Compliances under Labour Laws

Compliances under Labour Laws

Factories Act, 1948

Applicability

Any premises wherein 10 or more persons with the aid of power or 20 or more workers are/were without aid of power are working on any day in the preceding 12 months, wherein manufacturing process is being carried on.

Registration & Renewal of Factories

By Chief Inspector of Factories (Section 6)

Health of Employees

According Section 11 to 20, employer to ensure health of workers pertaining to

  •  Cleanliness
  • Disposal of wastes and effluents
  • Ventilation and temperature
  • Dust and fume
  • Artificial humidification
  • Overcrowding
  • Lighting
  • Drinking water
  • Latrines and urinals
  • Spittons.

Safety Measures to be taken by Employer

According Section 21 to 41, Keeping in mind the safety of employees, employer shall comply the provisions of the Act w.r.t following

  • Fencing of machinery
  • Work on or near machinery in motion
  • Employment of young persons on dangerous machines
  • Striking gear and devices for cutting off power
  • Self-acting machines
  • Casing of new machinery
  • Prohibition of employment of women and children near cotton-openers
  • Hoists and lifts
  • Lifting machines, chains, ropes and lifting tackles
  • Floors, stairs and means of access
  • Excessive weights
  • Protection of eyes etc.

Working Hours, Spread Over & Overtime of Adults (Section 51, 54 to 56, 59 & 60)

Employer shall ensure that

  • Weekly working hours of any employee shall not be more than 48.
  • Daily working hours of any employee shall not be than 9 hours.
  • Intervals for rest shall be at least ½ hour on working for 5 hours.
  • Total Spread over time shall not be more than 10½ hours.
  • No Overlapping shifts
  • Extra wages for overtime shall be double than normal rate of wages.
  • Women shall not work before 6 AM and beyond 7 PM.

Welfare Measures

(Section 42 to 50)

Employer shall provide following facilities

  • Washing facilities
  • Facilities for storing and drying clothing
  • Facilities for sitting
  • First-aid appliances – one first aid box not less than one for every 150 workers.
  • Canteens when there are 250 or more workers.
  • Shelters, rest rooms and lunch rooms when there are 150 or more workers
  • Creches when there are 30 or more women workers.
  • Welfare office when there are 500 or more workers.

Employment of Young Persons (Section 67 to 77)

  •  Prohibition of employment of young children e.g. 14 years.
  • Non-adult workers to carry tokens e.g. certificate of fitness.
  • Working hours for children not more than 4 ½ hrs. And not permitted to work during night shift.

Annual Leave with Wages (Section 79)

Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of—

  •   if an adult, one day for every 20 days of work performed by him during the previous calendar year;
  • if a child, one day for every 15 days of work performed by him during the previous calendar year.

Accumulation of leave for 30 days allowed.

 

Offences and Penalties

Offence

Penalties

For contravention of the Provisions of the Act or Rules

Imprisonment upto 2 years or fine upto Rs.1,00,000 or both

On Continuation of contravention

Rs.1000 per day

On contravention of Chapter IV pertaining to safety or dangerous operations.

Not less than Rs. 25000 in case of death.
Not less than Rs. 5000 in case of serious injuries

Subsequent contravention of some provisions

Imprisonment upto 3 years or fine not less than
Rs. 10, 000 which may extend to Rs. 2, 00,000

Obstructing Inspectors

Imprisonment upto 6 months or fine upto Rs. 10,000 or both.

Wrongful disclosing result pertaining to results of analysis.

Imprisonment upto 6 months or fine upto Rs. 10,000 or both.

For contravention of the provisions of Sec.41B, 41C and 41H pertaining to compulsory disclosure of information by occupier, specific responsibility of occupier or right of workers to work imminent danger.

Imprisonment upto 7 years with fine upto Rs. 2,00,000 and on continuation fine @ Rs. 5, 000 per day.

Imprisonment of 10 years when contravention continues for one year.

image

Minimum Wages Act, 1948

Applicability

Only in case of Scheduled Employment

Fixation of Minimum Rates of Wages (Section 3)

Under the Act, government has power to fix the minimum wages payable to employees. Further it is the duty of government to review, at such intervals as it may think fit, such intervals not exceeding five years, the minimum rates of wages so fixed and revise the minimum rates, if necessary.

Government can also fix Minimum Wages for

  • Time work
  • Piece work at piece rate
  • Piece work for the purpose of securing to such employees on a time work basis
  • Overtime work done by employees for piece work or time rate workers.

Minimum Rates of Wages (Section 4)

Minimum wages fixed by government under the Act may consist of a basic rate of wages with or without the cost of living allowance (DA), and the cash value of the concessions  in respect of supplies of essential commodities at concession rates, where so authorized.

Payment of Minimum Rates of Wages (Section 12)

According to Section 12, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages without any deductions except as may be authorized within such time and subject to such conditions as may be prescribed

Fixing hours for normal working days (Section 13)

According to Section 13, for the purpose of minimum wages, government may

  • fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals;
  • provide for a day of rest in every period of 7 days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest;
  • provide for payment for work on a day of rest at a rate not less than the overtime rate.

Overtime (Section 14)

According to Section 14, where an employee,

  • whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage-period as may be prescribed,

works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law, whichever is higher.

Wages of worker who works for less than normal working day.

(Section 15)

If an employee

  • whose minimum rate of wages has been fixed under this Act by the day

works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day, he shall be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day, if his failure to work is caused by the omission of the employer to provide him with work.

Wages for two or more classes of work (Section 16)

Where an employee does two or more classes of work to each of which a different minimum rate of wages is applicable, the employer shall pay to such employee in respect of the time respectively occupied in each such class of work, wages at not less than the minimum rate in force in respect of each such class.

Claims (Section 20)

For claims

  •  arising out of payment of less than the minimum rates of wages or
  • in respect of the payment of remuneration for days of rest or for work done on such days or
  • in respect of wages at the overtime rate

the employee himself, or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority, may apply to Authority appointed by government in this behalf within 6 months from the date on which the minimum wages or other amount became payable.

Compensation (Section 20)

The payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding 10 times the amount of such excess.

(Min Wages less Amount actually paid) + upto 10 times of (Min Wages less Amount actually paid)

Maintenance of registers and records (Section 18)

  • Register of Fines – Form I
  • Annual Returns – Form III,
  • Register for Overtime – Form IV,
  • Muster Roll – Form V,
  • Register of Wages – Form X,
  • Wages slip – Form XI,

Registers shall be preserved for three year after the date on which last entry was made.

 

Offences and Penalties

Offence

Penalties

For paying less than minimum rates of wages

Imprisonment upto 6 months or with fine upto Rs. 500/-

For contravention of any provisions pertaining to fixing hours for normal working day etc.

Imprisonment upto 6 months or with fine upto Rs. 500/-

 IMAGE

Payment of Wages Act, 1936

The Payment of Wages Act, 1936 was enacted with a view to ensuring that wages payable to employed persons covered by the Act were disbursed by the employers within the prescribed time limit and that no deductions other than those authorised by law were made by them.

Applicability

It applies to the payment of wages

  • to persons employed in any factory
  • to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a sub-contractor, by a person fulfilling a contract with a railway administration and
  • to persons employed in an industrial or other specified establishment

This Act applies to wages payable to an employed person in respect of a wage period if such wages for that wage period do not exceed Rs. 24,000.

Who shall be responsible for payment (Section 3)

  • Employer
  • In case of Factory – Manager of the factory
  • In case of in industrial or other establishments – Person responsible to the employer for the supervision and control of the industrial or other establishment
  • In case of railways – Railway administration and the railway administration has nominated a person in this behalf for the local area concerned;
  • In the case of contractor – A person designated by such contractor who is directly under his charge; and
  • In any other case – A person designated by the employer as a person responsible for complying with the provisions of the Act;

Fixation of wage-periods
(Section 4)

Every person responsible for the payment of wages under section 3 shall fix periods (in this Act referred to as wage-period) in respect of which such wages shall be payable.
No wage-period shall exceed one month.

Time of payment of wages(Section 5)

The wages of every person employed upon or in

  • any railway, factory or industrial or other establishment upon or in which less than 1000 persons are employed, shall be paid before the expiry of the 7th day,
  • any other railway, factory or industrial or other establishment, shall be paid before the expiry of the 10th day, after the last day of the wage-period in respect of which the wages are payable

Wages to be paid in current coin or currency notes (Section 6)

All wages shall be paid in current coin or currency notes or in both.
Provided that the employer may, after obtaining the written authorisation of the employed person, pay him the wages either by cheque or by crediting the wages in his bank account.

Deductions which may be made from wages (Section 7)

The wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act.

This Section has prescribed a long list of permissible deductions w.r.t fine, deduction for amenities and services supplied by the employer, advances paid, over payment of wages, loan, granted for house-building or other purposes, income tax payable, in pursuance of the order of the Court, PF contributions, cooperative societies, premium for Life Insurance, contribution to any fund constituted by employer or a trade union, recovery of losses, ESI contributions etc.

Fines on Employees by Employers (Section 8)

  • No fine shall be imposed on any employed person save in respect of such acts and omissions on his part as the employer, with the previous approval of the appropriate Government or of the prescribed authority, may have specified by notice under sub-section (2).
  • A notice specifying such acts and omissions shall be exhibited in the prescribed manner on the premises in which the employment is carried on or in the case of persons employed upon a railway (otherwise than in a factory), at the prescribed place or places.
  • No fine shall be imposed on any employed person until he has been given an opportunity of showing cause against the fine, or otherwise, than in accordance with such procedure as may be prescribed for the imposition of fines.
  • The total amount of fine which may be imposed in any one wage-period on any employed person shall not exceed an amount equal to 3% of the wages payable to him in respect of that wage-period.
  • No fine shall be imposed on any employed person who is under the age of 15 years.
  • No fine imposed on any employed person shall be recovered from him by instilments or after the expiry of 90 days from the day on which it was imposed.
  • Every fine shall be deemed to have been imposed on the day of the act or omission in respect of which it was imposed.
  • All fines and all realisations thereof shall be recorded in a register to be kept by the person responsible for tine payment of wages under section 3 in such form as may be prescribed; and all such realisations shall be applied only to such purposes beneficial to the persons employed in the factory or establishment as are approved by the prescribed authority

Deduction for absence from duty (Section 9)

  • Deductions may be made only on account of the absence of an employed person from the place or places where, by the terms of his employment, he is required to work, such absence being for the whole or any part of the period during which he is so required to work.
  • The amount of such deduction shall in no case bear to the wages payable to the employed person in respect of the wage-period for which the deduction is made a large proportion than the period for which he was absent bears to the total period, within such wage-period, during which by the terms of his employment, he was required to work.
    But, if 10 or more employed persons acting in concert absent themselves without due notice and without reasonable cause, such deduction from any such person may include such amount not exceeding his wages for 8 days as may by any such terms be due to the employer in lieu of due notice.

Deductions for damage or loss (Section 10)

 A deduction shall not exceed the amount of the damage or loss caused to the employer by the neglect or default of the employed person.

A deduction shall not be made until the employed person has been given an opportunity of showing cause against the deduction.

All such deductions and all realisations thereof shall be recorded in a register to be kept by the person responsible for the payment of wages.

Deductions for services rendered (Section 11)

A deduction shall not be made from the wages of an employed person, unless the house-accommodation amenity or service has been accepted by him, as a term of employment or otherwise, and such deduction shall not exceed an amount equivalent to the value of the house accommodation amenity or service supplied

Offences and Penalties (Section 20)

Offence

Penalties

Whoever being responsible for the payment of wages to an employed person contravenes any of the provisions of any of the following sections, namely,

  • section 5 except sub-section (4) thereof,
  • section 7,
  • section 8 except sub-section (8) thereof,
  • section 9,
  • section 10 except sub-section (2) thereof, and
  • sections 11 to 13 (related to deductions)

With fine which shall not be less than Rs. 1,500 but which may extend to Rs. 7,500

Whoever contravenes the provisions of

  • section 4,
  • sub-section (4) of section 5,
  • section 6,
  • sub-section (8) of section 8,
  • sub-section (2) of section 10 or
  • section 25

with fine which may extend to Rs. 3750

Whoever being required under this Act to maintain any records or registers or to furnish any information or return

  • fails to maintain such register or record; or
  • wilfully refuses or without lawful excuse neglects to furnish such information or return; or
  • wilfully furnishes or causes to be furnished any information or return which he knows to be false; or
  • refuses to answer or wilfully gives a false answer to any question necessary for obtaining any information required to be furnished under this Act

For each offence

  •  with fine which shall not be less than Rs. 1500 but which may extend to Rs. 7500

Whoever—

  • wilfully obstructs an Inspector in the discharge of his duties under this Act; or
  • refuses or wilfully neglects to afford an Inspector any reasonable facility for making any entry, inspection, examination, supervision, or inquiry authorised by or under this Act in relation to any railway, factory or industrial or other establishment; or
  • wilfully refuses to produce on the demand of an Inspector any register or other document kept in pursuance of this Act; or
  • prevents or attempts to prevent or does anything which he has any reason to believe is likely to prevent any person from appearing before or being examined by an Inspector acting in pursuance of his duties under this Act

with fine which shall not be less than Rs. 1500 but which may extend to 7500

If any person who has been convicted of any offence punishable under this Act is again guilty of an offence involving contravention of the same provision

He shall be punishable on a subsequent conviction

  • with imprisonment for a term which shall not be less than 1 month but which may extend to 6 months and
  • with fine which shall not be less than Rs. 3750 but which may extend to Rs. 22500 or
  • with both

If any person fails or wilfully neglects to pay the wages of any employed person by the date fixed by the authority in this behalf.

Punishable with an additional fine which may extend to Rs. 750 for each day for which such failure or neglect continues.

 IMAGE

Employees State Insurance Act, 1948

Motive

  • To provide the social security and health insurance scheme to Indian workers.
  • This act monitors the provision of cashless medical benefits to employees and their families through their comprehensive network of hospitals and dispensaries throughout India.

Administration

  • It is managed by the Employees’ State Insurance Corporation (ESIC) according to rules and regulations stipulated in the ESI Act 1948.
  • ESIC is an autonomous corporation by a statutory creation under Ministry of Labour and Employment, Government of India.

Who Contributes to the Fund?

  • Employees’ State Insurance Corporation is a legal entity.
  • It can raise loans and take measures for discharging such loans with the prior sanction of the central government and it can acquire both movable and immovable property and all incomes from the property shall vest with the corporation.
  • The corporation can set up hospitals either independently or in collaboration with state government or other private entities, but most of the dispensaries and hospitals are run by concerned state governments.
  • Employer’s Contribution to Fund – 4.75% of the wages paid/payable in respect of the employees in every wage period (Now reduced to 4 % from 2019).
  • Employee’s Contribution to Fund – 1.75% of the wages paid/payable in respect of the employees in every wage period (Now reduced to 1 % from 2019).

Contribution Period

  • 1st April to 30th September
  • 1st October to 31st March

E.g. If the person joined insurance employment for the first time, say on 5th January, his first contribution period will be from 5th January to 31st March and his corresponding first benefit will be from 5th October to 31st December.

Recovery of contribution
In the first instance the Principal Employer is required to pay employees’ share of contribution. Employer may thereafter, recover employee’s contribution by making deduction from their wages.

Who is required to register?

  • Any employer having more than 10 employees is mandatorily require to take up the ESI Registration.
  • The provisions of ESIC Act have been extended to the following classes of establishments:
    • Shops and Commercial establishments
    • Cinemas, including preview theatres
    • Hotels & Restaurants
    • Clubs
    • Newspaper establishments
    • Road Motor Transport establishments

Who is not required to register?

  • The provisions of the ESIC Act are not applicable to factories or establishments under the control of Central Government / State Governments because such employees working with PSUs are in receipt of social security benefits that are substantially similar or superior to the benefits provided under the ESIC Act.

ESI Registration Process

  • Within 15 days of submission of Employer’s registration form (Form-01), the company or firm is expected to obtain an Identification number or Code Number from the Regional office. This figure will be used in correspondence related to the scheme.

 Documents required:

  • Documents about the establishment of the company.
  • Evidence supporting date of commencement of production/business.
  • List of partners, stakeholders, directors along with necessary information and proof of address.
  • Copy of PAN
  • Identity proof like voter id/passport
  • List of employees

Registration of Employee:

  • At joining the job, an employee required to fill the Declaration form i.e. Form-1 along with a copy of the family photo which the employer will be submitting at the ESI branch office.
  • Within 3 months a permanent photo ID is provided to the employee and will be provided an insurance number for identification purpose under the scheme.
  • Once registered, the registration can be transferred if the employee switches company.

Wage Limit under ESI Registration (Who gets benefits):

  • Employees earning 21,000 INR per month or less are applicable for ESI contribution.
  • Wage limit for Employees with ‘Disability’ is 25000 INR per month.

Advantages to Employer

  • Employers are absolved of all their liabilities of providing medical benefits to their employees and their family members or dependants in kind or in the form of fixed cash allowance, lump-sum grant, reimbursement of actual expenses, or opting for any other medical insurance policy of limited scope unless it is a contractual obligation of the employer.
  • Employers are granted exemption pertaining to the applicability of Maternity Benefit Act, Workmens’ Compensation Act etc. in respect of employees covered under the ESIC Scheme.
  • This results in employers possessing a productive and well-secured workforce, at their disposal which is an essential ingredient for better productivity of an organization.
  • Employers are absolved of any responsibility in times of physical distress of their employees or workers such as employment injury, sickness or physical disablement thereby resulting in loss of wages since the responsibility of paying cash benefits shifts from the employer to the ESIC Corporation in respect of insured employees.

Advantages to Employee

  1. Medical Benefit
    The ESIC Scheme provides wide-ranging variety of medical treatment to insured individual and their dependents (including their family members) via a network of ESIC Dispensaries & Panel Clinics, Diagnostic Centers and ESIC Hospitals etc. All the insured individuals and their dependents including their family members under ESIC scheme are entitled to free, full and comprehensive medical care under the ECIS Scheme.
  2. Sickness Benefit
    Sickness Benefit represents cash payments made to an insured person periodically during the period of certified sickness occurring in a benefit period when insured person undergoes medical treatment and attendance with abstention from work on valid medical grounds.
    The maximum duration of Sickness Benefit is 91 days in two consecutive benefit periods. However, there is a waiting period of 2 days which is waived if the insured person is certified sick within 15 days of the spell for which sickness benefit was last paid. The sickness benefit rate is approximately equivalent to 50% of the average daily wages of the insured person.
  3. Extended Sickness Benefit
    After exhausting the Sickness Benefit payable up to 91 days, an insured person if suffering from Cancer, Tuberculosis, Leprosy, Mental or malignant diseases or any other specified long-term ailment, then such an employee is entitled to Extended Sickness Benefit at a higher cash benefit rate of about 70% of average daily wage for a period of two years.
  4. Enhanced Sickness Benefit
    For undergoing sterilization operations for the purpose of family planning, insured persons are eligible to Enhanced Sickness Benefit which is double the rate of sickness benefit.
  5. Maternity Benefit
    Maternity benefit comprises of periodical cash payments to an insured woman as certified by a duly appointed medical officer or mid wife in cases such as confinement or miscarriage or sickness arising on account of pregnancy, confinement, premature birth of child or miscarriage.
  6. Disablement Benefit
    Disablement benefit is admissible for disablement that is caused by employment injury. At the first instance, Temporary Disablement Benefit (TDB) is payable as long as the temporary disability lasts. If the employment injury results in partial or total/permanent disability, then Permanent Disablement Benefit (PDB) is payable till the death of the insured individual. No contributory conditions have been prescribed for this benefit.
  7. Dependent BenefitBHJI
    Dependents’ benefit consists of periodical payments to dependents or family members of an insured individual who dies on account of an employment injury sustained as an employee under the ESIC Act. There are no contributory conditions or any criteria in order to qualify for such benefits. Thus, in case in an unfortunate or unforeseen incident suppose even if an individual dies of employment injury even on the first day of his employment, his dependants or family members are entitled to the aforesaid benefit.
  8. Funeral Expenses
    The funeral expenses are made to meet the expenditure incurred on the funeral of deceased insured individual. This amount is paid either to the eldest surviving member of the family or in his/her absence to that individual who actually incurs the funeral expenses.

Penalties
Besides Different punishment which have been prescribed in the Act, action also can be taken under section 406 of the IPC in cases where an employer deducts contributions from the wages of his employees but does not pay the same to the corporation which amounts to criminal breach of trust.

EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS PROVISIONS ACT, 1952

Motive

  • To provide financial stability and security to employees when they are temporarily or no longer fit to work.

The Employees’ Provident Funds Scheme, 1952

  • The Central Government has framed a Scheme to be called the Employees’ Provident Fund Scheme for the establishment of provident funds under this Act and a Fund is established under the Scheme (known as provident fund).

Administration of Fund

  • It is administered and managed by the Central Board of Trustees that consists of representatives from three parties, namely, the government, the employers and the employees.  
  • The Employees’ Provident Fund Organization (EPFO) assists this board in its activities.
  • EPFO works under the direct jurisdiction of the government and is managed through the Ministry of Labour and Employment.

Who Contributes to the Fund?

  • Both Employer (3.67%) and Employee (12% of B.S + DA)
  • Rest of Employer’s Contribution (8.33%) is diverted to Employee Pension Scheme (EPS)
  • Employees can opt to contribute more than 12% of their wages (max. to Rs. 15,000), although Employer not obliged to contribute equal amount

Rate of 10 % is applicable for following industries

  • For establishments having less than 20 employees, or
  • Sick Industrial Company declared by Board for Industrial and Financial Reconstruction, or – Establishment which has at the end of any financial year, accumulated losses equal to or exceeding its entire net worth or
  • Any establishment in following industries:- (a) Jute (b) Beedi (c) Brick ( d) Coir and (e) Guar gum Factories

Who is required to register?

  • An establishment with 20 or more employees shall register itself
  • An establishment with less than 20 employees can voluntarily opt for PF registration
  • An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time falls below 20.

PF Registration Process

  • A detailed application form called ‘Performa of coverage’ and Form 5A with Annexure-1 has to be filed while registering the company online.
  • After that, a temporary PF registration number allotted, and an employer has to submit all concerning documents online.
  • After that, the PF authorities carry out an inspection of the premises and verify the documents submitted online.
  • Once they are satisfied, a PF allotment letter will grant.

Documents required to be submitted
The documents required to submit with the Performa of coverage for EPF along with list of employees are listed below. It is to be noted that all the required forms are available at the site EPFO & for ESIC

 Essential Document(s) to be submitted (For other than a proprietary concern)

  1. A copy of Memorandum and Articles of Association and the certificate of incorporation issued by the Registrar of Companies, in the case of Public and Private Ltd. Companies.
  2. A copy of partnership deed in the case of partnerships.
  3. A copy of Registration certificate issued by the Registrar of Co-operative societies.
  4. A copy of Registration certificate issued by Registrar in the case of societies registered under Societies Registration Act along with a copy of the objects and Rules of the Society.
  5. Deeds creating HUF.
  6. Any agreement or other legal documents in the case of Association of persons as defined in the Income Tax Act.

Who is responsible to pay contribution?
The employer shall, in the first instance, pay both the contribution payable by himself (in this Scheme referred to as the employer’s contribution) and also, on behalf of the member employed by him directly or by or through a contractor, the contribution payable by such member (in this Scheme referred to as the member’s contribution).
In respect of employees employed by or through a contractor, the contractor shall recover the contribution payable by such employee (in this Scheme referred to as the member’s contribution) and shall pay to the principal employer.

Penalty (Recovery of damages for default in payment of any contribution)
Where an employer makes default in the payment of any contribution to the fund or in transferring of the accumulated amount, he is required to pay damages as follows:

If period of default is less than 2 months

5 % of arrears per annum

If period of default is 2 -4 months

10 % of arrears per annum

If period of default is 4 -6 months

15 % of arrears per annum

If period of default is more than 6 months

25 % of arrears per annum

Other points to note

  • Contribution by employer is subject to present threshold of Rs. 15,000/- per month, beyond which there is no obligation by employer to contribute.
  • Establishment will include all department and branches in any location.
  • Employer needs to deposit its statutory contribution by 15th of every month. (With respect to wages of immediate preceding month)
  • If the employee leaves the existing establishment and obtains re-employment to the establishment in which this act is applicable, it is the duty of the employer to transfer the accumulations to the credit of such employee’s account in the fund in which he is re-employed.
  • Once a PF Member in any organization, cannot be left out of coverage, merely because he draws remuneration above the prescribed wage/salary ceiling (presently Rs. 15,000/- per month).
  • Salary for PF calculation should not be less than the ‘Minimum Wages’.

IMAGE

Payment of Bonus Act, 1965

Applicability
It extends to the whole of India

Save as otherwise provided in this Act, it shall apply to –

  • every factory; and
  • every other establishment in which twenty or more persons are employed on any day during an accounting year.

An establishment to which this Act applies shall continue to be governed by this Act notwithstanding that the number of person employed therein falls below 20.

Eligibility for bonus
Every employee shall be entitled to be paid by his employer in an accounting year, bonus, in accordance with the provisions of this Act, provided he has worked in the establishment for not less than 30 working days in that year if the salary/wage of such employee is not exceeding Rs. 21000.

Disqualification for bonus
An employee shall be disqualified from receiving bonus under this Act, if he is dismissed from service for —

  • fraud; or
  • riotous or violent behaviour while on the premises of the establishment; or
  • theft, misappropriation or sabotage of any property of the establishment.

Payment of minimum bonus
Subject to the other provisions of this Act, every employer shall be bound to pay to every employee in respect of the accounting year a minimum bonus which shall be

  • 33% of the salary or wage earned by the employee during the accounting year or
  • one hundred rupees,

whichever is higher,
whether or not the employer has any allocable surplus in the accounting year.

Where an employee has not completed 15 years of age at the beginning of the accounting year, the provisions of this section shall have effecting relation to such employee as if for the words “100”, the words “60” were substituted.

Payment of maximum bonus
Where in respect of any accounting year, the allocable surplus exceeds the amount of minimum bonus payable to the employees, the employer shall, in lieu of such minimum bonus, be bound to pay to every employee in respect of that accounting; year bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of 20%, of such salary or wage.

Calculation of bonus with respect to certain employees
Where the salary or wage of an employee exceeds 7000 per mensem, the bonus payable to such employee shall be calculated as if his salary or wage were Rs. 7000 per mensem.

Proportionate reduction in bonus in certain cases
Where an employee has not worked for all the working days in an accounting year, the minimum bonus of Rs. 100 or, as the case may be, of Rs. 60, if such bonus is higher than 8.33 per cent, of his salary or wage for the days he has worked in that accounting year, shall be proportionately reduced.

Points to Note

  • An establishment is not required to pay bonus for the first five years of commencing the business
  • Bonus shall be given within statutory time limit of 8 months of close of financial year
  • Establishment is entitled to adjust any customary or interim bonus/puja bonus, against bonus payable under this Act.

Statutory Registers and Records

  • Form A-Showing the computation of the allocable surplus.
  • Form B-Showing the set-on and set-off of the allocable surplus.
  • Form C -Showing the amount of bonus due to each of the employees and the amount actually disbursed.
  • Form D- Annual Return.

IMAGE

PAYMENT OF GRATUITY ACT, 1972

Applicability
This Act shall apply to

  • every factory, mine, oilfield, plantation, port and railway company;
  • every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which 10 or more persons are employed, or were employed, on any day of the preceding 12 months;
  • such other establishments or class of establishments, in which 10 or more employees are employed, or were employed, or, any day of the preceding 12 months, as the Central Government may, by notification, specify in this behalf.

A shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below 10.

Payment of gratuity
Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than 5 years, –

  • on his superannuation, or
  • on his retirement or resignation, or
  • on his death or disablement due to accident or disease

Provided that the completion of continuous service of 5 years shall not be necessary where the termination of the employment of any employee is due to death or disablement.

Wages for Calculation
For every completed year of service or part thereof in excess of 6 months, the employer shall pay gratuity to an employee at the rate of 15 days wages based on the rate of wages last drawn by the employee concerned.

In the case of a piece-rated employee
In the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of 3 months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account.

In the case of seasonal establishment
In the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of 7 days wages for each season.

Maximum Gratuity
The amount of gratuity payable to an employee shall not exceed Rs. 20 Lakhs

Compliance and Procedure
Intimation in prescribed Form for any change in the name, address of employer or nature of business – within 30 days of such change.

Nomination
Employee to submit his nomination in Form F – within 30 days of appointment.

Recovery of Gratuity
To apply within 30 days in Form I when not paid within 30 days.

Forfeiture of Gratuity

  • On termination of an employee for moral turpitude or riotous or disorderly behavior.
  • Wholly or partially for willfully causing loss, destruction of property etc.

Protection of Gratuity
It can’t be attached in execution of any decree.

Penalties

  • Imprisonment for 6 months or fine up to Rs.10, 000 for avoiding to make payment by making false statement or representation.
  • Imprisonment not less than 3 months and up to one year with fine on default in complying with the provisions of Act or Rules.

IMAGE

EMPLOYEES COMPENSATION ACT, 1923

Applicability (Section 1)
It is applicable all over India. This Act is not application when ESI Act applies.

Coverage of Workmen
All workers irrespective of their status or salaries either directly or through contractor or a person recruited to work abroad.

Employer’s liability for compensation (Section 3)
If personal injury is caused to an employee by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation.

In the following cases, employer shall not be so liable–

  • in respect of any injury which does not result in the total or partial disablement of the employee for a period exceeding three days;
  • in respect of any injury, not resulting in death or permanent total disablement, caused by an accident which is directly attributable to–
  • the employee having been at the time thereof under the influence of drink or drugs, or
  • the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employee’s, or
  • the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employees

Amount of compensation [Section 4]
Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:–

  • where death results from the injury
    • an amount equal to 50% of the monthly wages of the deceased employee multiplied by the relevant factor; or
    • an amount of Rs. 80,000,

whichever is more;

  • where permanent total disablement results from the injury
    • an amount equal to 60% of the monthly wages of the injured employee multiplied by the relevant factor; or
    • an amount of Rs. 90,000,

whichever is more

Relevant factors are specified in the Schedule IV of the Act

Note:
The above-stated limits of Rs. 80,000 and Rs. 90,000 are increased to Rs. 1,20,000 and Rs. 1,40,000. w.e.f. 18-1-2010 but not notified in the ICSI book. Refer amended act https://legislative.gov.in/sites/default/files/A1923-08.pdf

Report of accident (Rule 11 Form EE)
Report of fatal Accident and Serious Injury within 7 days to the Commissioner.

Offences

Penalty

In case of default by employer

50% of the compensation amount + interest to be paid to the workman or his dependents as the case may be.

Deposit of Compensation

Within one month with the Compensation Commissioner

 

CONTRACT LABOUR (REGULATION & ABOLITION) ACT, 1970

Object of the Act
To regulate the employment of contract labor in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith.

Applicability
This Act shall apply to

  • every establishment in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as contract labor.
  • every contractor who employs or who employed on any day of the preceding 12 months 20 or more workmen.

Registration of Establishment (Section 7)
Every principal employer of an establishment to which this Act applies shall make an application to the registering officer in Form 1 for registration of the establishment.

Revocation of registration in certain cases (Section 8)
If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise,

  • that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, or
  • that for any other reason the registration has become useless or ineffective

and, therefore, requires to be revoked, the registering officer may, after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate Government, revoke the registration.

Prohibition of employment of contract labour (Section 10)
Notwithstanding anything contained in this Act, the appropriate Government (not court) may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.

Licensing of contractors (Section 12)
No contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer.

Revocation, suspension and amendment of licences (Section 14)
If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that–

  • a licence granted under section 12 has been obtained by misrepresentation or suppression of any material fact, or
  • the holder of a licence has, without reasonable cause, failed to comply with the conditions subject to which the licence has been granted or has contravened any of the provisions of this Act or the rules made thereunder.

Welfare and Health of Contract Labour

  1. Canteens
    In every establishment to which the Act applies and wherein work regarding the employment of contract labour is likely to continue for 6 months and wherein contract labour numbering 100 or more are ordinarily employed, an adequate canteen shall be provided by the contractor for the use of such contract labour
  2. Rest-room
    In every place wherein contract labour is required to halt at night in connection with the working of the establishment to which the Act applies and in which employment of contract labour is likely to continue for 3 months or more, the contractor shall provide and maintain rest rooms or other suitable alternative accommodation.
  3. Latrines and Urinals
    Latrines shall be provided in every establishment coming within the scope of the Act on the following scale, namely:—
    • where females are employed, there shall be at least one latrine for every 25 females;
    • where males are employed, there shall be at least one latrine for every 25 males;
      Provided that where the number of males or females exceeds 100, it shall be sufficient if there is one latrine for every 25 males or females, as the case may be, upto the first 100, and one for every 50 thereafter.
  4. Washing Facilities
    In every establishment coming within the scope of the Act adequate and suitable facilities for washing shall be provided and maintained for the use of contract labour employed therein.
  5. First-Aid Facilities
    In every establishment coming within the scope of the Act there shall be provided and maintained so, as to be readily accessible during all working hours first-aid boxes at the rate of not less than one box for 150 contract labour or part thereof ordinarily employed.

Laws, Agreement or standing orders inconsistent with the Act-Not Permissible (Section 30)
Unless the privileges in the contract between the parties or more favorable than the prescribed in the Act, such contract will be invalid and the workers will continue to get more favorable benefits.
Registers

Principal employer

  • To maintain a register of contractor in respect of every establishment in Form XII.

Contractor

  • To maintain register of workers for each registered establishment in Form XIII.
  • To issue an employment card to each worker in Form XIV.
  • To issue service certificate to every workman on his termination in Form XV.

Muster Roll, Wages Register, Deduction Register and Overtime Register by Contractor
Every contractor shall:

  • Maintain Muster Roll and a Register of Wages in Form XVI and Form XVII respectively when combined.
  • Register or wage-cum-Muster Roll in Form XVII where the wage period is a fortnight or less.
  • Maintain a Register of Deductions for damage or loss, Register or Fines and Register of Advances in Form XX, from XXI and Form XXII respectively.
  • Maintain a Register of Overtime in Form XXIII.
  • To issue wage slips in Form XIX, to the workmen at least a day prior to the disbursement of wages.
  • Obtain the signature or thumb impression of the worker concerned against the entries relating to him on the Register of wages or Muster Roll-Cum-Wages Register.

Offence

Punishment

Obstructions: For obstructing the inspector or failing to produce registers etc.

3 months’ imprisonment or fine up to Rs. 500, or both.

Violation – For violation of the provisions of Act or the Rules

Imprisonment of 3 Months or fine up to Rs.1000. On continuing contravention, additional fine up to Rs. 100 per day

IMAGE

TRADE UNIONS ACT, 1926

Object of the Act

  • To provide for the registration of Trade Union and in certain respects
  • To define the law relating to registered Trade Unions

Registration of Trade Union (Section 4)

  • Any 7 or more members of a Trade Union may, by subscribing their names to the rules of the Trade Union and by otherwise complying with the provisions of this Act with respect to registration, apply for registration of the Trade Union under this Act.
  • No Trade Union of workmen shall be registered unless at least 10% or 100 of the workmen, whichever is less, engaged or employed in the establishment or industry with which it is connected are the members of such Trade Union on the date of making of application for registration.
  • No Trade Union of workmen shall be registered unless it has on the date of making application not less than 7 persons as its members, who are workmen engaged or employed in the establishment or industry with which it is connected.

Application for registration (Section 5)

  • Every application for registration of a Trade Union shall be made to the Registrar, and shall be accompanied by a copy of the rules of the Trade Union and a statement of the following particulars, namely: –
  • the names, occupations and addresses of the members making the application;
  • the name of the Trade Union and the address of its head office; and
  • the titles, names, ages, addresses and occupations of the office-bearers of the Trade Union.
  • in the case of a Trade Union of workmen, the names, occupations and addresses of the place of work of the members of the Trade Union making the application
  • Where a Trade Union has been in existence for more than one year before the making of an application for its registration, there shall be delivered to the Registrar, together with the application, a general statement of the assets and liabilities of the Trade Union prepared in such form and containing such particulars as may be prescribed.

Minimum requirement about membership of a Trade Union (Section 9A)
A registered Trade Union of workmen shall at all times continue to have not less than 10% or 100 of the workmen, whichever is less, subject to a minimum of 7, engaged or employed in an establishment or industry with which it is connected, as its members.

Cancellation of registration (Section 10)
A certificate of registration of a Trade Union may be withdrawn or cancelled by the Registrar –

  • on the application of the Trade Union, or
  • if the Registrar is satisfied that the certificate has been obtained by fraud or mistake, or that the Trade Union has ceased to exist or has wilfully and after notice from the Registrar contravened any provision of this Act or allowed any rule to continue in force which is inconsistent with any such provision
  • if the Registrar is satisfied that a registered Trade Union of workmen ceases to have the requisite number of members

Criminal conspiracy in trade disputes (Section 17)
No office-bearer or member of a registered Trade Union shall be liable to punishment under sub-section (2) of section 120B Indian Penal Code (45 of 1860), in respect of any agreement made between the members for the purpose of furthering any such object of the Trade Union as is specified in section 15, unless the agreement is an agreement to commit an offence.

Disqualifications of office-bearers of Trade Unions (Section 21A)
A person shall be disqualified for being chosen as, and for being, a member of the executive or any other office-bearer of a registered Trade Union if –

  • he has not attained the age of eighteen years,
  • he has been convicted by a Court in India of any offence involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed since his release.

Returns
Annually to the Registrar, on or before such date as may be prescribed, a general statement, audited in the prescribed manner, of all receipts and expenditure of every registered Trade Union during the year ending on the 31st December.

Offence

Punishment

For making false entry in or any omission in general statement required for sending returns.

Fine up to Rs. 500. On continuing default, additional fault, Rs. 5 for each week (not exceeding Rs.50).

For making false entry in the form

Fine up to Rs. 500.

Supplying false information regarding Trade Union

Fine up to Rs. 200.

Maternity Benefit Act, 1961 alongwith Maternity Benefit (Amendment) Act, 2017

Object of the Act
To protect the dignity of motherhood and the dignity of a new person’s birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.

Employment of, or work by, women prohibited during certain period [Section 4]

  1. No employer shall knowingly employ a woman in any establishment during the 6 weeks immediately following the day of her delivery or her miscarriage.
  2. No woman shall work in any establishment during the six weeks immediately following the day of her delivery of her miscarriage.
  3. Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
  • The period referred to in sub-section (3) shall be –
  • at the period of 1 month immediately preceding the period of 6 weeks, before the date of her expected delivery;
  • any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

Right to payment of maternity benefit [Section 5]
Sub-section 1
Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

Explanation.–For the purpose of this sub-section, the average daily wage means

  • the average of the woman’s wages payable to her for the days on which she has worked during the period of 3 calendar months immediately preceding the date from which she absents herself on account of maternity,
  • the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or
  • ten rupees,

whichever is the highest.

Sub-section 2 [Minimum working period to claim maternity benefit]
No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 80 days in the 12 months immediately preceding the date of her expected delivery:

Provided that the qualifying period of 80 days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation.–For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of 12 months immediately preceding the date of her expected delivery shall be taken into account.

Sub-section 3 [Maximum period for which any woman shall be entitled to maternity benefit]
The maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks of which not more than 8 weeks shall precede the date of her expected delivery.

Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be 12 weeks of which not more than 6 weeks shall precede the date of her expected delivery:

Provided further that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death.

Subsection 4 [A woman who legally adopts a child or a commissioning mother]
A woman who legally adopts a child below the age of 3 months or a commissioning mother shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

Payment of medical bonus [Section 8]
Every woman entitled to maternity benefit under this Act shall shall also be entitled to receive from her employer a medical bonus of Rs. 1000, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

Leave for miscarriage, etc. [Section 9]
In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy

Leave with wages for tubectomy operation [Section 9A]
In case of tubectomy operation, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of 2 weeks immediately following the day of her tubectomy operation.

Nursing breaks [Section 11]
Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of 15 months.

Crèche facility [Section 11A]

  • Every establishment having 50 or more employees shall have the facility of créche
  • Employer shall allow 4 visits a day to the creche by the woman, which shall also include the interval for rest allowed to her.
  • Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.

Dismissal during absence of pregnancy [Section 12]

  • When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
  • (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus:
    Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.
  • (b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within 60 days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.
  • (c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1).

No deduction of wages in certain cases [Section 13]
No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of–

  • the nature of work assigned to her by virtue of the provisions contained in sub-section (3) of section 4; or
  • breaks for nursing the child allowed to her under the provisions of section 11.

Penalty for contravention of Act by employer [Section 21]

  1. If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable
    • with imprisonment which shall not be less than 3 months but which may extend to 1 year and
    • with fine which shall not be less than Rs. 2000 but which may extend to Rs. 5000
  2. If any employer contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable
    • with imprisonment which may extend to 1 year, or
    • with fine which may extend to Rs. 5000, or
    • with both

Rights of Persons with Disabilities Act, 2016

Motive/Objectives
Empowerment of persons with disabilities on the basis of following principles

  • respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
  • non-discrimination;
  • full and effective participation and inclusion in society;
  • respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  • equality of opportunity;
  • accessibility;
  • equality between men and women;
  • respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities;

 

Important Definitions (Section 2)
“Barrier’’ means any factor including communicational, cultural, economic, environmental, institutional, political, social, attitudinal or structural factors which hampers the full and effective participation of persons with disabilities in society;

“Care-giver” means any person including parents and other family Members who with or without payment provides care, support or assistance to a person with disability;

“Discrimination” in relation to disability, means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation;

“Person with benchmark disability” means a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;

“Person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;

Equality and non-discrimination (Section 3)

  1. The Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.
  2. The Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment.
  3. No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim.
  4. No person shall be deprived of his or her personal liberty only on the ground of disability.
  5. The Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities.

Women and children with disabilities (Section 4)

  1. The Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others.
  2. The Government and local authorities shall ensure that all children with disabilities shall have right on an equal basis to freely express their views on all matters affecting them and provide them appropriate support keeping in view their age and disability.

Community life (Section 5)

  1. The persons with disabilities shall have the right to live in the community.
  2. The Government shall endeavour that the persons with disabilities are,
  3. not obliged to live in any particular living arrangement; and
  4. given access to a range of in-house, residential and other community support services, including personal assistance necessary to support living with due regard to age and gender.

Protection from cruelty and inhuman treatment (Section 6)

  1. The Government shall take measures to protect persons with disabilities from being subjected to torture, cruel, inhuman or degrading treatment.
  2. No person with disability shall be a subject of any research without,—
    • his or her free and informed consent obtained through accessible modes, means and formats of communication; and
    • prior permission of a Committee for Research on Disability

Protection from abuse, violence and exploitation (Section 7)
The Government shall take measures to protect persons with disabilities from all forms of abuse, violence and exploitation and to prevent the same, shall—

  • take cognizance of incidents of abuse, violence and exploitation and provide legal remedies available against such incidents;
  • take steps for avoiding such incidents and prescribe the procedure for its reporting;
  • take steps to rescue, protect and rehabilitate victims of such incidents; and
  • create awareness and make available information among the public.

Any person or registered organisation who or which has reason to believe that an act of abuse, violence or exploitation has been, or is being, or is likely to be committed against any person with disability, may give information about it to the Executive Magistrate within the local limits of whose jurisdiction such incidents occur.

The Executive Magistrate on receipt of such information, shall take immediate steps to stop or prevent its occurrence, as the case may be, or pass such order as he deems fit for the protection of such person with disability including an order—

  • to rescue the victim of such act, authorising the police or any organisation working for persons with disabilities to provide for the safe custody or rehabilitation of such person, or both, as the case may be;
  • for providing protective custody to the person with disability, if such person so desires;
  • to provide maintenance to such person with disability.

Protection and Safety (Section 8)

  • The persons with disabilities shall have equal protection and safety in situations of risk, armed conflict, humanitarian emergencies and natural disasters.
  • The National Disaster Management Authority and the State Disaster Management Authority shall take appropriate measures to ensure inclusion of persons with disabilities in its disaster management activities

Home and family (Section 9)

  • No child with disability shall be separated from his or her parents on the ground of disability except on an order of competent court, if required, in the best interest of the child.
  • Where the parents are unable to take care of a child with disability, the competent court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the Government or non-governmental organisation, as may be required.

Reproductive rights (Section 10)

  • The appropriate Government shall ensure that persons with disabilities have access to appropriate information regarding reproductive and family planning.
  • No person with disability shall be subject to any medical procedure which leads to infertility without his or her free and informed consent.

Accessibility in voting (Section 11)
The Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and all materials related to the electoral process are easily understandable by and accessible to them.

Access to justice (Section 12)
The appropriate Government shall ensure that persons with disabilities are able to exercise the right to access any court, tribunal, authority, commission or any other body having judicial or quasi-judicial or investigative powers without discrimination on the basis of disability.

Legal capacity (Section 13)
The Government shall ensure that the persons with disabilities have right, equally with others, to own or inherit property, movable or immovable, control their financial affairs and have access to bank loans, mortgages and other forms of financial credit.

The appropriate Government shall ensure that the persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life and have the right to equal recognition everywhere as any other person before the law.

Provisions related to education of persons with disabilities
Duty of Educational Institutions (Section 16)
The Government and the local authorities shall endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall—

  • admit them without discrimination and provide education and opportunities for sports and recreation activities equally with others;
  • make building, campus and various facilities accessible;
  • provide reasonable accommodation according to the individual’s requirements;
  • provide necessary support individualised or otherwise in environments that maximise academic and social development consistent with the goal of full inclusion;
  • ensure that the education to persons who are blind or deaf or both is imparted in the most appropriate languages and modes and means of communication;
  • detect specific learning disabilities in children at the earliest and take suitable pedagogical and other measures to overcome them;
  • monitor participation, progress in terms of attainment levels and completion of education in respect of every student with disability;
  • provide transportation facilities to the children with disabilities and also the attendant of the children with disabilities having high support needs.

Section 17 of this Act, deals with measures to facilitate inclusive education. It makes the following provisions:

  1. To make surveys from time to time to assess if special needs of children are being catered to;
  2. To establish schools for children with disability and to train teachers to teach such students;
  3. To provide books and other assistive educational tools to students;
  4. To provide for scholarships to motivate such children;
  5. To promote research to improve both teaching and learning skills

Adult Education (Section 18)
The appropriate Government and the local authorities shall take measures to promote, protect and ensure participation of persons with disabilities in adult education and continuing education programmes equally with others.

Provisions related to Skill Development and Employment

Vocational training and self-employment (Section 19)
The Government shall formulate schemes and programmes including provision of loans at concessional rates to facilitate and support employment of persons with disabilities especially for their vocational training and self-employment.

The schemes and programmes shall provide for—

  • inclusion of person with disability in all mainstream formal and non-formal vocational and skill training schemes and programmes;
  • to ensure that a person with disability has adequate support and facilities to avail specific training;
  • exclusive skill training programmes for persons with disabilities with active links with the market, for those with developmental, intellectual, multiple disabilities and autism;
  • loans at concessional rates including that of microcredit;
  • marketing the products made by persons with disabilities; and
  • maintenance of disaggregated data on the progress made in the skill training and self-employment, including persons with disabilities.

Non-discrimination in employment (Section 20)

  1. No Government establishment shall discriminate against any person with disability in any matter relating to employment:
    Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.
  2. Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.
  3. No promotion shall be denied to a person merely on the ground of disability.
  4. No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service.

Maintenance of records (Section 22)

  • Every establishment shall maintain records of the persons with disabilities in relation to the matter of employment, facilities provided and other necessary information.
  • Every employment exchange shall maintain records of persons with disabilities seeking employment.
  • Such records shall be open to inspection at all reasonable hours by such persons as may be authorised in their behalf by the Government.

Appointment of Grievance Redressal Officer (Section 23)

  • Every Government establishment shall appoint a Grievance Redressal Officer for the purpose of section 19 and shall inform the Chief Commissioner or the State Commissioner, as the case may be, about the appointment of such officer.
  • Any person aggrieved with the non-compliance of the provisions of section 20, may file a complaint with the Grievance Redressal Officer, who shall investigate it and shall take up the matter with the establishment for corrective action.
  • The Grievance Redressal Officer shall maintain a register of complaints in the manner as may be prescribed by the Central Government, and every complaint shall be inquired within two weeks of its registration.
  • If the aggrieved person is not satisfied with the action taken on his or her complaint, he or she may approach the District-Level Committee on disability.

Provisions related to Social Security, Health, Rehabilitation and Recreation

Social Security (Section 24)

  1. The Government shall within the limit of its economic capacity and development formulate necessary schemes and programmes to safeguard and promote the right of persons with disabilities for adequate standard of living to enable them to live independently or in the community:
    Provided that the quantum of assistance to the persons with disabilities under such schemes and programmes shall be at least 25% higher than the similar schemes applicable to others.
  2. The appropriate Government while devising these schemes and programmes shall give due consideration to the diversity of disability, gender, age, and socio-economic status.
  3. The schemes under sub-section (1) shall provide for,—
    • community centres with good living conditions in terms of safety, sanitation, health care and counselling;
    • facilities for persons including children with disabilities who have no family or have been abandoned, or are without shelter or livelihood;
    • support during natural or man-made disasters and in areas of conflict;
    • support to women with disability for livelihood and for upbringing of their children;
    • access to safe drinking water and appropriate and accessible sanitation facilities especially in urban slums and rural areas;
    • provisions of aids and appliances, medicine and diagnostic services and corrective surgery free of cost to persons with disabilities with such income ceiling as may be notified;
    • disability pension to persons with disabilities subject to such income ceiling as may be notified;
    • unemployment allowance to persons with disabilities registered with Special Employment Exchange for more than two years and who could not be placed in any gainful occupation;
    • care-giver allowance to persons with disabilities with high support needs;
    • comprehensive insurance scheme for persons with disability, not covered under the Employees State Insurance Schemes, or any other statutory or Government-sponsored insurance schemes;

Healthcare (Section 25)
The appropriate Government and the local authorities shall take necessary measures for the persons with disabilities to provide,—

  • free healthcare in the vicinity specially in rural area subject to such family income as may be notified;
  • barrier-free access in all parts of Government and private hospitals and other healthcare institutions and centres;
  • priority in attendance and treatment.

Insurance schemes (Section 26)
The appropriate Government shall, by notification, make insurance schemes for their employees with disabilities.

Section 29 and 30 seeks to ensure that persons with disability have a good social life by way of organising cultural events, recreational activities and sport competitions and ensuring participation of persons with disability.

Special Provisions for Persons with Benchmark Disabilities
Free education for children with benchmark disabilities (Section 31)
Every child with benchmark disability between the age of 6 to 18 years shall have the right to free education in a neighbourhood school, or in a special school, of his choice. The Government and local authorities shall ensure that every child with benchmark disability has access to free education in an appropriate environment till he attains the age of eighteen years.

Reservation in higher educational institutions (Section 32)
All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than 5% seats for persons with benchmark disabilities.
The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.

Identification of posts for reservation (Section 33)|
The Government shall—

  1. identify posts in the establishments which can be held by respective category of persons with benchmark disabilities;
  2. constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
  3. undertake periodic review of the identified posts at an interval not exceeding 3 years.

Reservation (Section 34)
Every Government shall appoint in every Government establishment, not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, 1% each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and 1% for persons with benchmark disabilities under clauses (d) and (e), namely:—

  • blindness and low vision;
  • deaf and hard of hearing;
  • locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
  • autism, intellectual disability, specific learning disability and mental illness;
  • multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities.

Incentives to employers in private sector (Section 35)
The Government and the local authorities shall, within the limit of their economic capacity and development, provide incentives to employer in private sector to ensure that at least 5% of their work force is composed of persons with benchmark disability.

Special schemes and development programmes (Section 37)
The Government and the local authorities shall, by notification, make schemes in favour of persons with benchmark disabilities, to provide,—

  • 5% reservation in allotment of agricultural land and housing in all relevant schemes and development programmes, with appropriate priority to women with benchmark disabilities;
  • 5% reservation in all poverty alleviation and various developmental schemes with priority to women with benchmark disabilities;
  • 5% reservation in allotment of land on concessional rate, where such land is to be used for the purpose of promoting housing, shelter, setting up of occupation, business, enterprise, recreation centres and production centres.

Special Provisions for Persons with Disabilities with High Support Needs (Section 38)
It states that any person with benchmark disability, who considers himself in need of high support or any person or an organisation, can approach the appropriate Government requesting to provide high support. There shall be an Assessment Board to assess such requests for high support and provide support in accordance to the guidelines of the appropriate Government.

Duties and Responsibilities of Appropriate Governmen
Enlisted below are the various duties and responsibilities that this Act seeks to confer on the Government.

  1. The Government shall conduct, encourage, support and promote awareness campaigns and sensitisation programmes to ensure rights of persons with disability. Such programmes shall aim to recognise merits and abilities of persons with disability provide orientation and sensitisation at schools, colleges and workplace (Section 39);
  2. That the Government shall ensure availability of transport for persons with disability. This would include access to public transport and allowing retrofitting modifications to promote personal mobility among persons with disability (Section 40);
  3. That access to information is made available to persons with disability in all forms i.e. audio, print, electronic media etc.
  4. That the Government shall take measure to promote the production and distribution of consumer products specially made for persons with disability (Sec 43);
  5. Ensuring that all structures of Central Government shall be made accessible to persons having disability within stipulated time of 5yrs (Sec 45);
  6. Finally to impart training to people of all walks of life such as doctors, lawyers, judges, teachers etc. about the specific needs and to develop respect for their needs.

Institutions for Persons with Disability
No institution for persons with disability shall be valid without obtaining the Certificate of Registration from the Competent Authority that is established by the State Governments. Grant to such an application for obtaining Certificate of Registration, shall be given, only if the institution adheres to the provisions under this Act.

Section 53 speaks of the provision of appeal in case any person is aggrieved with the decision of the Authority to refuse grant of Certificate of Registration of revoking of the same.

Chief Commissioners and State Commissioners for Persons with Disability
Chapter XII speaks about the appointment of a Chief Commissioner and a State Commissioner look into matters of laws relating to persons with disability, inquire or suo moto take up matters of discrimination against such persons and monitor the implementation of the Act along with promoting awareness about the rights of people with disabilities. It states that an Annual Report shall be submitted by both the Chief Commissioner and the State Commissioners on matters relating to persons with disability, which are of prime importance. Powers of both the Chief Commissioner and the State Commissioners shall be equivalent to that of a civil court vested under The Code of Civil Procedure, 1908.

Special Courts
Sec 84 and 85 of Chapter XIII states that the State Government with the advice of the Chief Justice of the High Court shall specify for each district, a Court of Sessions which will act as the Special Court to try offences under this Act. For such Special Courts, the State Government may appoint a Public Prosecutor.

National Fund for Persons with Disabilities
There shall be a Fund to be called National Fund for persons with disabilities u/s 86. This includes sums grants, gifts, donation, benefactions, bequests or transfers and sums received grants-in-aid.

State Fund for Persons with Disabilities
That a Fund called State Fund for persons with disabilities shall be created by the State Government. The State Fund for persons with disabilities shall be utilised and managed in the manner prescribed by the State Government.

Offences and Penalties
Chapter XVI deals with offences and penalties for punishment for contravention of provisions of this Act or rules and regulations made thereunder. It provides that for first contravention shall be punishable with fine that extends to Rs. 10,000 and subsequent contravention shall be punished with fine not less than Rs. 50,000 and up to 5 lakhs.

For any offence committed by a company, the person in charge, responsible for the conduct of the business of the company, shall be punishable according to the provisions of the Act.

Acts whereby any person:-

  1. Intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view;
  2. Assaults or uses force to any person with disability with the intent to dishonour him or outrage the modesty of any woman;
  3. Having actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him;
  4. Being in a position to dominate the will of a child or a woman with disability and uses that position to exploit her sexually;
  5. Voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability;

is punishable with imprisonment not less than 6 months which may extend up to 5 years and fine.

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

Motive/Objective
An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business with includes a right to a safe environment free from sexual harassment;

AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.

Applicability
It extends to the whole of India.

Meaning of Sexual Harassment
“Sexual Harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—

  • physical contact and advances; or
  • a demand or request for sexual favours; or
  • making sexually coloured remarks; or
  • showing pornography; or
  • any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

Prevention of Sexual Harassment (Section 3)

  • No woman shall be subjected to sexual harassment at any workplace.
  • The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:—
  • implied or explicit promise of preferential treatment in her employment; or
  • implied or explicit threat of detrimental treatment in her employment ; or
  • implied or explicit threat about her present or future employment status; or
  • interference with her work or creating an intimidating or offensive or hostile work environment for her; or
  • humiliating treatment likely to affect her health or safety.

Constitution of Internal Complaints Committee (Section 4)
Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”.

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

The Internal Committees shall consist of the following members to be nominated by the employer, namely: —

  • a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:
  • not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
  • one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:

Note: At least one-half of the total Members so nominated shall be women.

Notification of District Office (Section 5)
The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

Constitution and jurisdiction of Local Committee (Section 6)
Every District Officer shall constitute in the district concerned, a committee to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than 10 workers or if the complaint is against the employer himself.

The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.

The jurisdiction of the Local Committee shall extend to the areas of the district where it is constituted.

Complaint of sexual harassment (Section 9)
Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace

  • to the Internal Committee if so constituted, or
  • to the Local Committee, in case Internal Committee is not so constituted,

within a period of 3 months from the date of incident and in case of a series of incidents, within a period of 3 months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing.

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding 3 months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, in case the aggrieved woman is unable to make a complaint on account of her physical incapacity, a complaint may be filed inter alia by

  • her relative or friend or
  • her co-worker or
  • an officer of the National Commission for Woman or
  • State Women’s Commission or
  • any person who has knowledge of the incident,

with the written consent of the aggrieved woman.

Leave a Comment