UNIT 2 DUTIES AND RESPONSIBILITIES OF OCCUPIER ...

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UNIT 2 DUTIES AND RESPONSIBILITIES OFOCCUPIERAND FACTORYMANAGER

Structure

2.1 IntroductionObjectives

2.2 The Overview of Factories Act – 19482.2.1 The Jargon of Factories Act -19482.2.2 The History of Factories Act -19482.2.3 Amendments in the Factories Act - 1948

2.3 Concept and Meaning of ‘Occupier’2.4 Duties and Responsibilities of the Occupier2.5 The Obligations of an Occupier

2.5.1 Notice by Occupier (Sec. 7)2.5.2 The Obligations as per Factories Act – 19482.5.3 General Provisions to be Obliged by Occupier2.5.4 Provisions Relating to Hazardous Processes in Factories2.5.5 Penal Provisions

2.6 Factory Manager Job Responsibilities2.7 Provisions Under Factories Act – 1948

2.7.1 Regarding the Health of Workers2.7.2 Provisions Regarding the Safety of Workers2.7.3 Provisions Regarding the Welfare of Workers

2.8 Other Provisions of the Factories Act2.9 Penalties and Procedures

2.9.1 Appeals2.9.2 Notice2.9.3 Returns

2.10 Obligations of Workers2.11 Case Study2.12 Let Us Sum Up2.13 Key Words2.14 Answers to SAQ’s

2.1 INTRODUCTION

The duties, responsibilities and the obligations of an occupier, factory managerand the workers are clearly mentioned in the Factories Act – 1948. No otheract (in India) has covered all the details of the functions, activities andexplanations that are required to maintain, monitor and control a factory.

The main idea behind framing the Indian Factories Act was to standardize theworking conditions in factories to regulate health, safety, welfare,leave/holidays and also to enact special provisions in respect of young persons,women and children, who work in the factories.

ObjectivesAfter studying this unit, you should be able to

explain all the terms and how they are meant under legal premises

discuss the functions involved in a factory and establishments alongwith their bounds and limits

describe the duties and responsibilities of an occupier

narrate the functions of an occupier or/and manager with reference tothe safety, welfare, facilities and amenities including working hours

Industrial Acts and Laws

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appreciate the functions of a factory manager along with the authorityboundaries

discuss the responsibilities of workers.

2.2 THE OVERVIEWOF FACTORIESACT – 1948

To have a clear understanding of the Factories Act and also about theimplementation of the same, one should know the duties and responsibilities ofthe occupier and the factory manager. To accomplish this, one must be awareand well acquainted with the history, terminology and jargon used in the act,otherwise his / her perception about the key positions of a factory will neitherbe complete nor perfect. We shall therefore, have a quick review of the act withthe relevant terms in the section to follow.

2.2.1 The Jargon of Factories Act – 1948The following are some important terms defined under the Factories Act –1948

1. FactoryThe term Factory is defined in Section 2 (m) of the Act as follows:

"Factory means any premises including the precincts thereof.

whereon ten or more workers are working, or were working on any day of thepreceding twelve months, and in any part of which a manufacturing process isbeing carried on with the aid of power or is ordinarily so carried on, or

whereon twenty or more workers are working, or were working on any day ofthe preceding twelve (12) months, and in any part of which a manufacturingprocess is being carried on without the aid of power, or is ordinarily so carriedon, but does not include a mine subject to the operation of the Indian MinesAct, 1952 (Act XXXV of 1952), or a mobile unit belonging to the armedforces of the Union, a railway running shed or a hotel, restaurant or eatingplace.

Explanation.For computing the number of workers for the purposes of this clause all theworkers in different relays in a day shall be taken into account [Clause 2(m) asamended in 1976]. Under Section 85, the State Government is empowered todeclare any establishment carrying on a manufacturing process to be a factoryfor the purposes of the Act even though it employs less than the prescribedminimum number of workers, provided that the manufacturing process is notbeing carried on by the owner only with the aid of his family.

SummaryFrom Sec. 2(m) of the Act it follows that all establishment comes within thedefinition of a Factory if the conditions stated below are satisfied:

It is a place where a "manufacturing process" is carried on.

It employs the prescribed minimum number of "workers" viz., ten if "'power"is used, and twenty if no "power" is used. It is sufficient if the prescribednumber of workers were employed on any day of the preceding twelve months.

It is not a mine coming within the purview of the Indian Mines Act of 1952, arailway running shed, mobile unit belonging to the armed forces of the Union,a hotel, restaurant or eating place.

Duties and Responsibilities ofOccupier and Factory Manager

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2. Manufacturing ProcessThis term is defined in Section 2(k) in a very wide sense. It includes:

making, altering, ornamenting, finishing, packing, oiling, washing, cleaning,breaking up, demolishing, or otherwise treating or adopting any article orsubstance with a view to its use, sale, transport, delivery or disposal; or

pumping oil, water, sewage or any other substance; or

generating, transforming or transmitting power; or

composing types for printing, printing by letter press, lithography,photogravure or other similar processes or book binding; or

constructing, reconstructing, repairing, refitting, finishing or breaking up shipsor vessels;

For the corresponding section of the English Act, it was held that the differentprocesses numerated in the clauses are merely illustrative so that laundries,carpet beating, or bottle washing works come within the Act, if mechanicalpower is used.

The following undertakings also come under manufacturing processesbidi-making;conversion of raw-films into finished products;the preparation of eatables in the kitchen of a restaurant;use of a refrigerator for adapting any article with a view to its sale

The scraping out of salt and grading them, even though done by, manual labour,is a manufacturing process.

3. Worker"Worker means a person employed, directly or by or through any agency(including a contractor) with or without the knowledge of the principalemployer, whether for remuneration or not in any manufacturing process, or incleaning any part of the machinery or premises used for a manufacturingprocess, or in any other kind of work incidental to, or connected with, themanufacturing process" or the subject of the manufacturing process but doesnot include any member of the armed forces of the Union". -Sec. 2(1), asamended in 1976.

ExplanationWorker means any person engaged in any work connected with or incidental toa manufacturing process. Thus the definition is wide. The term includespersons engaged directly and, also those who are engaged through an agency(including a contractor with or without the knowledge of the principalemployer). The term includes clerical workers and persons paid by piece ratesin a factory.

The term 'worker' does not include any member of the armed forces of Union.In case of a factory worker there must be a relationship between the employerand the employed. Apprentices, whether remunerated or not, are workerswithin the meaning of the Act.

4. Power"Power means electrical energy or any other form of energy which ismechanically transmitted and is not generated by human or animal agency".Sec. 2(g).


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5. Prime mover"Prime mover means any engine, motor or other appliance which generates orotherwise provides power." -Sec. 2(h).

6. Transmission machinery"Transmission machinery means any shaft, wheel, gear train, drum pulley,system of pulleys, coupling, clutch, driving belt or other appliance or device bywhich the motion of a prime mover is transmitted to or received by anymachinery or appliance". -Sec. 2(i).

7. Machinery"Machinery includes prime movers, transmission machinery and all otherappliances whereby power is generated, transformed, transmitted or applied".Sec. 2(j).

8. Adult"Adult means a person who has completed his eighteenth year of age". -Sec.2(a).

9. Adolescent"Adolescent means a person who has completed his fifteenth year of age buthas not completed his eighteenth year". -Sec. 2(b).

10. Child''Child means a person who has not completed his fifteenth year of age". -Sec.2(c)

11. Young Person"Young Person means a person who is either a child or an adolescent". -Sec.2(d).

12. Calendar Year"Calendar Year means the period of twelve months beginning with the first dayof January in any year". -Sec. 2(dd).

13. Day"Day means a period of twenty four hours beginning at midnight." -Sec. 2(e).

References to the time of the day in the Act are to the Indian Standard Time.

In areas where the I.S.T. is not observed, the State Government can by rulesdefine the local mean time. -Sec. 3.

14. Week"Week means a period of seven (7) days beginning 'at midnight on Saturdaynight or such other night as may be approved in writing, at a particular area bythe Chief Inspector of Factories." -Sec. 2(f).

15. Shift and RelayWhere work of the same kind is carried out by two or more sets of workersworking during different periods of the day, each of such sets is called a"relay" and each of such periods is called a "shift". -Sec. 2(r).


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16. Occupier"Occupier" of a factory means the person who has ultimate control over theaffairs of the factory, and where the said affairs are entrusted to a managingagent, such agent shall be deemed to be the occupier of the factory. -Sec. 2(n).

The Act imposes several duties, obligations and responsibilities on theoccupier of the factory.

2.2.2 The History of Factories Act – 1948Production of goods is an integral part of the economy of a country. Needless tosay that anything related to production is also very important for the economy ofthe country.

As an obvious extension of the above, a factory, where these goods are produced,is an essential part of the economy too. Large factories are even more importantfor the economy of any country.

If the historical facts are taken into consideration with regard to the industrialscenario of our country, it could be observed that there was a steady increase inthe number of large scale factory/industry in India since the second half of thenineteenth century.

Appreciating the importance of maintaining proper working environment inthese factories, Major Moore, Inspector-in-Chief of the Bombay CottonDepartment, in his Report in 1872-73 emphasized the necessity of theprovision of legislation to regulate the working condition in factories.Consequently, the first Factories act was enacted in 1881.

Since then the act has been amended on many occasions. To be precise, it wasamended in 1891, 1911, 1922 and then in 1934.

The Factories Act 1934 was passed replacing all the previous legislation inregard to factories. This act was drafted in keeping with the recommendationsof the Royal Commission on Labour.

However, the experience of working of the Factories Act, 1934 did reveal anumber of defects and weakness, which had hampered effective administrationof the Act, necessitating a large scale revision of the act to extend its protectiveprovisions to the large number of smaller industrial establishments also.

Therefore, the Factories Act, 1948 consolidating and amending the law relatingto labour in factories, in a comprehensive manner was passed by theConstituent Assembly on August 28, 1948. The Factories Act, 1948 receivedthe assent of Governor General of India on 23 September 1948 and came intoforce on April 1, 1949. It applies to factories, as defined in the Act, all overIndia, including the State of Jammu and Kashmir.

The Act of 1948 is more comprehensive than the previous Acts. It containsdetailed provisions regarding the health, safety and welfare of workers insidefactories, the hours of work, minimum age of the workers, leave with pay etc.The Act has been amended several times. The Act is based on the provisions ofthe Factories Act of Great Britain passed in 1937. In 1976 the Act wasamended extensively. (The provisions of the Amendment have been quoted andsummarized at the appropriate places in this unit).

Unless otherwise provided, the Factories Act applies to factories belonging tothe Central or any State Government (Sec. 116).


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Applicability of Factories Act, 1948The Act is applicable to any factory whereon ten or more workers areworking, or were working on any day of the preceding twelve months,and in any part of which a manufacturing process is being carried onwith the aid of power, or is ordinarily so carried on, or whereon twentyor more workers are working, or were working on any day of thepreceding twelve months, and in any part of which a manufacturingprocess is being carried on without the aid of power, or is ordinarily socarried on; but this does not include a mine, or a mobile unit belongingto the armed forces of the union, a railway running shed or a hotel,restaurant or eating place.

Importance of Factories Act, 1948The Factories Act, 1948 is a beneficial legislation. The aim and objectof the Act is essentially to safeguard the interests of workers, stop theirexploitation and take care of their safety, hygiene and welfare at theirplaces of work. It casts various obligations, duties and responsibilitieson the occupier of a factory and also on the factory manager. Variousamendments to the Act and court decisions have further extended thenature and scope of the concept of occupier, especially vis-a-vishazardous processes in factories.

2.2.3 Amendments in the Factories Act - 1948The Factories Act, 1948 is a beneficial legislation. The aim and object of theAct is essentially to safeguard the interests of workers, stop their exploitationand take care of their safety, hygiene and welfare at their places of work. It isvery specific about various obligations, duties and responsibilities on theoccupier of a factory. Amendments to the Act and court decisions have furtherextended the nature and scope of the concept of occupier, especially vis-a-vishazardous processes in factories.

Proviso (ii) was introduced by the Amending Act couched in a mandatory form– “any one of the directors shall be deemed to be the occupier” - based on theexperience gained over the years as to how the directors of a companymanaged to escape their liability for various breaches and defaults committedin the factory by putting up another employee as a shield and nominating himas the ‘occupier’ who would willingly suffer penalty and punishment.

It was held that where the company owns or runs a factory, it is the companywhich is in the ultimate control of the affairs of the factory through its directors.Even where the resolution of the board says that an officer or employee otherthan one of the directors shall have ultimate control over the affairs of thefactory, it would only be a camouflage or an artful circumvention because theultimate control cannot be transferred from that of the company to one of itsemployees or officers, except where there is a complete transfer of the controlof the affairs of the factory.

An occupier of the factory in the case of a company must necessarily be any ofits directors who shall be so notified for the purposes of the Factories Act.Such an occupier cannot be any other employee of the company or the factory.This interpretation of an òccupier' would apply to all provisions of the Actwherever the expression òccupier' is used, and not merely for the purposes ofSec. 7 or Sec. 7A of the Act.

The Supreme Court further held that proviso (ii) is not ultra vires the mainprovision of Sec. 2(n) and, as a matter of fact, there is no conflict at all


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between the main provision of Sec. 2(n) and proviso (ii) thereto. Both can beread harmoniously and when so read in the case of a company, the occupier ofa factory owned by a company would mean any one of the directors of thecompany who has been notified/ identified by the company to have ultimatecontrol over the affairs of the factory. And where no such director has beenidentified, then, for the purposes of prosecution and punishment under the Act,the Inspector of Factories may initiate proceedings against anyone of thedirectors as the deemed occupier.

The restriction imposed by proviso (ii), if at all it may be called a restriction,has a direct nexus with the object sought to be achieved and is, therefore, areasonable restriction within the meaning of clause (6) of Article 19. Proviso(ii) to Sec. 2 (n) is thus not ultra vires Article 19(1)(g) of the Constitution.

In another Supreme Court case, Indian Oil Corporation vs Chief inspector ofFactories [1998(4) SCALE 116], it was observed that it is the Governmentwhich looks after the successful implementation of the Factories Act and,therefore, it is not likely to evade its implementation. That appears to be thereason why the legislature thought it fit to make a separate provision for theGovernment and local authorities, and so on. The legislature has provided thatin the case of a factory owned or controlled by any of these authorities theperson or persons appointed to manage the affairs of the factory shall bedeemed to be the occupier. Therefore, if it is a case of a factory, in fact and inreality, owned or controlled by the Central Government or other authority, theperson or persons appointed to manage the affairs of the factory shall have tobe deemed to be the occupier even though for better management of such afactory, a corporate form is adopted by the Government.

It was held in the case that the relevant provisions regarding the establishmentof the appellant corporation and its working leave no doubt that the “ultimatecontrol” over all the affairs of the corporation, including opening and runningof the factories, is with the Central Government. Acting through thecorporation is only a method employed by the Central Government for runningits petroleum industry. In the context of Sec. 2(n), it will have to be held thatall the activities of the corporation are really carried on by the CentralGovernment with a corporate mask.

SAQ 1a) Define the terms Factory, Manufacturing Process and Worker

according to the Factories Act – 1948 and explain them.

b) Give a brief history of establishment of Factories Act – 1948 inIndia.

c) What do you understand by the terms power, machinery,transmission machinery and prime mover according to FactoriesAct – 1948?

d) Define the terms adult, adolescent, child and young person asdescribed by the Factories Act – 1948.

e) Define the terms shift, day, week, and calendar year as describedby the Factories Act – 1948.

f) What are amendments made in the Factories Act – 1948?Discuss.


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2.3 CONCEPTAND MEANING OF ‘OCCUPIER’

The definition of òccupier' has a long history. The amendment of 1987 madesignificant changes in it and Section-100 of the Act was deleted. A stricterprovision in Sec. 2(n) was introduced by incorporating the first proviso thathas been made in a mandatory form.

Section 2(n) of the Factories Act, 1948 defines “Occupier” as follows:

"Occupier" of a factory means the person who has ultimate control over theaffairs of the factory

Provided that-

in the case of a firm or other association of individuals, any one of theindividual partners or members thereof shall be deemed to be theoccupier;

in the case of a company, any one of the directors shall be deemed tobe the occupier;

in the case of a factory owned or controlled by the Central Governmentor any State Government, or any local authority, the person or personsappointed to manage the affairs of the factory by the CentralGovernment, the State Government or the local authority, as the casemay be, shall be deemed to be the occupier.

Provided further that in the case of a ship being repaired, or on whichmaintenance work is being carried out, in a dry dock which is available for hire:

the owner of the dock shall be deemed to be the occupier for thepurposes of any matter provided by or under

Sec. 6 (approval, licensing and registration of factories);

Sec. 7 (notice by occupier);

Sec. 7A (general duties of the occupier);

Sec. 7B (general duties of manufacturers, and so on);

Sec. 11 (cleanliness in a factory); or

Sec. 12 (effective arrangements for the treatment of wastes andeffluents);

Sec. 17, in so far as it relates to the providing and maintenance ofsufficient and suitable lighting in or around the dock;

Sec. 18 (effective arrangements for drinking water);

Sec. 19 (provision of latrines and urinals);

Sec. 42 (provision of washing facilities);

Sec. 46 (provision of canteens);

Sec. 47 (shelters, rest rooms and lunch rooms); or

Sec. 49 (employment of welfare officers) in relation to workersemployed on such repair or maintenance;


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the owner of the ship or his agent or master or other officer-in-chargeof the ship or any person who contracts with such owner, agent ormaster or other officer-in-charge to carry out the repair or maintenancework shall be deemed to be the occupier for the purposes of any matterprovided for by, or under

Sec. 13 (provision of adequate ventilation and temperature tosecure reasonable conditions of comfort and to prevent injury tohealth);

Sec. 14 (prevention of inhalation and accumulation of dust andfumes);

Sec. 16 (prevention of over-crowding), or

Sec. 17 (provision of lighting arrangements), or provisionsrelating to safety, or

Sec. 43 (facilities for storing and drying clothing),

Sec. 44 (facilities for sitting), or

Sec. 45 (provision of first-aid appliances), provisions relating toworking hours of adults, employment of young persons, annualleave with wages, or special provisions relating to compliance ofrules laid down by the government, or Sec.

108 (display of notices);

Sec. 109 (service of notices on owners, occupiers or managers offactories), or

Sec. 110 (submission of returns) in relation to the workersemployed directly by him, or by or through any agency; and themachinery, plant or premises in use for the purpose of carryingout such repair or maintenance work by such owner, agent, masteror other officer-in-charge or person.

2.4 DUTIESAND RESPONSIBILITIES OFTHEOCCUPIER

In the landmark case of J. K. Industries Ltd Vs Chief Inspector of Fisheries andBoilers [1996 (7) SCALE 247], the Supreme Court observed that by theAmending Act, 1987, the legislature wanted to bring in a sense ofresponsibility in the minds of those who have the ultimate control over theaffairs of the factory so that they take proper care for the maintenance of thefactories and the safety measures therein. The fear of penalty and punishmentis bound to make the board of directors of the company more vigilant andresponsive to the need to carry out various obligations and duties under the Act,particularly in regard to the safety and welfare of the workers.

The General Responsibilities of Occupier under the Factories Act – 1948

Every occupier shall ensure, so far as is reasonably practicable, thehealth, safety and welfare of all workers while they are at work in thefactory.

Without prejudice to the generality of the provisions of sub-section (1),the matters to which such responsibility extends, shall include-


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the provision and maintenance of plant and systems of work inthe factory that are safe and without risks to health;

the arrangements in the factory for ensuring safety and absence ofrisks to health in connection with the use, handling, storage andtransport of articles and substances;

the provision of such information, instruction, training andsupervision as are necessary to ensure the health and safety of allworkers at work;

the maintenance of all places of work in the factory in a conditionthat is safe and without risks to health and the provision andmaintenance of such means of access to, and egress from, suchplaces as are safe and without such risks;

the provision, maintenance or monitoring of such workingenvironment in the factory for the workers that is safe, withoutrisks to health and adequate as regards facilities and arrangementsfor their welfare at work.

Except in such cases as may be prescribed, every occupier shall prepare,and, as often as may be appropriate, revise, a written statement of hisgeneral policy with respect to the health and safety of the workers atwork and the organization and arrangements for the time being in forcefor carrying out that policy, and to bring the statement and any revisionthereof to the notice of all the workers in such manner as may beprescribed.

The Duties of Occupier under Factories Act, 1948General

To ensure the health, safety and welfare of all workers while theyare at work in the factory.

To provide and maintain the plant and systems of work in thefactory that are safe and without risk to health of the workers.

To provide arrangements in the factory for ensuring safety andabsence of risk to health in connection with the use, handling,storage and transport of articles and substances

To provide such information, instruction, training and supervisionas are necessary to ensure the health and safety of all workers atwork.

To maintain all places of work in the factory in a condition that issafe and without risks to health and to provide and maintain suchmeans of access to, and egress from, such places as are safe andwithout such risks.

To provide, maintain or monitor such working environment in thefactory for the workers that is safe, without risk to health andadequate as regards facilities and arrangements for their welfare atwork.

To prepare a written statement of his general policy with respect tothe health and safety of the workers at work and the organizationand arrangements in force for carrying out that policy.


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Healthi. To provide a clean, well ventilated, well illuminated healthy

working environment to all workers, to provide adequate drinkingwater & facilities like latrines, urinals etc.

ii. To maintain and monitor health of all workers by providing them ahealthy, clean, dust/chemical free working environment, byproviding them suitable personal protective wears, by carrying outmedical examination, by monitoring the work environment etc.

Welfare and Wages

To provide welfare facilities like lunch rooms, canteen, crèche,washing facilities, first-aid appliances etc. to all workers.

To maintain the required level of hygiene and cleanliness at thecanteen, lunch room, washrooms etc.

To provide leave with wages facility, to pay overtime wages, toobserve working timing restrictions regarding all workers.

Not to employ child workers in the factory. [A child means a maleor female human being below the age of 18 years].

Safety

To provide safe working environment to all workers by providingproper safeguards to dangerous parts of machines, by displayinglist of Dos & Don’ts in as much areas as possible in the factorypremises, by providing safety items / safety kits e.g. safety shoes,hand gloves, helmets etc. to the workers depending on the nature oftheir work, by training the workers in safe operating procedures, byproviding adequate information about the hazardous properties ofthe chemicals and process, by providing proper safety systems inthe plant such as pressure/temperature, controllers, interlocks,safety valves, by providing flame proof electrical fitting in case ofhandling of flammable chemicals etc.

To get the lifting machines, tackles and pressure plants examinedby a competent person, to provide proper fire fightingarrangements etc.

Hazardous Factories

Occupier of the factory involving a hazardous process shalldisclose all the information regarding dangers, including healthhazards and the measures to overcome such hazards.

To maintain accurate and up-to-date health record of the workers,to form a safety committee, to carry out safety studies such assafety report, safety audit, risk analysis etc., to prepare onsiteemergency control plan.

[For further details: Refe-65/5r the Provisions of Factories Act 1948and Maharashtra Factories Rules 1963].


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2.5 THE OBLIGATIONS OFAN OCCUPIER

The provisions made for various situations both general as well as hazardousprocesses are also clearly mentioned under the Act at appropriate sections,some important ones of which are given below.

2.5.1 Notice by Occupier (Sec. 7)The occupier shall, at least 15 days before beginning to occupy or use anypremises as a factory and at least 30 days before the date of resumption ofwork in case of seasonal factories (factories working for less than 180 days in ayear), send to the Chief Inspector a written notice containing:

the name and situation of the factory;

the name and address of the occupier;

the name and address of the owner of the premises or building(including the precincts thereof);

the address to which communications relating to the factory may besent;

the nature of the manufacturing process – carried on in the factory during the last 12 months in the case of

factories in existence on the date of the commencement of the Act;and

to be carried on in the factory during the next 12 months in thecase of all factories;

the total rated horse power installed or to be installed in the factory,which shall not include the rated horse power of any separate stand byplant;

the name of the manager of the factory for the purpose of this Act;

the number of workers likely to be employed in the factory;

SAQ 2a) Who is an occupier according to the Factories Act – 1948? Explain

the concept of ‘Occupier’ clearly.

b) What are the general responsibilities of an occupier according to theFactories Act -1948?

c) Enumerate the duties of an occupier according to the Factories Act -1948.

d) Discuss the role of an occupier in case of health and safety,particularly in hazardous factories.

e) Describe the specific duties of an occupier in maintaining thewelfare and wages.


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the average number of workers per day employed during the last twelve(12) months in the case of a factory in existence on the date of thecommencement of this Act; and

such other particulars as may be prescribed.

Whenever a new manager is appointed, the occupier shall send to theInspector a written notice with a copy to the Chief Inspector withinseven (7) days from the date on which such person takes over charge.

During a period for which no person has been designated as managerof a factory or when a person designated as manager does not managethe factory, the occupier shall deemed to be the manager of the factory.

In the J. K. Industries Ltd case, the Supreme Court observed that the provisionsof Sec. 7 and 7A, when considered in the light of proviso (ii) to Sec. 2(n),leave no manner of doubt that it is a statutory obligation under Sec. 7 of theAct after 1987 to nominate the occupier before he/she occupies or begins touse the premises to run the factory and, in the case of an existing factory, seekthe renewal of the license to continue to operate the factory. It is only whenthis statutory requirement is fulfilled that the factory would be given thelicense or its license shall be renewed in the case of existing factories.

Sec. 7A provides that every occupier shall ensure, so far as is reasonablypracticable, the health, safety and welfare of all workers while they are at workin the factory.

2.5.2 The Obligations as per Factories Act – 1948The obligations of the occupier shall include:

the provision and maintenance of plant and systems of work inthe factory that are safe and without risks to health;

the arrangement in the factory for ensuring safety and absence ofrisks to health in connection with the use, handling, storage andtransport of articles and substances;

the provision of such information, instruction, training andsupervision as are necessary to ensure the health and safety of allworkers at work;

the maintenance of all places of work in the factory in a conditionthat is safe and without risks to health and the provision andmaintenance of such means of access to, and egress from, suchplaces as are safe and without such risks;

the provision, maintenance or monitoring of such workingenvironment in the factory for the workers that is safe, withoutrisks to health and adequate as regards facilities and arrangementsfor their welfare at work. Every occupier shall prepare and, asoften as may be appropriate, revise a written statement of hisgeneral policy with respect to the health and safety of the workersat work and the organization and arrangement for the time beingin force for carrying out that policy, and to bring the statementand any revision thereof to the notice of all the workers in suchmanner as may be prescribed (Sec. 7A).

2.5.3 General Provisions to be Obliged by the Occupier


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In every factory wherein 500 or more workers are ordinarily employed,the employer shall employ in the factory prescribed number of welfareofficers (Sec. 49);

The Chief Inspector, or the Director General of Factory Advice Serviceand Labour Institute, or the Director General of Health to theGovernment of India, or officers authorized by them may, after givinga notice in writing to the occupier, undertake safety and occupationalhealth surveys. The occupier shall offer all facilities for such survey,including facilities for the examination and testing of plant andmachinery and collection of samples and other data relevant to thesurvey (Sec. 91A); and

The occupier has to submit required returns, occasional or periodical,to the prescribed authorities (Sec. 110).

2.5.4 Provisions Relating to Hazardous Processes in Factories

The occupier of every factory involving a hazardous process shalldisclose all information regarding dangers, including health hazards,and the measures to overcome such hazards arising from the exposureto, or handling of, the materials or substances in the manufacture,transportation, storage and other processes to the workers employed inthe factory, the Chief Inspector, the local authority within whosejurisdiction the factory is situated, and the general public in the vicinity.The information shall include accurate information as to the quantity,specifications and other characteristics of wastes and the manner oftheir disposal (Sec. 41B);

The occupier shall, at the time of registering the factory involving ahazardous process, lay down a detailed policy with respect to the healthand safety of the workers employed therein and intimate such policy tothe Chief Inspector and the local authority (Sec. 41B);

Every occupier shall, with the approval of the Chief Inspector, draw upan on-site emergency plan and detailed disaster-control measures forhis factory and make known to the workers employed therein and to thegeneral public living in the vicinity of the factory the safety measuresrequired to be taken in the event of an accident taking place (Sec. 41B);

Every occupier of a factory shall within a period of 30 days before thecommencement of a hazardous process inform the Chief Inspector ofthe nature and details of the process in the prescribed form and manner.Contravention of the provision by the occupier may result in the licenseof the factory liable for cancellation (Sec. 41B);

The occupier of a factory involving a hazardous process shall, with theprevious approval of the Chief Inspector, lay down measures for thehandling, usage, transportation and storage of hazardous substancesinside the factory premises and the disposal of such substances outsidethe factory premises and publicize them in the manner prescribedamong the workers and the general public living in the vicinity (Sec.41B);

Every occupier of a factory, involving any hazardous process, shall

maintain accurate and up-to-date health records or, as the casemay be, medical records of the workers in the factory who areexposed to any chemical, toxic or any other harmful substances


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manufactured, stored, handled or transported, and such recordsshall be accessible to the workers subject to such conditions asmay be prescribed;

appoint persons who possess qualifications and experience inhandling hazardous substances and the competence to supervisesuch handling within the factory [to provide: M/s. ARPConsulting & Solutions www.arpconsulting.in at the workingplace all the necessary facilities for protecting the workers in themanner prescribed] (Sec. 41C);

The occupier shall, in every factory where a hazardous process takesplace, or where hazardous substances are used or handled, set up asafety committee consisting of equal number of representatives ofworkers and management to promote cooperation between the workerand the management in maintaining proper safety and health at workand to review periodically the measures taken on the behalf (Sec. 41G);and

It shall be the duty of the occupier to take immediate remedial action ifhe feels that the lives or health of the workers employed in any factory,engaged in hazardous process may be endangered due to any accidentwhatsoever. He shall also send a report of the action taken to thenearest Inspector of Factories. If he is not satisfied about the existenceof any imminent danger as apprehended by the workers, he shall referthe matter to the nearest Inspector of Factories whose decision on thequestion of the existence of such imminent danger shall be final (Sec.41H)

2.5.5 Penal Provisions1. The occupier and manager shall each be guilty of an offence and

punishable with imprisonment for a term which may extend to two (2)years or with fine which may extend to Rs. 1 lakh or with both for anycontravention of any of the provisions of the Act or any of the rulesmade there under. In case the contravention is continued afterconviction, with a further fine which may extend to Rs. 1,000 for eachday during which the contravention so continues (Sec. 92).

2. Sec. 92 contemplates a joint liability of the occupier and the managerfor any offence committed irrespective of the fact as to who is directlyresponsible for the offence.

3. In case the occupier is again guilty of an offence involvingcontravention of an offence punishable under Sec. 92, he/she shall bepunishable on a subsequent conviction with imprisonment for a termwhich may extend to three (3) years or with fine which shall not be lessthan Rs. 10,000 but may extend to Rs. 2,00,000, or both (Sec. 94).

4. Sec. 95 lays down penalty of punishment with imprisonment for six (6)months or fine of Rs. 10,000 or both for willfully obstructing anInspector in the exercise of any powers conferred on him by or underthis Act or failing to produce any registers and other documents to himon demand or concealing or preventing any workers from appearingbefore or being examined by the Inspector. [Ref: M/s. ARP Consulting& Solutions www.arpconsulting.in]

5. Sec. 96A provides punishment with seven (7) years imprisonment orfine which may extend to Rs. 2,00,000 for the non-compliance with, or

http://www.arpconsulting.in/

http://www.arpconsulting.in/


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contravention of, any of the provisions of Sec. 41B, 41C or 41H orrules made there under by any person. In case the failure orcontravention continues, with additional fine which may extend to Rs.5,000 for every day during which such failure or contraventioncontinues after the contravention for the first such failure orcontravention. If such failure continues beyond a period of one yearafter the date of conviction, the offender shall be punishable withimprisonment for a term which may extend to ten (10) years.

6. The court may, in addition to awarding any punishment, require theoccupier to take measures so specified for remedying the matters inrespect of which the offence was committed (Sec. 102).

7. Sec. 104A provides that the onus is on the person who is alleged tohave failed to comply with such duty to prove that he / she has taken allmeasures or it was not reasonably practicable.

Exemption of occupier from liability in certain cases where theoccupier is charged with an offence punishable under the Act, Sec.101 entitles him / her to make a complaint and give not less thanthree clear days notice to the prosecutor in writing, of hisintention to have any other person whom he / she charges as theactual offender brought before the court at the time appointed forhearing the charge.

The occupier proves to the satisfaction of the court that he/she hasused due diligence to enforce the execution of the Act, and thatthe said other person committed the offence in question withouthis/her knowledge, consent or connivance, the occupier shall bedischarged from any liability under the Act.

The legislature has taken care to dilute the rigour of Sec. 92 byproviding an exception to the strict liability rule by laying down athird-party procedure in Sec. 101 of the Act. This section in a wayis an exception to the general rule and enables the occupier or themanager of the factory to extricate himself / herself frompunishment by establishing that the actual offender is someoneelse and giving satisfactory proof of facts as are contemplated bySec. 101.

Under Sec. 101, a provision for three days advance notice to theprosecutor has been added. After a complaint is made by theInspector of Factories against the manager or occupier under Sec.92 of the Act for contravention of any of the provisions of the Act,the manager or occupier is entitled to complain against the actualoffender before the court and if he/ she does so, the actualoffender is given a notice and brought before the court and thetrial then proceeds against both the persons complained againstbecause the section contemplates both sets of complaints (onefiled by the Inspector of Factories and the other by the manager orthe occupier) and both the accused (one as named by theInspector of Factories and the other as named by the manager oroccupier) being brought before the court at the same time.

The carriage of proceedings is with the original complainant(Inspector of Factories) and the onus also lies on him/ her ofproving that an offence has been committed. Both the partiescomplained against (one by the Inspector and the other by the


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manager or occupier) are entitled to cross-examine theprosecution witnesses at this stage with evidence to disprove thecharge.

If the prosecution fails to prove the offence, both of them wouldbe acquitted. However, if the offence is proved, then the trialcourt shall record an order to that effect and manager shall beafforded an opportunity to extricate himself/herself from theliability, provided he/she can give satisfactory proof of the factsrequired by Sec. 101.

The onus of proof, at that stage, is shifted to the manager or theoccupier. He / she is entitled to call evidence as well as giveevidence himself / herself. The alleged actual offender wouldhave a right to cross-examine the manager or the occupier as thecase may be.

Even where the occupier establishes that the actual offender is theperson named by him / her, he / she must still prove to thesatisfaction of the court that he / she had used due diligence toenforce the execution of the Act and that the said other personcommitted the offence in question without his / her knowledge,consent or connivance. In the J. K. Industries Ltd case, theSupreme Court held that in the scheme of Sec. 101

that the occupier or manager should be relieved from liabilityonly if the actual offender could be brought to court

the presence of the actual offender, on whom the burden has beenshifted by the occupier or the manager, would be necessary at thetime of trial; and - a period of three months has been prescribedby the legislature within which the actual offender shouldordinarily be brought before the court by the process of law.

If that cannot be done, the trial against the occupier or themanager, as the case may be, cannot be allowed to be protractedindefinitely and it is difficult to see how any fault can be foundwith this provision.

Sec. 117 provides that no suit, prosecution or other legalproceeding shall lie against any person for anything which is doneor intended to be done in good faith under the Act.

The section protects persons from unnecessary harassment foracts done or intended to be done in good faith.

The Supreme Court in State of Gujarat vs Kansara ManilalBhikalal observed that it is hardly possible to apply Sec. 117 to acase in which the provisions of the Act or the rules made thereunder are contravened by reason of sheer neglect on his part toacquaint himself with the requirements of the law.

2.6 FACTORYMANAGER JOB RESPONSIBILITIES

Factory managers have to plan production activities, productionmeetings, machine maintaining schedules, worker schedules andbudget maintenance schedules and quality of products.


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The whole industrial production has to be managed by factorymanagers, or they have to take care of all the features associated with aparticular department. The safety measures have to be followed.

If there are any quality related issues, the factory managers have to findout the reason and ensure that it is not repeated.

A factory manger has to collaborate and meet with other managers ofthe factory. Liaison with finance department, HR department, qualitycontrol department, safety department are of much significance.

Ensure that receiving and shipping schedules are maintained in strictadherence to the target dates.

See to it that the workers always abide by the safety rules associatedwith the industry.

They need to attend the scheduled corporate meetings and training.

Conduct performance reviews of employees

A factory manager is typically the most senior manager in an industrial factoryor manufacturing plant, with responsibility for all the activities of the factory.The factory manager's objectives are usually tied to the amount and quality ofthe items that the factory is producing. Most factories are fast-moving places,and some of them operate 24 hours a day. They contain offices as well asassembly and production lines, so factory managers must have a wide varietyof skills.

The factory manager holds responsibilities mainly in four dimensions. Theseare

People

Premises

Processes

Planning

We shall now discuss about these four dimensions in detail.

PeopleA factory manager has overall responsibility for all the people working on thesite, both in the offices and on the shop floor. He / She signs off on recruitmentand advises on any disciplinary issues. It is his / her responsibility tocommunicate to staff and motivate them to achieve the factory targets. Asmany factories form part of larger companies, the factory manager may have toadhere to the corporate human resources policies. In this case, it would be partof the manager's role to liaise with the central human resources function.

PremisesThe factory manager is in charge of the building in which he / she and his / herstaff operate. In most manufacturing industries, health and safety areparamount. Handling some materials or working with heavy machinery can bevery dangerous. It is vital for a senior manager to be answerable for assessingrisk and ensuring that appropriate health and safety procedures are in place andapplied rigorously.


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ProcessesAny form of manufacturing or production is a process. In most modernfactories, while some parts of the process are carried out by machines, otherparts are done by teams of people. The factory manager, in partnership withsupervisors and other managers, decides how to design those teams for optimalperformance. He / She also set targets and communicate progress so that teamsare motivated to deliver.

Importance of the factory manager increases manifold in case of continuousprocess industries, where functions of different departments / shops are to besynchronized to a great extent in order to maintain the rhythm of operation.

PlanningKey to the effective running of a factory is ensuring that there is no down timeand that everyone is working at a reasonable pace. Companies do not want topay staff to be standing around idly or working at half speed, resulting insubstantial wastage of manpower, one of the most important and costlyresources of any company. Therefore, factory managers must have animmaculate plan to ensure optimum utilization of the staff and resources todeliver orders on time, but not to be paying people to be there when there is nowork for them to do. They also need to schedule maintenance of the buildingand equipment at times when they are not going to be needed to fulfill a majororder.

SAQ 3a) Explain about the information to be furnished by the occupier for

giving a notice.

b) What are the obligations of occupier specified under Factories Act –1948?

c) List out the general provisions to be obliged by the occupier.

d) Enumerate the provisions related to hazardous processes in thefactories.

e) List out the job responsibilities of a factory manager.

f) Explain the four dimensions of responsibilities that a factorymanager is required to discharge.


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2.7 PROVISIONS UNDER FACTORIESACT - 1948

The provision under the Factories Act, for the ease of understanding, can bestudied under the following heads as:

1. Health of the workers

2. Safety of the workers

3. Welfare of the workers

These are discussed here below:

2.7.1 Provisions Regarding the Health of WorkersSections 11 to 20 of the Act contain certain provisions intended to ensure thatthe conditions under which work is carried on in factories do not affect thehealth of the workers adversely / injuriously.

Summary of the provisions of the Factories Act, relating to the health ofworkers are stated below.

Cleanliness: Every factory shall be kept clean and free from dirt and theoutflow of drains etc. The floors must be cleaned. Drainage shall beprovided. Inside walls, partitions and ceilings must be repainted at leastonce in five years. When washable, water paint is used and they mustbe painted once every three years and washed at least every period ofsix months. -Sec. 11, as amended in 1976.

Disposal of wastes and effluents: The waste materials produced fromthe manufacturing process must be effectively disposed off. -Sec. 12.

Ventilation and Temperature: There must be provision for adequateventilation by the circulation of fresh air: The temperature must be keptat a comfortable level. Hot parts of machines must be separated andinsulated. -Sec. 13.

Dust and Fume: If the manufacturing process used, gives off injuriousor offensive dust and fume, steps must be taken so that they are notinhaled or accumulated. The exhaust fumes of internal combustionengines must be conducted outside the factory. -Sec. 14.

Artificial humidification: The water used for this purpose must be pure.It must be, taken from some source of drinking water supply. The StateGovernment can frame rules regarding the process of humidificationetc. -Sec. 15. .

Over Crowding: There must be no overcrowding in a factory. Infactories existing before the commencement of the Act there must be atleast 350 cft. (55 cubic metres) of space per worker. For factories builtafterwards, there must be at least 500 cft. (or 75 cubic metres) of spaceper worker. In calculating the space, an account is to be taken of spaceabove 14 ft. (or 5 metres) from the floor. -Sec. 16.

Lighting: Factories must be well lighted. Effective measures must beadopted to prevent glare or formation of shadows which might causeeyestrain. -sec. 17.

Drinking water: Arrangements must be made to provide a sufficientsupply of wholesome drinking water. All supply' points of such watermust be marked "drinking water". No such points shall be within 20 ft.(or 7.5 metres) of any latrine, washing place etc. Factories employing


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more than 250 workers must cool the water during the hot weather. -Sec. 18.

Latrines and Urinals: Every factory must provide sufficient number oflatrines and urinals. There must be separate provision for male andfemale workers. Latrine and urinals must be kept in a clean andsanitary condition. In factories employing more than 250 workers, theyshall be of prescribed sanitary types. -sec. 19.

Efforts should be there to keep the noise level in the factory premiseswithin the specified norms. Sound proof jackets / enclosure should beused to the extent possible in case of high noise emitting machines suchas DG sets etc.

2.7.2 Provisions Regarding the Safety of WorkersSections 21 to 40A, 40B and 41 of the Act lay down rules for the purpose ofsecuring the safety of workers. Summary of the provisions of the Factories Actregarding the safety of the workers are stated below: (Sections 2l to 41).

Fencing of machinery: All dangerous machinery must be securelyfenced e.g., moving parts of prime movers and flywheels connected toevery prime mover, electric generators, etc. -Sec. 2l.

Work on or near machinery in motion: Work on or near machinery inmotion must be carried out only by specially trained adult maleworkers wearing tightly fitting clothes. -Sec. 22.

Employment of young person(s) on dangerous machines: No youngperson shall work at any dangerous machine unless he has beenspecially instructed as to the dangers and the precautions to beobserved and/or has received sufficient training about the work, and isunder the supervision of some person having thorough knowledge andexperience of the machine. -Sec. 23.

Striking gear and devices for cutting off power: In every factorysuitable devices for cutting off power in emergencies from runningmachinery shall be provided and maintained in every workroom. -Sec.24.

Self-acting machines: Moving parts of a self-acting machine must notbe allowed to come within 45 cms, of any fixed structure which is notpart of the machine. -Sec. 25.

Casing of new machinery: In all machinery installed after thecommencement of the Act, certain parts must be sunk, encased orotherwise effectively guarded e.g. set screw, bolt, toothed gearing etc. -sec. 26.

Women and children near cotton Openers: Women and children mustnot be allowed to work near cotton openers, except in certain cases. -Sec. 27

Hoists, lifts, chains etc: Every hoist and lift must be so constructed asto be safe. There are detailed rules as to how such safety is to besecured. There are similar provisions regarding lifting machines, chains,ropes and lifting tackle. -Sec. 28. 29.

Revolving machinery: Where grinding is carried on the maximum safeworking speed of every revolving machine connected therewith must


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be notified. Steps must be taken to see that the safe speed is notexceeded. -Sec. 30.

Pressure plant: Where any operation is carried on at a pressure higherthan the atmospheric pressure, steps must be taken to ensure that thesafe working pressure is not exceeded. -sec. 31.

Floors, stairs and means of access: All floors, steps, stairs, passage andgangways shall be of sound construction and properly maintained.Handrails shall be provided where necessary. Safe means of accessshall be provided to the place where the worker will carry on any work.-Sec. 32.

Pits, sumps, openings in floors etc.: Pits, Sumps, openings in floors etc.must be securely covered or fenced. -Sec. 33.

Excessive weights: No worker shall be made to carry a load so heavyas to cause him injury. -Sec. 34.

Protection of eyes: Effective screen or suitable goggles shall beprovided to protect the eyes of the worker from fragments thrown off incourse of any manufacturing process and from excessive light if any. -Sec. 35.

Precautions against dangerous fumes: No person shall be allowed toenter any chamber, tank etc. where dangerous fumes are likely to bepresent unless it is equipped with a manhole or other means of goingout. In such areas no portable electric light of more than 24 volts shallbe used. Only a lamp or light of flame proof construction can be usedin such space. For people entering such space suitable breathingapparatus, revolving apparatus etc. shall be provided. Such places shallbe cooled by ventilation before any person is allowed to enter. -Secs. 36and 36A.

Explosive or inflammable gas etc.: Where a manufacturing processproduces / handles inflammable gas, dust, fume, etc. steps must betaken to enclose the machine concerned, prevent the accumulation ofsubstances and exclude all possible sources of ignition. Extraprecautionary measures are to be taken where such substances areworked at greater than the atmospheric pressure. -Sec. 37.

Precaution in case of fire: Fire escapes shall be provided. Windows anddoors shall be constructed to open outwards. The means of exit in caseof the fire shall be clearly marked in red letters. Arrangements must bemade to give warning in case or fire. -sec. 38

Specifications of defectives etc. and safety of buildings and machinery:If any building or machine is in a defective or dangerous condition, theinspector of factories can ask for the holding of tests to determine howthey can be made safe. He can also direct the adoption of the measurenecessary to make them safe. In case of immediate danger, the use ofthe building or machine can be prohibited. -Secs. 39, 40.

Maintenance of Buildings: If the Inspector of Factories thinks that anybuilding in a factory, or any part of it, is in such a state of disrepair thatit is likely to affect the health and welfare of the workers, he may serveon the occupier or manager or both in writing specifying the measuresto be done before the specified date. -Sec. 40A.


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Safety Officers: The State Government may notify to the occupier toemploy a number of Safety Officers in a factory wherein one thousandor more workers are ordinarily employed, or wherein anymanufacturing process or operation which involves the risk of bodilyinjury, poisoning, disease or any other hazard to health of the personsemployed in the factory. -Sec. 40B.

Rules: The State Government may make rules providing for the use ofsuch further devices for safety as may be necessary. -Sec. 41.

2.7.3 Provisions Regarding the Welfare of WorkersSummary of the provisions of the Factories Act regarding the welfare ofworkers are stated below:

Washing: In every factory adequate and suitable facilities for washingshall be provided and maintained. They shall be convenientlyaccessible and shall be kept clean. There must be separate provisionsfor male and female workers. -Sec. 42.

Storing and drying: The State Government may make rules requiringthe provision of suitable facilities for storing and drying clothing. -Sec.43.

Sitting: Sitting facilities must be provided for workers who have towork in a standing position so that they may take rest when possible.When work can be done in a sitting position efficiently the ChiefInspector may direct the provision of sitting arrangements. -Sec. 44.

First aid: Every factory must provide first aid boxes or cupboard. Theymust contain the prescribed materials and they must be in charge ofpersons trained in first aid treatment. Factories employing more than500 persons must maintain an ambulance room containing theprescribed equipment and in charge of the prescribed medical andnursing staff. -Sec. 45.

Canteens: Where more than 250 workers are employed, the stateGovernment may require the opening of canteen or canteens forworkers. Rules may be framed regarding the food served itsmanagement etc. -Sec. 46.

Shelters: In every factory where more than 150 workers are employed,adequate and suitable shelters or rest rooms and a lunch room (withdrinking water supply) must be provided, where workers may eat mealsbrought by them. Such rooms must be sufficiently lighted andventilated and must be maintained in a cool and clean condition. Thestandards may be fixed by the State Government. -Sec. 47.

Creches: In every factory where more than 30 women are employed, aroom shall be provided for the use of the children (below 6 years) ofsuch women. The room shall be of adequate size, well lighted andventilated, maintained in a clean and sanitary condition and shall be incharge of a woman trained in the care of children and infants. Thestandards shall be laid down by the State Government. -Sec. 48.

Welfare officers: Welfare officers must be appointed in every factorywhere 500 or more workers are employed. The State Government mayprescribe the duties, qualifications etc. of such officers. Sec. 49.


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Rules: The State Government may make rules regarding the welfare ofworkers.-Sec. 50.

2.8 OTHER PROVISIONS OFTHE FACTORIESACT

Let us now discuss about the other provisions of the Factories ActDepartments as Factories

The State Government may, upon application, declare that for the purposes ofthe Act, different departments or branches of a factory shall be treated asseparate factories or that two or more factories of the occupier shall be treatedas the same factory. – Sec. 4.

ExemptionsExemption during Public Emergency

Factories or any class of factories may be exempted from the operation of anyof the provisions of the Act during a public emergency (except that of Sec. 67,employment of children) for such periods and subject to such conditions as theGovernment may think fit. The exemption is to be made by notification in theofficial Gazette for a period not exceeding three months at a time. -Sec. 5.

Explanation: For the purposes of this section 'public emergency' means agrave emergency whereby the security of India or of any part of the territorythereof is threatened, whether by war or external aggression or internaldisturbance.-Amendment of 1976.

Exemption of Public InstitutionsThe State Government may exempt subject to such conditions as it mayconsider necessary, any workshop or workplace where a manufacturingprocess is carried on and which is attached to a public institution maintainedfor the purposes of education, training, research or reformation from all or anyof the provisions of the Act. But no exemption is to be granted from theprovisions relating to hours of work and holidays unless there is a schemerelating to such matters containing rules not less favourable to the workers thanthe provisions of the Act. -Sec. 86.

Dangerous Operations, Accidents and DiseasesThe State Government is empowered to make special rules for the purpose ofcontrolling and regulating factories which carry on manufacturing process or

SAQ 4a) Describe the provisions specified under the Factories Act for

health of workers that an occupier has to provide.

b) What are the provisions specified under the Factories Act forsafety of workers that an occupier has to provide?

c) List out the provisions to be made by an occupier as specifiedunder the Factories Act for welfare of workers.

d) Discuss the welfare activities for which an occupier is heldresponsible toward women employees.


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operation exposing workers to a serious risk of bodily injury, poisoning ordisease. -Sec. 87.

Rules have been made providing for medical examination, protection ofworkers; restricting and controlling the use of particular materials andprocesses; payment of fees for medical examination by the occupier; welfareamenities; sanitary amenities; measures to avoid imminent danger of poisonsor toxicity.

Notifiable Accidents The manager of a factory must send a notice to the authorities

whenever an accident occurs which causes death or which causesbodily injury preventing the worker from working for a Period of 48 ormore hours or other types of injury which may be specified by rules.

Where a notice given under sub-section (1) relates to an accidentcausing death, the authority to whom the notice is sent shall make aninquiry into the occurrence within one month of the receipt of thenotice or, if such authority is not the Inspector, cause the Inspector tomake an inquiry within the said period .

The State Government may make rules for regulating the procedure atinquiries under this section. -Sec. 88.

[Para 2 and 3 had been added by the Amendment of 1976].Notice of Certain Dangerous OccurrencesIn case of any dangerous occurrence of such nature as may be prescribed,occurs in a factory, whether causing any bodily injury or disability or not, themanager of the factory shall send notice thereof to such authorities, and in suchform and within such time, as may be prescribed.--Sec. 88A, Factories(Amendment) Act, 1976.

Notifiable DiseasesThe manager of a factory must send notice to the authorities whenever aworker suffers from any of the diseases mentioned in the Schedule to the Act.(These are known as Occupational Diseases).

Examples:

Poisoning by lead, mercury, phosphorus etc;

Anthrax;

Silicosis;

Swine flu;

Skin cancer;

Toxic anemia;

Jaundice;

Pneumonoultramicroscopicsilicovolcanoconiosis* etc.

(*This is the longest word in English)

The medical practitioner attending the person, if any, shall without delay senda report to the Chief Inspector in writing, stating the name of the personaffected and other particulars. -Sec. 89.


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Enquiry into Accidents and DiseasesThe State Government may appoint a competent person to enquire the causesof any 'accident occurring in a factory or of a notifiable disease, and may alsoappoint one or more persons possessing legal or special knowledge to act asassessors in such enquiry. The person appointed to enquire can call witnesseslike a Civil Court and exercise any of the powers of an Inspector. He mustsubmit a report to the State Government, together with his observations. Thereport or extracts there-from may be published. -Sec. 90.

Safety and Occupational Health SurveyThe State Government or the Director General of Factory Advice Service andLabour Institutes etc., can employ the Chief Inspector and certain otherpersons to undertake safety and occupational health surveys. The occupier andmanager and all other persons shall provide all facilities for such survey,including examination, testing of plant and machinery, collection of samples,other data, medical examination of persons, calculation of wages and extrawages for overtime work. -Sec. 91A, added by The Factories (Amendment)Act, 1976.

2.9 PENALTIESAND PROCEDURES

Sections 92 to 106 lay down the rules regarding penalties for offences againstthe Act.

Owner: The owner of any premises, let out for use as different factories, isresponsible for the provision and maintenance of common facilities andservices, e.g., approach roads, drainage, water supply, latrines, sewage etc.

Occupier: In most cases the occupier of the factory is responsible for offencescommitted against the Act. But the occupier is exempted from liability ifhe/she can show that he/ she has used due diligence to enforce the execution ofthe Act and that some other person committed the offence without hisknowledge, consent or connivance.

Penalties: The penalties for some of the offences are mentioned below

Offences Imprisonment / Fine

Obstructing Inspector Up to 3 months and/or

fine Up to Rs 500/-

Wrongfully disclosing result - do -

of analysis of sample

Contravention of any duty or

liability by a worker nil / Rs 20/-

Using false certificate of fitness Up to 1 month / Rs 50/-

Permitting double employment nil / - do -

of child


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Cases not otherwise provided for Up to 3 months / Rs. 2000

Second offence for above 6 months / Rs. 5000

Where contravention of any of the provisions of Chapter IV or any rule madethere-under or under Section 87 has resulted in an accident causing death orserious bodily injury, the fine shall not be less than one thousand rupees in thecase of an accident causing death, and five hundred rupees in the case of anaccident causing serious bodily injury.

Explanation: In this section and in section 94 "Serious bodily injury" means aninjury which involves, or in all probability will involve, the permanent loss ofthe use of, or permanent injury to, any limb or the permanent loss of, or injuryto sight or hearing, or the fracture of any bone, but shall not include, thefracture of bone or joint (not being fracture of more than one bone or joint) ofany phalanges of the hand or foot. Sec. 92 added in the Amendment of 1976.

Cognizance: No court can take cognizance of an offence under the Act excepton a complaint by or with the previous sanction of an Inspector in writing.Only a Presidency Magistrate or a Magistrate of the first class can try offencesunder the Act. The complaint must be filed within 3 months of the date whenthe commission of the offence came to the knowledge of an Inspector. Fordisobeying a written order of an Inspector, complaint may be filed within 6months of the date when the offence was committed.

Presumption: A person found in the factory when the factory is going on or themachinery is in motion, except during the time of meal or rest, is presumed tobe employed in the factory until the contrary is proved.

When in the opinion of the' Court a person is prima facie underage, the burdenshall be on the accused to show that such person is not under-age.

2.9.1 AppealsThe manager or the occupier of a factory on whom an order in writing hasbeen served by an Inspector can appeal against it to the prescribed 'authoritywithin thirty days. -Sec. 107.

2.9.2 NoticeIn certain cases (prescribed by the rules) abstracts of the Act and the rules arerequired to be displayed in the factory. All notices under the Act must bedisplayed in English and in a language understood by the majority of theworkers employed therein. They must be displayed in a conspicuous andconvenient place at or near the main entrance of the factory and must bemaintained in a clean and legible condition. The Chief Inspector may requirethe display of posters relating to the health, safety and welfare of workers. -Sec.108.

2.9.3 ReturnsThe owners, managers and occupiers of factories are required by rules tosubmit various returns and reports.-Sec. 110.

2.10 OBLIGATIONS OFWORKERS

Section 111 lays down that no worker in a factory


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shall willfully interfere with or misuse any appliances or any otherthings provided in a factory for the purpose of securing the health,safety or welfare of the workers therein,

shall willfully and without reasonable cause do anything likely toendanger himself or others; and

shall willfully neglect to make use of any appliance or other thingprovided in the factory for the purposes of securing the health or safetyof the workers therein.

If any worker contravenes any of the provisions of this section or of any rule ororder made there under he shall be punishable with imprisonment which mayextend to 3 months or with fine which may extend to Rs. 100 or with both.

Power of the Central GovernmentThe Central Government may give directions to a State Government as to thecarrying into execution of the provisions of the Act. -Sec. 113.

Abolition of Contract LabourThe provisions of this Act shall have effect notwithstanding anythinginconsistent therewith contained in the Contract Labour (Regulation andAbolition) Act, 1970. Sec. 119, added by the Factories (Amendment) Act, 1976.

2.11 CASE STUDY

Case study : Fire at AMRI Hospital, Kolkata on 9.12.2011around 2.30 am

Abstract:At least 93 people – most of them patients, died in the huge fire that broke outin the early morning hours in AMRI. The fire began in the basement where apharmacy and the store were located. The area was stacked with highlycombustible material such as PVC pipes, mattresses, oxygen and LPGcylinders, and even engine oil. When the fire was sparked off, dense smokestarted billowing out of the basement and entered the upper floors catchingmany persons unaware in their sleep.

SAQ 5a) Describe the exemptions provided under Factories Act with

reference to public emergency and public institutions.

b) Explain the provisions made under Factories Act toward thedangerous operations, accidents and diseases.

c) Discuss the general obligations of the workers in factory.

d) Briefly discuss the powers, extensions and exemptions ofGovernment, provided under the Factories Act.

e) With examples explain the structure of penalties for violating theprovisions under Factories Act – 1948.


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While most nurses, doctors and other staffers were able to get away, manycritically ill patients suffocated to death in their hospital beds. With no outlet /openable windows, the smoke started circulating in the building, choking thepatients and the staff. None of the patients who died had any burn injuries. Allwere just choked to death.

The accident:As Kolkata was developed in a rather unplanned way, the city has always beena bit vulnerable to disasters of different kind, where fire is undoubtedly themost critical one. Handling of any such emergencies has also been moredifficult here, because of the high population density and congested narrowroads. To make the situation worse, fire fighting is always difficult due toeven narrower approaches to the affected sites.

Precisely for this reason, it is expected that everyone should take utmost careto prevent fire hazards at the first place, where the management of AMRIHospital failed miserably.

The callous attitude of the hospital management was unprecedented to say theleast.

An incensed State Government openly blamed the hospital authorities for this“criminal negligence”. Taking a tough stand, the state government filed acriminal case against them and ordered their arrest. In the afternoon sixdirectors of the hospital group surrendered at Lalbazar, the city policeheadquarters. They were booked on charges of culpable homicide tantamountto murder under Section 304 of the IPC.

The Government also cancelled the hospital’s license and registration.

What went wrong?

The fire broke out at around 0200 AM. The hospital staff startedfire fighting operations on their own without initiating a fire alarmor informing the fire brigade. This resulted in loss of initial crucialtime. Internal fire hydrants / sprinkler system were eithernonfunctional OR the staff were not trained to operate them in anemergency situation. This resulted in the fire spreading rapidly andout of control.

The hospital security staff did not allow local residents to enter forrescue work after the fire was detected. Few local youths ofneighboring slums scaled the hospital’s rear boundary wall andjumped into rescue work. Unfortunately, it was too late by then.

The hospital staff informed fire brigade and Police only when fire wasout of control and only then all locked doors/gates were opened forrescue operations upon their arrival.

Fire brigade help also turned up very late and were found enteringsmoke areas without BA sets. Also had no search lights / ladders toinitiate any effective rescue operation at initial stage.

The fire alarm system for the building was found SWITCHED OFF toavoid false alarms. This resulted in no fire alarm alert and centralizedAC system too did not trip automatically. The running of AC in firesituation resulted in spreading of smoke in unaffected upper floorscausing huge number of casualties. No fire/ smoke dampers were foundworking in the fire situation.


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External glass Façade made of double glass panes were very difficultto break and the building had no operable windows to dissipate smokewhich resulted in many deaths due to suffocation / asphyxia

Emergency lighting too did not work / nor was adequately availableresulting in total darkness inside the building hampering rescue /firefighting. Nobody started rescue operations using internal staircases/ lifts ramps due to pitch darkness and presence of dense smoke atearly crucial stage. The staff was untrained and was unaware of anyemergency preparedness.

The rescue operation was seen being carried out using rope -laddersfrom outside the building reaching to the trapped personnel bybreaking the façade glasses. Though this saved many valuable lives butthe technique used to rescue was hilarious / dangerous. Few patientswere found jumping on hydraulic platform from the window.

The basement was converted into pharmacy and godown stacked withhighly combustible materials. It was learnt that even oxygen cylinders/ LPG cylinders were found stored in the basement.

The Fire Brigade vehicles could not reach closer to the building sincethe approach route was halved due to DG set installation and Gas Bankand emergency vehicles could not turn through the narrow passage.

It is clear that all significant elements of the system failed - -startingfrom the regulatory oversight of the management to failure of Stateauthorities in disaster management; thus leading to loss of so manyprecious lives.

Learning from the incident / Recommendations:

All statutory and regularity compliance to be strictlyimplemented by the management not only to get adequate NOCsbut in view to safeguard life of people.

Disaster management plan to be prepared and implemented at siteproviding clear-cut guidelines to staff and concerned about actionsin various emergency scenarios. The plan to be followed up withtraining of staff and continual improvements through on site mockdrills.

Firefighting / life safety systems to be commissioned and to bemaintained in a Ready to Operate condition all the time

Emergency power: Reliable source of emergency power to be installedin the building at par with the codes and practices (Use of MI cablesmay be made compulsory) so that even if main power source isswitched off , life safety systems, lifts, emergency lighting, peripherallights etc shall be provided with un interrupted power. This shallensure rapid and effective emergency response.

All emergency staircases and lifts should open in enclosed lobby (thatcan be pressurized by blowers upon activation of fire alarm) to avoidvertical smoke and flame travel. At least one emergency staircase shallopen directly outside building at Ground floor for safe evacuation andrescue.

Open able windows: At least 15% open able windows to be providedthat can be opened easily during emergencies. These windows /


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doors to be marked with signage and periodically checked foroperability.

Basement: Proper mechanical ventilation and smoke exhaust systemto be installed in basement to avoid smoke logging. No combustiblematerials to be stored in it. Any type of modifications toaccommodate storage of consumables / stationery etc will beforbidden.

Fire vehicle approach: Approach and peripheral roads to be designedto cater 20 meter turning radius for Fire Tender / Hydraulic Laddersand should be capable of taking 40 tons load of Fire Vehicles.

2.12 LET US SUM UP

Let us summarize what we have discussed in this unit. It is necessary tounderstand the jargon and history of Factories Act -1948. We have discussed indetail the duties and responsibilities of the occupier of the factory. Therefore,an overview of Factories Act – 1948 is presented at the outset and then variousactivities (duties, responsibilities and obligations) of occupier and factorymanager are described as specified under the respective sections (indicatedalong with the text). The provisions of health, safety and welfare of workersunder the act are discussed as they clearly indicate the bounds and limits of thejobs of occupier and managers and prompt what to do and what not to do. Theother provisions under the act as relevant to the activities of occupier/managerare discussed along with the penalty provisions

2.13 KEYWORDS

Questions:a) Was the disaster inevitable?

b) Would it be correct to say that the patients died because of thecallous attitude and serious wrong doings of the hospital authority?

c) Could you list the blunders of the management that had resulted inthe disaster?

d) How do you assess the role of the occupier?

e) Could the accident be prevented? If yes, HOW?

f) What do you learn from this unfortunate mishap?


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1. Factory: any premises including the precincts thereof whereon ten or moreworkers are working, or were working on any day of the preceding twelvemonths - Section 2 (m)

2. Manufacturing Process: making, altering, finishing, packing, oiling, washing,breaking up, demolishing, or treating to use/sale/transport/disposal; orpumping oil/water/sewage etc; or generating, transforming or transmittingpower; or composing for printing, press, lithography, photogravure or bookbinding; or constructing, repairing, refitting, working with ships or vessels; etc.-Section 2(k)

3. Worker: Any person engaged in any work connected with or incidental to amanufacturing process. -Sec. 2(1)

4. Power: electrical or any other form of energy which is mechanicallytransmitted and is not generated by human or animal agency. -Sec. 2(g).

5. Prime mover: any engine, motor or other appliance which generates orotherwise provides power. -Sec. 2(h).

6. Transmission machinery: any shaft, wheel, gear train, drum pulley, systemof pulleys, coupling, clutch, 'driving belt or other appliance or device by whichthe motion of a prime mover is transmitted to or received by any machinery orappliance -Sec. 2(i).

7. Machinery: prime movers, transmission machinery and all other applianceswhereby power is generated, transformed, transmitted or applied". Sec. 2(j).

8. Adult: a person who has completed 18th year of age. -Sec. 2(a).

9. Adolescent: a person who has completed 15th year of age but not 18th year.-Sec. 2(b).

10. Child: a person who has not completed his fifteenth year of age". -Sec. 2(c)

11. Young Person: a person who is either a child or an adolescent". -Sec. 2(d).

12. Calendar Year: the period of 12 months beginning with the 1st day ofJanuary in any year". -Sec. 2(dd).

13. Day: a period of twenty four hours beginning at midnight. -Sec. 2(e).

14. Week: a period of seven (7) days beginning 'at midnight on Saturday nightor such other night as may be approved in writing, at a particular area by theChief Inspector of Factories -Sec. 2(f).

15. Shift and Relay: Where work of the same kind is carried out by two ormore sets of workers working during different periods of the day, each of suchsets is called a "relay" and each of such periods is called a "shift". -Sec. 2(r).

16. Occupier: the person who has ultimate control over the affairs of thefactory, and where the said affairs are entrusted to a managing agent, suchagent shall be deemed to be the occupier of the factory. -Sec. 2(n).

IMPORTANT SECTIONS UNDER THE FACTORIESACT – 1948

Sec. 2: Defines Jargon and terminology of Factory and its premises (Ref.Keywords)

Sec. 4: Departments or branches of a factory shall be treated as separatefactories

Sec. 5: Factories may be exempted from the operation during a publicemergency


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Sec. 6: Approval, licensing and registration of factories;

Sec. 7: Notice by occupier;

Sec. 7A: General duties of the occupier;

Sec. 7B: General duties of manufacturers, and so on;

Sec. 11: Cleanliness in a factory;

Sec. 12: Effective arrangements for the treatment of wastes and effluents;

Sec. 13: Provision of adequate ventilation and temperature to securereasonable conditions of comfort and prevent injury to health;

Sec. 14: Prevention of inhalation and accumulation of dust and fumes;

Sec. 15: The process of artificial humidification;

Sec. 16: Prevention of over-crowding;

Sec. 17: Provision of lighting arrangements, or provisions relating to safety;

Sec. 18: Effective arrangements for drinking water;

Sec. 19: Provision of latrines and urinals;

Sec. 2l: Fencing of machinery.

Sec. 22: Work on or near machinery in motion:

Sec. 23: No employment of young person(s) on dangerous machines.

Sec. 24: Striking gear and devices for cutting off power.

Sec. 25: Structuring for moving parts of self-acting machines.

Sec. 26: Casing of new machinery.

Sec. 27: Not to allow women and children near cotton Openers.

Sec. 28 & 29: Safety of hoists, lifts, chains etc.

Sec. 30: Safety at revolving machinery.

Sec. 31: Safety at Pressure plant

Sec. 32: Safety at floors, stairs and means of access

Sec. 33: Safety at pits, sumps, openings in floors etc.

Sec. 34: No worker shall be made to carry a load so heavy as to cause himinjury.

Sec. 35: Protection of eyes

Sec. 36 & 36A: Precautions against dangerous fumes

Sec. 37: Safety with handling explosive or inflammable gas etc.

Sec. 38: Precaution in case of fire


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Sec. 39 & 40: Specifications of defectives etc. and safety of buildings andmachinery

Sec. 40A: Maintenance of Buildings

Sec. 40B: Employment of Safety Officers

Sec.41: Rules providing for use of further devices for safety as may benecessary.

Sec. 41B: Information as to the quantity, specifications and othercharacteristics of wastes and the manner of their disposal;

Sec. 41C: Necessary facilities for protecting the workers in the mannerprescribed;

Sec. 41G: Setting up a safety committee of workers and management topromote safety and health at work and to review periodical measures;

Sec. 41H: Remedial actions for health and safety;

Sec. 42: Provision of washing facilities;

Sec. 43: Facilities for storing and drying clothing;

Sec. 44: Facilities for sitting;

Sec. 45: Provision of first-aid appliances, working hours of adults,employment of young persons, annual leave with wages, or special provisionsof rules by the govt.

Sec. 46: Provision of canteens;

Sec. 47: Shelters, restrooms and lunch rooms;

Sec. 49: Employment of welfare officers w.r.t workers employed onmaintenance;

Sec. 50: Provision for State Govt. to make rules regarding the welfareof workers.

Sec. 86: Exemption of public institutions, workshop or workplace forthe purposes of education, training, research or reformation.

Sec. 87: State Govt. empowered to make special rules tocontrol/regulate factories

Sec. 88: The State Govt. may make rules for regulating the procedure atinquiries.

Sec. 89: The medical practitioner shall without delay send a report tothe Chief Inspector in writing, stating particulars.

Sec. 90: The State Govt. may appoint a competent person to enquireinto the causes of any accident occurring in a factory or of a notifiabledisease,

Sec. 91A: Employment of Chief Inspector to undertake OH & Ssurveys.


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Sec. 92: The occupier is punishable with imprisonment up to two (2)years or with fine up to Rs. 1 lakh or both for any contravention of theprovisions of the Act.

Sec 92 to 106: Rules regarding penalties for offences against the Act.

Sec. 94: Occupier, again found guilty of Sec. 92, is punishable withimprisonment of three (3) years or with fine up to Rs. 2,00,000, or both.

Sec. 95: Imprisonment for six (6) months or fine of Rs. 10,000 or bothfor willfully obstructing an Inspector in exercising of any powersconferred on him by this Act.

Sec. 96A: For the non-compliance or contravention of the provisions ofSec. 41B, 41C or 41H, imprisonment of seven (7) years or fine up to Rs.2,00,000 and if it continues, additional fine of Rs. 5,000 per day withimprisonment extending to ten (10) years.

Sec. 102: Punishments to the occupier if fails to specified remedying.

Sec. 104A: The onus is on the person who is alleged to have failed tocomply with such duty to prove that he/ she has taken all measures orit was not reasonably practicable.

Sec. 107: The manager or the occupier can appeal against chargeswithin thirty days.

Sec. 108: All notices must be displayed in English and in a locallanguage.

Sec. 109: Service of notices on owners, occupiers or managers offactories

Sec. 110: Submission of returns w.r.to employees, machinery, plant orpremises.

Sec. 111: Obligations of worker not to willfully interfere or misuse anyappliance; defaulter punishable with imprisonment up to 3 months orfine up to Rs. 100 or both.

Sec. 113: Central Govt. may direct State to execute the provisions ofthe Act.

Sec. 119: Provisions to abolish contract of labour for any inconsistencytherewith

2.14 ANSWERS TO SAQ’s

Refer the relevant preceding text in the unit or other useful books on the topiclisted in the section “Further Reading” given at the end of the block to get theanswers of the self assessment questions.


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UNIT 2 DUTIES AND RESPONSIBILITIES OF OCCUPIER ...

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