establishment or behave riotously; or (c) theft in
establishment, misappropriating or sabotaging any property related to establishment;
or (d) conviction for committing offence of sexual harassment 1351.

Payment of bonus amount shall be released in favour of an employee by employer by

way of crediting in his bank account within a time period of eight months w.e.f.
closing of an accounting year. However, the appropriate Government has power to
extend this period of eight months if received application from employer with
sufficient reasons. But still, the total period even after such extension shall not exceed
two years in any case1352.

If any dispute relevant to payment of bonus is pending with any authority then, such
bonus payment shall be credited in worker’s favour within one month time period
only w.e.f. the date when settlement or award or decision comes into operation with
respect to such dispute1353.

It if further provided that if there exists a dispute regarding payment of bonus at

higher rates, then, employer has to make payment @ 8.33% of the wages earned by
worker or an employee within eight months of time period w.e.f. the completion of
the accounting year1354.

ix. Penalty

Every employer paying less amount of bonus than the due amount to an employee, he
shall be punished with fine which may be extended upto fifty thousand rupees1355.

If any employer found committing the same offence as said above within five years
from that date when first offence is committed or offence subsequently committed,
then punishment shall be imprisonment for term that can be extended to three months
or with fine imposition which may be extended upto rupees one lakh, or with both1356.

1351
The Code on Wages, 2019 (Code 29 of 2019), s. 29
1352
The Code on Wages, 2019 (Code 29 of 2019), s. 39(1)
1353
The Code on Wages, 2019 (Code 29 of 2019), s. 39(2)
1354
The Code on Wages, 2019 (Code 29 of 2019), s. 39
1355
The Code on Wages, 2019 (Code 29 of 2019), s. 54(1)(a)
1356
The Code on Wages, 2019 (Code 29 of 2019), s. 54(1)(b)

257
 Contravening other provision or rule under this Code by an employer shall be
punishable with imposing fine which may be extended to rupees twenty thousand1357.

If any employer already convicted for contravening provisions or rules under this
code as stated above is again found guilty of same offence, within time period of five
years from the date of committing the first offence or subsequent, he shall be
punished with imprisonment for a duration which may be extended upto one month or
with imposition of fine which may be extended to rupees forty thousand, or with
both1358.

B. The Industrial Relations Code, 2020 (No. 35 of 2020)

i. An Overview
The Industrial Relations Code, 2020 is enacted with prime object to merge & amend
in a better way the legal provisions relevant with the Trade Unions, employment
conditions in industrial manufacturing units & establishments, buildings or
construction works or undertakings, investigating and accordingly settlement of
industrial issues, matters and disputes 1359 . The Act is extended to the whole of
India1360 and shall come into force w.e.f. such date as the officially declared by the
Central Government through notification in the Gazette of India1361.

ii. Important Definitions

 The term "employee" refers to any person engaged by an industrial establishment

or undertaking performing semi-skilled, unskilled, skilled, operational, manual,
administrative, managerial, supervisory, technical or clerical work for any reward
or hire, whether the employment terms are clearly express or other way implied,
and also comprises that individual as the appropriate Government declared to be
an employee, but does not covers any person having membership of Armed
Forces of the Union1362.

1357
The Code on Wages, 2019 (Code 29 of 2019), s. 54(1)(c)
1358
The Code on Wages, 2019 (Code 29 of 2019), s. 54(1)(d)
1359
The Industrial Relations Code, 2020 (Code 35 of 2020), Preamble
1360
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 1(2)
1361
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 1
1362
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 2(l)

258
  As the present research is related to Construction Industry, the Industrial Relations
Code, 2020 provides new definition of industry1363.

 The IR Code, 2020 defines "industrial dispute" that means any dispute or issue or
difference among employers & workers, amid workers & workers or among
employers & employers having connection with the services or employment terms
or with the labour conditions, employment or non-employment of any indivudal or
person and comprises any difference or issues among a worker & an employer
having connection with or coming out of termination, discharge, retrenchment or
dismissal of such worker1364. This definition covers all kind of disputes which
arise in construction industry.
 The IR Code, 2020 defines the term industrial establishment or undertaking 1365.
 The Industrial Relations Code, 2020 defines "lay-off" which simply means the
refusal, failure or inability from employer’s side due to coal shortage, deficiency
or scarcity of raw materials, lack of power and electricity or the machinery
breakage or breakdown or the larger stock accumulation or calamity from nature

1363
“Industry” means any systematic activity carried on by co-operation between an employer and
worker (whether such worker is employed by such employer directly or by or through any agency,
including a contractor) for the production, supply or distribution of goods or services with a view to
satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in
nature), whether or not:
i. any capital has been invested for the purpose of carrying on such activity; or
ii. such activity is carried on with a motive to make any gain or profit, but does not include
a. institutions owned or managed by organisations wholly or substantially engaged in any
charitable, social or philanthropic service; or
b. any activity of the appropriate Government relatable to the sovereign functions of the
appropriate Government including all the activities carried on by the departments of the
Central Government dealing with defence research, atomic energy and space;
c. any domestic service; or
d. any other activity as may be notified by the Central Government
1364
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 2(q)
1365
“Industrial establishment or undertaking” means an establishment or undertaking in which any
industry is carried on:
Provided that where several activities are carried on in an undertaking or establishment and only one or
some of such activities is or are an industry or industries, then:
i. if any unit of such establishment or undertaking carrying on any activity, being an industry, is
severable from the other unit or units of such establishment or undertaking which is not carrying
on or aiding the carrying on of any such activity, such unit shall be deemed to be a separate
industrial establishment or undertaking.
ii. if the predominant activity or each of the predominant activities carried on in such establishment or
undertaking or any unit thereof is an industry and the other activity or each of the other activities
carried on in such establishment or undertaking or unit thereof is not severable from and is, for the
purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the
entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an
industrial establishment or undertaking

259
 side or for any other relevant cause & reason, to provide occupation to workers
bearing their names on the establishment’s muster rolls and not retrenched.
 Every worker bearing his name on establishment’s muster rolls and is
presenting himself for work at the undertaking or construction site or
establishment at the selected time during normal working hours on any day
and employer not provided him employment within two hours after the
employee or worker presents himself or herself shall be counted as laid-off for
that day.
 If at the time of shift starts and worker not given occupation and accordingly
asked to be available and present for second half day and accordingly provided
occupation for second half, then laid-off shall be only for first half.
 It is further provided in the provision that even after presenting by worker and
not provided occupation, worker shall not be counted as laid-off for the second
half period in a day and accordingly eligible for payment of full basic wages &
dearness allowance for that part1366.

 As the topic is related to construction industry, there is also possibility of lock out
from the employer side. So the Industrial Relations Code, 2020 also provide the
definition of the term "lock-out" which ultimately means the temporarily closure
of a place where employees are engaged, or suspending work, or when employer
refuses to employ or not ready to continue to engage any number of workers or
persons employed by him1367.

 The term "retrenchment" means when the employer terminates the services of an
employee or worker due to any reason at all. But retrenchment does not includes
termination of service by way of punishment following disciplinary proceedings,
but not consists:
 Worker’s Voluntary Retirement
 Retirement after attaining superannuation age
 Termination of the worker’s services due to reason of non-renewal of
employment agreement or contract

1366
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 2(t)
1367
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 2(u)

260
  Termination of service of the employee or worker due to completion fixed
term employment tenure.
 Terminating services of a worker due to reason of continued ill-health1368.

Industrial disputes are common in Construction Industry in India due to various

reasons like casual nature of employment, absence of social security benefits,
uncertain working hours, employment injuries, unsafe working conditions, working at
heights, delayed payment of wages, non availability of welfare measures viz.,
drinking water facility, washing and cleaning facilities, separate urinals and latrines.
So due to these reasons a dispute arose generally between Management and
Workers 1369 . For resolving these, Government has constituted “Dispute Resolving
Machineries”, which are discussed and elaborated as under:

iii. Bipartite Forums are provided under the Industrial Relations Code, 2020 for the
purpose of Redressal of Grievances and Settlement of Industrial Disputes1370.

 Works Committee

Construction industries employing one hundred or more than one hundred workers are
statutorily required by the Appropriate Government to form “Works Committee”
comprising representatives of workers and also of employer1371. It is required that the
number of worker’s representatives not lower than employer’s representatives.

The worker’s representatives shall be selected from among the workers already
working in the establishment and consulting their registered Trade Union 1372 . The
Works Committee is duty bound to promote and develop measures for securing and
protecting amity & good relations between the Management and Workers1373.

So, constitution of works committee is an important step towards resolution of

industrial disputes internally, which ultimately results in better productivity and
maintaining harmonious relations between Management and Workers.

1368
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 2(zh)
1369
K. Ponnaian, Dr. T. Iyappan (Supervisor), “Problems Of Building Construction Workers In
Kanyakumari District Of Tamil Nadu” 2 International Journal of Management and Economics
Invention 1104-1106 (2016)
1370
The Industrial Relations Code, 2020 (Code 35 of 2020), Chapter II
1371
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 3(1)
1372
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 3(2)
1373
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 3(3)

261
 Grievance Redressal Committee

Industrial Establishment or we can say construction industry employing twenty or

more than twenty workmen shall have to constitute Grievance Redressal Committee
for resolving disputes arising due to individual grievances1374. The representatives in
Committee necessarily be equal in number 1375.

The Committee’s Chairperson shall be selected on alternative rotational way year by

year from among the persons representing employer and the person representing
worker1376. The members in the Grievance Redressal Committee must not be more
than ten in totality1377.

The provision also requires for sufficient representation of female workforce in the
Committee redressing grievances, but not less than the ratio of female workforce to
the total workmen working in the undertaking.

An application with respect to any dispute arising due to individual grievances may be
submitted with the Grievance Redressal Committee by an aggrieved worker within a
period of one year w.e.f. the date of cause of action of the said dispute arises1378. The
Grievance Redressal Committee is required to complete the proceedings for resolving
dispute within a period of thirty days from the receiving applications1379.

The Grievance Redressal Committee shall resolve the grievances on the ground of
majority observation. But it is required that more than half of members on behalf of
workers must have gave their approval for the decision, otherwise decision of the
Committee shall not be considered approved 1380.

The worker as aggrieved or not satisfied by the decision pronounced by the Grievance
Redressal Committee or whose issue has not been resolved within a period of thirty
days may, within sixty days of duration w.e.f. date of the conclusion as pronounced
by the Committee or w.e.f. the date of expiry of thirty days, may submit an

1374
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(1)
1375
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(2)
1376
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(3)
1377
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(4)
1378
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(5)
1379
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(6)
1380
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(7)

262
 application for the purpose of conciliation of such issue / grievance / matter to the
conciliation officia1 in the prescribed manner through the Trade Union1381.

Where an establishment dismisses, retrenches, discharges or otherwise terminates the

employment of a worker, then any dispute or difference or issue among worker &
employer due to dismissal, discharge, termination or retrenchment shall counted as an
industrial dispute despite any of the fact that no any Trade Union nor any Worker is a
party to the dispute1382.

A direct application to the Tribunal can be lodged by aggrieved worker for

adjudication purpose after the completion of forty-five days w.e.f. the date of lodging
application with the conciliation officer. After receiving letters or application, the
Tribunal shall exercise powers in its jurisdiction to settle the issue or dispute1383.

The application to the Tribunal as said above can be submitted before two years
expires w.e.f. the date of dismissal, discharge, retrenchment or termination of
employment1384.

iv. Criteria for Registration of a Trade Union

The workers have right to form Trade Unions. So, it is provided that any seven or
more than seven members of a Trade Union may having compliance with the
provisions as laid down in the IR Code, 2020 for registration submit an application
with the Registrar for the purpose of getting their Trade Union registered1385.

No any worker’s Trade Union shall be granted registration until minimum of 10%
(ten percent) or 100 (one hundred) of the workers, either which is less, working in the
industry or establishment are the members of that Trade Union on the date of lodging
request for the purpose of registration1386.

An application lodged Trade Union registration shall never be counted in category of

invalidity just because, at any time after the date of lodging application with the office
of Registrar, but before the Trade Union is registered, some member applicants, but

1381
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(8)
1382
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(9)
1383
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(10)
1384
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 4(11)
1385
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 6(1)
1386
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 6(2)

263
 not more than half of the total applicants, ceased from membership of Trade Union or
issued notice to the office of Registrar in written manner for detachment from the
lodged application1387.

A Trade Union registered having workers at all times continuously having not below
10% (ten percent) or 100 (one hundred), whichever is less in number, but a minimum
of seven, employed or engaged in an industry or industrial establishment with which it
is attached, as its members.

v. Voluntary Reference of Disputes to Arbitration

The difference or disputes between employers and employees/workers can be

redressed by voluntary reference of disputes to Arbitration 1388.

Any industrial dispute between the employer & the workers can be resolved through
arbitration and it can be done by way of a written agreement. The dispute can be
referred to arbitrator as the parties decides1389.

Where even number of arbitrators are agreed in an arbitration agreement, then,

another person acting as umpire shall be selected and mentioned in the agreement. If
the opinion of arbitrators is equally divided, the umpire shall enter upon reference and
the award given by umpire shall prevail. That award shall be arbitration award 1390.

An arbitration agreement necessarily be in legally authorized form and authenticated

by the parties in legal manner 1391. An arbitration agreement’s copy must be sent to the
Appropriate Government and concerned conciliation officer of the area concerned 1392.

Where parties voluntarily referring an industrial issue to arbitration, the appropriate

Government upon satisfaction regarding equality in majority of each party i.e.
employer and workers and after issuing a notification, they must be given an
opportunity for presenting their case/matter before the arbitrator1393.

But it is provided that:

1387
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 6(3)
1388
The Industrial Relations Code, 2020 (Code 35 of 2020), Chapter VI
1389
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(1)
1390
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(2)
1391
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(3)
1392
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(4)
1393
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(5)

264
 i. If industrial dispute is except termination of services of a worker by mode of
dismissal, discharge, retrenchment or other, the workers shall be represent before
an arbitrator:
a. where negotiating union or negotiating council is there, then representation by
them, as per the case
b. where no negotiating union or negotiating council exists there, Trade Union
shall represent
c. Further where there exists no any Trade Union, representation in authorised
way
ii. Where the industrial dispute is relevant to terminating services of an individual
worker by mode of dismissal, discharge, retrenchment or any other, the workers
concerned shall represent personally or through his authorised representative.

The investigation of the dispute shall be done by the arbitrator(s). The arbitration
award shall be further endorsed towards the Appropriate Government duly
authenticated by the arbitrator(s)1394.

Where parties voluntarily referred industrial dispute for arbitration and issued
notification, the continuing lock out or strike may be prohibited by the Appropriate
Government having connection with the dispute1395.

No any provision of the Arbitration and Conciliation Act, 1996, shall affect provisions
of arbitration as discussed above1396.

vi. Mechanism for Industrial Disputes Resolution

The term "Industrial Dispute" means thereby dispute or issue among employers &
workers, amid workers & workers or between employers & employers, having
connection with the labour conditions, employment or non-employment terms of any
individual person and also covers up dispute between a single employee & his
employer having connection with dismissal, retrenchment, discharge or employment
termination of such worker1397.

1394
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(6)
1395
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(7)
1396
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 42(8)
1397
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 2(q)

265
Industrial disputes arise in construction industry in India due to various reasons like
casual nature of employment, absence of social security benefits, uncertain working
hours, employment injuries, unsafe working conditions, working at heights, delay in
payment of wages, non availability of welfare measures viz., drinking water facilities,
washing and cleaning facilities, separate urinals and latrines etc. So due to these
reasons, disputes occur generally between employer and workers on routine basis1398.

For the resolution of industrial disputes and for maintaining harmonious industrial
relations, mechanism for resolution of Industrial Disputes is necessary 1399 . The
mechanism for resolution of Industrial Dispute as provided in the IR Code, 2020 is
discussed as under:

 Conciliation Officers

Conciliation officers may be appointed by the appropriate Government through

notification especially given responsibility for mediating in and make efforts for
settling the industrial disputes1400. It is laid down that appointment of a conciliation
officer may be done for a specific area or for specific industries or establishments in a
specified area either permanently or for a limited time period1401.

 Industrial Tribunal

One or more than one Industrial Tribunals may be constituted by the appropriate
Government through publication of notification for the purpose of adjudication of
industrial disputes and other relevant functions assigned. The purpose of constituting
Industrial Tribunals is adjudication of disputes in industry1402.

The Judicial and Administrative Member of Tribunals shall take into consideration
and decide upon the cases mentioned below:

a. Applicability & Interpretation related to standing orders

1398
K. Ponnaian, Dr. T. Iyappan (Supervisor), “Problems Of Building Construction Workers In
Kanyakumari District Of Tamil Nadu” 2 International Journal of Management and Economics
Invention, 1104-1106 (2016)
1399
The Industrial Relations Code, 2020 (Code 35 of 2020), Chapter VII
1400
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 43(1)
1401
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 43(2)
1402
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 44(1)

266
b. Dismissal or discharge of workmen including his/her reinstatement and grant of
relief for dismissed workmen
c. Taking notice of illegal strike or illegal lock out
d. Retrenchment of workmen & Closing down of Industry & establishment and
e. Trade Union Disputes
Other remaining cases shall be decided by the Tribunal’s bench consisting an
Administrative or Judicial Member1403.

 National Industrial Tribunal

One or more than one National Industrial Tribunals may be constituted by the Central
Government through publication of notification for adjudicating industrial disputes of
national importance or industrial disputes which are of such a nature that industries or
establishments of more than one State are affected by such disputes1404.

 Decision of Tribunal or National Industrial Tribunal

The award announced by National Industrial Tribunal or as the case may be Tribunal
shall be according to consent of the members1405.

If the opinion differs on any point, the same may be further referred to the appropriate
Government1406. The points referred shall be heard by the appropriate Government i.e.
by Judicial Member of any other Tribunal or by a National Industrial Tribunal and
such referred points shall be decided upon accordingly with their majority1407.

 Procedure & Powers of Arbitrators, Conciliation Officers, Tribunals &

National Industrial Tribunal

 A procedure as deemed necessary and fit for settlement of industrial disputes shall
be followed by an arbitrator, conciliation officers, Tribunals and National
Industrial Tribunals 1408.

1403
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 44(7)
1404
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 46 (1)
1405
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 47(1)
1406
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 47(2)
1407
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 47(3)
1408
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 49(1)

267
  An authorised officer or conciliation officer of National Industrial Tribunal or
Tribunal as the case may be, for inquiring existing or probable industrial dispute
may enter the industrial establishment premises1409.
 The Tribunals, National Industrial Tribunals or Conciliation Officers retain that
powers as of a Civil Court established under the Code of Civil Procedure,1908,
while trying suit, with respect to the following matters:
a. Enforcing the presence and attendance of any required person & examining
him on oath.
b. Compelling to produce documents & material objects
c. Issuing commissions for examining concerned witnesses
d. Other prescribed matters1410

Every investigation and inquiry by Tribunals or National Industrial Tribunals shall be

considered as a Judicial Proceedings.

vii. Powers of Tribunals, National Industrial Tribunals to award appropriate

relief discharging or dismissing services of a worker

Where an application has been forwarded to National Industrial Tribunal or Tribunal

for adjudicating the industrial dispute involving dismissal or discharge or termination
of services as not settled by the conciliation officer within ninety days and in the
course of proceedings of adjudication, either the National Industrial Tribunal or
Tribunal is satisfied that the discharge, termination or dismissal orders issued was
unjustified, it may, by its own award, set aside the previous order of dismissal or
discharge or termination of services and direct to reinstate the worker on such terms &
conditions, as deems fit. Any other relief including any lesser punishment to the
worker may also be awarded keeping in view the situations of the case1411.

A Tribunal or National Industrial Tribunal may grant necessary interim relief for
imparting the justice to the worker till the pendency of industrial dispute1412.

1409
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 49(2)
1410
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 49(3)
1411
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 50(1)
1412
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 50(2)

268
 Provided that the Tribunal or National Industrial Tribunal has to rely upon the
materials already on record and no fresh evidence shall be taken into account in this
regard1413.

viii. Conciliation and Adjudication of Dispute

Where an industrial dispute is apprehended or existing or a notice related to strike and

lock has been issued, the conciliation officer has power to hold conciliation
proceedings in prescribed manner1414, but not after two years from arising of such
industrial dispute.

The conciliation officer with an aim to settle the dispute, without any undue delay,
starts investigation of the dispute and considers all the merits. The conciliation officer
shall make efforts to induce the parties for a fair & amicable settlement of the
dispute1415.

If industrial dispute is settled during conciliation proceedings, a report for the same
shall be forwarded to the appropriate Government by the conciliation officer along
with a memorandum of the settlement duly approved and signed by the parties
concerned to the dispute1416.

On the other hand, if the industrial dispute is not settled, a full report shall be sent by
the conciliation officer at the very earliest, after closing the investigation referred to
the parties & to the appropriate Government. The said report shall also be sent in the
electronic form stating the steps adopted by him for bringing a settlement to the
dispute, along with a complete statement of facts & situations with due causes of not
settling the matter1417.

Apart from this, the conciliation officer is required to send a report to the parties
concerned & the appropriate Government within forty-five days w.e.f. the start of the
conciliation proceedings or in shorter time period as appropriate Government may
fix1418.

1413
The Industrial Relations Code, 2020 (Code 35 of 2020), proviso to s. 50(2)
1414
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 53(1)
1415
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 53(2)
1416
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 53(3)
1417
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 53(4)
1418
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 53(5)

269
 Provided that if notice of strikes and lock-outs is forwarded to the conciliation officer,
then, a report shall be sent to the disputed parties and also to the appropriate
Government within period of fourteen days of commencement of conciliation
proceedings1419.

However, the above time period may be extended by the conciliation officer as
consent given in written manner by the disputed parties concerned.

An application may be lodged by concerned party with the Tribunal for the matters
and disputes which the conciliation officer not settled within period of ninety days
and the Tribunal shall entertain application and decide the matter in the prescribed
manner1420.

ix. Strikes & Lock-Outs

 Prohibition of Strikes & Lock-Outs

No person working in an industrial establishment shall join or commence strike, in

breach of a contract1421:
 without informing employer with notice of strike, within period of sixty days
before starting strike
 within period of fourteen days of submitting such notice of strike
 before the expiry of strike date as detailed in such notice
 during the period of pendency of conciliation proceedings before a
conciliation officer & minimum seven days after the proceedings concludes
 during the proceedings as pending before National Industrial Tribunal or
Tribunals and sixty days after the said proceedings concludes
 during pendency of arbitration proceedings before an arbitrator & sixty days
after said proceedings concludes, and also when a notification is released
complying arbitration proceedings
 during that time period in which any award or settlement is in operation, with
respect to any of the issues and matters as covered by the award or settlement.
Similarly, no employer shall lock out his industry or establishment1422:

1419
The Industrial Relations Code, 2020 (Code 35 of 2020), proviso to the s. 53(5)
1420
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 53(6)
1421
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 62(1)
1422
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 62(2)

270
  without providing information of lock-out and issue notice in this regard,
within period of sixty days before commencing locking-out
 within period of fourteen days of giving notice of lock-out
 before the date of expiry of lock-out as mentioned in any notice of lock-out
 during the period when conciliation proceedings are awaiting for decision
before a conciliation officer & seven days after such proceedings concludes
 during the period when proceedings before a National Industrial Tribunal or
Tribunal are pending & sixty days after such proceedings concludes
 during the period when arbitration proceedings are awaiting before an
arbitrator & sixty days after such proceedings concludes and a notification has
been released in compliance with the legal provision
 during any time period during which any award or settlement is in operation,
with respect to any of the issues covered by the award or settlement.

The notice informing commencement of strike or lock-out is not required where any
strike or lock-out is already ongoing or in existence. But, the employer is required to
inform the authority as constituted by the appropriate Government regarding strike or
lock-out on the day when it is pronounced 1423. The notice of strike shall be given by
prescribed number of persons1424. The notice of lock-out shall be given by prescribed
number of persons1425.

If an employer receives on any day notices regarding strikes or gives to any employed
persons notices for lock-outs, he shall within duration of five days submits a report
and all above said notices to the authority or appropriate Government and to the
conciliation officer on that day1426.

 Illegal Strikes & Illegal Lock Outs

A lock-out or strike is considered as illegal, if it is1427:

 declared or commenced contravening above said reasons

1423
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 62(3)
1424
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 62(4)
1425
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 62(5)
1426
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 62(6)
1427
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 63(1)

271
  continued contravening an industrial dispute is referred for arbitration and
notification is issued and strike or lockout is prohibited by appropriate
Government by way of order.
 Where a strike or lock-out following the industrial dispute has already
declared and existing while filing application connected with dispute in the
Tribunal or referring to a National Industrial Tribunal or an arbitrator, the
continuing such lock-out or strike shall not be counted in illegal category, but
with the condition that such lock-out or strike was not from its declaration or
commencement contravened the notification as issued for prohibiting strike or
lock-out by appropriate Government by way of order as required under section
42(7) already discussed above1428.

A lock-out declared as resultant from an illegal strike or a strike declared resultant

from an illegal lock-out shall never be treated as illegal1429.

 Prohibition of Financial Aid to Illegal Strikes or Lock-Outs

No person is allowed to knowingly spend or monetarily support directly any illegal

strike or lock-out1430.

 Conditions Precedent to Retrenchment of Workers

The provision lays down that no worker who is continuously employed for not less
than one year in an establishment / industry shall be retrenched by employer until1431:

 One month of written notice has been given to the worker showing the
retrenchment reasons and the notice period has already expired, or the wages
for that notice period released in worker’s favour.
 At the time of retrenchment, the payment of compensation has been made to
the worker. The payment shall be equivalent to 15 days of average pay, or
average pay of days Appropriate Government notify, for every year of
continuous service or part exceeding period of six months.
 Notice in prescribed manner is served on the appropriate authority or
Government as the Appropriate Government specify through notification.
1428
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 63(2)
1429
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 63(3)
1430
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 64
1431
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 70

272
 Procedure for Retrenchment

Where any worker who is also a citizen of India and employed in an industrial
establishment is to be retrenched and worker belongs to a particular worker’s
category, then, in absence of availability of agreement between an employer and the
worker, the employer shall normally retrench the services of worker lastly employed,
unless the employer retrenches other worker due to reasons to be recorded1432.

 Re-employment of Retrenched Worker

Where the employer agreed and proposes to re-employ any retrenched worker within
a period of one year of said retrenchment, an opportunity shall be given to the workers
who were earlier retrenched and citizens of India for opportunity of re-employment.
The retrenched workers offering themselves to re-employ shall be preferred over
other persons1433.

 Compensation to Workers in Case of Closure of Undertakings

Industries and Establishments are generally close down and consequently workers
have to face difficulties during that period. For this, it is provided that where an
industry or establishment is closed down due to any reason, every worker employed
therein for not less than one year of continuous service immediately before closing
down of that industry or establishment has right to notice & compensation
accordingly as per provisions related to conditions required to follow before
retrenchment of workers1434.

It is provided that where closure of an industry or undertaking is happened due to

unavoidable reasons beyond employer’s control, the compensation required to be paid
in favour of the worker under section 70(b), shall not be more than his average wages
for 03 (three) months.

It is hereby explained that closure of an industrial establishment happened due to

financial difficulties and losses, addition of un-disposed stocks, expiry of the lease
period or license issued to it shall not be considered closed down due to unavoidable
circumstances beyond the employer’s control.

1432
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 71
1433
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 72
1434
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 75(1)

273
Where any undertaking or establishment set up for the projects viz., construction of
roads, dams, canals, bridges, buildings or other relevant construction work is closed
owing to completion of the work within period of two years w.e.f. the date on which
the project / undertaking had been set up, no employed worker therein shall be
eligible to any payment of compensation under section 70(b) as discussed above, but
if the project of construction work is not completed within duration of two years, the
workers shall be entitled to notice & compensation for every finished year of
continuous service or any part thereof exceeding six months1435.

 Prohibition of Lay-Off

It is laid down that in industrial establishments employing more than 300 workers, no
worker except a casual worker or badli worker having his name on the muster rolls of
an undertaking or industrial unit or establishment shall be laid off from work by an
employer without getting prior approval from the appropriate Government specially
obtained on making application in this regard, unless and until such lay-off is by
reason of any natural calamity or shortage of power1436.

An application for laying off the workers as said above shall be lodged by employer
either in electronic manner or in the prescribed way indicating in very clear the
reasons to lay-off the workers. An application’s copy is necessary to be served also to
the concerned workers in prescribed manner1437.

Where an application for getting approval has been initiated and submitted, the
appropriate Government shall after necessary enquiry into the issue provide a
reasonable opportunity in favour of the employer, other persons interested and the
concerned workers in that lay-off, may take into consideration grounds for such lay-
off, the paramount interests of the workers & related factors may grant or refuse such
approval. The same shall be informed to the employer & the workers1438 . If such
approval or permission does not communicated by the appropriate Government to the
employer within a time period of sixty days w.e.f. the date of submission of

1435
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 70(4)
1436
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(1)
1437
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(2)
1438
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(4)

274
 application, the approval or permission as applied shall be considered as granted after
expiry of sixty days of period. The application shall be counted as disposed of1439.

An order issued by the Appropriate Government for refusing or granting permission

shall be final & binding on parties. The order shall remain effective till one year w.e.f.
issuance date1440. The order vide which approval or permission has been granted or
refused may be reviewed by the appropriate Government or refer to a Tribunal for
adjudication purpose1441. It is provided that if an order as said above has been referred
to a Tribunal for adjudication, it is necessary for the Tribunal to pass an award within
a time period of thirty days w.e.f. the date of reference of such order1442.

Where no application for approval or permission is submitted by employer within the

specified time period, or where the approval or permission is refused for lay-off, then,
lay-off shall be considered as illegal. Workers laid off shall be shall be entitled to all
the advantages and benefits as available under any law and workers will be treated as
not laid-off1443.

The appropriate Government if fully satisfied that owing to exceptional circumstances

and situations as accident in the undertaking or establishment or death of the
employer or the similar situation, it is necessary so to do, then above provisions shall
not be applicable apply in respect of such establishment1444.

It is hereby explained that a worker shall never be counted in laid-off category, if

employer has already given alternative occupation not needed any special skill or
professional experience in the same or nearby establishment belongs to same
employer and it is confirmed that employee’s transfer not require any undue
hardships. The wages are offered for the substitute work also.

x. In industrial establishments, wherein more than 300 workers are working or

employed by employer, there are conditions precedent to retrenchment of
workers:

1439
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(5)
1440
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(6)
1441
The Industrial Relations Code, 2020 (Code 35 of 2020), s.78(7)
1442
The Industrial Relations Code, 2020 (Code 35 of 2020), proviso to s. 78(7)
1443
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(8)
1444
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 78(9)

275
No worker who is given employment in an establishment since minimum one year of
continuous service shall be retrenched by employer until 1445:

a. Three months of notice has been given to the worker in written manner showing
the retrenchment reasons and the notice period has completed, or payment
released to worker in lieu of notice period.
b. the prior approval from the Appropriate Authority or Appropriate Government has
been taken after lodging application.

An application for getting approval as required above is to be submitted by the

employer in electronic form or in the other prescribed way indicating the reasons for
the retrenchment. A copy of application must be forwarded to the workers concerned
in prescribed manner1446.

After receiving application, the appropriate Government, may by order grant or refuse
such approval. A copy must necessarily be communicated to the concerned parties 1447.

If the above said order granting permission or refusing to grant permission to

employer not communicated by the Appropriate Government within a time period of
60 (sixty) days w.e.f. the date of lodging application, the approval or permission shall
be treated as granted when a sixty days of period expires and the application
accordingly shall be counted as disposed of1448.

An order issued by the Appropriate Government i.e. granting or refusing approval

shall be final & have binding force on the concerned parties. Order shall remain
enforced for time period of one year w.e.f. date of its issue1449.

The order issued may be reviewed by the appropriate Government and may refer the
issue or, as the case may be referred it to a Tribunal for the purpose of adjudication. It
is provided that where order has been referred to a Tribunal, an award shall be passed

1445
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(1)
1446
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(2)
1447
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(3)
1448
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(4)
1449
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(5)

276
 by Tribunal within a time period of thirty days w.e.f. the date when issue is
referred1450.

Where no application requesting for permission is submitted, or no permission is

granted for retrenchment, such retrenchment shall be counted in illegal category w.e.f.
the day of issuance of retrenchment notice to the worker. The worker concerned shall
be eligible for all the advantages & benefits available under available statute. It will
be deemed that no notice of retrenchment had been given to worker1451.

The appropriate Government if satisfied that due to exceptional circumstances such as

major accident in the establishment, employer’s death or similar reason, then above
required provisions shall not be applicable in regard to such establishment 1452.

If on the other side, approval for retrenchment has been granted every retrenched
worker shall be eligible to receive compensation equivalent to fifteen days of average
pay, or such average pay for the days as the appropriate Government notify, for every
finished year of continuous service / any part exceeding six months1453.

xi. Prohibition of Unfair Labour Practices

No any employer or a worker or any Trade Union, either registered or not, shall
practice any unfair labour practices as given in the Second Schedule 1454 of the IR
Code, 20201455.

1450
The Industrial Relations Code, 2020 (Code 35 of 2020), s 79(6)
1451
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(7)
1452
The Industrial Relations Code, 2020 (Code 35 of 2020), s.79(8)
1453
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 79(9)
1454
The Industrial Relations Code, 2020 (Code 35 of 2020), The Second Schedule
[See sections 2 (zo), 84, 86 (5) and 101(1) of the Industrial Relations Code, 2020 (No. 35 of 2020)]
Unfair Labour Practices
I. On the part of employers and trade unions of employers

1) To interfere with, restrain from, or coerce, workers in the exercise of their right to organise, form,
join or assist a Trade Union or to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, that is to say:
a. threatening workers with discharge or dismissal, if they join a Trade Union
b. threatening a lock-out or closure, if a Trade Union is organized
c. granting wage increase to workers at crucial periods of Trade Union organisation, with a view to
undermining the efforts of the Trade Union organisation.
2) To dominate, interfere with or contribute support, financial or otherwise, to any Trade Union, that
is to say:
a. an employer taking an active interest in organising a Trade Union of his workers; and
b. an employer showing partiality or granting favour to one of several Trade Unions attempting to
organise his workers or to its members, where such a Trade Union is not a recognised Trade
Union.

277
3) To establish employer sponsored Trade Unions of workers.
4) To encourage or discourage membership in any Trade Union by discriminating against any
worker, that is to say:
a. discharging or punishing a worker, because he urged other workers to join or organise a Trade
Union;
b. discharging or dismissing a worker for taking part in any strike (not being a strike which is deemed
to be an illegal strike under this Code)
c. changing seniority rating of workers because of Trade Union activities;
d. refusing to promote workers to higher posts on account of their Trade Union activities
e. giving unmerited promotions to certain workers with a view to creating discord amongst other
workers, or to undermine the strength of their Trade Union
f. discharging office-bearers or active members of the Trade Union on account of their Trade Union
activities.
5) To discharge or dismiss workers:
a. by way of victimization
b. not in good faith, but in the colourable exercise of the employer's rights
c. by falsely implicating a worker in a criminal case on false evidence or on concocted evidence
d. for patently false reasons
e. on untrue or trumped up allegations of absence without leave
f. in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with
undue haste
g. for misconduct of a minor or technical character, without having any regard to the nature of the
particular misconduct or the past record or service of the worker, thereby leading to a
disproportionate punishment.
6) To abolish the work of a regular nature being done by workers, and to give such work to
contractors as a measure of breaking a strike.
7) To transfer a worker mala fide from one place to another, under the guise of following
management policy.
8) To insist upon individual workers, who are on a legal strike to sign a good conduct bond, as a
precondition to allowing them to resume work.
9) To show favouritism or partiality to one set of workers regardless of merit.
10) To employ workers as badli workers, casuals or temporaries and to continue them as such for
years, with the object of depriving them of the status and privileges of permanent workers.
11) To discharge or discriminate against any worker for filing charges or testifying against an
employer in any enquiry or proceeding relating to any industrial dispute.
12) To recruit worker during a strike which is not an illegal strike.
13) Failure to implement award, settlement or agreement.
14) To indulge in acts of force or violence.
15) To refuse to bargain collectively, in good faith with the recognised Trade Unions.
16) Proposing or continuing a lock-out deemed to be illegal under this Code.
II. On the part of workers and trade unions of workers
1) To advise or actively support or instigate any strike deemed to be illegal under this Code.
2) To coerce workers in the exercise of their right to self-organisation or to join a Trade Union or
refrain from, joining any Trade Union, that is to say:
a. for a Trade Union or its members to picketing in such a manner that non-striking workers are
physically debarred from entering the work places
b. to indulge in acts of force or violence or to hold out threats of intimidation in connection with a
strike against non-striking workers or against managerial staff.
3) For a recognised union to refuse to bargain collectively in good faith with the employer.
4) To indulge in coercive activities against certification of a bargaining representative.
5) To stage, encourage or instigate such forms of coercive actions as wilful, "go-slow", squatting on
the work premises after working hours or "gherao" of any of the members of the managerial or
other staff.
Explanation 1:
For the removal of doubts, it is clarified that "go-slow" shall mean an occasion when more than one
worker in an establishment conjointly work more slowly and with less effort than usual to try to
persuade the employer of the establishment to agree to higher pay or better service condition or such
other demand.
Explanation 2:

278
 C. The Code on Social Security, 2020 (No. 36 of 2020)

i. An Overview

The 2nd National Commission on Labour in June, 2002 year report suggested that the
present labour legislations required to be broadly merged into parts viz., Industrial
Relations, Safety, Welfare and Working Conditions, Wages, Social Security. Finally,
following the suggestions in the tripartite conference of the Government, Employer’s
Association and representatives of Industry, it had been finally decided to enact the
proposed statutes.

The Code on Social Security, 2020 amalgamate, rationalize and simplify provisions
contained in nine central labour statutes relevant with social security namely, the
Employees Compensation Act, 1923, the Employees State Insurance Act 1948, the
Employees Provident Funds and Miscellaneous Provisions Act, 1952, the
Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, the
Maternity Benefit Act, 1961, the Payment of Gratuity Act, 1972, the Cine Workers
Welfare Fund Act, 1981, the Building and Other Construction Workers Welfare Cess
Act, 1996 and the Unorganised Worker’s Social Security Act, 2008. The Code on
Social Security, 2020 is an Act to amend and merge the laws relevant to social
security with the objective to provide social security benefits to all employees &
workers engaged in the every sector of economy1456.

ii. Important Terms

As the present research work is related to Building and Construction Industry, so it is

necessary to discuss the definition of various terms like “building or construction
work”, “building worker”, “contract labour”, “contractor” and “social security”.

For the purposes of Explanation 1, the expression "usual" shall mean:

i. where the standard has been specified for a worker for his work either daily, weekly or monthly
basis, such work; and
ii. where no such standard has been specified such rate of work which is the average of work in the
previous three months calculated on daily or weekly or monthly basis, as the case may be.

6) To stage demonstrations at the residence of the employers or the managerial staff members.
7) To incite or indulge in wilful damage to employer's property connected with the industry.
8) To indulge in acts of force or violence or to hold out threats of intimidation against any worker
with a view to prevent him from attending work.
1455
The Industrial Relations Code, 2020 (Code 35 of 2020), s. 84
1456
The Code on Social Security, 2020 (Code 36 of 2020), Preamble

279
 The term "building or other construction work" meaning thereby repairs,
construction, alteration, maintenance or demolition of streets, tramways, railways,
irrigation, buildings, airfields, drainage, roads, navigation works and embankment,
flood control activities, works and operations (comprising of storm water drainage
works), to generate, transmit and distribute power, water works (including the
distributing water channels), internet towers, electric lines, oil & gas installations,
radio, wireless, telephone and overseas communications, television, telegraph,
canals, dams, tunnels, reservoirs, bridges, watercourses, pipelines, viaducts,
aquaducts, towers, transmission towers, cooling towers and other activities,
operations and works as the Central Government may specify in this regard, by
notifying, but does not cover any construction or building operations & activities
related to any mine, factory or any construction or building work in which
employed workers are less than ten in the previous twelve months or if such work
is relating to own residential purposes of an individual person or group of
individuals for personal residences and the total expenditure not more than rupees
fifty lakhs or larger amount and engaging & employing more than such number of
employees and workers as the appropriate Government may notify1457.
 "building worker" means thereby individuals performing any skilled, technical,
manual or other clerical work, unskilled, semi-skilled any reward or hire, whether
the occupational terms & conditions are expressed clearly or implied, in relation
to any construction operations or building works, but not covers persons mainly
engaged in a supervisory, managerial or administrative capacity1458.
 The Code defines "contract labour" as a worker who shall be considered to be
employed or engaged in or in connection with the activity/work of an
establishment or undertaking when he is hired to perform work through or by
engaging a contractor, without or with the principal employer’s knowledge
including Inter-State Migrant Worker, but an employee (except part time
employee) is not covered employed on regular basis by contractor to perform any
work of establishment & employment is managed by jointly agreed standards of
the employment conditions (comprising employment on permanent basis), and
receive periodical increments in the pay scale, social security coverage and all

1457
The Code on Social Security, 2020 (Code 36 of 2020), s. 2(6)
1458
The Code on Social Security, 2020 (Code 36 of 2020), s. 2(7)

280
 other welfare benefits and advantages accordingly with the laws and statutes for
the time being in force in that employment1459.

 The term "contractor", of an establishment meaning thereby that individual, who

agreed to produce given results for an undertaking, unit or establishment, except
supplying articles, substances or manufactured goods to that undertaking or
establishment by employing contractual workers & labour or one who supplies
contractual labour to perform any work of an establishment as human resources,
and comprises of sub-contractor1460.

 As we are discussing the Social Security, the term "social security" means the
protection measures afforded to workers and employees for ensuring access
towards health care facilities and to extend income securities, especially during
old age, sickness, unemployment, work injury, invalidity, maternity or losing
breadwinner through rights conferred on them & schemes constituted, under this
Code1461.

iii. Constitution of the State Building Workers Welfare Boards

Every State Government shall constitute a Board called “the (State Name)” Building
and Other Construction Worker’s Welfare Board for exercising the powers granted,
and for performing those functions as assigned to it1462.

The Building & Other Construction Workers Welfare Board shall be counted in the
category of corporate body having continuous succession with general seal. The
Board can sue by other and be sued by its name1463.

The Building Workers Welfare Board shall have equal number of members from State
Government, Building Workers and Employers. At least one woman member is
required in the Board1464.

The Building Workers Welfare Board is required to perform the functions as

mentioned below:

1459
The Code on Social Security, 2020 (Code 36 of 2020), s. 2(19)
1460
The Code on Social Security, 2020 (Code 36 of 2020), s. 2(20)
1461
The Code on Social Security, 2020 (Code 36 of 2020), s. 2(78)
1462
The Code on Social Security, 2020 (Code 36 of 2020), s. 7(1)
1463
The Code on Social Security, 2020 (Code 36 of 2020), s. 7(2)
1464
The Code on Social Security, 2020 (Code 36 of 2020), s. 7(3)

281
  To extend death & other disability schemes and benefits to beneficiaries or his
dependants
 Releasing pension payments to the beneficiaries over and above the age of sixty
years
 Payment of premium relating to Group Insurance Scheme for members
 Introduce educational plans for benefitting children of members beneficiaries
 To release grant for meeting medical expenditures for taking care of major
ailments of member beneficiaries or their dependants
 Granting maternity benefit to the female member beneficiaries
 Framing skill growth, awareness plans & schemes for member beneficiaries
 Provide hostel facilities for the beneficiaries
 Formulating and moulding welfare scheme for the construction & building
workers
 Improvement of welfare measures & facilities as imparted by the Central
Government1465.

The State Government may constitute one or more than one advisory committee to
advice upon such matters arising due to administration of this Code with regard to
building workers and advice on other relevant matters1466.

iv. Social Security Schemes for Construction Workers

 Employees Provident Fund

Employees Provident Fund Scheme
It is provided in the Act that the Central Government may by way of issuing
notification frame a scheme called the Employee’s Provident Fund Scheme.
Accordingly, Provident Fund shall be constituted for employees or any class of
employees and indicate those establishments to which the Employees Provident
Fund scheme shall apply1467.

 Employees Pension Scheme for providing:

1465
The Code on Social Security, 2020 (Code 36 of 2020), s. 7(6)
1466
The Code on Social Security, 2020 (Code 36 of 2020), s. 7(7)
1467
The Code on Social Security, 2020 (Code 36 of 2020), s. 15

282
  Superannuation & Retirement Pension, Pension for Permanent Total
Disablement to the employees working in the specified establishments
 Pension for Widow or widower, Children Pension, Pension for Orphan
payable in favour of the beneficiaries of such employees
 Nominee Pension1468

 Employee’s Deposited Linked Insurance Scheme

The scheme is for granting Life Insurance advantages to the employees1469.

 Employees State Insurance Corporation

Contribution Rate

The Employees State Insurance Act, 1948 under the Ministry of Labour &
Employment covers employees earning wages up to Rs. 21,000/-. In the insurance
scheme, employer contributes on monthly basis @ 3.25% of gross wages earned by
Insured Person. On the other hand, Insured Person contributes 0.75% on gross wages
earned. The maximum wage ceiling covering employees for contribution is Rs.
21,000/-1470.

Every employee working in an establishment shall be provided insurance in electronic

way or otherwise1471. The Insured Persons, their family dependants or other persons as
covered shall be eligible to get all the benefits and advantages as explored below1472:

 Periodical payments released in favour of an Insured Person for his sickness duly
certified by a qualified medical practitioner appointed as the Corporation may, by
the regulations & rules, specify in this behalf (Sickness Benefit)1473.
 Periodical payments granted to an Insured Person i.e. a woman in case of
miscarriage or confinement or sickness due to pregnancy, premature birth of child,
confinement or miscarriage. Such sickness must be certified to by an authority as
Corporation specify by the regulations (Maternity Benefit)1474.

1468
The Code on Social Security, 2020 (Code 36 of 2020), s. 15(1)
1469
The Code on Social Security, 2020 (Code 36 of 2020), s. 15(1)
1470
Tax Guru, available at: https://taxguru.in/corporate-law/esic-rates-w-e-f-01-07-2019.html (last
visited on September 13, 2021)
1471
The Code on Social Security, 2020 (Code 36 of 2020), s. 28(1)
1472
The Code on Social Security, 2020 (Code 36 of 2020), s. 32
1473
The Code on Social Security, 2020 (Code 36 of 2020), s. 32(1)(a)
1474
The Code on Social Security, 2020 (Code 36 of 2020), s. 32(1)(b)

283
  Periodical payments released to an Insured Person who is suffering from
disablement due to an employment injury suffered by him as an employee and
such disablement must be certified by an authority as specified by the rules &
regulations (Disablement Benefit)1475.
 Periodical payments to be given to dependants of an Insured Person who has been
died due to employment injury suffered by him as an employee (Dependants'
Benefit)1476.
 Medical Treatment and attending an Insured Persons (Medical Benefit)1477
 Payment to be released in favour of the eldest surviving member of family of an
expired Insured Person. The payment is released towards the expenditure incurred
on the funeral of the deceased Insured Person. If an Insured Person not having a
family or was not residing with family at the time when death happened, then
payment shall be released to the person actually paid the funeral expenditure of
the deceased Insured Person (Funeral expenses) 1478.
An amount of Rs.15,000/- (Rupees Fifteen Thousand Only) is payable by the
Corporation to the dependents or to that person who actually performs last rites &
ceremonies1479.

v. Gratuity

The Payment of Gratuity is covered under the Code on Social Security, 2020 1480 .
Gratuity becomes the right of an employee on the completion of or termination of his
employment when he has worked for continuous period not less than five years.
Gratuity is payable:
a) On employee’s Superannuation
b) On retirement
c) After resignation from service
d) On employee’s death
e) Disablement due to accident or Disease
f) On termination of period of contract under fixed term employment

1475
The Code on Social Security, 2020 (Code 36 of 2020), s. 32(1)(c)
1476
The Code on Social Security, 2020 (Code 36 of 2020), s. 32(1)(d)
1477
The Code on Social Security, 2020 (Code 36 of 2020), s. 32(1)(e)
1478
The Code on Social Security, 2020 (Code 36 of 2020), s. 32(1)(f)
1479
Employees State Insurance Corporation, available at: https://www.esic.nic.in/information-benefits
(last visited on September 13, 2021)
1480
The Code on Social Security, 2020 (Code 36 of 2020), Chapter V

284
 g) On happening of such event as the Central Government notify1481

The requirement of complete continuous service of five years is not necessary if the
termination of the employment is due to death or disablement of employee or when
fixed term employment expires or such event the Central Government may notify1482.

In case employee dies, gratuity shall be paid to his nominee. If, no nomination is
made by a deceased employee, gratuity shall be paid to his legal heirs. Moreover, if
such nominee or legal heirs are minor, the minor’s share shall be submitted with the
competent authority as the appropriate Government notify. The amount deposited
shall be invested for benefitting minor with the Bank or Financial Institution, as per
the order of the appropriate Government, till the time minor attains majority1483.

vi. Maternity Benefit

Maternity Benefit is an important social security facility for women workers. It is

provided that no employer shall willingly compel woman to work in establishment
during the duration of 06 (six) weeks following immediately w.e.f. day of her delivery
of child, medical termination of pregnancy or miscarriage1484.

Similarly, woman is prohibited from work in any industry, undertaking or

establishment during the six weeks of period following instantly w.e.f. the day of her
delivery of child, medical termination of pregnancy or miscarriage1485.

Without any prejudice to the provisions contained in section 62 of the Code on Social
Security Code, 2020, no pregnant woman shall in any situation be required by
employer to perform any work of the following nature during the period i.e. 01 (one)
month immediately preceding the 06 (six) weeks period, before date of probable
delivery and any duration through the above stated time period of 06 (six) weeks for
which the concerned pregnant woman does not get leave of absence under section
621486. Work of following nature is prohibited:

 The work of an arduous nature

1481
The Code on Social Security, 2020 (Code 36 of 2020), s. 53
1482
The Code on Social Security, 2020 (Code 36 of 2020), s. 53(1)
1483
The Code on Social Security, 2020 (Code 36 of 2020), s. 53(1)
1484
The Code on Social Security, 2020 (Code 36 of 2020), s. 59(1)
1485
The Code on Social Security, 2020 (Code 36 of 2020), s. 59(2)
1486
The Code on Social Security, 2020 (Code 36 of 2020), s. 59(4)

285
 Work involving long standing hours
 Work that is likely to interfere with her pregnancy condition or interfere with the
normal development of foetus
 Work likely to cause her miscarriage
 Work that adversely affect her health1487

It is hereby explained that the term "any work of arduous nature" means that work
involving or needs strenuous and tiring efforts or is difficult in nature.

 Right to Payment of Maternity Benefit

Payment of maternity benefit is mandatory right of every woman. It is provided that

subject to the other relevant terms, every employed woman shall be eligible to &
employer also statutorily be responsible for making the maternity benefit payment at
average daily wage rate for the time period of her actual absence i.e. to say, the time
period instantly preceding her delivery day and any time period instantly following
the delivery day1488.

It is explained that "the average daily wage" meaning thereby average of wages of
woman payable in her favour for that days when performed work through the time
period of 03 (three) calendar months immediately preceding w.e.f. the date on which
she absents herself due to maternity, but subject to the minimum wages rates as
revised or fixed under the Code on Wages, 20191489.

Payment of maternity leave shall be made to that woman who has worked in an
industrial unit, undertaking or establishment for a minimum period of eighty days in
the twelve months preceding instantly the date of probable delivery1490. For the period
of 80 (eighty) days, the days when woman was laid off or on paid holiday as granted
under any law during the time period of twelve months preceding immediately the
expected date of her delivery of a child shall be taken into account.

1487
The Code on Social Security, 2020 (Code 36 of 2020), s. 59(3)
1488
The Code on Social Security, 2020 (Code 36 of 2020), s. 60
1489
The Code on Social Security, 2020 (Code 36 of 2020), s. 60(1)
1490
The Code on Social Security, 2020 (Code 36 of 2020), s. 60(2)

286
The maximum period of maternity benefit shall be twenty six weeks. From these
twenty six weeks, not more than 08 (eight) weeks shall precede w.e.f. the expected
date of delivery1491.

It is required that the maximum period of maternity benefit which a woman is entitled
to having two or more than two surviving children shall be 12 (twelve) weeks. From
these 12 (twelve) weeks, not more than 06 (six) weeks shall precede w.e.f. the date of
probable delivery1492. It is further provided that where a woman expires during this
period, the payable maternity benefit shall be only up to the days & including her
death day1493.

It is also provided that if a woman delivered of a child dies during process of delivery
or during the time period following immediately the date of delivery for which
woman is eligible for availing maternity benefits and leaving behind the child,
consequently, the employer shall definitely be liable for paying maternity benefit for
the entire period. But if the child too dies during said period, then, maternity benefit
will definitely be due and payable for the days up to & including date on which child
dies1494. The child includes a stillborn child 1495.

A woman legally adopting a child below three months of age or a commissioning

mother shall also be eligible to maternity benefit for a duration of 12 (twelve) weeks
w.e.f. the date on which child has been handed over to adopting or commissioning
mother, as per the case1496.

It is also provided that if the responsibility as allocated to a woman in establishment is

of such a nature that work from home is possible, she may be allowed by the
employer after availing of maternity leave / maternity benefit for such duration and on
such terms & conditions as mutually agreed between the employer and the woman1497.

 Notice of Claim for Maternity Benefit & Payment Thereof

1491
The Code on Social Security, 2020 (Code 36 of 2020), s. 60(3)
1492
The Code on Social Security, 2020 (Code 36 of 2020), proviso to s. 60(3)
1493
The Code on Social Security, 2020 (Code 36 of 2020), proviso to s. 60(3)
1494
Ibid.
1495
The Code on Social Security, 2020 (Code 36 of 2020), s. 60(3)
1496
The Code on Social Security, 2020 (Code 36 of 2020), s. 60(4)
1497
The Code on Social Security, 2020 (Code 36 of 2020), s. 60(5)

287
Any woman employed and eligible for payment of maternity benefit as discussed
above may submit notice in written manner in prescribed form to her employer,
giving details that maternity benefit and other relevant amount to which she is eligible
may be released and credited in her favour or to nominated person & that she shall not
perform work in any undertaking, unit or industrial establishment during the duration
for which she get payment of maternity benefit 1498.

In the case of a pregnant woman, the said notice shall indicate the date w.e.f. which
she will not perform work or remain absents from work. But the date must not be
earlier than eight weeks w.e.f. the date of her expected delivery1499. Any notice of
pregnancy of pregnant may be given at the very earliest after her delivery1500.

When a notice is received by the employer, permission shall be granted to a woman to

remain absent from work during that period for which she will receive the payment of
maternity benefit 1501.

The maternity benefit amount for duration preceding the probable date delivery shall
definitely be paid and credited in advance in favour of woman by the employer on
producing prescribed proof regarding her pregnancy, and the payment for the
consequent period shall be released in favour of the woman by the employer within
time period of forty-eight hours on producing prescribed proof that child has been
delivered by the woman1502.

Failure to submit notice as required above shall not disentitle a woman from getting
maternity benefit or other related amount. An Inspector-cum-Facilitator may after
receiving an application from concerned woman or on his own motion, may order to
release the payment of maternity benefit or related amount in favour of woman within
specified period1503.

 Payment of Maternity Benefit to Nominee of Deceased Woman

1498
The Code on Social Security, 2020 (Code 36 of 2020), s. 62(1)
1499
The Code on Social Security, 2020 (Code 36 of 2020), s. 62(2)
1500
The Code on Social Security, 2020 (Code 36 of 2020), s. 62(3)
1501
The Code on Social Security, 2020 (Code 36 of 2020), s. 62(4)
1502
The Code on Social Security, 2020 (Code 36 of 2020), s. 62(5)
1503
The Code on Social Security, 2020 (Code 36 of 2020), s. 62(6)

288
If a woman having entitlement to maternity benefit or other related amount and dies
before accepting maternity benefit or related amount or employer is liable to pay
maternity benefit upto & including the day of her death, the due amount shall be paid
to the nominee as declared by the woman and in case of no nominee, the amount shall
be released in favour of her legal heirs1504.

 Payment of Medical Bonus

Every woman having entitlement to maternity benefit shall also be eligible for
receiving from employer payment of medical bonus amounting to rupees three
thousand five hundred or that amount as the Central Government may notify, if no
pre-natal confinement & post-natal care is given free of cost by the employer 1505.

 Leave for Miscarriage

Leave for miscarriage is also guaranteed for female workers. In case of medical
termination of pregnancy or miscarriage, a woman shall be eligible for leave with
wages at the same rate as of maternity benefit for six weeks period instantly following
the day of medical termination of pregnancy or miscarriage1506. Proof for the same is
required as the Central Government may prescribe.

In situation of tubectomy operation, a woman shall be eligible for leave with wages at
the same rate as of maternity benefit for a time period of two weeks following
instantly the day on which tubectomy operation happened1507. Proof for the same is
required as the Central Government may prescribe.

A woman suffering illness arising due to pregnancy, premature birth of child,

delivery, medical termination of pregnancy or miscarriage shall be eligible to receive
leave with wages at the same rate as of maternity benefit for a period of maximum
one month1508. This benefit is granted in addition to absence period allowed in her
favour under section 62 and under section 65(1) as discussed above. Proof for the
same is required as the Central Government may prescribe.

1504
The Code on Social Security, 2020 (Code 36 of 2020), s. 63
1505
The Code on Social Security, 2020 (Code 36 of 2020), s. 64
1506
The Code on Social Security, 2020 (Code 36 of 2020), s. 65(1)
1507
The Code on Social Security, 2020 (Code 36 of 2020), s. 65(2)
1508
The Code on Social Security, 2020 (Code 36 of 2020), s. 65(3)

289
 Nursing Breaks

Nursing break is also guaranteed under the code for female workers for taking care of
child. Every woman who joins her duties and start work after delivering child shall be
given in her daily routine work two breaks for nursing the child that must be of a
prescribed duration as decided by the Central Government. This is granted with a
purpose for nursing the child till the age of fifteen months of that child1509. These
breaks are allowed in addition to already allowed rest interval.

 Crèche Facility

Employer is required to provide crèche facility for children of female workers in the
establishment. Every establishment in which 50 (Fifty) employees are working shall
arrange and maintain the crèche facility within prescribed distance as the Central
Government may decide. Crèche facility may be provided separately or with common
facilities in the establishment 1510. Employer is required to allow woman to visit the
crèche four times in a day including the rest intervals as allowed to her1511.

It is option available with an establishment that common crèche facility can be

arranged by the Central & the State Government, Municipality or any other private
organisation or by any NGO i.e. Non Government Organisation or that organisation or
any group having capacity to pool their resources for arranging and maintainging
common crèche facility in the best manner1512.

Every establishment shall inform and intimate in written manner & in electronic form
to every woman when she joins the establishment regarding advantages & benefits as
can be availed under the chapter of Maternity Benefit of the Code on Social Security,
20201513.

 Dismissal for Absence during Pregnancy

When a woman worker absent herself from work according to the statutory
provisions, it shall be deemed as unlawful if employer discharges or dismisses her
during or due to such absence or issue notice of discharging or dismissing from
1509
The Code on Social Security, 2020 (Code 36 of 2020), s. 66
1510
The Code on Social Security, 2020 (Code 36 of 2020), s. 67(1)
1511
The Code on Social Security, 2020 (Code 36 of 2020), proviso to s. 67(1)
1512
The Code on Social Security, 2020 (Code 36 of 2020), s. 67(1)
1513
The Code on Social Security, 2020 (Code 36 of 2020), s. 67(2)

290
service on that day w.e.f. which the notice will expire in the period of such absence,
or disadvantage her by varying the service conditions1514.

Provided that the dismissal or discharge of a woman during any time in her
pregnancy, if woman but for that dismissal or discharge would have been entitled for
getting medical bonus or maternity benefit under the chapter of Maternity Benefit of
the Code on Social Security, 2020 shall not results in depriving her from availing
maternity benefit or medical bonus 1515.

It is further provided that if the dismissal is for committing any gross misconduct as
the Central Government may prescribe, the employer in written manner communicate
to the woman clearly depriving her from the right of medical bonus or maternity
benefit or both1516.

Any woman who is deprived of medical bonus or maternity benefit or both or

dismissed or discharged may within time period of sixty days w.e.f. the date on which
order of deprivation or dismissal or discharge is communicated and issued to her,
submit appeal to the competent authority. The decision of competent authority
entertaining such appeal taking into account the facts of the case shall be final1517.

 No Deduction from Wages in Certain Cases

It is provided that no deduction shall be made from the normal & usual daily wages of
a woman eligible for maternity benefit shall be made due to the reason that the work
assigned by virtue of section 59 of the Code on Social Security, 2020 and nursing
breaks for caring the child as allowed under section 66 of the Code on Social Security,
20201518.

 Forfeiture of Maternity Benefit

A woman who works at other place for earning remuneration during that period in
which the employer has permitted her to remain absent so that she may avail
maternity benefits has to forfeit her right of maternity benefit for such period1519.

1514
The Code on Social Security, 2020 (Code 36 of 2020), s. 68(1)
1515
The Code on Social Security, 2020 (Code 36 of 2020), proviso to s. 68(1)
1516
The Code on Social Security, 2020 (Code 36 of 2020), proviso second to s. 68(1)
1517
The Code on Social Security, 2020 (Code 36 of 2020), s. 68(2)
1518
The Code on Social Security, 2020 (Code 36 of 2020), s. 69
1519
The Code on Social Security, 2020 (Code 36 of 2020), s. 70

291
  Duties of Employer

Employer is duty bound to exhibit an abstract of Maternity Benefit Chapter of the

Code on Social Security, 2020 and the related rules in the local language or that
language as understood by workers in a conspicuous place in every part of
establishment where women workers are employed1520.

vii. Employees Compensation

 Reports of Fatal Accidents & Serious Bodily Injuries

Competent Authorities are appointed for the enforcement of statutes. Employer or the
responsible person on behalf of employer is statutorily required to send a notice to the
competent authority regarding happening of any accident resulting in either serious
bodily injury or death of employee or worker. The notice must be submitted within
seven days w.e.f. the date of occurrence of such accident1521.

If specified by the State Government, the person bound to send a notice may in
alternate of sending accident report to the competent authority has option to submit
the report to the authority to whom he is statutorily bound to give the notice1522.

It is explained that "serious bodily injury" is that injury which involves or probably
involving the permanent injury to any limb, permanent loss of usage of any limb, or
the permanent injury to or losing the hearing or sight, or fracture of any limb, or the
injury that enforces an injured person to remain absent from work more than twenty
days of period.

Other class of premises may be covered by the State Government through notification
and may also specify the responsible persons to send the accident report to the
competent authority1523. These provisions shall not be applicable to establishments
covered under the ceiling of the Employee’s State Insurance Corporation1524.

 Employer’s Liability for Compensation

1520
The Code on Social Security, 2020 (Code 36 of 2020), s. 71
1521
The Code on Social Security, 2020 (Code 36 of 2020), s. 73(1)
1522
The Code on Social Security, 2020 (Code 36 of 2020), proviso to s. 73(1)
1523
The Code on Social Security, 2020 (Code 36 of 2020), s. 73(2)
1524
The Code on Social Security, 2020 (Code 36 of 2020), s. 73(3)

292
If due to any accident or an occupational disease or employment disease as contained
in the Third Schedule 1525 of the Code on Social Security, 2020, an employee who

1525
The Code on Social Security, 2020 (Code 36 of 2020), The Third Schedule
[See Sections 2(51), 36(1), 74(1), (3), (5), 131(5), 132 and 152(2)]
List Of Occupational Diseases
Sr. Occupational disease Employment
No.
(1) (2) (3)
PART A
1. Infectious and parasitic diseases contracted in an (a) All work involving exposure
occupation where there is a particular risk of contamination to health or laboratory work;
(b) All work involving exposure
to veterinary work;
(c) Work relating to handling
animals, animal carcasses, part
of such carcasses, or
merchandise which may have
been contaminated by animals or
animal carcasses;
(d) Other work carrying a
particular risk of contamination.
2. Diseases caused by work in compressed air All work involving exposure to
the risk concerned.
3. Diseases caused by lead or its toxic compounds All work involving exposure to
the risk concerned.
4. Poisoning by nitrous fumes All work involving exposure to
the risk concerned.
PART B
1. Diseases caused by phosphorus or its toxic All work involving exposure to the risk
compounds concerned.
2. Diseases caused by mercury or its toxic All work involving exposure to the risk
compounds concerned.
3. Diseases caused by benzene or its toxic All work involving exposure to the risk
homologues. concerned.
4. Diseases caused by nitro and amido toxic All work involving exposure to the risk
derivatives of benzene or its homologues. concerned.
5. Diseases caused by chromium or its toxic All work involving exposure to the risk
compounds. concerned.
6. Diseases caused by arsenic or its toxic All work involving exposure to the risk
compounds. concerned.
7. Diseases caused by radioactive substances and All work involving exposure to the action
ionising radiations of radioactive substances or ionising
radiations.
8. Primary epithelomatous cancer of the skin All work involving exposure to the risk
caused by tar, pitch, bitumen, mineral oil, concerned.
anthracene, or the compounds, products of
residues of these substances.
9. Diseases caused by the toxic halogen derivatives All work involving exposure to the risk
of hydrocarbons (of the aliphatic and aromatic concerned.
series).
10. Diseases caused by the carbon disulphide All work involving exposure to the risk
concerned.
11. Occupational cataract due to infra-red radiations. All work involving exposure to the risk
concerned.
12. Diseases caused by manganese or its toxic All work involving exposure to the risk
compounds concerned.

293
suffered personal wound and injury arising out of & in the employment course, then it
shall be the liability of his employer to make payment of compensation as legally
directed under this code1526.
Provided that the employer shall never be responsible & liable:

13. Skin diseases caused by physical, chemical or All work involving exposure to the risk
biological agents not included in other items. concerned.
14. Hearing impairment caused by noise All work involving exposure to the risk
concerned.
15. Poisoning by dinitrophenol or a homologue or All work involving exposure to the risk
by substituted dinitrophenol or by the salts of concerned.
such substances
16. Diseases caused by beryllium or its toxic All work involving exposure to the risk
compounds concerned.
17. Diseases caused by cadmium or its toxic All work involving exposure to the risk
compounds concerned.
18. Occupational asthama caused by recognised All work involving exposure to the risk
sensitising agents inherent to the work process. concerned.
19. Diseases caused by flourine or its toxic All work involving exposure to the risk
compounds concerned.
20. Diseases caused by nitroglycerine or other All work involving exposure to the risk
nitroacid esters concerned.
21. Diseases caused by alcohols and ketones. All work involving exposure to the risk
concerned.
22. Diseases caused by asphyxiants: carbon All work involving exposure to the risk
monoxide, and its toxic derivatives, hydrogen concerned.
sulfide
23. Lung cancer and mesotheliomas caused by All work involving exposure to the risk
asbestos. concerned.
24. Primary neoplasm of the epithelial, lining of the All work involving exposure to the risk
urinary bladder or the kidney or the ureter. concerned.
25. Snow blindness in snow bound areas All work involving exposure to the risk
concerned.
26. Diseases due to effect of heat in extreme hot All work involving exposure to the risk
climate concerned.
27. Disease due to effect of cold in extreme cold All work involving exposure to the risk
climate concerned.
Part C
1. Pneumoconioses caused by sclerogenic mineral All work involving exposure to the risk
dust (silicosis, anthraoosilicosis asbestosis) and concerned.
silico-tuberculosis provided that silicosis is an
essential factor in causing the resultant
incapacity or death
2. Bagassosis All work involving exposure to the risk
concerned.
3. Bronchopulmonary diseases caused by the All work involving exposure to the risk
cotton, flax hemp and sisal dust (Byssinosis) concerned.
4. Extrinsic allergic alveelitis caused by the All work involving exposure to the risk
inhalation of organic dusts concerned.
5. Bronchopulmonary diseases caused by hard All work involving exposure to the risk
metals concerned.
6. Acute Pulmonary oedema of high altitude All work involving exposure to the risk
concerned.
1526
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(1)

294
a) If injury caused to an employee does not results in the partial or total disablement
of the concerned employee for more than three days of period1527.
b) With regard to an injury, not causing fatality or permanent total disablement of
employee caused due to an accident directly attribute able to1528:
i. the employee was under the influence of any drugs or drink at the time of
accident, or
ii. the employee wilfully disobeyed the orders as given expressly with an object
to secure the safety of workers & employees, or
iii. the employee wilfully disregarded or remove safety guards or devices which
are provided for the ensuring safety of employee.

An accident or an occupational disease as discussed above in section 74(1) shall be

deemed to be arising out of & in the course of employment notwithstanding that
employee concerned is at the time of happening of accident or at the time when
contracts occupational disease, acting by breaking the legal provisions as applicable to
him, or disobeying orders of his employer or acting without receiving any instructions
from his employer side, if:

a. such accident or contracting of such occupational disease would have been

deemed so to have arisen had the act not done by contravening as said above or
without receiving any instructions from his employer, as per the case, and
b. the act is done in connection with or for the purpose of employer's business or
trade1529.

If an employee engaged in employment i.e. in the construction, repair, maintenance or

demolition of building which is specially designed to be or has been more than height
of one storey above the ground or 12 (twelve) feet or more from the level of ground to
the apex of roof or embankment or any dam which is 12 (twelve) feet or more than 12
(twelve) feet in height from lowest to the highest point or any bridge, road, canal or
tunnel or any quay, wharf, sea-wall or marine work comprise of any moorings of
ships; or employees employed in setting up, repairing, maintaining or taking down
any telephone or telegraph line or post or any overhead cable or electric line or

1527
The Code on Social Security, 2020 (Code 36 of 2020), proviso to s. 74(1)(a)
1528
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(1)(b)
1529
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(2)

295
standard or post or fittings & fixtures for the same; or employees employed in the
construction, repair, working or demolition of aerial ropeway, pipeline, canal or sewer
contracts any disease as mentioned in the Third Schedule1530 of the Code on Social
Security, 2020 being an occupational disease particularly to that employment while in
the service of employer and working for a continuous period of i.e. not less than six
months, in that case, the disease shall be considered or deemed to be an injury arise by
accident and unless contrary is proved, accident shall be considered / deemed to have
arisen out of & in the course of employment 1531.

An accident happened with an employee while travelling from his residence to the
employment place for performing duty or from the employment place to his
residential complex after completing duty, shall be deemed and considered to have
arose out of & in the employment course if proper relationship is established among
the place, time and situations and circumstances of happening of accident during
employment1532.

The Central or the State Government after issuing a notification, with minimum three
months of notice of its intention & will to do so, may add or modify any description
of employment to those employments viz., in the construction, repair, maintenance or
demolition of building which is specially designed to be or has been more than height
of one storey above the ground or 12 (twelve) feet or more from the level of ground to
the apex of roof or embankment or any dam which is 12 (twelve) feet or more than 12
(twelve) feet in height from lowest to the highest point or any bridge, road, canal or
tunnel or any quay, wharf, sea-wall or marine work comprise of any moorings of
ships; or employees employed in setting up, repairing, maintaining or taking down
any telephone or telegraph line or post or any overhead cable or electric line or
standard or post or fittings & fixtures for the same; or employees employed in the
construction, repair, working or demolition of aerial ropeway, pipeline, canal or sewer
and occupational diseases as specified in the Third Schedule 1533 & shall specify in the
case of added or modified employments, the diseases which shall be considered &
deemed to be occupational diseases particularly to those employments respectively &

1530
Supra note 1525 at 292
1531
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(3)
1532
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(4)
1533
Supra note 1525 at 292

296
after that the provisions of section 74(2) as discussed above shall be applicable, in the
case the Central Government issues notification, within territories to which range of
this Code extends or, in case the State Government issues notification, within the
State the code declares such diseases to be the occupational diseases particularly to
those employments1534.

Save as provided by section 74(2), 74(3) and 74(4) as explored above, employee shall
not be entitled to any compensation in respect of any accident or disease unless such
accident or disease is directly caused due to an injury specifically due to accident or
disease arising out of & in the course of employment 1535.

Nothing contained herein shall be deemed and considered to confer any right on an
employee for compensation with respect to any accident or disease if suit for damages
in a Civil Court has been instituted against the employer or other responsible person
in respect of disease or accident. No suit for claiming damages shall be maintainable
in any Court of Law with regard to such accident or disease
a) If employee concerned has instituted a claim for availing compensation with
respect to disease or accident before a competent authority
b) If an employee and his employer made an agreement regarding the payment of
compensation for the accident or diseases according to the legal provisions of
Chapter VII of the Code on Social Security, 20201536.

 Amount of Compensation
Subject to the provisions of the Chapter VII (Employee’s Compensation), the
compensation amount shall be
a) Where death is resulting from an injury, an amount equal to 50% (fifty per cent)
of monthly wages of deceased employee multiplied with the relevant factor or that
amount as the Central Government may notify from time to time, whichever
amount will be more1537.
b) Where permanent total disablement is resulting from an injury, an amount equal to
60% (sixty per cent) of monthly wages of injured employee multiplied with the

1534
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(5)
1535
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(6)
1536
The Code on Social Security, 2020 (Code 36 of 2020), s. 74(7)
1537
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(1)(a)

297
 relevant factor or that amount as the Central Government may notify from time to
time, whichever will be more1538.

Provided that the Central Government may through notification enhance the
compensation amount as said above1539.

It is hereby explained that as it is discussed above, the "relevant factor", related to an

employee means that factor as mentioned in the column no. 3 of the Sixth
Schedule1540 of the Code on Social Security, 2020 related to the factors against the

1538
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(1)(b)
1539
The Code on Social Security, 2020 (Code 36 of 2020), proviso to ss. 76(1)(a), 76(1)(b)
1540
The Code on Social Security, 2020 (Code 36 of 2020), The Sixth Schedule
[See sections 75, 76(1) and 152(1)]
Factors For Working Out Lump Sum Equivalent Of Compensation Amount In Case Of Permanent
Disablement And Death
Completed years of age on the last birthday of the employee Factors
immediately preceding the date on which the compensation
fell due
(1) (2) (3)
Not more than 16 228.54
17 227.49
18 226.38
19 225.22
20 224.00
21 222.71
22 221.37
23 219.95
24 218.47
25 216.91
26 215.28
27 213.57
28 211.79
29 209.92
30 207.98
31 205.95
32 203.85
33 201.66
34 199.40
35 197.06
36 194.64
37 192.14
38 189.56
39 186.90
40 184.17
41 181.37
42 178.49
43 175.54
44 172.52
45 169.44
46 166.29
47 163.07

298
equivalent entry in column no. 2 thereof, indicating the number of years, which are
the similar to the completed years of the employee’s age on his last gone birthday
preceding immediately that date on which the compensation becomes due1541.

c) where permanent partial disablement is resulting from the injury1542

i. in case of an injury as indicated in Part II of the Fourth Schedule 1543 ,
compensation would be payable as in cases related to permanent total

48 159.80
49 156.47
50 153.09
51 149.67
52 146.20
53 142.68
54 139.13
55 135.56
56 131.95
57 128.33
58 124.70
59 121.05
60 117.41
61 113.77
62 110.14
63 106.52
64 102.93
65 or more 99.37

1541
The Code on Social Security Act, 2020 (Code 36 of 2020), Explanation to ss. 76(1)(a), 76(1)(b)
1542
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(1(c)
1543
The Code on Social Security, 2020 (Code 36 of 2020), The Fourth Schedule
[See sections 2(55), (56), 76(1) and 152(1)]
PART I
List Of Injuries Deemed To Result In Permanent Total Disablement
Serial Description of Injury Percentage of loss of
No. earning capacity
(1) (2) (3)
1. Loss of both hands or amputation at higher sites 100
2. Loss of a hand and a foot 100
3. Double amputation through leg or thigh, or amputation through 100
leg or thigh on one side and loss of other foot
4. Loss of sight to such an extent as to render the claimant unable to 100
perform any work for which eye-sight is essential
5. Very severe facial disfigurement 100
6. Absolute deafness 100
PART II
LIST OF INJURIES DEEMED TO RESULT IN
PERMANENT PARTIAL DISABLEMENT
Serial Description of Injury Percentage of loss of
No. earning capacity
(1) (2) (3)
1. Amputation through shoulder joint 90
2. Amputation below shoulder with stump less than [20.32 Cms.] 80
from tip of acromion

299
3. Amputation form [20.32 Cms.] from tip of acromion to less than 70
[11.43 Cms.] below tip of olecranon
4. Loss of a hand or of the thumb and four fingers of one hand or 60
amputation from [11.43 Cms.] below tip of olecranon
5. Loss of thumb 30
6. Loss of thumb and its metacarpal bone 40
7. Loss of four fingers of one hand 50
8. Loss of three fingers of one hand 30
9. Loss of two fingers of one hand 20
10. Loss of terminal phalanx of thumb 20
11. Guillotine amputation of tip of thumb without loss of bone 10
Amputation cases-lower limbs
12. Amputation of both feet resulting in end bearing stumps 90
13. Amputation through both feet proximal to the metatarso- 80
phalangeal joint
14. Loss of all toes of both feet through the metatarso-phalangeal joint 40
15. Loss of all toes of both feet proximal to the proximal inter- 30
phalangeal joint
16. Loss of all toes of both feet distal to the proximal inter-phalangeal 20
joint
17. Amputation at hip 90
18. Amputation below hip with stump not exceeding [12.70 Cms.] in 80
length measured from tip of great trenchanter
19. Amputation below hip with stump exceeding [12.70 Cms.] in 70
length measured from tip of great trenchanter but not beyond
middle thigh
20. Amputation below middle thigh to [8.89 Cms.] below knee 60
21. Amputation below knee with stump exceeding [8.89 Cms.] but not 50
exceeding [12.70 Cms.]
22. Amputation below knee with stump exceeding [12.70 Cms.] 50
23. Amputation of one foot resulting in end bearing 50
24. Amputation through one foot proximal to the metatarso- 50
phalangeal joint
25. Loss of all toes of one foot through the metatarso-phalangeal joint 20
Other injuries
26. Loss of one eye, without complications, the other being normal 40
27. Loss of vision of one eye, without complications or disfigurement 30
of eye-ball, the other being normal
28. Loss of partial vision of one eye 10
Loss of—
A-Fingers of right or left hand
Index finger
29. Whole 14
30. Two phalanges 11
31. One phalanx 9
32. Guillotine amputation of tip without loss of bone 5
Middle finger
33. Whole 12
34. Two phalanges 9
35. One phalanx 7
36. Guillotine amputation of tip without loss of bone 4
Ring or little finger
37. Whole 7
38. Two phalanges 6
39. One phalanx 5
40. Guillotine amputation of tip without loss of bone 2

300
 disablement as is mentioned therein on such percentage as being
percentage of the earning capacity loss caused due to that injury; and
ii. in case, an injury is not indicated in the Fourth Schedule1544, compensation
would be payable on such percentage as in the case relevant to permanent
total disablement as is in proportion to earning capacity loss (as medical
practitioner assess) permanently caused by injury.

It is hereby explained that where the same accident causes one or more than one
injuries, the payable compensation amount shall be aggregated but not more than the
amount which would be due for payment if permanent total disablement resulted from
the injuries1545.

Secondly, it is further hereby explained that in calculating the loss of capacity to earn,
the medical practitioner shall pay due attention & regard to the percentage of loss of
capacity to earn related to different injuries as mentioned in the Fourth Schedule1546 of
the Code on Social Security, 20201547.

d) where injury caused is resulting into temporary disablement, whether it is total or

partial, a half-monthly payment of amount similar to 25% (twenty-five per cent)
of employee’s monthly wages, to be paid according to the provisions of section
76(4) as discussed below1548.

B-Toes of right or left foot

Great toe
41. Through metatarso-phalangeal joint 14
42. Part, with some loss of bone 3
Any other toe
43. Through metatarso-phalangeal joint 3
44. Part, with some loss of bone 1
Two toes of one foot, excluding great toe
45. Through metatarso-phalangeal joint 5
46. Part, with some loss of bone 2
Three toes of one foot, excluding great toe
47. Through metatarso-phalangeal joint 6
48. Part, with some loss of bone 3
Four toes of one foot, excluding great toe
49. Through metatarso-phalangeal joint 9
50. Part, with some loss of bone 3

1544
Ibid.
1545
The Code on Social Security, 2020 (Code 36 of 2020), Explanation I to s. 76(1)(c)
1546
Supra note 1543 at 299
1547
The Code on Social Security, 2020 (Code 36 of 2020), Explanation II to s. 76(1)(c)
1548
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(1)(d)

301
Despite the provisions as available under section 76(1) as expressed above, while
fixing the compensation amount to be released in favour of an employee with respect
to an accident happened outside India, the appropriate authority shall take into
consideration the compensation amount, if any, awarded in favour of such employee
according to the law of the country where an accident is happened and amount shall
be reduced as fixed by him by the compensation amount awarded to an employee
according to the law of that country1549.

The monthly wages relating to an employee for the purposes of section 76(1) as
discussed above may be specified by the Central Government by way of notification
as considers mandatory1550.

The half-monthly payment as referred under section76 (1)(d) and explained above
shall be payable on the 16th (sixteenth) day1551
i. w.e.f. the date of disablement of employee where such disablement exists for a
period of 28 (twenty eight) days or more1552, or
ii. after the waiting period of three days expires w.e.f. the date of disablement,
where the said disablement exists and lasts for a time period of less than 28
(twenty eight) days; and after that ½ (half) monthly during disablement or
during 05 (five) years period, whichever is shorter1553.

It is provided that the amount of any allowance or payment which has been received
by the employee from his employer by mode of compensation during the disablement
period prior to the receiving such lump sum or first half-monthly payment, as per the
case, the deduction shall accordingly be made from any half-monthly payments or
lump sum to which the employee is eligible. Such allowance or payment which has
been received by the employee from his employer for his medical treatment & care
shall not be considered to be an allowance or payment received by him by mode of
compensation1554. It is also provided that no half-monthly payment shall exceed the
amount (if any) by which half the sum of the employee’s monthly wages before the

1549
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(2)
1550
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(3)
1551
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(4)
1552
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(4)(i)
1553
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(4)(ii)
1554
The Code on Social Security, 2020 (Code 36 of 2020), Proviso (a) to s. 76(4)

302
occurrence of accident exceeds half the amount of that wages earned by him after the
happening of accident1555.

The actual medical expenses incurred by an employee shall be reimbursed by his

employer in his favour for treatment & care of injuries caused during the tenure of
employment1556.

On disablement ceases before the due date of falling of half-monthly payment, the
payable amount with respect to that half-month shall be a sum which is proportionate
to the time period of disablement in that half-month1557.

If due to the injury, employee dies, the employer has to deposit, in addition to the
compensation under section 76(1) as discussed above, with the competent authority an
amount not less than Rs. 15,000/- (Rupees Fifteen Thousand only) or that amount as
the State Government may prescribe, for releasing the payment of the same in favour
of the employee’s eldest surviving dependant towards the expenses incurred on the
funeral of concerned employee. If deceased employee was not residing with his
dependant when death happens or not having any dependant, then, payment shall be
released in favour of the person by whom expenses are actually incurred1558.

It is provided that the Central Government, by publication of notification may

enhance the above said amount from time to time1559.
 Compensation to be Paid When Due and Damages for Default
Employee has right to receive compensation under section 76 as discussed above from
his employer at the very earliest when it falls due 1560.

In cases where liability for compensation is not accepted by the employer to the extent
it is claimed, he shall be mandatorily bound to release provisional payment upto that
extent of liability as accepted by him. The employer shall deposit such payment with

1555
The Code on Social Security, 2020 (Code 36 of 2020), Proviso (b) to s. 76(4)
1556
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(5)
1557
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(6)
1558
The Code on Social Security, 2020 (Code 36 of 2020), s. 76(7)
1559
The Code on Social Security, 2020 (Code 36 of 2020), Proviso to s. 76(7)
1560
The Code on Social Security, 2020 (Code 36 of 2020), s. 77(1)

303
the competent authority or in favour of employee, as per the case, without any
prejudice to employee’s right to make any further claim1561.

Where any employer fails to pay the due compensation within one month of time
period w.e.f. the due date, the competent authority shall1562:

a) Issue directions that the employer shall pay amount of the arrears in addition to
the interest as the Central Government may prescribed on the due amount and
b) If in his view, no available explanation for the undue delay, directions may be
issued to the employer for making payment of further sum not more than 50%
(fifty per cent) of amount of arrears by mode of damages, in addition to the arrears
amount and interest thereon. But, employer must be given a reasonable
opportunity to show cause why such directions not be passed 1563. However, the
interest & the damages payable shall be released in favour of the employee or his
dependant, as the per case1564.

Power to Take from Employers Statements related to Fatal Accidents

Where a competent authority got information from any reliable source that an
employee in the establishment died due to an accident i.e. arising out of & in the
course of employment, a notice via mode of registered post or if possible, in
electronic manner a notice to the employer compelling him to submit, within a period
of 30 (thirty) days of the serving notice, a detailed statement in proper approved form
by the State Government, mentioning the reasons because of which employee’s death
happened, and particularly specifying whether in employer’s opinion, he is or is not
responsible to paying compensation for death. A copy of notice shall also be sent to
the employee’s dependants by the competent authority1565.

If the employer is liable to deposit the amount of compensation, the same shall be
deposited within a period of thirty days w.e.f. the date of serving notice1566.

1561
The Code on Social Security, 2020 (Code 36 of 2020), s. 77(2)
1562
The Code on Social Security, 2020 (Code 36 of 2020), s. 77(3)
1563
The Code on Social Security, 2020 (Code 36 of 2020), Proviso to s. 77(3)
1564
The Code on Social Security, 2020 (Code 36 of 2020), s. 77(4)
1565
The Code on Social Security, 2020 (Code 36 of 2020), s. 88(1)
1566
The Code on Social Security, 2020 (Code 36 of 2020), s. 88(2)

304
 If employer is not liable to deposit the amount of compensation, he shall state the
grounds for disclaiming liability1567.

Where the liability is disclaimed by an employer, the competent authority, after

conducting inquiry may communicate to any of the deceased employee’s dependants,
that they may prefer a compensation claim, and inform them other relevant
information1568.

Where in competent authority came to know that deceased employee’s dependants

are not in such a position to arrange an advocate for filing compensation claim, the
competent authority has power to provide an advocate for them, from advocate’s
panel employed and maintained by the State Government 1569.

viii. Social Security & Cess with Regard to Building & Other Construction
Workers

 Levy and Collection of Cess

The provision lays down that the cess shall be levied and collected with an object to
provide social security & welfare of building and construction workers at the rate not
more than 2% (two per cent), but not less than 1% (one per cent) of the cost incurred
on construction by an employer, as specified from time to time by the Central
Government by way of notification1570.
a) It is hereby explained that, the cost incurred on construction shall not comprises
the cost of land and any compensation which is paid or due for payable in favour
of an employee or related kin under Chapter VII i.e. Social Security & Cess with
respect to Building & Other Construction Workers of the Code on Social Security,
2020.

The cess levied as stated above shall be collected from employer taking responsibility
for completion of building or other related construction work. The cess shall be levied
in a manner & at such time, comprising deduction at source with regard to a building
or construction work of a public sector undertaking or Government or advance

1567
The Code on Social Security, 2020 (Code 36 of 2020), s. 88(3)
1568
The Code on Social Security, 2020 (Code 36 of 2020), s. 88(4)
1569
The Code on Social Security, 2020 (Code 36 of 2020), s. 88(5)
1570
The Code on Social Security, 2020 (Code 36 of 2020), s. 100(1)

305
collection by a local authority, where approval for building or construction work by
that local authority as the State Government requires or the Central Government
prescribe1571.

The local authority shall deposit the proceeds of the collected cess to the concerned
State Building Workers Welfare Board as the Central Government may prescribe1572.

The cess leviable including advance cess may be collected at a uniform rate on the
basis of the involved amount or sum related to building or construction work1573.

 Registration for making Building Workers as Beneficiaries

Every building worker above the age of eighteen years, but not crossed the age of
sixty years, engaged and employed in any building or construction work for minimum
of ninety days during the previous twelve months shall be registered as a beneficiary
in the manner as the Central Government may prescribed1574.

 Cessation as a Beneficiary
A building worker availing benefits shall not be treated as beneficiary on attaining
sixty years of age or when he leave the employment i.e. in building or construction
work for a minimum of ninety days in one year1575.

While calculating the ninety days of period, any period of absence shall be excluded
from the building or construction work because of personal injury suffered by
building worker due to accident arising out of & in the course of employment 1576.
Apart from the above stated conditions, if an individual had been a beneficiary for
minimum three years continuous period immediately before attaining the sixty years
of age, then, he shall be entitled to receive benefits as the Central Government may
prescribe1577.

It is hereby explained that for calculating the period of three years as stated above as a
beneficiary having registration with the State Building Workers Welfare Board, the

1571
The Code on Social Security, 2020 (Code 36 of 2020), s. 100(2)
1572
The Code on Social Security, 2020 (Code 36 of 2020), s. 100(3)
1573
The Code on Social Security, 2020 (Code 36 of 2020), s. 100(4)
1574
The Code on Social Security, 2020 (Code 36 of 2020), s. 106
1575
The Code on Social Security, 2020 (Code 36 of 2020), s. 107(1)
1576
The Code on Social Security, 2020 (Code 36 of 2020), Proviso to s. 107(1)
1577
The Code on Social Security, 2020 (Code 36 of 2020), s. 107(2)

306
 period shall be included for which an individual had been a beneficiary having
registration with any other State Board immediately before submitting his registration
with the State Building Workers Welfare Board1578.

 Fund for Building & Other Construction Workers (BOCW) Welfare

There shall be constituted a fund by a Building Workers Welfare Board to be known
as the BOCW Fund. The credit shall be:
 an amount of cess levied
 any loans and grants released by the Central Government to the Building Workers
Welfare Board
 sums and amounts received by the Building Workers Welfare Board from the
sources as the Central Government may decide1579.

D. The Occupational Safety, Health and Working Conditions Code, 2020 (No. 37
of 2020)

i. An Overview

The Second National Commission on Labour had submitted its report on

“Occupational Safety, Health and Working Conditions of the Workers” in the month
of June of the year 2002. Pursuing the recommendations of the Commission, the need
was felt to enact a Central Legislation, namely the Occupational Safety, Health and
Working Conditions Code, 2020, which include in itself the essential features of the
thirteen enactments related to building and other construction workers, contract
labour, inter-state migrant workmen etc., The Code provides broader legislative
framework to secure just & humane conditions of work with flexibility & to provide
enabling provisions for making regulations & rules in tune with the emerging
technologies 1580 . The Occupational Safety, Health and Working Conditions Code,
2020 is newly enacted piece of legislation to merge & update the labour laws related

1578
The Code on Social Security, 2020 (Code 36 of 2020), Explanation to s. 107(2)
1579
The Code on Social Security, 2020 (Code 36 of 2020), s. 108(1)
1580
The Indian Labour Conference, 39th Session, Report of the Second National Commission on
Labour with emphasis on Rationalization of Labour Laws and Unorganized Labour National
Commission on Labour (NCL), (Ministry of Labour and Employment, Government of India, October
2003)

307
 with the occupational safety, health, well being & conditions of working of workers
engaged in an industrial undertaking or establishment1581.

ii. Important Terms

As the research work is relevant with building and other construction industry, so it is
necessary to discuss certain terms.

 So firstly the "building or construction work" meaning thereby repairs, alteration,

construction, maintaining or demolishing roads, tramways, streets, buildings,
railways, irrigation, airfields, embankment, navigation and drainage operations
and works, works related to controlling floods (comprising works of storm water
drainage), generating, transmitting and distributing power, water works
(comprising water distributing channels), gas & oil installations, internet towers,
electric lines, television, overseas communications and telegraph, dams, radio,
wireless, telephone, reservoirs, canals, tunnels, watercourses, viaducts, bridges,
aqua-ducts, towers, pipelines, cooling towers, transmission towers and other
operations & activities as the Central Government specify by way of notification,
excluding building or construction work related to any mine or factory and the
building or construction operations, activities & works where such work &
activity is initiated for own personal residential purposes and the total cost
incurred does not exceed an amount of Rupees Fifty Lakhs or amount higher than
this & employing and engaging exceeding number of workers as the Appropriate
Government notify from time to time 1582.
 The code defines the term "building worker" as a person who is employed to
perform any skilled work, semi-skilled work, highly skilled work or unskilled
work, clerical work , technical work or manual and activity for hire or reward,
whether the conditions & terms of that employment are implied or expressed, with
respect to any building work or construction operations, except any person
particularly engaged in supervisory, administrative or managerial capacity1583.
 The term "contract labour" meaning thereby worker he is hired to work in
establishment and work on contractor’s payrolls informing or without informing
principal employer’s and includes also workers migrating from other States of

1581
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), Preamble
1582
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 2(1)(h)
1583
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 2(1)(i)

308
 India except a worker who is working regularly on contractor’s payrolls for
establishment and that occupation is totally governed by terms & conditions
mutually agreed and receives increments by revision in his pay-scale, advantages
& benefits of social security and other welfare advantages in establishment
guaranteed by the law1584.
 The word "contractor" means a person generating results for establishment except
supplying goods, articles, by giving employment to contractual labour or
contractor is that person supplying contractual workers in industrial
establishments for doing work just like human resources. Sub-contractor is also
included1585.
 As per the Occupational Safety, Health and Working Conditions Code, 2020 the
term "establishment" means a place of working where any trade, industry,
business, occupation or manufacturing is carried on and employing ten or more
workers or newspaper establishment, motor transport undertaking, audio-video
production, plantation or building and other construction work employing ten or
more workers or any factory employing ten or more workers1586.
 An important term which is defined by the Code is "industry" that means any
systematic work and activity carried on by way of co-operation between an
employer & workers (whether worker is engaged by principal employer directly
or via or through any outsourcing agency, comprising also in its sphere a
contractor) for producing, further supplying or again further distributing services,
articles, goods with an aim of satisfying human wishes or wants (not that wishes
or wants which are just religious or spiritual in its nature) whether capital is
invested or not with an object of carrying on such work to produce profits or
gains, except those institutions the management of which is with the organisations
specifically in any social services, charitable services or philanthropic
activities1587.

iii. Employer’s and Employee’s Duties etc.,

1584
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s.
2(1)(m)
1585
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 2(1)(n)
1586
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 2(1)(v)
1587
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s.
2(1)(zd)

309
 Every employer shall:

 ensure that workplace is hazard free and must not cause injury or any occupational
diseases to the employees1588.
 comply with the standards related to occupational safety and health1589.
 provide annual health examination without any cost1590.
 provide & maintain safe and risk free working environment1591.
 ensure proper disposal of toxic waste. It also includes e-waste1592.
 appointment letter must be issued to each & every employee1593.
 ensure that no charge is recovered from any employee for maintaining safety &
health at workplace including conducting medical tests & examination and
investigating for detecting occupational diseases1594.

Without any prejudice, the duties of an employer shall specifically for building or
other construction includes:

 maintain systems of work that are safe and without any kind of risk to health1595.
 the arrangements for ensuring safety and reducing health risks in connection with
the usage, handling, storing and transporting articles, goods and substances1596.
 the provision of such communication, information, training, instruction and
supervision as required to ensure the health & safety of all workforce at work1597.

iv. Notice of Certain Accident

Where in an establishment, an accident happens causing death or any bodily injury

due to which injured person is prevented from doing work for forty eight hours or
more than forty eight hours instantly after the accident, then the employer is duty
bound to send notice to appropriate authorities within prescribed time period1598.

1588
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(a)
1589
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(b)
1590
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(c)
1591
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(d)
1592
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(e)
1593
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(f)
1594
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(1)(g)
1595
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(2)(a)
1596
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(2)(b)
1597
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 6(2)(c)
1598
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 10(1)

310
 Where a notice is given, the authority shall make an inquiry within two months of
time period w.e.f. the date of receiving the notice. The Chief Inspector-cum-
Facilitator may authorize the Inspector-cum-Facilitator to conduct an inquiry in the
absence of appropriate authority1599.

v. Notice of dangerous occurrences

If any dangerous occurrence causing any bodily injury or disability happens in an

establishment, a notice will be sent by the employer to the appropriate authorities1600.

vi. Notice of Certain Diseases

If any disease as specified in the Third Schedule 1601 contracts by any worker, the
employer is duty bound to send notice to appropriate authorities in the prescribed

1599
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 10(2)
1600
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 11
1601
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), The
Third Schedule
[See section 12(1)]
List of Notifiable Diseases:
1. Lead poisoning, including poisoning by any preparation or compound of lead or their sequelae.
2. Lead-tetra-ethyle poisoning.
3. Phosphorus poisoning or its sequelae.
4. Mercury poisoning or its sequelae.
5. Manganese poisoning or its sequelae.
6. Arsenic poisoning or its sequelae.
7. Poisoning by nitrous fumes.
8. Carbon bisulphide poisoning.
9. Benzene poisoning, including poisoning by any of its homologues, their nitro or amido
derivatives or its sequelae.
10. Chrome ulceration or its sequelae.
11. Anthrax.
12. Silicosis.
13. Poisoning by halogens or halogen derivatives of the hydrocarbons of the aliphatic series.
14. Pathological manifestations due to
(a) radium or other radio-active substances;
(b) X-rays.
15. Primary epitheliomatous cancer of the skin.
16. Toxic anaemia.
17. Toxic jaundice due to poisonous substances.
18. Oil acne or dermatitis due to mineral oils and compounds containing mineral oil base.
19. Byssionosis.
20. Asbestosis.
21. Occupational or contact dermatitis caused by direct contact with chemicals and paints. These
are of two types, that is, primary irritants and allergic sensitizers.
22. Noise induced hearing loss (exposure to high noise levels).
23. Beriyllium poisoning.
24. Carbon monoxide poisoning.
25. Coal miners' pneumoconiosis.
26. Phosgene poisoning.
27. Occupational cancer.
28. Isocyanates poisoning.

311
 form. If any medical practitioner attending a person employed in an establishment is
believed to be suffering from the disease as mentioned in the Third Schedule, a report
shall be send by the medical practitioner to the Chief Inspector-cum-Facilitator’s
office in prescribed form failing which punishment in form of penalty shall be levied
which may definitely be extended to Rupees Ten Thousand1602.

vii. Duties of Employee

Every employee working in an establishment shall:

 take reasonable and proper care for the health & safety at the workplace
 comply with the health and safety requirements
 cooperate with employer with respect to statutory obligations
 if any unsafe & unhealthy situation comes to his notice, report to his employer
 not intentionally interfere with any appliance or misuse at workplace1603.

viii. Standards on Occupational Safety & Health

 The occupational safety & health standards for workplaces i.e. building & other
construction work can be declared by the Central Government1604. Standards shall
be related to protecting workers from hazards1605.
 Medical examination to detect occupational diseases. It also covers diseases even
after employment of worker ceases, if suffering from an occupational disease that
arises out of employment or in the course of the employment1606. The safety &
health measures as required specifically for the conditions at the workplaces
related to building & other construction work 1607 . Matters in the second
schedule1608 on which Central Government can declare standards on Occupational
Safety and Health for workplace 1609.

29. Toxic nephritis.

1602
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), s. 12
1603
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), s. 13
1604
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), s. 18(1)
1605
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), s.
18(2)(b)
1606
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), s.
18(2)(c)
1607
The Occupational Safety, Health and Working Conditions Code 2020 (Code 37 of 2020), s.
18(2)(e)
1608
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), The
Second Schedule
[See section 18(2)(f)]

312
List of matters:
(1) fencing of machinery;
(2) work on or near machinery in motion;
(3) employment of adolescents on dangerous machines;
(4) striking gear and devices for cutting off power;
(5) self acting machines;
(6) casing of new machinery;
(7) prohibition of employment of women, children and adolescent near cotton openers;
(8) hoists and lifts;
(9) lifting machines, chains, ropes and lifting tackles;
(10) revolving machinery;
(11) pressure plant;
(12) floors, stairs and means of access;
(13) pits, sumps, openings in floors and other similar indentation of area;
(14) safety officers;
(15) protection of eyes;
(16) precautions against dangerous fumes, gases, etc.;
(17) precautions regarding the use of portable electric light;
(18) explosive or inflammable dust, gas, and other like dusts or gases;
(19) safety committee;
(20) power to require specifications of defective parts or tests of stability;
(21) safety of buildings and machinery;
(22) maintenance of buildings;
(23) prohibition in certain cases of danger;
(24) notice in respect of accidents;
(25) court of inquiry in case of accidents;
(26) safety management in plantation;
(27) the general requirement relating to the construction, equipments and maintenance for the
safety of working places on shore, ship, dock, structure and other places at which any dock work is
carried on;
(28) the safety of any regular approaches over a dock, wharf, quay or other places which dock
worker have to use for going for work and for fencing of such places and projects;
(29) the efficient lighting of all areas of dock, ship, any other vessel, dock structure or working
places where any dock work is carried on and of all approaches to such places to which dock
workers are required to go in the course of their employment;
(30) adequate ventilation and suitable temperature in every building or an enclosure on ship where
dock workers are employed;
(31) the fire and explosion preventions and protection;
(32) safe means of access to ships, holds, stagings, equipment, appliances and other working
places;
(33) the construction, maintenance and use of lifting and other cargo handling appliances and
services, such as, pallets containing or supporting loads and provision of safety appliances on
them, if necessary;
(34) the safety of workers employed in freight container terminals of other terminals for handing
unitized cargo;
(35) the fencing of machinery, live electrical conductors, steam pipes and hazardous openings;
(36) the construction, maintenance and use of staging;
(37) the rigging and use of ship's derricks;
(38) the testing, examination, inspection and certification as appropriate of' loose gears including
chains and ropes and of slings and other lifting devices used in the dock work;
(39) the precautions to be taken to facilitate escape of workers when employed in a hold, bin,
hopper or the like or between decks of a hold while handing coal of other bulk cargo;
(40) the measures to be taken in order to prevent dangerous methods of' working in the stacking,
unstacking, stowing and unstowing of cargo or handling in connection therewith;
(41) the handling of dangerous substances and working, in dangerous or harmful environments and
the precautions to be taken in connection with such handling;
(42) the work in connection with cleaning, chipping, painting, operations and precautions to be
taken in connection with such work;

313
(43) the employment of persons for handling cargo, handling appliances, power operated batch
covers or other power operated ship's equipment such as, door in the hull of a ship, ramp,
retraceable car deck or similar equipment or to give signals to the drivers of such machinery;
(44) the transport of dock workers;
(45) the precautions to be taken to protect dock workers against harmful effects of excessive noise,
vibration and air pollution at the work place;
(46) protective equipment and protective clothing;
(47) the sanitary, washing and welfare facilities;
(48) the medical supervision;
(49) the ambulance rooms, first aid and rescue facilities and arrangements for the removal of dock
workers to the nearest place of treatment;
(50) the investigation of occupational accidents, dangerous occurrences and diseases, specifying
such diseases and the forms of' notices, the persons and authorities to whom, they are to be
furnished, the particulars to be contained in them and the time within which they are to be
submitted;
(51) the submission of statement of accidents, man-days lost, volume of cargo handled and
particulars of dock workers.
52) the safe means of access to, and the safety of, any working place, including the provision of
suitable and sufficient scaffolding at various stages when work cannot be safely done from the
ground or from any part of a building or from a ladder or such other means of support;
(53) the precautions to be taken in connection with the demolition of the whole or any substantial
part of a building or other structure under the supervision of a competent person for the avoidance
of danger from collapse of any building or other structure while removing any part of the framed
building or other structure by shoring or otherwise;
(54) the handling or use of explosive under the control of competent persons so that there is no
exposure to the risk of injury from explosion or from flying material;
(55) the erection installation, use and maintenance of transporting equipment, such as locomotives,
trucks, wagons and other vehicles and trailers and appointment of competent persons to drive or
operate such equipment;
(56) the erection, installation, use and maintenance of hoists, lifting appliances and lifting gear
including periodical testing and examination and heat treatment where necessary, precautions to be
taken while raising or lowering loads, restrictions on carriage of persons and appointment of
competent persons on hoists or other lifting appliances;
(57) the adequate and suitable lighting of every workplace and approach thereto, of every place
where raising or lowering operations with the use of hoists, lifting appliances or lifting gears are in
progress and of all openings dangerous to building workers employed;
(58) the precautions to be taken to prevent inhalation of dust, fumes, gases or vapours during any
grinding, cleaning, spraying or manipulation of any material and steps to be taken to secure and
maintain adequate ventilation of every working place or confined space;
(59) the measures to be taken during stacking or unstacking, stowing or unstowing of materials or
goods or handling in connection therewith;
(60) the safeguarding of machinery including the fencing of every fly-wheel and every moving
part of prime mover and every part of transmission or other machinery, unless it is in such a
position or of such construction as to be safe to every worker working only of the operations and
as if it were securely fenced;
(61) the safe handling and use of plant, including tools and equipment operated by compressed air;
(62) the precaution to be taken in case of fire;
(63) the limits of weight to be lifted or moved by workers;
(64) the safe transport of workers to or from any workplace by water and provision of means for
rescue from drowning;
(65) the steps to be taken to prevent danger to workers from live electric wires or apparatus
including electrical machinery and tools and from overhead wires;
(66) the keeping of safety nets, safety sheets and safety belts where the special nature or the
circumstances of work render them necessary for the safety of the workers;
(67) the standards to be complied with regard to scaffolding, ladders and stairs, lifting appliances,
ropes, chains and accessories, earth moving equipment and floating operational equipments;
(68) the precautions to be taken with regard to pile driving, concrete work, work with hot asphalt,
tar or other similar things, insulation work, demolition operations, excavation, underground
construction and handling materials;

314
ix. Safety Committee and Safety Officers

The Appropriate Government may constitute a Safety Committee consisting

employer’s and worker’s representatives employed in establishment in such a way
that number of worker’s representatives shall not be less employer’s
representatives1610.
In every establishment where building or construction work is going on or in progress
and wherein two hundred and fifty or more workers are employed it is mandatory to
appoint safety officers with prescribed qualifications and they perform the prescribed
duties1611.

x. Health, Safety & Working Conditions

It is mandatory for an employer to maintain health, safety & working conditions for
all the employees as the Central Government may prescribe. The following matters in
may be made mandatory by the Central Government.
 Cleanliness, hygienic conditions;
 Proper ventilation, humidity and maintaining temperature;
 Dust free environment, safe environment from fumes, noxious gas & impurities;
 Adequate standard of humidification;
 Potable, neat and clean drinking water;
 adequate standards for preventing overcrowding and to arrange sufficient space
for employees;
 adequate lighting facilities;
 sufficient and separate latrine & urinal accommodation facilities for females,
males & transgender employees and special arrangement for hygiene;

(69) the safety policy, that is to say, a policy relating to steps to be taken to ensure the safety and
health of the building workers, the administrative arrangements therefore and the matters
connected therewith, to be framed by the employers and contractors for tile operations to be
carried on in a building or other construction work;
(70) emergency standards for enforcement of suitable standards in respect of hazardous processes
in a factory;
(71) the maximum permissible threshold limits of exposure of chemical and toxic substances in
manufacturing processes (whether hazardous or otherwise) in any factory;
(72) lightning; and
(73) any other matter which the Central Government considers under the circumstance for better
working condition for safety at the workplace.
1609
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s.
18(2)(f)
1610
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 22(1)
1611
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 22(2)

315
  best facilities for properly treating effluents and wastes and any other relevant
arrangement1612.

xi. Welfare Facilities

It is whole responsibility of employer extend & maintain welfare facilities viz.,

 Adequate, separate & suitable washing facilities for males and females;
 Separate bathing places, locker rooms for males, females & transgender
employees;
 place of keeping clothes not to be worn while working and for drying wet clothes;
 sitting facilities for all the employees who have to work continuously in a standing
position;
 Canteen facility for employees in an establishment wherein one hundred or more
are ordinarily employed;
 sufficient number of first-aid cupboards or boxes with necessary material and
ready during working hours; and
 other welfare measures for decent standard of employee’s life1613.

The matters as given below may also be prescribed by the Government:

 ambulance room in every establishment where building or other construction work
is in process and wherein five hundred or more workers are ordinarily employed;
 medical facilities at the halting stations and operating centres. Arranging
raincoats, uniforms and similar amenities to protect workers from rainy season,
cold weather;
 suitablerest rooms and separate shelters to be used by male, female & transgender
workers. Lunch-room must be provided where more than fifty workers;
 appointment of welfare officer wherein two hundred and fifty or more employees
are employed with requisite qualification, duties and conditions of service;
 employer to provide temporary living accommodation at free of cost within the
worksite or at the very nearest possible for building workers engaged & employed
by him.

1612
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 23
1613
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 24(1)

316
  payment of expenses by the principal employer to the contractor for providing
living accommodation, where the building or construction work is performed by a
contractor1614.
xii. Building Or Other Construction Workers

 Prohibition to Employ Persons particularly in Building operations or

Construction Works

A deaf person or person of defective vision or person suffering from giddiness are
prohibited to perform work of building operations or at construction site as it may
involve accident risk1615.

1614
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 24(2)
1615
The Occupational Safety, Health and Working Conditions Code, 2020 (Code 37 of 2020), s. 78

317