Week 12.pptx FACTORIES ACT 1948 LLB labour

Measures to be taken in factories for health, safety and welfare of workers
HEALTH – CHAPTER III

Sections 11 to 20 are mandatory provisions dealing with the health of workers. They concern cleanliness, disposal of waste and effluents, ventilation and temperature control so as to secure reasonable conditions of comfort and prevent injury

1. FACTORIES ACT 1948 WEEK 12

2. Measures to be taken in factories for health, safety and welfare of workers HEALTH – CHAPTER III Sections 11 to 20 are mandatory provisions dealing with the health of workers. They concern cleanliness, disposal of waste and effluents, ventilation and temperature control so as to secure reasonable conditions of comfort and prevent injury, measures to be taken to prevent dust and fumes from being inhaled or accumulating to dangerous levels, compliance with state rules on artificial humidification, prevention of overcrowding, provision of sufficient lighting and prevention of glare, provision of drinking water, latrines, urinals and spittoons.  

3. Measures to be taken in factories for health, safety and welfare of workers SAFETY – CHAPTER IV Sections 21 to 41 deal with safety provisions. For example, fencing of certain kinds of machinery, restrictions on who can handle machinery in motion and the kinds of precautionary measures to be taken when doing so, restrictions on when and where young persons can be employed, prohibitions on employment of women and children near cotton openers, safety measures to be taken with regard to pits, sumps, openings in floors etc , prohibitions on use of excessive weights, measures for protection of eyes, and precautions to be taken in case of fire, or against dangerous, gases, fumes, explosive or inflammable dust/gas. There are also provisions on the general safety and maintenance of buildings and machinery.

4. Measures to be taken in factories for health, safety and welfare of workers WELFARE – CHAPTER V Sections 42 TO 49 deal with facilities for washing, storing and drying clothes, canteens, first aid, shelters, rest rooms, lunch rooms, creches etc.

5. WORKING HOURS OF ADULTS – CHAPTER VI Not more than 48 hours a week and not more than 9 hours a day, and workers entitled to intervals of rest Not allowed to work on weekly holidays unless he will have a whole day off three days before or after the weekly holiday. The manager must comply with notice requirements under the Act prior to making the workers work on weekly holidays. No one shall work for more than 10 days at a stretch without a holiday. Workers to get compensatory holidays if deprived of weekly holidays Workers to get extra wages for overtime Prohibition on overlapping shifts and double employment Factories should have notice of periods of work for adults displayed, where they show the periods every day during which adult workers may be required to work (section 61) Certain restrictions on employ ment of women (section 66)

6. EMPLOYMENT OF YOUNG PERSONS AND CHILDREN - CHAPTER VII No one below the age of 14 can work in a factory A child who is 14 and above can only work if a certificate of fitness is procured under section 69 AND the child carries a token of reference to the certificate while at work. A certifying surgeon will determine whether a young person is fit to work at a factory. The certifying surgeon has to have personal knowledge of the place where the young person will work. A certificate of fitness is only valid for 12 months from issue. By a certificate of fitness, a young person is deemed to be an adult for the purposes of the Act. A female young adult below the age of 17 who has a certificate of fitness, will only be able to work in a factory between 6 am and 7 pm. No child can work in a factory for more than 4.5 hours a day or during the night. Notice of period of work for children to be displayed at the factory and a register of child workers to be maintained.

7. ANNUAL LEAVE WITH WAGES – CHAPTER VIII If in the calendar year, the worker worked for more than 240 days in the year, he shall be entitled to leave with wages at the rate of 1 day for every 20 days of work performed by him. And a child would be entitled to one day for every 15 days of work performed by him. Days deemed to be days on which the worker worked for the factory for the computation of 240 days, but not for the computation of earned leave A) days of lay off by agreement B) Maternity leave not exceeding 12 weeks C) Earned leave enjoyed

8. Additional provisions regulating employment of women in factory – 66 (1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:— (a) no exemption from the provisions of section 54 may be granted in respect of any woman; (b) no woman shall be [required or allowed to work in any factory] except between the hours of 6 A.M. and 7 P.M.: Provided that the State Government may, by notification in the Official Gazette, in respect of [any factory or group or class or description of factories,] very the limits laid down in clause (b), but so that no such variation shall authorise the employment of any woman between the hours of 10 P.M. and 5 A.M.: [(c) there shall be no change of shifts except after a weekly holiday or any other holiday.] (2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish-curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to, or deterioration in, any raw material. (3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.

9. State of Gujarat V. Jethalal Chelabhai Patel, AIR 1964 SC 779 (Section 21 of Factories Act) Facts: Respondent was the manager of an oil mill. The mill had a spur gear wheel. A workman of the mill while greasing the spur gear wheel which was then in motion had one of his hands caught in it. Eventually that hand had to be amputated. It appeared that the spur gear wheel had a cover which had bolts for fixing it to the base but at the time of the accident the cover was not there, having apparently been removed earlier. There is no evidence to show when it was last in position. Respondent was prosecuted under section 92 for failing to comply with section 21. 92 provides for liability of the occupier or manager of the factory for offences under the Act. 21 provides for every dangerous part of machinery to be securely fenced by safeguards of substantial construction which are to be kept in position while the parts of machinery they are fencing are in motion or in use.

10. The HC had acquitted the respondent, because the respondent claimed the workman had removed the cover. The workman claimed the respondent had removed it for repairs. The HC could not ascertain the truth and so acquitted the Respondent. The HC had used the following principles to reach their conclusion (1) Though the obligation to safegaurd is absolute under Section 21(1)(iv) (c) of the Indian Act, yet it is qualified by the test of foreseeability and (2) If the safeguard provided by the employer or manager is rendered nugatory by an unreasonable or perverted act on the part of the workman, there is no liability of the employer or manager. Supreme Court held: Disagreed with the HC The machine was clearly dangerous within the meaning of section 21(1)(iv)(c). default on the part of the person accused has to be established by the prosecution before there can be a conviction. Section 21(1)(iv)(c) requires not only that the dangerous part of a machine shall be securely fenced by safeguards but also that the safeguards “shall be kept in position while the parts of the machinery they are fencing are in motion or in use”. Though the words “shall be securely fenced” suggest that the fencing should always be there. The statute has however put the matter beyond doubt by expressly saying that the fencing shall be kept in position while the machine is working. That is the default that has happened here; the fencing was not there when the machine had been made to work. This is an admitted fact and no question of establishing it arises.

11. the mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager does not provide a defence to him. The statute says that it will be his duty to keep the guard in position when the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable. If the fence were for some reason to break down and the machine remain unfenced for sometime before the owner or occupier found that out and replaced the fence, it may be that in such a case he cannot be made liable. A statute does not, of course, require an impossibility of a person. But there is nothing to show that that is the case here. Respondent has given no evidence whatever to show that he had done to carry out his duty to see that the guard was kept in position when the machine was working. The onus to prove that was on him because his defence depended on it. He has completely failed to discharge that onus. Therefore he was liable under section 92 for violating section 21.

12. On comparison with section 101, the court said: “The section states that where an occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled to have any other person whom he charges as the actual offender brought before the Court and if he proves to the satisfaction of the Court (a) that he used due diligence to enforce the execution of the Act, and (b) that the said other person committed the offence in question without his knowledge, consent or connivance then that other person shall be convicted of the offence and the occupier or the manager shall be discharged. It will appear, therefore, that even where the occupier or manager proves that somebody else has removed the fencing without his knowledge, consent or connivance, that alone would not exempt him from liability but he has further to prove that he had used due diligence to enforce the execution of the Act which can only mean, in a case like the present, that he exercised due diligence to see that the fence which under the Act it was his duty to see was kept in position all along, had not been removed. It seems to us clear that if it was his duty to exercise due diligence for the purpose in a case where he could establish that somebody else had removed the fence, it would be equally his duty to exercise that diligence where he could not prove who had removed it. If it were not so, the intention of the Act to give protection to workmen would be wholly defeated.” Therefore, the respondent was convicted.

13. John Douglas Keith Brown V. State of W.B., AIR 1965 SC 1341 MAIN QUESTION: is the occupier liable under section 92 for contravening provisions of section 52. FACTS: appellant is the managing director of Jardine Henderson which is the managing agent of the Howrah Mills Co ltd. the appellant is thus the occupier of the mills. One J.P. Bell was the Manager of the Mills in June 1957. Both the appellant and Bell were charged with an offence under Section 92 of the Act read with Section 52. Bell went to England during the prosecution and the appellant alone was convicted. The appellant claimed that where a duty is cast upon a Manager of a factory to perform a particular act his omission to do so will not render the occupier vicariously liable under Section 92. The contention of the appellant is that under clause (b) of sub-section (1) of Section 52 of the Act a duty is cast upon the manager of the factory to give a notice to the appropriate authority of a change in the weekly holiday from the first day of the week to any other day and not upon the occupier. According to learned counsel the omission of the manager to give such notice would not render the occupier liable in any way unless it is shown that there was any connivance on his part of a breach of duty by the manager.

14. Sub-section (1) of Section 52 reads thus: “No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless (a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and (b) the manager of the factory has, before the said day or the substituted day under clause (a) whichever is earlier,— ( i ) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day which is to be substituted, and (ii) displayed a notice to that effect in the factory: Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.” A perusal of clause (b) makes it abundantly clear that what is required to be done thereunder, that is to say, to give and display a notice is only for the purpose of securing an exemption from the prohibition contained in the opening parts of Section 52 of the Act. Clause (b) cannot, therefore, be linked to some other provisions of the Act which impose a positive duty upon the Manager to do something. The prohibition contained in the opening words of this sub-section is general and is not confined to the Manager. It would, therefore, follow that where something is done in breach of the prohibition enacted by sub-section (1) of Section 52 both the Manager as well as the occupier will be liable to the penalties prescribed in that section.

15. if it were the appellant's case that the weekly holiday had been altered without his knowledge or consent, it would be a different matter. But that is not so. Moreover, there is ample material to show that what the manager did was within the full knowledge of the appellant and, presumably, was also with his consent. In this connection we may point out that on January 18, 1957 the Manager of the Mills sent a letter to the Chief Inspector of Factories requesting permission for operating according to a new schedule. This letter was also sent to the managing director of jardine Henderson. The workers refused to follow this schedule and proposed a different one, and the mill manager wrote to the Chief Inspector of Factories requesting for approval of the new Schedule of working hours. the Chief Inspector of Factories asked the Mill Manager to forward the resolution of the Works Committee of the Factory or other documents to show that the workers had agreed to work in the factory at 8.30 p.m. on Sundays. The manager responded as such and sent a copy of the letter to M/s Jardine Henderson Ltd. The fact of sending the letters shows that the appellant knew what the manager proposed to do i n addition to the fact that as the Managing Director of Jardine Henderson Ltd., who were themselves the Managing Agents of the Howrah Mills (i.e., occupiers), the appellant must be deemed to have known what was being done by the Manager of the Mills. .There is positive evidence of the fact that the Manager had apprised him of what he was proposing to do. The appellant took no steps to restrain the Manager from putting the new schedule in operation which was in itself in violation of the opening words of Section 52.

16. Section 52 (1)(a) and (b) permit the grant of exemptions to specified workmen from the operation of the prohibition enacted in Section 52 from working in factories on weekly holidays. No general permission can be granted under clauses (a) and (b) of sub-section (1) of Section 52 for altering the day of the weekly holiday so as to cover all the workmen . Therefore, upon the proper construction of the provisions it is clear that whenever workers are required (or are permitted) to work on a weekly holiday the specific permission of the Chief Inspector of Factories in respect of each and every worker who is required to work on such a day should be obtained. the occupier must be deemed to have known it because the Mill Manager in his letter explained that he was seeking to start the ‘C’ shift from 8.30 p.m. on Sunday without specifically mentioning the names of those workmen who had to work in that shift he was doing something which was not within the purview of clauses (a) and (b) of sub-section (1) of Section 52. Of this fact the occupier had actual knowledge and, therefore, he must be held guilty of the contravention of the provisions of Section 52 of the Act.

17. Clothing Factory, National Workers V. Union of India, AIR 1990 SC 1383 Facts: the appellants were the workmen of the ordnance clothing factory, Madras. There were two categories of them: ( i ) day works and (ii) piece-rated workers. The first category was paid by the day attendance and the second by the output. Output compensation was on the basis of the time required for making an item. This was at an hourly rate of INR 1.69. this was arrived at by dividing the average daily rate of day workers by the total number of hours worked by them every month i.e., INR 330 divided by 195 hours = inr 1.69. The appellants contended that they work 8 hours during the week and 4 and ¾ hours on Saturday. Thus the total working hours come to 44 and ¾. Thus, if they work beyond this time, they re entitled to overtime wages unde r section 59 of the Factories Act which allows for twice the ordinary rate of wages for overtime work (beyond 9 hours a day or 48 hours a week). The workers claimed that between 1963 and 1983 they got overtime for work beyond normal working hours. Then it was abruptl y stopped. They also relied on notifications by the Defense Ministry which paid overtime for work done beyond normal working hours as per departmental rules, and overtime as per Factories Act for work beyond 9 hours per day/48 hours a week up until 1983.

18. Held: -the workers are being paid overtime under the Factories Act for work in excess of 9 hours a day/ 48 hours a week. The dispute is whether they should get overtime between 44 and ¾ and 48 hours a week. But section 59 does not provide for overtime for work done in excess of normal working hours. If overtime were to be paid between 44 and ¾ and 48 hours a week, it would be paid as per departmental rules on overtime.

19. S.M. Datta V. State of Gujarat, AIR 2001 SC 3253 FACTS: The inspector of factories found that when he visited the factory, a workman was working beyond 6 p.m. in violation of section 63. the occupier was committing an offence under section 92. Section 61 of the Factories At pertains to notice of periods of work for adults, and section 62 pertains to maintaining registers of adult workers. Section 63 provides that the hours of work will correspond with the notice under section 61 and the register under section 62. Held: First, the court looked at the object and nature of the legislation - A commission was appointed in 1875 to investigate conditions of labour in factories, and the first Factories Bill was introduced in 1880. this is because conditions in factories were inhuman with regard to working hours, welfare measures and wages. An amendment was made in 1891 because of agitations against the Act for being inadequate. A new Act was passed in 1911, and amended from time to time. The 1948 Act was introduced after WWII for the welfare of workers. Factory inspectors received a heavy responsibility to make rules for the purposes of meeting local exigencies. The Act is a welfare legislation and a complete code.

20. The object of the Act is to protect workers against industrial and occupational hazards. It imposes obligations on the owners or occupiers to protect workers, and provide conditions of employment conducive to their health and safety including sanitary and healthy working conditions. Precautions need to be taken for the safety of workers and prevention of accidents. State governments can appoint inspectors to inspect and make up reports. Section 62 requires the maintenance of a register of adult workers.

21. The court then stating that, The Gujarat Factories Rules, 1963 were framed to suit the conditions in terms of the provisions of the Factories Act, 1948. Consequently, Rule 87 of the said Rules prescribes that notice of period of work for adult workers shall be in Form No. 14 which in turn prescribes different periods of work for adult workers. Furthermore, relying on the averments made in complaint, the court held that the absence of Om Prakash Rajput’s name from Form No. 14 as displayed on the factory premises had resulted in its non-compliance. The complaint recorded violation of Section 63 and which in turn envisages compliance with section 61 and section 62. The Factories Act, 1948 is a beneficial piece of legislation and the requirement of Section 61, in particular, sub- section 1 & 2 of Section 61 can be interpreted in a manner which states that non-compliance of the requirement mentioned would attract a prosecution. The court on the requirement of prior notice mentioned in section 61 , stated that it specifically requires entries to be made 'before hand' which is provided in section 63. Did not matter if there was compliance with form 28 and the maintenance of muster roll. Both muster roll and notice had to be complied with.

22. Hypothetical 1 X is a cooperative society with the object of procuring milk from people owning milch cattle and distributing milk to the members of the public. To collect milk from various places, the society has milk vans and the vans are driven by its employees. To distribute the milk, 75 employees carry the milk in pails fitted to cycles. Some of the vans are also used for the purpose of distribution. The society has got an office with a Manager, Superintendent, Accountant and some Clerks. The business and office premises of the society is situated in Tulip Road. In the compound, it has an office, sales depot, milk pasteurization plant and a by-product section. Retail sales of milk are effected in the sales depot. In the pasteurization plant, the milk is pasteurized. In the by-products section, excess milk is converted into ice cream, gova , butter etc. In the office building, the clerical and administrative staff of the society carry on their functions. On the other side of one road, there is a workshop. In this workshop, the vans of the society are repaired and serviced. Near the workshop, there is a cattle feed section wherein two employees are working. They grind with a mechanized grinder cotton seeds, oil cakes etc., and supply it to some of the cattle owners who regularly supply milk to the society. Though separate door numbers are given to the pasteurization unit and the office and though they are in separate buildings, all the four buildings, viz., the office, the pasteurization plant building, the sales depot and the by-products section are all situated within the same compound. 200 workers carry out work at the pasteurization plant , sales depot and office. (a) Does the society run a factory? (b) If the society set up a canteen and gave the contract to ABC contractors, what would be the status of workers of the contractors?

23. Hypothetical 2 Balaji Enterprises runs an automobile repair shop with the help of 14 employees. Two years ago, they began to buy old cars from loyal customers and resell them after making suitable top-ups/ repairs. Is this a factory?