NAMASTE &

WELCOME1

LABOUR INSPECTION

PRACTICE IN INDIA by Anand Kumar

Assistant LABOUR COMMISSIONER (c)

New Delhi, India.

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Origin of law presupposes its violation to social norms. Law addresses gap between ideal and prevailing

standards. “Equality before law” also attaches responsibility on

the government to apply the law to all. In labour laws, “INSPECTION” is the most effective

way to bring its violations into the notice of administration/judiciary.

Inspections have to bring about social, economic and political changes.

Orderly inspections bring revolution in the society and nation.

Hence, bringing the violations to light becomes a natural corollary.

INTRODUCTION

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Fulfillment of the objectives of labour laws based upon the effective system of inspections.

Standard of ‘Labour inspection’ has three-fold purpose:-• Taking appropriate action if legal provisions in question are not

applied.• Assisting workers and management to understand legal

requirements and to comply with them.• Bringing into the notice of Govt. any abuses not specifically

covered by the existing law. Effective labour inspection helps the management by providing

information and guidance relating to labour & their obligations. It inhibits an employer against unfair competitions from another

employer by adopting unfair labour standards. It generates contented labour force contributing to higher

industrial productivity.

OBJECTIVES

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Earlier to Govt. of India Act 1919, the Govt. a few labour laws, namely Fatal Accidents Act 1855; Workmen’s and Employer’s (Disputes) Act 1860; Factories Act 1881 and Mines Act 1901 were existed.

The Mines Act 1901 provided for appointment of Chief Inspector of Mines & provisions relating to the safety & welfare of Mines .

The Assam Labour & Emigration Ac provided for establishment of Assam Labour Board for the welfare of labour.

Major Labour Laws enacted, following recommendations of the Royal Commission on Labour viz. PW Act 1936; EC Act 1938; Mines (Amendment) Act 1934 etc., necessitated creating of enforcement machineries.

Labour Laws enacted prior to or immediately after Independence on the recommendations of Labour Investigation Committee provided for inspection and other machineries. Some of the Acts are ID Act 1947.

ID (SO) Act 1946; Factories Act 1948, ESI Act 1948 etc. In 1949, the Govt. of India ratified ILO’s Labour Inspection

Convention (No. 81), 1947, excluding (Part-II).

HISTORY OF LABOUR INSPECTION IN INDIA

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In the Indian Constitution, labour falls under the Concurrent List.

India has the maximum labour legislations in the world-about 44 Central and 100 State legislations are enforced by the Central and State Labour Departments.

Notwithstanding, coverage of the labour law is limited as benefits depend on the no. of the employees in the establishment, wage limits, nature of employment, nature of work etc.

Majority of workers in informal and unorganized sector practically are beyond the purview of labour laws.

Recently, the Govt. of India has enacted a law for un-organized workers extending benefits even to the self employed persons.

Result of restrictions on inspection by some States through self-certification, and prior permission for visit of Inspectors is not encouraging.

THE INDIAN SCENE

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INSPECTION IN CENTRAL SPHERE The question as to whether the Central or State

Govt. has to enforce a particular law in an establishment is generally decided by the definition of ‘Appropriate Govt.’ in that law.

By and large, Central Govt. is the appropriate government in respect of establishments carried on by or under the authority or Central Govt., mines banks, insurance, major ports, controlled industry, corporations created by statutes etc.

The Organization of Chief Labour Commissioner (C) popularly known as the Central Industrial Relations Machinery (CIRM) under the Ministry of Labour & Employment enforces labour laws in the Central sphere.

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The Organisation is headed by Chief Labour Commissioners and assisted by 16 Deputy Chief Labour Commissioners, 33 RLCs, 56 ALCs and 162 LEOs.

The Organisation enforces 14 enactments in labour 1,70,000 establishments. The Major enactments enforced are PW Act, MW Act, CL(R&A) Act, ER Act, PG Act, BOCW Act and PB Act.

The organisation formulates policy guidelines for inspections, allots territorial jurisdiction to officers, chalks out inspection programs and constantly endeavors to evolve best practices.

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POLICY GUIDELINES Primary responsibility of the Inspector

To take appropriate measures for securing full compliance and thereby ensuring full benefits and protection as per law to workers.

As far as possible, through education and persuasion.

Prosecutions to be the last resort. Usual courtesy and consideration to

be shown even while invoking legal sanctions.

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Thorough knowledge of the laws and regulations.

Ability to explain the benefits of laws to the society.

Knowledge of the extent and limits of the authority.

Display initiative and resourcefulness. Courteous, fair and polite to all

concerned. Impartiality in attitude and behavior. Maintenance of secrecy.

Requisites of an Inspector

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Shall depend on the nature of industry, type of the employer, location and size of the unit, extent of literacy amongst the workers, etc.

Inspections may be:• regular or routine,• Check inspections, or • Surprise inspections.

Special inspections may be required to be conducted for investigating complaints received from workers, verifying compliance reports received from employers, and for ascertaining the extent of implementation of award/settlement/recommendations of wage boards etc.

Techniques of inspection

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The inspecting officer to indicate if some minor irregularities observed and got rectified in his presence.

All particulars of the establishment also need to be submitted.

No copy of the report to be submitted/sent to the employer. The report to be treated as ‘Confidential’.

Nil Inspection Report

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Registers/records should be thoroughly checked for the period subsequent to the last inspection

The number of entries in the wage/bonus register to be checked in 100 per cent, 10 per cent subject to a minimum of 100, 5 per cent subject to a minimum of 200 and 2 percent subject to a minimum of 500, where the total entries range from 1 to 100, 101 to 2000, 2001 to 10000 and more than 10000 respectively.

The entries to be checked, should be selected on random basis.

Checking registers and records

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Inspection reports to be prepared on the spot by the inspecting officer himself in the prescribed formats.

The inspection report to be handed over on the spot to the employer or his representative except under Hours of Employment Regulations.

The inspecting officer to obtain acquaintance of recipient of inspection report together with admission, if any, of the infringement on the other copies and get the admission attested by at least own witness, if possible.

General instructions regarding inspections

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In case of refusal to accept the inspection report, the inspection note containing a remark to this effect should be got attested by at least one witness, if possible. Thereafter, the inspection report should be sent by registered post with AD.

A separate report should be submitted in respect of each employer or contractor.

“Address of the employee” wherever occurs in the inspection form should mean the employee’s present or permanent home address and not his address in the establishment.

Inspection should be carried out during normal working hours excluding intervals. The actual time of inspection should be mentioned in the inspection report.

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Regular inspection should be conducted at a time of the year when the establishment attains the peak period of employment.

More than one inspecting officer, e.g. LEO(C) and ALC(C) should not normally inspect the same establishment within a short period.

‘First’ or ‘subsequent’ inspection refers to first or subsequent inspection of the establishment, and not of the work not by the officer.

While inspecting records instead of a simple remark like ‘checked’ which is not sufficient for the purpose of evidence, the remark should describe/indicate the specific irregularity.

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Records/ registers to be seized only when permitted under the Act and circumstances so permitted under the Act and circumstances so demand.

The Inspector to ensure the records so seized are clearly identifiable with the concerned employer.

Employer’s/Representative’s signature to be taken with date after the last entry in the register.

Seizure-Memo carrying details of registers etc. Seized to be prepared and a copy handed over.

To be returned at the earliest, but not before purpose is served, on obtaining receipt.

SEIZURE OF RECORDS

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SECRECY OF INFORMATION Information/particulars collected during

inspection not to be passed on the employee/ Union.

Article 15 of ILO Convention 1947(81) to be given due regard.

Source of complaint leading to the inspection to be keep confidential.

Deviation can be allowed where workmen/Union make a request for open enquiry in the presence of their representative.

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Inspection may be required to verify compliance reports if submitted by employers within time and considered to be satisfactory.

After submission of prosecution proposals, compliance reports not to be verified unless specially directed by RLC (C)/competent authority.

When re-inspection of establishment conducted to verify compliance report, the Inspector to intimate state of rectification of earlier irregularities and also fresh irregularities detected, if any.

VERIFICATION OF COMPLIANCE REPORT

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For planned and systematic inspections, registers in prescribed forms ‘A’ and ‘B’ to be maintained.

Register in form 'A’ to contain particulars of permanent and semi-permanent establishments.

Register in form ‘B’ to contain particulars of purely temporary and casual establishments including those of contracts.

Dismissal of prosecution complaints and acquittal of accused on the ground of non-service of summons for want of correct and complete address can be avoided by maintaining the information and updating them from time to time.

The information can be had from principal employers’ records, partnership deeds, Articles of Association, District Mining Office, etc.

INFORMATION ABOUT PARTICULARS OF ESTABLISHMENTS

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The CIRM enforces the following labour laws and rules framed there under:

MW Act 1948 and Central Rules 1950. PW Act 1936and Rules made there under for mines, Railways, air transport

services and docks, wharves and jetties. CL (R&A) Act 1970 and Central Rules 1971. ER Act 1976 and Rules 1976. ISMW (RE&CS) Act 1979 and Central Rules 1980. Child Labour (P& R) Act 1986 and Rules 1988. Payment of Gratuity Act 1972 and Central Rules 1972. Labour laws (EFFR&MRBCE) Act 1988. BOCW(RE&CS) Act 1996 and Central Rules 1998. IE(SO) Act 1946 and Central Rules 1946. Payment of Bonus Act 1965 and Rules 1975. HOER for railway employees under Indian Railways Act. ID Act 1947 and Central Rules 1957

ENFORCEMENT OF LABOUR LAWS

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CIRM enforces labour laws in approximately 1,70,000 establishments through routine, special drive, crash program and taskforce program inspections etc.

Priorities are given to the enforcement of MW Act, CL(R&A) Act, BOCW(RE & CS) Act, ER Act etc. in un-organised sector.

40,934 inspections conducted, 10,800 prosecutions launched, 2327 claim cases filed, 2362 claim cases decided and Rs. 4,78,77,012 awarded as compensation in 2007-2008.

The figures justify that inspection are not ends, but means to ends.

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MW Act About 15,000 inspections, 5500 prosecutions and

2500 claim cases are launched every year. The amount of compensation awarded is about 40 Million rupees.

CL(R&A) Act About 6000 inspections, 3000 prosecutions and

1000 convictions are effected every year. PW Act

About 5000 inspections and 1700 prosecutions are caused leading to 1300 convictions every year.

ACTWISE FIGURES REGARDING ENFORCEMENT

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PG ActComplaint as well as inspection-based

legislation, the number of inspections conducted and claim applications received every year are approximately 1500 and 4500 respectively.

No. of prosecution launched is about 30, the number of claim applications decoded is about 4500 and the amount awarded every year is to the tune of 650 Million rupees.

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ER Act Although an inspection as well as complaint

based legislation, very few claim cases are filed as the workmen covered under this Act are also covered under MW Act, and when both male and female workers are paid less than minimum rates of wages, claim is filed under MW Act.

No. of inspections conducted, number of prosecutions launched, and number of convictions brought about every year are 3000, 500 and 3000 respectively.

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Child Labour (P&R) Act, 1986Approximate 1500 inspections, 20

prosecutions and 10 convictions are effected every year.

Payment of Bonus Act, 1965No. of inspections, no. of prosecutions and

no. of convictions each year are about 700, 30 and 10 respectively.

ISMW(RE&CS) Act, 1979Approximately 60 inspections every year

lead to the same number of prosecutions and convictions.

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BOCW(RE&CS) ActThe number of inspections conducted last

year is 686 and the number of prosecutions under Section 47, 48, and 49 last year was 643.

HOER (Chapter VI-A of IR Act)About 1500 inspections are conducted every

year. However, no prosecution is launched as the

LEOs(C) conduct inspections in the capacity as supervisors of railway labour under HOER.

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Bottlenecks attributed to system, Inspector and the law which is enforced.

Low level of motivation Low Status

• Terms of employment faced inferior in comparison with their qualifications, experiences and duties.

Lack of career prospects• In most of the cases, just one promotion

throughout the service career.Social stigma

• He is more feared than respected.• The term ‘Inspector Raj’ adds to his feeling of

lowness.

BOTTLENECKS IN INSPECTION

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Diminishing relevance of old laws and inadequate provisions.

Inadequate infrastructural facilities.Inadequate strength in Inspectors (vis-à-

vis the no. of establishments, their geographical distribution, no. of workers and the no. of laws)

Multifarious tasks of Inspectors ILO Convention No. 81 stipulates that further

duties, if entrusted to Inspectors, shall not be such as to affect the effective discharge of their primary duties.

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Difficulty in objective assessment of Inspector’s performance

Credit given only in terms of number of establishments inspected irrespective of the size of the workforce, number of workers interrogated, number of registers/entries checked, number of irregularities detected, amount of less payment detected etc.

Lack of growth of employment compels workers to accept whatever terms are offered.

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Overcoming the bottlenecks enumerated above. Simplification in inspection and inspection related

procedure. New orientation about his role as facilitator rather

than enforcer. Conducting ‘effective’ and ‘relief-oriented’

inspection. Sensitization of employers and their

organizations, workers and their associations and the Inspectorate through counseling, training, persuasion and social dialogue.

CHALLENGES IN THE ENFORCEMENT AND INSPECTION

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Labour Inspector should not be equated with his counterparts in other departments.

The ambit of knowledge a labour Inspector has to possess is not comparable with that of other Inspectors.

Reform in the system of inspection. Reform in laws

• Definition of ‘APPROPRIATE GOVERNMENT’, stringent punitive measures, removing ceilings etc.

Inspector to be granted with status commensuration with his duties, responsibilities and worth.

Doing away with inspection a distant reality.• Hence, healthy suggestions required for improving the

system and for inspection to achieve its purpose.

CONCLUSION

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Relief-oriented inspections. Simplification of procedures, returns and

registers. System of meaningful dialogue with social

partners to improve conciliation service. Equip the organisation with modern means of

communication, connectivity through computer network and software.

Reforms in LABOUR LAWS in reference to the current scenario as and when required and necessary.

VISION FOR FUTURE

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JAI HIND

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