National Law Institute University,

Bhopal

PROJECT

Labour Law-2

Hazardous process in The Factories Act, 1948

Submitted to: Submitted by:

Prof. Mahendra Soni Abhijeet Lenka

2016 BALLB 97
Table of Contents
Introduction.................................................................................................................................................5
Manner of Construction of Welfare Legislation...........................................................................................6
Responsibilities of an Employer in a Hazardous Factory:-...........................................................................8
Duties of an Employee..............................................................................................................................10
Role of Central Government in Occupational Safety and Health standards..............................................11
Safety and Occupational Health Surveys...................................................................................................12
Hazardous Processes under The Factories Act, 1948.................................................................................13
CONCLUSION.............................................................................................................................................16
BIBLIOGRAPHY...........................................................................................................................................17
 Hypothesis –

This research project is designed to assess the hypothesis that in factories which deal with
hazardous processes, the safety and health of workers as well as the environment is of the highest
priority.

Statement of Problem-

In the past decade, the problems surrounding hazardous products causing impairment of workers
as well as polluting the environment which is reducing the quality of life has been at an all-time
high. Therefore, regulation of these hazardous processes needs special and utmost care so as to
not interfere with the lives of human beings and hence, the necessity of laws for the same arises.

Research Question-

How steps are being taken to ensure that these hazardous or dangerous processes do not cause
damage to life or health and assist in keeping safety in the disposal of these products in a
cautious manner. Also, who does the responsibility fall upon to guarantee that there isn’t any
serious threat caused to livelihood and who would be liable in case of breach of the same.

Objectives of Study:-

 To determine the various legislations that are protecting the regulation of hazardous
products under The Factories Act, 1948
 To specify who all will be constituents of the Site Appraisal Committee which is being
created under the provisions regulating hazardous processes for the inspection regarding
the same field.
 To determine who would be liable in case of impairment being cause to life of either
workers or the general public and how stringent these laws are.

Literature Review:-

 Manjeet Kumar Sahu, Development of Law Relating to Factories in India, 2(2)

BRICS LJ (2015)- The Government of India, with the adoption of existed statute, made
an effort to incorporate the welfare legislation but it never developed along with the
 change in time. It is to be noticed that as far as existing statutes are concerned, the
development is an effect of judicial pronouncement or some tragic incident like Bhopal
Gas Tragedy. This paper succinctly describes the history of factory legislation, the
constitutional validity of the previous statute and necessary amendment which have
already been done and / or on the verge of being amended. It further discusses
contribution of judiciary in developing the law relating to factories, scope of industrial
jurisprudence in promoting the development of factory legislation. 
 Occupational health of workers in Law & Practice - S.C. Srivastava:- 31 Ban.L.J.
(2002) - The modernization and innovation in industries and rapid increase in chemical,
hazardous, and polluting industries in recent years has not only resulted in unsafe
working conditions but has created problems of occupational health hazards. The
incidence of occupational diseases is much higher in developing countries than developed
ones, although no region of the world is immune from this Quite apart from this poor
equipment, heavy workload and even poisoning due to pesticides and organic dusts take
their heavy toll on workers, health and safety. The major purpose of the law of
occupational health is to provide workers with safe and healthy working conditions. The
basic premise for the establishment of standard is derived from the fact that employer
should have general duty to furnish employment free from recognized hazards. An
employer who fails to comply with the established health standard should be made liable.
 Industrial, Labour & General Laws- ICSI- There are several legislations which
regulate the conditions of employment, work environment and other welfare
requirements of certain specific industries. The Factories Act, 1948 enacted to regulate
the working conditions in factories. The Act is meant to provide protection to the workers
from being exploited by the greedy business establishments and it also provides for the
improvement of working conditions within the factory premises. An adequate machinery
of instructions and strict observance of the directions are provided in the Act. Hence, a
beneficial construction should be given and the provisions of the Act should be so
construed/ interpreted so as to achieve its object i.e. the welfare of the workers and their
protection from exploitation and unhygienic working conditions in the factory premises.
 Management of Labour Laws and Practice- Dr. R.S. Kulkarni- The term ‘Labour
Legislation’ is used to cover all the laws which have been enacted to deal with
 ‘employment and non-employment’ of persons employed in industries. The Indian
Labour Legislations owe its existence to the British Raj. After independence several laws
were enacted with the intention of providing security, worker welfare and retirement
benefits to workers. Over a period of time several amendments have been made to the
existing labour legislations as per the needs of the industry. The research book throws
light upon several of these very issues.
 List of Cases:-
1. Workmen of Indian Standards Institution v Management of Indian Standards
Institution, (1976)1 LLJ 33,39(SC)- This case was regarding the interpretation of a
beneficial statute so as to increase the scope of the statute so as to not defeat the
object of the statute.
2. DN Banerji v PR Mukherjee: AIR 1953 SC 58 : It was held in this case that even
though municipal activity cannot be regarded as trade or business adventure, it will
fall within the expression “undertaking” and would be considered an industry. By
giving a wide coverage to the term “industry”, Municipal Corporation was brought
under the purview of the term industry.
3. State of Bombay v The Hospital Mazdoor Sabha, AIR 1960 SC 610- Intent of
legislature to be seen before widening the scope of a particular statute. “Hospital” was
to be included under industry so as to widen scope of the statute.
4. A Sundarambal v. Government of Goa, Daman and Diu: AIR 1988 SC 1700 - In
this case, it was urged by the Appellant for the Court to declare a school teacher to be
a workman under the Industrial Disputes Act. However, the Supreme Court took into
account the words in the definition “to do any skilled or unskilled manual,
supervisory, technical or clerical work” under Sec.2(s) of the Industrial Disputes Act
and held that since a teacher would not fall into any of these categories, a teacher
could not be held to be a workman under the Act.
 List of Statutes:-
1. The Industrial Disputes Act, 1948:- This is a welfare legislation which seeks to
bring about peace and harmony between the management of labor and the
laborers in an industry in a bid to make the ends of both parties to meet which will
have a positive impact on the productivity of the output of the laborers. The
 Industrial Disputes Act, 1947 aims at maintaining peaceful environment in
industry and by interpreting it liberally courts have sought to benefit the workmen
by construing the terms of the statute liberally.
2. Occupational Safety, Health and Working conditions Code, 2020 :- This Act
was recently enacted to protect and promote the health and safety of workers
involved in factories as well as hazardous processes in factories. This is to ensure
that each body knows it role and responsibilities towards the safety of the
workers, i.e. the occupier, the worker himself, the government etc.
3. The Factories Act, 1948:- The main objective of the Act is not only to ensure
adequate safety measures but also to promote health and welfare of the workers
employed in factories as well as to prevent haphazard growth of factories. The
objective is also to regulate the working conditions in factories, to regulate health,
safety welfare, and annual leave and enact special provision in respect of young
persons, women and children who work in the factories.

Introduction

Labor market is heterogeneous. Every act or law relating to social security and working
conditions of a particular environment has a different meaning and implication for every
segment. The life of a worker is also not homogenous, throughout his living, at different stages
of life. The most crucial and integral part of a worker’s span of his source of income is the level
of output and the level of his contribution in the output of the manufacturing or production
process. However, something more important than that is the safety and welfare of these
workmen so as to provide them with the necessary course of action in case things go downhill
while he is on duty. For any welfare regulation which has the potential to become a source of
labor protection, it is very important that it should fulfill its purpose and that the benefit of the
legislation is given to the person or the class of persons for whom the legislation was enacted for
in the first place. When a statute is interpreted liberally and is given the widest possible meaning
which the language permits it is known as Beneficial Interpretation. When a statute is meant for
the benefit of a particular class and if a word in the statute is capable of two meanings i.e. one
which would preserve the benefits and one which would not, then the meaning that preserves the
benefit must be adopted1. In cases of beneficial legislation, the interpreters of the law have to
bear in mind that the benefit of the legislation created is extended to a maximum number of
people who can avail some benefit from the law. Even if a person in a case has an outside chance
of receiving the benefit of the law, the same benefit must be made available to him/her as the
purpose of a beneficial legislation is to extend to as many people as can gain something from the
legislation. Hence, the law should be interpreted in a broader and liberal manner so as to confer a
benefit on individuals or a class of persons.

Manner of Construction of Welfare Legislation

The Industrial Disputes Act, 1948 is a welfare legislation which seeks to bring about peace and
harmony between the management of labor and the laborers in an industry in a bid to make the
ends of both parties to meet which will have a positive impact on the productivity of the output
of the laborers. As a result of this, the prosperity of the country will assist the working conditions
of the laborers. Therefore, this statute should be interpreted in such a way that it advances the
object and the purpose of the legislation and gives it a full meaning and effect so that the ultimate
social objective is achieved.2 The courts while interpreting labour laws have always stressed on
the doctrine of social justice as enshrined in the Preamble of Constitution.

The word “industry” is defined in Section 2(j) and is the most crucial definition in the Industrial
Dispute Act, 1947. Since this statute is welfare legislation the word „industry‟ should be given a
wider meaning. The interpretation of this term has varied from time to time and has been in
controversy. Earlier in 1953 , Supreme Court held in the case of DN Banerji v PR Mukherjee 3
that though municipal activity cannot be regarded as trade or business adventure but will fall
within the expression “undertaking” and would be considered an industry.10 By giving a wide
coverage to the term “industry”, Municipal Corporation was brought under the purview of the
term industry.

In The Hospital Mazdoor Sabha case4, the services of respondents engaged in the J. J. Group Of
Hospital, Bombay under State control and management were retrenched without payment of

1
Hanumant On Beneficial Construction
2
Workmen of Indian Standards Institution v Management of Indian Standards Institution, (1976)1 LLJ 33,39(SC)
3
DN Banerji v PR Mukherjee: AIR 1953 SC 58
4
State of Bombay v The Hospital Mazdoor Sabha: AIR 1960 SC 610
compensation as required by S.25F(b) of the Industrial Disputes Act, 1947. The argument given
by the opposite party was that the J.J. Group and Hospitals does not constitute as industry. The
court in this case held that the intent of the legislature was to give an extended meaning to the
word industry as defined in Sec 2(j). Therefore for construing the definition one should not
restrict the meaning but give a wider scope. Since some of the features such as cooperation of the
employer and the employees and the object of satisfying material human needs is identical to the
activities to which Sec 2(j) applies it can be said that the conduct and running of the hospitals by
the appellant amounted to an undertaking under Sec2(j).

In line with the settled canons of construction, Courts must adopt that construction which
advances the objects of the Statute in place of one that would defeat it. Beneficial legislation
should be interpreted in the widest form and hence should be interpreted liberally. The welfare
statutes and acts are aimed at improving the economic and social conditions of its people. Thus
these statutes should be interpreted in such a manner that it fulfills the object and purpose of the
statute. As discussed above a welfare statute in this paper The Industrial Disputes Act, 1947 aims
at maintaining peaceful environment in industry and by interpreting it liberally courts have
sought to benefit the workmen by construing the terms of the statute liberally.

However, the Courts have not pushed the use of the beneficial construction too far to the extent
that the construction contradicts the statute. For example, in A Sundarambal v. Government of
Goa, Daman and Diu5, it was urged by the Appellant for the Court to declare a school teacher to
be a workman under the Industrial Disputes Act. However, the Supreme Court took into account
the words in the definition “to do any skilled or unskilled manual, supervisory, technical or
clerical work” under Sec.2(s) of the Industrial Disputes Act and held that since a teacher would
not fall into any of these categories, a teacher could not be held to be a workman under the Act.

It can be derived from all of these examples that the benefit of a legislation is to be stretched as
much as it can be stretched but the benefit ought not to be stretched beyond the point where the
benefit of the legislation is being availed by people who aren’t eligible to be a beneficiary of the
law. It’s a very thin line between the benefit of the welfare provision to be extended to a number
of class of persons and being overprotective in your application of the law which can in turn
prove to defeat the purpose for which the legislation was enacted. On that note, however, our
5
A Sundarambal v. Government of Goa, Daman and Diu: AIR 1988 SC 1700
judiciary is an avid believer of the concept of the more the merrier with respect to beneficial
legislation as it doesn’t really cause any harm since no needy person is being deprived of his/her
right. An undeserving person or class of persons would rather receive the cover of a beneficial
legislation than a deserving person missing out on his right.

Responsibilities of an Employer in a Hazardous Factory:-

The responsibilities of an employer in a hazardous factory involve a wide range of events which
will be examined in detail in this research. An employer of a factory does not only have his eyes
on the profit of his organization or his work. He has a variety of responsibilities such as ensuring
a safe, healthy and working conditions for all his workers. The life of the workers should not be
put at risk while conducting any work for the employer and the onus of this falls upon the
employer to see to it that all his workers are safe and content with the conditions of the
environment since labour welfare is a very integral part of labour law.

Under Section 6 of the Occupational Safety, Health and Working conditions, 2020,
responsibilities of the employer are covered which all evolve around the main condition that it
must be ensured that the workplace is free from safety hazards which are likely to cause or cause
injury or occupational disease to the employees. The following has been covered under the
section of the code as well:-

 It has also been mentioned that annual health examination or test free of costs to such
employees of such age or such class of employees or establishments or such class of
establishments, as may be prescribed by the appropriate Government must be provided
by the employer on a regular basis.
 The employer must also ensure that toxic waste arising from the hazardous factory work
as well as e-waste must be disposed off properly.
 He must also ensure that ensure that no charge is levied on any employee, in respect of
anything done or provided for maintenance of safety and health at work place including
 conduct of medical examination and investigation for the purpose of detecting
occupational diseases

The section also addresses certain specific fields of hazardous works such as mines, plantation,
factory and building and other construction work where it has said the following:-

 The machinery in the plantation must be provided by the employer with directions to use
as well as it has to be ensured that it has to be safe and free of risk to health.
 The arrangements in the workplace for ensuring safety and absence of risk to health in
connection with the use, handling, storage and transport of articles and substances is to be
provided.
 The information, supervision as well as training for the perusal of any hazardous product
or processes related to hazardous product must be mandatorily provided to the workers so
as to ensure safety to the health of the employee carrying out the process.
 Regular maintenance of all working facilities in hazardous process is to be carried out by
the employer to ensure safety and health of all workers.

Under Section 10, it has been alluded that if any accident takes place in any establishment which
causes death or bodily injury due to which the person affected is unable to work for a period of
48 hours or more than that post the accident, a notice is to be sent to such authorities in such
manner and within such time which the appropriate government has prescribed by the employer
of either the factory, dock or construction of the building being carried out.

Under Section 11, it has been mentioned that in the occurrence of the event of a dangerous
nature, irrespective of whether it causes any bodily danger or danger to life or not, has to be
notified to the concerned authorities by the employer within the time and form, as stipulated by
the appropriate government.

If in the situation of any worker of an establishment contracting any diseases mentioned in the
THIRD SCHEDULE which consists of lead poisoning or toxic jaundice or any other diseases,
the employer of the establishment must send a notice to the authorities concerned within the
stipulated time and form as notified by the appropriate government.
If any qualified medical practitioner attends upon the worker who contracted the disease, the
practitioner must necessarily send a report in writing to the Chief inspector-cum-facilitator in any
such form and manner as prescribed by the appropriate government. If the medical practitioner
fails to comply with this requirement, he shall be punished with a fine which can be extendable
to a sum of ten thousand rupees.

Duties of an Employee
In a hazardous occupation, although most of the duties of taking precautions and proof checking
all situations lies upon the employer, there are certain duties of an employee as well towards the
safety of the occupation and his/her fellow workers.

The duties of the employee in this case are as follows:-

 Reasonable care of the health and safety of the worker himself as well as all the other
workers around him. It must be ensured that the acts or omissions of acts of a worker
should not prove to be heinous to any other worker in the factory.
 Comply with the health and safety requirements as mentioned in the standards.
 Co-operation with the employer to ensure that the statutory obligations of the worker is
being met under the Code.
 If any situation arises which seems to be dangerous, unsafe or unhealthy comes to his
attention, it is his duty to report such a situation to his employer or to the health and
safety representative who in turn has a duty to report the situation to the concerned
authorities within the stipulated form and time as provided by the appropriate
government.
 Should ensure not to willfully interfere with or misuse or neglect any appliance,
convenience or other thing provided at workplace for the purpose of securing the health,
safety and welfare of workers in the factory.
 Not do anything by his own will and without any reasonable cause arising for doing the
same an act which is likely to endanger his life or any other worker’s life
 Lastly, he is expected to perform any such other duties as is prescribed by the appropriate
government with regards to the health, safety and welfare of workers of a hazardous
factory.
Under Section 15 of the Occupational Safety, Health and Working Conditions Code, 2020(herein
as referred to as “Code”), No person shall recklessly or intentionally interfere with, damage or
misuse anything which is provided in the interest of health, safety or welfare under this Code.

Role of Central Government in Occupational Safety and Health standards

The need of occupational safety and health standards is of utmost importance since labour
welfare and safety of their health is of top priority of the laws enacted with respect to labourers
as well as factories. Hence, the Central Government plays a huge role in determining what the
occupational safety and health standards would be for factories all over the country which deal
with hazardous substances.

As per Section 18(1) of the Code, The Central Government may declare via any notification the
standards on occupational safety and health upon factories dealing with factories, mines, beedis,
docks as well as building and other construction works or any other establishment which may be
classified as a hazardous workplace dealing with hazardous process. As per the definition clase
of Section 2(za), Hazardous process is be defined as “Any process or activity in relation to an
industry or a plantation specified in the First Schedule where, unless special care is taken, raw
materials used there-in or the intermediate or finished products, bye- products, hazardous
substances, wastes or effluents thereof or spraying of any pesticides, insecticides or chemicals
used therein, as the case may be, would—

(i) cause material impairment to the health of the persons engaged in or connected
therewith, or
(ii) result in the pollution of the general environment

The standards to be declared must be in relation to physical, chemical, biological and any other
hazards to be dealt with for the working life of the employee, it must be ensured that no
employee is subject to any material impairment of health or working ability even if such person
is exposed to these hazards.

The norms would generally include the following:-

  Spreading knowledge of the hazards to employees and users to whom the hazards are
exposed to more often than not
 Monitoring and managing the time period of which an employee is exposed to a
hazardous substance.
 Relating to the proper use of machinery and precautions of safe use and exposure.
 Hazard evaluation processes such as safety audit or fault free analysis.
 Medical examination and other tests to be made available to employees regularly without
any cost being levied upon them.

Safety and Occupational Health Surveys

At any time during the working hours of the establishment or otherwise, as it may be deemed
necessary, the Chief Inspector Cum facilitator of a factory or mine, the Director General of the
Factory Advice Service, The Director General of Mines Safety, The Director General of Health
Services in case of mine or factory or any other officer as authorized by the appropriate
government after giving notice in writing to the employer of the establishment, may conduct a
survey upon the factory or the mine or any other establishment and the employer must
necessarily make available all facilities for the survey including the facilities for testing of the
plant or machinery and collection of any samples if required.

Every worker, if required by the inspector in the particular case may be subjected to a medical
examination and must necessarily present himself for the same and furnish all information in his
possession which would be needed to facilitate the survey. Any time spent by the worker as a
part of the medical test must be regarded as “working hour” for him and no remuneration is to be
deducted by the employer for this purpose. This report is then to be submitted to the Central
government in capacity of the report submitted by the Chief-Inspector-Cum-Facilitator to the
appropriate government.
 Hazardous Processes under The Factories Act, 1948
With reference to law, “hazardous processes” means any activity or process relating to an
industry where, unless special care is taken, raw materials used in the intermediate or finished
products, wastes, by-products or effluents would:-

 Cause material impairment to the health of a person

 Lead to the general pollution of the environment

Various rules and provisions have been enacted in The Factories Act,1948 with relation to
hazardous processes which are as follows:-

Section 41 under The Factories Act,1948 deals with hazardous processes. It entails certain
requirements in a factory which deals with hazardous products.

 Section 41A deals with Constitution of Site Appraisal Committee:-

The section states that the factory shall appoint a “Site Appraisal Committee” which has a
role of suggesting locations for factories which interacts with hazardous products or
processes. The constituents of the committee shall include the following:-

1. Chief Inspector of the State

2. Representative of the Central Board for the Control and Prevention of Water
Pollution
3. Representative of Environment Department in the State
4. Representative of Meteorological Department of the Government of India
5. Expert in Occupational Health
6. Representative of Town Planning Department of State Government

Note:- The Site Appraisal Committee reserves any right to call for any information from the
person making the application for the expansion or establishment of a factory dealing with
hazardous products

 Section 41B deals with Disclosure of Information by Occupier of

Factory
 1. Prescribed Manner- The occupier of every factory involving a hazardous process
must disclose all the information relating to the factory in a prescribed manner
regarding measures and dangers.
2. Detailed Policy- A detailed policy must be laid down w.r.t. health and safety of
the workers in the factory.
3. Accuracy:- Information must be completely accurate.
4. On-site emergency plan:- Every occupier must draw up an on- site emergency
plan with the approval of the Chief Inspector. Detailed disaster control measures
must also be drawn up for the factory. The occupier must make this information
public to the workers as well as general public.

 Section 41C deals with specific responsibility of the occupier in relation

to hazardous processes
This section states that due care must be exercised by the occupier of the factory to
accurately maintain and record the health and medical records of all the workers in the
factory. It is extremely important for those people who are dealing with harmful or toxic
substances. Due care must also be taken to employ persons who possess the experience in
handling hazardous substances. They must also be competent to handle these substances
within the premises of a factory. All necessary facilities to protect the workers of the
factory such as gloves, mask, head gear etc. must be provided by the occupier in the
manner prescribed.
Medical examination of any person prior to dealing with hazardous productions is a
mandatory requirement of this section.
 Section 41D is regarding the power of the Central Government to
appoint an inquiry committee
This section vests powers in the hands of the Central Government in case of a
extraordinary circumstance to appoint an inquiry committee in cases of hazardous factory
material.
The standards of safety and health of the factory are inquired into by this committee. This
is done to find out any negligence or failure in the adoption of all safety and welfare
guidelines. This committee is constituted of a chairman and 2 other members who’s
 tenure is decided by the Central Government itself. The nature of the recommendations of
the committee, however are advisory in nature and not enforceable.
 Section 41E deals with the emergency standards that are set for
factories dealing with hazardous material
This section says that in cases when the Central Government feels that the factory is
unable to apply some safety measures, it has the power and liberty to direct the director-
in-charge of the factory to implement the basis standards immediately. This mainly only
applies to factories dealing with hazardous processes.
 Section 41F is regarding the limits permitted of exposure of chemical
and toxic substances
This section states that the maximum limits of exposure of hazardous substances is
mentioned in Schedule Two and that the Central Government has the power to change
anything in this schedule at any time for the purpose of giving any effect to scientific
proof.
 Section 41G deals with the participation of workers in safety
management
This section states that a safety committee must be constituted in any factory involving
hazardous products or processes. This safety committee will be constituted of an equal
number of workers as well as people from the management. This committee is formed to
promote safety and health of workers in a factory as well as to promote co-operation
between workers and management.

CONCLUSION
The safety and health of workers is of utmost importance and no harm is to be caused to workers
at any cost. Everything in the capacity of the central government as well as the occupier is to be
taken to ensure the same. A step towards achieving complete safety has been taken by initiating
legislation against hazardous activities taking place in factories and keeping women and children
away from the same. However, the actual problem exists in the implementation of the laws listed
out. Proper precautions are to be taken by the workers involved in hazardous processes such as
gear and knowledge of hazards are to be conveyed to one other as well as instructions of perusal
of machines. Regular inspections are to be necessarily carried out by the watchdogs such as
inspector cum facilitator and health surveys as well as medical tests are to be carried out on a
regular basis. The employee’s have certain duties and responsibilities towards their own safety
and health so they shouldn’t be negligent and cause any harm due to lack of attention. They have
a responsibility towards their co-workers as well and need to be attentive towards any arising
danger in the factory and convey the same to the occupier. Proper knowledge is to be attained by
the employees while using appliances or machines which are involved in hazardous processes
and no harm or danger to life is to be caused to his own life or any fellow worker due to any kind
of negligence. Hence, safety and welfare a two way road which is to be upheld by both the
employer as well as the employee. The employer and employee in matter of safety and welfare
of workers is like heads and tails of the same coin and hence go hand in hand with each other.

BIBLIOGRAPHY
1. www.legalserviceindia.com
2. www.icsi.edu
3. www.jru.edu.in
4. www.prsindia.org
5. www.labourgov.in
6. Manjeet Kumar Sahu-Development of Law Relating to Factories in India
7. Occupational health of workers in Law & Practice - S.C. Srivastava:- 31 Ban.L.J.(2002)
8. Industrial, Labour & General Laws- ICSI
9. Management of Labour Laws and Practice- Dr. R.S. Kulkarni
10. Hanumant on Beneficial Construction