Labour Inspection practice in India. , ‎pptx 0.8 MB

Report
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Origin of law presupposes its violation to social
norms.
Law addresses gap between ideal and prevailing
standards.
“Equality before law” also attaches responsibility
on the government to apply the law to all.
In labour laws, “INSPECTION” is the most
effective way to bring its violations into the
notice of administration/judiciary.
Inspections have to bring about social, economic
and political changes.
Orderly inspections bring revolution in the society
and nation.
Hence, bringing the violations to light becomes a
natural corollary.
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Fulfillment of the objectives of labour laws based upon
the effective system of inspections.
Standard of ‘Labour inspection’ has three-fold purpose:•
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Taking appropriate action if legal provisions in question
are not applied.
Assisting workers and management to understand legal
requirements and to comply with them.
Bringing into the notice of Govt. any abuses not
specifically covered by the existing law.
Effective labour inspection helps the management by
providing information and guidance relating to labour &
their obligations.
It inhibits an employer against unfair competitions from
another employer by adopting unfair labour standards.
It generates contented labour force contributing to
higher industrial productivity.
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Earlier to Govt. of India Act 1919, the Govt. a few labour laws,
namely Fatal Accidents Act 1855; Workmen’s and Employer’s
(Disputes) Act 1860; Factories Act 1881 and Mines Act 1901 were
existed.
The Mines Act 1901 provided for appointment of Chief Inspector of
Mines & provisions relating to the safety & welfare of Mines .
The Assam Labour & Emigration Ac provided for establishment of
Assam Labour Board for the welfare of labour.
Major Labour Laws enacted, following recommendations of the
Royal Commission on Labour viz. PW Act 1936; EC Act 1938;
Mines (Amendment) Act 1934 etc., necessitated creating of
enforcement machineries.
Labour Laws enacted prior to or immediately after Independence
on the recommendations of Labour Investigation Committee
provided for inspection and other machineries. Some of the Acts
are ID Act 1947.
ID (SO) Act 1946; Factories Act 1948, ESI Act 1948 etc.
In 1949, the Govt. of India ratified ILO’s Labour Inspection
Convention (No. 81), 1947, excluding (Part-II).
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In the Indian Constitution, labour falls under the Concurrent List.
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India has the maximum labour legislations in the world-about 44 Central
and 100 State legislations are enforced by the Central and State Labour
Departments.
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Notwithstanding, coverage of the labour law is limited as benefits
depend on the no. of the employees in the establishment, wage limits,
nature of employment, nature of work etc.
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Majority of workers in informal and unorganized sector practically are
beyond the purview of labour laws.
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Recently, the Govt. of India has enacted a law for un-organized workers
extending benefits even to the self employed persons.
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Result of restrictions on inspection by some States through selfcertification,
encouraging.
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and
prior
permission
for
visit
of
Inspectors
is
not
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The question as to whether the Central or State
Govt. has to enforce a particular law in an
establishment is generally decided by the
definition of ‘Appropriate Govt.’ in that law.
By and large, Central Govt. is the appropriate
government in respect of establishments
carried on by or under the authority or Central
Govt., mines banks, insurance, major ports,
controlled industry, corporations created by
statutes etc.
The Organization of Chief Labour Commissioner
(C) popularly known as the Central Industrial
Relations Machinery (CIRM) under the Ministry
of Labour & Employment enforces labour laws
in the Central sphere.
The Organisation is headed by Chief Labour
Commissioners and assisted by 16 Deputy Chief
Labour Commissioners, 33 RLCs, 56 ALCs and
162 LEOs.
 The Organisation enforces 14 enactments in
labour 1,70,000 establishments. The Major
enactments enforced are PW Act, MW Act,
CL(R&A) Act, ER Act, PG Act, BOCW Act and PB
Act.
 The organisation formulates policy guidelines
for inspections, allots territorial jurisdiction to
officers, chalks out inspection programs and
constantly endeavors to evolve best practices.
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Primary responsibility of the Inspector
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To take appropriate measures for
securing full compliance and thereby
ensuring full benefits and protection
as per law to workers.
As far as possible, through education
and persuasion.
Prosecutions to be the last resort.
Usual courtesy and consideration to
be shown even while invoking legal
sanctions.
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Thorough knowledge of the laws and
regulations.
Ability to explain the benefits of laws
to the society.
Knowledge of the extent and limits of
the authority.
Display initiative and resourcefulness.
Courteous, fair and polite to all
concerned.
Impartiality in attitude and behavior.
Maintenance of secrecy.
Shall depend on the nature of industry, type of the
employer, location and size of the unit, extent of
literacy amongst the workers, etc.
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Inspections may be:
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•
regular or routine,
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Check inspections, or
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Surprise inspections.
Special inspections may be required to be conducted
for investigating complaints received from workers,
verifying compliance reports received from employers,
and for ascertaining the extent of implementation of
award/settlement/recommendations of wage boards
etc.
Nil
The
Inspection Report
inspecting officer to indicate if
some minor
irregularities
observed and got rectified in his
presence.
All particulars of the establishment
also need to be submitted.
No
copy of the report to be
submitted/sent to the employer. The
report
to
be
treated
as
‘Confidential’.
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Registers/records should be thoroughly
checked for the period subsequent to the
last inspection
The number of entries in the wage/bonus
register to be checked in 100 per cent, 10
per cent subject to a minimum of 100, 5
per cent subject to a minimum of 200 and
2 percent subject to a minimum of 500,
where the total entries range from 1 to
100, 101 to 2000, 2001 to 10000 and more
than 10000 respectively.
The entries to be checked, should be
selected on random basis.
 Inspection
reports to be prepared on the spot
by the inspecting officer himself in the
prescribed formats.
 The inspection report to be handed over on the
spot to the employer or his representative
except
under
Hours
of
Employment
Regulations.
 The inspecting officer to obtain acquaintance
of recipient of inspection report together with
admission, if any, of the infringement on the
other copies and get the admission attested by
at least own witness, if possible.
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In case of refusal to accept the inspection report,
the inspection note containing a remark to this
effect should be got attested by at least one
witness, if possible. Thereafter, the inspection
report should be sent by registered post with AD.
A separate report should be submitted in respect of
each employer or contractor.
“Address of the employee” wherever occurs in the
inspection form should mean the employee’s present
or permanent home address and not his address in
the establishment.
Inspection should be carried out during normal
working hours excluding intervals. The actual time
of inspection should be mentioned in the inspection
report.
 Regular
inspection should be conducted
at a time of the year when the
establishment attains the peak period of
employment.
 More than one inspecting officer, e.g.
LEO(C) and ALC(C) should not normally
inspect the same establishment within a
short period.
 ‘First’ or ‘subsequent’ inspection refers
to first or subsequent inspection of the
establishment, and not of the work not
by the officer.
 While inspecting records instead of a
simple remark like ‘checked’ which is not
sufficient for the purpose of evidence,
the remark should describe/indicate the
specific irregularity.
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Records/ registers to be seized only when
permitted under the Act and circumstances so
permitted under the Act and circumstances so
demand.
The Inspector to ensure the records so seized are
clearly identifiable with the concerned employer.
Employer’s/Representative’s signature to be taken
with date after the last entry in the register.
Seizure-Memo carrying details of registers etc.
Seized to be prepared and a copy handed over.
To be returned at the earliest, but not before
purpose is served, on obtaining receipt.
Information/particulars
collected
during
inspection not to be passed on the employee/
Union.
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Article
15 of ILO Convention 1947(81) to be given
due regard.
Source
of complaint leading to the inspection to
be keep confidential.
Deviation
can be allowed where workmen/Union
make a request for open enquiry in the presence of
their representative.
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 Inspection
may be required to verify
compliance
reports
if
submitted
by
employers within time and considered to
be satisfactory.
 After submission of prosecution proposals,
compliance reports not to be verified
unless
specially
directed
by
RLC
(C)/competent authority.
 When
re-inspection
of
establishment
conducted to verify compliance report, the
Inspector to intimate state of rectification
of earlier irregularities and also fresh
irregularities detected, if any.
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For planned and systematic inspections, registers
in prescribed forms ‘A’ and ‘B’ to be maintained.
Register in form 'A’ to contain particulars of
permanent and semi-permanent establishments.
Register in form ‘B’ to contain particulars of purely
temporary and casual establishments including
those of contracts.
Dismissal of prosecution complaints and acquittal
of accused on the ground of non-service of
summons for want of correct and complete address
can be avoided by maintaining the information and
updating them from time to time.
The information can be had from principal
employers’ records, partnership deeds, Articles of
Association, District Mining Office, etc.
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The CIRM enforces the following labour laws and rules
framed there under:
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MW Act 1948 and Central Rules 1950.
PW Act 1936and Rules made there under for mines, Railways,
air transport services and docks, wharves and jetties.
CL (R&A) Act 1970 and Central Rules 1971.
ER Act 1976 and Rules 1976.
ISMW (RE&CS) Act 1979 and Central Rules 1980.
Child Labour (P& R) Act 1986 and Rules 1988.
Payment of Gratuity Act 1972 and Central Rules 1972.
Labour laws (EFFR&MRBCE) Act 1988.
BOCW(RE&CS) Act 1996 and Central Rules 1998.
IE(SO) Act 1946 and Central Rules 1946.
Payment of Bonus Act 1965 and Rules 1975.
HOER for railway employees under Indian Railways Act.
ID Act 1947 and Central Rules 1957
 CIRM
enforces
labour
laws
in
approximately 1,70,000 establishments
through routine, special drive, crash
program
and
taskforce
program
inspections etc.
 Priorities are given to the enforcement of
MW Act, CL(R&A) Act, BOCW(RE & CS)
Act, ER Act etc. in un-organised sector.
 40,934 inspections conducted, 10,800
prosecutions launched, 2327 claim cases
filed, 2362 claim cases decided and Rs.
4,78,77,012 awarded as compensation in
2007-2008.
 The figures justify that inspection are not
ends, but means to ends.
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 MW
Act
 About
15,000 inspections, 5500 prosecutions
and 2500 claim cases are launched every year.
The amount of compensation awarded is about
40 Million rupees.
 CL(R&A)
Act
 About
6000 inspections, 3000 prosecutions and
1000 convictions are effected every year.
 PW
Act
 About
5000 inspections and 1700 prosecutions
are caused leading to 1300 convictions every
year.
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PG
Act
Complaint as well as inspectionbased legislation, the number of
inspections conducted and claim
applications received every year
are approximately 1500 and 4500
respectively.
No. of prosecution launched is
about 30, the number of claim
applications decoded is about 4500
and the amount awarded every
year is to the tune of 650 Million
rupees.
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ER
Act
 Although
an inspection as well as
complaint based legislation, very few
claim cases are filed as the workmen
covered under this Act are also covered
under MW Act, and when both male and
female workers are paid less than
minimum rates of wages, claim is filed
under MW Act.
 No. of inspections conducted, number of
prosecutions launched, and number of
convictions brought about every year
are 3000, 500 and 3000 respectively.
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 Child
Labour (P&R) Act, 1986
 Approximate
1500
inspections,
20
prosecutions and 10 convictions are
effected every year.
 Payment of Bonus Act, 1965
 No. of inspections, no. of prosecutions
and no. of convictions each year are
about 700, 30 and 10 respectively.
 ISMW(RE&CS) Act, 1979
 Approximately 60 inspections every year
lead
to
the
same
number
of
prosecutions and convictions.
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 BOCW(RE&CS)
Act
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number of inspections conducted last
year
is
686
and
the
number
of
prosecutions under Section 47, 48, and 49
last year was 643.
 HOER
(Chapter VI-A of IR Act)
 About
1500 inspections are conducted
every year.
 However, no prosecution is launched as
the LEOs(C) conduct inspections in the
capacity as supervisors of railway labour
under HOER.
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 Bottlenecks
attributed
to
system,
Inspector and the law which is enforced.
 Low
level of motivation
 Low Status
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Terms of employment faced inferior in comparison
with their qualifications, experiences and duties.
 Lack
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of career prospects
In most of the cases, just
throughout the service career.
 Social
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one
promotion
stigma
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He is more feared than respected.
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The term ‘Inspector Raj’ adds to his feeling of
lowness.
 Diminishing
relevance of old laws
and inadequate provisions.
 Inadequate
infrastructural facilities.
 Inadequate
strength in Inspectors
(vis-à-vis the no. of establishments,
their geographical distribution, no. of
workers and the no. of laws)
 Multifarious
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tasks of Inspectors
ILO Convention No. 81 stipulates that
further duties, if entrusted to Inspectors,
shall not be such as to affect the effective
discharge of their primary duties.
 Difficulty
in objective assessment of
Inspector’s performance
 Credit given only in terms of number of
establishments inspected irrespective
of the size of the workforce, number of
workers
interrogated,
number
of
registers/entries checked, number of
irregularities detected, amount of less
payment detected etc.
 Lack of growth of employment compels
workers to accept whatever terms are
offered.
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Overcoming the bottlenecks enumerated
above.
 Simplification in inspection and inspection
related procedure.
 New orientation about his role as facilitator
rather than enforcer.
 Conducting ‘effective’ and ‘relief-oriented’
inspection.
 Sensitization
of
employers
and
their
organizations, workers and their associations
and the Inspectorate through counseling,
training, persuasion and social dialogue.
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Labour Inspector should not be equated with his
counterparts in other departments.
The ambit of knowledge a labour Inspector has to
possess is not comparable with that of other
Inspectors.
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Reform in the system of inspection.
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Reform in laws
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Inspector to be granted with status commensuration
with his duties, responsibilities and worth.
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Doing away with inspection a distant reality.
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Definition of ‘APPROPRIATE GOVERNMENT’, stringent punitive
measures, removing ceilings etc.
Hence, healthy suggestions required for improving the system
and for inspection to achieve its purpose.
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Relief-oriented inspections.
Simplification of procedures, returns and
registers.
System of meaningful dialogue with social
partners to improve conciliation service.
Equip the organisation with modern means
of communication, connectivity through
computer network and software.
Reforms in LABOUR LAWS in reference to
the current scenario as and when required
and necessary.
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