Mentoassociates.com – Legal Articles

In this period of economic recession lakhs of employees face the threat of lay off and retrenchment. People often mistake retrenchment for lay off. Even though in common parlor people use the latter term more often, what actually happens in the case of most of the employees is retrenchment or termination from service.

The Industrial Disputes Act, 1947 defines retrenchment as “termination by the employer of the service of a workman, for any reason whatsoever”. The following are not instances of retrenchment.
a.Termination as a form of punishment by way of disciplinary action.
b.Voluntary retirement of the workman.
c.Retirement of the workman on reaching the age of superannuation.
d.Termination of the service as a result of the non renewal of the contract of the employment.
e.Termination on the ground of continuous ill health.

For the retrenchment of a workman who has been employed for a minimum period of one year continuous service, the following conditions shall be met with by the employer:
a.The workman shall be given one month’s notice in writing, indicating the reason for retrenchment, or wage equivalent to the period of notice.
b.The workman shall be paid compensation equivalent to 15 days average pay, for every completed year of continuous service.
c.Notice in the prescribed manner shall be served on the appropriated authority.

Employees working in factory, mine, oilfield, plantation, port, railway company, shops and establishments where 10 or more persons are employed are eligible for gratuity. Normally gratuity is to be paid to an employee after termination of his service, if he has rendered continuous service of not less than 5 years. If termination is due to death or disablement, then 5 years service is not required.

The amount of gratuity is calculated at the rate of 15 days wages for every completed year of service. However the maximum gratuity amount shall not exceed Rs 3,50,000/-.

Keeping in view inflation and spiraling prices, the Union Government decided to amend the relevant provisions, namely Sec 4 of the Act. While it was found that an amount computed at the rate of 15 days wages was a small amount, the said amendment seeks to enhance the same to 30 days wages. The Bill was introduced in the Rajya Sabha in November 2012 and is yet to be passed in the Rajya Sabha. Following the President’s Assent, the Bill will become an Act and come into force on a date decided by the Government and notified in the official gazette.

Employers of establishments where gratuity is applicable are supposed to obtain insurance for their liability for payment towards gratuity. They also need to register the establishment with the Controlling authority. The employer is also duty bound to display an abstract of the act and rules in English and language understood by the majority of the employees in a place near the main entrance.

Each employee who has completed one year of service shall make a nomination, within 30 days of the completion of one year service.  If he or she has a family, then the nomination shall be made to a family member and not to a third party. The employee needs to apply for gratuity within 30 days of it becoming payable.

An employer who   makes a false statement or false representation with respect to any gratuity matter is liable for punishment with imprisonment up to 6 months or fine up to 1000 rupees or both.

The Payment of Gratuity (Amendment) Act, 2010, has increased the gratuity limit from 3.5 lakhs to 10 lakhs and the same is tax free. The same is applicable for both private and public sector employees. The enhancement is with effect from 24-05-10, and the same is calculated based on the date of retirement/resignation and not on the date of receipt of the amount. Section 10(10) 0f the income tax contains the provisions relevant to tax implications of gratuity.

Once the Act becomes applicable, it continues even if the number of employees falls below ten.
The formula for the calculation of gratuity = (Last drawn basic salary +DA) x 15/26 x number of years of service.
As per the decision in of Madras High Court in   Mettur Beardsell Limited, Madras Vs. Regional Labour Commissioner (Central), Madras & others reported in 1998 LLR 1072 (Mad. HC), an employee who has completed at least 240 days of service in the fifth year will be eligible for gratuity.

The Reserve Bank of India has issued guidelines dated 24-04-08 to Commercial banks with respect to the employment of recovery agents by them for the purpose of loan recovery. These include:

a. Banks should inform the borrower the details of recovery agency while forwarding default cases to the recovery agency.

b. The agent shall carry a copy of the notice and the authorization letter from the bank along with the identity card issued to him by the bank or the agency.

c. Banks should ensure that there is a tape recording of the calls made by recovery agents to the customers, and vice-versa. Banks shall intimate the customer that the conversation is being recorded.

d. The details of the recovery agency engaged by banks may also be posted on the bank’s website.

e. Where a complaint has been lodged by a borrower, banks should not forward cases to recovery agencies till they have finally disposed of the complaint.

f. In cases where the subject matter of the borrower’s dues is pending before courts, banks should exercise utmost caution, in referring the matter to the recovery agencies.

g. Each bank should have a mechanism whereby the borrowers’ grievances with regard to the recovery process can be addressed. The details of the mechanism should also be furnished to the borrower.

h. All recovery agents shall undergo a certificate course introduced by Indian Institute of Banking and Finance (IIBF).

i. In case of complaints against the Recovery agents, the Reserve Bank may consider imposing a ban on a bank from engaging recovery agents in a particular area. Similar supervisory action could be attracted when the High Courts or the Supreme Court pass strictures or impose penalties against any bank or its agents with regard to the recovery process.
 

From the initial days of Credit Card operations in India, there have been reports of tussle between Card issuing banks and credit card holders regarding the debt repayment. The reserve Bank of India has issued several guidelines to the card issuing institutions for the reddressal of grievances of the card holders. These include:

a.A time limit of 60 days needs to be given by the bank to the customers to prefer their complaints.

b.The card issuing bank shall constitute Grievance redressal machinery within the bank and the name and contact number of the designated officer shall be mentioned on the credit card bills.

c.The grievance redressal procedure of the bank/NBFC and the time frame for responding to the complaints shall be placed on the bank’s website. There should be a system of acknowledging customer’s complaints for follow up such as complaint number /docket number even if the complaints are received on phone.

d.If the customer does not get a satisfactory response from the bank, within 30 days period, then he has the right to approach the concerned banking ombudsman to redress his grievances. The bank shall be liable to compensate the customer for the loss of his time, expenses, financial loss etc.

Apart from the above RBI guidelines the customers have the right to file criminal complaints against the banks and the recovery agents if their acts amount to criminal offenses like intimidation, abuse, use of force assault etc. Also the customer can approach the consumer courts to redress his grievance.

The Central Board of Excise and Customs had come out with a circular dated 29-01-09 clarifying various conflicting opinions regarding the levy of service tax on purchase of apartments. This circular seeks to clarify the applicability of service tax when the developer enters into an agreement, with the ultimate owner for selling a dwelling unit in a residential complex at any stage of construction (or even prior to that) and who makes construction linked payment.  The following are the clarifications of the board:
a.  The initial agreement between the developer and the ultimate owner is in the nature of an agreement to sell. This, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller ie. the developer. It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in connection with the construction of residential complex till the execution of such sale deed would be in the nature of ‘self-service’ and consequently would not attract service tax.
b.  If the ultimate owner enters into a contract for construction of a residential complex with a developer, who himself provides service of design, planning and construction; and after such construction the ultimate owner receives such property for his personal use, then such activity would not be subjected to service tax, because this case would fall under the exclusion provided in the definition of ‘residential complex’.
c.  However, in both these situations, if services of any person like contractor, designer or a similar service provider are received, then such a person would be liable to pay service tax.

THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS ACT, 1961

Objective:The Act aims to provide for the regulation of conditions of work and employment in shops and commercial establishments in the state of Karnataka.

Application:The act, in the first instance applies to the areas specified in the Schedule attached to the Act. The government is authorised to bring in other areas under the operation of the act.

Important definitions:

Adult:  a person who has completed his eighteenth year.

Child:  a person who has not completed his fourteenth year.

Commercial establishment: means a commercial or trading or banking or insurance establishment, oran establishment or administrative service in which persons employed or mainly engaged in office work, ora hotel, restaurant, boarding or eating house, a café or any other refreshment house, ora theatre or any other place of public amusement or entertainment.

Employee: means a person wholly or principally employed in or in connection with, any establishment whether working on permanent, periodical, contract or piece rate wages, or on commission basis, even though he receives no reward for his labour and includes an apprentice, any clerical or other member of the staff of a factory or industrial establishment who falls outside the scope of the Factories Act, 1948.

Establishment:  means a shop or a commercial establishment;

Shop: means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, storerooms, godowns, or warehouses, whether in the same premises or otherwise, used in connection with such trade or business.

Young person:  a person who is not a child and who has not completed his eighteenth year.

Exemptions: (1) This act is not applicable to-

(a)   officers of or under the Central or State Governments or local authorities, except commercial undertakings;

(b)  any railway service, water transport service postal telegraph or telephone service, any system of Public conservancy or sanitation or any industry, business or undertaking which supplies power, light or water to the public;

(c)  railway dining cars;

(d)  establishments for the treatment or care of the sick, infirm, or the mentally unfit;

(e) Establishments of the Food Corporation of India.

(f) Offices of legal practitioners and medical practitioners in which not more than three persons are employed:

(g) Officers of a banking company

(h) Any person employed about the business of any establishment mentioned in clause (a) to (g) aforesaid;

(i) Person occupying positions of management in any establishment;

(j) Persons whose work is inherently intermittent such as drivers, caretakers, watch and ward staff, or canvassers; and

(k) Persons directly engaged in preparatory or complementary work, such as clearing and forwarding clerks responsible for the dispatch of goods. Section 3(2) of the Act gives a list of establishments for which  sections 11(which deals with opening and closing hours of establishments) and sub-section (1) of section 12(dealing with weekly holidays) are not applicable.

Registration of Establishments:  Within 30 days from the date of commencement of work in an establishment,  the employer of every establishment shall send to the Inspector of the area concerned, a statement in the prescribed form together with such fees as may be prescribed, containing:

(a)   the name of the employer and the manager, if any;

(b)  the postal address of the establishment;

(c)  the name, if any , of the establishment; and

(d)  such other particulars as may be prescribed.

On receipt of the statement and the fees, the Inspector shall, on being satisfied about the correctness of the statement, register the establishment in the register of establishments and shall issue, a registration certificate to the employer. The registration certificate shall be prominently displayed at the establishment. A registration certificate shall be valid for five years and shall be renewed before the expiry of the period of registration certificate.

Change to be communicated to Inspector: The employer shall notify to the Inspector, in the prescribed form any change in respect of any information contained in his statement given earlier, within fifteen days after the change has taken place.

Closing of establishment to be communicated to Inspector: The employer, shall within fifteen days of his closing the establishment, notify to the Inspector in writing the date of such closure and return the registration certificate. The Inspector shall, on receiving the information and being satisfied about correctness, remove such establishment from the register of establishments and cancel the registration certificate.

Issue of appointment Orders: Every employer, employing any person in or in connection with his establishment, shall issue an appointment order in writing indicating the name, designation, wage scale of such person and terms and conditions of his employment and serve the same on such person within 30 days from the date of appointment in his establishment;

Hours of work:

a. No employee in any establishment shall be required or allowed to work for more than nine hours on any day or forty-eight hours in any week.

b. The total number of hours of work including overtime shall not exceed ten hours in any day except on days of stock taking and preparation of accounts.

c. The total number of overtime hours worked by an employee shall not exceed fifty in a period of three continuous months.

d. No young person shall be allowed to work in any establishment for more than five hours in a day.

e. Where an employee works in any establishment for more than nine hours in any day or for more than forty-eight hours in any week he shall in respect of such overtime work be entitled to wages at twice the rate of normal wages.

f. The periods of work of an employee in an establishment each day shall be so fixed that no period shall exceed five hours and that no such person shall work for more than five hours before he has had an interval of rest of at least one hour.

g. The periods of work of an employee in an establishment shall be so fixed that, inclusive of his interval for rest, they shall not spread over more than twelve hours in any day.

h. Every establishment shall remain closed for one day of the week. The employer shall fix such date and notify it to the Inspector and specify it in a notice prominently displayed in a conspicuous place in the establishment.

i. The State Government may allow an establishment to remain open throughout the week if it is satisfied that the establishment employs additional staff for meeting the requirements of sub-section (3) of this section.

j. Every employee in an establishment shall be given at least one whole day in a week as a holiday for rest.

k. It shall not be lawful for an employer to call an employee at, or for an employee to go to, his establishment or any other place for any work in connection with the business of his establishment on a day on which such establishment remains closed.

l. No person shall carry on, in or adjacent to a street or public place, the     sale of any goods after the hour (if a closing hour is fixed by the government) for the closing of establishments dealing in the same class of goods in the locality in which such street or public place is situated.

Annual Leave with Wages

a. Every employee in an establishment shall be entitled to leave with wages and shall be to avail such leave for the number of days calculated at the rate of-

(i)                one day for every twenty days works performed by him in case of an adult;

(ii)              one day for every fifteen days of work performed by him in case of a young person;If an employee does not in any one calendar year take the whole of the leave allowed to him, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year. However the total number of the days of leave that may be carried forward to a succeeding year shall not exceed thirty days in the case of an adult and forty days in the case of a young person. An employee may at any time apply in writing to the manager of the establishment, not less than ten days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year. However the number of times in which leave may be taken during any year shall not exceed three.

b. Every employee shall also be entitled during the first twelve months of continuous service and during every subsequent twelve months of such service in any establishment to leave with wages for a period not exceeding twelve days, on the ground of any sickness incurred or accident sustained by him or for any other reasonable cause. For this leave, prior notice/ application may not be required

c. An employee who has been allowed leave for not less than four days in the case of an adult, and for not less than five days in the case of a young person, shall before his leave begins, be paid the wages due for the period of leave allowed.

Application of the Workmen’s Compensation Act: The provisions of the Workmen’s Compensation Act, 1923 and the rules made there under by the State Government shall apply to employees and employers of shops and commercial establishments.

Employment of children and women:

a. No child shall be required or allowed to work in any establishment.

b. No woman, or a young person shall be required or allowed to work whether as an employee or otherwise in any establishment during nights.  The  State Government may, by notification exempt any establishment of Information Technology or Information Technology enabled service from the provisions of this section relating to, employment of women during night subject to the condition that the establishment provides facilities of transportation and security to such women employees and subject to any other condition as may be specified in the notification.

Inspectors: The State Government may appoint Inspectors and Assistant Inspectors for the purposes of this Act. The Commissioner of Labour in Karnataka shall be the Chief Inspector for the purposes of this Act, for the whole of the State of Karnataka.

Penalties:

a. Whoever contravenes any of the provisions of sections 4,5,6, 6-A,7,9,10,11,12,13,15,16, 25 and 39, shall, on conviction, be punished with fine, which , for a first offence, may extend to one thousand rupees and, for a second or any subsequent offence may extend to two thousand rupees.

b. Whoever contravenes any of the provisions of sections 8, 17, 29 and 34 shall, on conviction, be punished with a fine which may extend to two hundred and fifty rupees.

c. Whoever contravenes the provisions of sections 24 and 25, shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to six months or with fine which shall not be less than ten thousand rupees, but which may extend to twenty thousand rupees or with both, for the first offence and for the second and subsequent offences, he shall be punishable with imprisonment of a term which shall not be less than six months but which may extend to one year.

d. Any person who wilfully obstructs an Inspector in the exercise of any power conferred on him under this Act, or any person lawfully assisting an Inspector in the exercise of such power or who fails to comply with any lawful direction made by an Inspector shall be punishable with fine which may extend to five hundred rupees.

Compounding of Offences.- The jurisdictional Labour Officer, in lieu of Prosecution may compound the offences punishable under this Act or the rules made there under, except the offences punishable under Sections 24 and 25, at the option of the offending employer before or after the institution of the prosecution by levying a sum not exceeding rupees two thousand but not less than rupees one thousand for the first offence and for the second or subsequent same offence, a sum not exceeding rupees five thousand but not less than rupees two thousand.

Saving of certain rights and privileges: Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to under any other law, contract, custom or usage, applicable to such establishment, or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.

Dismissal of employees:If an employee has put in service continuously for a period not less than six months, he cannot be dismissed or removed by his employer, except for a reasonable cause and unless one month’s previous notice or pay in lieu has been given to him.If an employee is dismissed, he has a right of appeal to the Assistant Commissioner of Labour.

Repeal of the Weekly Holidays Act, 1942: The Weekly Holidays Act, 1942 shall stand repealed in areas where the Karnataka Shops and Commercial Establishments Act, 1961 apply.

Schedule: The schedule attached to the Act, contains the names of places where the act applies.

THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS RULES, 1963

Registration: The statement for registration of an establishment shall be sent by the employer in Form A. The Registration Certificate issued shall be renewed once in five years before the date of its expiry. For renewal, a statement in duplicate in Form A has to be sent to the Inspector before ninety days from the date of expiry of such registration certificate. The Inspector shall register the establishment in the register of establishments in Form B and shall issue a Registration Certificate to the employer in Form C.

Changes how notified: The employer shall notify to the Inspector concerned any changes in respect of  his establishment within 15 days after the change has taken place.

Leave with wages register: The employer shall maintain a leave with Wages Register in Form F. This register shall be preserved for a period of three years after the last entry in it and shall be produced before the Inspector on demand.

Leave with wages book of the persons employed:  The employer shall provide each employee with a book called the ‘Leave with Wages Book’ in Form ‘H’. The book shall be the property of the employee and entries of the date of holidays or interruptions in service shall be made therein by the employer from time to time.

Maintenance of registers and records and display of notices:

a. Every employer shall exhibit in his establishment a notice in Form ‘P’ specifying the day or days of the week on which the persons employed by him shall be given a holiday.

b. Every employer shall exhibit in his establishment a notice containing such extracts of the Act and the rules in Kannada and in the language of the majority of the employees.

c. The registers, records and notices relating to any calendar year shall be preserved till the end of the next calendar year.

d. The appointment order issued by the employer under Section 6-A shall be in Form ‘Q’.

e. Every employer shall maintain a combined Muster Roll-cum-Register of Wages in Form ‘T’ in respect of the employees employed in the establishment. Where an employer has maintained Form ‘T’, he need not be required to maintain other Muster Roll or Register of Wages separately which contains the same information already available in Form ‘T’.

f. Every employer shall send a combined Annual Return in Form ‘U’ to the concerned Inspector on or before 31st January of every year:

g. Every employer shall maintain a Visit Book in which an Inspector visiting the establishment may record his remarks regarding any defects that may come to light at the time of his inspection and shall produce it whenever required to do so by an inspector.

h. Where an office, store room, go down, warehouse or work place used in connection with the trade and business of an establishment is situated at premises other than the premises of the establishment, all registers, records, muster-rolls, visit book and notices required to be maintained, exhibited, or given under the Act, and these rules shall be separately so maintained, exhibited or given in respect of and at such office, storeroom, go down, warehouse or work place.

Exhibition of name board: The name of board of every establishment shall be in Kannada and wherever other languages are also used, the versions in such other languages shall be below the Kannada version.

Exemption under Section 25:Every employer who intends to seek exemption under section 25 to engage women employees during night shift, shall make an application in Form R to the Commissioner for Labour or the Deputy Labour Commissioner having jurisdiction, with the list of women employees willing to work in night shifts. There shall be at least five women employees in one night shift. On receipt of the application the Commissioner for Labour or the Deputy Labour Commissioner concerned may, grant exemption in Form S.

Penalty for contravention: Whoever contravenes rules 8,9,9-A, 9-B and 9-C,17,18,19,20,22,24, 24-A, 24-B, shall on conviction, be punishable with fine which shall not be less than one hundred rupees but which may extend to two hundred and fifty rupees.

The objective of this act is to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong.

If death of a person is caused by wrongful act, neglect or default of another person, the executor, administrator, or representative of the deceased person has the right to file a suit for compensation for the benefit of the wife, husband, parent (including grand father and grand mother) and child (including grand son, grand daughter, step son, step daughter) of the deceased. Even though the death might have been caused as a result of a crime, the suit is maintainable against the person who caused the death.
In every such suit, the court may give such damages as it may think proportional to the loss resulting from such death to the parties for whom and for whose benefit such suit is filed. The amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the beneficiaries, in such shares as the Court by its judgment or decree shall direct. The persons aggrieved have right to seek for remedy by filing suit in the appropriate civil Court having jurisdiction over the matter. It is further provided that not more than one suit shall be brought for in respect of the same subject matter of the complaint.

THE EQUAL REMUNERATION ACT, 1976

Objective:The Act aims to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto.

Important Definitions:

a. Employer: has the meaning assigned to it in the Payment of Gratuity Act, 1972.

b. Worker: means a worker in any establishment or employment in respect of which, this Act has come into force.

Application:The act applies to various establishments and occupations as notified by the Central government from time to time. The act prohibits payment by an employer to any worker, employed by him in an establishment or employment, remuneration, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature. Further, no employer shall, while making recruitment for the same work or work of a similar nature, (or in any condition of service subsequent to recruitment such as promotions, training or transfer,) make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law.

Authorities under the act:

a. Advisory Committees: These are constituted by the appropriate government for the purpose of providing increasing employment opportunities for women.

b. Labour officers: The appropriate Government may, appoint such officers, not below the rank of a Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and deciding claims and complaints under the Act.

c. Inspectors: Appointed by the appropriate government for the purpose of making investigations as to whether the provisions of this Act, or the rules made there under, are being complied with by employers.

Penalties:1. If any employer:(a)   omits or fails to maintain any register or other document in relation to workers employed by him, or(b)  omits or fails to produce any register, muster-roll or other document relating to the employment of workers, or(c)  omits or refuses to give any evidence or prevents his agent, servant, or any other person in charge of the establishment, or any worker, from giving evidence, or(d)  omits or refuses to give any information,he shall be punishable  with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both.

2. If   any employer:(a)   makes any recruitment in contravention of the provisions of this Act, or(b)  makes any payment of remuneration at unequal rates to men and women workers, for the same work or work of a similar nature, or(c)   makes any discrimination between men and women workers in contravention of the provisions of this Act, or(d)  Omits or fails to carry out any direction made by the appropriate Government under sub-section (5) of section 6,he shall be punishable with fine which shall not be less than ten thousand rupees, but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences.

3. If any person being required so to do, omits or refuses to produce to an Inspector any register or other document or to give any information, he shall be punishable with fine which may extend to five hundred rupees.

Exemptions:Nothing in this Act shall apply:

(a)   to cases affecting the terms and conditions of a women’s employment in complying with the requirements of any law giving special treatment to women, or

(b)  to any special treatment accorded to women in connection with (i)  the birth or expected birth of a child, or(ii)  The terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death.

THE EQUAL REMUNERATION ACT RULES, 1976

A complaint or claim under the Act may be made by the worker himself or herself or by any legal practitioner, or by any official of a registered Trade Union, authorized in writing to appear and act on his or her behalf or by any Inspector appointed or any other person acting with the permission of the Authority.

Every employer shall maintain up-to-date a register in relation to the workers employed by him, in Form D, at the place where workers are employed.

The Act aims to prohibit the pledging of the labour of children. As per this act, any agreement to pledge the labour of a child shall be void.
Penalties:
a. Whoever, being the parent or guardian of a child, makes an agreement to pledge the labour of that child, shall be punished with fine which may extend to fifty rupees.

c. Whoever, knowing or having reason to believe that an agreement has been made to pledge the labour of a child, in furtherance of such agreement employs such child or permits such child to be employed in any premises or place under his control, shall be punished with fine which may extend to two hundred rupees.

THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986

Objective:The Act aims to prohibit the engagement of children in certain employments and to regulate the conditions of work of children in certain other employments.

Important definitions:

Child: means a person who has not completed his fourteenth year of age.

Establishment: includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment.

Workshop: Any premises, wherein any industrial process is carried on.

Prohibition of child employment:No child shall be employed or permitted to work in any of the occupations mentioned  in Part A of the Schedule attached to the Act or in any workshop wherein any of the processes mentioned  in Part B of the Schedule is carried on.

Authorities:

1. Child Labour Technical Advisory CommitteeThe Central Government may,  constitute an advisory committee to be called the Child Labour Technical Advisory Committee to advise the Central Government for the purpose of addition of occupation and processes to the Schedule.

2. Inspectors: For the purposes of securing compliance with the provisions of this Act.

The following are the provisions that govern the conditions of the work of children in occupations or processes other than those mentioned in Part A and B of the schedule (where children are permitted to work):

a. No work period of a child shall exceed three hours and no child shall work for more than three hours before he has had an interval for rest for at least one hour.

b. The period of work of a child shall be so arranged that inclusive of his interval for rest, it shall not be spread over more than six hours.

c. No child shall be permitted or required to work between 7 p.m. and 8 a.m.

d. No child shall be required or permitted to work overtime.

e. 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.

Duties of employers/occupiers:

1. Every occupier in relation to an establishment who employs, or permits to work, any child,  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 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. 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, 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.

3. 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 the local language and in the English language containing an abstract of sections 3 and 14 of the act.

Penalties:

a. Whoever employs any child or permits any child to work in prohibited occupations or processes 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.

b. Whoever, having been convicted of an offence as above, 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.

c. 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 14; or

(d)  fails to comply with or contravenes any other provisions of this Act or the rules made there under, 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.

The provisions of this Act and the rules made there under shall be in addition to, and not in derogation of, the provisions of the Factories Act, 1948, the Plantations Labour Act, 1951 and the Mines Act, 1952.

THE CHILD LABOUR (PROHIBITION AND REGULATION) RULES, 1988

Every occupier of an establishment, where children are legally permitted to work, shall maintain a register in respect of children employed or permitted to work, in Form A. The register shall be maintained on a yearly basis but shall be retained by the employer for a period of three years after the date of the last entry made therein.rupees.