This chapter will enable students to:
- Describe the growth of factory legislation in India
- Understand the provisions of the Factories Act, 1948, relating to health, safety and welfare
- Explain the provisions of the Factories Act, 1948, relating to employment of young persons and women
- Explain the provisions of the Factories Act, 1948, relating to hours of work, spreadover, weekly rest, rest intervals, overtime work and annual leave with wages
- Understand the extent of penalties for different kinds of offences under the Factories Act, 1948
- Make an assessment of the working of the Factories Act, 1948
As the Indian factory legislation is patterned after the British factory laws, it will be relevant here to present a brief recital of the factory laws enacted in Great Britain from time to time.
The beginnings of modern labour legislation lie in factory legislation. In Great Britain, the second half of the eighteenth century, witnessed a rapid growth of industrial towns and factories, particularly cotton mills. This rapid industrialization and urbanization, without any planning, resulted in insanitary and crowded living and working conditions. The introduction of machines along with division of labour facilitated the employment of women and children in factories on a very large scale. The quest for making quick profits, unmindful of its social consequences, caused the hours of work to be excessive and even children of tender ages were required to work for more than 12 hours a day. The working class, lacking any organizational strength, was not in a position to raise an effective voice against these hardships. However, protests against the miserable conditions of children and women were occasionally raised by a few philanthropists and social workers (e.g. Richard Oastler, Thomas Sadler and Lord Ashley). A few enlightened employers (e.g. Robert Owen and Sir Robert Peel) also took initiative and exercised their influence on the Parliament to adopt legislative measures protecting women and children from excessive exploitation. The first of these measures was the Health and Morals of Apprentices Act, 1802, which was subsequently followed by a series of Factory Acts. In the words of J. J. Clark, the object of the Factory Acts was ‘to protect the health of employees from injury by overwork, unwholesome or dangerous conditions of labour, and especially the younger and weaker employees’.1
The Health and Morals of Apprentices Act, 1802, was followed by the Factory Act, 1819, which was amended in 1825 and 1831. The Factory Act, 1833, replaced the previous legislations. The Act of 1833 was amended in 1844 and was subsequently, replaced by the Factory Act, 1847. Another Factory Act was enacted in 1850 with a consolidating Act in 1867. The Factory and Workshop Act of 1878 was another consolidating Act with a similar Factory and Workshop Act passed in 1901. The Factories Act, 1937, was more comprehensive than any of the previous factory legislations. It was amended twice in 1948 and 1959 and completely replaced by the Factories Act, 1961. The Factories Act, 1961, with amendments, is the latest piece of factory legislation protecting factory workers and laying down the main labour standards in factories of the United Kingdom.
The provisions of the Factories Act, 1961, of the United Kingdom contains detailed provisions relating to health, safety, welfare, accidents and industrial diseases, employment of women and young persons, home work, administration and offences and penalties. These provisions are fairly comparable with the relevant provisions of the Indian Factories Act, 1948, which has been patterned after the U.K. Factories Act, 1937, with subsequent amendments. One important point of distinction between the factory legislation of the two countries is that whereas the Indian Factories Act, 1948, contains detailed provisions relating to hours of work of adult male workers and annual leave with wages, the U.K. Act does not include such provisions.
GROWTH OF FACTORY LEGISLATION IN INDIA
As the process of modern industrialization came to India almost a century after its beginning in Great Britain, the beginnings of factory legislation also had to wait for the same period of time. The first cotton textile factory was set up at Bombay as early as 1854. Subsequently, the pace for the establishment of textile factories was accelerated and by 1870, a large number of such factories were set up at Bombay, Nagpur, Kanpur and Madras. Similarly, the first iron and steel work was set up in Bihar in 1873. A jute spinning mill was started at Rishra in 1855. Though the progress of the jute industry was slow for the first three decades, yet it witnessed a period of great prosperity during 1868–73 and by 1881, there were as many as 5,000 power-looms at work in Bengal. In 1870, Bally Paper Mills were set up at Hoogly and soon thereafter, several tanning and leather factories were established at Kanpur. Thus, by the end of the nineteenth century, numerous factory establishments were in existence in the country.
As in the case of Great Britain, in India too, the factory system in its early stages brought with it numerous evils, such as employment of women and children of tender ages, excessive hours of work, and hazardous and insanitary working conditions. A great need for protective labour legislation ameliorating the conditions of workers, particularly women and children, was felt as early as the 1850s but nothing concrete was done by the British Government, though by that time, a series of Factories Acts had already been passed and enforced in England. Some occasional notes of dissatisfaction against the prevailing conditions were expressed by the Indian philanthropists and social workers, even in the face of the repressive policy of the alien government, but as expected, they proved a mere cry in the wilderness. However, as the textiles made in the Indian mills started competing with those manufactured in Lancashire, the main centre of textile industry in Great Britain, the Lancashire manufacturers, became worried. They alleged that the inferior labour standards prevailing in the Indian mills resulted in lower production costs, and hence increased the competitive power of the Indian textiles. To them, one way of preserving their competitive power was to increase the cost of production in Indian mills, by raising labour standards. Thus, the Lancashire manufacturers became the immediate instrument for initiating protective labour legislation, which came to be embodied in the Factories Act, 1881.
The first Factories Act in India can, thus, be said to be the result of the joint efforts of the philanthropists and social workers in India and Lancashire manufacturers in Great Britain, though the two were motivated by altogether different considerations.
Factories Act, 1881
The main provisions of the Factories Act, 1881, are explained in Box 16.1
MAIN PROVISIONS OF FACTORIES ACT, 1881
The Act of 1881 applied to manufacturing establishments using mechanical power and employing 100 or more persons for 4 months in the year. The Act regulated the employment of child labour only. Employment of children below 7 was prohibited and the maximum hours of work for those between 7 and 12 were fixed at 9 hours a day, with an interval of one hour for rest, and a weekly holiday. They were also granted four holidays in a month. The Act also contained provisions relating to safety and inspection of factories.
On the basis of the recommendations of the Factory Commission appointed in 1890, the Act of 1881 was amended in 1891. According to the provisions of the new Act, ‘factory’ included ‘all manufacturing undertakings employing 50 persons or more’. Local governments were empowered to apply it even to premises employing below 20 or more persons. The provisions of the Act are described in Box 16.2.
MAIN PROVISIONS OF INDIAN FACTORIES ACT, 1891
The Act defined ‘child’ as any person below 14 years of age. Employment of children below the age of 9 was prohibited, and the maximum hours of work for those between 9 and 14 were fixed at 7 hours a day, with an interval for rest of half an hour. The Act also prohibited night work (from 8 p.m. to 5 a.m.) for women and children. It also restricted hours of work of women to 11 in a day with a rest period of one and half hours or less, depending on hours worked. Adult men were allowed one holiday every week and daily rest of half an hour.
Indian Factories Act, 1911
The cotton textile industry enjoyed an unprecedented boom during 1904–05 caused by a big increase in the demand for cloth. This led to an excessive increase in hours of work for adult male workers. The matter was discussed by the Textile Commission in 1906 and Factory Labour Commission in 1907. On their recommendations, the Government of India enacted the Indian Factories Act, 1911. The Act also covered seasonal factories working for less than 4 months in a year. The main provisions of the Act are summarized in Box 16.3.
MAIN PROVISIONS OF INDIAN FACTORIES ACT, 1911
It provided for maximum of 12 and 6 hours of work for adults and children, respectively in textile factories. Daily hours of work for children and women in other factories remained at 7 and 11, respectively. The Act prohibited their employment between 7 p.m. and 5.30 a.m. Children were required to produce a certificate of physical fitness. The Act also prohibited the employment of women and children in some dangerous processes.
The First World War broke out soon after the enforcement of the Factories Act of 1911. When peace was restored, the International Labour Organization was established in 1919 under the Treaty of Versailles and started functioning as a part of the League of Nations. The ILO, from its very inception, tried to create worldwide uniform standards for labour and adopted a number of Conventions and Recommendations to this effect (see Chapter 32). Partly with a view to giving effect to the provisions of a few important conventions and recommendations, and partly as a result of social awareness and pressure of the people, the Government of India enacted the Indian Factories (Amendment) Act of 1922.
The Indian Factories (Amendment) Act, 1922, applied to all individual undertakings using mechanical power and employing 20 or more persons. Local governments were empowered to extend the law to establishments, employing 10 or more persons and working with or without mechanical power. The provisions of the Act are summarized in Box 16.4.
MAIN PROVISIONS OF THE INDIAN FACTORIES AMENDMENT ACT, 1922
Adult workers, including men and women, were not allowed to work for more than 11 hours a day and 60 hours in a week. A ‘child’ was defined as a person who had not completed 15 years of age. Employment of children below the age of 12 years was prohibited and the maximum hours of work for those between 12 and 15 were fixed at 6 per day. Provision was also made for a medical examination for certifying the age and physical fitness of children. All workers were to be given at least 1 hour of rest for work exceeding 6 hours. They were also allowed one holiday in a week and no worker was to go without a holiday for 10 days at a time. In case of overtime, workers were entitled to remuneration at one and half times the normal rate of pay. Employment of women under 18 years of age was prohibited in certain lead processes.
Some minor amendments were made in 1923, 1926 and 1931. The amendments of 1923, related to changes for administrative purposes, while those of 1926 prescribed penalties to be inflicted on parents for allowing children to work in two factories on the same day. The Act of 1931 empowered the provincial governments to frame rules with respect to precautions against fire.
Factories Act, 1934
The Factories Act, 1934, was the direct outcome of the recommendations of the Royal Commission on Labour, set up in 1929. The Commission, after examining the conditions of work of those employed in factories, suggested a thorough modification of the existing factory legislation on the basis of which the Act of 1934 was enacted.
The new Act covered all manufacturing establishments employing 20 or more persons, and using mechanical power. The Act provided for a distinction between seasonal and non-seasonal factories. A seasonal factory was defined as a factory working for 180 days or less in a year. Local governments were empowered to apply the Act to any premises working with or without machinery and employing 10 persons or more.
The hours of work in seasonal factories were not to exceed 60 in a week and 11 in a day. In perennial factories, working hours were fixed at 54 in a week and 10 in a day but employment for 56 hours in a week in factories with continuous process was permissible. The Act also required the payment for overtime at 1 and one-fourth and 1 and half times the ordinary rates of pay, in seasonal and perennial factories, respectively.
A child was defined as a person below the age of 15 years. Employment of children below the age of 12 years was totally prohibited and the daily hours of work for those between 12 and 15 were reduced to 5 (both in the seasonal and non-seasonal factories). A new category of workers known as adolescents (between the ages of 15 and 17) was created. They were not to be employed as adults, without medical certificate of physical fitness. Daily hours of work of women in the seasonal factories were not to exceed 10.
The periods of spreadover were fixed at 7.5 hours for children and 13 hours for adults. Women and children were not to be employed before 6 a.m. or after 7 p.m. but the local governments could vary these limits to any span of 13 hours between 5 a.m. and 7.30 p.m.
All factory workers were entitled to a weekly holiday on Sunday but exemption could be made under certain conditions. However, no worker was allowed to work for more than 10 days continuously. No such exemption was allowed in case of children.
Important provisions for health and safety were also introduced. Every factory was to ensure cleanliness, adequate ventilation and lighting, regulation of overcrowding, and prescribed standard of coolness. Adequate supply of pure drinking water, sufficient supply of water for washing purposes, fencing of dangerous machinery and proper sanitary arrangements were also required in each factory. The local governments were empowered to make rules in respect of standards of artificial humidification, protection of workers against excessive heat, provision of adequate shelter for the use of workers during rest periods and provision of crèche.
Amendments to the Factories Act, 1934
The Factories Act, 1934, was subsequently amended in 1935, 1937, 1940, 1941, 1944, 1945, 1946 and 1947. The ame ndment of 1935 entirely prohibited night work of women. The amending Act of 1940 imposed statutory obligation upon provincial governments, to extend the provisions of the Act concerning health, safety, hours of work and other conditions of work, pertaining to children and adolescents to power factory employing 10 to 19 persons. The Factories (Amendment) Act, 1941, was passed to remedy a few administrative defects. The Act of 1944 was intended to remedy certain defects and difficulties in the working of the Act, and introduced some minor changes regarding health and safety.
The amending Act of 1945 provided for the inclusion of a special section dealing with annual holidays with pay, in respect of perennial factories registered under the Factories Act. Provision was made for annual paid holidays2 of 10 days for adults and 14 days for children after one year of service, with the possibility of accumulating the same for a period of 2 years. Half of the wages for holidays were to be paid to workers before they proceeded on leave and the balance on their return. The employer was required to pay the whole amount payable to a workman in respect of holidays, if he was discharged after applying for leave, or if he voluntarily left the job.
A further amendment was introduced in 1946. The amending Act reduced the weekly hours from 54 to 48 in the perennial factories and from 60 to 50 in the seasonal factories. The daily hours of work were also reduced from 10 to 9 in the perennial factories and from 11 to 10 in the seasonal factories. The Act also provided for overtime at the rate of twice the ordinary rate of pay. The work in excess of 9 hours was to be remunerated at the overtime rate in the perennial and seasonal factories alike.
The Act was amended in 1947 with a view to empowering the provincial government to make rules regarding provision of canteens in factories employing 250 or more workers.
Need for an Overall Change in the Factories Act, 1934
Labour standards are always changing and evolving. Between 1934 and 1948, many significant changes had taken place all over the world and higher labour standards were in operation in many industrially advanced countries. The trend in labour legislation in the United Kingdom had also been exercising a potent influence over the course of labour legislation in India. The Factories Act, 1937, of Great Britain had introduced many significant changes in the labour standards pertaining to factories there.
During this period ILO had adopted a number of conventions and the Government of India had ratified a few of them. In the light of these evolving labour standards, the Factories Act, 1934, had become out of date and needed a thorough change.
Besides, many deficiencies of the Act were revealed by the Labour Investigation Committee appointed by the Government of India in 1944. There was a considerable evasion of its provisions, particularly, in respect of hours of work, overtime, employment of children, safety, health and sanitation. Though the number of such evasions was small in large-sized perennial factories, it was very large in small and seasonal factories. These evasions were largely due to the inadequacy of the factory inspectorate in the Provinces. An idea of the extent to which factories remained uninspected in a few provinces, in 1939 and 1943, can be had from Table 16.1. The Committee further noted that the strength of the inspectorate was inadequate and that, in some cases, the Inspectors concentrated more on technical aspects of factory inspection than on human aspects such as employment, hours of work, working conditions, and so on.
Source: Government of India (1946). Labour Investigation Committee—Main Report, p. 41.
Factories Act, 1948
A comprehensive Bill was prepared by the Government of India on the general lines approved in the 9th meeting of the Standing Labour Committee, and in the light of the discussions held by the Chief Inspectors of Factories of the provincial governments. The Factories Act, 1937, of Great Britain was taken as a useful guide in drafting the Bill. It was introduced in the Dominion Assembly on the 3 December 1947. The Bill was passed on the 28 August 1948 and received the assent of the Governor General on 23 September 1948. The Act, thus passed, came into force on 1 April 1949. Significant amendments were introduced in the Act in 1954, 1976 and 1987. The main provisions of the Act, as they stand amended till date, are summarized above.
SOME IMPORTANT DEFINITIONS
Some important definitions under the Act are given in Box 16.5.
SOME IMPORTANT DEFINITIONS UNDER THE FACTORIES ACT, 1948
Factory: The Act defines a “factory” as “any premises including the precincts thereof: (a) whereon ten or more workers are working or were working on any day of the preceding twelve months, and in any part of which, manufacturing process is being carried on with the aid of power or is ordinarily so carried on; or (b) whereon twenty or more workers are working or were working on any day of the preceding 12 months and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on.” [Sec 2 (m)]. The state governments are, however, empowered to apply the provisions of the Act to any premises, irrespective of the employment therein, where manufacturing process is carried on with or without the aid of power except where the work is done by the worker solely with the help of the members of his family. [Sec. 85].
Manufacturing Process: Manufacturing process includes the following:
Making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal
Pumping oil, water or sewage or any other substance
Generating, transforming or transmitting power
Composing types of printing, printing by letter press, lithography, photogravure or other similar process or book binding
Constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels
Preserving or storing any article in cold storage. [Sec.2(k)].
Child: Means a person who has not completed his fifteenth year of age. [Sec.2(c)].
Adolescent: Means a person who has completed his fifteenth year of age but has not completed his eighteenth year. [Sec.2 (b)].
Young Person: Means a person who is either a child or adolescent. [Sec.2 (d)].
Adult: Means a person who has completed his eighteenth year of age. [Sec.2(a)].
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 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. [Sec.2(l)].
A new provision regarding approval, licensing and registration of factories has been introduced in the Act. The designs and layout of many factory buildings and machineries had been unsatisfactory prior to the enactment of the Factories Act, 1948. The new provision authorizes the state governments to frame rules regarding approval, licensing and registration of factories in order that compliance with the provisions relating to health, safety and welfare could be ensured. Prior approval by the state government or the Chief Inspector of Factories is necessary, for the site and construction of new factories and the extension of the existing ones. Plans and specifications have to be submitted for the same. The registration and licensing of factories are to be made on the payment of prescribed fees. Fees are also to be paid at the time of renewal [Sec.6].
Though the Act is a central legislation, the main responsibility for its enforcement rests with the state governments. The Act empowers the state government to appoint Inspectors of Factories and to prescribe their qualifications and conditions of work. The state government may appoint a Chief Inspector of Factories who, in addition to powers conferred on him, is to exercise the powers of an Inspector throughout the state. The state government is also empowered to appoint Additional Chief Inspectors, Joint Chief Inspectors and Deputy Chief Inspectors and other officers to assist the Chief Inspector. The Act also provides for the appointment of local public servants as Additional Inspectors. Every District Magistrate is also an Inspector for his district. The powers and duties of the Inspectors are specified in the Act [Secs. 8–9].
The state government may also appoint qualified medical practitioners as certifying surgeons. The certifying surgeons are required to discharge their duties in connection with examination and certification of young persons, and of persons engaged in dangerous occupations or processes. They may also exercise medical supervision in a factory where cases of illness have occurred due to manufacturing process or other conditions of work, or where such cases have been suspected or where there is a likelihood of injury to health owing to adoption of a new manufacturing process or use of a new substance [Sec.10].
Provisions relating to health include measures in respect of the particular methods of cleanliness, disposal of wastes and effluents, ventilation and temperature, dust and fume, artificial humidification, overcrowding, lighting, drinking water, latrines and urinals, and spittoons.
Every factory has to be kept clean and free from effluvia arising from any drain, privy or other outlets. Accumulations of dirt and refuse are to be removed daily. The floor of every workroom is to be cleaned at least once every week by washing or other suitable method. Effective means of drainage have to be provided and maintained, in case a floor is liable to become wet in the course of any manufacturing process. Inside walls and partitions, all ceilings and walls of rooms, passages and staircases are to be repainted and revarnished at least once every 5 years where they are painted, otherwise with washable water paint, and every 3 years where they are painted with washable water paint; cleaned in the prescribed manner at least once in every 14 months; and, in other cases, are to be kept white-washed or colour-washed at least once in every 14 months. All doors and window frames and other wooden or metallic framework and shutters are also to be kept painted or varnished, and repainting or revarnishing is to be carried out at least once in every 5 years. The state government is empowered to make exempting orders in certain cases [Sec. 11].
Disposal of Wastes and Effluents
Effective arrangements have to be made in every factory for the treatment of wastes and effluents due to manufacturing process, so as to render them innocuous for disposal [Sec.12].
Ventilation and Temperature
Effective and suitable provision has to be made in every factory for securing and maintaining adequate ventilation by circulation of fresh air. Besides, reasonable temperature must be maintained in every workroom. Walls and roofs are to be of such material and so designed that the temperature is kept as low as practicable. Where the nature of work involves production of excessively high temperature, the process which produces such temperature should be separated by insulating the hot parts or by other means. The state government may prescribe standards of adequate ventilation and reasonable temperature for any factory [Sec. 13].
Dust and Fumes
Effective measures must be taken to prevent inhalation and accumulation of dust and fumes in any workroom. In case any exhaust appliance is necessary, it has to be applied, as near as possible, to the point of origin of the dust, fumes or other impurity. Wherever possible such points should be enclosed. No stationary internal combustion engine is to be operated unless the exhaust is conducted in the open air. An internal combustion engine is not to be operated unless effective measures have been taken to prevent accumulation of fumes [Sec. 14].
In respect of all factories where humidity of air is artificially increased, the state government may make rules regarding standards of humidification, methods to be used for artificially increasing the humidity, tests for determining the humidity of the air, and methods to be adopted for securing adequate ventilation and cooling of the air in the workrooms. The water used for the purpose should be taken from a public supply of drinking water or other source or to be purified before it is used [Sec. 15].
The Act also provides measures for avoiding overcrowding in the workrooms. There must be, in every workroom of a factory in existence, on the date of the commencement of the Act, at least 9.9 cubic metre of space for every workman. The minimum space has to be at least 14.2 cubic metre for factories built after the commencement of the Act. In this regard no account has to be taken of any space which is more than 4.2 metre above the level of the floor of the workroom. The Chief Inspector of Factories may, by order, require an employer to specify the maximum number of workers to be employed in the room. He may also make exempting orders if he is satisfied that compliance with these provisions is unnecessary in the interest of the health of the workers [Sec. 16].
Sufficient and suitable lighting, natural or artificial, or both, has to be provided and maintained in every part of a factory where workers are employed. For this purpose, all glazed windows and skylights should be kept clean on both inner and outer surfaces. As far as practicable, formation of glare and shadows should be prevented. The state government may prescribe standards of sufficient and suitable lighting [Sec. 17].
In every factory, effective arrangements have to be made to provide and maintain a sufficient supply of wholesome drinking water at suitable points. All such points have to be clearly marked ‘Drinking Water’ in a language understood by majority of the workers employed in the factory. Such points are not to be situated within 6 metre of any working place, urinal or latrine, spittoon, open drain carrying sullage or effluent or any other source of contamination, unless a shorter distance is approved by the Chief Inspector. In every factory wherein more than 250 workers are employed, provision has to be made for cooling drinking water during hot weather and for its proper distribution [Sec. 18].
Latrines and Urinals
Sufficient latrine and urinal accommodation of prescribed types has to be provided at suitable places and made accessible to workers at all times while they are at the factory. Separate enclosed accommodation has to be provided for male and female workers. Such accommodation has to be adequately lighted and ventilated and maintained in a clean and sanitary condition at all times. Sweepers have to be employed to keep latrines, urinals and washing places clean. In every factory, where more than 250 workers are ordinarily employed, all latrine and urinal accommodation is to be of prescribed sanitary types. The floors and internal walls of the latrines and urinals up to the height of 3 feet have to be laid in glazed tiles or otherwise finished, so as to provide smooth polished impervious surface. Floors, partitions of the walls and blocks and sanitary pans of latrines and urinals are to be thoroughly washed and cleaned at least once in every 7 days, with suitable detergents or disinfectants or with both. The state government is empowered to prescribe the number of latrines and urinals in proportion to the number of male and female workers ordinarily employed therein and may, also, provide for other matters in respect of sanitation in factories [Sec. 19].
In every factory sufficient spittoons have to be provided at convenient places and maintained in a clean and hygienic condition. The state government may make rules prescribing the type and the number of spittoons to be provided and their location in any factory. No person is to spit within the premises of a factory, except in the spittoons and whosoever spits in contravention to this provision, is punishable with a fine up to 5 [Sec. 20].
Safety provisions occupy a prominent place in the Act. Greater speed and increase in mechanization have tended to increase industrial hazards. New provisions relating to safety have been directed towards reducing industrial hazards to the minimum. Attempts have been made to keep the provisions at par, with the standards adopted by industrially advanced countries of the world. Some of the safety provisions have been discussed in detail.
Fencing of Machinery
Every moving part of a prime mover and every flywheel connected to a prime-mover, the head-race and tail-race of every water wheel and water turbine and, if necessary, every part of an electric generator, motor or rotary convertor, every part of transmission machinery and every dangerous part of any other machinery, must be securely fenced by safeguards of substantial construction. The state government is empowered to make rules in this regard [Sec. 21].
Work On or Near Machinery in Motion
If it is necessary to examine any part of a machinery while it is in motion, the examination has to be carried out only by specially trained adult workers wearing tight-fitting clothing. Such a worker is not to be allowed to handle a belt at a moving pulley unless the belt is less than 6 inches in width and the belt-joint is either laced or flush with the belt. Women and young persons are not allowed to clean, lubricate or adjust any part of a prime-mover or of transmission machinery, while it is in motion [Sec. 22].
Employment of Young Persons on Dangerous Machines
A young person is not to be allowed to work at any machine, unless he has been sufficiently instructed of the dangers arising in connection with the machine, and the precautions to be observed. Besides, he should have received sufficient training in work at the machine or be under adequate supervision of an experienced person before he is allowed to work on such a machine. The state government is empowered to prescribe the machines on which young persons are not to be employed [Sec. 23].
Striking Gear and Devices for Cutting off Power
Suitable striking gear or other efficient mechanical appliance has to be provided, maintained, and used to move driving belts. Effective measures have to be made to ensure prevention of the belt from creeping back onto the fast pulleys. When the driving belts are not in use, they should not be allowed to rest on shafting in motion. Suitable devices have to be provided and maintained for cutting off power in emergencies. When a device, which can inadvertently shift from ‘off’ to ‘on’ position is provided in a factory to cut off power, arrangements have to be made for locking the device in safe position to prevent accidental starting of the transmission machinery or other machines to which the device is fitted [Sec. 24].
The Act provides that no traversing part of a self-acting machine in any factory is to run on its outward or inward traverse within a distance of 18 inches from any fixed structure which is not part of the machine, if a person is liable to pass over the space over which it runs. The Chief Inspector of Factories may make exempting orders in case of factories installed before the commencement of the Act [Sec. 25].
Casing of New Machinery
In every factory installed after the commencement of the Act, every set-screw, bolt or key on any revolving shaft, spindle, wheel or pinion, spur, worm and other toothed or friction-gearing, has to be properly encased or guarded in order to prevent danger to the workmen. Persons are also prevented from selling or hiring these machineries without proper casing or guarding. The state government is empowered to make rules specifying further safeguards to be provided in this regard [Sec. 26].
Prohibition of Employment of Women and Children Near Cotton Openers
Women and child workers are prevented from being employed in any part of a factory for pressing cotton in which a cotton opener is at work. However, they may be employed on the side of the partition where the feed-end is situated, if the feed-end of the cotton opener is separated from the delivery end by a partition. But in this case, a written permission obtained from the Inspector is necessary [Sec. 27].
Hoists, Lifts, Lifting Machines and Others
Hoists and lifts are to be of good mechanical construction and of sound material. They are to be properly maintained and examined by a competent person at least once in every 6 months. The hoistway and the liftway are to be properly enclosed. The maximum safe working load has to be plainly marked on every hoist and lift. The cage of a hoist or lift used for carrying persons has to be fitted with a gate on each side. The state government is given power to make exemption from compliance with these provisions of the Act. Similar provisions are applicable in respect of other lifting machines, chains, ropes and lifting tacks [Secs. 28–29].
Where the process of grinding is carried on, a notice indicating the maximum safe working peripheral speed of every grindstone or abrasive wheel, has to be properly exhibited. It must also contain the safe speed of the shaft or spindle upon which the wheel in mounted. Safe working peripheral speed of every revolving vessel cage, basket, flywheel, pulley or disc has, also, to be ensured [Sec. 30].
Where the work requires more than the general atmospheric pressure, effective arrangements have to be made to ensure the safe working pressure. The state government may make rules providing for the examination and testing of any plant or machinery and pressures. The state government is also empowered to make exemption orders [Sec. 31].
Floors, Stairs and Means or Access
Floors, steps, stairs, passages and gangways should be of sound construction and properly maintained. If necessary, handrails should also be provided. As far as possible, safe means of access should be provided to every person in every factory. When any person has to work at a place from where he is likely to fall a distance exceeding 2 metres, provision has to be made by fencing or otherwise to ensure the safety of the person so working [Sec. 32].
Every fixed vessel, sump, tank, pit or opening in the ground or in a floor considered to be a source of danger, has to be securely covered or fenced. Exempting orders may be made by the state government [Sec. 33].
The Act also provides that no person is to be employed in any factory to lift, carry or move any load which is likely to cause him injury. The state government may prescribe the maximum weights to be lifted, carried, or moved by adult men, adult women, adolescents and children [Sec. 34].
Protection of Eyes
The state government may require the provision of effective screens or suitable goggles, if risk of injury to the eyes is caused from particles thrown off in the manufacturing process or from exposure to excessive light [Sec. 35].
Precautions Against Dangerous Fumes, Gases and Others
A person is not allowed to enter any chamber, tank, vat, pipe, flue or other confined space in which dangerous fumes are likely to be present to an extent involving risks to persons. A person can enter such a space only when it is provided with a manhole of adequate size or other effective means of ingress. A person may be permitted to enter such a space only when all practicable measures have been taken to remove any fumes which may be present and to prevent any ingress of fumes. Suitable breathing apparatus, reviving apparatus and belts and ropes have to be kept ready for use in emergencies. Sufficient number of persons employed in the factory should be trained in the use of all such apparatus and in the method of restoring respiration. The state government may prescribe the maximum dimension of the manholes and may also make exempting orders [Sec. 36].
Precautions Regarding Use of Portable Electric Light
No portable electric light or any other electric appliance of voltage exceeding 24 volts is to be permitted for use inside any chamber, tank, vat, pit, pipe, flue or other confined space. If any inflammable gas, fume or dust is likely to be present in such a space, no lamp or light other than that of flame-proof construction is to be permitted to be used therein [Sec. 36A].
Explosive or Inflammable Dust, Gas
If the manufacturing process produces explosive or inflammable dust, gas, fume or vapour, all practicable measures have to be taken to prevent explosion by (i) effective enclosure of the plant or machinery used in the process, (ii) removal or prevention of the accumulation of such dust, gas, fume or vapour, and (iii) exclusion of effective enclosure of all possible sources of ignition. The state government may exempt any factory or class or description or factories from this provision, subject to prescribed conditions [Sec. 37].
Precautions in Case of Fire
Every factory has to be provided with adequate means of escape in case of fire. The exit doors should not to be locked or fastened in such a way that they cannot be opened easily from inside, and all such doors (except in the case of the sliding types) have to be so constructed as to open outwards. The exits to be used in the case of fire, have to be marked in a language understood by the majority of the workers employed there. Effective and clearly audible means of giving warning in the case of fire have to be provided. A free passageway giving access to each means of escape in case of fire has to be maintained for the use of workers in every room of a factory. The state government may make rules prescribing the means of escape to be provided and maintained. The Chief Inspector is empowered to prescribe necessary detailed measures to be adopted in accordance with the provisions of the Act and rules made by the state government. The Inspector is also empowered to order in writing, requiring the provision of additional means of escape, if in his opinion the prescribed means of escape are not adequate [Sec. 38].
Specifications of Defective Parts or Tests of Stability
The Inspector of Factories may require specification of defective parts or tests of stability and to this effect may ask the manager of the factory to furnish drawings, specifications and other necessary particulars and may also require him to carry out specified tests in a specified manner [Sec. 39].
Safety of Buildings and Machines
If it appears to the Inspector, that any building or its part or any part of the ways, machinery or plant in a factory, is in such a condition that it is dangerous to human life or safety, he may require the occupier or manager or both, by an order in writing, to adopt specified measures within a prescribed time. He may also prohibit the use of a building, its part or any part of the ways, machinery or plant in a factory if it involves imminent danger to human life or safety until it has been properly repaired or altered. If it appears to the Inspector that any building or part of a building in a factory, is in such a state of disrepair as is likely to lead to conditions detrimental to the health and welfare of the workers, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures to be adopted and requiring its compliance before a specified date [Secs. 40 and 40A].
The state government may require the occupier of a factory (i) wherein one thousand or more workers are ordinarily employed or (ii) wherein, in the opinion of the state government, any manufacturing process or operation is carried on, and the process or operation involves any risk or bodily injury, poisoning or disease or any other hazard to health, to the persons employed in the factory, to employ such number of Safety Officers as may be specified in the notification. The qualifications and conditions of service of Safety Officers are to be prescribed by the state government [Sec.40B]. The provision for the appointment of Safety Officers was made by an amending Act of 1976, keeping in view the recommendations of the first National Commission on Labour.3
Power to Make Rules
The state government is empowered to make rules requiring the provision in any factory of further devices and measures for securing the safety of persons employed therein [Secs. 39–40].
If the state government is of the opinion that a manufacturing process or operation carried on in a factory exposes any persons employed in it to a serious risk of bodily injury, poisoning or disease, it may make rules (i) specifying the process or operation and declaring it dangerous, (ii) prohibiting or restricting the employment of women, adolescents or children in it, (iii) providing for the periodical medical examination of persons employed in the processes or operation and prohibiting the employment of persons not certified as fit; (iv) providing for the protection of all persons employed in it or in the vicinity of the places where it is carried; (v) prohibiting, restricting or controlling the use of any specified materials or processes in connection with the process or operation; and (vi) requiring the provision of additional welfare amenities and sanitary facilities and supply of protective equipment and clothing and laying down standards [Sec. 87].
If in the opinion of the Inspector of Factories the conditions in a factory or its part are such that they may cause serious hazard by way of injury or death to the persons employed there or to the general public in the vicinity, he may prohibit the occupier from employing any person in the factory or its parts, except the minimum number of persons necessary to attend to the minimum tasks till the hazard is removed. The order of the Inspector is effective for 3 days but the Chief Inspector may extend it further. A person aggrieved by the order of the Inspector or Chief Inspector has the right to appeal to the High Court. A person whose employment has been affected, is entitled to wages and other benefits and it will be the duty of the occupier to provide alternative employment to him wherever possible [Sec. 87A].
Notice of Certain Accidents
The manager of a factory is required to send to the prescribed authorities notice of accidents causing death, or any bodily injury by reason of which the injured person is prevented from working for a period of 48 hours or more and of prescribed accidents. In case of an accident causing death, the authority concerned is to make an inquiry within a month of the receipt of the notice [Sec. 88].
Notice of Certain Dangerous Occurrences
The manager of a factory is required to send notice to the prescribed authorities of any dangerous occurrence as may be prescribed whether it causes bodily injury or disability or not [Sec. 88A].
Notice of Certain Diseases
If a worker in a factory contracts any disease specified in the Third Schedule of the Act, the manager is required to send its notice in the prescribed form to the prescribed authority. The diseases specified in the Schedule include lead poisoning, lead tetra-ethyl poisoning, phosphorus poisoning, mercury poisoning, manganese poisoning, arsenic poisoning, poisoning by nitrous fumes, carbon bisulphide poisoning, benzene poisoning, chrome ulceration or its sequelae, anthrax, silicosis, beryllium poisoning, carbon monoxide, coal miners’ silicosis, carbon monoxide, coal miners’ pneumoconiosis, phosgene poisoning, occupational cancer, isocyanates poisoning and toxic nephritis. The central government is empowered to add to or alter the Third Schedule. Such addition or alteration has the effect as if it had been made by the Act. A medical practitioner attending on a person infected by the disease is required to send report to the Chief Inspector without delay. If the contracting of the disease is confirmed, the medical practitioner is to be paid the prescribed fee by the occupier [Sec. 89].
Inquiry into Cases of Accident or Disease
The state government may appoint a competent person to inquire into the causes of any accident or the contracting of a disease specified in the Third Schedule and also persons possessing legal or special knowledge to act as assessors in such an inquiry. The person holding the inquiry has the powers of a Civil Court for relevant purposes. The inquiring officer is required to make a report to the state government which may publish the report [Sec. 90].
Power to Take Samples
An Inspector is empowered to take sufficient sample of any substance used or intended to be used in a factory if in his opinion, the use of the substance is in contravention of the provisions of the Act or rules or it is likely to cause bodily injury or injury to the health of workers in the factory. The sample is to be divided into three portions and sealed separately. One portion is to be given to the occupier or manager or other person in charge of the factory, the second is to be sent to the government analyst and the third is to be retained by the Inspector for production before the Court, if required [Sec. 91].
The Chief Inspector of Factories or the Director General of Factory Advice Service and Labour Institutes or the Director General of Health Services, Government of India or an officer authorized by either of them may undertake safety and occupational health surveys. However, a prior notice in writing to the occupier or manager or other person in charge of the factory at the time is necessary. The person to whom notice is given is required to afford all facilities for such a survey including facilities for the examination and testing of plant and machinery and collection of samples and other data relevant to the survey. The workers, if so required, have to present themselves to undergo necessary medical examination and furnish relevant information. They are entitled to wages and overtime payment for the time spent in medical examination or in furnishing the required information which is to be considered to be the time during which they worked in the factory [Sec. 91A].
PROVISIONS RELATING TO HAZARDOUS PROCESSES
Provisions relating to hazardous processes were inserted in the Act under a new chapter by the Factories (Amendment) Act, 1987, which also amended various sections of the principal Act and added many new sections which have been discussed at the appropriate places. The amending Act also inserted two new schedules—one, listing the industries involving hazardous processes and the other, relating to permissible levels of certain chemical substances in work environment. The new provisions concerned with hazardous processes relate to constitution of site appraisal committees, compulsory disclosure of information by occupier and his special responsibility in regard to these processes, appointment of inquiry committee, emergency standards, permissible limits of exposure of chemical and toxic substances and workers’ participation in safety management.
Constitution of Site Appraisal Committee
The state government is empowered to appoint a site appraisal committee, for advising it on consideration of applications for the grant of permission for the initial location of a factory involving a hazardous process, or for the expansion of such a factory. A site appraisal committee is to consist of: Chief Inspector of Factories of the State as Chairman; a representative each of the Central Boards for the prevention and control of Water and Air Pollution; a representative each of the State Boards for the prevention and control of Water and Air Pollution; a representative of the Department of Environment of the state; a representative of the Meteorological Department of the Government of India; an expert in occupational health; a representative of the Town Planning Department of the state government; and not more than five other members co-opted by the state government. The Committee is required to examine the applications for the establishment of a factory involving hazardous processes and make recommendations to the state government within 90 days of the receipt of the applications. If the process relates to a factory owned or controlled by the central government, a representative of the central government has to be co-opted in the Committee. When the state government has granted approval to an application for the establishment or expansion of a factory involving a hazardous process, it will not be necessary to obtain a further approval from central or state Water and Air Pollution Control Boards [Sec. 41A].
Compulsory Disclosure of Information
The occupier of every factory involving a hazardous process is required to disclose to the workers employed in the factory, the Chief Inspector of Factories, the concerned local authority and the general public in the vicinity, all information regarding dangers arising from the exposure to or handling of materials or substances in the manufacture, transportation, storage and other processes. The information should include accurate information as to the quantity, specifications and other characteristics of wastes and the manner of their disposal. At the time of registration of the factory involving a hazardous process, the occupier must lay down a detailed policy with respect to the health and safety of workers employed there, and intimate the policy and subsequent change in it to the Chief Inspector and local authority.
The occupier is further required, with the approval of the Chief Inspector, to draw up an on-site emergency plan and detailed disaster control measures for his factory and intimate to the workers of the factory and the general public in the vicinity, the safety measures to be taken in the event of an accident taking place. The occupier must also lay down measures for the handling, usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside the factory premises and publicize them among workers and the general public in the vicinity. Contravention of these provisions may lead to the cancellation of licence issued to such a factory [Sec. 41B].
Special Responsibility of the Occupier in Relation to Hazardous Processes
The occupier of a factory involving any hazardous process has the special responsibility for: (i) maintaining accurate and up-to-date health and medical records of workers exposed to any chemical, toxic or any other harmful substances manufactured, stored, handled or transported; (ii) appointing qualified, experienced and competent persons in handling such substances to supervise the handling and for protecting the workers from the hazard; and (iii) providing for medical examination of every worker at intervals [Sec. 41C].
Appointment of Inquiry Committee
In the event of the occurrence of an extraordinary situation involving a factory engaged in a hazardous process, the central government may appoint an inquiry committee to inquire into the standards of health and safety observed in the factory, with a view to finding out the causes of any failure or neglect in the adoption of any measures or standards prescribed for the health and safety of the workers in the factory or the general public in the vicinity, and for the prevention of such extraordinary situations in future. The inquiry committee will consist of a chairman and two other members appointed by the central government, which will also determine the terms of reference and tenure of office of the members. The recommendations of the committee are to be advisory in nature [Sec. 41D].
If the central government is satisfied that no standards of safety have been prescribed in respect of a hazardous process, or where the prescribed standards are inadequate, it may direct the Director General of Factory Advice Service and Labour Institutes or any institution specialized in these matters, to lay down emergency standards in respect of such hazardous processes. So long as these emergency standards are not incorporated in the rules, they are to remain enforceable as if they have been incorporated in the rules [Sec. 41E].
Permissible Limits of Exposure of Chemical and Toxic Substances
The Second Schedule of the Act specifies the maximum permissible threshold limits of exposure of chemical and toxic substances in manufacturing processes. The central government may make suitable changes in the Schedule [Sec. 41F].
Workers’ Participation in Safety Management
In every factory where a hazardous process takes place or where hazardous substances are used or handled, the occupier is required to set up a safety committee, consisting of equal number of representatives of workers and management. The function of the safety committee will be to promote cooperation between the workers and the management in maintaining proper safety and health at work, and to review periodically the measures taken. The composition, tenure of office of its members and their rights and duties are to be prescribed by the state government, which is also empowered to exempt an occupier from establishing such a committee [Sec. 41G].
Right of Workers to Warn about Imminent Danger
Where the workers employed in any factory engaged in hazardous process apprehend that there is likelihood of imminent danger to their lives or health due to any accident, they have the right to bring the same to the notice of the occupier, agent, manager or a person in charge of the process or factory and to the Inspector of Factories. The occupier or the concerned person is, then, required to take immediate remedial action if he is satisfied about the existence of such imminent danger and send a report to the nearest Inspector. If he is not satisfied about its existence, he has to refer the matter to the nearest Inspector whose decision will be final [Sec. 41H].
The welfare provisions of the Act relate to: washing facilities, facilities for storing and drying clothing, facilities for sitting, first aid appliances, canteens, shelters, rest rooms and lunch rooms, crèches, and appointment of Welfare Officers.
Adequate and suitable washing facilities for the use of men and women workers, separately, have to be provided and maintained in every factory. These facilities should be easily accessible and kept clean. The state government is empowered to prescribe standards of adequate and suitable facilities for washing [Sec. 42].
Facilities for Storing and Drying Clothing
The state government may make rules requiring the provision of suitable places for keeping clothing not worn during working hours, and for drying of wet clothing [Sec. 43].
Facilities for Sitting
Suitable sitting arrangements have to be made for all workers who perform their work in a standing position, so that they may avail themselves of any opportunity to sit at the time of rest. If the Chief Inspector of Factories is convinced that the work can be efficiently performed in a sitting position, he may require the employer to make sitting arrangements for all such workers. The state government may also make exempting orders [Sec. 44].
First Aid Facilities
First aid boxes or cupboards containing nothing except prescribed contents have to be kept in every factory. Each first-aid box or cupboard is to be kept in charge of a separate responsible person holding a certificate in first-aid treatment, recognized by the state government. Such a person should always be readily available during the working hours of the factory. The number of such boxes is not to be less than one for every 150 workers ordinarily employed in the factory. In every factory, where more than 500 are ordinarily employed, an ambulance room has to be provided and maintained. Only prescribed contents and equipments are to be kept in the ambulance room which is to be kept in charge of medical and nursing staff, as prescribed by the state government. These facilities should be readily available during the working hours of the factory [Sec. 45].
Canteens, Shelters, Rest Rooms and Lunch Rooms
In every factory where more than 250 workers are ordinarily employed, the state government may make rules requiring the provision and maintenance of a canteen or canteens for the use of workers. The rules may provide for the standards in respect of construction, accommodation, furniture and other equipments of the canteen; food stuffs to be served and their charges; constitution of the managing committee for the canteens; the items of expenditure in the running of the canteen which are not to be taken into account while fixing the cost of food stuffs, and which are to be borne by the employer; and the date by which such canteen is to be provided.
The Act also provides for the provision and maintenance of shelter or rest rooms and a suitable lunch-room in every factory where more than 150 workers are ordinarily employed. A canteen managed in accordance with the provisions of the Act, may be treated as a part of the obligation for maintaining a shelter or rest-room. These rooms are to be kept sufficiently lighted and ventilated and maintained in a cool and clean condition. No workman is allowed to take his meal in the workroom. The state government may make rules in respect of standards of construction, accommodation, furniture and other equipments of shelters, rest rooms and lunch rooms, and may also exempt any factory or class or description of factories from compliance with these provisions [Secs. 46–47].
The Act also requires the provision and maintenance of crèche in every factory where more than 30 women workers are ordinarily employed. Crèches must have adequate accommodation and are to be adequately lighted and ventilated and maintained in clean and sanitary condition. Trained women are to be appointed to take care of children and infants in the crèches. The state government is also empowered to make rules pertaining to the location, standards of construction, furniture and other equipments of rooms, additional facilities for the care of children, distribution of free milk or refreshment and regular feeding of children [Sec. 48].
In every factory where 500 or more workers are ordinarily employed, the occupier is required to employ such number of Welfare Officers as may be prescribed by the state government. The state government is empowered to prescribe the duties, qualifications and conditions of service of Welfare Officers [Sec. 49].
Power to Make Welfare Rules
The state government may also frame rules relating to exemptions from welfare provisions on prescribed conditions, and the association of representatives of workers with the management in welfare arrangements for the workers [Sec. 50].
GENERAL PROVISIONS ON HEALTH, SAFETY AND WELFARE
A few new provisions having a bearing on health, safety and welfare were added in the Act by an amendment of 1987. Some of these and others are mentioned in Box 16.6.
GENERAL DUTIES OF THE OCCUPIER IN REGARD TO HEALTH, SAFETY AND WELFARE
The provision and maintenance of plant and systems of work that are safe and without risk to health.
The arrangements in the factory for ensuring safety and absence of risk to health in connection with the use, handling, storage and transport of articles and substances.
The provision of such information, instruction, training and supervision as are necessary for ensuring the health and safety of all workers at works.
The maintenance of all places of work in the factory in a safe condition and without risk to health and provision and maintenance of safe and un-risky means of access to and from such places.
Provision, maintenance or monitoring of such working environment that is safe, without risks to health and adequate in regard to facilities and arrangements for the welfare of workers at work. The occupier is also required to prepare a written statement of his general policy with respect to the health and safety of the workers at work and the organization and General Duties of the Occupier in Regard to Health, Safety and Welfare arrangements for carrying out that policy and to bring the statement and revision made, to the notice of all the workers in the prescribed manner [Sec. 7A].
The occupier of every factory is required to ensure health, safety and welfare of all workers while they are at work. The duties of the occupier in this regard are mentioned in Box 16.6.
General Duties of Manufacturers Regarding Articles and Substances for Use in Factories
Persons designing, manufacturing, importing or supplying any article for use in a factory are required: (i) to ensure that the article is so designed and constructed as to be safe and without risks to the health of the workers—when used properly; (ii) to carry out necessary tests and examination of the article; and (iii) to take necessary steps to ensure that adequate information is available in connection with the use of the article and the conditions necessary for its safe use. Where the article is designed or manufactured outside India, it is obligatory on the part of the importer to see that the article conforms to the standards prevalent in India or is of a higher standard.
A person undertaking to design or manufacture any article for use in a factory may carry out research with a view to the discovery and the elimination or minimization of any risks to the health and safety of the workers. He may not carry out the research if the testing, examination or research done by other agencies can be relied on. The obligation of the designer or manufacturer is to extend only to things done in the course of business carried on by him and to matters within his control. Where the designer, manufacturer, importer or supplier of an article obtains a written undertaking from the user to take specified steps to ensure that the article will be safe and without risks to the health of the workers when properly used, he is absolved of his duty to the extent as laid down in the terms of the undertaking. An article is not to be regarded as properly used if it is used without regard to any information or advice relating to its use which has been made available by the designer, manufacturer, importer or supplier [Sec. 7B].
Right of Workers Relating to Health and Safety
Every worker employed in a factory has the right to: (i) obtain from the occupier, information relating to workers’ health and safety at work; (ii) get trained within the factory wherever possible, or, to get himself sponsored by the occupier for getting trained at a training centre or institute imparting training in workers’ health and safety as approved by the Chief Inspector of Factories; and (iii) represent to the Inspector in the matter of inadequate provision for protection of his health or safety in the factory [Sec. 111A].
Obligations of Workers
Every worker in a factory is under the obligation not to: (i) wilfully interfere with or misuse any appliance, convenience or other thing provided in the factory for the purposes of securing the health, safety or welfare of workers; (ii) wilfully and without reasonable cause do anything likely to endanger himself or others; and (iii) wilfully neglect to make use of any appliance or other thing provided for the purpose of securing the health or safety of the workers [Sec. 111].
WORKING HOURS OF ADULT WORKERS
Daily and Weekly Hours of Work, Intervals for Rest and Spreadover
The hours of work of adult workers are not generally to exceed 9 in a day and 48 in a week. The period of work in a day is to be fixed in such a manner that no workman is required to work more than 5 hours continuously. A rest interval of at least half an hour is to be given to every adult workman. The period of spreadover, inclusive of the period of rest, is not to be more than 10 and 1/2 hours in a day, but the Chief Inspector for reasons specified in writing, may increase the spreadover up to 12 hours [Secs.51, 54, 55, 56].
In certain cases, these requirements may be relaxed by the Chief Inspector of Factories. The state government is empowered to make rules exempting persons holding supervisory, managerial and confidential positions from these requirements. The state government may also empower the Chief Inspector to declare persons not defined in the rules as holding positions of supervision or management or employed in a confidential position. The state government may make rules pertaining to exemptions from these provisions in respect of certain categories of adult workers. These are shown in Box 16.7.
POWER OF THE STATE GOVERNMENT TO MAKE RULES GIVING EXEMPTION FROM THE PROVISIONS RELATING TO DAILY AND WEEKLY HOURS OF WORK, INTERVAL FOR REST AND SPREADOVER IN RESPECT OF ADULT WORKERS ENGAGED IN:
Work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of the factory.
Work which is necessarily so intermittent that intervals during which they do not work, while on duty, ordinarily amount to more than the intervals for rest required under the Act.
Any work which for technical reasons must be carried on continuously.
The loading and unloading of railway wagons or lorries or trucks.
Any work which is notified by the state government as a work of national importance.
The state government may make rules exempting certain additional categories of workers from the requirements of this Act in respect of working hours. The categories of workers who may be exempted and the provisions from which exemptions may be made are indicated below.
Workers engaged in making or supplying articles of prime necessity which must be made or supplied every day—from provisions relating to weekly hours of work.
Workers engaged in manufacturing process which cannot be carried on except during fixed seasons—from provisions relating to weekly hours and daily hours of work.
Workers engaged in manufacturing process which cannot be carried on except at times dependent on the irregular action of natural forces—from provisions relating to intervals for rest.
Workers engaged in engine-rooms or boiler houses or in attending to power-plant or transmission machinery—from provisions relating to weekly hours of work.
Workers engaged in the printing of newspapers who are held up on account of the breakdown of machinery—from provisions relating to weekly hours, daily hours and spreadover.[Sec. 64].
While framing exempting rules, the state government is required not to exceed (except in respect of workers engaged on urgent repairs) daily hours of work to more than 10 hours; the period of spreadover (inclusive of interval for rest) to more than 12 hours; the total number of hours of work in a week including overtime to more than 60; and the total number of hours of overtime to 50 in any quarter. However, in respect of workers engaged in any work which, for technical reasons must be carried on continuously, these requirements may be waived in order to facilitate shift-work in absence of a worker, who has failed to report on duty. Rules, thus, framed are to remain in force for a period not exceeding 5 years.
The state government or subject to the control of the state government, the Chief Inspector of Factories may, by written order, exempt adult workers in a factory from any or all provisions relating to weekly hours, weekly holidays, daily hours and spreadover on the ground that the exemption is required to enable the factory to deal with exceptional pressures of work. Exemptions, thus, granted are subject to the conditions that (i) the total number of daily hours does not exceed 12; (ii) the spreadover, inclusive of intervals for rest, does not exceed 13 hours on a day; (iii) the total number of hours of work in any week including overtime does not exceed sixty; and (iv) no worker is to be allowed to work overtime for more than 7 days at a stretch and the total number of hours of overtime work in any quarter does not exceed 75 [Secs. 64–65].
The Act provides no exemption from the requirements of daily hours of work in respect of women. No woman is to be required or allowed to work in any factory except between 6 a.m. and 7 p.m. The state government may, however, vary the limits so laid down, but no such variation is to authorize the employment of women between 10 p.m. and 5 a.m. The state government may make rules permitting night work of women working in fish-curing or fish-canning factories where their employment beyond the specified limits of night work is necessary to prevent damage to raw materials. Further, no change of shifts for women is permissible except after a weekly holiday or any other holiday [Sec. 66].
The Act provides for at least one day of weekly rest to every workman employed in a factory. A substitute holiday may be provided but such a holiday is to fall on one of the 3 days immediately before or after the usual holiday and in no case the worker is to be required to work for more than 10 days consecutively [Sec. 52].
The state government is empowered to make exempting rules in respect of workers engaged in: (i) urgent repairs; (ii) any work which for technical reasons must be carried on continuously; (iii) making or supplying articles of prime necessity which must be supplied everyday; (iv) manufacturing process which cannot be carried except during fixed seasons; (v) manufacturing process which cannot be carried on except at times, dependent on irregular action of natural forces; (vi) engine-rooms or boiler-houses or attending to power-plant or transmission machinery; (vii) loading or unloading of railway wagons, or lorries or trucks; and (viii) any work notified by the state government—as a work of national importance.
Exempting Orders for Exceptional Pressure of Work
However, in any factory where a worker is deprived of any of the weekly holidays as a result of passing of an order or making of a rule by the state government, the worker is entitled to compensatory holidays equal to the number of holidays so lost within the month in which holidays were due to him, or within 2 months immediately following that month [Secs.43, 64, 65].
Extra Wages for Overtime
A worker working for more than 9 hours in any day or 48 hours in any week is entitled to wages at the rate of twice his ordinary rate of wages in respect of overtime work. Where the system of piece-rate for wage payment is practised, the state government, in consultation with the employer and representatives of workers, may fix time-rate equivalent to average rate of earnings of those workers. The rates so fixed are to be regarded as ordinary rates of wages for those workers. Ordinary rate of wages includes basic wage and other allowances to which the worker is entitled, and may include cash equivalent of concessional sale of food grains and other articles, but does not include a bonus and wages for overtime. The state government may frame rules prescribing the manner in which cash equivalent of the advantages accruing through concessional sale of food grains to worker and other articles may be determined [Sec. 59].
Register of Adult Workers
The manager of every factory is required to maintain a register of adult workers, showing the name of each worker in the factory, the nature of his work, the group in which he is included, the relay to which he is allotted (if his group works on shift), and other particulars prescribed by the state government. Such a register is to be made available to the Inspector at all times during working hours. The state government may prescribe the form of the register of adult workers, the manner in which it has to be maintained and the period for which it has to be preserved [Sec. 62].
Prohibition of Overlapping Shifts
The Act provides that no work is to be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers is engaged in work of the same kind at the same time. The state government is, however, empowered to make exemptions subject to prescribed conditions [Sec. 58].
A notice of work for adults showing clearly the periods during which adult workers are required to work daily, has to be displayed and correctly maintained in every factory. The periods shown in the notice must be fixed in accordance with relevant provisions of the Act. The state government may prescribe the forms of such notice and the manner in which it is to be maintained [Sec. 61].
EMPLOYMENT OF YOUNG PERSONS
The Act prohibits the employment of children below 14 in factories. A child who has completed his 14th year of age or an adolescent (a person between 15 and 18) is not to be employed in any factory, unless the manager of the factory has in his custody a certificate of physical fitness granted to such a child or adolescent, who is required to carry a token to this effect while at work [Secs. 67–68].
Certificate of Fitness
The application for the grant of certificate of fitness may be made by the young person or his parents or guardian, but such an application has to be signed by the manager of the factory to the effect that he will be employed in the factory, if certified to be fit for work. The manager of the factory himself may also apply for such a certificate. The Certifying Surgeon, after receiving an application, is required to examine him and ascertain his fitness for work in the factory. The Certifying Surgeon, after examination, may grant or renew a certificate of fitness to work in a factory as a child (if he is satisfied that the young person has completed his 14th year, that he has attained the prescribed physical standards, and that he is fit for such work) and as an adult (if he is satisfied that the young person has completed his fifteenth year and is fit for a full days’ work in a factory).
A certificate of fitness, thus, granted or renewed is valid only for a period of 12 months from the date of issue. When a Certifying Surgeon refuses to grant or renew a certificate or revokes a certificate, he is required on the request of any person who could have applied for the certificate or the renewal, to state his reasons for doing so in writing. Any fee payable in this regard has to be paid by the occupier of the factory and is not recoverable from the young person, his parents or guardian.
An adolescent who has been granted a certificate of physical fitness to work as an adult is to be treated as an adult. The provisions relating to hours of work and annual leave with wages applicable in the case of adult workers will also apply in the case of such an adolescent person. However, an adolescent who has not attained the age of seventeenth year is not to be employed or permitted to work in any factory except between 6 a.m. and 7 p.m. An adolescent who has not been granted a certificate of fitness to work in a factory as an adult, is to be considered a child for all the purposes of the Act. An Inspector may also require medical examination of young persons if he considers that any person without a certificate of fitness is a young person or that a young person having a certificate of fitness is a young person or that a young person having a certificate of fitness is no longer fit to work in such a capacity [Secs. 69–70].
Working Hours for Children
A child is not to be employed or allowed to work in any factory for more than four and half hours in any day, and during night (being a period of at least 12 consecutive hours which includes the interval between 10 p.m. and 6 a.m.).
The period of work of all children employed in a factory has to be limited to two shifts only. These shifts should not overlap or spreadover more than 5 hours each. Each child is required to work in only one of the relays which can be changed only once in 30 days. No exemption from the provision of weekly holidays is permissible in the case of children. A child is not to be required or allowed to work in any factory on any day on which he has already been working in another factory [Sec. 71].
The Act requires the manager of every factory to maintain a register of child workers showing the name of each child worker in the factory, the nature of his work, the group in which he is included, the relay to which he is allotted and the number of young persons who have been granted certificate of fitness. Such a register is to be made available to the Inspector at all times during working hours. No child worker is to be required or allowed to work in any factory unless his name and other particulars have been entered in the register. The state government may prescribe the form of register, the manner in which it is to be maintained and the period for which it has to be preserved [Sec. 73].
Notice of Periods of Work for Children
A notice of periods of work for children showing clearly the periods during which children may be required or allowed to work daily, has to be displayed and correctly maintained in every factory in which children are employed. A child is to be employed in any factory only in accordance with the notice of periods of work thus displayed [Sec. 72].
The state government is empowered to make rules prescribing the forms of certificates of fitness, fees to be charged for the issue of such certificates and their renewals, physical standards to be attained by children and adolescents and regulating the procedure of Certifying Surgeons and specifying their additional duties.
ANNUAL LEAVE WITH WAGES
The Act also contains provisions relating to annual leave with wages which are comparable to holidays with pay in some Western countries. It has been specifically provided that provisions in respect of annual leave with wages are not to operate ‘to the prejudice of any right which a worker may be entitled to under any other law or under the terms of any award, agreement or contract of service’. If such an award, agreement, settlement or contract of service provides for a longer annual leave with wages than provided in this Act, the worker is entitled to only such longer leave. These provisions do not apply to workers in any factory of any railway administered by the government [Sec. 78].
Every worker who has worked for a period of 240 days or more in any calendar year is to be allowed during the subsequent year, leave with wages amounting to at least 1 day for every 20 days of work in the previous year in case of adults, and at least 1 day for every 15 days of work in case of children.
The days of lay-off by agreement or contract or as permissible under Standing Orders, maternity leave for any number of days not exceeding 12 weeks (in case of female worker) and leave earned in the year prior to that in which leave is enjoyed, have to be included in calculating the days on which the worker has worked in the factory for computing the period of 240 days or more, but he is not entitled to earn leave for these days. The leave admissible has to be exclusive of all holidays whether occurring during or at either end of the period of leave. A worker whose service begins otherwise than on the first day of January is entitled to get leave with wages if he has worked for two-third of the total number of days in the remainder of the calendar year.
A discharged or dismissed worker is entitled to get leave with wages in accordance with these provisions, even if he has not worked for the entire period which entitles him to get leave. In making calculations, fraction of leave of half a day or more is to be treated as one full day’s leave and fraction of less than half a day, has to be omitted.
In case a worker does not avail himself of the whole of leave allowed to him, any leave not taken by him is to be added to the leave to be allowed to him in the succeeding calendar year, but the total number of days of leave that may be carried forward to a succeeding year is not to exceed 30, in case of an adult and 40, in case of a child. However, leave refused may be carried forward without any limit.
A worker is required to apply for leave at least 15 days before the date on which he wishes his leave to begin, but in case of public utility services, he has to apply at least 30 days in advance.
A worker who has been allowed leave for not less than 4 days, in case of an adult and 5 days, in the case of a child is to be paid wages due for the period of leave allowed before the commencement of his leave [Sec.81]. If a worker wants to get leave with wages to cover a period of illness, he is to be granted leave even if the application has not been made and in such a case, payment allowed in advance has to be made not later than 15 days, and in case of public utility services, not later than 30 days, from the date of application of leave.
The occupier or manager of the factory may lodge with the Chief Inspector, a scheme in writing to regulate grant of allowable leave after making an agreement with Works Committee or similar committee or representatives of the workers of the factory, for ensuring continuity of work. Such a scheme has to be displayed at convenient places and can remain in force only for 12 months from the date of its enforcement, but it may be renewed for a period of 12 months at a time. The display of scheme can be renewed by occupier or manager in agreement with the Works Committee or a similar committee or representatives of workers. Refusal to grant leave is not to be made except in accordance with such a scheme. A worker who has applied for leave with wages but has not been given such leave in accordance with any such scheme, is entitled to carry forward the unavailed leave without any limit.
If the employment of a worker who is entitled to leave is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and not having been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory has to pay to him the amount payable to him, in respect of the leave not taken. Such a payment has to be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker voluntarily quits his employment, on or before the next pay day. The unavailed leave of a worker is not to be taken into consideration in computing the period of any notice required to be given before discharge or dismissal [Sec. 79].
Wages During Leave Period
A worker is to be paid for the leave allowed to him at a rate equal to the daily average of his total full time earnings, for the days on which he actually worked during the month immediately preceding his leave, exclusive of any overtime but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of food grains and other articles. Any such sum payable by an employer which is not paid by him is recoverable as delayed wages under the Payment of Wages Act, 1936. The state government may make rules directing managers of factories to keep registers containing prescribed particulars. Where the state government is satisfied that the leave rules applicable to workers in a factory are not less favourable than the provisions of this Act, it may, by written order, exempt the factory from all or any of the provisions pertaining to annual leave with wages [Secs. 80–84].
Penalties for various kinds of offences under the Act are mentioned in Box 16.8.
PENALTIES UNDER THE FACTORIES ACT, 1948
General Penalties For Offences
Contravention of any provision of the Act or the rule made or order issued under the Act by the occupier or manager is punishable with imprisonment up to 2 years or with fine up to 1 lakh or both. Repeating the offence after first conviction is punishable with a further fine up to 1,000 for each day of the continuance of the offence. Subsequent conviction for the same offence is punishable with imprisonment up to three years or fine from 10,000 to 2 lakhs or both [Sec. 92].
The punishment for contravening the provisions relating to safety (Secs. 21 to 41) or those relating to dangerous operations (Sec. 87) is the same as mentioned in (1) above, but, in case the contravention results in death, the offender is punishable with a minimum fine of 25,000 and in the case of serious bodily injury with a minimum fine of 5,000. Repeating the offence after the first conviction is punishable with a fine which will not be less than 35,000 in case the accident results in death and 10,000 if it causes serious bodily injury [Secs. 92, 94].
Penalty for the Contravention of Provisions Relating to Hazardous Processes
If a person fails to comply with or contravenes any provisions relating to compulsory disclosure of information by the occupier (Sec. 41B) or specific responsibility of the occupier in relation to hazardous process (Sec. 41C) or right of the workers to warn about imminent danger (Sec. 41H) or the relevant rules, he is punishable with imprisonment up to 7 years and with a fine which may extend to 2 lakhs. In case the failure or contravention continues after the first conviction, the offender is punishable with an additional fine which may extend to 5,000 for every day during which the failure or contravention continues. If the failure or contravention continues beyond a period of one year after the date of conviction, the offender is punishable with imprisonment for a term which may extend to 10 years [Sec. 96A].
Penalty for Obstructing Inspector
Persons, who wilfully obstruct an Inspector in the exercise of any power conferred on him by the Act or fail to produce any required registers or documents or conceal or prevent any worker from appearing before or being examined by an Inspector, are punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to 10,000 or with both [Sec. 95].
Penalty for Wrongfully Disclosing Results of Analysis
Any person who publishes or discloses to any person, the results of an analysis made in regard to the samples of substances (Sec. 91) is punishable with imprisonment up to 6 months or with a fine up to 10,000 or with both [Sec. 96].
Penalty Relating to Casing of New Machinery
Persons selling or letting on hire any machinery driven by power, which is in contravention with the provisions of the Act or relevant rules, are punishable with imprisonment for a term which may extend to 3 months or with fine which may extend to 500 or with both [Sec.26].
Penalties for Offences by Workers and Parents
Except for the offences relating to obligations of workers (Sec. 111), contravention by workers of any provision of the Act or the relevant rules or orders is punishable with a fine which may extend to 500 [Sec. 97]. If a worker contravenes any provisions of the Act, rule or order relating to obligations of workers, he shall be punishable with imprisonment for up to 3 months or with a fine of up to 100 or with both [Sec. 111].
If a person knowingly uses a certificate of fitness granted to another person or knowingly allows it to be used by another person is punishable with imprisonment for a term which may extend to 2 months or with a fine which may extend to 1,000 or with both [Sec. 98].
A person who spits within the premises of factory except in the spittoons provided for the purpose is punishable with a fine not exceeding 5 [Sec. 2.
If the parent, guardian or a person having the custody of or control over a child obtains any direct benefit from his wages resulting from the double employment of the child is punishable with a fine which may extend to 1,000 [Sec. 99].
Penalty for Offence by a Medical Practitioner
If a medical practitioner fails to send report of contracting of a disease specified in the Third Schedule to the Chief Inspector, he is punishable with a fine which may extend to 1,000.
Penalty for Employing Child Labour
The penalty for violating the provisions relating to prohibition of employment of young children (Sec. 67) will be in accordance with that prescribed under the Child Labour (Prohibition and Regulation) Act, 1986 (Sec. 15), and not under this Act.
No court is to take cognizance of any offence under the Act except on complaint by or with the previous sanction in writing of an Inspector. No court below that of a Presidency Magistrate or of a Magistrate of the first class is authorized to try any offence punishable under the Act [Sec. 105]. A court can take cognizance of the offence only when the complaint is made within 3 months of the date on which the alleged commission of the offence came to the knowledge of the Inspector, but where the offence consists of disobeying a written order made by an Inspector, complaint may be made within 6 months of the commission of the offence [Sec. 106]. For the purpose of conferring jurisdiction on any court in relation to an offence under the Act in connection with the operation of any plant, the place where the plant is for the time being situated, is deemed the place where such an offence has been committed [Sec. 106A].
Other important provisions of the Act relate to: exemption of the occupier or manager from liability in certain cases; power of court to make orders; presumption as to employment; onus as to age; appeals; display of notices; service of notices; returns; power to make rules; power of the central government to give directions; application of the Act to government factories; and protection of persons acting under the Act.
WORKING AND ASSESSMENT
The main objectives behind the enactment of the Factories Act, 1948, have been protecting the factory workers against health hazards, ensuring their safety, improving physical working conditions, regulating hours of work and employment of young persons and women, providing certain amenities and improving work environment. Keeping in view these objectives, the Act was amended several times since its enactment in 1948. The amendments of 1976 relating to dangerous operations and those of 1987, relating to hazardous processes and certain other provisions are of particular significance. Efforts have been made to raise the safety standards substantially and to make penalties more stringent in order to ensure effective compliance with the provisions of the Act. Provisions relating to hours of work, employment of children and women, welfare measures, annual leave with wages and sanitation also have been modified from time to time. The amendments also sought to strengthen the enforcement machinery in view of the widening of the coverage of the Act, not only in terms of its provisions but also, from the consideration of the increasing number of factories and workers employed in them. In 1951, the total number of registered factories in the country was about 35,000, which increased to 2.2 lakhs in 1998. Similarly, the number of workers employed in factories in 1951 was about 29 lakhs, but in 1998 it stood at over 88 lakhs. It will be relevant here to deal with certain basic aspects relating to its working and effectiveness.
Extent of Effectiveness in Ensuring Safety
As stated above, safety of factory workers has been of the prime concern behind the enactment of the Act and its subsequent amendments. An idea of the extent of accidents, both fatal and non-fatal, in factories in the country during 1951–2005 can be had from Table 16.2.
Source: Government of India, Ministry of Labour, Labour Bureau. Various issues of Indian Labour Year Book and Pocket Book of Labour Statistics.
*Incidence Rate: Per 1,000 workers employed.
Table 16.2 shows that during the period 1951–96, the number of fatal accidents in factories has varied between 234 (1951) and 1,159 (1996) per year. The incidence rate of fatal accidents during the period has varied between .08 (1982) and .38 (1996) per year. The table does not show any appreciable improvement in the number or incidence rate of fatal accidents even after the amendments of 1976 and 1987. On the contrary, the incidence rate has been consistently high since 1990 onwards when it stood at 0.2 and above during all the years. This rate is much higher when compared to the rate
Table 16.2 shows that during the period 1951–2005, the number of fatal accidents in Indian factories varied between 234 (1951) and 1,159 (1996) per year. During the same period, the incidence rate of fatal accidents varied between .08 (2004) and 0.38 (1996) per year. The table does not show any significant improvement in the number or incidence rate during the years immediately following the insertion of stringent clauses in the Act relating to dangerous operations and hazardous processes in 1976 and 1987. Rather, contrary to expectations, the incidence rate of fatal accidents remained higher between 1990 and 1996 when compared to rate during the years preceding 1990. However, a declining trend in the rate is observed from 1998 onwards.
The incidence rate of fatal accidents in Indian factories has been much higher when compared to the rates of industrially advanced countries of the world. For example, in 1991, the incidence rate of fatal accidents per 1,000 workers employed in manufacturing was .02 in the United Kingdom, .05 in both Canada and France, and .06 in Poland, whereas it was .26 in India. The same year, the incidence rate of fatal accidents per one million hours worked was .01 in Japan and .02 in the United States.4 In 2006, the incidence rate per 100,000 workers was 1.3 in the United Kingdom, 2.0 in the United States, 3.0 in Australia, 9.4 in Canada and 38 in India. The same year, the incidence rate in Japan was .01 per one million hours worked and in Poland 5.0 per 100,000 workers employed.5
Table 16.2 further shows that the incidence rate of non-fatal accidents in India varied between 29.84 (1986) and 75.52 (1971) per year during the period 1951–86, but thereafter there has been a gradual decline in the trend, the lowest of 2.13 recorded in 2004. The number of non-fatal accidents also recorded a decline from 1999 onwards.
Position of Inspection and Violations
The position of inspection of factories in the country has never been satisfactory from the very beginning. As shown in Table 16.1 earlier in this chapter, the Labour Investigation Committee (1946) revealed that under the Factories Act, 1934, the percentage of factories going uninspected in 1939 was 38 in Assam, 31 in Punjab, 19 in Bengal and 12 in Bihar. The corresponding percentage in 1943 was 48 in Assam, 44 in Punjab, 30 in Bengal and 16 in Bihar. The percentage of factories inspected only once varied between 24 (Madras) and 58 (Bihar) in 1939 and between 30 (Madras) and 60 (Bihar) in 1943.6 In regard to inspections under the Factories Act, 1948, the first National Commission on Labour reported, ‘The statistics show that in 1959 about 2 per cent of the factories had more than three inspections, 4 per cent had three, 20 per cent were inspected twice and 52 per cent once; the remaining 22 per cent were not paid even a single visit’.7
With a view to strengthening the inspection machinery the amendments of 1976 provided for the appointment of Additional Chief Inspectors, Joint Chief Inspectors, Deputy Chief Inspectors and Additional Inspectors in addition to the Chief Inspector and Inspectors provided for in the original Act. In practice, sufficient numbers of inspecting personnel have not been appointed in most of the states, although the number of factories has continued to increase. Moreover, a large number of Factory Inspectors do not have the requisite knowledge or expertise to go into the intricacies of many new processes and operations resulting from complexities of the fast-changing technology. Besides, the work-load of an Inspector has also been high. The number of factories per Inspector was 234 in 1946, 205 in 1954, 222 in 1956 and 247 in 1962.8 The percentage of factories inspected was 71 in 1977, 70 in 1978, 61 in 1980, 64 in 1981, 66 in 1982, 66 in 1984, 52 in 1989, 74 in 1992, 55 in 1995, 59 in 1996, 68 in 1997, 55 in 1988, 47 in 1999, 57 in 2000, and 48 in 2002.9 The percentages are the averages for the country. In many states, the percentage has been less than 40. These percentages do not reveal the real situation. A large number of factories are inspected only casually.
On account of a very limited effectiveness of inspection and complex procedures involved in prosecution and conviction, violations of the provisions of the Act and rules have been substantial. Figures in Table 16.3 show the number of convictions obtained under the Act in selected years.
Source: Government of India, Ministry of Labour. Various issues of Indian Labour Year Book.
N.B.: Figures are based on annual returns under the Factories Act, 1948.
The figures in Table 16.3 show that the number of convictions has been on a high side between 1977 and 1994, when compared to the figures of the periods 1951–65 and 1995–2002. The maximum number of convictions has related to notices, registers and returns, next in order being employment and hours of work, safety provisions and health, sanitation and welfare. The figures relate only to the convictions obtained. In view of insufficiency of inspecting personnel, many violations go undetected and unreported. The situation can improve only when inspection machinery is suitably strengthened and both the employers and workers are made aware of their obligations and duties. Punitive action alone cannot achieve desired results.
Nature of Minimum Standards
Efforts have been made to raise from time to time the minimum standards laid down in various areas, particularly hours of work, minimum age of employment, medical examination of young persons, labour inspection, night work, weekly rest, sanitation, welfare and annual leave with wages. Provisions of a few Conventions of ILO, ratified by the Government of India have also been incorporated in the Act. In spite of these improvements, many provisions of the Act are not up to the standards prevalent in industrially advanced countries. For example, in many countries the minimum age of employment in factories is 15 years, and in some even 17 years, but it is still 14 years in the Act. The same can be said about hours of work. The first National Commission on Labour suggested as early as 1969, ‘In the first stage, the working hours should be brought down to 45 a week and in the second to 40 a week’.10 The Commission was also of the view, ‘Immediate reduction in hours of work in industries where obnoxious processes have to be looked after or where workers are exposed to fumes and gases may, however, be called for’.11 In the United Kingdom and United States, many collective agreements provide for a maximum of 40 to 42 hours in a week. In many countries, workers enjoy 2 days of weekly rest, whereas the Act provides only for 1 day of such rest. Similarly, the minimum standards pertaining to sanitation, physical working conditions, amenities and conveniences fall short of those obtained in industrially advanced countries.
Wide Scope for Giving Exemptions
The state government and the Chief Inspector of Factories have been given extensive powers to give exemptions from compliance with many provisions of the Act. This power is often misused and many occupiers or managers derive advantage of this provision, thus defeating the very purpose of the Act.
Quite a number of new processes have come to be used in numerous establishments on account of the fast-changing technology. It often becomes very difficult to decide whether they are covered under the definition of ‘manufacturing process’ or not. In the same way, it also becomes often difficult to identify whether a process is ‘hazardous’ or not. In many cases, difficulties also arise regarding the number of persons employed in an establishment for the purpose of covering it under the definition of ‘factory’ and in many others; determination of age also becomes a difficult task. There have been reports that occupiers engage workers, but claim that they belong to their family. Besides, in a number of factories hazardous processes and dangerous operations are carried on, but they do not come under the provisions of the Act as they employ less number of workers than that required for being called a factory. In spite of the shortcomings, the Factories Act, 1948, has contributed much towards improvement of the physical working conditions in factories and protecting workers against health hazards. It has also set the standards and provided guidelines which may be adopted while enacting laws for other establishments.
RECOMMENDATIONS OF THE SECOND NCL (2002)
The second National Commission on Labour (2002) has recommended the enactment of a general law relating to hours of work, working conditions, annual leave with wages, welfare, contract labour, and others, applicable to various categories of establishments alike. For ensuring safety at workplaces, the Commission has suggested enactment of one omnibus law providing for different rules and regulations on safety applicable to different activities. The Commission has also worked out a draft general law relating to hours of work, leave and other working conditions at workplaces.12 The recommendations of the Commission are yet under the examination of the government.
- The first factory legislation in India was the Factories Act, which was passed as a result both of the pressure from the Lancashire textile magnets on the Government of India and the efforts of a few philanthropists and social workers of the country. The Act of 1881 was amended or replaced by a series of subsequent Factories Acts, particularly those enacted in 1891, 1911, 1922 and 1934. The Act of 1934, which was based on the recommendations of the Royal Commission on Labour (1929), was comprehensive. The Act was amended from time to time and was repealed and replaced by the Factories Act, 1948, which, with subsequent amendments, is still in force in the country. The factory legislation in India is basically patterned after the factory legislation of the United Kingdom, except that the Indian Act also contains provisions relating to hours of work of adult male workers and annual leave with wages, which are not covered under the U.K. factory legislation.
The Factories Act, 1948, with subsequent amendments contains comprehensive provisions relating to health, safety, welfare, hours of work, employment of young persons and women, annual leave with wages, dangerous operations and hazardous processes, inspection, and penalties for offences.
The provisions relating to health are concerned with the standards of cleanliness, ventilation and temperature, lighting, harmful dust and fumes, and provision of drinking water and sanitary conveniences.
The Act contains detailed provisions relating to safeguards connected with the use of machinery, hoists and lifts, excessive weights to be carried, protection of eyes, dangerous dust, fumes and gases, precautions to be taken in the event of fire, safety of buildings, and appointment of Safety Officers. The Act also contains stringent provisions related to dangerous operations and hazardous processes.
Welfare provisions under the Act relate to provision of certain facilities at workplace such as washing, storing and drying clothing, sitting facilities, first-aid and ambulance room, canteens, shelters and crèches, and appointment of Welfare Officers.
The Act also contains provisions relating to maximum daily and weekly hours of work, spreadover and overtime work for different categories of workers, rest-intervals, weekly holiday and annual leave with wages. The Act also specifies the conditions under which exemptions from these provisions can be made.
There are certain additional provisions applicable to young persons and women such as minimum age of employment, medical examinations of young persons and their employment on some dangerous work, and maximum weight to be carried by them.
The Act provides for an elaborate machinery consisting of Chief Inspector and various categories of Inspectors for ensuring proper enforcement of the Act. The Act also provides for the appointment of Certifying Surgeons for medical examination of young persons and those engaged in dangerous operations and hazardous processes. Penalties for different types of offences have also been prescribed.
- The working of the Act has revealed certain deficiencies such as (i) limited effectiveness in ensuring safety, (ii) inadequate inspection, (iii) high frequency of violations, (iv) low level of standards in certain areas, (v) wide discretion vested in the government in matters of exemptions and (vi) difficulties in applying the Act in new processes and operations.
QUESTIONS FOR REVIEW
- Give a brief account of the development of factory legislation in India with particular reference to the influence of committees and commissions concerned with labour matters.
- Define ‘factory’, ‘manufacturing processes’, ‘worker’, ‘child’, ‘young person’ and ‘adolescent’.
- Summarize the provisions of the Factories Act, 1948, relating to health, safety and welfare and give suggestions for improvement.
- Describe the provisions of the Factories Act, 1948, relating to (i) hours of work and (ii) employment of young persons and women.
- Give an assessment of the working of the Factories Act, 1948, and suggest measures for improving its effectiveness.
Are employees engaged in a laundry attached to a hospital ‘workers’ under the Factories Act, 1948?
The Christian Medical College and Hospital, Vellore, had been running its own laundry for washing and cleaning clothes used by the hospital. The laundry was established with a view to ensuring a high degree of hygienic standard. All the employees of the laundry were employees of the hospital and were on its payroll. A dispute arose whether the employees of the laundry could be treated as ‘workers’ for the purposes of Section 2(b) of the Factories Act, 1948. For being considered as ‘workers’ under the Act, the employees must have been engaged 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. The court held that the employees of the laundry could not be treated as ‘workers’ for the purposes of the Factories Act, 1948 (Christian Medical College and Hospital V. Inspector of Factories, Vellore, 1984 (2) LLJ 237).
Can hospitals be treated as factories under the Factories Act, 1948?
Can a department of a hospital be treated as a factory under the Factories Act, 1948?
Are the employees of the laundry engaged in a manufacturing process? On what grounds did the court not consider the laundry as a ‘factory’ and its employees as ‘workers’ under the Factories Act, 1948?
Case Study 2
Can a manager of a factory be prosecuted for an accident resulting from the fault of a worker?
On 9 September 1976, a worker named Mahadeo employed in the factory Vegoils Ltd. met with an accident causing serious injury to him, which resulted in an instant amputation of his right hand up to his wrist. On that day, Mahadeo was in the second shift duty and was supervising the work of workers who were then engaged in the elevator which had got jammed. In this process, he moved to the first and second floors. While going to the second floor, he removed one of the guards and got entangled with a piece of rope lying on the platform and had a fall leading to the injury.
The Inspector of Factory received report about the accident on 10 September 1979 and he visited the factory on 19 September. He moved a prosecution case before the Metropolitan Magistrate against the manager of the factory for violating the provisions of the Factories Act, 1948, relating to fencing of machinery and hoists and lifts (Sections 21 and 28). The Metropolitan Magistrate took cognizance of the offence and sentenced the manager with a fine of 250 and, in default, to simple imprisonment for 2 weeks.
On an appeal against the order of the Metropolitan Magistrate, the court set aside the order of the Magistrate and exonerated the manager of the charges. The court held that the Inspector of Factories should have visited the factory on the date of the accident or immediately after that and held relevant enquiries, but he visited the factory on 19 September and launched prosecution against the manager. The court observed that it was for the Inspector of Factories to prove that the accused manager had violated the mandatory provisions of the Act regarding fencing of machinery and hoists and lifts. Mahadeo had himself admitted that all the guards were in position, but he removed one to facilitate movement. The court, having regard to the facts and circumstances of the case, and having regard to the evidence on record, set aside the order of conviction and sentence passed by the Metropolitan Magistrate against the factory manager.
Was Mahadeo performing his normal duties in an orderly way?
Was the manager of the factory at fault in not complying with the provisions of the Factories Act, 1948, relating to fencing of machinery?
In what way did the Inspector of Factories fail to perform his duties?
On what grounds was the manager of the factory exonerated of the charges by the court?