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LABOUR LAW-II – LECTURE NOTES—PREPARED BY P.SATHEESH
LABOUR LAW – II
(Subject Code:FSB) (Social Security and Labour Welfare Legislations in India) Concept of Social Security
- In the UK monetary assistance from the state for people with an inadequate or no income. a system of payments made by the government to people who are ill, poor, or who have no job: a system of payments made by the government to old people, people whose husbands or wives have died, and people who are unable to work because they are ill
- (in the US) a federal insurance scheme providing benefits for pensioners and those who are unemployed or disabled. The underlying philosophy of social security is that the State shall make itself responsible for ensuring a minimum standard of material welfare to all its citizens on a basis wide enough to cover all the main contingencies of life. In one sense, social security is primarily an instrument of social and economic justice. Labourers/Employees are being considered as vulnerable groups Social security is a device provided by society against a number of insecurities arising out of natural (e.g. death or sickness), social (e.g. slums), individual (e.g. incapacity) and economic (e.g. inadequate wages and unemployment) causes. All the industrial countries of the world have developed measures to promote the economic security and welfare of individual and his family. These measures have come to be called as social security. Social security is dynamic concept and an indispensible chapter of a national programme to strike at the root of poverty, unemployment and diseases. Following are a few important definitions of social security: According to a definition given in the ILO publication, “Social security is the security that society furnishes through appropriate organization against certain risks to which its members are exposed. These risks are essentially contingencies of life which the individual of small means cannot effectively provide by his own ability, or foresight alone or even in private combination with his fellows”. India’s social security system is composed of a number of schemes and programs spread throughout a variety of laws and regulations. India’s social security schemes cover the following types of social insurances:
LABOUR LAW-II – LECTURE NOTES—PREPARED BY P.SATHEESH
Pension Health Insurance and Medical Benefit Disability Benefit Maternity Benefit Gratuity Evolution of Social Security in India The Indian Social security Schemes for organized sector have been influenced by these factors: (i) British policy to raise labour cost in the established industries. (ii) A policy of corporate paternalism leading to variety of benefits like promoting loyalty of employees. (iii) In the post-independence era, the emerging of welfare state concept which has lead to a series of welfare and protective legislation based on relevant international labour standards. (iv) Many of the social security and welfare measures become statutory obligation of employers. (v) Due to rapid industrialization there was a need to promote the commitment to work force for industrial and urban life. Social Security and Constitution of India Article 43 of the Constitution of India, 1950 speaks of State’s responsibility to provide social security to the citizens of this country. Article 43 Living wage, etc, for workers: The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co operative basis in rural areas. International Labour Organisation on Social Security ILO standards on social security provide for different types of social security coverage under different economic systems and stages of development. Social security Conventions offer a
LABOUR LAW-II – LECTURE NOTES—PREPARED BY P.SATHEESH
- Universal schemes for social security Social Security Legislations in India With the Constitution of India and ILO Convention on Social Security (ratified by India in 1964), some of the legislations that have been enacted by the Indian Parliament for social security for the labourers are
- Employees’ State Insurance Act, 1948
- Employees’ Compensation Act, 1923
- Maternity Benefit Act, 1961,
- The Payment of Bonus Act, 1965
- Payment of Gratuity Act, 1972,
- Employees’ Provident Fund and Miscellaneous Provisions Act, 1952
A social security division has also been set up under the Ministry of Labour and Employment which mainly focuses on framing policies for social security for the workers of organized sector. Concept of Labour Welfare Labour welfare is an important dimension of industrial relation, labour welfare includes overall welfare facilities designed to take care of well being of employees and in order to increase their living standard. It can also be provided by government, non government agencies and trade unions. In the second Asian Regional Conference of ILO, it was stated that workers’ welfare may be understood to mean “such services, facilities and amenities which may be established in or in the vicinity of undertakings to enable the persons employed in them to perform their work in healthy and peaceful surroundings and to avail of facilities which improve their health and high morale.” Labour welfare implies providing better work conditions, such as proper lighting, heat control, cleanliness, low noise level, toilet and drinking-water facilities, canteen and rest rooms, health and safety measures, reasonable hours of work and holidays, and welfare services, such as housing, education, recreation, transportation and counseling. Apart from industry oriented welfare, labour welfare implies the setting up of minimum desirable standards of the provision of facilities like health, food, clothing, housing, medical assistance, education, insurance, job security, recreation etc. Such facilities enable the worker and his family to lead a good working life, family life and social life.
LABOUR LAW-II – LECTURE NOTES—PREPARED BY P.SATHEESH
UNIT-II Social Security: Industrial Injuries The Employees’ Compensation Act, 1923 Introduction: The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible from hardship arising from accidents. For a number of years the more generous employers have been in the habit of giving compensation voluntarily, but this practice is by no means general. The advantage of this type of legislation of this type is that by increasing the importance for the employer of adequate safety devices, it reduces the number of accidents to workmen in a manner that cannot be achieved by official inspection. Further, the encouragement given to employers to provide adequate medical treatment for their workmen should mitigate the effects of such accidents as so occur. The benefits so conferred on the workman added to the increased sense of security which he will enjoy, should render industrial life more attractive. It also increases the available supply of labour. In June 1982, a Committee was convened to consider the question on the legislation for compensation to the workmen. The Committee was unanimously in favour of legislation, and drew up detailed recommendations on such legislation should follow. The Workmen’s Compensation Act, 1923 has been enacted in the year 1923. The general principle is that compensation should ordinarily be given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment. Compensation will also be given in certain limited circumstances for disease. Principles Governing Workmen’s Compensation: The purpose of the Workmen’s Compensation Act, 1923 is not to provide for solatium to the employee or his dependants but to make good the actual losses suffered by him. Compensation is in the nature of insurance of the employee against certain risk of accident. The rule, that in order to make the employer liable to pay compensation, death or injury must be the consequence of an accident arising out of and in the course of his employment, is dependent upon the following four conditions:
- A causal connection between the injury and the accident, and the accident and the work done in the course of employment is essential.
- The onus lies upon the claimant to establish that the injury or its aggravation was the outcome of the work and resulting strain and stress.
- It is not necessary that the employee must be actually working at the time of his death or that death must occur while he working or has just ceased to work. Important definitions under the Workmen’s Compensation Act, 1923 Dependant Section 2(d) of the Act defines the term ‘dependant’ ‘Dependant’ means any of the following relatives of a deceased workman, namely (i) A widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter, or a widowed mother; and
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If the injury caused by an accident results in the reduction of the earning capacity in respect of employment which the employee was capable of undertaking at the time of accident, it is permanent partial disablement. Any injury specified in part II of Schedule I shall be deemed to be permanent partial disablement. Compensation under the Act is payable only if the injury caused by an accident results in employees’ disablement exceeding three days. Part II of Schedule I provide the list of injuries deemed to result in permanent total disablement. Examples of injuries:
- Amputation through shoulder joint
- Loss of thumb and its metacarpal bone
- Loss of four fingers of one hand, etc. Upper Doaba Sugar Mills Ltd. V. Daulat Ram AIR 1960 All. 493 Facts of the case: A blacksmith had lost the index and middle finger, the rest of the hand, namely, thumb and other two fingers could be utilized in work. Held: The test laid down in this case to determine the nature of disablement was that: “It is not enough if it is found that the employee is disabled from performing his duties of a blacksmith fitter; the Court should consider whether he has been incapacitated from undertaking any employment and whether in that other employment the rest of the hand could be utilized. Total disablement: Section 2(1) (l) of the Act defines the term ‘total disablement’ ‘Total disablement’ means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries, specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent. or more. Part I of Schedule I provide the list of injuries deemed to result in permanent total disablement. Examples of injuries:
- Loss of both hands or amputation at higher sites
- Loss of a hand and a foot, etc. Pratap Narain Singh Deo v. Srinivasa AIR 1976 SC 222 Facts of the case: A carpenter suffered injury in the course of his employment which resulted in amputation of left hand above elbow. Held: Since a carpenter cannot work with one hand, disablement was held to be total and not partial.
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Workman: Section 2(n) defines the term ‘workman’ ‘Workman’ means any person (i) a railway servant as defined in clause 34 of section 2 of the Railways Act, 1989, not permanently employed in any administrative, district or sub- divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or
- (i-a) (a) a master, seaman or other member of the crew of a ship,
- (b) a captain or other member of the crew of an aircraft,
- (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle,
- (d) a person recruited for work abroad by a company, and who is employed outside Indian in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, include a reference to this dependants or any of them. A person who is employed on a casual basis and who is employed otherwise than for the purposes of employer’s trade or business, is not a workman within the meaning of the Workmen’s Compensation Act, 1923. Employer’s Liability for compensation: Section 3 of the Workmen’s Compensation Act, 1923 provides for the provisions relating to the employer’s liability for compensation. Section 3 Employer’s liability for compensation – (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter (Chapter II of the Workmen’s Compensation Act, 1923) Provided that the employer shall not be so liable – (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to – (i) the workman having been at the time thereof under the influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to the rule expressly framed, for the purpose of securing the safety of workmen, or
LABOUR LAW-II – LECTURE NOTES—PREPARED BY P.SATHEESH
department. There he suffered a heart attack at 3.20 p.m. and was admitted in a hospital as an indoor patient for about a month. Then he left his employment and died after sometimes. Held: It was held that it could not be said that the employee died as a result of the injury caused by accident arising out of and in the course of his employment. The following principles were laid down in this case:
- There must be a causal connection between the injury and the accident and the work done in the course of employment.
- The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.
- It is not necessary that the employee must be actually working at the time of his death or that death must occur while he is working or had just ceased to work.
- Where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the employee to succeed. On a perusal of the above cases the following test may be suggested to determine whether the accident has arisen out and in the course of employment:
- That the employee was in fact employed on or performing the duties of his employment at the time of the accident.
- That the accident occurred at or about the place where he was performing his duties.
- That the immediate act which led to or resulted in accident had some form of causal relation with the performance of these duties.
State of Rajasthan v. Ram Prasad and another (2001) I LLJ 177 (SC) Facts of the case: The employee died due to natural lightening while working at the site. Held: The Supreme Court held that the death of the worker had causal connection with the accident and employment and observed that the deceased was working on the site and would not have been exposed to such hazard of lightening had she not been working so. The accident arose out of and in the course of employment is made out here. Therefore the appellant was held liable to pay compensation. Mackenzie v. I.M. Issak AIR 1970 SC 1906 Facts of the case: Shaik Hussan Ibrahim, a seaman on ship “Dwarka” was last seen at about 3 a.m. on Dec.16, 1961 on the Tween Deck and was found missing at 6.15 a.m. in the morning. A search was undertaken but the dead body was not found. The Additional Commissioner made an inspection of the ship and found no material evidence which could lead to the inference that the death was caused by an accident which arose out of seaman’s duty (nature of employment). Held:
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The Supreme Court held that the Commissioner did not commit any error of law in reaching the decision that the death of the seaman was not caused by an accident which arose out of seaman’s employment. Therefore, no compensation was payable in this case because on the facts there was no material for holding that death took place on account of accident which arose out of his employment. Oriental Insurance Company Ltd. v. Sorunai Gagoi and Others 2008 II LLJ 863 (SC) Facts of the case: The respondents in this case were parents of a driver employed by the third respondent, who was owner of the vehicle in question. From 1996, for more than 7 years nothing was heard of the driver. Held: The Supreme Court held that there was no nothing on record to show that death had occurred to the driver in an accident arising out of employment. If some miscreants had taken away the driver along with the vehicle or had murdered him, it did not give rise to a presumption that death had occurred in accident arising out of employment. Smt. Koduri v. Polongi Atchamma (1969) Lab I.C. 1415 (AP) Facts of the case: The deceased was the employee in the lorry belonging to his employer carrying quarry material from the quarry site to the work spot of the Public Works Department. His duties were to load the material on the lorry and to go along with the same for unloading the material at the work-spot. While the lorry was moving the deceased attempted to hit a rabbit passing on the road and in the attempt he fell down from the lorry and died. His wife claimed compensation for the loss of life of her husband. Held: It was held that she was no entitled to compensation for “it is not enough that injury should have been sustained by the employee during the period of his employment, it should have been in the course of the employment. The act which resulted in the accident must have some connection with the work for which the employee is employed. The employee must have been doing something which is part of his service though it need not be his actual work; it should be work naturally connected with the class of work and the injury must result from it.” National Iron and Steel Co.Ltd. v. Manorama AIR 1953 Cal. 143 Facts of the case: In this case, a boy was employed by the appellant in a tea shop and it was part of his duty to take tea from the shop which was situated outside the factory gate to various persons working in the factory. One day when the boy was coming out of the factory after serving the tea to the workers he passed through a violent mob of factory workers who were leaving the factory. This mob attacked the police and the police had to fire upon the mob in self- defence. Unfortunately, the boy was severely wounded by a bullet injury and died. The mother of the boy claimed compensation. Held: The court held that the accident (severe bullet injury) arose in the course of employment and death occurred because of the risk to which the boy was exposed by the nature of his employment. Jyothi Ademma v. Plant Engineer, Nellore 2006 III LLJ 324 (SC)
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Senior Divisional Personal Officer, Southern Railway Trichy v. Smt. Kanagambal (1995) II LLJ 231 (Mad) Facts of the case: The respondent employed as a points-man in Railway was assaulted by unknown person while on duty resulting in his death. Held: The death was held to be arising out of and in the course of employment and the employee was entitled to compensation. Notional Extension of Employer’s Premises: The theory is that, Ordinarily a man’s employment does not begin until he has reached the place where he has to work and does not continue after he has left the place of his employment. The period of going to or returning from employment are generally excluded and are not within the course of employment. Travelling to and from is prima facie not in the course of employment as per the decision in Netherton v. Coles (1945) A.E.R. 277. But there be a reasonable extension in both the time and place and an employee may be regarded as in the course of his employment even though he had not reached or had left his employer’s premises observed by the Supreme Court in S.S. Mafg v. Bai Valu Raja AIR 1958 SC 881. The sphere of employees’ employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer’s premises, or which he is entitled to traverse because he is going to or coming from his work, he is held to be on his mater’s business while he using that access. This is called as Notional Extension of Employer’s Premises Theory. The question of employer’s liability in case of an injury caused by accident taking place outside the normal place of employment has been discussed by the House of Lords in St. Helens Colliery Co. Ltd. v. Hewlston 1924 A.C. 59 (B) St. Helens Co. Ltd. v. Hewlston 1924 A.C. 59 (B) Facts of the case: An employee working in a colliery was injured while travelling in a special collier’s train. The railway company had by an agreement with the colliery company agreed to arrange for such a special train running between the colliery and the place of residence of the employees. Each employee was provided with a pass and the amount of fare was deducted from his wages. Held: It was held that the injury did not arise in the course of employment within the meaning of the English Employees’ Compensation Act, 1906 for the following reasons:
- There was no obligation on the employees to use train. The employees had a right to travel by such train but were not bound to travel by such train. They could have travelled by any other alternative means.
- If the physical features of the locality had been such that the means of transit offered by the employer would have been the only means of transit to transport the employee to his work, there may in the employees’ contract of service be implied a term that there was an obligation on the employer to provide such means and a reciprocal obligation on the employee to avail himself of them.
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- An employee in a colliery is not in the course of his employment, when he is riding in a vehicle provided by his employer unless, by the terms of his contract, he is bound to travel in that vehicle. Rajanna v. Union of India (1995) II LLJ 824 (SC) Facts of the case: A security assistant in the Special Protection Group attached to the Cabinet Secretariat sustained injuries resulting in permanent partial disablement in a motor accident when he was travelling from staff quarters to the South Block for duty in the official SPG vehicle provided for that purpose. He claimed ex gratia payment in accordance with a circular of the Central Government providing for grant of ex gratia payment to the SPG personnel. The Central Administrative Tribunal rejected the claim on the ground that the injuries were not sustained while performing actual VIP security duty. So the appeal was preferred to the Supreme Court. Held: It was held by the Supreme Court that since the security assistant was travelling in the official SPG vehicle in which he was required to travel from the staff quarters to the south Block, that vehicle not being available to anyone other than the SPG personnel the security assistant was at a place or a pint or an area which came within the theory of notional extension of the official premises for the performance of the actual VIP security duty. Weaver v. Tredegar Iron Coal Co. 1940 AC 955 Facts of the case: The appellant, a minor in the employment of the respondents worked at a pit which was near a branch railway where there was no regular station but by agreement between the company and Railway, facility for boarding the train was given only to the company’s employees at the time of change of shifts in the colliery. On leaving the colliery one day, the appellant went to the platform in order to travel home by train, but while there, owing to rush of employees on the platform, he was accidently pushed of on to the line and was injured by an approaching train. He claimed compensation. Held: It was held that “as the appellant was making use of the platform which the respondents had arranged to be provided for their employees coming to and leaving the colliery, and as he was upon the premises which the respondents for the purposes of the employment, had obtained for him a license to use, and on which he had no right to be except by the condition of his employment, and he was, therefore, entitled to compensation. T.N.C.S Corporation Ltd. V. S. Poomalai (1995) I LLJ (Mad) Facts of the case: An employee was murdered in communal riot when he was on his way to the place of work. His wife claimed compensation. Held: Death of the employee was held to be in relation to his employment and in the course of employment entitling the wife of the deceased employee to compensation under the Act. Exception to the Theory of Notional Extension of Employer’s Premises: This rule is subject to the exception that where the accident occurs in public place and the risk face by the employee is not due to his employment but to his being on the spot as a member of the public, the employer will be liable to pay a compensation only, if the presence
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five years or is or has been for not less than five years an advocate or a pleader or is or has been a Gazetted Officer for not less than five years having educational qualifications and experience in personnel management, human resource development and industrial relations as the Commissioner for Workmen’s Compensation. The appointment of Commissioner must be notified by the State Government in the Official Gazette. The area of the jurisdiction of a commissioner must be specified by the Government by such notification. If more than one Commissioner has been appointed for the same area, the State Government may by general or special order regulate the distribution of business between them. Matters which may be referred to Commissioners: Section 19 of the Act provides for the provisions relating to the reference to Commissioner. Any Commissioner of an area concerned shall have the power to decide and settle all questions as to the liability of any person to pay compensation. In default of an agreement between the parties to arrive at a conclusion in respect of any claim to compensation, the Commissioner has jurisdiction to decide inter alia, - (i) The question as to whether a person injured is an employee (ii) The liability of any person to pay compensation (iii) The amount and duration of compensation (iv) The nature or extent of disablement No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner. Powers of the Commissioner: As per section 23 of the Act, the Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the production of documents and material objects, and the Commissioner shall be deemed to be a Civil Court for all the purposes of Section 195 and of Chapter XXVI of the Code of Criminal Procedure, 1973. Notice and claims of the accident: Section 10 of the Workmen’s Compensation Act, 1923 provides for the provisions relating to notice and claims of the accident. An employee who is injured by an accident must give a notice of it in writing to his employer. Giving of such a notice to be done as soon as practicable after the occurrence of the accident. Any claim for compensation must be made within two years of the occurrence of the accident or in case of death, within two years from the date of death. In the case of an occupational disease, the first day of the period during which the employee was continuously absent from work in consequence of the contracting of such a disease, should be considered as the date of the accident. The notice must contain-
- The name and address of the employee injured
- The date of the accident and
- The cause of the injury
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Unit-III-Social Security: Social Insurance The Employee’s State Insurance Act, 1948 Applicability of the Act
1. Short title, extent, commencement and application****. — (1) This Act may be called the Employees’ State Insurance Act, 1948. Sub-section (4) of Section 1 It shall apply, in the first instance, to all factories (including factories belonging to the Government) other than seasonal factories. Provided that nothing contained in this sub-section shall apply to a factory or establishment belonging to or under the control of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act. Section 1 (5) The appropriate Government may, in consultation with the Corporation and where the appropriate Government is a State Government, with the approval of the Central Government, after giving one month’s notice of its intention of so doing by notification in the Official Gazette, extend the provisions of this Act or any of them, to any other establishment, or class of establishments, industrial, commercial, agricultural or otherwise. Provided that where the provisions of this Act have been brought into force in any part of a State, the said provisions shall stand extended to any such establishment or class of establishments within that part if the provisions have already been extended to similar establishment or class of establishments in another part of that State. Qazi Noorul H.H.H. Ptrol Pump v. Deputy Director, E.S.I. Corporation The Appellant was running a petrol retail outlet. He challenged a demand by the respondent for E.S. I. Contribution through a writ petition. The Supreme Court has held that Section 2(k) (ii) of the Factories Act, 1948pumpil oil was a ‘manufacturing process’ and it had the same meaning in Section 2(14-AA) of the Employees’ State Insurance Act, 1948. Brooke Bond India Ltd. V. E.S.I. Corporation, it was held that the branch office engaging in buying and exporting tea was held to be covered by the definition of shop for the purposes of the notification issued under Section 1(5) of the Act. E.S.I.C. v. R.K. Swamy & Others It was held that an advertising agency sells its expert services to a client to enable the cline to lauch an effective campaign for his products. The premises of such an advertising agency can reasonably be said to be a shop. Therefore, it would be covered by the Act where a notification has been issued by the Government of a State bringing a shop under the Employees’ State Insurance Act, 1948. International Ore & Fertilisers (India) Pvt. Ltd. v. E.S.I. Corporation The appellant is a limited company having its central office at Secundrabad. Where trading and commercial activity realtring to sale of imported fertilizer takes place but no delivery of goods takes place at the premises. The establishment of the company at Secundrabad was held to be a shop as it caries on a commercial activity facilitating emergence of contract of sale between the foreign principals and State Tradeing Corporation and Megal Tredaidng Corporation of India. To constitute a ‘shop’ it is not necessary that dlievery of goods to the purchasers should take place at the premises in Secundrabad. If
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In Rajappa Vs. E.S.I. Corporation, An Employee of the Kimco was attacked by some persons and his left hand was cut off while he was on his way to home after finishing the work in the factory. The E.S.I. Corporation met all the expenses when he was under treatment. It was Held that where the employment is not a contributing factor ot create any iincident or accident, or to accelerate causes of death or personal injury of employee, a claim cannot be made for compensation under the Act. The doctrine of Notional Extension has to be applied to the factual situation pertaining to the particular case. In this case, there is no relationship between the assault causing injury to the employee and the employment. Maherunissa Ahmed Khan Pathen and Ors. vs. Employees’ State Insurance Corp. : In this case, a Workmen while returning home was assaulted by a mob during communal riots and died. It was Held that the place of accident need not necessarily be located within the limits of the factory premises so long as the place of accident falls within a zone which can be notionally deemed to be the zone of the factory for the purpose of the Act by recourse to the theory of notional extension. Therefore, death of the employee in this case was employment injury within the meaning of S. 2(8) of the Act. Sathiya Bama vs E.S.I. Corporation In this case, an women employee while returning. home was hit by a scooter on public road in front of factory gate. It was Held that the theory of notional extension cannot be reduced to a mathematical formulae of distance and time. Therefore in this case it was Held that the injury sustained is an ‘Employment Injury’. Employee [Section 2(9)] “employee ” means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and — (i) who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere ; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment ; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service ;^2 [ and includes any person employed for wages on any work connected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment ; or any person engaged as an apprentice, not being an apprentice engaged under the Apprentices Act, 1961 (52 of 1961), and includes such person engaged as apprentice whose training period is extended to any length of time but does not include (a) any member of^3 [ the Indian ] naval, military or air forces ; or (b) any person so employed whose wages (excluding remuneration for Over time work) exceed such wages as may be prescribed by the Central Government :
LABOUR LAW-II – LECTURE NOTES—PREPARED BY P.SATHEESH
Provided that an employee whose wages (excluding remuneration for overtime work) exceed such wages as may be prescribed by the Central Government at any time after (and not before) the beginning of the contribution period, shall continue to be an employee until the end of that period; Tarachand Mohanlal vs. E.S.I. Corporation In this case, labourers were working for a considerable period in a factory, dealing in production of mustard oil and dhal. These labourers were employed through Sardars, who were the immediate employer and the firm Mohanlal was the employer. They were working under the supervision of the principal employer even if they were supplied by the sardars. These Labourers were Held to be employees within the meaning of Sec. 2(9)(i) of the Act as they were directly employed for wages by the principal employer in nexus with the normal work of the factory. K. Venkateshwararao vs. State of Andra Pradesh It was Held that if a theatre manager who has no statutory obligation to run a canteen or provide a cycle stand but for the better amenities of his customers and improvement of his business enters into an arrangement with another person to maintain a canteen or cycle stand and that other person employs on his own, workers in connection with the canteen or cycle stand, the manager of the cinema theatre is liable for contribution as the principal employer of the workmen although they are engaged independently by the owner of the canteen or the cycle stand. Permanent Partial Disablement [Section 2(15-A)] (15A) “ permanent partial disablement ” means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement : Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement; Permanent Total Disablement [ Section 2(15-B)] “permanent total disablement” means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement : Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred percent. or more; Seasonal Factory [ Section 2(19-A)] Section 2(19-A) “ seasonal factory ”, means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortication of ground-nuts, the manufacture of coffee, indigo, lac, rubber, sugar (including gur) or tea or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year — (a) in any process of blending, packing or repacking of tea or coffee ; or (b) in such other manufacturing process as the Central Government may, by notification in the Official Gazette, specify ;
