labour fd.docx

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CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT REPORTLABOUR LAW

ASSIGNED TOPIC: THE INTER-STATE MIGRANT WORKMEN (REGULATION

OFEMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979 : LICENSING OF

CONTRACTORS

SUBMITTED BY

SHATAKSHI SHARMA

ROLL NUMBER: 609

SUBMITTED TO

Dr. S.C. ROY

FACULTY OF LAW: LABOUR LAW


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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by

me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor ofLabour Law, Dr. S.C. Roy for his valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a lot of

help for the completion of this project. The contributions made by my classmates and friends are,

definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also. I would also like

to thank the persons interviewed by me without whose support this project would not have been

completed.

SHATAKSHI SHARMA

5th Semester


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RESEARCH METHODOLOGY

Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher has made

extensive use of the available resources at library of the Chanakya National Law University and

also the internet sources.

Aims and Objectives

The aim of the project is to present an overview of various aspects relating to PUBLIC

CHARITY AND PUBLIC NUISANCE through cases, decisions and suggestions and different

writings and articles

Scope and Limitations

Though the study of the this topic is an immense project and pages can be written over the topic

but due to certain restrictions and limitations the researcher has not been able to deal with the

topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Cases

2. Books

3. Journals

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation

The researcher has followed the bluebook method of citation throughout the course of this

research paper.


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TABLE OF CONTENTS

1.INTRODUCTION ..................................................................................................................................... 5

2. ROLE OF CONTRACTOR...................................................................................................................... 7

2.1 Migrants and Social Security .............................................................................................................. 7

2.2 The Duties of the Contractors towards Ensuring Social Security for Laborers .................................. 9

3. LICENSING OF CONTRACTORS ................................................................................................... 11

3.1 Appointment of licensing officers..................................................................................................... 12

3.2Licensing of Contractors.................................................................................................................... 12

3.3 Revocation, suspension and amendment of licenses. ........................................................................ 14

3.4Appeal ................................................................................................................................................ 15

4.CONCLUSION ........................................................................................................................................ 16

5.BIBLIOGRAPHY .................................................................................................................................... 17


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1.INTRODUCTION

Migration is a complex phenomenon involving the movement of person, group from one place to

another. This movement in terms of duration, destination and characteristics may vary. Themigration of the workers from rural to sub-urban, and from these places to the urban area

particularly the metropolitan city has seen steady rise. The migration affects the equilibrium at

the place of origin and destination in terms of employment opportunity, provisions for housing,

basic amenities, and other means of sustenance. These provision forms essential component for

the social security. The right to social security is basic human right of an individual and essential

for the society development and progress. The issue of the right to the social security of the

migrant is mandated in the fundamental and inalienable constitutional right to freely move,

reside, settle and practice any profession, or to carry any trade in any part of the territory of

India. This in general applies to the migrants who leave the place of origin in search of jobs and

includes skilled, unskilled, and non-skilled workman.1

The finance capitals thrust for cheap labour to bring down the cost of production in an

environment of cut throat competition has given a powerful impetus to the phenomenon of

migration of labour both within as well as outside the country. The migration of labour has

created a totally unregulated labour market where finance capital will have its sway over the

entire gamut of labour relationsWith all the migration of people from place to place in search of

their livelihood there are many problems encountered by these people when they go out to work.

Problems related to their accommodations, food and also related to the work condition so, there

is need for a machinery that could aid the cause of these poor workers and solve their problems

easily.2

The government has made an act viz. The Inter-State Migrant Workmen (Regulation Of

Employment And Conditions Of Service) Act, 1979.

Object of this act is to protects the dignity of life and the interests of the workers whose services

are requisitioned outside their native states in India. Whenever an employer faces shortage of

skills among the locally available workers, the act creates provision to employ better skilled

1 Utsa Patnaiak, "Trends in Urban Poverty under Economic reforms: 1993-94 to 2004-2005."Ecomnomic and

Political Weekly, Jan.2010, Vol. XLV no. 4,at page 42 India-Urban Poverty Report (2009), Ministry of Housing and Urban Poverty Alleviation ;GOI with Support of

UNDP


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workers available outside the state. While employing the interstate workers, the principal

employers shall pay equal or better wages to interstate migrant workmen performing similar

nature of work by the local workmen or stipulated minimum wages under the Minimum Wages

Act, 1948 whichever is more. In addition the interstate workers shall be paid displacement

allowance, home journey allowance including payment of wages during the period of journey.

They shall be provided with suitable residential accommodation and medical facilities free of

charge on mandatory basis. This act deals with the employment of inter-State migrant workmen

and to provide for their conditions of service and for matters connected therewith. It includes all

the necessary provisions to monitor the concerned cause. It provides a regime for uniform and

effective law to meet the constitutional obligation of conferring the migrant workers and their

family's right to live with human dignity. Parliament passed the Inter State Migrant workmen

(Regulation and Conditions of Service) Act 1979 specifically to deal with malpractices

associated with the recruitment and employment of workers who migrate across state boundaries.

The Act followed the recommendations of a committee set up by the Labour Minister's

Conference in 1976. The Act covers only interstate migrants recruited through contractors or

middlemen and those establishments that employ five or more such workers on any given day.

Under the Act; Contractors and establishments are required to be licensed and registered by a

notified registering authority. The contractor are then authorised to issue a passbook to every

worker, giving details about the worker, including payments and advances, and pay each worker

a displacement allowance and a journey allowance and to pay timely wages equal to or higher

than the minimum wage; provide suitable residential accommodation, prescribed medical

facilities and protective clothing; and notify accidents and casualties to specified authorities and

kin.


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2. ROLE OF CONTRACTOR

2.1 Migrants and Social Security

Poorer migrant workers, crowded into the lower ends of the labour market, have few entitlements

vis a vis their employers or the public authorities in the destination areas. They have meagre

personal assets and suffer a range of deprivations in the destination areas. In the source areas,

migration has both negative and positive consequences for migrants and their families. Migrant

labourers, whether agricultural or non-agricultural, live in deplorable conditions. There is no

provision of safe drinking water or hygienic sanitation. Labourers working in harshcircumstances and living in unhygienic conditions suffer from serious occupational health

problems and are vulnerable to disease. Those working in quarries, construction sites and mines

suffer from various health hazards.3

The right to social security is basic and inalienable human

right essential for human being to lead a dignified life. This has been envisioned by the

constitution maker in the object statement of the Constitution, fundamental rights, Directive

principle of state policy and the conventions and covenants we have accepted as members of the

inter-governmental organisations.4

The preamble of the constitution of India recognises the individual as the building block of the

institution whose dignity and integrity can be protected by bestowing upon him the economic,

social and political justice. The state has been described as the democratic and the socialistic

state. A democratic state is a state that is based on the concept of equality and accountability. A

socialist state is one that accepts the responsibility for providing and ensuring 'Social Security' to

its entire citizen without discrimination.5

Migrants at the lower end of the market comprise mostly unskilled casual labourers or those who

own or hire small means of livelihood such as carts or rickshaws and are self- employed. Migrant

labourers are exposed to large uncertainties in the potential job market. To begin with, they have

3 R. Teerink , migration and its impact on Khandesi Women in Sugar Cane Harvest. In; Indo-Dutch Series on

Development Alternatives 16, New Delhi. Sage Publication(1995)4 National Sample Survey Organisation,58th round.5 Report of the Second National Labour Commission, Chapter-VIII, Para8.9


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little knowledge of the market and risk high job search costs. The perceived risks and costs tend

to be higher the further they are from home.6There are several ways in which migrants minimise

risks and costs. For a number of industries, recruitment is often done through middlemen. In

many cases, these middlemen are known to the job seekers and may belong to the source area. In

other cases, migrants move to the destination areas of their own12. The movement of migrants in

groups, often sharing kinship ties, also provides some protection in the context of the harsh

environment in which migrants travel, seek jobs and work. In West Bengal, labourers are

sometimes recruited at bus stands or employers often go to the source area and recruit labourers.

Contractors, are the other medium for recruitment in the agricultural and rural sectors7

The DPSP under the provision8states that the state shall strive to promote the welfare of the

people by securing and protecting, as effectively as it may, a social order in which justice, social,

economic and political, shall inform all the institution of the national life. The State shall , in

particular strive to minimise inequities in income, and endeavour to eliminate inequities in the

status , facilities and opportunities not only amongst groups of people residing in different areas

or engaged in different vocation.

The state shall, in particular, direct its policy towards securing ; a) that the citizens, men and

women equally , have an adequate means to livelihood . b) that the health and strength of

workers, men and women and tender age of children are not abused and that citizens are not

forced by the economic necessity , to enter into an avocations unsuited to their age. c) that

children are given opportunities and facilities to develop in a healthy manner in conditions of

freedom and dignity and that childhood and youth are protected against exploitation and against

moral and material abandonment. (iii) The state shall make within the limits of its economic

capacity and development effective provision for securing the right to work, to education and to

public assistance in case unemployment, old age, sickness and disablement and in other cases of

undeserved want.9

The state shall endeavour to secure by suitable legislation or economic

organisation or any other way to all workers, agricultural, industrial or otherwise , work, a living

wage , condition of work ensuring a decent standard of life and full enjoyment of leisure and

6 R. Teerink , migration and its impact on Khandesi Women in Sugar Cane Harvest. In; Indo-Dutch Series on

Development Alternatives 16, New Delhi. Sage Publication(1995)7 Ravi S. Srivastava, Supra 48 Art.38 of the Constitution of India9 Art.41 of the Indian Constitution.


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social and cultural opportunities10

. Therefore the Indian constitution visualises a regime of social

security for citizen of India in general and the workforce in particular.

2.2 The Duties of the Contractors towards Ensuring Social Security for Laborers

The act defines a Contractor11

, in relation to an establishment, means a person who undertakes

(whether as an independent contractor, agent, employee or otherwise) to produce a given result

for the establishment, other than a mere supply of goods or articles of manufacture to such

establishment, by the employment of workmen or to supply workmen to the establishment, and

includes a sub-contractor, Khatadar, sardar, agent or any other person, by whatever name called,

who recruits or employs workmen.

The act has also established the Dos and the Donts for such contractors and ensured that the

working of the firm is monitored by law. Sec 12 has to deal with the Duties and other

Obligations of the Contractors. It shall be the duty of every contractor, (a) to furnish such

particulars and in such form as may be prescribed, to the specified authority in State from which

an inter-State migrant workman is recruited and in the State in which such workman is

employed, within fifteen days from the date of recruitment, or, as the case may be, the date of

employment, and where any change occurs in any of the particulars so furnished, such changeshall be notified to the specified authorities of both the State;

(b) to issue to every inter-State migrant workman, a pass book affixed with a passport size

photograph of the workman and indicating in Hindi and English languages, and where the

language of the workman is not Hindi or English, also in the language of the workman, --

(i) the name and place of the establishment wherein the workman is employed;

(ii) the period of employment;

(iii) the proposed rates and modes of payment of wages;

(iv) the displacement allowance payable;

10 Art.43 of the Indian Constitution11 under sec 2(b) if Interstate Migrant Workmen Act


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(v) the return fare payable to the workman on the expiry of the period of his employment and in

such contingencies as may be prescribed and in such other contingencies as may be specified in

the contract of employment;

(vi) deductions made; and

(vii) such other particulars as may be prescribed;

(c) to furnish in respect of every inter-State migrant workman who ceases to be employed, a

return in such form and in such manner as may be prescribed, to the specified authority in the

State from which he is recruited and in the State in which he is employed, which shall include a

declaration that all the wages and other dues payable to the workman and the fare for the return

journey back to his State have been paid.

(2) The contractor shall maintain the pass-book referred to in sub-section (1) up-do-date and

cause it to be retained with the inter-State migrant workman concerned.

For the purposes of this section and Sec. 16 specified authority means such authority as may

be specified by the appropriate Government in this behalf.12

12 Section 12 of Interstate Migrant Workmen Act


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3.LICENSING OF CONTRACTORS

The act makes various provisions related to the contractors right from its licensing to certain

other things that are essential for the working of this machinery of Migrant Labourers. Chapter

III of the Act is dedicated to Licensing of the contractors. It states: With effect from such date

25th

June, 1987, no contractor to whom this Act applies shall, recruit any person in State for the

purpose of employing him in any establishment situated in another State, except under and in

accordance with a license issued in that behalf; if such establishment is an establishment referred

to in sub- clause (i) of Cl. (a) of sub-section (1) of Sec. 2, by the licensing officer appointed by

the Central Government who has jurisdiction in relation to the area wherein the recruitment is

made; if such establishment is an establishment referred to sub-clause (ii) of Cl. (a) of sub-

section (1) of Sec. 2, by the licensing officer appointed by the State Government who has

jurisdiction in relation to the area wherein the recruitment is made; employ as workmen for the

execution of any work in any establishment in any State, persons from another State (whether or

not in addition to other workmen) except under and in accordance with a license issued in that

behalf, --(i) if such establishment is an establishment referred to in sub-clause (i) of Cl. (a) of

sub-section (1) of Sec. 2 by the licensing officer appointed by the Central Government who has

jurisdiction in relation to the area wherein the establishment is situated; (ii) if such establishment

is an establishment referred to in sub-clause (ii) of Cl. (a) of sub-section (1) of Sec. 2 by the

licensing officer appointed by the State Government who has jurisdiction in relation to the area

wherein the establishment is situated.13

Subject to the provisions of this Act, a license under sub-section (1) may contain such conditions

including in particular, the terms and conditions of the agreement or other arrangement under

which the workmen will be recruited, the remuneration payable, hours of work, fixation of wages

and other essential amenities in respect of the inter-State migrant workmen, as the appropriateGovernment may deem fit to impose in accordance with the rules, if any, made under Sec. 35

and shall be issued on payment of such fees as may be prescribed:

13 Supra15, NCRL (1991)


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Provided that if for any special reasons, the licensing officer is satisfied that it is necessary to

require any person who has applied for, or who has been issued, a license to furnish any security

for the due performance of the conditions of the license, he may after communicating such

reasons to such person and giving him an opportunity to represent his case, determine in

accordance with the rules made in this behalf the security which shall be furnished by such

person for obtaining or, as the case may be, for continuing to hold the license.14

The security which may be required to be furnished under the provision to sub-section (2) shall

be reasonable and the rules for the purposes of the said proviso shall, on the basis of the number

of workman employed, the wages payable to them, the facilities which shall be afforded to them

and other relevant factors provide for the norms with reference to which such security may be

determined.

3.1 Appointment of licensing officers

Section 7 of this act deals with the Appointment of licensing officers it provides that The

appropriate Government may, by order notified in the official Gazette appoint such persons,

being officers of Government, as it thinks fit to be licensing officers for the purposes of this

Chapter; and define the limits, within which a licensing officer shall exercise the jurisdiction

sand powers conferred on licensing officers by or under this Act.

3.2Licensing of Contractors

For Licensing of contractors there is a certain procedure which is required to be followed as

provided in section 8 of Interstate Migrant Workmen Act. It provides thatthe appropriate

Government may, by notification in the official Gazette, appoint, no contractor to whom this Act

applies shall, --

(a) recruit any person in State for the purpose of employing him in any establishment situated in

another State, except under and in accordance with a licence issued in that behalf

14Ankit Kr Mishra,Migrant Labour- A detailed Study available at http://www.labourfile.org/cec1/cec. visited on

17 Oct 2011
http://www.lawyersclubindia.com/profile.asp?member_id=79979http://www.lawyersclubindia.com/profile.asp?member_id=79979http://www.lawyersclubindia.com/profile.asp?member_id=79979http://www.lawyersclubindia.com/articles/Migrant-Labour-A-detailed-Study-4218.asphttp://www.lawyersclubindia.com/articles/Migrant-Labour-A-detailed-Study-4218.asphttp://www.labourfile.org/cec1/cechttp://www.labourfile.org/cec1/cechttp://www.lawyersclubindia.com/articles/Migrant-Labour-A-detailed-Study-4218.asphttp://www.lawyersclubindia.com/profile.asp?member_id=79979


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(i) if such establishment is an establishment referred to in sub-clause (i) of Cl. (a) of sub-section

(1) of Sec. 2, by the licensing officer appointed by the Central Government who has jurisdiction

in relation to the area wherein the recruitment is made;

(ii) if such establishment is an establishment referred to sub-clause (ii) of Cl. (a) of sub-section

(1) of Sec. 2, by the licensing officer appointed by the State Government who has jurisdiction in

relation to the area wherein the recruitment is made;

(b) employ as workmen for the execution of any work in any establishment in any State, persons

from another State (whether or not in addition to other workmen) except under and in accordance

with a licence issued in that behalf, --

(i) if such establishment is an establishment referred to in sub-clause (i) of Cl. (a) of sub-section

(1) of Sec. 2 by the licensing officer appointed by the Central Government who has jurisdiction

in relation to the area wherein the establishment is situated;

(ii) if such establishment is an establishment referred to in sub-clause (ii) of Cl. (a) of sub-section

(1) of Sec. 2 by the licensing officer appointed by the State Government who has jurisdiction in

relation to the area wherein the establishment is situated.

(2) Subject to the provisions of this Act, a licence under sub-section (1) may contain such

conditions including in particular, the terms and conditions of the agreement or other

arrangement under which the workmen will be recruited, the remuneration payable, hours of

work, fixation of wages and other essential amenities in respect of the inter-State migrant

workmen, as the appropriate Government may deem fit to impose in accordance with the rules, if

any, made under Sec. 35 and shall be issued on payment of such fees as may be prescribed:

Provided that if for any special reasons, the licensing officer is satisfied that it is necessary to

require any person who has applied for, or who has been issued, a licence to furnish any security

for the due performance of the conditions of the licence, he may after communicating such

reasons to such person and giving him an opportunity to represent his case, determine in

accordance with the rules made in this behalf the security which shall be furnished by such

person for obtaining or, as the case may be, for continuing to hold the licence.

(3) The security which may be required to be furnished under the proviso to sub-section


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(2) shall be reasonable and the rules for the purposes of the said proviso shall, on the basis of the

number of workman employed, the wages payable to them, the facilities which shall be afforded

to them and other relevant factors provide for the norms with reference to which such security

may be determined.

While following the due procedure as provided in section 8 of this act licences are granted to the

contractors authorizing intermeddlers or contractors. This section provides that every application

for the grant of a licence under sub-section (1) of Sec. 8 shall be made in the prescribed form and

shall contain the particulars regarding the location of the establishment, the nature of process,

operation or work for which inter-State migrant workmen are to be employed and such other

particulars as may be prescribed.

The licensing officer may make such investigation in respect of the application received under

sub-section (1) and in making any such investigation, the licensing officer shall follow such

procedure as may be prescribed. And further provides that licence granted under Sec. 8, shall be

valid for the period specified therein and may be renewed from time to time for such period and

on payment of such fees and on such conditions as may be prescribed.15

3.3 Revocation, suspension and amendment of licenses.

Revocation of licenses means the act or an instance of revoking the licensing if it is not in

accordance with the provisons as provided under this act. Suspension means a temporary

abrogation or cessation.16

Revocation or suspention is done If the licensing officer is satisfied,

either on a reference made to him in this behalf or otherwise, that, a license granted under Sec.8

has been obtained by misrepresentation or suppression of any material fact, or the holder of a

license has, without reasonable cause, failed to comply with the conditions subject to which the

license has been granted or has contravened any of the provisions of this Act or the rules made

thereunder, then, without prejudice to any other penalty to which the holder of the license may be

liable under this Act, the licensing officer may, after giving the holder of the license anopportunity to be heard by order in writing, revoke the licence or forfeit the security furnished by

him under the proviso to sub-section of Sec. 8 or any part thereof and communicate the order to

the holder of the license:

15 Section 8 of Interstate Migrant Workmen Act16 Ankit Kumar Mishra,Supranote 14


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Provided that where the licensing officer consider it necessary to do so for any special reasons,

he may, pending such revocation or forfeiture, by order, suspend the operation of the licence for

such period as may be specified in the order and serve, by registered post, such order along with

a statement of the reasons on the holder of the licence and such order shall take effect on the date

on which such service is effected. Subject to any rules that may be made in this behalf, the

licensing officer may vary or amend a licence granted under Sec 8.17

3.4Appeal

Any person aggrieved by an order made under Sec. 4, Sec. 5, Sec. 8 or Sec. 10 may, within thirty

days from the date on which the order is communicated to him, prefer an appeal to an appellate

officer who shall be a person nominated in this behalf by the appropriate Government:

Provided that the appellate officer may entertain the appeal after the expiry of the said period of

the thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing

the appeal in time.

(2) On receipt of an appeal under sub-section 91), the appellate officer shall, after giving the

appellant an opportunity of being heard, dispose of the appeal as expeditiously as possible.18

17 Section 9 of Interstate Migrant Act18 Section 10


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4.CONCLUSION

Over time, migrant labour became institutionalized in India and regular, long-term relationships

between job providers and migrant laborers were established. By now, systems of migration have

become regularized and various types of contractual systems have emerged. Migrant laborers

have not only become an integral part of Indias economy, but also important constituents of

society. It lays down that contractors must pay timely wages equal or higher than the minimum wage provide

suitable residential accommodation, prescribed medical facilities protective clothing, notify accidents and

causalities to specified Authorities and kin. The Act provides right to raise Industrial Disputes

in the provincial jurisdiction where they work or in their home province. The act sets penalties including

imprisonment for non-compliance. At the same time the act provides an escape route to principal employers if they

can show that transgressions were committed without their knowledge. Needless to say, that the Act remained

only on the paper. The record of prosecutions or dispute settlement is almost nil.

The Migrant Labourers face additional problems and constraints as they are both labourers and

migrants

But, the problem is that these constituents are continuously fighting for their survival and the

brutal situation they are in, can not be expressed in words. Laws and huge plans are made for

these people but all on papers, the practical situation exists as it is and one has to start from a

scratch.


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5.BIBLIOGRAPHY

STAUTES the Constitution of India, 1950 Interstate Migrant Workmen Act

BOOKS Basu Durga Das (1993), Introduction to the Constitution of India , Prentice Hall of

India Pvt. Ltd., New Delh

Dr. Avtar Singh, Introduction to Labour and Industrial Law (Ed.2nd, Lexis NexisButterworths Wadhwa, Nagpur, 2008).

P.K. Padhi,Labour and Industrial Laws, 2007, (Prentice Hall of India Private Ltd.,New Delhi.)

Utsa Patnaiak, "Trends in Urban Poverty under Economic reforms: 1993-94 to 2004-2005."Ecomnomic and Political Weekly, Jan.2010, Vol. XLV no. 4,at page 4

R. Teerink , migration and its impact on Khandesi Women in Sugar Cane Harvest.In; Indo-Dutch Series on Development Alternatives 16, New Delhi. Sage

Publication(1995)

REPORT National Sample Survey Organisation,58th round. Report of the Second National Labour Commission, Chapter-VIII India-Urban Poverty Report (2009), Ministry of Housing and Urban Poverty

Alleviation ;GOI with Support of UNDP

Documents

labour fd.docx