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Jan - Mar 2024

Analysis of the Amendments to the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Introduction:

The main objective of the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is to provide a safe and secured working environment for women and prevention, prohibition of any kind of sexual harassment at workplace.

Amendments to the PoSH Act:

A bill to further amend the act has been passed (i.e) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Amendment Act, 2024 which shall come into force on the date the Central Government may by notification in the official gazette appoint.

The amendments as mentioned in the bill are made to Section. 9 and Section. 10 of the Act providing for Complaint of Sexual Harassment and Conciliation respectively.

In Section. 9 of the act, the period specified for the filing of the complaint under the PoSH Act given as three months has been replaced with one year.

Section. 10 of the act has been completely omitted

Analysis of the Amendments to the PoSH Act:

In consideration of the lived experiences and the realities of the modern workplace, the amendments have been introduced to address the major issues underlying in the act.

As per Section. 9 of the Act, a limitation period has been issued for filing of the complaints which is 3 months from the date of the incident or the last incident. The stipulated period mentioned can be extended for a further period of 3 months provided that the Internal Committee or the Local Committee as the case may be is satisfied that there were underlying reasons that prevented the woman from filing the complaint within the stipulated period.

Considering the maximum limitation of 6 months placed on the filing of the complaint and in cases where the woman may be traumatised where it would be impossible to file a complaint until they have recouped with their strength, the basic limitation period has been changed as 1 year.

On the other hand, Section. 10 of the Act dealing with conciliation has been Omitted. It is stated in the bill that the purpose of the amendment is upon considering the problematic situations such as possibility of influencing, coercing, pressuring, or intimidating the complainant to arrive at a settlement.

Conclusion:

The bill introduced intends to eradicate the problems underlying the act as identified in Section. 9 and Section. 10 of the Act

In conclusion, it is stated in the bill that the basic limitation of one year as mentioned under Section. 9 of the act is extendable without any upper limit by the Local Committee or the Internal Committee as the case may be upon satisfied that there exists reasons for the woman for not filing the complaint which will be decided on a case-by-case basis and Section. 10 of the act is omitted in full to prevent possibility of influencing, coercing, pressuring or intimidating the complainant to arrive at a settlement.

Applicability of Contract Labour Act to Principal Employer and Contractor

Introduction:

The applicability of the Contract Labour Act is provided separately for Principal Employer and the Contractor under Sec. 1(4)(a) and Sec. 1(4)(b) of the Contract Labour (Regulation & Abolition) Act, 1970 respectively. Though the contract labour billing is generated together for all the establishments by the Contractor working under the same management, the applicability should be looked into for each of the establishments as the word “every establishment” is explicitly mentioned under Sec. 1(4)(a) of the act and the Principal Employer definition is only associated with each of the establishment.

Applicability to Principal Employer: 

The applicability of the act to Principal Employer is provided referring to the establishment in place under Sec. 1(4)(a). Though the number of contract workers deployed by Contractor to each of the establishments is less than the required number for the applicability of the act, it is necessary to understand that the Principal Employer may be liable under the Contract Labour (Regulation & Abolition) Act, 1970 if the contract workers employed through different Contractors are 20 or more at each of the establishments. The contract workers employed by all the Contractors shall be considered in this case for each of the establishment.

Applicability to Contractor: 

The applicability of the act to the Contractor is read separately in the act under Sec. 1(4)(b) as to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen. Considering the applicability condition, the Contractor may or may not be liable under the Contract Labour (Regulation & Abolition) Act, 1970 considering different establishments under the Principal Employer and the number of contract workers deployed for each of the establishment.

Responsibilities under the Act: 

Principal Employer as per Sec. 7 of the Act is liable to apply for registration of the establishment in case if he intends to employ Contract Workers and the application for registration shall be made not less than 30 days from the date on which the principal employer is desirous to employ contract labours. If the number of Contract Labours employed at each of the establishments is more than 20 taking into account all the contract workers that may be deployed by different contractors then Certificate of Registration becomes mandatory. No Principal Employer shall engage Contract Workers without the Certificate of Registration.

Contractor on the other hand, as per Sec. 12 of the Act is liable to apply for the Licence of the Contractor if the number of Contract Workers deployed by him to each of the Principal Employers is more than or equal to 20. It is pertinent to note that all application for license by the Contractor should be accompanied with Certificate by the principal employer declaring that he has engaged the specific Contractor.

Solution:

Herewith, it is pertinent to understand that applicability of the act is provided separately for the Principal Employer and the Contractor. While the Principal Employer may be liable under the Contract Labour (Regulation & Abolition) Act, 1970 if the total number of Contract workers employed at each of the establishments is 20 or more irrespective of the Contractors.

However, Principal Employer insists that the Contract Labour License is required to be submitted then the Principal Employer shall provide the Certificate of Registration of Principal Employer with Contractor’s name included as one of the Contractors and Form of Certificate by Principal Employer (Form III) as it is mandatory to proceed with obtaining the Contract Labour License.

In case if the Principal Employer does not hold a Certificate of Registration already, the implications attached to obtaining the Certificate of Registration of Principal Employer is that the Principal Employer should have applied for Certificate of Registration employing Contract Labour not less than 30 days from the date on which the principal employer is desirous to employ contract labours.

Recent Amendments/Notifications: 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)Act, 2013

Amendment has been made to Section. 9 and Section. 10 of the Act. Under Section. 9, The period for filing the complaint has been changed from 3 months to 1 year. The basic limitation period for filing complaints is fixed as one year which can be extended without any limitation by the Internal Committee or Local Committee based on the case in hand. Section 10: Conciliation has been omitted considering the circumstances of forced settlement.

Amendment to Highlights of Finance Bill, 2024

Highlights of the Income Tax Bill, 2024 has been issued by the Ministry of Finance which provides the revised rate of tax and contains the proposed amendments.

Amendment to Income Tax Forms 

Central Board of Indirect Taxes has issued the Income-tax (Amendment) Rules, 2024. Income-tax (Amendment) Rules, 2024 will make changes to Income tax Return Forms 2, 3 and 5 and shall be effective from the 1st day of April, 2024.

Promoting Women Workforce Participation

The Ministry of Labour & Employment has issued Advisory for employers to promote women workforce participation. Advisory for employers to promote women workforce participation has been issued to enhance Gender Equality and Women’s Economic Empowerment.

Digitalization of Joint Request and Permission 

Directions have been issued by The Employees’ Provident Fund Organisation with regard to Joint Request and permission under Para 26(6) of the EPF Scheme, 1952. Directions have been issued by the EPF Association on the digital format of the application to reduce the paperwork and this will be applicable only for new enrolments and already contributions being paid need not file the forms immediately

Submission of Maternity Claims in the absence of UAN

Notification regarding solution for the issues faced by IPs on submission of Maternity Claims in the absence of UAN. It is stated that IP can generate UAN even if not covered under the EPFO and the UAN generated can be seeded by the employer. All the ROs/SROs are requested to guide for the generation of the UAN number and submission of Maternity Claims by logging into the IP portal.

Inclusion to Public Utility Services

Industries engaged in Manufacturing of Alumina, Aluminium and Mining of Bauxite had been already declared as Public Utility services since 4th August, 2023. Mineral oil (crude oil), motor and aviation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils including their blends with synthetic fuels, lubricating oils had also been already declared as Public Utility services since 28th August, 2023. Products under both the categories have been extended as Public Utility Services for a period of another 6 months.

Implementation of ESI Act 

ESI Act, 1948 will be implemented wholly in the partially notified district (i.e) Nabrangpur & Nayagarh in the state of Odisha. The effective implementation date as per the notification is from 01.03.2024.

Judgments:

Dr. Mrs. Suman V. Jain vs.  Marwadi Sammelan through its Secretary and Others.

Date of Order : 20.02.2024; Case No: CIVIL APPEAL NO. 1480 OF 2012; Authority: Supreme Court of India 

Facts of the Case:

The appellant (i.e) aggrieved party here is the former employee of the Respondent institution. The case has been filed by the appellant for rejecting the withdrawal of her prospective resignation.

The College Tribunal rejected the petition stating that it is not a case of order of dismissal, removal or termination of service and hence the petition is not maintainable. Though the college tribunal delved on the fact that the prospective resignation can be withdrawn held that there was mutual understanding between the parties that prohibited withdrawal of resignation.

The case was before the Single Judge where he on referring to the Rev Oswald case stated that the right to withdraw a prospective resignation is capable of being waived off or given up by the person who holds the right.

The case was then appealed before the division bench which upheld the rationale of the single bench judgment stating that the letter of resignation was not objected for quite sometime and thus it reflected an understanding between the parties that the resignation was final, binding and irrevocable between the parties.

The appellant counsel relying upon the precedents quoted that in the absence of any contrary provision governing the employment, prospective resignation can be withdrawn at any time before it becomes effective.

Between the period of disposal of the case from the college Tribunal and pending of the case before the High Court, the appellant secured a job in another college and worked there till superannuation. The High Court held in consensus with the College Tribunal.

The appellant then appealed against the decision of the High Court in the Hon’ble Supreme Court of India where it was stated by the respondent counsel that the appellant has submitted the resignation to stop enquiry of an allegation made against her. But the facts of the case do not seem so as the appellant even before the said letter of the management has submitted her resignation. 

Sections Involved:

Section 59(1) & Section 59(2) of the Maharashtra Universities Act, 1994 – Right of appeal

Summary and Conclusion:

The Hon’ble Supreme Court after considering the facts and referring to previous judgments stated that the resignation letter was only an intimation of the resignation from a prospective date which could have been withdrawn at a later time but before the effective date of the resignation.

The Hon’ble Supreme Court found that there was absence of express words “final, binding and irrevocable” from the letter issued by the management which makes the resignation as unilateral.

The Hon’ble Supreme Court held that the withdrawal of resignation by the appellant prior to the effective date is permissible by law. The court considered the constraints that the appellant cannot join the institution of the respondent as she has joined in another institution during the pendency of the case.

It was held that the period of pendency between the date of resignation and the appellant joining another institution shall be regularised for the purposes of pension and retiral benefits. Following the ‘no work no pay’, there will not be any back wages to the employee provided.

Takeaway from the Judgment:

In conclusion, letter of prospective resignation can be withdrawn at any time before the effective date of the resignation in the absence of any agreement to the contrary. 

Mahanadi Coalfields Ltd. vs. Brajrajnagar Coal Mines Workers’ Union 

Date of Order: 12.03.2024; Case No: Civil Appeal Nos. 4092-4093/2024; Authority: Hon’ble Supreme Court of India

Facts of the Case: 

The issue refers to the National Coal Wage Agreement-IV dated 27.07.1989 where it has been agreed that the employer shall not engage Contract workers for the works which are permanent and perennial in nature and in such cases, only regular employees should be engage

This appeal before the Hon’ble Supreme Court pertains to the non-regularization of 13 out of 32 workers who were treated as Contract Labours and denied the benefits of the organization earlier heard before the Industrial Tribunal and the High Court.

The denial for regularization was based on the ground that the work performed by them was casual and not continuous making them ineligible for regularization. 

Sections Involved:

Section 10 (2A)(1)(d) of the Industrial Disputes Act, 1947 – Reference of disputes to Boards, Courts or Tribunals

Section 18(1) of the Industrial Disputes Act – Persons on whom settlements and awards are binding

Section 36 of the Industrial Disputes Act – Representation of parties

Section 19(2) of the Industrial Disputes Act – Period of operation of settlements and awards

Summary and Conclusion:

The Hon’ble Supreme Court ordered that the contract employees be regularised with back wages stating that there should not be any distinction drawn when all the workers perform the same or work of similar nature.

It is also mentioned that the nature of work performed by them was continuous or perennial and in such case regularisation is mandatory.

The Hon’ble Supreme Court after hearing the evidence ordered that the contract employees be regularized with back wages stating that there should not be any distinction drawn when all the workers perform the same or work of similar nature and work performed by them is continuous or perennial and in such cases regularization is mandatory. 

Takeaway from the Judgment:

In conclusion, Non-regularization of contract workers to deny them the benefits of the organization which on the other hand, the work performed by them is permanent or perennial is not acceptable.

Judgments Snippets:

Employees insured with ESIC can even avail the benefits of a private in emergent condition – 2024 LLR WEB 5 KERALA HIGH COURT

Principal employer is not bound to pay any differential salary/wages to contractual workers under rule 25(2)(v)(a) of the CLRA Rules, 1971 – 2024 LLR WEB 6 CALCUTTA HIGH COURT

Compulsory retirement is no ground for forfeiture of gratuity – 2024 LLR WEB 23

SUPREME COURT OF INDIA

Inquiry under POSH Act is exempt from judicial review – 2024 LLR WEB 33

SUPREME COURT OF INDIA

Leave encashment is excluded from ‘basic wages’ under the EPF Act – 2024 LLR 193 PUNJAB AND HARYANA HIGH COURT

Canteen allowance is a part of ‘basic wages’ under the EPF Act – 2024 LLR 184 DELHI HIGH COURT

Workman terminated by contractor cannot move against the principal employer – 2024 LLR 154 MADRAS HIGH COURT

Pregnant employee cannot be terminated to escape the provision of the Maternity Benefits Act in the garb of unsatisfactory performance – 2024 LLR WEB 59 HIMACHAL PRADESH HIGH COURT

EPF Act can be applied even to factories not engaged in Schedule I industries – 2024 LLR 176 SUPREME COURT OF INDIA

Second Maternity Leave can be claimed within two years from First Maternity Leave – 2024 LLR 126 ALLAHABAD HIGH COURT

Absence of registration of contract and non-procurement of license by the Contractors are relevant factors for presuming employer-employee relationship – 2024 LLR WEB 82 BOMBAY HIGH COURT

Principal employer should pay the PF dues to the contractual employees – 2024 LLR 323 MADRAS HIGH COURT

Merely because the contractual employee worked under the directions and supervision of the principal employer would not make the contract sham and bogus – 2024 LLR WEB 128 GUJARAT HIGH COURT

Did you know?

1.The Employees’ State Insurance Act, 1948 protects the interest of workers in contingencies such as —

I. Sickness

II. Maternity,

III. Temporary or permanent physical disablement,

IV. Death due to employment injury resulting in loss of wages or earning capacity.

Select the correct answer form the codes given bellow:

a) I only          b) II only          c) I, III and IV          d) I, II, III and IV

2.The maximum amount of gratuity payable under the Payment of Gratuity Act, 1972 is –

a) Rs. 5,00,000      b) Rs. 20,00,000      c) Rs. 10,50,000      d) Rs. 10,00,000

3.Bonus must be paid to employees within a period of …………………….. months from the close of the accounting year.

a) 8      b) 9      c) 12      d) None of the above

4.The Contract Labour (Regulation and Abolition) Act, 1970 shall not apply to establishments in which work is of _____

a) An intermittent or casual nature       b) Permanent work       c) Both (A) & (B)      d) None of the above

5.Under the Apprentices Act, 1961, Apprentice entitled for casual leave for the maximum period of  _____________ days in a year.

a) 12        b) 10           c) 15         d)45

Answers to the Quiz:

1.d) I, II, III and IV

2. b) Rs. 20,00,000

3. a) 8

4. a) An intermittent or casual nature

5. a) 12