Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No.25. The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979


Existing Provisions

Section 2 : Definition - 1) In this Act, unless the contest otherwise requires - a) ' appropriate Government' means: - i ) in relation to - 1) ..., 2).... , 3)... ii) in relation to any other establishment, the Government of the State in which that other establishment is situated. b).., c)...., d) establishment means - i) ..., ii)... e) 'Inter-state migrant workman' means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment. F)..., g) 'principal employer' means - i).., ii).., iii)...., iv).... h).., I)...., j) 'workman' means any person employed in or in connection with the work of any establishment to do any skilled, semiskilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment by express or implied, but does not include any such person - i) who is employed mainly in a managerial or administrative capacity or ii) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Section 6 : Prohibition against employment of Inter-state migrant workmen without registration - No principal employer of an establishment to which this Act applies shall employ inter-state migrant workmen in the establishment unless a certificate of registration in respect of such establishment issued under this Act is in force: Provided that nothing in this section shall apply to nay establishment in respect of which an application for registration made within the period fixed, whether originally or an extension under sub-section (1) of Section 4 is pending before a registering office and for the purposes of this proviso, an application to which the provisions of sub-section (3) of Section 4 apply shall be deemed to be pending before registering office concerned till the certificate of registration is issued in accordance with the provisions of that sub-section.

Section 8 : Licensing Contractors - 1) with effect from such date as the appropriate Government may, by notification in the official Gazette, appoint, no contractor to whom this Act applies shall - a) recruit any person in State for the purpose of employing him in any establishment situated in another State, except under and in accordance with a licence issued in that behalf - i ) if such establishment is an establishment referred to in sub-clause ( i ) if such establishment is an establishment referred to in sub-clause ii) of Clause a) of sub-section 1) of Section 2, by the licensing office appointed by the State Government who has jurisdiction in relation to the area wherein the recruitment is made; a) employ as workmen for the execution of any work in any establishment in any State, persons from another State (whether or not in addition to other workmen) except under and in accordance with a license issued in that behalf - i) if such establishment is an establishment referred to in sub-clause a) of sub-secion1) of Section 2 by the licensing officer appointed by the Central Government who has jurisdiction in relation to the area where in the establishment is situated; ii) if such establishment is an establishment ii) of Clause a) of sub-section 1) of Section by the licensing office appointed by the State Government who has jurisdiction in relation to the area where in establishment is suited; 1)..., 2)...

Section 10 : Revocation, suspension and amendment of licenses - 1) if the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that - a) a license granted under Section 8 has been obtained by misrepresentation or suppression of any material fact, or b) the holder of a lines has, reasonable cause, failed to comply with the conditions subject to which the licence has been made thereunder, contravened any of the provisions of this Act or the rules made thereunder then without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing office may, after giving the holder of the licence an opportunity to be heard by order in writing, revoke the licence or forfeit the security furnished by him under the proviso to sub-section (2) of Section or any part thereof and communicate the order to the holder of the Provided that where the licensing officer consider it necessary to do so for any special reasons, he may, pending such revocation or forfeiture, by order, suspend the operation of the licence for such period as may be specified in the order and serve by registered post, such order along with a statement of the reasons on the holder of the licence and such order shall take effect on the date on which such service is effect.

Section 13 : Wage rates and other conditions of service of inter-state migrant workman - 1) The wage rates, holiday, hours of work and other conditions of service of an inter-state migrant workman shall - a) in a case where workman performs in any establishment, the same or similar kind of work as is being performed by any other workman in the establishment, be the same as those applicable to such other workman; and b) in any other case, be such as may be prescribed by the appropriate government. Provided that an inter-state migrant workman shall in no case be paid less than the wages fixed under the Minimum Wages At, 1948. 2) Notwithstanding anything contained in any other law for the time being in force, wages payable to an inter-state migrant workman under this section shall be paid in cash.

Section 16 : Other facilities - It shall be the duty of every contractor employing inter-state migrant, workmen in connection with the work of an establishment to which this Act applies - a) to ensure regular payment of wages to such workmen; b) to ensure equal pay for equal work irrespective of sex; c) to ensure suitable condition of work such workmen having regard to the fact that they are required to work in a State different from their own stated) to provide and maintain suitable residential accommodation to such workmen during the period of their employment; e) to provide the prescribed medical facilities to the workmen, free of charge; f) to provide such protective clothing to the workmen as may be prescribed; and g) in case of fatal accident or serious bodily injury to any such workman, to report to the specified authorities of both the States and also the next-of-kin of the workman.

Section 28 : Cognizance of Offence - No Court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of, an inspector or authorized person and no court interior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

Section 35 : Power to make rules - 1) The appropriate Government may, subject to the condition of previous publication, make rules for carrying out the purposes of this Act. 2) In particular, an without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters; viz a) the form and manner in which an application for the registration of an establishment may be made under Section 4, the fees payable thereon and the form of a certificate of registration issued under that section; b) the form in which an application for the grant or renewal of a licence may be made under Section 9 and the particulars if any contain; c) the manner in which an investigation is to be made in respect of an application for the grant of a licence and the matters to be taken into account in granting or refusing a licence; d) the form of a licence which may be granted or renewed, the fees payable for the grant or renewal of a licence and the security, if any, required to be furnished for the due performance of the conditions of the licence; e) the circumstances under which licences may be varied or amended under section 10; f) the form and the manner in which appeals may be filed under Section 11 and the procedure to be followed by appellate officers in disposing of the appeals; g) the wage rates, holidays, hours of work and other conditions of service which an inter-state migrant workman is entitled under Section 13; h) the period within which wages payable to inter-state migrant workmen should be paid by the contractor under sub-section (1) of certificate of such payment under- section (2) thereof; i) the time within which allowances or facilities required by this Act to be provided and maintained may be so provided by the contractor and in case of default on the part of the contractor, by the principal employer under Section 18; j) the powers that may be exercised by inspectors under section 18 ; k) the form of registers and records to be maintained and the particulars and information to be contained in notices to be exhibited by the principle employers and contractors under Section 23 l) the manner of submission of return, and the forms in which, and the authorities to which, such return may be submitted; m) legal aid to inter-state migrant workmen; n)any other matter which is required to be, or mayu be, prescribed under this Act. 3) Every rule made by the Central Government under this Act shall be laid so soon as may be after it is made, 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 session and if before the expiry of the session immediately following session or the successive sessions aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Suggested Amendments by NCW

Section 2 : In clause ( e ) of Section at the end after the words 'Principal Employer in relation to such establishment' the following words shall be added - '�r any workman who is directly employed by the principal employer from a state other than the one in which the employer's establishment is situated'. This section will read as - 'Inter-state migrant workman' means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment; or any workman who is directly employed by the principal employer from a state other than the one in which the employer's establishment is situated. In sub clause of ( ii ) of clause ( j ) of Section 2of the works 'five hundred rupees' the words 'two thousand and five hundred rupees' shall be substituted. This clause will read as - 'who, being employed in a supervisory capacity, draws wages exceeding two thousand and five hundred rupees per mensem, or exercises, either by the nature of duties attached to the office or by reason of the power vested in him, function mainly of a managerial nature.

Section 6 : Prohibition against employment of Inter-state migrant workmen without registration - After the Proviso of this section another proviso shall be added which will read as - 'Provided further that nothing in this section shall affect the employment, and the rights and dues accruing therefrom to any migrant workman already employed'.

Section 8 : Licensing contractors - After sub-section ( 3 ) of Section 8, a new sub-section( 4 ) shall be added -'List of licensed contractor to be maintained at and publicly displayed in district and block center. A list of all licensed contractors with full details as to the establishments, on behalf of which they are licensed to recruit, shall be maintained and publicly displaced by every district headquarters, in court house, at primary health centers, block offices and other such public places'.

Section 10 : Revocation, Suspension and Amendment of Licenses - After Proviso of sub-section 1) of Section 10 a new proviso shall be added. This will read as ' Provided further that nothing in this section shall affect the employment, and the rights and dues accruing therefrom to any migrant workman already recruited'. Insertion of a new Section 10A and 10 B - After Section 10 two new section 10 A and 10 B shall be inserted,

Section 10A : 'Each district, in the State from which the worker is migrating shall have a registration of migrant workmen office which will enter the name of the migrant workman, date on which he/she is recruited, the name of the contractor and the license number, the name and address of the principal employer and of the establishment in which the workman is to be employed and the displacement allowance paid to the workman'.

Section 10 B : 'Each district in the State to which an inter-state migrant workman migrates for work shall maintain a register having registration of migrant workmen office which will enter the name of the migrant workman, date on which he/she is recruited, the name of the contractor and the license number, the name and address of the principal employer and o he establishment in which the workman is to be employed and the displacement allowance paid to the workman. The details of the family of the migrant workman, their present location and whether any of them has also migrated will be recorded. It shall be the duty of every principle employer and contractor to periodically furnish such information to the registering authority. Provided that the consequence of the failure to do so on the part of employer/contractor shall not affect the workman'.

Section 13 : Wage Rates and other conditions of service of inter-state migrant workman - After clause ( b ) of sub-section ( 1 ) of Section 13 a new clause ( c ) shall be inserted: This will read as: ' ( c) - for every completed year of service, a holiday allowance shall be paid to the migrant workman and a fortnight of paid leave shall be given to visit the family'. After the proviso of sub-section (1) of Section 13 another proviso shall be inserted as - 'Provided further that the provisions of clause c) shall be applicable only if, an to the extent, that these are provided for otherwise under section 13 of the Act.' After Sub-section (1) of Section 13 an explanation shall be added as - Explanation - 'For the purpose of this provision 'completed year of service' will have the same meaning as given in Section 2 (b) of the Payment of Gratuity Act, 1972.

Section 16 : Other Facilities - After Clause (g) of Section 16 a new clause (h) shall be inserted - This will read as - 'where woman are recruited they shall be permitted at the employer's expense to be accompanied by any one family member of their choice to the State in which the employer's establishment is.'

Section 28 : Cognizance of Offence - For section 28 the following section shall be substituted. - 'No Court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of, an inspector or authorized person or an NGO/Organisation working for the social cause after calling for a report on the complain from the concerned inspector or authorized person and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class shall try any offence punishable under this Act.

Section 35 : Power to make Rules - After clause ( e ) of sub-section ( 2 ) of Section 35 a new clause ( ee ) shall be inserted. This will read as: ' ( ee ) The form, manner and the authority required to maintain, the register under section 10A and 10B'.

Justification

Section 2 : Definitions - To widen the scope of definition to cover the workmen directly employed by the principal employer. In sub-clause (ii) of Clause ( j ) of Section 2 - As the amount in the Act is less; this provision also excludes a large number of workmen from the ambit of this provision.

Section 16 : Prohibition against employment of Inter-state migrant workmen without registration - After the proviso of this section another proviso shall be added - 'The safeguard the rights and interest of the migrant workmen already employed'. Section 8: Revocation, suspension and amendment of licenses - After proviso of sub-section ( 1 ) of Section 10 - 'To safeguard the rights and interest of the migrant workman already recruited.' Section 10A: This will have check on trafficking of persons. As the provision of labour officers is already in existence, this may be included as a part of their duty to maintain registration process. Giving this responsibility to the 'specified authority' mentioned in the explanation of section 12 (2) of the Act may also be considered. Section 10B: Consequential suggestion in respect to insertion of section 10A.

Section 13 : Wage rates and other conditions of service of inter-state migrant workman - After clasue (b) of sub-section (!) of Section a new clause ( e ) - To provide certain provisions for holiday allowance and paid leave for the migrant workmen. After sub-section (1) of Section 13 an explanation to be added - To make it clear that what completed years of service means.

Section 16 : Other facilities - After clause (g) of section 16 a new clause (h) - To avoid the possibility of trafficking.

Section 35 : Power of make rules - Consequential amendment suggested upon insertion of section 10A and 10B.

 

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