Sasi
K.G.
01. INTRODUCTION
Migration is the barometer of changing socioeconomic and
political conditions at the national and international levels. It is also a
sign of wide disparities in economic and social conditions between the origin
and destinations. In developing countries like India, migration mostly takes
place due to the poverty, unemployment, natural calamities and underdevelopment
at the origin place. Kerala is one of the Indian states where more than
internal migrants are employed.
They are regarded as wealth creators of Kerala state in
many sectors. Yet they are out of the good eyes of the government. They are
forced to live and work in crowded slums and hazardous locations. The poor
living conditions have raised fears of the spread of diseases among the local
people. Migration needs to be facilitated through a proper development
initiatives and strategies so that its benefits can be maximized at all levels.
02. INTERSTATE MIGRATION OF WORKMEN IN INDIA
The
history of labour organizations and labour laws include the history of labour
guilds that existed in Europe.
01. Migration of Indian Nationals
India’s total population as recorded in census 2011,
stands at 1.21 billion. Internal migrants in India constitute a large
population – 309 million internal migrants or 30% of the total population. The
percentage of urban population in India which was only 17 percentage of the
total population in 1951 is expected to because large number of people will
leave rural areas for urban areas in search of better opportunities.
As far as India is concerned, there are both economic and
social imbalances among states. States like Kerala, Tamil Nadu, Gujarat,
Maharashtra and Karnataka are said to be economically forward. There are states
which are lacking resources. This is the main factor that contributes to
internal migration. Urbanization is one of the key “pull factor” behind
migration today. As far as Kerala is concerned the number of Domestic Migrant
Labourers newly arriving in Kerala each year is around 2, 35,000 (Gulati Institute
of Finance and Taxation)
02. Migration of Refugees
People
from Bangladesh and Sri Lanka were migrants to India for a small span of time,
but their flow cannot be said to be ceased so far. However they do not get
protected under the law under consideration. East Pakistan Refugees during the
Indo Pakistan War in Bangladesh, Sri Lankan Refugees during the Sri Lankan military
action against LTTE, the recent Rohingyan Muslim Refugees from Myanmar etc.
have posed great challenges in India and their reflections were also seen in
Kerala.
03. Migration in Kerala State
Domestic Migrant Labourers (DML) have become one of
Kerala’s wealth creators. While their numbers have grown in recent years, we in
the State know little about them, care little for them, and do little for them.
It is estimated that there are over 25 lakh Domestic Migrant Labour in Kerala
today with an annual arrival rate of 2.35 lakhs. The remittances to their home
states by the DML are over Rs.17500 crores. Over 75 per cent of the DML come
from five states, namely West Bengal, Bihar, Assam, Uttar Pradesh and Orissa.
It is a work force consisting almost entirely of Single Males aged between 18
to 35 years and is highly mobile within Kerala. While friends and relatives are
the main channel of migration, they mostly work under contractors and get
employment for six and at times even seven days a week. Whereas 60 per cent of
them work in the construction sector, they also work in the hospitality,
manufacturing, trade and agriculture sectors. Their skills range from unskilled
to skilled carpenters, masons, electricians and the like. Over 70 per cent of
them earn wages above Rs.300 per day. On an average, they remit Rs.70000 per
person annually and the remittances are almost entirely through banking
channels. DML work long hours, often 8 to 10 hours per day. They are generally
very dedicated and sincere to their work; there are hardly any complaints from
their employers. However they do not get the benefits of social security
schemes. Many of them have worked outside their States of Origin before coming
to Kerala. What has attracted them to Kerala is the relatively high wage level
here and prompt payment at the end of the week. They are unaware of their
labour rights and obligations. They are not unionized.
The housing and living conditions of the DML are
abysmally poor. They often live in the worksites and factories itself, in
crowded rooms with poor water supply and sanitation facilities. Only few of the
rooms have proper kitchens. Cooking, bathing etc. takes place mostly in the
open. The poor living conditions have raised fears of the spread of diseases
among the local people. Leaving the housing of DML to vagaries of the market
forces leading to crowding and unhygienic conditions has compromised not only
the health of the DML but also that of the local populace. The rising house
rents have turned many local small enterprises uneconomic because they are
forced to pay higher rents. Poorer local people are also finding the renting of
houses unaffordable.
The large army of highly mobile DML has provided a supply
of cheap labour to the productive sectors in Kerala. The very ‘formal’,
labour-intensive sectors like infrastructure and manufacturing have found a way
through DML to ‘informalise’ the labour. Since social security benefits are
often not borne by the employers, the cost of production is brought down.
State wise distribution of migrant workers in Kerala
State percentage
share
Uttar Pradesh 14.83
Assam 17.28
West Bengal 20
Bihar 18.1
Orissa 6.67
Others 23.12
Source: Gulati Institute of
Finance and Taxation
04. Causes of Interstate Migration in India
There are numerous causes of migration from rural to
urban centers and from vice versa or from one region to another. Notable among
these are:
• Social conflicts and social tensions.
• Gap in civilizations and culture.
• Law and order situation.
• Inequalities in the available social and economic
opportunities and other amenities of life between groups of people and or
sectors.
• Income maximization.
• Inequitable distribution of benefits of economic
development.
• Social mobility and social status of aspirations.
• Desire for attaining lifestyle, performance and
enjoyment.
Internal migration is an essential and inevitable
component of the economic and social life of the country, given regional
imbalances and labour shortages and safe migration should be promoted to
maximize its benefits. However in the absence of a coherent policy framework
and strategy, migration imposes heavy costs on human development through poor
labour arrangements and working conditions of migrants and obstacles in their
access to shelter, education, healthcare and food.
05. Causes of Interstate Migration in Kerala
In addition to the above mentioned causes, the
following causes are also attracting DML to Kerala.
1. Relatively less caste or religious discrimination
and untouchability.
2. Relatively prompt payment of wages.
3. Social security and involvement of Keralites in
securing human rights to interstate migrants.
4. Relatively less sexual or other exploitation of
female migrants in Kerala by Keralites.
5. Relatively high wages or remuneration.
6. Easy absorption in the social life and availability
of entertainments.
03. INTERSTATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICES) ACT, 1979
It is agreed that workers, who move from state to state
seeking employment on temporary or seasonal basis without becoming the
permanent residents of the state where they work are known as Inter- State
Migrant Worker. Migrant Worker is thus essentially temporary or seasonal in
character, it comes and goes. The term ‘Migrant Worker’ is also associated with
the concepts of contract labour and bonded labour.
The important Labour Laws involved in regulating migrant
workers are the Inter- State Migrant Workers Act, 1979, the Bonded Labour
(Abolition) Act, 1976 and Contract Labour (Regulation and Abolition) Act, 1970.
Inter- State Migrant Workers form a large part of Contract Labour with the
additional and aggravating character of having come from another state. In its
turn, contract labour is by and large bonded labour. Contract and Migrant
Labour, sub- species of bonded labour is peculiar in Indian industries. All
three share one other characteristic. In the light of the above, it will be
useful to examine the provisions of the Inter- State Migrant Workmen
(Regulation of Employment and Conditions of Service) Act, 1979 along with other
labour laws and their success, if any, in securing the intended reliefs and
benefits to the Inter- State Migrant Workers in the country.
Inter – State Migrant Law- Historical Background
Freedom of movement in any part of territory of India and
freedom to carry any avocation of one’s choice is a fundamental right
guaranteed by Article 19 of the Constitution of India. Every citizen of India
has got Constitutional fundamental right that he can reside and settle in any
part of India and can do any legal work for his livelihood that means any
person can leave his home State to other State in India in search of
employment. This freedom of movement is considered ideal for the development of
any free and liberal economy. However, such free movements themselves create
stresses and strains in the economic system.
The system of employment of Inter – State Migrant Labour
(known in Orissa as Dadan Labour) is an exploitative system prevalent in Orissa
and in some other States. In Orissa, Dadan labour is recruited from various
parts of the State through contractors or agents were called sardars /
khatadars for work outside the State in large construction projects. This
system lends itself to various abuses. Sardars promised at the time of
recruitment that wages calculated on piece rate basis would be settled every
month but that promise was not usually kept. Once the worker came under
clutches of the contractor he took him to a far off place on payment of
railways fare only. No working hours were fixed for Inter – State Migrant Workers
and they had to work on all the days in a week under extremely bad working
conditions. The provisions of the various labour laws were not being observed
in their case and they were subjected to various malpractices.
The twenty – eighth sessions of the labour minister’s
conference held in 1976 in New Delhi. This conference considered the question
of protection and welfare of dadan labour recommended the setting up of a small
compact committee to go into the whole questions and to suggest measure for
eliminating the abuses prevalent in this system. The Inter – State Migrant
Workmen are generally illiterate, unorganized and normally to work under
extremely adverse conditions and in the view of this hardship, some
administrative and legislative arrangements both in the state from where they
are recruited and also in the state where they are engaged for work are
necessary to secure effective protection against their exploitation.
The compact committee Appointed by the Government of
India, Ministry of Labour which was constituted in 1977 under the chairmanship
of shri.D.Bandopadhyay recommended in its report in 1978 for the enactment of a
separate central legislation to regulate the employment of Inter – State
migrant Workers as it was felt the provisions of the Contract Labour
(Regulation and Abolition) Act, 1970, even after necessary amendments would not
adequately taken care of the variety of malpractices indulged in by the
contractors / sardars / khaledars, etc. and the facilities required to be
provided to these workmen in view of the peculiar circumstances in which they
have to work.
The recommendations of the compact committee have been
examined in consultation with the State government and the ministries of the
government of India and the suggestions made by them have been taken into
account in formulating the proposals for legislation. These events and causes
are responsible for the birth of “Inter- State Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, a special and significant protective
legislation to the Inter – State Migrant Workers was passed in the year 1979.
01. Scope and application of the Act
The objective of the Act is to regulate the employment of
Inter-State migrant workmen and to provide for their conditions of Service and
for matters connected therewith. The Act extends to whole of India. All the
provisions of the Act came into force w.e.f. 02.10.1980 vide G.S.R. 513 (Ex.
Dated 11.08.1980). The Act applies to every establishment in which five or more
Inter – State Migrant Workers are employed or were employed on any day of the
preceding 12 months. The Act also likewise applies to every contractor who
employs or employed five or more Inter – State migrant Workers during the
preceding twelve months.[i]
There still exists in different parts of the country
a system of usury under which the debtor or his defendants or dependants have
to work for the creditor without reasonable wages or with no wages in order to
extinguish the debt. At times, several generations work under bondage for the
repayment of a paltry sum which had been taken by some remote ancestor. The interest
rates are exhorbitant and such bondage cannot be interpreted as the result of
any legitimate contract or agreement. The system implies the infringement of
the basic human rights and destruction of the dignity of human labour. The
Act’s objectives include eradication of such practices similar to slavery too.
02. Main provisions of the Act
The Act defines an Inter – State Migrant Workman as any
person who is recruited by or through a contractor in any state under an
agreement or other arrangement for employment in an establishment in another
state, whether with or without the knowledge of the principal employer in
relation to such establishment.[ii] In order to consider a
person as Inter – State Migrant Workman the following four conditions are to be
satisfied under the Act.
(i) The worker should be recruited by a ‘Contractor’ in
one state. (ie, Home State of the worker)
(ii) The recruitment should be for employment in an
establishment in another State. (ie, Host State)
(iii) The recruitment may be made by an agreement or by
any other arrangement.
(iv) The recruitment may be made with or without the
knowledge of the principal employer of an Industrial Establishment of the Host
State.
The Act empowers the appropriate Government to appoint
registering officers.[iii] Every principal employer of
an establishment to which this Act applies makes an application to the
registering officers for the registration of the establishment.[iv] The registration of the
principal employer is compulsory if the Inter – State Migrant Workers are
employed or intended to be employed in his establishment. The registering
officer shall register the establishment and issue a certificate of
registration within one month after the receipt of the application from the
principal employer if the application for registration is complete in all
respects[v]. If the application for
registration is incomplete the registering officer is required to return the
application to the principal employer of the establishment[vi]. The Act contemplates a
situation where the registering officer does not grant registration certificate
within one month or he does not return the application treating it incomplete,
the registering officer shall within 15 days from the receipt of the
application rather an application in the form of a reminder from the principal
employer, register the establishment and issue the registration certificate[vii]. Section 4 of the Act shows
that when an application for registration under the Act is moved the
registering officer is required either to register the establishment or to
return the application on the ground that it is not complete as required. The
Act empowers the registering officer to revoke the registration certificate
issued if he is satisfied that the registration has been obtained by
misrepresentation or suppression of any material fact or it has become useless
or ineffective for any other reasons, after giving the principal employer an
opportunity of being heard and after obtaining prior approval of the
appropriate Government[viii]. This Act also empowers
the registering officer to suspend the operation of the certificate pending
such revocation for such period as may be specified in the order and serve the
order by the registered post to the principal employer. It must contain the
reasons why such action is being taken[ix]. The Act prohibits the
principal employer to employ Inter – State Migrant Workmen without obtaining a
certificate of registration[x].The Act does not prohibit
employment of Inter – State Migrant workers if the registration application is
pending before the registering officer.[xi]
As already stated, Inter-State Migrant workmen under the
Act means “any person who is recruited by or through a contractor in one state,
under an agreement or other arrangement for employment in an establishment in
another state”. In this process of recruitment and employment, the role of
contractor is most important who recruits the migrant workers in a state and
supplies them to an establishment in another state for employment. In order to
regulate the process, the Act empowers the appropriate government to appoint licensing
officers[xii]. The appropriate government
may define the jurisdiction and powers of the licensing officer at the time of
appointment[xiii].
The Act prohibits the contractor to recruit any person in
a state for the purpose of employment in another state except under and in
accordance with a license issued by the licensing officer appointed by the
Central Government or the State Government, as the case may be who has
jurisdiction to the area wherein the recruitment is made[xiv]. Similarly, the contractor
is prohibited to employ as workmen for the execution of the work in any
establishment in any state, persons from another state except under and in
accordance with a license issued in that behalf by the Central Government or
the State government who has jurisdiction to the area wherein the establishment
is situated[xv].
Therefore, every contractor is required to obtain a license from the licensing
officer appointed under the Act, both for employing migrant workers in any
establishment as also for the purpose of recruiting any person in a state for
the purpose of employing him in any establishment situated in another state.
The license under the Act may contain the terms and conditions of the agreement
or other arrangement under which the workmen will be recruited, the remuneration
payable, hours of work, fixation of wages and other essential amenities to be
provided to the Inter – State Migrant Workmen as deemed fit by the appropriate
government in accordance with the rules and shall be issued on payment of
prescribed fees[xvi].
However, for any special reasons the licensing officer may require the
applicant to furnish security for the performance of the conditions of the
license[xvii].
The security required to be furnished shall be reasonable
on the basis of the number of workmen employed, the wages payable to them, the
facilities which shall be afforded to them and other relevant factors[xviii].
The Act makes it illegal for a contractor either to
recruit a person in a state for the purpose of employing him in any
establishment situated in another state, or to employ a migrant worker for
execution of any work in any establishment in any state without having obtained
a license under the Act and in violation of the conditions of such a license.
The Act prescribes procedure for making application by
the contractor and grant of license by the licensing officer. Every application
for grant of license is required to be made in the prescribed form and it must
contain the particulars regarding the location of the establishment, the nature
of process, operation or work for which inter - state migrant workmen are
employed[xix] . The licensing officer may
make investigation in respect of the application received by following
prescribed procedure and the license granted under the Act is valid for a
specified period and may be renewed from time to time.
The Act lays down the conditions under which the license
issued may be revoked or suspended or the security or any part thereof
furnished by the contractor may be forfeited[xx] . The licensing officer on
being satisfied can revoke license and forfeit the security furnished by the
contractor, if
(i) the license has been obtained by misrepresentation or
suspension of material facts or
(ii) the holder of the license has failed to comply
(without a reasonable cause) any of the conditions of the license or
(iii) the holder of the license contravened any of the
provisions of the Act or rules made there under[xxi]. The order of the
revocation or forfeit of security shall be made after the holder of the license
has been given reasonable opportunity of being heard[xxii].
The action contemplated under section 10 of the Act shall
be without prejudice to any other penalty to which the holder of the license
may be liable under this Act. The licensing officer is also authorized to suspend
the operation of the license, pending such revocation one or forfeiture of
security[xxiii]. The licensing officer
may also vary or amend a license granted under the Act.[xxiv]
The Act makes provision of appeal against the orders made
under section 4, section 5, section 8 or section 10 within 30 days on which the
order is communicated to an appellate officer who shall be a person nominated
in this behalf by the appropriate government and on receipt of an appeal after
giving the appellant an opportunity of being heard dispose of the appeal as
soon as possible[xxv].
The Inter – State Migrant Workmen Act clearly enumerates
the duties, obligations and other arrangements to be made by the contractors in
connection with Inter – State Migrant Workmen. Section 12 of the Act deals such
duties and obligations of the contractors. According to the section the
contractor must furnish the particulars regarding the recruitment of Inter –
State Migrant Workers within 15 days from the date of recruitment to the
relevant authorities in the state from which an Inter – State Migrant workmen
is recruited and in the state in which such workmen is employed. Where any
change occurs in any of the particulars so furnished such change shall be
notified to the relevant authorities of both the states. The contractor must
issue all the Inter – State Migrant workers with a pass book containing the
worker’s photograph and indicating in Hindi and English or in the language
known to the workman. The pass book must contain the name and place of employment
wherein the workman is employed, the period of employment, wage rates and mode
of payment displacement allowance payable, return – fare payable to the workman
on the expiry of the period of employment, any deductions made from wages and
other particulars. The contractors must furnish information to the authorities
of both the states about the termination of employment with a declaration that
wages and other dues of the workman and the fare for return journey back to his
state payable have been paid. The contractor is required to maintain the pass
book up – to – date and cause it to be retained with the Inter – State Migrant
workman concerned.
The Act provides wage security to the Inter – State
Migrant Workmen. The wage rates holidays, hours of work and other conditions of
service of Inter – State Migrant workmen shall be the same as those applicable
to other workmen if they perform the same or similar kind of work in the
establishment[xxvi].
In no case the Inter – State Migrant Workmen be paid less than minimum wages
fixed under the Minimum Wages Act, 1948 and the wages payable to the Inter –
State Migrant Workmen shall be paid in cash notwithstanding any other mode of
payment of wages is in operation under any other law for the time being in
force[xxvii].
The contractor is required to pay displacement allowance
to every Inter – State Migrant Workman at the time of recruitment and the
allowance shall be equal to fifty percent of the monthly wages payable to the
worker or seventy – five rupees whichever is higher[xxviii]. The amount paid to
workmen as displacement allowance shall not be refundable and shall be in
addition to the wages or other amounts payable to him[xxix]. The Inter – State Migrant
Workmen are entitled to displacement allowance for the simple reason that they have
to migrate to some other place for employment leaving the native place.
Similarly, the contractor is further required to pay journey allowance of sum
not less than the fare from the place of residence of the Inter – State Migrant
Workman in his state to the place of work in the other state both for the
outward and return journey besides payment of wages during the period of his
journey as if he is on duty[xxx]. The contractor has to
ensure regular payment of wages, equal pay for equal work irrespective of sex,
suitable conditions of work and to provide and maintain suitable residential
accommodation, medical facilities on free of charge, protective clothing and
report to the specified authorities of both the states and also the next of kin
of the workman any instances of serious bodily injury or fatal accident of the
workman[xxxi].
Section 17 the Act fixes the responsibility for payment
of wages to Inter – State Migrant Workers and to ensure payment within
prescribed period. The contractor shall be responsible for payment of wages to
each Inter – State Migrant Workmen employed by him and such wages shall be paid
before the expiry of prescribed wage period. Every principal employer shall
nominate a representative duly authorized by him to be present at the time of disbursement
of wages and he is required to certify the amount paid as wages in the
prescribed manner so that no deduction could be made out of wages payable to
the Migrant Workman. Similarly the contractor is bound to ensure the
disbursement of wages in the presence of authorized representative of the
principal employer. In case the contractor fails to make payment of wages
within the prescribed period or makes short payment, the principal employer
shall be liable to make payment of the wages in full or the unpaid balance due
to the Inter- State Migrant Workman employed by the contractor and recover the
amount so paid from the contractor either by deduction from any amount payable
to the contractor under any contract or as a debt payable by the contractor.
The allowances required to be paid under section 14 or
section 15 to an Inter- State Migrant Workman employed in an establishment is
not paid by the contractor or any facility specified in section 16 is not
provided for the benefit of such workman, then such allowance or facility shall
be provided by the principal employer[xxxii]. All the allowances paid
by the principal employer or all the expenses incurred by him in providing such
facility may be recovered by him from the contractor either by deduction from
any amount payable to the contractor under any contract or as a debt by the
contractor[xxxiii].
Under Section 19, it is the duty of every contractor and
every principal employer to ensure that any loan given by such contractor of
principal employer to any Inter- State Migrant Workmen does not remain
outstanding after the completion of the period of employment under the said
contractor or principal employer. The obligation of Inter- State Migrant
Workmen to repay any debt obtained from the contractor or principal employer
and remaining unsatisfied before the completion of such employment is deemed to
have been extinguished on completion of the employment. Also no suit or other
proceedings shall be in any court or before any authority for the recovery of
such debt or any part thereof. This is intended to safeguard the interest of
migrant worker. The Act makes clear that the loan which remains unsatisfied and
the period of employment is completed the loan is deemed to be extinguished and
no case can be filed for recovery.
Section 20 of the Act empowers the appropriate government
to appoint such persons as it thinks fit to be inspectors for the purpose of
this Act defining the local limits within which they shall exercise their
powers. This Section enumerates the powers of the inspectors. If the inspector
has reasonable grounds to believe that any Inter- State Migrant Workmen are
employed in any premises or place, he may enter at all reasonable hours with
such assistants who are in the service of the government or any local or other
public authority, such premises or place for the purpose of satisfying himself
whether the provisions of this relating to payment of wages, conditions of
service or facilities to be provided to such migrant workmen are being complied
with. For that purpose he may examine registers or records or notices. He may
also examine any person found in the premises to identify whether he is an
Inter – State Migrant Workman. Inspectors has power to seize or takes copies of
such registers, records of wages or notices which in his opinion are relevant
to constitute an offence under the Act. The section empowers the State
government also to appoint inspectors to satisfy itself whether the provisions
of this Act are being complied with in relation to workmen belonging to that
state employed in any establishment in another state. But no such order shall
be issued without the concurrence of the state government in which such workmen
are employed or without the concurrence of the central government if the
establishment where they are employed is pertaining to any industry carried on
by or under the authority of the central government.
Section 21 of the Act is a deeming provision. This
Section states that Inter- State Migrant Workmen shall be deemed to be employed
and actually worked in the establishment or as the case may be the first
establishment in connection with work which they are doing from the date of
their recruitment for the purpose of the enactments specified in the schedule
of the Act. It is clear that the date of recruitment and the date of employment
in any establishment where they are made available by the contractors may be
different. It is therefore, date of recruitment shall be deemed to be the date
of employment for certain labour enactments so that they may be entitled to the
benefits of the provisions of the enactments specified in the schedule such as
Employees Compensation Act, Payment of Wages Act, Industrial Disputes Act,
Employees State Insurance Act, Employee’s Provident Fund Act and the Maternity
Benefit Act.
Section 22 of the Act deals with adjudication of
Industrial Disputes relating to migrant workmen. This Section empowers the
Central Government in case it is the appropriate government, to refer such a
dispute to the authorities (specified in Chapter II of the Industrial Disputes
Act) in the state wherein the establishment is situated or in the state where
recruitment was made, provided the workman concerned makes an application on
the ground that he has returned to that state after completion of his work. In
case the Central Government is not the appropriate Government, the Act
similarly empowers the State Government to refer such a dispute to any one of
the authorities in the state wherein recruitment was made if the migrant worker
makes a request on the ground that he has returned to that state after
completion of his work, provided that such an application is made within six
months of his return to his state.
No such reference shall be made except after obtaining
the concurrence of the state Government in which the establishment is situated.
Section 22 contemplates the situation where the migrant workman moves an
application for transfer of proceeding during the pendency of the case. It
provides that if during the pendency of the proceeding an application for
transfer of such proceeding to the corresponding authority in the state of
recruitment is moved by migrant workman stating that he has returned back to
the state of recruitment after completion of his employment that authority
shall forward that application to the central government or the state
government, as the case may be, where such recruitment was made and transfer
pending proceeding in the prescribed manner to such authority as may be
specified in this behalf by that Government. This Section expressly provides
that if the Central Government is satisfied that it is expedient in the
interests of justice, may by order in writing with reasons withdraw any
proceeding relating to an Inter- State Migrant Workman pending before an authority
in which the establishment is situated and transfer it to authority in the
State where he was recruited. This section also provides that the authority to
which any such proceeding is transferred is empowered to proceed either afresh
or from the stage at which it was so transferred. Further it provides the
procedure for transfer of pending proceeding in connection with industrial
dispute of the migrant workman in the state where dispute arose to the state
where he was recruited.
Every principal employer and every contractor is required
to maintain such registers and records regarding the particulars of the Inter-
State Migrant Workmen employed, the nature of work performed but such workmen,
the rate of wages paid to the workmen and such other particulars and it is also
required that notices in the prescribed form containing particulars about hours
of work, nature of duty and such other information shall be kept exhibited
within the premises of the establishment by the principal employer and the
contractor concerned[xxxiv].
Section 24 of the Act provides for punishment for the
person who obstructs an inspector in discharge of his duties under this Act or
willfully neglects to afford the inspector or the authorized person any
reasonable facility for making any inspect on examination, inquiry or
investigation etc. The punishment may extend to two years of imprisonment or
with fines which may extend to two years of imprisonment or with fines which
may extend to two thousand rupees or with both. The Act imposes punishment with
imprisonment which may extend to one year or with fine which may extend to one
thousand rupees or with both on any person who contravenes any provisions of
this Act or any rules made there under regulating the employment of Inter –
State Migrant Workmen or contravenes any condition of a license granted under
this Act and in case of continuing contravention an additional fine may be
imposed which may extend to one hundred rupees per day during which such
contravention continues after conviction for the first such contravention[xxxv].
Section 26 deals that if any person contravenes any of
the provisions of this Act or of any rules made there under for which no other
penalty is elsewhere provided, he shall be punishable with imprisonment for a
term which may extend to two years, or with fine which may extend to two
thousand rupees, or with both.
Section 27 of the Act makes provision for punishment
where an offence has been committed by a company. In such event, every person
who at the time the offence was committed, was in charge of, and was
responsible to, the company for the conduct of the business of the company, as
well as the company itself, shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly. Protection is
given to a person who proves that the offence was committed without his
knowledge or that he has exercised all due diligence to prevent the commission
of such offence. In such a situation such person shall not be liable for the
same. This section provides further that if the offence has been committed by
the company and it has been proved that the offence was committed with the
consent or connivance of, or is attribute to any neglect on the part of any
director, manager, secretary or other officer shall be deemed to be guilty of
that offence and shall be liable to be proceeded against and punished
accordingly. According to this section, company means any body corporate and
includes a firm or other association of individuals and director in relation to
a firm means a partner in the firm. Section 28 deals cognizance of offence. The
cognizance of any offence under the Act can be taken by the court only when
complaint is made by or with the previous sanction in writing of an inspector
or authorized person and no court inferior to that of metropolitan Magistrate
or a first class Judicial Magistrate shall try any offence punishable under
this Act.
Section 29 of the Act says about limitation of
prosecutions. The period of limitation of prosecution is three months from the
date on which the alleged commission of the offence came to the knowledge of
the inspector or the authorized person concerned but the period of limitation
is six months in cases where the offence consists of disobedience of the written
orders of the inspector or authorized person as the case may be and the period
shall be counted from the date on which offence is alleged to have been
committed.
Section 30 of the Act gives an overriding effect over any
other law, agreement or contract of service etc., which are inconsistent with
the provisions of this Act. However, if under any other law, agreement or
contracts of service the Inter- State Migrant Workmen are getting more
favourable benefits, then these benefits shall continue and the Inter – State
Migrant Workmen will continue to get other benefits also from this Act.
Section 31 of the Act empowers the appropriate Government
to exempt any establishment or class of establishments or any contractor or
class of contractors or any Inter- State Migrant Workmen in such establishment
or class of such workmen from the operation or application of all or any of the
provisions of the Act or rules made thereunder, if that Government is satisfied
that it is just and proper to do so having regard to the methods of recruitment
and the conditions of employment in such establishments and all other relevant
circumstances.
Section 32 provides protection to any registering
officer, licensing officer or any other employee of the Government for anything
done in good faith or intended to be done in good faith in pursuance of the Act
or any rule or order made thereunder, from any suit, prosecution or other legal
proceedings. Similarly, no suit or other legal proceedings shall lie against
the Government itself for any damage caused or likely to be caused by anything
done or indented to be done in pursuance of this Act or any rule or
notification or order made or issued thereunder.
Section 33 empowers the Central Government to give
directions to any State Governments to execute the provisions of the Act in the
State concerned.
Section 34 confers powers on the Central Government to
make such provisions as appears to it to be necessary or expedient for removing
the difficulty experienced in giving effect to the provisions of this Act. The
Act empowers the appropriate Government to make rules to carry out the
provisions of the Act on matters related registration of an establishment,
license, security, appeals, wage rates, holidays, hours of work, conditions of
service, wage period, allowances or facilities powers of the inspectors, forms
of registers and records and legal aid to Inter – State Migrant Workmen[xxxvi]. The Central Government
in exercise of the powers conferred by Section 35 has made the rules namely
Inter-State Migrant Workmen Central Rules, 1980. The Tamilnadu Government has
made the rules namely Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) (Tamilnadu) Rules, 1983 in exercise of the powers
conferred under Section 35 of the Act.
Section 36 of the Act has repealed the Orissa Dadan
Labour (Control and Regulation) Act, 1975 and also repealed any law
corresponding to that Act, in force, in any State. However, this Section
provides that anything done or any action taken under the repealed law, in so
for as such thing or action is not inconsistent with the provisions of this Act
shall continue to be in force accordingly until superseded by anything done or
any action taken under this Act.
03. Constitution and the Act
The relevance of the dignity of human labour and the need
for protecting and safeguarding the interest of labour as human beings has been
enshrined in Part III (Articles 16, 19, 23 & 24) and Part IV (Articles
39,41,42,43,43A & 54) of the Constitution of India keeping in line with
Fundamental Rights and Directive Principles of State Policy.
The Constitution, besides empowering the legislatures to
make laws about industrial relations, also specifies the goals and values to be
secured.
Part IV enumerates the most important of these. It
explicitly states, however, that they are not judicially enforceable. Some of
these specify the goals and values to be secured by labour legislation for
workmen. They are:
(i) an adequate means of livelihood (Art. 39(a));
(ii) prevention of the concentration of wealth and means
of production (Art. 39(c));
(iii) equal pay for equal work by men and women (Art.
39(d));
(iv) protection and preservation of the workers' health
(Art. 39(e));
(v) the right to work, the right to education, and the
right to public assistance in cases of undeserved want (Art. 41);
(vi) just and humane conditions of work, and maternity
relief (Art. 42);
(vii) a living wage, and a decent standard of life (Art.
43).
By and large, industrial legislation has been directed
towards the implementation of these directives. The Factories Act, the
Employees State Insurance Act, and The Workmen's Compensation Act, aim at the
regulation of the employment of women and children in factories; the provision
of just and humane conditions of work; the protection of health; and
compensation for injuries received during work. The Minimum Wages Act provides
for the fixing of minimum wages; the Payment of Wages Act regulates wage
payment; and the Bonus Act seeks to bridge the gap between the minimum wage and
a living wage. But the directives relating to distribution of wealth, living
wages, equal pay for equal work, and public assistance in cases of undeserved
want, have not been generally implemented as yet.
The Interstate Migrant Workmen (Regulation of Employees
and Conditions of Service) Act, 1979 is a piece of enactment intended to
achieve some of these Constitutional goals.
04. Limitations on Legislative Competency
The guarantees of fundamental rights, in Part III of
the Constitution, limit and control legislative competency. Any law
contravening any fundamental right is void. Any individual affected by such a
law has a right of access to the courts under Articles 32 and 226; whereunder
it is the duty of the Supreme Court, or a High Court, respectively, to enforce
fundamental rights by issuing writs or suitable orders or directions.
The fundamental rights likely to affect industrial
legislation are:
Article 14: The State shall not deny to any person equality
before the law or equal protection of the laws.
Article 19 (1) : All citizens shall have the right-
(a) to freedom of speech and expression
(b) to assemble peaceably and without arms
(c) to form associations or unions ....
(d) to practise any profession, or to carryon any
occupation, trade or business.
Article 23 (1): Traffic in human beings and begar[xxxvii]
and other similar forms of forced labour are prohibited and any
contravention of this provision shall be an offence punishable in accordance
with law.
(2): Nothing in this article shall prevent the State from
imposing compulsory service for public purposes, and in imposing such service
the State shall not make any discrimination on grounds only of religion, race,
caste, or class or any of them.
Article 24: No child below the age of fourteen years
shall be employed to work in any factory or mine or engaged in any other
hazardous employment.
The rights of freedom of speech, freedom of assembly, and
freedom of association; the prohibition of forced labour and employment of
children in factories, protect some of the vital interests of the workers,
strengthening their hands in forming trade unions, in staging demonstrations,
and in carrying on collective bargaining. The freedom of trade and occupation
may, presumably, be of help principally to the employers. The right to
equality, however, protects both capital and labour, though in different ways. But
pertaining to a less privileged class of employees thrown out of their own soil
or due to the lack of survival circumstances in their own States, inter-State
migrant workmen are practically incapable of defending the exploitation against
them and to claim the constitutional and statutory rights available to them. A
separate legislation in this regard was thus necessitated and hence this
legislation.
05. Legislative Competency of Union and State
As per the seventh schedule of
the Constitution of India, labour laws falls either under Union List or
Concurrent List, as shown below.
|
Labour Jurisdiction –
Constitutional Status
|
|
|
Union List
|
|
|
Entry No. 55
|
Regulation of labour and safety in mines
and oil fields
|
|
Entry No. 61
|
Industrial disputes concerning Union
employees
|
|
Entry No. 65
|
Union agencies and institutions for
"Vocational ...training..."
(a) professional, vocational or technical training, including the
training of police officers; or
(b) the promotion of special studies or research; or
(c) scientific or technical assistance in the investigation or
detection of crime.
|
|
Concurrent List
|
|
|
Entry No. 22
|
Trade Unions; industrisl and labour
disputes.
|
|
Entry No. 23
|
Social Security and insurance, employment
and unemployment.
|
|
Entry No. 24
|
Welfare of labour including conditions of
work, provident funds, employers "invalidity and old age pension and
maternity
|
In legislations of Concurrent List, often there
shall be adequate provision for State amendments and in certain cases, State
Governments are given Rule making power of certain subject matter. All the
Entries Nos 22, 23 and 24 of the Concurrent list is applicable to the Interstate Migrant Workmen (Regulation of Employees and
Conditions of Service) Act, 1979
06. Some Case Laws on the Act
As the interstate migrant workmen are
reluctant to make use of this Act due to many of their disadvantages,
especially due to the fear of getting thrown out of employment on non-extension
of existing contract, the judiciary did not get much opportunity to comment on
the wires of this Act and there are only a few case laws available in regard to
this Act.
In Labourers Salal Hydro Project v.
State of J&K (1983 (2) SCC 181 : 1983 SCC (L&S) 289 Supreme Court
has held that “Workers recruited by Khatadars and brought from other States for
work in construction project, carried on by Central Government or contractors
or subcontractors acting under authority of Central Government are Inter-State
migrant workmen.
In Union of Democratic Rights v.
Union of India (1982) 3 SCC 235: 1982 SCC (L&S) 289 Supreme Court
declared that “Non observance of the Act amounts to article 21.” The Apex Court
also adjudged that “Obligation to provide amenities to the workers rests on the
principal employer if the same is not provided by the contractors engaged by
the principal employer.
In Bandua Mukti Morcha v. Union of
India (1984) 3 SCC 161: 1984 SCC (L&S) 389, Supreme Court held that
“Thekedars of Jamadars engaged to recruit labourers or workers for mine lessees
or owners from other States directly or through labourers and workers already
working are contractors and the persons so recruited are inter-state migrant
workmen and are, hence, entitled to all the benefits of the Act.”
In Damodar Panda (Dr) v. State of
Orissa (1990) 4 SCC 11: 1990 SCC (L&S) 567 Supreme Court held that,
“Officers of the originating State must be allowed by the recipient state to
hold inquiries in the recipient State regarding persons of the originating
State working as a migrant in the recipient State.”
In Mahabubnagar
District Palamoori Contract Labour Union v. M/S. Nagarjuna Construction Company
Limited, Mallapur Village, Karwar District and Others ILR 1998 Kar 1160:
1998(1) Kar LJ 639 Karnataka High Court held that Section 6 and
Section 25 of the Act are not enacted as a mere decorative piece but with real
purpose and objects to be achieved.
07. Amendments and attempts to amend the Act
On the recommendation of working group constituted by
Indian Labour Conference held at New Delhi on 20-21 February, 2009, a
Tripartite group was constituted to examine the provisions of inter-state
migrant workmen Act, 1979. The group examined various provisions of the Act and
reviewed the problems faced by the migrant workers, existing provisions of the
Act, enforcement machinery, problem in implementation of the Act, etc. The
group has submitted its report and the report have been placed before Indian
Labour Conference held on 23-24 November, 2010.
The Task force constituted for amendment of labour laws
concerning women and children, recommended that the title of the Act may be
changed in order to make it gender neutral. This recommendation of the task
force has been accepted and amendment in the title of the Act changing it as
“The Inter- State Migrant Worker (Regulation of Employment and Conditions of
Service) Act, 1979 has been proposed. The Union Cabinet gave its approval to
amend the title of the inter-state migrant workmen (Regulation of employment and
conditions of service) Act, 1979 to “inter-state migrant workers (Regulation of
employment and conditions of service) Act, 1979” by introducing a bill, namely
the inter-state migrant workmen (Regulation of employment and conditions of
service) amendment bill, 2011 (appendix-III) (Page 6-7). The Act will become
gender neutral by amending its title and replacing the word “workman and
workmen” by the words “worker and workers” respectively.
04. PROBLEMS OF INTERSTATE MIGRANT WORKERS AND THEIR REDRESSAL BY THE ACT
01. Problems of Interstate Migrant Workers in India
Some of the problems of inter-State migrant workers are
as follows
1. There are changes in employment, wages and other
living conditions of the workers after migration.
2. Whether the respondents differed in their opinions on
the severity of the problems faced in their working areas.
3. Migration of workers is enhancing the expenditure
pattern of the migrants.
4. Finance is the main reason for migration.
5. Majority of the population
is migrating from northern parts of India.
02. Problems of Interstate Migrant Workers in Kerala
The causes of migration are complex and varied. From this
study we could realise that the most important reason for voluntary migration
is economic. The chief factors which were instrumental to attracting the
migrant workers to the destination state have been identified by the workers as
follows.
a) Comparatively higher wages in Kerala (41.5 percent
attracted)
b) Get rid of debt (19 percent)
c) Poor economic condition of family forced to migrate
(16 percent)
d) Lack of job opportunities compelled to migrate (9
percent)
e) Invited by friends in
Kerala. (8.5 percent)
Migrant workers are forced to have a substantial role in
the decision to migrate. Majority of the migrant workers migrated from the
native place by the persuasion through relatives (52 percent), friends (21
percent) and contractors (17.5 percent). The responses of the workers clearly
indicated that the migrant workers from time to time have lured by the agents,
whereas handful number of migrant workers reached the place on their own will
(8.5 percent) in search of earning their livelihood.
Migration has far reaching impact not only on the
migrants but also on the families back in the villages. The workers reported
that they found their lives more satisfying (23.5 percent) after migration. As
now they were able to earn and save more money, which they could send as
remittances to their families in their villages. The migrants admitted that due
to migration their economic and social status in their native villages (14
percent) has improved. The remittances sent by them had contributed towards
improving the educational level of their wards, marriages of siblings, to meet
emergencies (14 percent) and clearing their old debts (27 percent) and reduce
the burden of present debt. Moreover that they gained knowledge (2 percent) and
became expertise in their field (1.5 percent). The benefits now they enjoying
at the migrating place are they could never even dream at their native place.
Different forms of spending their leisure time showed
that if they were free from the present work, they had gone (31Percent) for
some other works in the living area. 21 percent had gone for films, 14 percent
enjoyed with liquor and pan masala. Chatting through mobile phones was another
form of spending their leisure time (29 percent). Workers had no other
activities during their leisure time. They seldom go for evening walks around
their work place due to the fact that they are likely to be interrogated by the
police patrol and other civil authorities.
An attempt has been made to bring out the important push
and pull factors of migration of the respondents. It was found that poverty,
low employment at native place and more employment and higher wages in Kerala
were the prime factors for their migration. This was clearly understood from
the status of migrant workers before their migration to Kerala. In this study,
about 33 percent were wage earners, 21 percent were engaged in casual
employment, 5 percent workers were unemployed before their migration to Kerala.
So to escape from economic hardships in their native villages, the respondents
were migrated to Kerala.
03. Application of Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
Under the Indian Constitution any person aggrieved by a
tribunal's award can, on the ground of a violation of a fundamental right
guaranteed by Part III, move the Supreme Court, or the High Court, under
Articles 32 and 226, respectively, for an appropriate writ, order or direction.
He can also move the High Court under Article 226 on the ground of a violation
of any other right. A High Court's dismissal on the merits of a petition under
Article 226 operates as res judicata, barring the same or similar petition
under Article 32.[xxxviii]
Another possible course is for the person aggrieved to
invoke the Supreme Court's discretionary jurisdiction under Article 136. This
he can do, on any ground, by special leave of that Court, Article 136 is
designed to authorize the Supreme Court to intervene, -in its discretion, in
any case where the requirements of justice warrant.
After a High Court has passed upon an award, the person
aggrieved can appeal to the Supreme Court, in varying circumstances, under
Article 132 (constitutional questions) or under Article 133 (civil appeals).
Under Article 132 he must obtain a certificate (from the
High Court or in default thereof from the Supreme Court) that the case involves
the interpretation of the Constitution. An appeal so certified may bring in
other issues if the Supreme Court permits [Art. 132(3)]. Lacking a
constitutional question, the person aggrieved can appeal to the Supreme Court
only if the High Court certifies to the amount or value in dispute [Art. 133 (1)(a)(b)]
provided, however, that if the High Court's decision was an affirmance,
it must also certify to the existence of a substantial question of law. Or he
can appeal if the High Court certifies to the fitness of the case for review
[Art. 133(1)(c)]. In any appeal under Article 133, the claim can be raised that
a constitutional question has been decided wrongly below [Art. 113(2)].
In addition to all these provisions, Article 227 confers
on a High Court a power of superintendence over all courts and all tribunals in
its jurisdiction. A High Court can exercise this power even suo motu, for
the purpose of correcting any flagrant abuse of law or any grave miscarriage of
justice. It cannot, however, substitute its judgment for that of the lower
court.
05. RIGHT VERSUS CONSEQUENCES ON ENFORCEMENT OF RIGHTS
01. Migrant workers as men uprooted from their natural soil
Inter-State migrant workers are uprooted from their soil
and culture and are mostly appointed to lower grade jobs. They are always in a
mood of complete alienation and are often subjected to situations similar to
slavery and bonded labour in the name of advances received. Thus they are
reluctant to seek legal remedies and are financially and educationally
incapable to do so.
02. The beneficiaries of exploitation of migrant workers are not the beneficiaries of their work
There are middlemen who recruit in large scale interstate
migrant workers from States with low per capita wages to States with better
wages and facilities. They will provide a huge labour force which are
relatively less paid. But the actual beneficiary of their works are not
extended the benefit of this minimum wages as the beneficiaries of their
services are charged as usual. Only those who recruit, acts as agents and
employ these workers benefit them. They don’t want to have a substantial change
of living conditions to these employees.
03. When profit of both the employer and employee are the sole motive, the issue of human rights and fundamental rights become secondary
The employer gets less paid workers and the workers get
better remuneration than in their native State. Thus they are happy even if
their human and fundamental rights are infringed especially when they have
apprehension of losing their work in case they rebut.
04. The Proof of existence of a Labour Department in Kerala
The Labour Department in Kerala is working hard to
address the problems of inter-state migrant works and many cases have been
registered where these workers are denied sufficient facilities such as shelter
hygiene and medical facilities.
06. AN ASSESSMENT OF THE APPLICATION OF THE ACT
01. Achievements
The Act is made 1970 where the main evils in this regard
were slavery and bonded labour. The problems have changed considerably and
remedies are also manifold. Legal aid programs and interpretation of
fundamental rights have evolved much. Hence a thorough amendment in the Act is
necessary to regulate and solve the problems and threats involved in the
application of the Act and the lives of inter-state migrant workers.
02. Failures
The provisions of the Inter-State Migrant reveal the
following flaws.
The Act does not apply to all individual migrant Labour
.The Act leaving a sizable number of migrant workers out of its purview by
applying its provisions to every industrial establishment / Contractor into
which five or more migrant workmen are employed.
The responsibility for enforcement of the provisions of
the Act lies with the Central Government if it is the appropriate Government.
Similarly, the responsibility for enforcement of the provisions of the Act lies
with the Government of the host State in which the establishment is located and
also with the Government of the Home State from where the workmen have been
recruited. Generally, one State Government does not want to interfere in the
jurisdiction of the other state where the enforcement responsibility lies with
both the States. This is a serious hurdle for the effective enforcement of the
Act.
According to the Act, the Inter-State Migrant Workmen
means who is recruited by or through a contractor in one state under an
agreement or other arrangement for employment in an establishment in another
state whether with or without the knowledge of the Principal Employer. The Act
recognizes only those workers who are recruited by or through a contractor as
inter-state migrant worker. Workers migrating on his own and employed
individually outside his own state or workers migrating without such
contractors are not covered under the purview of the Act.
In this aspect, this Act does not safeguard the interest
of all migrant workmen who leave their state on his own in a much more
distressed condition and take shelter of employer directly without such
contractors in another state to earn their livelihood. Hence, the definition of
Inter-State Migrant Workmen in the Act is discriminatory in terms of extending
the benefits.
The Act was designed to protect the workers against the
evils of contracting system and also to eradicate the evils of contracting
system. But the Act encouraging ‘Contracting System’ by making the recruitment
of Inter- State Migrant Workman by or through a contractor under a agreement or
other arrangement for employment. It is to be noted that the primary objective
of the contract labour act is ‘abolition of contract labour’ and it is
regulating the working conditions of contract labour only wherever such
employment is required. It is interesting to note that the Royal Commission on
Labour, the National Commission on Labour and the Judiciary all have discouraged
the practice of employment of workers through or by contractor. Therefore the
‘system of contract labour’ remains intact in the migrant law even after
passing a special legislation for its abolition.
The Act permit to recruit Inter – State Migrant Workman
through or by contractor for employment under an agreement or other
arrangement. The Act state that recruitment by or through contractor may be
made with or without knowledge of the principal employer. Therefore, this Act
does not bring contractors and migrant workers directly under the principal
employer. Apart from this, Migrant workers are almost always as a rule, engaged
through contractors. In such cases, there is no direct relationship between
migrant workers and the principal employer. In the absence of direct
relationship between the employer and employee, the migrant workers can only
seek assistance through the contractors. Thus, the migrant workers don’t always
enjoy formal employer – employee relationship in their workplace. As a result of
this, the principal employers do not consider the migrant workers as their
workers as they are recruited and brought by contractors. It looks anomalous
that migrant workers can receive the limited benefits of the existing labour
laws only if there is an Employer – Employee relationship.
Many migrant workers who enter the host state through the
contractor may leave the principal employer or may change the principal
employer or workplace. An Inter – State Migrant Workman who is recruited by or
through a contractor under an agreement, switches his work to another employer
is not entitled to the protection admissible under the Act.
The important feature of migrant worker is lack of
continuity or stability in employment. There is no provision in this protective
legislation to provide security for employment. In the absence of security for
employment, migration of workers is likely to persist with all its attendant
consequences.
The Act in its provision state that no contractor shall
recruit or employed migrant workmen except valid license. But there is no
corresponding provision for the obligation of the principal employer that not
to get work through unlicensed contractor.
There is no provision in the Act for specifying the
duties and obligations of principal employers. The liabilities of the principal
employer are also not specifically specified.
The Act does not hold the contractor responsible for any
breach of the provisions of the Act because there is no provision in this Act
for specifying the liabilities of the contractor (or) making the contractor
liable for any breach of the Act.
The Act provides that the state from which migrant
workmen are recruited may appoint inspectors for the purposes of satisfying
itself that the provisions of the Act are being complied with in respect of
such workmen who are employed in another state. However, the appointment of
such inspector is dependent upon the concurrence of the Government of the
receiving states in which such workmen are employed[xxxix]. Concurrence has been
hard to come by whatever may be the reasons. Generally, the State Government do
not want inspectors from another state to operate within their jurisdiction for
whatever reasons.
Sections 22 of the Act permit the Inter – State Migrant
Workman to raise an industrial dispute arising out of his employment either in
the host state or in the home state after his return to the state after the
completion of the contract of employment. He will also be permitted to apply
for the transfer of proceedings in relation to an industrial dispute pending
before an authority in the host state to the corresponding authority in the
home state on the ground that he has returned to the state after completion of
his contract. The formal request for transferring the proceedings to their home
state must be made within a period of 6 months from their return from the host
state in which they were employed. This is also again subject to the
concurrence of the host state in which the migrant workers were employed and
such concurrence is not be easily possible in practice.
Everybody is responsible for the effective implementation
of any law. In this aspect the Act providing penalties for the offences
committed by the principal employer and contractor. But this Act is silent
regarding the penalties to the inspectors who do not perform or exercise their
duties diligently for the effective implementation of the Act.
Section 27 of the gives a loophole to a company or every
person for escaping from prosecution by pleading that the offence was committed
without his knowledge. This seems to be the defective proposition.
The penalties provided for violation of the provisions of
the Act are not sufficiently stringent. Moreover the Act does not provide for
making the violation of the Act a cognizable offence[xl]. The offence is Non –
Cognizable.
The Act gives protection in suit, prosecution or legal
proceedings to registering officer, licensing officer or any other employee of
the government from prosecution for acts done in good faith and also gives
protection on the Government from claiming damages[xli].
The Act is silent on permitting the third parties to file
complaints against defaulter for violation of the Act.
03. Suggestions
Migrant workers have no residential security and are
compelled to live and work in crowded slums and unauthorized public
lands/locations with unsatisfactory civic amenities and access to basic
amenities and access to basic services and they undergo repeated displacement.
Migration needs to be facilitated through a proper development initiatives and
strategies so that its benefits can be maximized at all levels. These include
the following:
1) Voluntary registration of migrants based on which all
benefits to DMLs will converge. A Common Single Point One-Time Voluntary
Registration System led by the Department of Labour but implemented at the
local self-government level has been proposed. The benefits of all government
schemes will be conditional on registration.
2) The UID authority in consultation with the National
Coalition of Organisation for Security of Migrants can develop a system where
by migrants can use Aadhar to avail health, education and PDS, bank’s services
for savings, credit, remittances and insurance among others.
3) Provision of affordable housing to migrants may be
done by the state government. Private enterprises with public support can be
encouraged to build clean hygienic rooms to be given out on rent.
4) Health coverage through national programmes such as
RSBY or special schemes
5) Steps may be taken to make migrants aware of their
rights and obligations by undertaking awareness programmes in their languages
(such as Bengali, Hindi, Assamese and Odia.) Awareness may be carried out on
TV, radio, long distance trains and railway stations.
6) Migrants’ access to food should be guaranteed under
the National Food Security Act and through Public Security System. For this
migrants can be organized into Self Help Groups.
7) A comprehensive social protection programme is
necessary for migrants to guarantee minimum wage, no exploitation, proper
housing, access to improve sources of drinking water, sanitation and health
services.
8) Laws must be passed to guarantee minimum wages,
protection from sexual exploitation and social protection.
07. CONCLUSION
In the context of market driven economy migration has
become one of the most critical issues for socio-economic development.
Significant improvement in road connectivity and telecommunication system has
facilitated reduction in the cost of migration and in speed at which migrants
can move from origin to destination. The Constitution of India guarantees
freedom of movement and freedom to settle within the territory of India as a
Fundamental Right to all citizens. Yet migrants face several barriers in
accessing civic amenities, housing and employment as well as restrictions on
their political and cultural rights because of linguistic and cultural
differences. In the absence of suitable measures migrant workers have no
residential security and are compelled to live and work in crowded slums and
unauthorized public lands/locations with unsatisfactory civic amenities and
access to basic amenities and access to basic services and they undergo
repeated displacement. . It is estimated that there are over 25 lakh Domestic
Migrant Labour in Kerala today with an annual arrival rate of 2.35 lakhs. The
remittances to their home states by the DML are over Rs.17500 crores. They are
generally very dedicated and sincere to their work; there are hardly any
complaints from their employers. However they do not get the benefits of social
security schemes. Migration needs to be facilitated through a proper
development initiatives and strategies so that its benefits can be maximized at
all levels.
BIBLIOGRAPHY
1.
Status of Migrants
from other States to Kerala – Need for Development Initiatives by Ananda
Padmanabhan J. published in International Journal of Commerce, Business and
Management (IJCBM), ISSN: 2319–2828 Vol. 5, No.1, Jan-Feb 2016
2.
Interstate Migrant Workmen (Regulation
of employment and Conditions of Service) Act, 1979 Published by Eastern Book
Company, Lucknow, 13th Edition 2015
3.
Labour Migration to Kerala: A Study of Tamil
Migrant Labourers in Kochi, Surabhi K.S. and N. Ajithkumar, Centre for Socio-economic & Environmental Studies
(CSES), Padivattom, Kochi –24, October 2007
4.
Social Integration
of Migrant Workers in Kerala: Problems and Prospects by Dr. Lizy James and
Dominic Mathew, published by Center for Education Development and Research
Society, (CEDARS), Kozhikode, 2016
5.
https://indiankanoon.org
6.
http://judis.nic.in/supremecourt/chejudis.asp
7.
http://judis.nic.in/judis_kerala/content.asp
8.
https://en.wikipedia.org/wiki/Main_Page
NOTES
[i]
Section
1 (4) (a) and (b)
[ii]
Section
2 (1) (e)
[iii]
Section
3
[iv] Section 4
[v] Section 4
(2) (a)
[vi]
Section 4 (2) (b)
[vii] Section 4
(3)
[viii]
Section 5
[ix] Section 5
[x] Section 6
[xi] Section 7
[xii] ibid
[xiii]
ibid
[xiv]
Section
8
[xv]
Section
8
[xvi]
Section
8 (2)
[xvii]
ibid
[xviii]
Section
8 (3)
[xix]
Section
9
[xx]
Section
10
[xxi]
ibid
[xxii]
ibid
[xxiii]
Section
10
[xxiv]
ibid
[xxv]
Section
13
[xxvi]
Section
13
[xxvii]
ibid
[xxviii]
Section
14
[xxix]
ibid
[xxx]
Section
15
[xxxi]
Section
16
[xxxii]
Section
18
[xxxiii]
Ibid
[xxxiv]
Section
23
[xxxv]
Section
25
[xxxvi]
Section
35
[xxxvii]
Begar means forced labour
[xxxviii]
Daryao v. State of Uttar Pradesh, A.I.R. 1961 S.C. 1457
[xxxix]
Section
20(3)
[xl]
Section
28
[xli]
Section
32
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