UNIT III CHILD LABOUR ACT 1986 Child labour has been a major concern in the world because it affects the children both mentally and physically and it also destroys the future of children. Child labour is one the serious issue not only in India but also in other developing countries. It is widely prevalent in developing countries because of poverty; it is a great social problem because children are the hope and future of a nation. There were many laws enacted to prohibit child labour but they are ineffective. According to 2017 statics India is one of the leading countries in Asia has a whopping 33 million children employed in various forms of child labour. Let me explain the major laws enacted to prohibit child labour and their impacts on society under the following sub heads. Childhood is the most innocent phase in human life. It is that stage of life when the human foundations are laid for a successful adult life. Many children, instead of spending it in a carefree and fun-loving manner while learning and playing, are scarred and tormented. They hate their childhood and would do anything to get out of the dungeons of being children and controlled and tortured by others. They would love to break-free from this world, but continue to be where they are, not out of choice, but force. Thus it affects our social production in the long run. It is in recognition of this fundamental fact that much thought has been paid to the subject of child labour both in the pre-independent and post-independent periods and by the framers of our constitution. Result of this is a plethora of legislation that aims at prohibiting the incidence of child labour. Certain other legislation, while v7] Edit with WPS Officeaccepting the reality of employment of children in certain selected areas, tries to regulate their work environment, pay, hours of work etc. India is sadly the home to the largest number of child labourers in the world. The census found an increase in the number of child labourers from 11.28 million in 1991 to 12.59 million in 2001. M.V. Foundation in Andhra Pradesh found nearly 400,000 children, mostly girls between seven and 14 years of age, toiling for 14-16 hours a day in cottonseed production across the country of which 90% are employed in Andhra Pradesh. 40% of the labour in a precious stone cutting sector is children. NGOs have discovered the use of child labourers in mining industry in Bellary District in Karnataka in spite of a harsh ban on the same. In urban areas there is a high employment of children in the zari and embroidery industry. A child is the wealth of a nation. In India 14th November is celebrated as Childrens day and 30th June is observed as Child Labour Day. Innocent children are employed by industries and individuals who put them to work under gruelling circumstances. They are made to work for long hours in dangerous factory units and sometimes made to carry load even heavier than their own body weight. Then there are individual households that hire children as domestic help and beat and physically torture them when they make a mistake. The children are at times made to starve and are given worn out clothes to wear. Such is the story of millions of children in India painful and yet true. Legal definition of child, Section 2 (2) of Shops and Establishment act - 1948 states that child is a person who hasn't completed 15 years of his age. + Article 45 of the Constitution of India defines child as a person younger than 14 years. Mines Act - 1952 says that a child is a person not older v7] Edit with WPS Officethan 16 years.» According to the Suppression of Immoral Traffic in Women and Girls Act 1956, a child is a person who is not 21 + Years old. According to the Juvenile Justice (care and Protection of a Child) Act, a child is a person who has not completed 18 years of age. LAW DEFINES CHILD LABOUR AS under the Act, Child" means a person who has not completed his fourteenth year of age. Any such person engaged for wages, whether in cash or kind, is a child worker. According to UNICEF, all the children not being provided education at a school are considered as Child Labours. Who Is a "Child"? International conventions define children as people aged 18 and under. Individual governments may define "child" according to different ages or other criteria. "Child" and "childhood" are also defined differently by different cultures. A "child" is not necessarily defined by a fixed age. Social scientists point out that children’s abilities and maturities vary so much that defining a child’s maturity by calendar age can be misleading. INTERNATIONAL INITIATIVES ON CHILD LABOUR At the international level the ILO sets the pace and standards for the welfare and safety of the working class. e It may be remembered here that one of the objectives of the ILO itself is the abolition of child labour. Child labour has been a major preoccupation of ILO since its foundation in 1919. The linkage of child rights with human rights is an obvious one and has been emphasized by world leaders. ¢ The world summit for children was held at the United Nations headquarters in New York on September 301h of v7] Edit with WPS Office1990 (UNICEF, 1990). The success of World Summit or1 Children of 1990 and the political commitment expressed by Commonwealth Heads of Government and_ regional organisations like OAU and S.4ARC have opened a new chapter with regard to cooperation in realising child rights. With the support and assistance of ILO in 1993, India has launched an extensive action-oriented programme for education and elimination of working children and their rehabilitation in thirty centers of the country. The programme is implemented under the auspices of International Programmed on the Elimination of Child Labour (IPEC), an agency of ILO. The UNICEF is also renders fruitful service for the cause of child welfare, rehabilitation of child labour prohibition of child labour, popularisation of universal education protection of girl children etc. (Ramnarayana, 1992). UNICEF acknowledges the need to seriously address child labour as a key component of the organisation policy. . UNICEF has been working to reduce and eliminate child labour using a combination of the following strategies: Reform of existing legislation, for example setting a minimum age for child labour, that brings policy coherence, Law enforcement to ensure the implementation of the Child labour Act, Expanding education access, improving quality and relevance of education, addressing violence in schools, Awareness-raising and mobilization of families and communities against the exploitation of children, Social protection programmes and cash transfers to improve the economic situation of families and to reduce the “need” to send children to work, Strengthening child protection systems, including the v7] Edit with WPS Office © sewned wth Xt ScannerIntegrated Child Protection Scheme and implementation of Juvenile Justice Act, Working towards convergence between government departments to prevent child labour and rehabilitate existing child labourers CONSTITUTIONAL PROVISIONS REGARDING CHILD LABOUR: Several articles of Indian Constitution provide protection and provisions for child labour. Article 15 (3) The State is empowered to make the special provisions relating to child, which will not be violative of right to equality. Article 21 No person shall be deprived of his life or personal liberty, except according to procedure established by law. The Supreme Court held that , life" includes free from exploitation and to live a dignified life. Article 21A (Right to Education) The State shall provide free and compulsory education to all children of the age of six to fourteen years, in such manner as the State may, by law, determine. Where children are allowed to work, in such establishment, it is the duty of employer to make provisions for the education of child labourer. Article 23 Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this prohibition shall be an offence punishable in accordance with law. Article 24 (Prohibition of Employment of Children in Factories, etc.) No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The Supreme Court held that “hazardous employment” includes construction work, match boxes and fireworks therefore; no child below the age of 14 years can be v7] Edit with WPS Officeemployed. Positive steps should be taken for the welfare of such children as well as for improving the quality of their life. Article 39 (e) The State shall, in particular, direct its policy towards securing the health and strength of the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 39 (f) The State shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity; and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 45 The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Article 51A(e) It shall be the duty of every citizen of India, who is a parent or guardian to provide opportunities for education to his child or ward as the case may be, between the age of six and fourteen years. Causes Reasons for Child Labour: Poverty Poverty is one of the main causes of child labour. In developing countries poverty is one of the major drawback and the children were considered as helping hand to feed their families, to support their families and to support themselves .Due to poverty, illiteracy and unemployment parents are unable to send them to schools, instead the children were asked to help them in running a family so that the poor parents send their children for work in inhuman conditions at lower wages. Debts: The poor economic conditions of people in India force them to v7] Edit with WPS Office © sewned wth Xt Scannerborrow money. The illiterate seek debt from money lenders during emergency situation .At later point of time they find themselves difficult in paying back the debts and interest, as a result the debtors were made to work for money lenders and then debtors drag their children too in assisting them so that the debts could be paid off. Professional Needs: There are some industries such as the bangle making industry, where delicate hands and little fingers are needed to do very minute work with extreme excellence and precision. An adults hand is usually not so delicate and small, so they require children to work for them and do such a dangerous work with glass. This often resulted in eye accidents of the children. Rights of Children under International Law: Universal declaration of human rights 1948 - stipulates under article 25 para 2 that childhood is entitled to special care and assistance. The above principles along with other principles of universal declaration concerning child were incorporated in the declaration of the rights of the child of 1959. International covenant on civil and political rights under articles 23 and 24 and international covenant on economic, social and cultural rights - under article 10 made provision for the care of the child. International labour organisation (ILO) - provides universal standards and guideline, a specialized agency of UN, aims to provide guidance and standards for labour practices around the world. Convention on the rights of the child, 1989 It is another international instrument which protects the child. Rights of Children under National Laws: India has also taken effective measure under national level. In order to eliminate child labour, India has brought constitutional, statutory development measures. The Indian constitution has v7] Edit with WPS Office © sewned wth Xt Scannerconsciously incorporated provisions to secure compulsory elementary education as well as the labour protection for the children. Labour commission in India have gone into the problems of child labour and have made extensive recommendations. The constitution of India too provides certain rights to children and prohibits child labour such provisions are as follows: 1. No child below the age of 14 years shall be employed in any factory or mine or engaged in any other hazardous work. 2.state in particular shall direct its policy towards securing that the health and strength of workers, men and women and the tender age of the children are not abused and that citizen are not forced by economic necessity to enter vocations unsuited to their age or strength. 3. Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and the dignity and that childhood and youth are protected against exploitations and against moral and material abandon. 4. The state shall endeavour to provide, within the period of 10 years from the commencement of constitution, free and compulsory education for all children until they complete the age of 14 years. 5. The state shall provide free and compulsory education to all children between the ages of 6 to 14 years as such a manner as the state may by law determine. 6. Who is parent or guardian to provide opportunities for education to his child or the case may be, ward between the age of six and fourteen years. There are wide range of laws, which guarantee the substantial extent the rights and entitlement as provided in the constitution and in the UN convention. Some of them are : 1. The apprentices Act 1861 v7] Edit with WPS Office © sewned wth Xt Scanner2. The child labour Act 1986 3. The child marriage restraint act 1929 4. The children (pledging of labour) Act 1929 5. Children Act 1960 6. The guardian and wards Act 1890 7 .The Hindu minority and guardianship Act 1956 8 .The Hindu Adoption and maintenance Act 1956 9. The Immoral Traffic (prevention) Act 1956 10. Juvenile justice Act 1986 11. The Orphanages and other charitable Homes (supervision and control) Act 1960 12. Probation and offenders Act 1958 13. Reformatory schools Act 1857 14. The women's and children’s institutions (licensing) Act 1956 15. The young persons (harmful publications) Act 1956 Current Scenerio of Child Labour: India is one of the leading countries in Asia has a 33 million children employed in various forms of child labour .It is shocking that world's largest democracy is yet to ratify the Minimum age convention 1973 (No 138) of the International labour organisation (ILO) that lays down groundrules for employment of minors across the globe. world day against child labour on June 12 is an ILO sanctioned holiday first launched in 2002 with the objective to raise awareness and activism to prevent child labour under the above convention .An estimated 150 million children are involved in child labour worldwide as per UNICEF data. v7] Edit with WPS OfficeOn the other hand Article 2 of the Minimum age (industry) convention of the ILO, 1919 which has been ratified by India does not allow children under 14 to be employed in any public or private industrial undertaking, does not even apply for India. According to a Livemint report ,the government last year amended child labour laws to allow children below 14 to work in family businesses and the entertainment industry (excluding circuses ) in order to create" a balance between the need for education for a child and reality of the socio economic condition and social fabric of the country". Not only that amendment also modified the definition of adolescents- to children between 14 and 18 years of age and barred them from working in any hazardous industries only. JUDGEMENTS REGARDING CHILD LABOUR Unni Krishnan Vs Andhra Pradesh (1993 1. SCC 645) The Supreme Court in its judgment held that children up to the age of 14 had a fundamental right to free education. Neeraja Chaudhary Vs State of Madhya Pradesh (AIR 1984 SCC (3) 243) In this case the Supreme Court of India stated that the Child Labourers should be rescued and provision for their rehabilitation should be made. Constitutional Provisions and Legislations for Child Labour in India 139 U.P. BandhuaMuktiMorcha Vs Union of India (AIR 1984 SC 802) In this case the Supreme Court of India stated that if no steps are taken under Bonded Labour System Act - 1976 by the Government then it would be a violation of Article 23 of the Constitution. Article 23 states that children should not be forced to work at cheap wages due to their economical or social disadvantage. Sheela Barse Vs Secretary, Chrildren Aid Soceity and Others, 1987 The Supreme Court held, "If there be no proper growth of children of today, the future of the country will be dark. It is the obligation v7] Edit with WPS Officeof every generation to bring up children who will be citizens of tomorrow in a proper way. M. C. Metha Vs State of Tamil Nadu, 1991 The Supreme Court has not allowed children to work in a prohibited occupation. According to the judges, "the provisions of Article 45 in the Directive Principles of State Policy has still remained a far cry and according to this provision all children up to the age of 14 years are sponsored to be in school, economic necessity forces grown up children to seek employment Consequences of child labour Children are exposed to accidental and other injuries at work. They should thus be protected to prevent social, economic and physical harm, which persist to affect them during their lifetime. Such injuries include? : + General child injuries and abuses like cuts, burns and lacerations, fractures, tiredness and dizziness, excessive fears and nightmares. + Sexual abuse, particularly sexual exploitation of girls by adults, rape, prostitution, early and unwanted pregnancy, abortion, Sexually Transmitted Diseases (STDs) and HIV/AIDS, drugs and alcoholism. + Physical abuse that involve corporal punishment, emotional maltreatment such as blaming, belittling, verbal attacks, rejection, humiliation and bad remarks. + Emotional neglect such as deprivation of family love and affection, resulting in loneliness, and hopelessness. + Physical neglect like lack of adequate provision of food, clothing, shelter and medical treatment. + Lack of schooling results in missing educational v7] Edit with WPS Office © sewned wth Xt Scannerqualifications and higher skills thus perpetuating their life in poverty. + Competition of children with adult workers leads to depressing wages and salaries. Apart from the above, lack of opportunity for higher education for older children deprives the nation of developing higher skills and technological capabilities that are required for economic development/transformation to attain higher income and better standards of living. PROHIBITION OF EMPLOYMENT OF CHILDREN IN CERTAINOCCUPATIONS AND PROCESSES Sec 3. Prohibition of employment of children in certain occupations and processes. No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on : Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government. Sec 4. Power to amend the Schedule. The Central Government, after giving by notification in the Official Gazette, not less than three months' notice of its intention so to do, may, by like notification, add any occupation or process to the Schedule and thereupon the Schedule shall be deemed to have been amended accordingly. v7] Edit with WPS OfficeSec 5. Child Labour Technical Advisory Committee. (1) The Central Government may, by notification in the Official Gazette, constitute an advisory committee to be called the Child Labour Technical Advisory Committee (hereafter in this section referred to as the Committee) to advise the Central Government for the purpose of addition of occupations and processes to the Schedule. (2) The Committee shall consist of a Chairman and such other members not exceeding ten, as may be appointed by the Central Government. (3) The Committee shall meet as often as it may consider necessary and shall have power to regulate its own procedure. (4) The Committee may, if it deems it necessary so to do, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person who is not a member of the Committee. (5) The term of office of, the manner of filling casual vacancies in the office of, and the allowances, if any, payable to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the Committee may appoint any person who is not a member of the Committee as a member of any of its sub-committees shall be such as may be prescribed. PART Ill- REGULATION OF CONDITIONS OF WORK OF CHILDREN Sec 6. Application of Part. v7] Edit with WPS OfficeThe provisions of this Part shall apply to an establishment or a class of establishments in which none of the occupations or processes referred to in Section 3 is carried on. Sec 7. Hours and period of work. (1) No child shall be required or permitted to work in any establishment in excess of such number of hours as may be prescribed for such establishment or class of establishments. (2) The period of work on each day shall be so fixed that no period shall exceed three hours and that no child shall work for more than three hours before he has had an interval for rest for at least one hour. (3) The period of work of a child shall be so arranged that inclusive of his interval for rest, under sub-section (2), it shall not be spread over more than six hours, including the time spent in waiting for work on any day. (4) No child shall be permitted or required to work between 7 p.m. and 8 a.m. (5) No child shall be required or permitted to work overtime. (6) No child shall be required or permitted to work in any establishment on any day on which he has already been working in another establishment. Sec 8. Weekly holidays. Every child employed in an establishment shall be allowed in each week, a holiday of one whole day, which day shall be specified by the occupier in a notice permanently exhibited in a conspicuous place in the establishment and the day so specified shall not be v7] Edit with WPS Officealtered by the occupier more than once in three months. Sec 9. Notice to Inspector. (1) Every occupier in relation to an establishment in which a child was employed or permitted to work immediately before the date of commencement of this Act in relation to such establishment shall, within a period of thirty days from such commencement, send to the Inspector within whose local limits the establishment is situated, a written notice containing the following particulars, namely : + (a) the name and situation of the establishment ; + (b) the name of the person in actual management of the establishment ; + (c) the address to which communications relating to the establishment should be sent ; and + (d) the nature of the occupation or process carried on in the establishment. (2) Every occupier, in relation to an establishment, who employs, or permits to work, any child after the date of commencement of this Act in relation to such establishment, shall, within a period of thirty days from the date of such employment, send to the Inspector within whose local limits the establishment is situated, a written notice containing the particulars as are mentioned in sub-section (1). Explanation: For the purposes of sub-sections (1) and (2), "date of commencement of this Act, in relation to an establishment" means the date of bringing into force of this Act in relation to such establishment. (3) Nothing in Sections 7, 8 and 9 shall apply to any establishment v7] Edit with WPS Office © sewned wth Xt Scannerwherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from. Government. Sec 10. Disputes as to age. If any question arises between an Inspector and an occupier as to the age of any child who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to the age of such child granted by the prescribed medical authority, be referred by the Inspector for decision to the prescribed medical authority. Sec 11. Maintenance of register. There shall be maintained by every occupier in respect of children employed or permitted to work in any establishment, a register to be available for inspection by an Inspector at all times during working hours or when work is being carried on in any such establishment, showing: + (a) the name and date of birth of every child so employed or permitted to work ; + (b) hours and periods of work of any such child and the intervals of rest to which he is entitled ; + (c) the nature of work of any such child ; and + (d) such other particulars as may be prescribed. Sec 12. Display of notice containing abstract of Sections 3 and 14, Every railway administration, every port authority and every occupier shall cause to be displayed in a conspicuous and accessible place at every station on its railway or within the limits of a port or at the place of work, as the case may be, a notice in v7] Edit with WPS Office © sewned wth Xt Scannerthe local language and in the English language containing an abstract of Sections 3 and 14. Sec 13. Health and safety. (1) The appropriate Government may, by notification in the Official Gazette, make rules for the health and safety of the children employed or permitted to work in any establishment or class of establishments. (2) Without prejudice to the generality of the foregoing provisions, the said rules may provide for all or any of the following matters, namely : (a) cleanliness in the place of work and its freedom from nuisance ; (b) disposal of wastes and effluents ; (c) ventilation and temperature ; + (d) dust and fume ; (e) artificial humidification ; (f) lighting ; (g) drinking water ; + (h) latrine and urinals ; + (i) spittoons ; () fencing of machinery ; (k) work at or near machinery in motion ; (!) employment of children on dangerous machines ; (m) instructions, training and supervision in relation to employment of children on dangerous machines ; (n) device for cutting off power ; + (0) self-acting machines ; + (p) easing of new machinery ; (q) floor, stairs and means of access ; (1) pits, sumps, openings in floors, etc. ; v7] Edit with WPS Office+ (s) excessive weights ; + (t) protection of eyes ; + (u) explosive or inflammable dust, gas, etc. ; + (v) precautions in case of fire ; + (w) maintenance of buildings ; and + (x) safety of buildings and machinery. Sec 14. Penalties. (1) Whoever employs any child or permits any child to work in contravention of the provisions of Section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both. (2) Whoever, having been convicted of an offence under Section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years. (3) Whoever: + (a) fails to give notice as required by Section 9, or + (b) fails to maintain a register as required by Section 11 or makes any false entry in any such register ; or + (c) fails to display a notice containing an abstract of Section 3 and this section as required by Section 12 ; or + (d) fails to comply with or contravenes any other provisions of this Act or the rules made thereunder, shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both. v7] Edit with WPS OfficeSec 15. Modified application of certain laws in relation to penalties. (1)Where any person is found guilty and convicted of contravention of any of the provisions mentioned in sub-section (2), he shall be liable to penalties as provided in sub-sections (1) and (2) of Section 14 of this Act and not under the Acts in which those provisions are contained. (2) The provisions referred to in sub-section (1) are the provisions mentioned below : + (a) Section 67 of the Factories Act, 1948 (63 of 1948) ; + (b) Section 40 of the Mines Act, 1952 (35 of 1952) ; + (c) Section 109 of the Merchant Shipping Act, 1958 (44 of 1958) ; and + (d) Section 21 of the Motor Transport Workers Act, 1961 (27 of 1961). Sec 16. Procedure relating to offences. (1) Any person, police officer or Inspector may file a complaint of the commission of an offence under this Act in any court of competent jurisdiction. (2) Every certificate as to the age of a child which has been granted by a prescribed medical authority shall, for the purposes of this Act, be conclusive evidence as to the age of the child to whom it relates. (3) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act. Sec 17. Appointment of inspectors. The appropriate Government may appoint Inspectors for the purposes of securing compliance v7] Edit with WPS Officewith the provisions of this Act and any Inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860). Sec 18. Power to make rules. (1) The appropriate Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying into effect 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 term of office of, the manner of filling casual vacancies of, and the allowances payable to the Chairman and members of the Child Labour Technical Advisory Committee and the conditions and restrictions subject to which a non-member may be appointed to a sub-committee under sub-section (5) of Section 5; + (b) number of hours for which a child may be required or permitted to work under sub-section (1) of Section 7 ; + (c) grant of certificates of age in respect of young persons in employment or seeking employment, the medical authorities which may issue such certificate, the form of such certificate, the charges which may be made thereunder and the manner in which such certificate may be issued : Provided that no charge shall be made for the issue of any such certificate if the application is accompanied by evidence of age deemed satisfactory by the authority v7] Edit with WPS Officeconcerned ; + (d) the other particulars which a register maintained under Section 11 should contain. Sec 19. Rules and notifications to be laid before Parliament or State legislature. (1) Every rule made under this Act by the Central Government and every notification issued under Section 4, shall be laid, as soon as may be after it is made or issued, 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 tule or notification or both Houses agree that the rule or notification should not be made or issued, the rule or notification shall thereafter have effect only in such modified form 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 or notification. (2) Every rule made by a State Government under this Act shall be laid as soon as may be after it is made, before the legislature of that State. Sec 20. Certain other provisions of law not barred. Subject to the provisions contained in Section 15, the provisions of this Act and the rules made thereunder shall be in addition to, and not in derogation of, the provisions of the Factories Act, 1948 (63 of 1948), the Plantations Labour Act, 1951 (69 of 1951) and the Mines Act, 1952 (35 of 1952). Sec 21. Power to remove difficulties. v7] Edit with WPS Office 0 seamed vith one Seamer(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removal of the difficultyProvided that no such order shall be made after the expiry of a period of three years from the date on which this Act receives the assent of the President. (2) Every order made under this section shall, as soon as may be after it is made, be laid before the Houses of Parliament. Sec 22. Repeal and savings. (1) The Employment of Children Act, 1938 (26 of 1938), is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act. THE CONTRACT LABOUR (REGULATION AND ABOLISHMENT) ACT 1970 WHAT IS CONTRACT LABOUR The present day and age of extensive globalisation has resulted in people and corporate increasing their pace of production in order to maximise their profits. This has resulted in careful cost cutting by companies thus promoting contract labour. Contract workers form a large part of the total workforce in India. Most of these workers are engaged in seasonal or occasional employment as and when they are called for. The primary sectors that mainly function through contract labour are loading and v7] Edit with WPS Officeunloading of goods and materials; catering including canteen services; security services; civil and construction works; electrical/ air conditioning/ painting/ whitewashing; house- keeping services; computer maintenance, etc. Contract labourers are usually recruited through contractors who work as a link between the actual employers and the workers. However, over time such contractors are indulging in large scale misuse and abuse of power. Workers are especially abused by being paid lesser wages than agreed upon, being forced into employment that is harmful to physical or mental health etc. Ensuring the welfare of the labour sector in the nation is the prime responsibility of the Central Government. For this reason, the Central Government has enacted several legislations aimed at securing the welfare of the labour class. However, the rights conferred to contract workers by way of the Constitution and various other labour laws are generally poorly enforced. Although there are trade unions to secure the rights and welfare of the workers, they primarily cater to the vested interests of the trade union leaders. In SMEs, the situation is even worse; there is total anarchy and the workers are left all to themselves. Therefore in order to secure the rights and address the welfare of contract labourers, the Government deemed it fit to pass the Contract Labour (Regulation and Abolition) Act 1970. Labour administration is one of the most crucial tasks of an entrepreneur. In order to progress upon the rigorous labour regulations, the industry sector in India is largely resorting to contract/temporary workers. Such labourers are governed by the Contract Labour (Regulation and Abolition) Act, 1970. It is found that many of the stipulations made under the act to safeguard contract labour in India are not followed in practice. One of the offshoots of the processes of globalization and liberalization is the increase in the trend towards substitution of regular employment by contract employment and this trend is v7] Edit with WPS Office © sewned wth Xt Scannergoing to continue in the future as well. This trend is indicated by the fact that in most of the places, in manufacturing, services and trade, workers are being deployed on a contract basis, not only in permanent and perennial nature of jobs, in core jobs of the establishment as well. As a result, the whole profile of workforce has been changing fast owing to the fast track contractualisation of workplaces. In various government departments, the number of contracts/temporary/extra-departmental workers is constantly increasing. In public sector units, both the Centre and the States, the proportion of the contract/temporary workers in the total workforce has already crossed the 50 percent mark on the average and in some Public Sector Undertakings like petroleum, mining, construction etc. the share of contract workers in total employment has crossed the mark of 70 percent. In private sector establishments, the situation is all the more alarming. In such establishments, particularly those emerged after the initiations of the policy of globalization in 1991, overwhelming majority of the workers are deployed on the contract of various forms and nomenclatures. Among different kinds of employment that have been created in various economies to circumvent labour laws, contract labour is becoming one of the prominent forms. The economic factors like cost effectiveness may justify the system of contract labour, however, the consideration of social justice calls for its regulation. In India, contract labourers are protected by the Contract Labour (Regulation and Abolition) Act, 1970 (“the Act”). The character of contract is also undergoing changes. In order to evade the obligations and responsibility of principal employer, as stipulated in the Contract Labour (Regulation and Abolition) Act, 1970 (“the Act”), many companies, including PSUs are resorting to various different routes of contractualisation under the garb of ‘outsourcing’, ‘job-contract’, ‘ancillarisation’ and various other v7] Edit with WPS Office © sewned wth Xt Scannermethods.This has become a matter of concern, that a vast majority of workers, are thrown out of the coverage of the legislative protection under the Act, by adopting the abovementioned devices, and thus work in very poor conditions of work, for excessively long hours at abysmally low wages, as compared to workers doing similar work with a permanent status. Many of the fringe benefits such as provident fund, sickness, insurance, gratuity, privilege leave with pay, and so on, are usually not available to contract workers. On the whole, conditions of service of contract workers are substantially poorer as compared to regular employees of an employer. Because of factors like uncertainty of tenure, frequent changes in contracts and contractors, lack of proper employment records, and such other factors, contract workers find it extremely difficult to get organized in strong trade unions. So, providing some minimum social security measures and legal protection to them assumes paramount importance. This paper aims at analyzing an interpreting the provisions of the Act, in light of judicial pronouncements given by the High Courts and Supreme Court at different points of time. It will also attempt to analyse the scope, coverage and limitations of this specific enactment in relation with other related laws. It aims to throw light upon the issue which still remain unaddressed and offer certain suggestions based on the experience of certain other select countries in the area of Contract Labour. The Contract Labour (Regulation and Abolition) Act 1970 was enacted as a Central law aimed at regulating the conditions under which contract labourers work and also provide for the gradual abolition of the contract labour system as and when possible. The Act was made applicable to all establishments operating all over the country and both the Central and state governments were authorised to enforce it in their respective jurisdictions. The Act envisages the minimization of the exploitation of the v7] Edit with WPS Office © sewned wth Xt Scannerlabour class and improving the working conditions enjoyed by labourers employed on a contract basis. OBJECTIVES OF THE ACT The prime objective of the Contract Labour (Regulation and Abolition) Act is to prevent the exploitation of contract workers and to abolish the system of contract labour in cases where: + The work is perennial in nature. + The work is incidental or is necessary for the functioning of the establishment. + The work is of such a nature that it can employ a considerable number of workmen full time. + The work need not be done by contract workers and can be done by regular workmen. APPLICABILITY OF THE ACT The Act is applicable to every establishment wherein twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour. The Act is also applicable to all those contractors who employ twenty or more contract labourers in any establishment belonging to a primary employer. Accordingly, any organization that comes under the ambit of the Act should register itself as the principal employer by making an v7] Edit with WPS Office © sewned wth Xt Scannerapplication to the registration officer who is appointed by the appropriate government. Further, it should be known that any establishment that does not register itself under the Act is barred from employing contract labour. Also, all contractors who are engaged in recruiting and providing contract labour are supposed to obtain a license for the same. Such license has certain conditions such as hours of work, fixation of wages and provision of certain essential amenities etc. subject to which the contractor can recruit contract labourers. The principal employer is obliged under the CLA (contract labour Act) to ensure that wages have been paid to the contract labour in the presence of its (principal employer's) authorized representative. If the contractor fails to pay wages to any worker, the principal employer has been made duty bound to pay the same. It should be noted that the Act is not applicable to establishments that work on a seasonal basis i.e. if work is performed for less than 120 days a year, it would amount to seasonal employment and such establishment need not be registered under the Act. Although the Act has aimed at providing at the welfare of contract workers and preventing their exploitation, there are several issues that cloud a clear understanding of the Act, thus hampering effective implementation. Some of these issues are: DOES THE ACT PROVIDE THE WORKERS UNDER IT THE RIGHT TO BE ABSORBED INTO THE MAINSTREAM WORKFORCE OF THE ESTABLISHMENT AFTER THE ABOLITION OF CONTRACT LABOUR? Although the Act aims at the regulation of contract labour, at the end its goal is the abolition of the same. This poses several questions as to the employment status and opportunities of those who are currently enjoying benefits under the Act. An abolition of contract labour would result in loss of employment v7] Edit with WPS Officewhich would be a far worse scenario than that of working as a contract worker. This concern has, however, been addressed in almost every case that relates to contract labour. It has been clearly held that upon abolishment of contract labour, workers who were working in such capacity will directly get absorbed into the mainstream workforce of the establishment. It was further stated that loss of jobs would not be a possibility as this would be against the very aim of this Act i.e. to provide secure employment to the workers. However in the case of RK Panda v. Steel Authority of Indiawhere the same issue was brought before the Supreme Court of India, it was held that the primary objective of the Act was to protect contract workers from exploitation. However the decision to absorb them in the workforce or terminate their employment is the sole discretion of the employer. Over time there have been several cases that have given varying opinions. However, most of them have maintained that the decision to absorb or terminate should be that of the employer alone. ARTICLE 19 (1) (G) OF THE CONSTITUTION The Act imposes certain duties on the owners of the establishments in the form of providing for basic amenities and needs of the contract workers. This was challenged on several grounds stating that since the workers are only temporary, expenditure of such an extent on them is redundant and therefore should not be mandated. It was contended that such compulsion amounted to violation of Article 19 (1) (g). However, in the case of Gammon India Ltd and Ors v. Union of India it was held that it was the duty of the employer to provide the workers with the basic amenities in order to ensure the health and welfare of the workers. Expenditures incurred in the course of this are tax free and are in no way a form of wastage of money. v7] Edit with WPS Office © sewned wth Xt ScannerISSUE SURROUNDING THE EFFECTIVE IMPLEMENTATION OF THE ACT The Act delegates the power of administration to the appropriate governments concerned. In the case of the Central Government, it is the Central Industrial Relations Machinery (CIRM) enforces the provisions of this Act as well as the rules framed there under. On the hand, in the state sphere, the labour department of the state government concerned does this work. In order to ensure effective implementation of the Act, various authorities have been delegated with different enforcement powers. Further, the Central Government has issued almost 76 notifications under the Act prohibiting the employment of contract labour. However, despite these umpteen steps taken, there continues to be a blatant violation of the provisions of the Act. First, the general labour law enforcement system is the country needs an overhaul. Presently, the system is so weak and ineffective that the implementation of existing and further policies is nearly impossible. Second, there still continue to be a large number of establishments who employ contract labour but are yet not registered under the Act. The failure to implement the very first step towards the efficacious implementation of the Act naturally poses questions as to the effectiveness of the policy as a whole. Third, as stated earlier, although there have been varying opinions on the same, there is no express mention of the status of workers upon the abolishment of contract labour. The current stand maintained by courts is that the decision to terminate or absorb is that of the employer. However, there is no statutory decision on the same yet. CONCEPT OF CONTRACT LABOUR Contract labour is an expression which is often used to denote different ways of employing workers otherwise than under a usual v7] Edit with WPS Office © sewned wth Xt Scanneremployment contract. In common parlance, ‘contract labour’ refers to labour which is employed to perform some work, but has no direct employer-employee relationship with the principal employer i.e. the party for whom the work is being carried out. The relationship between the employee and the principal employer is mediated by one or more other parties who actually employ the workers, pay them and have an employer-employee relationship with them. These intermediaries between the ‘principal employer’ and the workers are the ‘contractors’, whose relation with the principal employer is governed by a contract between them. Often, the mediation between the principal employer and the workers is not by one contractor alone, but a chain of sub-contractors and sub-sub-contractors. This system of work done for a principal employer through contractor or a chain of contractors is referred to as ‘contract labour system’. Contract Labour (Regulation and Abolition) Act, 1970 defines contract labour as under: “A workman shall be deemed to be employed as contract labour in or in connection with the work of an establishment when he is hired on or in connection with such work by or through a contractor, with or without the knowledge of the principal employer.” Based on the above definitions, the ingredients of contract labour may be inferred as follows: + that the person concerned must be a workman; + that he must be employed in or in connection with the work of an establishment; + that the employment may be by or through a contractor; and + That the employment as such may be with or without the knowledge of the principal employer. The contract labour arrangements provide an opportunity to the employer to secure the required number of workers for the time, he needs them. As far as the labour intensive traditional v7] Edit with WPS Office © sewned wth Xt Scannerindustries such as mining, plantations and commercial agriculture is concerned, the engagement of contract labour from far and remote places used to be and continues to be the common practice. The premium which is paid to the contractor supplying contract labour in a stringent labour situation is accepted as an inevitable cost without any grudge. Another important factor is the temptation to lower the overall wage cost for similar quality and quantity of work. It allows employers to deliberately avoid social security legislation and even minimum wage regulations. It also provides the employers with flexibility to adjust the number of workers for specific periods of time in accordance with the fluctuations in the market. Another important factor which makes contract labour a specific form of organization is the possibility of minimizing supervisory responsibilities of the employer. It leads to closer supervision by labour contractor and thus higher productivity on the part of workers. Contractors get benefits in the form of premium or commission for the contract labour they supply to the principal employer. They also receive charges and overcharges for various services they provide to these workers such as transport, accommodation and loans. The situations like surplus availability of labour and limited job opportunities compel the unemployed to accept contract employment. With limited alternatives, the workers have to accept high cost in order to have access to a job and the links which the labour contractors provide them, even though the cost involved may be very high, especially in cases of workers migrating from one place to another. Both the socio-economic context in which the contractual arrangements are in vogue and the attendant benefits to the employers and to the contractors as compared with its negative implications for workers depend largely on national situations including the legal framework, the characteristics of the industry, v7] Edit with WPS Office © sewned wth Xt Scannerthe strength of unions, etc. the advantages of contract labour system mainly go to the employers and contractors. The important issue, however, is whether these perceived advantages are real benefits and whether contract labour is a viable long term option or a short term crisis measure. If yes, then what are the minimum social security measures and conditions of work which need to be observed in order to meet the requirements of basic human rights, ‘just and humane conditions of work’ and to ensure decent and dignified human life to the persons engaged as contract labour. The genesis of government concern in India towards the plight of contract labour can be traced back to the decade beginning with 1860 when a modest legislative action was initiated with reference to the contract labour employed in plantations. From then onwards up to the setting up of the Royal Commission of Labour in 1929, most of the protective and ameliorative measures can be characterized as sporadic, limited and half-hearted. The Royal Commission of Labour recommended the abolition of the jobber’s role in recruitment all over the country. The plight of contract labour and the need for action was highlighted by all Inquiry Committees set up during the fifteen years that followed the Royal Commission Report. The strong concern generated by such recommendations forced the government into action and several measures to regulate their working conditions have been implemented in the past independence period. The Bihar Labour Enquiry Committee (1940) also condemned the practice of engagement of labour through contractors by stating that, “the contractors ordinarily lacked a sense of moral obligation towards labourers which the employers or the managers are expected to have, and therefore, do not often hesitate to exploit the helpless position of labour in their charge”. The Bombay Textile Labour Enquiry Committee (1937), agreeing generally with v7] Edit with WPS Office © sewned wth Xt Scannerthe findings and recommendations of the Royal Commission on Labour felt that: “If the management of the mills do not assume responsibility for such labour, there is every likelihood of its being sweated and exploited by the contractor.It was therefore recommended that “contract system of engaging labour should be abolished as soon as possible and that workers for every department in a mill should be recruited and paid directly by the management”. These developments were instrumental in bringing to the fore the shortcomings of the practice of engagement of labour through contractors. However, very little tangible action legislative or executive, followed these findings and recommendations. It was the Labour Investigation Committee (1946), which in its report examined in detail the nature of workforce needs of the industry. Pointing out that the system of contract labour was very much in vogue, the Committee recommended the abolition of contract labour system, wherever possible, and regulation of the system in all other cases. In context of these abovementioned findings and the growing antipathy to the plight of contract labour, the scope of the term ‘worker’ in the Factories Act, 1948, the Mines Act, 1951 and the Plantation Labour Act, 1952 was enlarged to include contract labour. A number of categories of contract labour became entitled to the benefits of working conditions and hours of work admissible to the labour directly employed. The definition of term ‘immediate employer’ under the Employees’ State Insurance Act, 1948 was extended to bring contract labour within the ambit of the Act for availing health insurance benefits. Provisions of the Minimum Wages Act, 1948 were made applicable to contract labour in scheduled employments. Thus during 1947 to 1954, the protection and benefits to contract labour varied from industry to industry, from area to area, and even from one category to another employed in the same industry in the same city. v7] Edit with WPS Office © sewned wth Xt ScannerSubsequently, the Indian Labour Conference at its 19” and 20" Sessions (1961-62) considered the reports of the Labour Bureau and recommended legislative action for abolition of contract labour system in certain types of work as mentioned by the Supreme Court in Standard Vacuum Oil Refinery Company v. Their Workmen. This was followed by the setting up of a Tripartite Committee, which was assigned with the task of drafting the outline of legislation. Based on the Tripartite Committee's recommendations, the Ministry of Labour drafted the Contract Labour Bill, which was considered and discusses at the 23" Session of the Indian Labour Conference, wherein no consensus could be arrived at. The Government of India, didn’t wait, and drafted its own Bill. The Bill was amended based on the recommendations of the National Commission on Labour, headed by Justice P.B. Gajendragadkar (1969). The Bill was passed by both the Houses of Parliament and subsequently received Presidential Assent on 5" September, 1970. It came into effect o 10" February, 1971. A perusal of the statement of objects and reasons reveals that Contract Labour is sought to be abolished in such categories, which may be notified by the appropriate government, on the basis of the prescribed criteria. In respect of other categories, the service conditions of contract labour are sought to be regulated. PRINCIPAL FEATURES OF THE ACT A contract labourer is defined in the Act as one who is hired in connection with the work of an establishment by a principal employer through a contractor. While a contractor is the supplier of contract labour for the organization, a principal employer is a person responsible for the control of the establishment. APPLICABILITY This Act extends to the entire Indian State and applies to those establishments and contractors which employ 20 or more workmen or employed such number of 20 or more workmen on v7] Edit with WPS Officeany day of the preceding 12 months as contract labour. To constitute this number, not only are the workers employed by one Contractor are to be counted, but the total number of contract labourers engaged by different Contractors is to be counted. The Act further empowers the appropriate Government to relax the number from 20 to a lesser number for which the government has to give 2 months notice of its intention to do so, by notification in the Official Gazette, after which the provisions of the Act may apply to any establishment or contractor employing less than 20 workmen as may be specified in the notification. Establishments in which work only of an intermittent or casual nature is performed are not covered by the Act. However, if the work was performed for more than 120 days in the preceding 12 months, or if the work performed in case of seasonal nature for more than 60 days in a year, then such work will not be considered as intermittent or casual work. If a question arises whether the work performed in an establishment is of an intermittent or casual nature, the appropriate Government shall decide that question after consultation with the Central Board or, as the case may be, a State Board, and its decision shall be final. A person engaged for ‘job contract’ or ‘work contract’, who is required to produce a given result for the establishment is contractor for the purposes of the Act and is accordingly covered by the Act. The definition of the term ‘contractor’ within the Act also includes a sub-contractor, who merely supplies contract labour for any work of the establishment. A workman is deemed to be employed as contract labour in or in connection with the work of an establishment who is hired in or in connection with such work by or through a contractor, with or without the knowledge or the principal employer. The term ‘establishment’ for the purpose of the Act means, (i) any office or department of the Government or a local authority, or (ii) any place where any industry, trade, business, manufacture or occupation is carried on. v7] Edit with WPS Office © sewned wth Xt ScannerThe work site may or may not belong to the Principal Employer, but that will not stand in the way of application of the Act or in holding that a place or work site where industry, trade, business, manufacture or occupation is carried out is not an establishment. It is notable that the Act is not confined to private employers but also applies to the government. The constitutional validity of the Act and the Central Rules was challenged before the Supreme Court in Gammon India Ltd. v. Union of India,wherein it was held that there is no unreasonableness in the measure. Instructions were issued on 21.03.1974 to all officers of Central Industrial Relations Machinery (CIRM) to strictly enforce the provisions of the Act. APPROPRIATE GOVERNMENT The jurisdiction of the Central and State Government has been laid down by the definition of the ‘Appropriate Government’ in the Act as amended in 1986. With this amendment, the appropriate government would be the same in respect of an establishment under the Contract Labour (Regulation and Abolition) Act, 1970 as also the Industrial Disputes Act, 1947. It is imperative to refer to certain judicial decisions for a better understanding of the phrase ‘Appropriate Government’. Some distinguished judgments that comprehensively dealt with the issue have been discussed in the next section of this paper. WORKMAN A workman is deemed to be employed as ‘contract labour’ in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a Contractor, with or without the knowledge of the Principal Employer.[25] Workman means any person employed in connection with the work of any establishment. The essential condition of a person being a workman is that he should be employed to do the work in that industry. The Act defines ‘workman’ as meaning any person v7] Edit with WPS Office © sewned wth Xt Scanneremployed in or in connection with the work of any establishment to do any skilled, semiskilled or unskilled manual, supervisory, or clerical work for hire or reward, whether the terms of employment are express or implied. The following individuals however do not come under the ambit of the definition of worker: + One who is employed mainly in a managerial or administrative capacity; or + One who is employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or + One who is an out-worker i.e. a person to whom any articles are given out by the Principal Employer to be made up, cleaned, altered etc. for the purposes of the trade or business of the Principal Employer and the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control of the Principal Employer. CONTRACTOR The Act defines Contractor as a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment. In other words, Contractor is the person supplying contract labour to an establishment undertaking to produce a given result for it. It is noteworthy that sub- Contractors or ‘piece wagers’ also qualify as Contractors who need to apply for the registration of the establishment and license. REGISTRATION OF ESTABLISHMENTS AND LICENSING OF CONTRACTORS Section 6 provides for the appointment of registering officers by the appropriate Government for the purposes of this Act. If a principal employer falls within the vicinity of this Act then, such principal employer and the contractor will have to apply for registration of the establishment and license respectively with the v7] Edit with WPS Office © sewned wth Xt Scannerappropriate authorities. The Act also provides for temporary registration in case the contract labour is hired for a period not more than 15 days. Any change occurring in the particulars specified in the Registration or Licensing Certificate needs to be informed to the concerned Registering Officer within 30 days of such change. From a combined reading of Section 7 and Rules 17 & 18 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 (hereinafter referred to as the Rules), it appears that the Principal Employer has to apply for registration in respect of each establishment. Another important point to note is that a License issued for one contract cannot be used for an entirely different contractual work even though there is no change in the Establishment. The law mandates that every establishment to which the Act applies has to register with the registering officer. The government also has the power to prohibit employment of contract labour in any process, operation or other work in any establishment. The Act further stipulates that no Contractor to whom the Act applies can undertake or execute any work through contract labour without having a license issued by the licensing officer. Failure to obtain a licence amounts to a criminal offence under Sections 16 to 21 of the Act read with Rules 41 to 62 of the Rules. THE CENTRAL AND STATE ADVISORY BOARDS Under Sections 3 and 4 of the Act, there is a provision for the constitution of Central and State Advisory Contract Labour Boards to advise the Central/State Government on matters arising out of the administration of the Act. In matters relating to the abolition of contract labour system, the Board normally constitutes a 3 member Tripartite Committee from amongst members of the Central Advisory Contract Labour Board representing the employers and workers and a Government official as Member Convener to study the issue in detail. The v7] Edit with WPS Office © sewned wth Xt Scannerreport submitted by the Committee is placed before the Central Advisory Contract Labour Board and keeping in view the recommendations of the Board, the Central Government takes a decision on the matter. At present, 12 such Committees are functioning either to study abolition of contract labour system or to consider the requests for exemption from prohibitory notifications in various establishments. HEALTH AND WELFARE OF CONTRACT LABOUR Regarding the facilities to be provided to contract labourers, the Act stipulates that every Contractor employing contract labour to whom the Act applies has to provide canteen, restrooms, latrines, urinals, first aid facilities etc. Section 35 of the Act empowers the appropriate Government to make rules in respect of the abovementioned facilities. If any such amenity for the benefit of the contract labour employed in an establishment is not provided by the Contractor, such amenity has to be provided by the Principal Employer and the expenses incurred by the Principal Employer for doing so can be recovered from the Contractor. Also, the Courts have ruled that the Government will be responsible for enforcement of those amenities where Contractors engaged by it for executing its project fail to provide the amenities to its workers. The Government's failure to perform its obligation amounts to a violation of Article 21 of the Indian Constitution and labourers can enforce this right by way of writ petition under Article 32 of the Constitution. PENAL PROVISIONS If the Principal Employer, to whom this Act is applicable, fails to get registered under the Act, such Employer cannot employ contract labour. Violation of Sections 7 and 12 of the Act by the Principal Employer or by the Contractor would attract penal provisions of Sections 23 and 25 but does not have the effect of rendering the contract labour, employees of the Principal Employer.For contravention of the provisions of the Act or any v7] Edit with WPS Office 0 seamed vith one Seamerrules made thereunder, the punishment is imprisonment for a maximum term up to three months and a fine up to a maximum of Rs. 1000. It is noteworthy that a Central Government company is not immune from being prosecuted under Section 24 of the Act. CLASSIFICATION Contract labour, in law, is classified in two categories - bona fide contract labour and mala fide contract labour. The former indicates that there is no bogus, sham or camouflage contract between the Contractor and the Principal Employer. The latter, on the other hand, implies a contract where there is bogus or sham. When the contract is bona fide, the Government can abolish the contract labour under Section 10 of the Act. When the contract is mala fide, Industrial Tribunals are empowered to declare the contract workmen as the workmen of the Principal Employer. Such a declaration is given after lifting the veil and considering the factors such as control, supervision and direction by the Principal Employer and ascertaining as to how absolute and pervasive they are in nature. This depends upon the facts of each case. Ram Singh v. Union Territory of Chandigarh was one such case that dealt with determining whether the contract was bona fide or mala fide. |n this case, the contract employees, who were trained electricians, were employed on the substation to maintain supply of electricity. They claimed regularization of services under the Engineering Department of Administration. Here, the Court ruled that whether a particular contract is genuine, sham or camouflage can only be determined by the industrial forum since it involves a finding as to the inter se relationship between the administration, the Contractor and the contract employees. ENFORCEMENT In the Central sphere, the Central Industrial Relations Machinery (hereinafter referred to as the CIRM) has been entrusted with the responsibility of enforcing the provisions of the Act and the rules made thereunder, through Inspectors, Licensing Officers, v7] Edit with WPS Office © sewned wth Xt ScannerRegistering Officers and Appellate Authorities appointed under the Act. Regular inspections are being conducted by the Field Officers of the CIRM and prosecutions are launched against the establishments, whenever violations of the Act, Rules or notifications prohibiting employment of contract labour are detected. From time to time, instructions have been issued to the field officers of CIRM and the State Government for proper implementation of the Act. CONTRACT LABOUR AND JUDICIAL INTERVENTION Judiciary plays an extremely important role in developing the law and in shaping and influencing its course by way of its interpretations of the various provisions of the law. Before the enactment of this Act, there was no specific legislation which comprehensively dealt with the predicament of contract labour in India. Although there were laws such as the Industrial Disputes Act, 1947 and Payment of Wages Act, 1936, inter alia,none of them was exclusively designed to regulate contract labour. This restricted the Courts from formulating the basic guidelines in order to abolish or restrict contract labour. Therefore in order to ease the process of adjudication of industrial disputes that were related primarily to contract labour, the Courts required an Act which completely dealt with the regulations of contract labour. After the enactment of the Act in 1970, the Courts did not have to face impediments in granting relief to the wronged party in disputes regarding the facilities which should be provided to contract labourers for, those guidelines had unambiguously been enumerated in Sections 16, 17, 18 and 19 of the Act. The definitions of employer, contractor and workmen had also been provided by the Act in Section 2 which helped the court interpret the meaning of these words which under normal circumstances seem too broad and vague. The Courts can now also construe as to when certain labourers are to be considered as contract v7] Edit with WPS Office © sewned wth Xt Scannerlabourers and towhat rights they are lawfully entitled. Some landmark judgments which have thrown light upon the provisions of the Act and have acted as precedents in determining similar questions of law that were placed before the Courts have been discussed in this section of the paper. Some renowned decisions among the plethora of cases that came up before the Courts have been grouped under the issues or the questions of law that governed them. The judgments may be discussed as follows: The Courts have had to construe the significance of ‘appropriate government’ time and again. The criteria for deciding the issue of appropriate government under the Act is that the industry must be carried on by or under the authority of the Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution. Such an authority may be conferred either by a statute or by virtue of relationship of principal employer and agent or delegation of power and this fact has to be ascertained on the facts and circumstances of each case. Heavy Engineering Mazdoor Union v. State of Biharwas one of the first cases wherein the expression ‘appropriate government’ was elucidated upon by the Court. It was asserted in this case that the phrase ‘under the Authority of’ must be interpreted in detail and that ‘Authority’ must be construed according to its ordinary meaning which means legal power given by one person to another to perform an act. A person is said to be ‘authorized’ or to have ‘authority’ when he is in such a position as to produce the same effect as if the person granting the ‘authority’ had for himself done by the act. The Court critically examined the phrase ‘under the Authority of and maintained that it implies pursuant to an authority such as where an agent or servant acts under or pursuant to the authority of his principal or master. It established in light of the situation that albeit the entire share capital was vested in the name of President of India, and its nominees and v7] Edit with WPS Office © sewned wth Xt Scannerextensive control were vested in the Central Government, it did not make the organization in question an industry carried on under the authority of Central Government. The above ratio was upheld in the decisions of Hindustan Aeronautics Ltd. v. Their Workmenand Rashtriya Mill Mazdoor Sangh v. Model Mill, Nagpur and this position of law continued to be valid till December 6, 1996. The Supreme Court expressed its contrary view in Air India Statutory Corporation v. United Labour Union and Ors., wherein it was held that ‘appropriate government’ in respect of all PSUs will be the Central Government and not the State Government which is under the control and regulation of the Central Government. After this verdict, the Central Government delegated its power as Appropriate Government under section 39 of Industrial Disputes Act, 1947 to the concerned State Governments in which the Central PSUs were situated. The above decision was reversed and the position in Heavy Engineering casewas restored by the Apex Court in Stee/ Authority of India Limited and Ors. v. National Union Water Front Workers and Ors,asserting that ‘appropriate government’ in relation to an establishment would be the Central Government if (i) the concerned Central Government company or undertaking is included by name in clause (a) of Section 2 of the Industrial Disputes Act, or (ii) any industry carried on by or under the authority of Central Government or by a railway company, or (iii) any such controlled industry as may be specified in this behalf by the Central Government, otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government. ABSORPTION OF LABOUR The question whether the Act itself provides the workers of an industry the right to get absorbed by the same after the contract labour is abolished has been an extremely debatable issue and has been raised in various cases. Some of the significant v7] Edit with WPS Office 0 seamed vith one Seamerjudgments on the issue have been discussed below. In R.K. Panda & Ors. v. Steel Authority of India Ltd., the Supreme Court held that the Act regulates contract labour but has never proposed to abolish it entirely. The primary object of the Act can be taken as to save the contract labourers from exploitation. However, the right to be absorbed by the employer directly is neither proposed nor mentioned in the Act. The Court also said that insertion of certain clauses in the contract with the contract labourers by the industry does not give them a right to escape from the duty of providing the contract labourers rights. The Court directed the Company to comply with the following: 1. The labourers who were continuing in the employment for the last 10 years, in spite of the change of Contractors and have not crossed the age of superannuation and were medically fit should be absorbed as regular employees in the order of seniority. 2. Regular wages will be payable only for the period subsequent to absorption and not prior to that. It would not be erroneous to say that the Court interpreted the Act in an accurate manner i.e. the Act strives for regulation of Contract Labour and not for its abolishment in entirety and accepted that the Act does not expressly provide the right to get absorbed to the labourers. In addition to that, the Courts imparted certain relief suo moto. One may contend that the Supreme Court rightly performed the function of the judiciary to impart justice. It realized that Courts should achieve that which the legislation are not able to achieve. The judges formulated the principle that a contract labourer who is working for a company in a work of perennial nature has to be absorbed by the industry. This principle was Clearly in the interests of those who worked in the same way as the regular employees but were exploited by the unfair practices of the industrialists. In Gujarat State Electricity Board Thermal Power Station at Ukai v7] Edit with WPS Office 0 seamed vith one Seamerv. Hind Mazdoor Sabha, the Supreme Court recommended that the Central Government should amend the Act by incorporating a suitable provision to refer to the industrial adjudicator, the question of the direct employment of the workers of the ex- contractor in the principal employer's establishment, when the appropriate government abolishes the contract labour. In Air India Statutory Corporation v. United Labour Union and Ors., the apex court held that if the appropriate government abolished contract labour in a particular work or occupation in any establishment, business or industry, then the workers who had been employed to do that particular work in the establishment or industry, would automatically become the workers of the principal employer from the date of the notification of such abolition. It amended the position laid down in the Gujarat State Electricity Board case, where it had been held that after abolition, the workers will have to raise a fresh demand and then approach the Industrial Tribunal for a further round of adjudication on the question of absorption as to how many workers were to be absorbed and from when. In this case, the judges did not give the decision merely on the basis of the words of the statute but understood the objectives of the Act an tried to implement the same in order to provide better working conditions to these contract labourers and to protect them from exploitation. This decision is in the direction of advancement of the conditions of the workers. Secretary v. Suresh upheld the Air India case.|t held that the Act is a beneficial piece of legislation ought to be given the widest possible interpretation with regard to the words used therein. Steel Authority of India Ltd. and Ors. v. National Union Water Front Workers and Ors. overruled the Air India case, thereby curtailing the rights of contract workers. It held that upon the abolition of contract labour by the government in exercise of the powers under Section 10 of the Act, there cannot be automatic v7] Edit with WPS Office 0 seamed vith one Seamerabsorption of such contract labour into the direct employment of the Principal Employer. The Court further held that the Act has said nowhere that the contract labourers are or should be treated as the employees of the principal employer; instead they are the employees of the Contractor. Therefore, the principal employer is not under any obligation to absorb them. it stated that contract labourers have absolutely no right to automatic absorption upon abolition. The 5 Judge Constitutional Bench held that this judgment will not have any retrospective effect. In this case, the Court has adopted a very strict approach towards contract labour. The SAIL judgment was upheld in K. Butchi Reddy v. CAT, Hyderabad, and National Federation of Railway Porters, Vendors and Bearers v. Union of India, wherein it was held that although the statute may be construed in favour of the beneficiary, it should be done only to the extent that such benefit is intended to be conferred and not beyond the same. In Municipal Corporation of Greater Bombay v. K.V. Shramik Sangh, the apex court applied the same reasoning as the SAIL case, in order to answer the question it was posed with, thus, reiterating the view of the 5 judge bench. In Cipla Ltd. v. Maharashtra General Kamgar Union, it was laid down that the Industrial and Labour Courts under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the MRTU & PULP Act) had no jurisdiction to decide claims of contract workers, alleging that the Contractor was a sham contractor and that the alleged contract was a mere paper arrangement. This implied that if the contract workers filed a complaint of any unfair labour practices against any Principal Employer alleging that he was, in fact, their employer and that the contractor was a mere name-lender interposed in the relationship merely to shield the Principal Employer, this complaint would become non-maintainable. In fact, even if they alleged that a v7] Edit with WPS Office 0 seamed vith one Seamercertain person was their employer, the complaint would become non-maintainable if the respondent merely stated in his reply that he was not their employer. This has led to the farcical position where the jurisdiction of the court depends predominantly upon the reply filed by the respondents. The cases pending before the Industrial Courts filed by thousands of contract workers, who preferred to file under the MRTU & PULP Act, since the Court under this Act had the power to grant interim reliefs, have been severely affected. The years 2001-02 therefore, witnessed some of the most important judgments in the field of contract labour, thereby demolishing the little protection that the law had so far conferred upon contract workers. In Rourkela Shramik Sangh v. Steel Authority of India Ltd., the Supreme Court held that contract labourers who were less than 58 years of age and medically fit should be absorbed by the principal employer upon the abolition of contract labour by the appropriate government. This case reverted to the initial position regarding absorption. In light of the cases discussed above, one may conclude that the Courts have not developed a firm outlook with regard to the issue of absorption of contract labourers after the abolishment of contract labour. Perhaps the reason for this perplexity is the Act itself because it lacks provisions regarding the same. The Act, in totality, is directed towards the welfare of contract labourers but it fails to effectively address and suggest a remedy for the anxiety of contract labourers pertaining to the aforementioned issue. The Courts, therefore, faced a problem and in some cases, gave their decision solely based on the basis of the provisions given in the Act while others gave decisions based on the object of the Act i.e. to protect these labourers from exploitation. The principle of interpretation of statutes, ex visceribus actus states that for correct interpretation of a certain statute, the statute must be v7] Edit with WPS Office © sewned wth Xt Scannerread as a whole and not on the basis of provisions which are severed from it. However, if a certain object is to be achieved by legislation, the statute should be express and unequivocal about its intention which would guide the executive and the judiciary. Therefore, the Act in question should have been more expressive because on issues like this there has to be certain guidelines provided by the legislation in order to alleviate the suffering of the labourers. PAYMENT OF WAGES Every contractor has been made responsible for payment of wages to each worker employed by him as contract labour. For ensuring the regular payment of the minimum wages to the contract labour, the Act provides that the wages to the contract labour are to be paid in the presence of the authorized representative of the principal employer, who has to certify that the wages as per the stipulation have really been paid to the contract labour. If the Contractor fails to make payment of wages within the prescribed period or makes short payment, then the Principal Employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the Contractor but he can recover the amount so paid from the Contractor. A Principal Employer is liable to compensate underpaid contract labour. The contract labour that performs same or similar kind of work as regular workmen will be entitled to the same wages and service conditions as regular workmen as per the Contract Labour (Regulation and Abolition) Central Rules, 1971. This issue has been dealt with extensively in the next section of the paper. The basic provisions regarding the payment of wages have been discussed in the previous chapter. This section deals with certain landmark cases pertaining to this issue. In Senior Regional Manager, Food Corporation of India, Calcutta v7] Edit with WPS Office 0 seamed vith one Seamerv. Tulsi Das Bauri, the employer contended that arrears of wages are not wages within the meaning of Section 21 of the Act, therefore, the employer is not liable to make the payment to the respondent of the same. The Supreme Court held that the principal employer is statutorily responsible to ensure payment of wages in case of default by the contractor, and the term ‘wages’ includes the arrears of wages. In B.H.E.L. Workers’ Association Haridwar and Ors. v. Union of India, there was arbitrariness in classifying 1000 workers out of the 16,000 odd workers as contract labourers and thereby receiving salary lesser than that of the directly employed workmen. Although they all did the same work as the regular workers directly employed by the undertaking, under the same conditions of service, their wages bore no comparison to those paid to the regular workers. They were paid their salary after deducting a large commission out of it. The Court held that no particular distinction should be made on the basis of contract labour. Contract labourers are entitled to the same wages, holidays, hours of work, and conditions of service as are applicable to the directly employed workmen by the principal employer. They are entitled to recover their wages and their conditions of service in a manner akin to the workers employed by the principal employer under the appropriate industrial and labour laws. In spite of the steps taken by the Parliament to promote the well being of contract labourers, there exist certain problems in the industrial sector, which haven't been overcome yet. These problems have been enumerated in this section. Derisory Wages- According to the Act, the companies are supposed to adhere to the minimum wage norms. However, it has been found that there are workers earning less than Rs 1000 per month, which evidently does not satisfy the minimum wage v7] Edit with WPS Office © sewned wth Xt Scannercriterion. A category of firms that largely comprises small private firms prefer employing uneducated workers who can be paid even less than minimum wages. Much of the migrant labourers from rural areas, especially the eastern and north-eastern regions of India and also from Nepal, fall in this category, who migrate to urban establishments in search of jobs and a better standard of living but are eventually exploited due to lack of awareness. Growing Unrest Among Labourers-The aforementioned problems still prevail in industrial establishments and this can be understood from the fact that contract labourers often go on strikes in the form of protests against what they believe to be either an erroneous policy or exploitation. The judiciary cannot restrict the freedom of the labourers to call for a general protest and any restriction placed thereon would be violative of the fundamental rights of those individuals - their freedom of expression, speech and to assemble peaceably. However, these strikes which should ideally be in the form of general protests often crystallize into violent upheavals which are dealt with a heavy hand. One may recall the notorious strike at the Manesar factory of Honda Motorcycle and Scooter India Ltd. (HMSI) in 2005. The brutality of the police in bringing the matter under control was outrageous. This visibly shows the amount of instability that persists among contract labourers as they do not have any job security and are exploited in terms of wages and working conditions. v7] Edit with WPS Office © sewned wth Xt ScannerEdit with WPS Office © semned ith nt Seamer