Study Materials on Labour Law - II

Chetankumar T.M.
Assistant Professor,
Raja Lakhamgouda Law College,
Belagavi – 590006.
Email: chetancheak@gmail.com
Mobile: 8095628987, 9242126593

Unit - I
Constitution and labour welfare
Introduction

Especially after the Second World War, labour law has enjoyed a
significant place in developed as well as developing economies. It is expected to
work as an important instrument of welfare state. It has helped countries to lay
down foundations of societies as well as some of the basic postulates of
organizational governance.

Labour law––especially industrial relations law––can also be seen as an

instrument of maintaining some kind of balance between incomes of people as
also a medium of securing dignity of worklife to working people.

Most nations view labour rights as fundamental for ensuring fairness in

the carrying out of the labour process. In actuality, labour rights reflect some
kind of compromise between notions of productivity, efficiency and freedom of
contract on the one hand and social justice and labour standards on the other.

After Independence from the colonial rule in 1947, the Indian state consciously
chose the path of passing labour legislations on different spheres of work. A
number of such laws were enacted with the active role of trade union
leadership.

For example, most labour laws in the country envisage quasi-judicial

bodies for expeditious settlement of labour claims under different labour laws.
India adopted a system of Five-Year plans for planning its economic
development. Most five-year plans have made particular mention of promoting
growth with social justice; and labour laws were given a prominent place in this
regard. The Indian judiciary has played a salutary role in progressive
interpretation of these laws.
Labour Laws and Constitutional Framework

The Constitution of India – the super-ordinate law of the land – guides all
legislative, executive and judicial actions in the country. The Seventh Schedule
of the constitution envisages distribution of legislative powers between central
and state legislatures on different matters. The Schedule contains three lists –

Central List (List I),

State List (List II) and

Concurrent List (List III).

For matters contained in List I only Parliament, the Central Legislature,

can enact a law; for matters specified in List II only the State Legislature
concerned can enact a law; and for matters contained in List III, both Central
and State Legislatures can enact a law.

In case a matter falls in List III, and a case of repugnancy arises between
the laws passed by the Central Legislature and the State Legislature, then the
Central law will prevail over State law. But in case such legislation is submitted
to the President for his assent, and which is duly accorded, then the State law
will prevail over the central law.

The Preamble of the Constitution is also an important source of power to the

legislature for enacting laws for the protection of labour. It promises to secure
to the people “justice, social, economic and political; liberty of thought,
expression, belief, faith and worship; equality of status and of opportunity ….”
The Directive Principles of State Policy as envisaged in Part IV of the
Constitution are not enforceable in any court of law.

Labour Laws at International Level

The Industrial Revolution concentrated labour into mills, factories and

mines, thus facilitating the organization of combinations or trade unions to
help advance the interests of working people.

In the 1830s and 1840s the Chartist movement was the first large scale
organized working class political movement which campaigned for political
equality and social justice.

History of labour law concerns the development of labour law as a way of

regulating and improving the life of people at work.
The Code of Hammurabi is a well-preserved Babylonian law code, dating back
to about 1772 BC. It is one of the oldest deciphered writings of significant
length in the world. The sixth Babylonian king, Hammurabi, enacted the code,
and partial copies exist on a human-sized stone stele and various clay tablets.

The Code consists of 282 laws, with scaled punishments, adjusting "an
eye for an eye, a tooth for a tooth" (lex talionis) as graded depending on social
status, of slave versus free man. Nearly one-half of the Code deals with matters
of contract, establishing for example the wages to be paid to an ox driver or a
surgeon. This code covered the trade, slavery and duties of workers.

Latin-American authors point to the laws of the Indies promulgated by

Spain in the 17th century for its new world territories. In 1886, at Chicago USA
different workers‘ organizations held demonstration and agitations demanded
eight hours work etc. which had effected the workers throughout the world on
May Day and thereafter necessary amendments were made in the labour laws.

Constitution of India and Labour Laws

The Constitution of India, which came into force on January 26, 1950,
retains the old division of powers between the union and states as in the
previous Government of India Act, 1935.

The Constitution of India in its preamble has declared that it aims at

securing for all citizens- justice, social, economic and political.‘ These
objectives and social goals, for which the Indian Constitution has been
founded, reflect the concern and dedication of the people of India to establish a
really welfare State for the good of all people irrespective of caste, language,
religion and belief.

The executive, legislative and judiciary processes are thus enjoined to

adhere to this social philosophy and secure content of social services for the
people.

In Crown Aluminium Works v. Workmen, (AIR 1958 SC 34) Mr. Justicee

Gajendragadkar observed that the Indian Constitution has given a place of
pride to the attainment of the ideal of social and economic justice, and that is
the basis of new guiding principles of social welfare and common good. Indeed
the modern labour legislation in India bears a striking impact of the basic law
of the country.
 The philosophy of social justice, enshrined in the various provisions of
the Constitution, has given a sweeping content of social justice to Indian
labour legislation.

The constitutional commitment for labour is direct and it involves the

creation of a new social order through law for the benefit of the common and
needy man. The framers of the Indian Constitution realized the significance,
the new wind of change, and incorporated Directive Principles of State Policy
which it shall be the duty of the State to apply in making its laws.

There are certain provisions in Constitution of India and those are meant for
the labour. These are:-

Art.19: Right to freedom

Art.23 and 24: Right against exploitation.

Art.32: Right to constitutional remedies.

Art.39: Equal pay for equal work.

Art.41: Right to work.

Art.42: Just and humane conditions of work and maternity relief.

Art.43: Living wage, etc. for workers.

Art.43-A: Participation of workers in management of industries.

Art.136: Special leave to appeal to the Supreme Court.

Art.226: Power of High Court to issue certain writs.

The Constitution guarantees all such fundamental rights concerning

labour also.

The State shall not deny to any person equality before law or the equal
protection of laws.

Article 19 (i) provides that all citizens shall have the right

(a) to freedom of speech and expression

(b) to assemble peaceably without arms;

(c) to form association and unions;

 (d) to practice any profession or to carry on any occupation, trade and
business.

There cannot be any right which is injurious to the community as a

whole. If people were given complete and absolute liberty without any social
control the result would be ruin.

Article 23 protects the individual not only against the State but also
against private citizens. It imposes a positive obligation on the State to take
steps to abolish evils of traffic in human beings and beggar and other similar
forms of forced labour wherever they are found.

Article 24 of the constitution prohibits employment of children below 14 years

of age in factories and hazardous employment. This provision is certainly in the
interest of public health and safety of life of children.

State has to ensure for its people adequate means of livelihood, fair
distribution of wealth, equal pay for equal work and protection of children and
labour. Art. 39

The State is directed to ensure to the people within the limits of its
economic capacity and development in employment, education and public
assistance in cases of unemployment, old age, sickness and disablement etc.
Art. 41

Article 42 relates to economic rights. It provides that State is required to

make provisions for just and humane conditions of work and for maternity
relief.

Article 43 requires the State to strive to secure to the workers work, a living
wage, conditions of work ensuring a decent standard of life and full enjoyment
of leisure and social and cultural opportunities.

Article 43-A provides that the State should take steps, by suitable
legislation or in any other way, to secure the participation of workers in the
management of undertakings, establishments or other organizations engaged
in any industry.

There are Constitutional provisions relating to appeals against the

awards of the industrial tribunals etc. Under the Constitution, any person
aggrieved by a tribunal‘s award can, on the violation of Fundamental Right
guaranteed by Part III, move the Supreme Court or the High Court under
Article 32 and Article 226. Another alternate course for aggrieved person is to
invoke the Supreme Court‘s discretionary jurisdiction under Article 136.

Under the Constitution of India, labour is a subject in the Concurrent

List, where both the Central and State Governments are competent to enact
legislation subject to certain matters being reserved for the Centre.

Constitutional Status

Union List Concurrent List

Entry No. 55: Regulation of labour and Entry No. 22: Trade Unions; industrial
safety in mines and oil fields. and labour disputes.

Entry No. 61: Industrial disputes Entry No.23: Social Security and
concerning Union employees. insurance, employment and
unemployment.

Entry No.65: Union agencies and Entry No. 24: Welfare of labour
institutions for "Vocational ...training..." including conditions of work, provident
funds, employers liability, workmen
compensation, invalidity and old age
pension and maternity benefit.

Article 39 contains economic principles. These principles, as a matter of fact,

deserve to be positive rights. However, it must be remembered that economic
rights could not be made positive rights and enforceable by a court of law
unless an economic base is created.

Parliament in India passed the Equal Remuneration Act,1976. The Act

was amended in 1987. Thus Directive Principle has been judicially enforced by
the Supreme Court which laid down that the State must give equal pay for
equal work.
 In Radhakrishna Mills Ltd. v. Special Industrial Tribunal, AIR 1954
Mad 686, it was urged that a worker whose continuous employment suffered
because of the government‘s failure to supply electricity to the industry is
entitled to get compensation as a result of Article 41.

In D. Bhuvan Mohan Patnaik v. State of A.P. AIR 1974 SC 2092,

2096, the Supreme Court relied upon Article 42.

In Bijay Cotton Mills Ltd. v.State of Ajmer, AIR 1955 SC 33, Article 42 was
relied upon by the Supreme Court to justify the legislation providing for
minimum wages under the Minimum Wages Act, 1948.

Article 136 enables the Supreme Court to give special leave to appeal
from any order in any cause made by any court or a tribunal. It may grant
special leave in any cause i.e. civil, criminal, labour etc. Moreover the appeal
may be against the judgment or order of any court or tribunal.

Article 226 High Courts have power to issue these writs. The Supreme
Court has power to issue writs only for the enforcement of fundamental rights.
The power of High Court is wider. High Court can issue writs for any other
purpose it indicates enforcement of any right other than the fundamental
rights.

Law Relating to Bonded Labour

Introduction

Various forms of slavery existed in the Indian society before its

independence. It was first legislatively abolished by the British Empire in 1843,
through Act No. V of 1843 also known as the Indian Slavery Act, 1843.
However, this practice has not been completely eradicated from the Indian
society till date.

One of the most common forms of slavery which is still prevalent in the
Indian society is bonded Labour. Even after the independence, there have been
several legislations passed in India which abolishes bonded labour.

Meaning of Bonded Labour

Bonded labour has been defined as well as addressed as a prohibited

practice in several international conventions as well as a many Indian
legislations. It is a system of forced labour in which a debtor enters into an
agreement with the creditor. Owing to this agreement, following are the end
results:

1. Render services to the creditor (by himself or through a family member)

for a specified (or unspecified) period of time with no wages (or nominal
wages).

2. Forfeit the right to move freely.

3. Forfeit the right to appropriate or sell the product or property at the

market value from his (or his family members’) labour or service.

This definition has been provided in the Bonded Labour System

(Abolition) Act 1976.

The said agreement of bonded labour results into an undeniable loss of

freedom on part of the debtor. However, the scope of ‘loss of freedom’, as used
above has not been defined so what would be the yardstick of this ‘loss of
freedom’? The National Human Rights Commission has elucidated on the scope
in the following manner:

• Loss of freedom of employment or alternative avenues of employment to

sustain a decent livelihood.

• Loss of freedom to earn the minimum wage as notified by the

Government of India.

• Loss of freedom to move from one part of the country to another.

The system of bonded labour refers to a system wherein a creditor and a

debtor enter into an agreement of rendering services of the debtor as a mode of
repayment of the said amount. This agreement may lapse with time or may
continue for an uncertain period of time.

As per Article 23 of the Indian Constitution, traffic in human beings and

other forms of forced labour are prohibited. Based on this constitutional
provision, the Government of India passed The Bonded Labour System
(Abolition) Act, 1976. In this context, the Supreme Court of India deliberated in
the following words –

“We are, therefore, of the view that when a person provides labour of service to
another for remuneration which is less than the minimum wage, the labour or
service provided by him clearly falls within the scope and ambit of the words
“forced labour” under Article 23.”
Constitutional Safeguards

In the Constitution of India, there are a few safeguards which address

the system at hand.

Article 21 of the Indian Constitution – This is the most important and

foremost safeguard against any exploitation of human lives and their liberty. It
is part of the Basic Structure of the Constitution and cannot be amended. It
secures the right to life and right to live with human dignity to every person in
India. So, any practice of bonded labour would be in contravention of this
Constitutional provision since bonded labour deprives a person of numerous
liberties.

Article 23 of the Indian Constitution – As discussed above, the Constitution

of India expressly provides for the abolition of forced labour and prohibits this
form of forced labour in the territory of India. This not only prohibits bonded
labour but also covers the practice of Beggar and other forms of human
trafficking in India.

Article 39 of the Constitution – This is covered in Part IV of the Indian

Constitution which deals with the Directive Principles of State Policy is albeit
not enforceable but are considered irrefutable for the purpose of governance.
This constitutional provision directs the State to secure the right to an
adequate livelihood. It also directs the state to formulate its policies with an
object that no citizen is forced out of economic necessity to enter into
avocations which are not suited to them.

Article 42 of the Constitution – This is also a Directive Principle of State

Policy which states “The State shall make provision for securing just and
humane conditions of work…” This means that the state must ensure that every
person has a working condition which are just and humane for them. However,
since it is part of Part IV, it cannot be enforced.

Article 43 of the Constitution – This directive directs the State to secure i.e. –
conditions for work ensuring a decent standard of life.

Laws in India

Apart from the above mentioned constitutional provisions and

safeguards, there are also a few legislations which deal with the subject at
hand. However, the major law governing the practice of bonded labour is The
Bonded Labour System (Abolition) Act 1976. In addition to this, there are a few
more legislations in consonance with this major law in India such as Contract
Labour (Regulation and Abolition) Act 1970, Minimum Wages Act 1948 and the
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979 and even the Indian Penal Code 1860.

The Indian Penal Code recognizes the offence of unlawful compulsory

labour and imposes a punishment of imprisonment for a term extendable to 1
year or with a fine or both.

The Minimum Wages Act 1948 sets the minimum wage for certain
enumerated occupations and requires that overtime be paid to whoever
working beyond the ‘normal working day.’

Similarly, the Bonded Labour System (Abolition) Act 1976 prescribes

imprisonment for a term upto 3 years as well as a fine upto Rs. 2000/-. This
punishment is for whoever compelling a person to render their service under
bonded labour and whoever advancing the bonded debt. Every offence under
the Act is cognizable and bailable.

Consequence of Abolition under the Act of 1976

All the bonded labourers are freed and discharged from all the
obligations to render their bonded labour.

All of the customs, traditions, contracts, agreements or any instruments

by virtue of which a person (or any member of the family) is required to render
bonded labour to someone will now be deemed as void.

Every obligation of a bonded labourer to repay any bonded debt shall be

deemed to be extinguished.

All the decrees for recovery of bonded labour debt which was not fully
satisfied shall be deemed as fully satisfied after the commencement of the Act.

Every property of a bonded labourer which was removed from his possession or
forcible taken from him, shall be restored to him.

Every bonded labourer who has been detained in Civil Prison shall be
released.

Freed bonded labourers shall not be evicted from their homestead.

Case Laws

It would not be incorrect to say that the State is vested with the
responsibility of securing every citizen with a decent standard of living and
ensuring that the prohibited practices like bonded labour are not practiced in
India.

Despite these constitutional provisions, can we say that bonded labour

does not exist in India? There have been cases in India even after the
enactment of the Act which the Apex Court has dealt very deftly.

In the case of Neerja Chaudhury v. State of Madhya Pradesh, the

Supreme Court ruled – “It is the plainest requirement of Articles 21 and 23 of the
Constitution that bonded labourers must be identified and released and on
release, they must be suitably rehabilitated… Any failure of action on the part of
the State Governments in implementing the provisions of [the Bonded Labour
System (Abolition) Act would be the clearest violation of Article 21 and Article 23
of the Constitution.”

There are a few constitutional provisions that safeguard the system of

bonded labour from being practiced. In this case, the Apex Court did very well
by relating the issue of bonded labour system with the person’s fundamental
right enshrined in Article 21 of the Constitution and gave a clear thrust to the
State to implement Article 21 and Article 23 of the Constitution.

In the case of People’s Union for Democratic Rights v. Union of India,

the Supreme Court of India delivered the judgment stating – “Where a person
provides labour or service to another for remuneration which is less than
minimum wage, the labour or service provided by him clearly falls within the
scope and ambit of the word `forced labour’…”

Court has tried to expand the scope of forced labour and protect the
rights of citizens time and again.
THE BONDED LABOUR SYSTEM (ABOLITION) ACT,
1976
Introduction

An Act to provide for the abolition of bonded labour system with a view to
preventing the economic and physical exploitation of the weaker sections of the
people and for matters connected therewith or incidental thereto.

This Act contains 27 Section and divided into 7 Chapters.

Chapter – I deals with PRELIMINARY and contains Sec – 1 to 3.

Chapter – II deals with ABOLITION OF BONDED LABOUR SYSTEM &

contains Sec – 4 and 5.

Chapter – III deals with EXTINGUISHMENTS OF LIABILITY TO REPAY

BONDED DEBT & contains Sec – 6 and 9.

Chapter – IV deals with IMPLEMENTING AUTHORITIES & contains Sec –

10 to 12.

Chapter – V deals with VIGILANCE COMMITTEES & contains Sec – 13 to

15.

Chapter – VI deals with OFFENCES AND PROCEDURE FOR TRIAL &

contains Sec – 16 to 23.

Chapter – VII deals with MISCELLANEOUS & contains Sec – 24 to 27.

Chapter – I of the Act deals with Preliminary aspect. It deals with

Short title, extent and commencement

This Act may be called the Bonded Labour System (Abolition) Act, 1976.

It extends to the whole of India.

Section – 2 of the Act deals with definition part.

"advance”
"agreement"

"bonded debt,”

"bonded labour"

"bonded labour system"

"nominal wages",

Chapter – II of the Act deals with ABOLITION OF BONDED LABOUR SYSTEM

Section – 4 of the Act explains about Abolition of bonded labour system.-

(1) On the commencement of this Act, the bonded labour system shall
stand abolished and every bonded labourer shall, on such commencement,
stand freed and discharged from any obligation to render any bonded labour.

(2) After the commencement of this Act, no person shall–

(a) make any advance under, or in pursuance of, the bonded

labour system, or

(b) compel any person to render any bonded labour or other form
of forced labour.

Section – 5 explains about, Agreement, custom, etc., to be void. –

On the commencement of this Act, any custom or tradition or any

contract, agreement or other instrument (whether entered into or executed
before or after the commencement of this Act), by virtue of which any person,
or any member of the family or dependant of such person, is required to do any
work or render any service as a bonded labourer, shall be void and inoperative.

Chapter – III of the Act deals with EXTINGUISHMENTS OF LIABILITY TO

REPAY BONDED DEBT

Section – 6 explains about Liability to repay bonded debt to stand

extinguished. –

On the commencement of this Act, every obligation of a bonded labourer

to repay any bonded debt, or such part of any bonded debt as remains
unsatisfied immediately before such commencement, shall be deemed to have
been extinguished.
Section – 7 explains about Property of bonded labourer to be freed from
mortgage, etc.-

(1) All property vested in a bonded labourer which was, immediately

before the commencement of this Act under any mortgage, charge, lien or other
encumbrances in connection with any bonded debt shall be freed.

(2) If any delay is made in restoring any property, referred to in sub-

section (1), to the possession of the bonded labourer, such labourer shall be
entitled such mesne profits as may be determined by the civil court of the
lowest pecuniary jurisdiction within the local limits of whose jurisdiction such
property is situated.

Section -8 explains about Freed bonded labourer not to be evicted from

homestead, etc.-

(1) No person who has been freed and discharged under this Act from
any obligation to render any bonded labour, shall be evicted from any
homestead or other residential premises which he was occupying immediately
before the commencement of this Act as part of the consideration for the
bonded labour.

(2) If, after the commencement of this Act, any such person is evicted by
the creditor from any homestead or other residential premises, referred to in
sub-section (1), the Executive Magistrate in charge of the Sub-Division within
which such homestead or residential premises is situated shall, as early as
practicable, restore the bonded labourer to the possession of such homestead
or other residential premises.

Section – 9 explains about Creditor not to accept payment against

extinguished debt.-

(1) No creditor shall accept any payment against any bonded debt, which
has been extinguished or deemed to have been extinguished or fully satisfied
by virtue of the provisions of this Act.

(2) Whoever contravenes the provisions of sub-section (1), shall be punishable

with imprisonment for a term, which may extend to three years and also with
fine.

(3) The court, convicting any person under sub-section (2) may, in
addition to the penalties which may be imposed under that sub-section, direct
the person to deposit, in court, the amount accepted in contravention of the
provisions of sub-section (1), within such period as may be specified in the
order for being refunded to the bonded labourer.

Chapter – IV of the Act deals about IMPLEMENTING AUTHORITIES

Section – 10 explains about Authorities who may be specified for

implementing the provisions of this Act.-

The State Government may confer such powers and impose such duties
on a District Magistrate as may be necessary to ensure that the provisions of
this Act are properly carried out and the District Magistrate may specify the
officer, subordinate to him, who shall exercise all or any of the powers, and
perform all or any of the duties, so conferred or imposed and the local limits
within which such powers or duties shall be carried out by the officer so
specified.

Section – 11 explains about Duty of District Magistrate and other officers to

ensure credit.-

The District Magistrate authorized by the State Government under

Section 10 and the officer specified by the District Magistrate under that
section shall, as far as practicable, try to promote the welfare of the freed
bonded labourer by securing and protecting the economic interests of such
bonded labourer so that he may not have any occasion or reason to contract
any further bonded debt.

Section – 12 explains about Duty of District Magistrate and officers authorized

by him.-

It shall be the duty of every District Magistrate and every officer specified
by him under section 10 to inquire whether, after the commencement of this
Act, any bonded labour system or any other form of forced labour is being
enforced by, or on behalf of, any person resident within the local limits of his
jurisdiction and if, as a result of such inquiry, any person is found to be
enforcing the bonded labour system or any other system of forced labour, he
shall forthwith take such action as may be necessary to eradicate the
enforcement of such forced labour.

Chapter – V of the Act deals with VIGILANCE COMMITTEES

Section – 13 explains about Vigilance Committees.-

 (1) Every State Government shall, by notification in the Official Gazette,
constitute such number of Vigilance Committees in each district and each Sub-
Division as it may think fit.

(2) Each Vigilance Committee, constituted for a district, shall consist of

the following members, namely: --

(a) the District Magistrate, or a person nominated by him, who

shall be the Chairman;

(b) three persons belonging to the Scheduled Castes or Scheduled

Tribes and residing in the district, to be nominated by the District Magistrate;

(c) two social workers, resident in the district, to be nominated by

the District Magistrate;

(d) not more than three persons to represent the official or non-
official agencies in the district connected with rural development, to be
nominated by the State Government;

(e) one person to represent the financial and credit institutions in

the district, to be nominated by the District Magistrate.

(3) Each Vigilance Committee, constituted for a Sub-Division, shall consist of

the following members, namely:--

(a) the Sub-Divisional Magistrate, or a person nominated by him, who

shall be the Chairman;

(b) three persons belonging to the Scheduled Castes or Scheduled Tribes

and residing in the Sub-Division, to be nominated by the Sub-Divisional
Magistrate;

(c) two social workers, resident in the Sub-Division, to be nominated by

the Sub-Divisional Magistrate;

(d) not more than three persons to represent the official or non-official
agencies in the Sub-Division connected with rural development to be
nominated by the District Magistrate;

(e) one person to represent the financial and credit institutions in the
Sub-Division, to be nominated by the Sub-Divisional Magistrate;

(f) one officer specified under Section 10 and functioning in the Sub-
Division.
(4) Each Vigilance Committee shall regulate its own procedure and secretarial
assistance, as may be necessary, shall be provided by--

(a) the District Magistrate, in the case of a Vigilance Committee

constituted for the district;

(b) the Sub-Divisional Magistrate, in the case of a Vigilance Committee

constituted for the Sub-Division.

(5) No proceeding of a Vigilance Committee shall be invalid merely by reason of

any defect in the constitution, or in the proceedings, of the Vigilance
Committee.

Section – 14 explains about Functions of Vigilance Committees.- (1) The

functions of each Vigilance Committee shall be,--

(a) to advise the District Magistrate or any officer authorized by him as to

the efforts made, and action taken, to ensure that the provisions of this Act or
of any rule made thereunder are properly implemented;

(b) to provide for the economic and social rehabilitation of the freed
bonded labourers;

(c) to co-ordinate the functions of rural banks and co-operative societies

with a view to canalizing adequate credit to the freed bonded labourer;

(d) to keep an eye on the number of offences of which cognizance has

been taken under this Act;

(e) to make a survey as to whether there is any offence of which

cognizance ought to be taken under this Act;

(f) to defend any suit instituted against a freed bonded labourer or a

member of his family or any other person dependent on him for the recovery of
the whole or part of any bonded debt or any other debt which is claimed by
such person to be bonded debt.

(2) A Vigilance Committee may authorize one of its members to defend a

suit against a freed bonded labourer and the member so authorized shall be
deemed, for the purpose of such suit, to be the authorized agent of the freed
bonded labourer.

Section – 15 explains about Burden of proof.-

 Whenever any debt is claimed by a bonded labourer, or a Vigilance
Committee, to be a bonded debt, the burden of proof that such debt is not a
bonded debt shall lie on the creditor.

Chapter – VI of the Act deals with OFFENCES AND PROCEDURE FOR TRIAL

Section – 16 explains about Punishment for enforcement of bonded labour.-

Whoever, after the commencement of this Act, compels any person to

render any bonded labour shall be punishable with imprisonment for a term,
which may extend to three years and also with fine, which may extend to two
thousand rupees.

Section – 17 explains about Punishment for advancement of bonded debt.-

Whoever advances, after the commencement of this Act, any bonded debt
shall be punishable with imprisonment for a term, which may extend to three
years and also with fine which may extend to two thousand rupees.

Section – 18 explains about Punishment for extracting bonded labour under

the bonded labour system.-

Whoever enforces, after the commencement of this Act, any custom,

tradition, contract, agreement or other instrument, by virtue of which any
person or any member of the family of such person or any dependant of such
person is required to render any service under the bonded labour system shall
be punishable with imprisonment for a term which may extend to three years
and also with fine which may extend to two thousand rupees; and, out of the
fine, if recovered, payment shall be made to the bonded labourer at the rate of
rupees five for each day for which the bonded labour was extracted from him.

Section – 19 explains about Punishment for omission or failure to restore

possession of property to bonded labourers.-

Whoever, being required by this Act to restore any property to the

possession of any bonded labourer, omits or fails to do so, within a period of
thirty days from the commencement of this Act, shall be punishable with
imprisonment for a term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both; and, out of the fine, if recovered,
payment shall be made to the bonded labourer at the rate of rupees five for
each day during which possession of the property was not restored to him.
Section – 20 explains about Abetment to be an offence.-

Whoever abets any offence punishable under this Act shall, whether or
not the offence abetted is committed, be punishable with the same punishment
as is provided for the offence, which has been abetted.

Section – 21 explains about Offences to be tried by Executive Magistrates.-

(1) The State Government may confer, on an Executive Magistrates, the

powers of a Judicial Magistrate of the first class or of the second class for the
trial of offences under this Act; and, on such conferment of powers, the
Executive Magistrate, on whom the powers are so conferred, shall be deemed,
for the purposes of the Code of Criminal Procedure, 1973 (2 of 1974), to be a
Judicial Magistrate of the first class, or of the second class, as the case may be.

(2) An offence under this Act may be tried summarily by a Magistrate.

Section – 22 explains about Cognizance of offences.-

Every offence under this Act shall be cognizable and bailable.

Section – 23 explains about Offences by companies.-

(1) Where an offence under this Act has been committed by a company,
every person who, at the time the offence was committed, was in charge of, and
was responsible to, the company for the conduct of the business of the
company, as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly.

(2) Notwithstanding anything contained in sub-section (1), where any

offence under this Act has been committed by a company and it is proved that
offence has been committed with the consent or connivance of, or is
attributable to, any neglect on the part of, any director, manager, secretary or
other officer of the Company, such director, manager, secretary or other officer
shall be deemed to be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.

Chapter – VII of the Act deals with Miscellaneous Provisions

Section – 24 explains about Protection of action taken in good faith. –

No suit, prosecution or other legal proceeding shall lie against any State
Government or any officer of the State Government or any member of the
Vigilance Committee for anything which is in good faith done or intended to be
done under this Act.

Section – 25 explains about Jurisdiction of civil courts barred.-

Section – 26 explains about Power to make rules.

EQUAL REMUNERATION ACT, 1976

Introduction

Labour force is an important section of the general community. Being a

human factor, labour is manifestly different from other factors of production.

History begins when men actually produce their means of food and
shelter. Marx argues that “the first historical act is, therefore, the production of
material life.” Production is a social enterprise since it requires co-operation.
Men work together to produce the goods and services necessary for life.

In the early phase of the industrial revolution labour as the human factor
in the production suffered. Exploitation at the hands of the newly emerged
class of employers who as the owners of the newly set up industries were
concerned with their profits only in a competitive market and completely
ignored value of the human factor in the production of the good.

The rise of large-scale factory in India dated only from the latter half of
the 19th century.

The first cotton mill in India was established in1851 in Bombay and first
jute mill in 1855 in Bengal. This was the beginning of the modern factory
system in India. The modern factory system brought in its wake employment of
women and children, long and excessive hours of work, under mining of
morality, lack of education, poor housing and an excessively high death rate.

The factory system brought with it many mal-labour practices regarding

working conditions in factories. The question of legislation to regulation
working conditions in factories was raised first time in India in the report by
Major Moore, Inspection-in-Chief of Bombay Cotton Department, on the
administration of his department for 1872-1873. He dealt with factory
conditions in Bombay and remarked specially on the length of the working
hours, the condition of women and children and the age at which children were
employed.

The term “equal pay for equal work” has its own historical significance.
Historically speaking, equal pay for work of equal value has been a slogan of
women’s movement.

Equal pay laws, therefore, usually deal with sex-based discrimination in

the pay scales of men and women doing the same work or equal work in the
same organization. For example, the Equal Remuneration Act, 1976 provides
for the payment of equal remuneration to men and women workers and is
meant to prevent discrimination on the ground of sex against women in matter
of employment.

The post independence era has witnessed remarkable development in

providing protection to working class by enacting labour legislation. The
foremost and the most revolutionary document in this regard is the
Constitution of India. The very Preamble of our Constitution strikes at the root
of the problem when it speaks of “Security to all citizens of the India, equality
of status and of opportunity as well as justice, social, economic and political.”

The ‘Equal Pay for Equal Work’ principle is reflected in various

International instruments. The International Labour Organization recognizes it
as one of its objectives. Further, it is also embodied in International Labour
Organisation Equal Remuneration Convention, 1951 which requires each
member to ensure the application of the principle of equal remuneration for
men and women worker for the work of equal value.

In our country an ordinance namely, the Equal Remuneration Ordinance

was promulgated in 1975 to give effect to the Constitutional provisions and the
I.L.O. Convention1951 in the International Women Year. The Ordinance was
replaced by the Equal Remuneration Act, 1976 seeking to provide for payment
of equal remuneration to men and women workers for payment on
discrimination on the ground of sex.

MEANING

Wages means the remuneration paid for the service of labour in

production. They are payments made by the employers for the efforts put in by
the workers in production.
 The term ‘equal pay for equal work for both men and women’ means
equal pay for equal work for everyone and as between the sexes.

Black Dictionary of law, fifth edition defined the word equal means alike,
uniform on the same place or level with respect to efficiency, worth, value,
amount or rights.

Shorter Oxford English Dictionary Sixth Edition define equal pay means
(the policy of giving) the same rate of pay for a particular job irrespective of the
sex of a person doing it.

The Oxford Dictionary of English Etymology, 1966, defines Equal means

identical in amount, degree, adequate and uniform etc.

CONCEPT

Equal pay for equal work is a dynamic concept of democratic societies,

when men and women have no discrimination regarding their work conditions.
This concept of equality and socio-economic justice has been recognized in our
Constitution and in other laws.

The Constitutional recognition and protection of equality are the basis of

all the women welfare legislation. This noble concept of equality has been
incorporated in Chapter-III of the Indian Constitution. The economic equality
has been obtained to all by equal pay for equal work and equal adequate
means of livelihood.

The Equal Employment Opportunity Commission (EEOC) was created by

title VII of the Civil Rights of 1964 and become operational from July 2, 1965.
The purpose of the commission are to end discrimination based on race,
colour, religion, age, sex, or national origin in hiring, promotion, wages, testing,
training, apprenticeship and all the conditions of employment and to promote
voluntary action programmes by employers.

NATURE AND SCOPE OF THE CONCEPT OF EQUAL PAY

The Constitution of India declares equal pay for equal work for both men
and women as an ideal to be translated into practice by the state. The concept
of equal pay for equal work is however, not made clear.

With the accelerated pace of development, advancement of modern

technology and spread of education among women, which paves the way for
the emancipation of women there has always been a demand for equal pay for
equal work for men and women worker as women don’t considered themselves
inferior to men.

Equal pay for men and women for work of equal value is one of the
directive principles of the constitution of India and the I.L.O. has also adopted
a convention on this subject which has been ratified by India. Equal
Remuneration Convention, 1951 was adopted by the General conference of
International Labour Organization on June 25, 1951. In order to give practical
shape to the contents of the convention, it was included in our constitutional
ethos.

SCOPE OF THE CONCEPTS ON EQUAL PAY

The Equal Remuneration Act, 1976 defines "remuneration" in Section 2

(g) as follows: "the basic wages or salary, and any additional emoluments
whatsoever payable, either in cash or in kind to a person employed in respect
of employment or work done in such employment, if the terms of the contract
of employment, express or implied, were fulfilled.“

In India, the principle of equal pay means equal remuneration for "the
same work or work of a similar nature" (Sec. 4), which in turn is defined in Sec.
2 (h) of the Act as follows:

“Work in respect of which the skill, effort and responsibility required are
the same, when performed under similar working conditions, by a man or a
woman and the differences, if any, between the skill, effort and responsibility
required of a man and those required of a woman are not of practical
importance in relation to the terms and conditions of employment”.

The principal operative section of the Equal Remuneration Act is Sec 4,

which make provision for equal remuneration as follows:

“No employer shall pay to any worker, employed by him in an

establishment or employment, remuneration, whether payable in cash or in
kind, at rates less favourable than those at which remuneration is paid by him
to the workers of the opposite sex in such establishment or employment for
performing the same work or work of a similar nature.

No employer shall, for the purpose of complying with the provisions of

sub-section (1), reduce the rate of remuneration of any worker.
 The Equal Remuneration Act, 1976 covers all industries and sectors,
public and private, organized and unorganized, and all employees doing
permanent, temporary and casual work.

The law covers central, state and local authorities, hospitals and
dispensaries, banks and financial services, educational institutions, mines,
provident funds and other state insurance corporations, the Food Corporation
of India and other warehouses, all industries under National Industrial
Classifications (NIC) groups 1, 2 and 3; power, water and gas generation, trade,
transport (water, land and air), construction, real estate and sanitation,
religious community and medical and personal services. The Act does not cover
self-employed workers like unpaid women workers in farming, households and
in the unorganized sectors in large numbers.

Since wages in general are low in India, very often there are de facto
equal wages due to the general payment of minimum wages. Thus, the
Minimum Wage Act, 1948 is of overriding importance in respect to equal
remuneration in India.

The Act states that the basic wage or day-shift payment should be the
same for the same or similar work.

The Act does not apply in cases affecting the terms and conditions of a
woman’s employment in compliance with the requirements of any law giving
special treatment to any women, or to any special treatment accorded to
women in connection with the birth or expected birth of a child, or the terms
and conditions relating to retirement, marriage or death or to any provision
made in connection with retirement, marriage or death.

There are two main reasons for the restriction in the scope and coverage
of the law. The first is that legal requirements are different for different sectors
and sizes of establishments.

The other reason for the restricted application of the law arises in
connection with the legal machinery, which makes provision for few means of
overseeing compliance with the Act. Moreover, workers, their unions, and other
public support groups do not bring the matter to the fore, since the need for
jobs by the workers exceeds the need to practice gender justice within it. The
nature of the labour market, high rates of illiteracy and widespread poverty
prevent such matters from being dealt with by the law.
 EQUAL REMUNERATION ACT, 1976
EQUAL REMUNERATION ACT, 1976

An act to provide for the payment of equal remuneration to men and

women workers and for the prevention of discrimination, on the ground of sex,
against women in the matter of employment and for matters connected
therewith or incidental thereto.

Statement of Objects and Reasons. –

Article 39 of Constitution envisages that the State shall direct its policy,
among other things, towards securing that there is equal pay for equal work for
both men and women. To give effect to this constitutional provision, the
President promulgated on the 26th September, 1975, the Equal Remuneration
Ordinance, 1975 so that the provisions of Article 39 of the Constitution may be
implemented in the year which is being celebrated as the International
Women’s Year. The Ordinance provides for payment of equal remuneration to
men and women workers for the same work or work of similar nature and for
the prevention of discrimination on grounds of sex.

The Equal Remuneration Act, 1976 has divided into 3 Chapters and
contains 18 Section.

Chapter – I deals with Preliminary Part of the Act. It contains Section 1

to 3.

Chapter – II deals with Payment of Remuneration at Equal Rates to Men

and Women Workers and Other Matters. This part contains Section 4 to 7.

Chapter – III deals with Miscellaneous Part. This part contains Sections
8 to 18.

The Act extends to whole of India.

Section – 2 of the Act explains about some important definitions of

terms which are helpful for understanding of the Act.

Some of important terms are:

“appropriate Government”

“employer”

“man” and “woman”

 “remuneration”

“same work or work of a similar nature”

“worker”

Chapter – II deals with Payment of Remuneration at Equal Rates to Men

and Women Workers and Other Matters. This part contains Section 4 to 7.

Section – 4 explains about Duty of employer to pay equal

remuneration to men and women workers for same work or work of a
similar nature

(1) No employer shall pay to any worker, employed by him in an

establishment or employment, remuneration, whether payable in cash or in
kind, at rates less favourable than those at which remuneration is paid by him
to the workers of the opposite sex in such establishment or employment for
performing the same work or work of a similar nature.

(2) No employer shall, for the purpose of complying with the provisions of
sub-section

(1), reduce the rate of remuneration of any worker.

(3) Where, in an establishment or employment, the rates of remuneration

payable before the commencement of this Act for men and women workers for
the same work or work of a similar nature are different only on the ground of
sex, then the higher (in cases where there are only two rates), or, as the case
may be, the highest (in cases where there are only two rates), of such rates
shall be the rate at which remuneration shall be payable, on and from such
commencement, to such men and women workers:

Provided that nothing in this sub-section shall be deemed to entitle a

worker to the revision of the rate of remuneration payable to him or her with
reference to the service rendered by him or her before the commencement of
this Act.

Section – 5 explains about No discrimination to be made while

recruiting men and women workers. –

On and from the commencement of this Act, no employer shall, while

making recruitment for the same work or work of a similar nature, inserted in
1987 [or in any condition of service subsequent to recruitment such as
promotions, training or transfer], make any discrimination against women
except where the employment of women in such work is prohibited or restricted
by or under any law for the time being in force:

Provided that the provisions of this section shall not affect any priority or
reservation for scheduled castes or scheduled tribes, ex-servicemen, retrenched
employees of any other class or category of persons in the matter of
recruitment to the posts in an establishment or employment.

Section – 6 explains about Advisory Committee. –

(1) For the purpose of providing increasing employment opportunities for

women, the appropriate Government shall constitute one or more Advisory
Committees to advise it with regard to the extend to which women may be
employed in such establishments or employments as the Central Government
may, by notification, specify in this behalf.

(2) Every Advisory Committee shall consist of not less than ten persons,
to be nominated by the appropriate Government, of which one-half shall be
women.

(3) In tendering its advice, the Advisory Committee shall have regard to
the number of women employed in the concerned establishment or
employment, the nature of work, hours of work, suitability of women for
employment, as the case may be, the need for providing increasing employment
opportunities for women, including part-time employment, and such other
relevant factors as the Committee may think fit.

(4) The Advisory Committee shall regulate its own procedure.

(5) The appropriate Government may, after considering the advice

tendered to it by the Advisory Committee and after giving to the persons
concerned in the establishment or employment an opportunity to make
representations, issue such directions in respect of employment of women
workers, as the appropriate Government may think fit.

Section – 7 explains about Power of appropriate Government to appoint

authorities for hearing and deciding claims and complaints. –

(1) The appropriate Government may, by notification, appoint such

officers, not below the rank of a Labour Officer, as it thinks fit to be the
authorities for the purpose of hearing and deciding—
 (a) complaints with regard to the contravention of any provision of this
Act;

(b) claims arising out of non-payment of wages at equal rates to men and
women workers for the same work or work of a similar nature,

and may, by the same or subsequent notification, define the local limits
within which each, such authority shall exercise its jurisdiction.

(2) Every complaint or claim referred to in sub-section (1) shall be made

in such manner as may be prescribed.

(3) If any question arises as to whether two or more works are of the
same nature or of a similar nature, it shall be decided by the authority
appointed under sub-section (1).

(4) Where a complaint or claim is made to the authority appointed under

sub-section (1) it may, after giving the applicant and the employer an
opportunity of being heard, and after such inquiry as it may consider
necessary, direct, —

(i) in the case of a claim arising out of a non-payment of wages at equal

rates to men and women workers for the same work or work of a similar
nature, that payment be made to the worker of the amount by which the wages
payable to him exceed the amount actually paid;

(ii) in the case of complaint, that adequate steps be taken by the

employer so as to ensure that there is no contravention of any provision of this
Act.

(5) Every authority appointed under sub-section (1) shall have all the
powers of a Civil Court under the Code of Civil Procedure, 1908, for the
purpose of taking evidence and of enforcing the attendance of witnesses and
compelling the production of documents, and every such authority shall be
deemed to be a Civil Court for all the purposes of Section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973.

(6) Any employer or worker aggrieved by any order made by an authority

appointed under sub-section (1), on a complaint or claim may, within thirty
days from the date of the order, prefer an appeal to such authority as the
appropriate Government may, by notification, specify in this behalf, and that
authority may, after hearing the appeal, confirm, modify or reverse the order
appealed against and no further appeal shall lie against the order made by
such authority.

(7) The authority referred to in sub-section (6) may, if it is satisfied that

the appellant was prevented by sufficient cause from preferring the appeal
within the period specified in sub-section (6), allow the appeal to be preferred
within a further period of thirty days but not thereafter.

(8) The provisions of sub-section (1) of Section 33-C of the Industrial

Disputes Act, 1947, shall apply for the recovery of monies due from an
employer arising out of decision of an authority appointed under this section.

Chapter – III of the Act deals with Miscellaneous Provisions and contain
Section 8 to 18.

Section – 8 explains about Duty of employers to maintain registers. –

On and from the commencement of this Act, every employer shall maintain
such registers and other documents in relation to the workers employed by him
as may be prescribed.

Section – 9 explains about Inspectors. –

(1) The appropriate Government may, by notification, appoint such persons

as it think fit to be Inspectors for the purpose of making an investigation as to
whether the provisions of this Act, or the rules made thereunder, are being
complied with by employers, and may define the local limits within which an
Inspector may make such investigation.

(2) Every Inspector shall be deemed to be a public servant within the

meaning of Section 21 of the Indian Penal Code

(3) An Inspector may, at any place within the local limits of his
jurisdiction, --

(a) enter, at any reasonable time with such assistance as he thinks fit,
any building, factory, premises or vessel:

(b) require any employer to produce any register, muster-roll or other

documents relating to the employment of workers, and examine such
documents;
 (c) take on the spot or otherwise, the evidence of any person for the
purpose of ascertaining whether the provisions of this Act are being, or have
been, complied with:

(d) examine the employer, his agent or servant or any other person found
in charge of the establishment or any premises connected therewith or any
person whom the Inspector has reasonable cause to believe to be, or to have
been a worker in the establishment;

(e) make copies, or take extracts from, any register or other document
maintained in relation to the establishment under this Act.

(4) Any person required by an Inspector to produce any register or other

document or to give any information shall comply with such requisition.

Section -10 explains about Penalties. –

(1) If after the commencement of this Act, any employer, being required by
or under this act, so to do—

(a) omits or fails to maintain any register or other document in relation to

workers employed by him, or

(b) omits or fails to produce any register, muster-roll or other document

relating to the employment of workers, or

(c) omits or refuses to gives any evidence or prevents his agent, servant,
or any other person in charge of the establishment, or any worker, from giving
evidence, or

(d) omits or refuses to give any information,

he shall be punishable [with simple imprisonment for a term which may

extend to one month or with fine which may extend to ten thousand rupees or
with both].

(2) If, after the commencement of this Act, any employer—

(a) makes any recruitment in contravention of the provisions of his Act,

or

(b) makes any payment or remuneration at unequal rates to men and

women worker, for the same work or work of a similar nature, or
 (c) makes any discrimination between men and women workers in
contravention of the provisions of this Act, or

(d) omits or fails to carry out any direction made by the appropriate
Government under sub-section (5) of Section 6.

he shall be punishable [with fine which shall not be less than ten
thousand rupees but which may extend to twenty thousand rupees or with
imprisonment for a term which shall be not less than three months but which
may extend to one year or with both for the first offence, and with
imprisonment which may extend to two years for the second and subsequent
offences].

(3) If any person being required so to do, omits or refuses to produce to an

Inspector any register or other document or to give any information, he shall be
punishable with fine, which may extend to five thousand rupees.

Section -11 explains about Offences by companies

(1) Where an offence under this Act has been committed by a company,
every person who, at the time the offence was committed, was in charge of, and
was responsible to, the company, for the conduct of the business of the
company, as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any

such person liable to any punishment, if he proves that the offence was
committed without his knowledge or that he had exercised all due diligence to
prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence

under this Act has been committed by a company and it is proved that the
offence has been committed with the consent or connivance of, or is
attributable to, any neglect on the part of any director, manager, secretary or
other officer of the company, such director, manager, secretary or other officer
shall be deemed to be guilty of that offence and shall be liable to be proceeded
against and punished accordingly.

Section – 12 explains about Cognizance and trial of offences. –

(1) No court inferior to that of a Metropolitan Magistrate or a Judicial

Magistrate of the first class shall try any offence punishable under this Act.
 (2) No court shall take cognizance of an offence punishable under this
Act except upon—

a) its own knowledge or upon a complaint made by the

appropriate Government or an officer authorized by it in this behalf; or

(b) a complaint made by the person aggrieved by the offence or by

any recognized welfare institution or organization.

Section – 13 explains about Power to make rule. –

(1) The Central Government may, by notification, make rules for carrying
out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing

power, such rules may provide for all or any of the following matters, namely—

(a) the manner in which complaint or claim referred to in sub-section (1)

of Section 7 shall be made;

(b) registers and other documents which an employer is required under

Section 8 to maintain in relation to the workers employed by him;

(c) any other matter which is required to be, or may be, prescribed.

(3) Every rule made by the Central Government under this Act shall be
laid, as soon as may be after it is made, before each House of Parliament while
it is in session, for a total period of thirty days which may be comprised in one
session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall thereafter have effect only in
such modified from or be of no effect, as the case may be; so however, that any
such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.

Section – 14 explains about Power of Central Government to give

directions. –

The Central Government may give directions to a State Government as to

the carrying into execution of this Act in the State.
Section – 15 explains about Act not to apply in certain special cases. –

Nothing in this Act shall apply—

(a) to cases affecting the terms and conditions of a woman’s employment

in complying with the requirements of any law giving special treatment to
women, or

(b) to any special treatment accorded to women in connection with—

(i) the birth or expected birth of a child, or

(ii) the terms and conditions relating to retirement, marriage or death or

to any provision made in connection with the retirement, marriage or death].

Section – 16 explains about Power to make declaration. –

Where the appropriate Government is, on a consideration of all the

circumstances of the case, satisfied that the differences in regard to the
remuneration, or a particular species of remuneration, or men and women
workers in any establishment or employment is based on a factor other than
sex, it may, by notification, make a declaration to that effect, and any act of the
employer attributable to such a difference shall not be deemed to be
contravention of any provision of this Act.

Section – 17 explains about Power to remove difficulties. –

If any difficulty arises in giving effect to the provisions of this Act, the
Central Government may, by notification, make any order, not inconsistent
with the provisions of this Act, which appears to it to be necessary for the
purpose of removing the difficulty:

Provided that every such order shall, as soon as may be after it is made,
be laid before each House of Parliament.

Section – 18 deals with Repeal and saving

 Inter – State Migration of Workers Act, 1979
Introduction

Inter-State Migrant Workers form a large part of contract labour with the
additional and aggravating character of having come from another state.
Therefore, initially the Contract Labour Act was enacted to regulate the Inter-
State Migrant Workers in certain circumstances.

The Provisions of the Contract Labour Act does not adequately protect
the interest of the workers who migrated from the native State to other state in
search of their livelihood, because of the violation of labour law that apply to
Contract Labour and Migrant Law.

Output and Profitability have assumed greater importance, encouraging

some employers to bypass or find loopholes in the laws enacted for the
protection of the interests of the workers, with the sole objective of achieving
higher productivity which in turn has affected the employer – employee
relationship one of such legislation is CLRA Act 1970. In order to avoid the
clutches of law the principal employer prefers to engage workers on contract
and not on his rolls.

The Contract labours in most of the cases are a floating community who
has no alternative but to leave their places of residence and go wherever they
find employment in whatever possible manner. In several cases there is a large
scale of exploitation in wages, conditions of work, working hours and security
of employment of the needy workers who have no alternative but to accept the
terms offered by the contractors / principal employers.

Insufficiency of provisions of the law has resulted non delivering the

intended justice to contract labour. Apart from these, the machinery created by
the government is hopelessly inadequate to enforce the provisions of the Act.

The whole issue is that the contract workers themselves are too scared to
fight their own cases. They do not dare to complain against anybody because of
the dread of the intimidation by the principal employers and contractors. If
anybody dares, he loses his job. Therefore, they have accepted all forms of
exploitation.

The compact committee constituted in 1977 recommended the

enactment of a separate central legislation to regulate the employment of Inter-
State Migrant Workmen as it was felt that the provisions of the Contract
Labour (Regulation and Abolition) Act, 1970 even after necessary amendments
would not adequately take care of the variety of malpractices indulged in by the
contractors. This gave a way for the birth of the Inter- State Migrant Workmen
Legislation.

Inter – State Migrant Law- Historical Background

Freedom of movement in any part of territory of India and freedom to

carry any avocation of one’s choice is a fundamental right guaranteed by
Article 19 of the Constitution of India.

Every citizen of India has got Constitutional fundamental right that he

can reside and settle in any part of India and can do any legal work for his
livelihood that means any person can leave his home State to other State in
India in search of employment. This freedom of movement is considered ideal
for the development of any free and liberal economy. However, such free
movements themselves create stresses and strains in the economic system.

The system of employment of Inter – State Migrant Labour is an

exploitative system prevalent in Orissa and in some other States. In Orissa,
Dadan labour is recruited from various parts of the State through contractors
or agents were called sardars / khatadars for work outside the State in large
construction projects.

This system lends itself to various abuses. Sardars promised at the time
of recruitment that wages calculated on piece rate basis would be settled every
month but that promise was not usually kept. Once the worker came under
clutches of the contractor he took him to a far off place on payment of railways
fare only. No working hours were fixed for Inter – State Migrant Workers and
they had to work on all the days in a week under extremely bad working
conditions. The provisions of the various labour laws were not being observed
in their case and they were subjected to various malpractices.

The twenty – eighth sessions of the labour minister’s conference held in

1976 in New Delhi.

This conference considered the question of protection and welfare of

Dadan labour recommended the setting up of a small compact committee to go
into the whole questions and to suggest measure for eliminating the abuses
prevalent in this system.

The Inter – State Migrant Workmen are generally illiterate, unorganized

and normally to work under extremely adverse conditions and in the view of
this hardship, some administrative and legislative arrangements both in the
state from where they are recruited and also in the state where they are
engaged for work are necessary to secure effective protection against their
exploitation.

The compact committee which was constituted in 1977 under the

chairmanship of Shri. D.Bandopadhyay recommended in its report in 1978 for
the enactment of a separate central legislation to regulate the employment of
Inter – State migrant Workers as it was felt the provisions of the Contract
Labour (Regulation and Abolition) Act, 1970, even after necessary amendments
would not adequately taken care of the variety of malpractices indulged in by
the contractors / sardars / khaledars, etc. and the facilities required to be
provided to these workmen in view of the peculiar circumstances in which they
have to work.

The recommendations of the compact committee have been examined in

consultation with the State government and the ministries of the government of
India and the suggestions made by them have been taken into account in
formulating the proposals for legislation. These events and causes are
responsible for the birth of “Inter- State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, a special and significant
protective legislation to the Inter – State Migrant Workers was passed in the
year 1979.

Law on Inter – State Migrants

The Act applies to every establishment in which five or more Inter – State
Migrant Workers are employed or were employed on any day of the preceding
12 months. The Act also likewise applies to every contractor who employs or
employed five or more Inter – State migrant Workers during the preceding
twelve months. (Section 1 (4) (a) and (b)).

The Act defines an Inter – State Migrant Workman as any person who is
recruited by or through a contractor in any state under an agreement or other
arrangement for employment in an establishment in another state, whether
with or without the knowledge of the principal employer in relation to such
establishment. (Section 2 (1) (e)).

In order to consider a person as Inter – State Migrant Workman the

following four conditions are to be satisfied under the Act.
 (i) The worker should be recruited by a ‘Contractor’ in one state. (ie,
Home State of the worker)

(ii) The recruitment should be for employment in an establishment in

another State. (ie, Host State)

(iii) The recruitment may be made by an agreement or by any other

arrangement.

(iv) The recruitment may be made with or without the knowledge of the
principal employer of an Industrial Establishment of the Host State.

The Act empowers the appropriate Government to appoint registering

officers. (Section 3)

Every principal employer of an establishment to which this Act applies

makes an application to the registering officers for the registration of the
establishment. (Section 4).

The registration of the principal employer is compulsory if the Inter –

State Migrant Workers are employed or intended to be employed in his
establishment. The registering officer shall register the establishment and issue
a certificate of registration within one month after the receipt of the application
from the principal employer if the application for registration is complete in all
respects. (Section 4 (2) (a)).

If the application for registration is incomplete the registering officer is

required to return the application to the principal employer of the
establishment. (Section 4 (2) (b)).

The Act contemplates a situation where the registering officer does not
grant registration certificate within one month or he does not return the
application treating it incomplete, the registering officer shall within 15 days
from the receipt of the application rather an application in the form of a
reminder from the principal employer, register the establishment and issue the
registration certificate. (Section 4 (3)).

Section 4 of the Act shows that when an application for registration

under the Act is moved the registering officer is required either to register the
establishment or to return the application on the ground that it is not complete
as required.
 The Act empowers the registering officer to revoke the registration
certificate issued if he is satisfied that the registration has been obtained by
misrepresentation or suppression of any material fact or it has become useless
or ineffective for any other reasons, after giving the principal employer an
opportunity of being heard and after obtaining prior approval of the appropriate
Government. (Section 5).

This Act also empowers the registering officer to suspend the operation of
the certificate pending such revocation for such period as may be specified in
the order and serve the order by the registered post to the principal employer.
It must contain the reasons why such action is being taken. (Section 5).

The Act prohibits the principal employer to employ Inter – State Migrant
Workmen without obtaining a certificate of registration. (Section 6).

The Act does not prohibit employment of Inter – State Migrant workers if
the registration application is pending before the registering officer. (Section
7).

As already stated, Inter-State Migrant workmen under the Act means

“any person who is recruited by or through a contractor in one state, under an
agreement or other arrangement for employment in an establishment in
another state”. In this process of recruitment and employment, the role of
contractor is most important who recruits the migrant workers in a state and
supplies them to an establishment in another state for employment. In order to
regulate the process, the Act empowers the appropriate government to appoint
licensing officers. The appropriate government may define the jurisdiction and
powers of the licensing officer at the time of appointment. (Section 7).

The Act prohibits the contractor to recruit any person in a state for the
purpose of employment in another state except under and in accordance with a
license issued by the licensing officer appointed by the Central Government or
the State Government, as the case may be who has jurisdiction to the area
wherein the recruitment is made. (Section 8)

Similarly, the contractor is prohibited to employ as workmen for the

execution of the work in any establishment in any state, persons from another
state except under and in accordance with a license issued in that behalf by
the central government or the State government who has jurisdiction to the
area wherein the establishment is situated. (Section 8)
 Therefore, every contractor is required to obtain a license from the
licensing officer appointed under the Act, both for employing migrant workers
in any establishment as also for the purpose of recruiting any person in a state
for the purpose of employing him in any establishment situated in another
state.

The license under the Act may contain 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 to be provided to the Inter – State Migrant Workmen as deemed fit by
the appropriate government in accordance with the rules and shall be issued
on payment of prescribed Fees.

The Act prescribes procedure for making application by the contractor

and grant of license by the licensing officer. Every application for grant of
license is required to be made in the prescribed form and it must contain the
particulars regarding the location of the establishment, the nature of process,
operation or work for which inter - state migrant workmen are employed.
(Section 9)

The Act lays down the conditions under which the license issued may be
revoked or suspended or the security or any part thereof furnished by the
contractor may be forfeited. (Section 10)

The licensing officer on being satisfied can revoke license and forfeit the
security furnished by the contractor, if

(i) the license has been obtained by misrepresentation or suspension of

material facts or

(ii) the holder of the license has failed to comply (without a reasonable cause)
any of the conditions of the license or

(iii) the holder of the license contravened any of the provisions of the Act or
rules made there under.

The order of the revocation or forfeit of security shall be made after the
holder of the license has been given reasonable opportunity of being heard.

The Act makes provision of appeal against the orders made under
Section 4, Section 5, Section 8 or Section 10 within 30 days on which the
order is communicated to an appellate officer who shall be a person nominated
in this behalf by the appropriate government and on receipt of an appeal after
giving the appellant an opportunity of being heard dispose of the appeal as
soon as possible. (Section 13)

The Inter – State Migrant Workmen Act clearly enumerates the duties,
obligations and other arrangements to be made by the contractors in
connection with Inter – State Migrant Workmen. Section 12 of the Act deals
such duties and obligations of the contractors. According to the section the
contractor must furnish the particulars regarding the recruitment of Inter –
State Migrant Workers within 15 days from the date of recruitment to the
relevant authorities in the state from which an Inter – State Migrant workmen
is recruited and in the state in which such workmen is employed.

Where any change occurs in any of the particulars so furnished such

change shall be notified to the relevant authorities of both the states. The
contractor must issue all the Inter – State Migrant workers with a pass book
containing the worker’s photograph and indicating in Hindi and English or in
the language known to the workman.

The contractors must furnish information to the authorities of both the

states about the termination of employment with a declaration that wages and
other dues of the workman and the fare for return journey back to his state
payable have been paid.

The contractor is required to pay displacement allowance to every Inter –

State Migrant Workman at the time of recruitment and the allowance shall be
equal to fifty percent of the monthly wages payable to the worker or seventy –
five rupees whichever is higher. (Section 14)

Similarly, the contractor is further required to pay journey allowance of

sum not less than the fare from the place of residence of the Inter – State
Migrant Workman in his state to the place of work in the other state both for
the outward and return journey besides payment of wages during the period of
his journey as if he is on duty. (Section 15)

The contractor has to ensure regular payment of wages, equal pay for
equal work irrespective of sex, suitable conditions of work and to provide and
maintain suitable residential accommodation, medical facilities on free of
charge, protective clothing and report to the specified authorities of both the
states and also the next of kin of the workman any instances of serious bodily
injury or fatal accident of the workman. (Section 16)
 Section 17 the Act fixes the responsibility for payment of wages to Inter
– State Migrant Workers and to ensure payment within prescribed period.

The allowances required to be paid under Section 14 or Section 15 to

an Inter- State Migrant Workman employed in an establishment is not paid by
the contractor or any facility specified in Section 16 is not provided for the
benefit of such workman, then such allowance or facility shall be provided by
the principal employer. (Section 18)

Under Section 19, it is the duty of every contractor and every principal
employer to ensure that any loan given by such contractor of principal
employer to any Inter- State Migrant Workmen does not remain outstanding
after the completion of the period of employment under the said contractor or
principal employer.

Section 20 of the Act empowers the appropriate government to appoint

such persons as it thinks fit to be inspectors for the purpose of this Act
defining the local limits within which they shall exercise their powers.

Section 21 of the Act is a deeming provision. This Section states that

Inter- State Migrant Workmen shall be deemed to be employed and actually
worked in the establishment or as the case may be the first establishment in
connection with work which they are doing from the date of their recruitment
for the purpose of the enactments specified in the schedule of the Act. It is
clear that the date of recruitment and the date of employment in any
establishment where they are made available by the contractors may be
different.

Section 22 of the Act deals with adjudication of Industrial Disputes

relating to migrant workmen. This Section empowers the Central Government
in case it is the appropriate government, to refer such a dispute to the
authorities (specified in Chapter II of the Industrial Disputes Act) in the state
wherein the establishment is situated or in the state where recruitment was
made, provided the workman concerned makes an application on the ground
that he has returned to that state after completion of his work.

Section 22 contemplates the situation where the migrant workman

moves an application for transfer of proceeding during the pendency of the
case.

Every principal employer and every contractor is required to maintain

such registers and records regarding the particulars of the Inter- State Migrant
Workmen employed, the nature of work performed by such workmen, the rate
of wages paid to the workmen and such other particulars and it is also
required that notices in the prescribed form containing particulars about hours
of work, nature of duty and such other information shall be kept exhibited
within the premises of the establishment by the principal employer and the
contractor concerned. (Section 23)

Section 24 of the Act provides for punishment for the person who
obstructs an inspector in discharge of his duties under this Act or willfully
neglects to afford the inspector or the authorized person any reasonable facility
for making any inspect on examination, inquiry or investigation etc. The
punishment may extend to two years of imprisonment or with fines which may
extend to two thousand rupees or with both.

The Act imposes punishment with imprisonment which may extend to

one year or with fine which may extend to one thousand rupees or with both on
any person who contravenes any provisions of this Act or any rules made there
under regulating the employment of Inter – State Migrant Workmen or
contravenes any condition of a license granted under this Act and in case of
continuing contravention an additional fine may be imposed which may extend
to one hundred rupees per day during which such contravention continues
after conviction for the first such contravention. (Section 25)

Section 26 deals that if any person contravenes any of the provisions of

this Act or of any rules made there under for which no other penalty is
elsewhere provided, he shall be punishable with imprisonment for a term
which may extend to two years, or with fine which may extend to two thousand
rupees, or with both.

Section 27 of the Act makes provision for punishment where an offence

has been committed by a company. In such event, every person who at the
time the offence was committed, was in charge of, and was responsible to, the
company for the conduct of the business of the company, as well as the
company itself, shall be deemed to be guilty of the offence and shall be liable to
be proceeded against and punished accordingly.

Section 28 deals cognizance of offence. The cognizance of any offence

under the Act can be taken by the court only when complaint is made by or
with the previous sanction in writing of an inspector or authorized person and
no court inferior to that of metropolitan Magistrate or a first class Judicial
Magistrate shall try any offence punishable under this Act.
 Section 29 of the Act says about limitation of prosecutions. The period
of limitation of prosecution is three months from the date on which the alleged
commission of the offence came to the knowledge of the inspector or the
authorized person concerned but the period of limitation is six months in cases
where the offence consists of disobedience of the written orders of the inspector
or authorized person as the case may be and the period shall be counted from
the date on which offence is alleged to have been committed.

Section 30 of the Act gives an overriding effect over any other law,
agreement or contract of service etc., which are inconsistent with the
provisions of this Act. However, if under any other law, agreement or contracts
of service the Inter- State Migrant Workmen are getting more favourable
benefits, then these benefits shall continue and the Inter – State Migrant
Workmen will continue to get other benefits also from this Act.

Section 31 of the Act empowers the appropriate Government to exempt

any establishment or class of establishments or any contractor or class of
contractors or any Inter- State Migrant Workmen in such establishment or
class of such workmen from the operation or application of all or any of the
provisions of the Act or rules made thereunder, if that Government is satisfied
that it is just and proper to do so having regard to the methods of recruitment
and the conditions of employment in such establishments and all other
relevant circumstances.

Section 32 provides protection to any registering officer, licensing officer

or any other employee of the Government for anything done in good faith or
intended to be done in good faith in pursuance of the Act or any rule or order
made thereunder, from any suit, prosecution or other legal proceedings.
Similarly, no suit or other legal proceedings shall lie against the Government
itself for any damage caused or likely to be caused by anything done or
intented to be done in pursuance of this Act or any rule or notification or order
made or issued thereunder.

Section 33 empowers the Central Government to give directions to any

State Governments to execute the provisions of the Act in the State concerned.

Section 34 confers powers on the Central Government to make such

provisions as appears to it to be necessary or expedient for removing the
difficulty experienced in giving effect to the provisions of this Act.

The Act empowers the appropriate Government to make rules to carry

out the provisions of the Act on matters related registration of an
establishment, license, security, appeals, wage rates, holidays, hours of work,
conditions of service, wage period, allowances or facilities powers of the
inspectors, forms of registers and records and legal aid to Inter – State Migrant
Workmen. (Section 35)

The Central Government in exercise of the powers conferred by Section

35 has made the rules namely Inter-State Migrant Workmen Central Rules,
1980. The Tamilnadu Government has made the rules namely Inter-State
Migrant Workmen (Regulation of Employment and Conditions of Service)
(Tamilnadu) Rules, 1983 in exercise of the powers conferred under Section 35
of the Act.

Section 36 of the Act has repealed the Orissa Dadan Labour (Control
and Regulation) Act, 1975 and also repealed any law corresponding to that Act,
in force, in any State. However, this Section provides that anything done or any
action taken under the repealed law, in so for as such thing or action is not
inconsistent with the provisions of this Act shall continue to be in force
accordingly until superseded by anything done or any action taken under this
Act.

THE SEXUAL HARASSMENT OF WOMEN AT

WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013
Introduction

“The meaning and content of the fundamental rights guaranteed in the

Constitution of India are of sufficient amplitudes to encompass all facets of
gender equality….”

Late Chief Justice J.S. Verma, Supreme Court of India, Vishaka

v. State of Rajasthan

“Whereas sexual harassment results in violation of the fundamental rights of a

Woman to equality.....”

[Preamble, Sexual Harassment of Women at Workplace (Prevention, Prohibition

& Redressal) Act]
 As enshrined in the Preamble to the Constitution of India, “equality of
status and opportunity” must be secured for all its citizens; equality of every
person under the law is guaranteed by Article 14 of the Constitution.

A safe workplace is therefore a woman’s legal right. Indeed, the

Constitutional doctrine of equality and personal liberty is contained in Articles
14, 15 and 21 of the Indian Constitution. These articles ensure a person’s right
to equal protection under the law, to live a life free from discrimination on any
ground and to protection of life and personal liberty. This is further reinforced
by the UN Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW), which was adopted by the UN General Assembly in 1979 and
which is ratified by India.

Sexual harassment constitutes a gross violation of women's right to

equality and dignity. It has its roots in patriarchy and its attendant perception
that men are superior to women and that some forms of violence against
women are acceptable.

Though sexual harassment at the workplace has assumed serious

proportions, women do not report the matter to the concerned authorities in
most cases due to fear of reprisal from the harasser, losing one’s livelihood,
being stigmatized, or losing professional standing and personal reputation.

Across the globe today, workplace sexual harassment is increasingly

understood as a violation of women's rights and a form of violence against
women. Indeed, the social construct of male privileges in society continues to
be used to justify violence against women in the private and public sphere.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013 was enacted to ensure safe working spaces for women
and to build enabling work environments that respect women’s right to equality
of status and opportunity. An effective implementation of the Act will
contribute to the realization of their right to gender equality, life and liberty,
equality in working conditions everywhere.

In 1992, a rural level change agent, Bhanwari Devi, was engaged by the
state of Rajasthan as a Sathin to work towards the prevention of the practice of
child marriages. During the course of her work, she prevented the marriage of a
one-year old girl in the community. Her work was met with resentment and
attracted harassment from men of that community. Bhanwari Devi reported
this to the local authority but no action was taken. That omission came at
great cost – Bhanwari was subsequently gang raped by those very men.
 The Bhanwari Devi case revealed the ever-present sexual harm to which
millions of working women are exposed across the country, everywhere and
everyday irrespective of their location. It also shows the extent to which that
harm can escalate if nothing is done to check sexually offensive behaviour in
the workplace.

Based on the facts of Bhanwari Devi’s case, a Public Interest Litigation

(PIL) was filed by Vishaka and other women groups against the State of
Rajasthan and Union of India before the Supreme Court of India. It proposed
that sexual harassment be recognized as a violation of women`s fundamental
right to equality and that all workplaces/establishments/institutions be made
accountable and responsible to uphold these rights.

In a landmark judgment, Vishaka vs. State of Rajasthan (1997) 4, the

Supreme Court of India created legally binding guidelines basing it on the
right to equality and dignity accorded under the Indian Constitution as well as
by the UN Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW).

Law on Sexual Harassment

Having raised the bar of responsibility and accountability in the Vishaka

Guidelines, the Supreme Court placed an obligation on workplaces, institutions
and those in positions of responsibility, to uphold working women’s
fundamental right to equality and dignity at the workplace. Three key
obligations were imposed on institutions to meet that standard, namely:

Prohibition

Prevention

Redress

In 2013, the Government of India notified the Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act. Consistent
with the Vishaka judgment, the Act aspires to ensure women’s right to
workplace equality, free from sexual harassment through compliance with the
above mentioned three elements.

It is important to note that the Act provides a civil remedy to women and
is in addition to other laws that are currently in force. Consequently, any
woman who wishes to report instances of sexual harassment at the workplace
has the right to take recourse of both civil and criminal proceedings.
“No woman shall be subjected to sexual harassment at any workplace.”

Section 3(1) of the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013.

This section defines the aggrieved woman, workplace and sexual

harassment as well as highlights key elements of workplace sexual
harassment. It provides examples of behaviours through which a woman can
experience possible professional and personal harm. It presents the user with
scenarios from across-section of work contexts to build clarity on different
forms of sexual harassment as identified under the Act.

AGGRIEVED WOMAN

The Act recognizes the right of every woman to a safe and secure
workplace environment irrespective of her age or employment/work status.
Hence, the right of all women working or visiting any workplace whether in the
capacity of regular, temporary, ad hoc, or daily wages basis is protected under
the Act.

WORKPLACE

A workplace is defined as “any place visited by the employee arising out

of or during the course of employment, including transportation provided by
the employer for undertaking such a journey.”

As per this definition, a workplace covers both the organized and

unorganized sectors. It also includes all workplaces whether owned by Indian
or foreign company having a place of work in India. As per the Act, workplace
includes:

- Government organizations, including Government company,

corporations and cooperative societies;

- Private sector organizations, venture, society, trust, NGO or service

providers etc. providing services which are commercial, vocational, educational,
sports, professional, entertainment, industrial, health related or financial
activities, including production, supply, sale, distribution or service;

- Hospitals/Nursing Homes;

- Sports Institutes/Facilities;
 - Places visited by the employee (including while on travel) including
transportation provided by employer;

- A dwelling place or house.

The Act defines the Unorganized Sector as:

• Any enterprise owned by an individual or self-employed workers

engaged in the production or sale of goods or providing services of any kind;

• Any enterprise which employs less than 10 workers.

WHAT IS SEXUAL HARASSMENT AT THE WORKPLACE?

“Sexual Harassment” includes anyone or more of the following

unwelcome acts or behaviour (whether directly or by implication), namely:

1. Physical contact or advances;

2. A demand or request for sexual favours;

3. Making sexually coloured remarks;

4. Showing pornography;

5. Any other unwelcome physical, verbal or non-verbal conduct of a sexual

nature

Some examples of behaviour that constitute sexual harassment at the

workplace:

1. Making sexually suggestive remarks or innuendos.

2. Serious or repeated offensive remarks, such as teasing related to a person’s

body or appearance.

3. Offensive comments or jokes.

4. Inappropriate questions, suggestions or remarks about a person’s sex life.

5. Displaying sexist or other offensive pictures, posters, mms, sms, whatsapp,

or e-mails.

6. Intimidation, threats, blackmail around sexual favours.

7. Threats, intimidation or retaliation against an employee who speaks up

about unwelcome behaviour with sexual overtones.
8. Unwelcome social invitations, with sexual overtones commonly understood
as flirting.

9. Unwelcome sexual advances which may or may not be accompanied by

promises or threats, explicit or implicit.

10. Physical contact such as touching or pinching.

11. Caressing, kissing or fondling someone against her will (could be

considered assault).

12. Invasion of personal space (getting too close for no reason, brushing
against or cornering someone).

13. Persistently asking someone out, despite being turned down.

14. Stalking an individual.

15. Abuse of authority or power to threaten a person’s job or undermine her

performance against sexual favours.

16. Falsely accusing and undermining a person behind closed doors for sexual
favours.

17. Controlling a person’s reputation by rumour-mongering about her private

life.

Some examples of workplace behaviours that may not constitute sexual

harassment:

1. Following-up on work absences.

2. Requiring performance to job standards.

3. The normal exercise of management rights.

4. Work-related stress e.g. meeting deadlines or quality standards.

5. Conditions of works.

6. Constructive feedback about the work mistake and not the person.

FORMS OF WORKPLACE SEXUAL HARASSMENT

Generally workplace sexual harassment refers to two common forms of

inappropriate behaviour:
• Quid Pro Quo (literally ‘this for that’)

- Implied or explicit promise of preferential/detrimental treatment in

employment

- Implied or express threat about her present or future employment

status

• Hostile Work Environment

- Creating a hostile, intimidating or an offensive work environment

- Humiliating treatment likely to affect her health or safety

Prevention and Prohibition

PREVENTIVE AUTHORITIES

WHO IS AN EMPLOYER?

An employer refers to:

1. The head of the department, organization, undertaking, establishment,

enterprise, institution, office, branch or unit of the Appropriate Government or
local authority or such officer specified in this behalf.

2. Any person (whether contractual or not) responsible for the management,

supervision and control of a designated workplace not covered under clause (i).

3. A person or a household who employs or benefits from the employment of

domestic worker or women employees.

WHO IS AN APPROPROATE GOVERNMENT?

As per the Act, Appropriate Government means:

i. In relation to a workplace which is established, owned, controlled or

wholly or substantially financed by funds provided directly or indirectly—

a. By the Central Government or the Union Territory

administration, the Central Government;

b. By the State Government, the State Government;

ii. In relation to any workplace not covered under sub-clause (i) and
falling within its territory, the State Government.
WHO IS A DISTRICT OFFICER (DO)?

State Governments will notify a District Magistrate/Additional District

Magistrate/ Collector/

Deputy Collector as a District Officer at the local level. The District

Officer will be responsible for carrying out the powers and functions under the
Act at the district levels (including every block, taluka, tehsil, ward, and
municipality).

RESPONSIBILITIES OF THE AFOREMENTIONED AUTHORITIES

Under the law the employer/DO is obliged to create a workplace free of

sexual harassment. It is the responsibility of the Employer/District Officer in
general to:

1. Create and communicate a detailed policy;

2. Ensure awareness and orientation on the issue;

3. Constitute Complaints Committee/s in every workplace and district so that

every working woman is provided with a mechanism for redress of her
complaint(s);

4. Ensure Complaints Committees are trained in both skill and capacity;

5. Prepare an annual report and report to the respective state government;

6. District Officer will also appoint a nodal officer to receive complaints at the
local level.

Complaints Committee/s

The Act provides for two kinds of complaints mechanisms: Internal

Complaints Committee (ICC) and Local Complaints Committee (LCC). All
Complaints Committees must have 50 per cent representation of women. ICC
or LCC members will hold their position not exceeding three years from the
date of their nomination or appointment.

Internal Complaints Committee (ICC)

Every employer is obliged to constitute an ICC through a written order.

The ICC will be composed of the following members:
No Member Eligibility

1. Chairperson Women working at senior level as employee;

if not available then nominated from other
office/units/ department/ workplace of the
same employer

2. 2 Members From amongst employees committed to the

(minimum) cause of women/ having legal
knowledge/experience in social work

3. Member From amongst NGO/associations

committed to the cause of women or a
person familiar with the issue of Sexual
Harassment

Where the office or administrative units of a workplace are located in

different places, division or sub-division, an ICC has to be set up at every
administrative unit and office.

Local Complaints Committee (LCC)

The District Officer will constitute an LCC in every district so as to enable

women in the unorganized sector or small establishments to work in an
environment free of sexual harassment. The LCC will receive complaints:

1. From women working in an organization having less than 10 workers;

2. When the complaint is against the employer himself;

3. From domestic workers.

No Member Eligibility
 1. Chairperson Nominated from amongst the eminent women in
the field of social work and committed to the
cause of women

2. Member
Nominated from amongst the women working in the block,
taluka or tehsil or ward or municipality in the district

3. 2 Members Nominated from amongst such

NGO/associations/persons committed to the cause
of women or familiar with the issues relating to
sexual harassment, provided that:

• At least one must be a woman

• At least one must have a background of law or

legal Knowledge

4. Ex Officio The concerned officer dealing with social welfare or

member women and child development in the district

One of the nominees shall be a woman belonging to the

SC/ST/OBC/Minority community notified by the Central Government.

External Members on the Complaints Committee/s

The Act refers to external members, which generally means persons who
have expertise with the issue of sexual harassment. For this reason, external
third party/ members on the Complaints Committee/s (from civil society or
legal background) should possess the following attributes:

1. Demonstrated knowledge, skill and capacity in dealing with workplace

sexual harassment issues/complaints;

2. Sound grasp and practice of the legal aspects/implications.

 Such expertise will greatly benefit Complaints Committees in terms of
fair and informed handling of complaints to lead to sound outcomes. These
external third party members shall be paid for their services on the Complaints
Committees as prescribed.

Criteria for the External Member

A ‘person familiar with issues relating to women’ would mean such

persons who have expertise in issues related to sexual harassment and may
include any of the following:

• At least 5 years of experience as a social worker, working towards

women’s empowerment and in particular, addressing workplace sexual
harassment;

• Familiarity with labour, service, civil or criminal law.

Sexual Harassment at Workplace Policy

Employers/District Officers are responsible for complying with

prohibition, prevention and redress of workplace sexual harassment. In
practice, this means having a policy that:

(1) prohibits unwelcome behaviour that constitutes workplace sexual

harassment;

(2) champions prevention of workplace sexual harassment through orientation,

awareness and sensitization sessions; and

(3) provides a detailed framework for redress.

Dissemination of Information and Awareness Generation

Employers/ District Officers have a legal responsibility to:

1. Effectively communicate a policy that prohibits unwelcome behaviour that

constitutes workplace sexual harassment, and provides a detailed framework
for prevention, and redress processes.

2. Carry out awareness and orientation for all employees.

3. Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas,
Women’s Groups, Urban Local Bodies or like bodies, as appropriate.

4. Ensure capacity and skill building of Complaints Committees.

5. Widely publicize names and contact details of Complaints Committee
members.

REDRESS

“...the time has come when women must be able to feel liberated and
emancipated from what could be fundamentally oppressive conditions against
which an autonomous choice of freedom can be exercised and made available by
women. This is sexual autonomy in the fullest degree”

Late Chief Justice J.S. Verma, Justice Verma Committee Report, 2013

WHO CAN COMPLAIN AND WHERE?

Who can Complaint?

Complaint Committee

In case of Mental
In case of Physical Incapacity:
Incapacity: - Complaint’s relative
- Complaint’s relative - Complaint’s friend
- Complaint’s friend - Special Educator
- Co worker
- Officer of NCW & SCW - Qualified psychiatrist/
- Any person who has the psychologist
knowledge of the incident
with the written consent of - Guardian/authority under
the complainant whose care the complainant
is receiving treatment/care

In case Complainant is
In Case of Complainant’s unable to file the
Death: complaint for any other
Any person with the reason:
knowledge of incident with By any person who has
the written consent of her knowledge of the incident
legal heir. with her written consent.

The Complainant
WHAT SHOULD THE COMPLAINT CONTAIN?

The written complaint should contain a description of each

incident(s). It should include relevant dates, timings and locations;
name of the respondent(s); and the working relationship between
the parties. A person designated to manage the workplace sexual
harassment complaint is required to provide assistance in writing of
the complaint if the complainant seeks it for any reason.

Date (s)

Timing

Complaint Description of
Content Incident (s)
Responden
t’s Name

Parties
Working
Relations
hip
RIGHTS OF THE COMPLAINANT

• An empathetic attitude from the Complaints Committee so that she can

state her grievance in a fearless environment

• A copy of the statement along with all the evidence and a list of
witnesses submitted by the respondent

• Keeping her identity confidential throughout the process

• Support, in lodging FIR in case she chooses to lodge criminal

proceedings
• In case of fear of intimidation from the respondent, her statement can be
recorded in absence of the respondent

• Right to appeal, in case, not satisfied with the

recommendations/findings of the Complaints Committee

RIGHTS OF THE RESPONDENT

• A patient hearing to present his case in a non-biased manner

• A copy of the statement along with all the evidence and a list of witnesses
submitted by the complainant

• Keeping his identity confidential throughout the process

• Right to appeal in case not satisfied with the recommendations/findings of

the Complaints Committee

KEY RESPONSIBILITIES

To effectively address workplace sexual harassment complaints, a

Complaints Committees must first be aware of their key responsibilities, some
of which are highlighted below:

1. Be thoroughly prepared

2. Know the Act, Policy and/or relevant Service Rules

3. Gather and record all relevant information

4. Determine the main issues in the complaint

5. Prepare relevant interview questions

6. Conduct necessary interviews

7. Ensure parties are made aware of the process and their

rights/responsibilities within it

8. Analyze information gathered

9. Prepare the report with findings/recommendations

DO’S AND DON’TS FOR COMPLAINTS COMMITTEE

DO’S

1. Create an enabling meeting environment.

2. Use body language that communicates complete attention to the

parties.

3. Treat the complainant with respect.

4. Discard pre-determined ideas.

5. Determine the harm.

DON’TS

1. Get aggressive.

2. Insist on a graphic description of the sexual harassment.

3. Interrupt.

4. Discuss the complaint in the presence of the complainant or the

respondent.
THE SEXUAL HARASSMENT COMPLAINT PROCESS

The Complaints Committee/s needs to have information on the six stages

(including fifteen steps), for addressing a complaint of workplace sexual
harassment.

Stage One : Receipt of Stage Three :

the Complaint Stage Two :
Planning Interviews
Step 1 : Receive and Carefully Step 8 : Prepare
acknowledge receipt of the an interview plan
complaint Step 6 : Prepare for the hearing:
the file Complainant,
Step 2 : Meet & talk to Witness &
the Complainant to Step 7 : Respondent.
explore options for formal Consideration Step 9 : Assess
& informal resolution the Complainant
of the
Step 3 : Informal
information
mechanism
collected
Step 4 : Formal
mechanism Stage Four :
Reasoning
Step 5 : Respondent and
response Step 10 : Analysis &
assess the information
Stage Five gathered during the
: Finding inquiry.
Stage Six : Report and Step 11 : Create a
Recommen timeline to help
Step 15 : Writing the dation establish the sequence
Report of events related to the
Step 13 :
complainants.
Finding
Step 12 : Compare
Step 14 : similarities &
Recommen differences within each
dation of the statements made
by interviewees
INQUIRY PROCESS AT A GLANCE

Incidence of
workplace sexual
The
respondent harassment to be
fulfils his reported within 3
obligations months
as agreed
upon: the Informal Formal
case is
closed
Nodal Officer
Conciliation
One copy of the
The complaint to be ICC
respondent submitted to the
fails to respondent, to
fulfill his which the
obligation respondent needs
as agreed to reply within 10
upon: an days
inquiry will
commence
Complaint not
upheld:
Inquiry report to
Inconclusive
be completed
Recommended to
within 90 days
employer/DO that
no action is by the ICC/LCC
If not satisfied by
required to be taken
the
recommendation
s or non-
implementation
of such
recommendation
s, the Report of the
complainant & Complaint Upheld: findings to be
the respondent Recommendations to be submitted to the
can appeal to a implemented by the employer or
tribunal /court employer? DO within district officer
60 days on receipt of (DO) & concerned
within 90 days
the report parties within 10
days of completion
of the inquiry
Timelines as per the Act

Particulars Timeline

Submission of Complaint Within 3 months of

the last incident

Notice to the Respondent Within 7 days of

receiving copy of the
complaint

Completion of Inquiry Within 90 days

Submission of Report by ICC/LCC to Within 10 days of

employer/DO completion of the
inquiry

Implementation of Recommendations Within 60 days

Appeal Within 90 days of the

recommendations

Confidentiality

The Act prohibits the publication or making known the contents of a

complaint and the inquiry proceedings. Any breach of confidentiality will result
in specific consequences.

The Act prohibits the disclosure of:

• Contents of the complaint;

• Identity and address of complainant, respondent and witnesses; Information

pertaining to conciliatory/inquiry proceedings or recommendations of the
ICC/LCC;

• Action taken by the employer/DO.

Accountability: Any person entrusted with the duty to handle or deal with the
complaint, inquiry or any recommendations or action taken under the
provisions of this Act.

Consequences: As per the Service Rules or Rs.5,000/ to be collected by the

employer.

Exception: Dissemination of information regarding the justice secured without

disclosure of name, address, identity and particulars of complainant or
witnesses.

Monitoring

Inspection

In relation to workplace sexual harassment, when it is in the public

interest or in the interest of women employees, every employer/District Officer
can be ordered by the Appropriate Government i.e. State and Central
Government, to make available any information, record or document, including
opening its workplace for inspection relating to the same.

Annual Report

The Appropriate Government is entrusted with the monitoring of the

implementation of this Act and for maintaining the data on the number of
cases filed and disposed of under it. In particular, the Act mandates
submission of an Annual Report by the ICC/LCC to the employer/District
Officer.

The District Officer will forward a brief report on the annual reports to
the appropriate State Government. Such reports must include the following
information:

a. No. of complaints received;

b. No. of complaints disposed of;

c. No. of cases pending for more than 90 days;

d. No. of workshops/awareness programmes carried out;

e. Nature of action taken by the employer/DO;

The Report of ICC will be forwarded to the DO through the employer.

Penalties

An employer can be subjected to a penalty of up to INR 50,000 for:

• Failure to constitute Internal Complaints Committee

• Failure to act upon recommendations of the Complaints Committee; or

• Failure to file an annual report to the District Officer where required; or

• Contravening or attempting to contravene or abetting contravention of the Act

or Rules.

Where an employer repeats a breach under the Act, they shall be subject
to:

• Twice the punishment or higher punishment if prescribed under any other

law for the same offence.

• Cancellation/Withdrawal/Non-renewal of registration/license required for

carrying on business or activities.