legal aspects of safety

7/31/2019 Legal Aspects of Safety

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LEGAL ASPECTS OF SAFETYUNDER FACTORIES ACT, ESI

ACT AND WORKMENS

COMPENSATION ACT


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THE FACTORIES ACT, 1948

OBJECT : - An Act to consolidate and amend the law

regulating labour in factories.

COVERAGE:- Whole of India.

COMMENCEMENT:- w.e.f. 01.04.1949.

PURPOSE:- It is meant to provide protection to the workers from

exploitation by business establishment.

- It provides for improvement of working conditions with in

the factory premises.

- It is meant to provide for welfare of the workers and protectionfrom unhygienic working condition.


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IMPORTANT DEFINITIONS

ADULT PERSON - Who has completed his 18

th

year of age.

ADOLESCENT - Who has completed his 15th year of age but has not

completed his 18th year.

CHILD - Who has not completed his 15th

year of age

HAZARDOUS PROCESS - Any process which can cause material impairment

to the health of the persons engaged or which can

in result in the pollution of the generalenvironment.

MACHINERY- Includes prime movers, transmission machinery and all other

appliances whereby power is generated, transformed,

transmitted or applied.


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WORKER - Means a person employed-

directly or by or through any agency including a contractor

with or without the knowledge of the principal employer,whether for remuneration or not,

in any manufacturing process,

or in cleaning any part of the machinery

or premises used for a manufacturing process,

or in any other kind of work incidental to,

or connected with, the manufacturing process,or the subject of the manufacturing process

but does not include any member of the armed forces of the

Union.

PRESUMTION AS

TO EMPLOYEMENT- If a person found in a factory at any time exceptduring meals or rest shall be deemed to be in

employment in the factory. (Section 103)


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FACTORY - Means any premises including the precincts thereof

- Whereon ten or more workers are working

- and in any part of which a manufacturing process is being carried

- with the aid of power

- or whereon 20 or workers are working

- and in any part of which a manufacturing process is being carried

- without the aid of power

- but does not include a mine or

- a mobile unit of armed forces of the union, a Railway running shed

- or a Hotel, Restaurant or eating place.


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MANUFACTURING PROCESS - Means any process for

- making, altering, repairing etc. any article or substance

- with a view to its use, sale, transport, delivery or disposal

- or generating, transforming or transmitting power

OCCUPIER - The person who has ultimate control over the affairs of the factory

- appointed to manage the affairs of the factory.

APPOINTMENT OF OCCUPIER

INTERPRETATION The Act is meant for social welfare hence the provisions/definitions can not be interpreted in narrow sense.

GENERAL RULE OF INTERPRETATION OF STATUTES

APPROVAL LICENCING AND REGISTRATION OF FACTORIES

NOTICE BY OCCUPIER At least 15 days before occupying factory


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GENERAL DUTIES OF OCCUPIER

- To ensure heath safety and welfare of workers while at work in factory

- Shall include provision and maintenance of plant and systems of work in the

factory that are safe and without risks to health

- Ensuring safety and absence of risks in use, handling, storage and

transport of articles and substances

- Providing information, instruction, training and supervision to ensure the

health and safety of workers at work

- Maintenance and monitoring of working environment

- Maintenance of places of work in the factory


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POWERS OF FACTORY INSPECTOR

- Entry into the factory

- Examination of premises, plant, machinery, article or substance

- Enquiry into any accident or dangerous occurrence resulting in bodily injury

- Takes statements on the spot or otherwise

- Require the production of documents- Seize or take copies of documents

- Direction to the occupier to keep the premises undisturbed

- Take measurements and photographs

- Direction for dismantling or testing of any article of substance

- Taking possession of any such substance or article- Exercise such other powers as may be prescribed


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SAFETY

- Sections 21 to 41 relates to safety

- Every moving part of a machinery shall be securely fenced by safeguards ofsubstantial construction

- Work on or near machinery in motion

- Employment of young persons on dangerous machines

- Striking gear and devices for cutting off power

- Self-acting machines- Casing of new machinery

- Prohibition of employment of women and children near cotton-openers

- Hoists and lifts

- Lifting machines, chains, ropes and lifting tackles

- Revolving machinery- Pressure plant

- Floors, stairs and means of access


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- Floors, stairs and means of access

- Pits, sumps openings in floors, etc.

- Excessive weights

- Protection of eyes.

- Precautions against dangerous fumes, gases, etc.

- Precautions regarding the use of portable electric light

- Explosive or inflammable dust, gas, etc.

- Precautions in case of fire

- Power to require specifications of defective parts or tests of stability

- Safety of buildings and machinery

- Maintenance of buildings

- Safety officer

- Power to make rules to supplement this chapter


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PROVISION RELATING TO HAZARDOUS

PROCESSES

- Constitution of Site Appraisal Committees

- Compulsory disclosure of information by the occupier

- Specific responsibility of the occupier in relation to hazardous processes

- Power of Central Government to appoint Inquiry Committee

- Emergency standards- Permissible limits to exposure of chemical and toxic substances

- Workers participation in safety management

- Right of workers to warn about imminent danger.


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WELFARE

- Washing facilities

- Facilities for storing and drying clothing

- Facilities for sitting

- First aid appliances

- canteens- shelters, rest rooms and lunch rooms

- creches

- Welfare officers

- Power to make rules to supplement this chapter


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WORKING HOURS OF ADULTS

- Weekly hours

- Weekly holidays

- Compensatory holidays

- Daily hours

- Intervals for rest

- Spreadover

- Night shifts- Prohibition of overlapping shifts

- Extra wages for overtive

- Restriction on double employment

- Notice of periods of work for adults

- Register of adult workers

- Hours of work to correspond with notice under section 61 and register under section

62

- Power to make exempting rules

- Power to make exempting orders

- Further restrictions on employment of women


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PENALTIES AND PROCEDURE

GENERAL PENALTY FOR OFFENCES

- Up to 2 years imprisonment or

- fine up to Rs. 1,00,000/- or both

- In case of continuation of contravention after

conviction fine up to Rs. 1,000/- per day

IN CASE OF DEATH OR SERIOUS BODILY INJURY

- fine shall not be less than 25,000/- in case of death

- fine shall not be less than 5,000/- in case of serious bodily injury

- same punishment for contravention of safety provisions (chapter IV)


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SERIOUS BODILY INJURY

- Means any injury involving permanent loss of the use of

- or permanent injury to any limb

- or the permanent loss of or injury to sight or hearing or

- the fracture of any bone


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ENHANCED PENALTY AFTER PREVIOUS

CONVICTION

- imprisonment up to 3 years

- or fine which shall not be less than 10,000/- up to Rs. 2,00,000/- or both

IN CASE OF DEATH OR SERIOUS BODILY INJURY- fine shall not be less than 35,000/- in case of death

- fine shall not be less than 10,000/- in case of serious bodily injury

- same punishment for contravention of safety provisions (chapter IV)


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PENALTY FOR OBSTRUCTING INSPECTOR

- imprisonment up to 6 months- or fine up to Rs.10,000/- or both

PENALTY FOR CONTRAVENTION OF PROVISIONS FOR HAZARDOUS

PROCESSES

FOR NON DISCLOSURE OF INFORMATION

ABSENCE OF EMERGENCY PLAN

ABSENCE OF DETAILED DISASTER CONTROL MEASURES

LACK OF MEASURES FOR HANDLING HAZARDOUS PROCESSES

- Imprisonment up to 7 years and fined up to Rs. 2,00,000/-- in case of continuation fined up to Rs. 5,000/- per day

- in case of continuation of offence beyond 1 year

- imprisonment up to 10 year


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EXEMPTION OF OCCUPIER OR MANAGER

- In case he has used due diligence

- and the other person committed the offence in question without his knowledge,

consent or connivance

COGNIZANCE OF OFFENCES

- Only on complaint by or with previous sanction in writing of an Inspector

- Only Magistrate of First class shall try the offences under this Act

LIMITATION OF PROSECUTIONS

- with in 3 months of the knowledge of offence to the Inspector

- with in 6 months in case of disobeying of written orders

- in case of continuing offence the limitations will be w.e.f. the last


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THE EMPLOYEES STATE

INSURANCE ACT, 1948

OBJECT- An Act to provide for certain benefits to employees in case of

sickness, maternity and employment injury and to make provision for

certain other matters in relation thereto.

APPLICATION - Whole of India

- To all factories

- To employees with monthly wages up to Rs. 15,000/-


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REGISTRATION OF FACTORIES OR OTHER

ESTABLISHMENT

NOTIFICATION OF APPLICATION OF ESI ACT

- The appropriate Govt. will notify in the official gazette the coverage of the

area / establishment under the ESI Act

REGISTRATION

- Factory / establishment to submit declaration in writing to Regional office

with in 15 days of the date of application of the ESI Act

(Form 01 i.e. Employers Registration Form)

- Employer to be responsible for the correctness of the declaration

- ESIC to allot employers code no.

- Employer to furnish annual return (Form 01 A)

- Employer to be responsible for the correctness of the return


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DECLARATIONS

DECLARATION BY EMPLOYEES

- Declaration to be submitted by the employees in Form I

- Employees to fill temporary identification certificate

- Declaration Form to be sent to the ESIC office

- Allotment of insurance no. to the employees by ESIC office

- Family declaration and registration

- Changes in family

- ESIC office to issue identity card

- Smart cards are being issued by ESIC


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PAYMENT OF CONTRIBUTIONS

EMPLOYERS CONTRIBUTION

- To be paid @ 4.75% of the wages

EMPLOYEES CONTRIBUTION

- To be paid @ 1.75% of the wages

PAYMENT OF CONTRIBUTION

- To be paid in the bank authorised by ESIC

- Also payable online

LIABILITY FOR PAYMENT OF CONTRIBUTION

- Principal employer to pay in first instance

- Recovery of contribution from immediate employer


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PAYMENT OF CONTRIBUTIONS

TIME FOR PAYMENT OF

CONTRIBUTIONS

- With in 21 days of the last day of the

contribution period

INTEREST ON LATE PAYMENT OFCONTRIBUTIONS

- Interest to be paid @ 12% per annum

RECOVERY OF INTEREST

- As an arrear of land revenue

DAMAGES

Period of delay Maximum rate ofdamage

< 2 months 5%

2 to 4 months 10%

4 to 6 months 15%

Above 6 months 25%


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IMPORTANT DEFINITIONS

APPROPRIATE GOVERNMENT

- It is Central Govt. in case of establishment under the control of Central Govt.

- It is State Govt. in all other case

EMPLOYEMENT INJURY

- Means a personal injury to an employee caused by accident

- or an occupational disease arising out of and in the course of his employment,

- being an insurable employment,

- whether the accident occurs or the occupational disease is contracted

- within or outside the territorial limits of India


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EMPLOYEE

- Means any person employed for wages in or in connection with the work of afactory or establishment to which this Act applies

- Who is directly employed by the principal employer, on any work of, or

incidental or preliminary to or connected with the work of, the factory or

establishment, whether such work is done by the employee in the factory or

establishment or else where.

- Who is employed by or through an immediate employer, on the premises of

the factory or establishment or under the supervision of the principal

employer or his agent on work which is ordinarily part of the work of the

factory or establishment or which is preliminary to the work carried on inor

incidental to the purpose or the factory or establishment.

- Whose services are temporarily lent or let on hire to the principal employer bythe person with whom the person whose services are so lent or let on hire

has entered into a contract of service.


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PRINCIPAL EMPLOYER

- Means in a factory, the owner or occupier of the factory and includes the

managing agent of such owner or occupier, the legal representative of a

deceased owner or occupier, and where a person has been named as the

manager of the factory under the Factories Act, 1948,( 63 of 1948) the

person so named

- In other establishment any person responsible for the supervision and control

of the establishment.


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SICKNESS

- Condition which requires medical treatment and attendance- and necessitates absence from work on medical grounds

TEMPORARY DISABLEMENT

- Means a condition resulting from an employment injury

- which requires medical treatment

- and renders an employee temporarily incapable of doing work

WAGES

- Means all remuneration paid or payable in cash to an employee

- includes payment for leave, lock-out, strike, lay- off which is not illegal

- but does not include contribution of employer to pension fund, PF

- traveling allowance, gratuity


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ACCIDENTS

ACCIDENTS- Employer to maintain accident book

- Report of accident by employer immediately in case of serious injury andwith in 24 hours in other cases

PRESUMPTION AS TO ACCIDENT- Accident shall be presumed to be arising in the course of employment in theabsence of evidence

ACCIDENT IN BREACH OF REGULATION ETC.- Accident shall deemed to arise out of and in the course of employment even

if the person has acted in contravention of any regulation, withoutinstructions

ACCIDENT WHILE TRAVELLING


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BENEFITS

PAYMENTS IN CASE OF SICKNESS

- Sickness to be certified by duly appointed medical practitioner

- or person possessing qualifications and experience as specified by ESIC

- Benefit to be payable at standard daily benefit rate for the period of sickness

which is approximately half of the average pay of the person

MATERNITY BENEFIT

- Periodical payments in case of confinement or miscarriage

- or sickness arising out of pregnancy, confinement, premature birth of child

or miscarriage

- Such women to be certified to be eligible for such payments by an authorityspecified by ESIC


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BENEFITS

DISABLEMENT BENEFITS

- Notice of accident to be given in writing or oral- By the insured person

- Notice not required in case of employment injury caused by occupational

disease

- Payments in case of disablement as a result of employment injury

- Can be claimed

OTHER BENEFITS

- Payments to dependants of deceased

- Medical treatment

- Funeral expenses

CLAIM

- An insured person under the ESI Act can not claim compensation under the

Workmens Compensation Act


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DISPUTES AND CLAIMS

EMPLOYEES INSURANCE COURT

- To be constituted by State Govt. by notification in official gazette

- Judge to have at least five years experience

MATTERS TO BE DECIDED BY COURT

- Whether a person is an employee

- Whether he is liable to pay employees contribution

- The rate of wages

- The rate of contribution payable

- As to who is principal employer- Right of any person to any benefit and as to be amount and duration


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DISPUTES AND CLAIMS

START OF PROCEEDINGS

- By application to the court

REFERENCE TO HIGH COURT

- A question of law can be referred to the High Court for decision by the court

APPEAL

- Lies to the High Court

- Only if it involves a substantial question of law

- Period of limitation is 60 days


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PENALTIES

PUNISHMENT FOR FALSE STATEMENT

- Imprisonment upto 6 months

- Or fine upto Rs. 2,000/- or both

PUNISHMENT FOR FAILURE TO PAY CONTRIBUTIONS

- Imprisonment upto 3 years in case of failure to pay contributions

- Imprisonment for not less than 1 year in case of failure to pay contributions

which have deducted by him from the employees wages and shall also be

liable for fine upto Rs. 10,000/-

- Imprisonment not less than 6 months and fine upto Rs. 5,000/- in any other

case

ENHANCED PUNISHMENT AFTER PREVIOUS CONVICTION

- Imprisonment upto 5 years and fine upto Rs. 25,000/-


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EXEMPTION

- By notification in the official gazette by the appropriate Govt.

- On year to year basis

- Exemption of persons or class of persons

- Corporation to make representation before grant of exemption

- Exemption can be granted if the employees of the establishments are in

receipt of benefits similar or superior to the benefits provided under this Act


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WORKMENS COMPENSATION ACT, 1923

OBJECT

- An Act to provide for the payment by certain classes of employers to their

workmen of compensation for injury by accident

APPLICATION

- Extends to the whole of India

- W.e.f. 01.07.1924

INTERPRETATION

- To be done keeping in view the background and purpose of the Act


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DEFINITIONS

MINOR

- Who has not attained the age 18 years

PARTIAL DISABLEMENTS

- Disablements of temporary nature reducing the earning capacity of the

workmen in the work in which he was engaged at the time of injury- Disablements of permanent nature reducing the earning capacity of the

workmen in every work which he was capable of doing at the time of injury

PERMANENT TOTAL DISABLEMENTS

- If he is unable to perform the work which he was performing at the time of

the accident


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LIBILITY OF EMPLOYER FOR COMPENSATION

- For personal injury to the workmen by accident in the course of his employment

- Not liable to pay compensation

- If the injury does not result in the total or partial disablement for a period

exceeding 3 days

- In respect of injury not resulting in death or permanent total disablement caused

by an accident because of workmen being under the influence of drink

- or drugs or willful disobedience or willful removal of safety guard or other device


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AMOUNT OF COMPENSATION

- In case of death an amount equal to 50% of the monthly wages multiplied

by the relevant factor or Rs. 50,000/- which ever is more

- In case of permanent total disablement an amount equal to 60% of the

monthly wages multiplied by the relevant factor or Rs. 60,000/- which everis more


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PROCEDURE

APPLICATIONS

- Application to be filed by the workmen before the Commissioner appointed

by the State Govt.

PRODUCTION OF DOCUMENTS

- To be submitted along with the application

EXAMINATION OF APPLICANT

- Commissioner may examine the applicant on oath

SUMMARY DISMISSAL OF APPLICATION

- Application can be dismissed in case it is found that there are no sufficient

grounds to proceed further.


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PROCEDURE

PRELIMINARY INQUIRY INTO APPLICATION

- Applicant to produce evidence in support of his application

- Application can be dismissed after inquiry in case there is no case for the

relief claimed

NOTICE TO OPPOSITE PARTY

APPEARANCE AND EXAMINATION OF OPPOSITE PARTY

FRAMING OF ISSUES

JUDGMENT


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PROCEDURE

REVIEW

- Commissioner has no power of review his own orders

SUMMONING OF WITNESSES

EXEMPTION FROM PAYMENT OF COSTS

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