Labour and industrial law II (15m)
Q. Object and application of Payment of Bonus
Act, 1965.
Ans. The payment of Bonus Act, 19 65 aims at
providing for the payment of bonus (li nked with
profits or productivity) to the employ ees of certain
establishment and for matters connect ed there with.
The scheme of Act, broadly speakin g is four
dimensional viz-
i) To impose statutory liability upo n the employers
of the establishments covered by the Ac t to pay
bonus to employees in the establish ment.
ii) To define the principles for payme nt of bonus
according to the prescribed formula;
ii) To provide for payment of mi nimum and
maximum bonus and linking the pay ment of bonus
with the scheme of ‘Set-off and se t-on and
iv) To provide machinery for enforceme nt of the
liability for payment of bonus, with a view to
minimizing the disputes on this acc ount.
This Act extends to the whole of In dia. Sub-
Sec.(3) of Sec.1 provides that one as o therwise
provided in this Act, it shall apply to (a) every
factory; and (b) every other establish ment in which
20 or more persons are employed on a ny day during
on accounting year.
The words factory has not been defi ned under
the Act but the definition of ‘factory ’ as under the
Factories Act, 1948 has been made a pplicable to this
Act also. ‘Established’ has also not bee n defined
under the Act. The Act defines “establ ishment in
private sector’ and ‘establishment in publ ic sector’.
Establishment means the place in w hich one is
personally fixed for business with neces sary
equipment, any office or place of busine ss.
Subsequent reduction of strength in th e no. of
employees of would not make the Act explicable to
an establishment.
Any factory or establishment, to whic h this Act
applies, shall continue to be governed by its
provisions irrespective of the fact that t he numbers
of employees working therein has falle n below 20 or
the number specified by the Govt, a s the case may
be.
For the purpose of counting the number of
employees and calculation of bonus, e mployees
working in the branches, departments of the same
establishments whether situated in the same place
or indifferent places shall also be in different places
shall also be included. However, em ployees of
different establishments, functioni ng in the same
premises, shall not be clubbed together.
Where for any accounting year a separa te
balance sheet and profit and loss acc ount are
prepared and maintained in respec t of any
department or branch, then such depart ment or
branch shall be treated as a separate establishment
for the purpose of computation of bo nus for that
year, unless such department or branch was,
immediately before the commenceme nt of that
accounting year, treated as part of the e stablishment
for the purpose of computation of bo nus.
Q. Restrictions and special provision s given for
employment of women and young per sons under
the Factories Act, 1948.
Ans. Special provisions and restrict ions are provided
by the Factories Act, 1948 under differ ent Sections
for the welfare of the children. The co nditions are
laid down as follows:
i) Children below 14 years of age are not allowed to
work in any factory. (Sec. 67)
ii) A child who has completed 1 4 years of age, may
be allowed to work subject to production of fitness
certificate from authorized surgeons.(S ec. 69)
iii) No children shall be permitted to wo rk in
factories for more than four and half hours, in any
day and night. Further, no child sh all be allowed to
work during night i.e, between 10 p m and 7 am.
(Sec. 71)
iv) A child is entitled to weekly holid ay like an adult
worker.
v) The register of child workers must b e maintained
by the Manager of the Factory separa tely.
vi)A child worker is not allowed to wo rk on or near:
a) a machinery in motion
b) cotton openers 9dangerous machi ne)
c) beedi making
d) carpet making
e) cement factory
f) cloth print
g) weaving etc.
further protection under Employm ent of Children
Act, 1938, prohibits employment of childre n in
certain workshops to which Factories A ct does not
apply.
Provisions relating to employment of Women:
Sections 22, 27, 42 and 66 of the Factor ies Act, 1948
provided for certain special provisio ns to the
women employed in the industrial estab lishments.
These provisions are also known as ‘res trictions on
the employment of women workers’ as stated
below:
i) A women shall not be allowed to cle an or lubricate
or adjust any part of a dangerous mach inery. (Sec.
22(2))
ii) A women worker shall not be allow ed to work
near cotton opener (Sec. 27).
iii) (1) In every factory:
a) adequate and suitable facilities for wa shing shall
be provided and maintained for the us e of the
workers therein;
b) separate and adequate screened facil ities shall be
provided for the use of the male an d female workers.
c) such facilities shall be conveniently accessible and
shall be kept clean;
(2) The State Government may in res pect of any
factory or class or description of fac tories or any
manufacturing process, prescribed stan dards of
adequate and suitable facilities for was hing.
iv) There shall be no change in shifts i n respect of
women workers;
v) A women shall not be required/allo wed not work
more than 48 hours in a week or more than 9 hours
a day. (sec.66(a));
vi) No women shall be allowed/per mitted to work in
a factory between 7pm and 6pm. Howev er, the State
Government by notification in Official Gazette may
reduce the period between 10pm an d 5pm
vii) Where 30 or more women worker s are
employed crèches should be provided for keeping
their children below 6 years (Sec. 48)
viii) A women worker in an industrial establishment
is entitled to maternity leave of 12 wee ks.
Q. Procedure for fixing and revising the
minimum rates of wages under t he Minimum
Wages Act, 1948?
Ans. Section 5 of the Minimum wages Act. 1948 lays
down the procedure for fixing and revi sing
Minimum wages. It lays down that in fixing
minimum rates of wages in respect of any scheduled
employment for the first time under this Act or in
revising minimum rates of wages so fixe d, the
appropriate government shall either.
a)appoint as many committees and s ub-committees
as it consider necessary to hold enquires and advise
in respect of such fixation or revisio n , as the case
may be or
b) by notification in the official Gaze tte, published its
proposal for the information of person s likely to the
affected thereby and specified a date not less than 2
months from the date of notification o n which the
proposal will be taken into considera tion.
After considering the advise of the co mmittees
appointed end all representation receive d by it
before the date of specified in the Gazat te
notification, the appropriate govt. may by
notification in the official Gazette, fix or revise the
minimum rates of waters in respect of each
scheduled employment of three month unless
otherwise provides in the notification.
Where the appropriate govt. proposes to
revised the minimum rates of wages by t he mode
specified in section 5 (I) (b) of the Ac t, the
appropriate govt. shall consult the Advi sory Board
also.
If the Advisory Board approves the notif ication
regarding revision of wages without discussing the
objection raised the action of the Boar d would be
arbitrary because it amounts to non- application of
mind in granting approval.
The exercise of power to fixed or revised the
minimum wages sub section (2) of s ection 8 is
united only to implements specified in the schedule.
Under section 27 of the Act of appropria te govt. may
add any employment to the schedule. The nature
and extent of powers of the appropriate govt. under
section 27 and section5 (2) is separate and distinct
and what can be done by the appropriat e govt. in
exercise of its power under section 27 cannot be
done by it in exercised of its power un der section 5 (
2) of the Act.
In Ministry of Labour and Rehabilitat ion and
others-V-Tiffin’s Barytes Arbestos an d points Ltd;
(1985) 2 Lab. L.J.412 (S.C.), it was held t hat the
Notification fixing minimum wages ca nnot be lightly
interfered with in exercise of writ juris diction by the
High courts on the ground of some irre gularities in
the constitution of the committed or t he procedure
adopted by the committee. Committe e acts only as a
recommendatory body, the minimu m wages are
fixed only by the Government. In a c ountry where
wages are already minimal a notifica tion fixing
minimum wages should not be interfer ed with
under Article 226 of the Constitution of I ndia except
on the most substantial grounds. Actio n taken
pursuant to a social Welfare legislatio n, to further
the Directive principles of State Policy cannot be
struck down on mere technicalities.
Q. Conditions to be fulfilled in ord er to claim
compensation under the Workmen ’s
Compensation Act, 1923?
Ans. Section 3 of the workmen’s com pensation Act,
1923, provides conditions to claim com pensation
under the Act.
The liability of an employer to pay
compensation is limited and is subjec t to the
provisions of the Act. Under Section 3 ( 1) of the Act,
the liability of the employer to pay co mpensation is
dependent upon the following conditio ns:
a) personal injury must have been cau sed to the
workman.
b) the injury must have resulted in the wo rkman’s
death or permanent or temporary, total or partial
disablement.
c) the injury must have been caused by accident.
d) the accident must have arisen out of the
workman’s employment.
e) the accident must have occurr ed in the course of
the workmen’s employment.
f) the formalities prescribed by the Act must have
been observed for the claim of co mpensation.
g) the case must not fall under any of the exceptions
to the Proviso to Section 3(1).
h) there must be some claimant who is entitled to
compensation under this act;
i) the accident must have happened in I ndia except
in the case of Mastership and Sea man.
j) the person from whom the compensatio n is
claimed must be one of the persons li able to pay
compensation under the Act.
k) the compensation must be calcula ted in
accordance with the provision of the Ac t and
l) the workman must not have filed a suit for
damages against any person in Civil Co urt in respect
of the same injury.
Employer's liability in case of occ upational
diseases: Workers employed in certain types of
occupations are exposed to the risk of co ntracting
certain diseases, which are peculiar and inherent to
those occupations. A worker contractin g an
occupational disease is deemed to have suffered an
accident out of and in the course of em ployment and
the employer is liable to pay compensa tion for the
same. Occupational diseases have been
categorized in Parts A, B and C of Schedul e III. The
employer is liable to pay compensatio n under
Section 3(2):
a) When a workman contracts any dise ase specified
in Part B, while in service for a continuou s period of
6 months under one employer. (Perio d of service
under any other employer in the same kind of
employment shall not be included),
b) When a workman contracts any disea se specified
