COVID – 19 PANDEMIC MIGRANT LABOUR CRISIS: A LEGISLATIVE COMMENTARY ON THE INTER – STATE MIGRANT WORKMEN ACT, 1979

ABSTRACT

We all experienced COVID – 19 Pandemic Migrant Labour Crisis; an evidence of lacuna in social security and welfare facilities for migrant workmen. It was not though that, there was a legislative loophole but, it was all consequences of lacuna in implementation of the Inter – State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979. The act provided for statutory obligations on Contractor and in his absence on Principal Employer for medical facilities, journey allowances and welfare facilities etc. But, Hon’ble Supreme Court erred in fixation of these liabilities while dealing with the issue.

With the Occupational Safety, Health and Working Conditions Code, 2020 repealing earlier act and extending application of welfare facilities to those inter – state migrant workmen who cross state boundaries on their own; this paper is an attempt to critically analyze the provisions of 1979 Act and changes incorporated under 2020 Code with an observation on how proper implementation of this dead letter legislation would have mitigated the darkest spot on the history of welfare society.

INTRODUCTION

This COVID – 19 pandemic had shown many unprecedented sights to the world, with complete lockdown of the globe to highest deaths ever recorded in history of mankind. But, among all these images; the one that shocked and shamed our claim of being a Welfare State was Migrant Labour Crisis. With an unbearable journey of 1700 – 1800 Kms. many walked bare foot, on bicycles, trucks, trains or some via flights. Many reached their destinations, some starved in between and some died with stroke or motor accidents. No one can ever forget images of a mother pulling her child on suitcase & a 2 year old child trying to wake his died mom at a railway platform. History experienced an unprecedented Social, Political and Economic Crisis; where Migrant Labours bet their life, with journey of life and to save their life.

But, this crisis arose a great question on Social Safety of these Migrant Labours; legal lacuna in administrative implementation and the story of a Social Security Legislation that became a dead letter. Throughout, this Paper we would try to analyze importance of the Inter – State Migrant Workmen (Regulation of Employment and Conditions of Services) Act, 1979[1]; its scope, importance and how it could have mitigated this unprecedented crisis. We would further analyze changes made under the Occupational Safety, Health and Working Conditions Code, 2020.

KEY WORDS

Inter – State Migrant Workmen                   1979 Act                          2020 Code

                                          Contractor                       Principal Employer

I. SCOPE OF LEGISLATION

The Inter - State Migrant Workmen (Regulation of Employment and Conditions of Services) Act, 1979[2] was enacted to regulate the working conditions of inter – state migrant workmen, who leave their native places behind in search of employment; and further to determine their minimum working conditions.[3] Sec. 1 (4) states that, the extent and application of the act was to all Establishments[4] (offices, govt. departments, industry, trade, business, occupation etc.) and Contractors[5], who have employed 5 or more inter – state migrants in preceding twelve months.

Sec. 2 (e) defined Inter – State Migrant Workmen as, “any person who is recruited by or through Contractor under an agreement or some other arrangements, to be employed in establishments in some other states”.[6]

II. HISTORICAL BACKGROUND

Statements of Objects & Reasons to the Act stated that, in 1980s, Dadan Labour (a system of Inter – State Migrant Labour, prevalent in Orissa) was very exploitive. These labours were used to be recruited by agents/ contractors, also known as Sardars/ Khatadars, to be employed in large construction work in some other states. On a false promise of monthly wage, these labours were exploited with maximum no. of working hours, in extremely bad working conditions. This issue arose in 28th Session of Labour Ministers’ Conference at New Delhi, on Oct. 26, 1976 and it was decided to set up a Small Compact Committee to analyze the whole situation and to recommend measures for eliminating malpractices in Dadan system.[7]

In Feb. 1977, the Compact Committee submitted its report; noting that amendments to the Contact Labour (Regulation and Abolition) Act, 1970 will not serve the requisite purpose and hence a new statute should be enacted. This led to development of the 1979 Act.[8]

III. IMPORTANT PROVISIONS

Registration of Establishments – Sec. 4 of the Act provided that, the Principal Employer of every Establishment wherein this act was applicable was required to apply for registration and within 1 month; Certificate of Registration was to be provided.[9]

Licensing of Contractors – As per Sec. 8 of the Act, no Contractor (to whom this act applied) should recruit or employ any workmen in another state without a license issued in that behalf. Such license would contain terms and conditions in respect of agreements, working hours, wages and other amenities.[10]

Duties of Contractors – Sec. 12 dealt with duties and obligation of Contractors, these were as follows [11];

(i.)              To furnish particulars of Inter – State Migrant Workmen to specified authorities of both States, from where the workmen has been recruited and to where he has been employed [Sec. 12 (1) (a)].

(ii.)            To issue, every workmen a Pass Book in Hindi/ English/ Known language, indicating Name, Photo of Workmen, Name and Place of Establishment, Wage Rates, Term of Employment, Displacement Allowance and Return Fee Payable [Sec. 12 (1) (b)].

(iii.)          When workmen ceases employment, to furnish information to authorities in both States, declaring wages and all dues have been paid with return fee [Sec. 12 (1) (C)].

Welfare and Other Facilities – Objective of the act was also to determine working conditions for Migrant Workmen, it provided;

(i.)              Wage Rates, Holidays, No. of Working Hours and other conditions of service of any Inter – State Migrant workmen to be similar as of other workmen in such establishments [Sec. 13][12].

(ii.)            At time of recruitment, every migrant workmen to get Displacement Allowance equal to 50% of monthly wages or INR 75 (whichever is higher), in addition to monthly wages [Sec. 14][13].

(iii.)          Both outward and return journey fare to be paid by contractors [Sec. 15][14].

(iv.)          Suitable accommodation, medical facilities and clothes etc. to be borne by the Contractor [Sec. 16][15]. Further, Rule 37 – 45 of the Central Rules, 1980 also dealt with this.[16]

Responsibility of payment of Wages – Primarily, the Contractor was responsible for payment and every Principal Employer would nominate a representative to witness and certify whole process of payment. But, if he fails, the Principal Employer would be liable [Sec. 17][17].

IV. JUDICIAL INTERPRETATIONS

In Labourers Working on Salal Hydro Projects v. State of J&K and Ors.[18]; Hon’ble Supreme Court pointed out that ‘Inter – State Workmen Act, 1979 was enacted to eliminate abuses by khatirdars/ sardars on Inter – State Migrant workmen’.[19] Further, it was observed that such legislation was necessary for effective protection of these Workmen, from exploitation and malpractices as; they are generally illiterate, poor and easy victims.

In Bandhua Mukti Morcha v. Union of India and Ors.[20]; Justice Bhagwati observed that; ‘Right to live with Human Dignity enshrined under Art. 21 is derived from Art. 39 (e), (f); Art. 41 and Art. 42. Although, Directive Principles are not enforceable in a court of law but, if these are enacted into legislations, such as Inter – State Workmen Act, 1979; Government is obliged for its implementation. If there is inaction in implementation, it is denial of Right to live with human dignity’.[21]

In People’s Union for Democratic rights v. Union of India & Ors.[22]; Justice Bhagwati again observed that; ‘rights and benefits conferred on workmen under Contract Labour (Regulation and Abolition) Act, 1970 and Inter - State Migrant Workmen Act, 1979 are intended to ensure basic human dignity of workmen and any deprivation under these two legislations will be violation of Art. 21’.[23]

In Damodar Panda v. State of Orissa[24]; Hon’ble Supreme Court while interpreting Sec. 20 (3) of the Act, held that ‘there is no valid justification for not permitting officers of originating States of Migrant Workmen to investigate matters in State of Employment. Every State and UT of India, are obliged to permit such officers.’

V. NEW LABOUR CODE

On Sept. 29, 2020; the Central Government published the Occupational Safety, Health and Working Conditions Code, 2020 in the Gazette of India.[25] This Code repeals the Inter – State Migrant Workmen (Regulation of Employment and Conditions of Services) Act, 1979.[26] Sec. 45 – 62 of the Code deals with issue of Inter – State Migrants. It is important to note that, although the Code has been published; commencement has not yet been notified.

Major changes made under new code are as follows;

• Sec. 2 (zf) of the Code defines Inter – State Migrant as “any person who is recruited by an Employer / Contractor in one State for his employment in another state or any person who has come on his own from one state to another and had obtained employment”.[27] So, application of the Code has been extended as it will now also cover employers and Inter - State Migrant workers, who enter other State boundaries in search of employment, by own, without involvement of any Contractors. This was a long – seeked amendment and was also suggested by the National Commission on Labour in 1991.[28]
• It will apply to Establishments with 50 workmen or more [Sec. 45][29], earlier it used to be 5 or more. Furthermore, the Principal Employer will be now liable for welfare facilities to the Contract Labour. [Sec. 53][30] and the Contractor shall be solely responsible for payment of wages [Sec. 55][31].

CONCLUSION

Rule 22 (c) of the Central Rules, 1980 clearly states that it is the liability of a contractor to provide return fare where, there is cessation of work in the Establishment and is not due to fault of any migrant workmen.[32] Further, Rule 37 (1) provides that, the contractor shall ensure medical facilities to meet any preventive measure against any epidemic or virus infection.[33] And in case where contractor fails to do so, then as per Rule 46, liability simply shifts to the Principal Employer.[34]

However, Hon’ble Supreme Court of India, In Re: Problems and Miseries of Migrant Labourers[35] simply directed concerned native States or UTs to keep record of migrant workers, nature of their skills, earlier place of employment and observed that, it is duty and obligation of government to take steps and thus, erred in fixation of liabilities under the act.

Jayna Kothari (2014) argues that, “the term Social security has taken different meaning, in different jurisdictions, depending upon their historical context. In U.S.A, the term only refers to Social Insurance Programmes; in Europe, it refers mainly to Income Protection Programmes while, in India it encompasses security of social rights such as, Healthcare, Education, Food and Livelihood in addition”.[36]

As per 2011 Census of India, number of Inter – State Migrants have grown by 33% between 2001 and 2011.[37] Debollna Kundu (2014) observes that, “Except for the Inter – State Migrant Workmen Act, 1971; there is no other law exclusively dealing with migrant workmen in India”.[38]

Hence, it could be summarized that if the legislation had been properly implemented; it could have helped in mitigation of COVID – 19 Migrant Labour Crisis. Because, its proper implementation would have ensured full details of Migrants throughout India, their economic conditions, fixation of liability for medical facilities over Contractors and in their failure, over the Principal Employers. But, the mishandling of Statutory obligations and error of Hon’ble Supreme Court in fixation of Statutory Liabilities, clearly resembles that it will be correct to say that, The Inter – State Migrant Workmen (Regulation of Employment and Condition of Services) Act, 1979 was a dead letter at time of Covid – 19 Migrant Labour Crisis. However, with the new Code there is a hope that, circumstances will change but, this will unfold with future.

SUGGESTION

• Most important problem with the Act was its implementation, which was because of no. of registrations, licensing and complex service conditions detailed in the 1980 Central Rules. It is thus suggested that with new rules under the 2020 Code, these complexity needs to be simplified; registration and licensing should be based on Internet Portal and such effective implementation is need of hour.

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[1]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), available at: https://legislative.gov.in/sites/default/files/A1979-30.pdf (last visited on Nov. 7, 2020).

[2]Id.

[3]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), Preamble.

[4]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 2 (d).

[5]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 2 (b).

[6]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 2 (e).

[7]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), Statements of Objects & Reasons, available at: https://legislative.gov.in/sites/default/files/A1979-30.pdf (last visited on Nov. 7, 2020).

[8]Id.

[9]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 4.

[10]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 8.

[11]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 12.

[12]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 13.

[13]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 14.

[14]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 15.

[15]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 16.

[16]The Inter – State Migrant workmen (Regulation of Employment and Condition of Service) Central Rules, 1980, Rule 37 – 45, available at: https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen (last visited on Nov. 7, 2020).

[17]The Inter – State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (Act 30 of 1979), s. 17.

[18]Labourers Working on Salal Hydro Projects v. State of J&K and Ors., MANU/SC/0243/1983.

[19]Id.

[20]Bandhua Mukti Morcha v. Union of India and Ors, AIR 1984 SC 802.

[21]Id.

[22]People’s Union for Democratic rights v. Union of India & Ors., AIR 1982 SC 1473.

[23]Id.

[24]Damodar Panda v. State of Orissa, 1990 SCR (3) 390.

[25]https://www.egazette.nic.in/(S(ghg2hruvun1k3fhsizdvibb2))/SearchPublishDate.aspx (last visited on Nov. 7, 2020).

[26]The Occupational Safety, Health and Working Conditions Code, 2020, s. 143 (1) (j), available at: https://labour.gov.in/sites/default/files/OSH_Gazette.pdf (last visited on Nov. 7, 2020).

[27]The Occupational Safety, Health and Working Conditions Code, 2020, s. 2 (zf), available at: https://labour.gov.in/sites/default/files/OSH_Gazette.pdf (last visited on Nov. 7, 2020).

[28] Dr. Prashant Mishra and Dr. P.K Pandey, “Protection of Inter – State Migrant Workmen: An Analysis, the Legal Analyst” II The Legal Analyst 42 (2011), available at: https://www.researchgate.net/publication/256016791_Protection_of_Inter-State_Migrant_Workers_in_India_-_An_Analysis (last visited on Nov. 7, 2020).

[29]The Occupational Safety, Health and Working Conditions Code, 2020, s. 45, available at: https://labour.gov.in/sites/default/files/OSH_Gazette.pdf (last visited on Nov. 7, 2020).

[30]The Occupational Safety, Health and Working Conditions Code, 2020, s. 53, available at: https://labour.gov.in/sites/default/files/OSH_Gazette.pdf (last visited on Nov. 7, 2020).

[31]The Occupational Safety, Health and Working Conditions Code, 2020, s. 55, available at: https://labour.gov.in/sites/default/files/OSH_Gazette.pdf (last visited on Nov. 7, 2020).

 [32]The Inter – State Migrant workmen (Regulation of Employment and Condition of Service) Central Rules, 1980, Rule 22 (c), available at: https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen (last visited on Nov. 7, 2020).

[33]The Inter – State Migrant workmen (Regulation of Employment and Condition of Service) Central Rules, 1980, Rule 37 (1), available at: https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen (last visited on Nov. 7, 2020).

[34]The Inter – State Migrant workmen (Regulation of Employment and Condition of Service) Central Rules, 1980, Rule 46, available at: https://clc.gov.in/clc/acts-rules/inter-state-migrant-workmen (last visited on Nov. 7, 2020).

[35]In Re: Problems and Miseries of Migrant Labourers, MANU / SC/ 0472/ 2020.

[36]Jayna Kothari, “A Social Rights Model for Social Security: Learnings from India” JSTOR 7 (2014), available at: https://elibrary.symlaw.ac.in:2086/stable/43239719?Search=yes&resultItemClick=true&searchText=%28inter+state+migrant+workmen%29+AND+%28jayna+kothari%29&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DjDjay%2Bkothari%26acc%3Don%26wc%3Don%26fc%3Doff%26group%3Dnone%26prq%3Dinter%2Bstate%2BmBmigra%2Bworkmen%26swp%3Don&ab_segments=0%2Fbasic_search_SYC-5455%2Fcontrol&refreqid=fastly-default%3A286fb46041e03f96e47ccdd2af74a898&seq=1#metadata_info_tab_contents (last visited on Nov. 7, 2020).

[37]2011 Census Data on migration, available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/2011-census-data-on-migration (last visited on Nov. 7, 2020).

[38]Debollna Kundu, “Policies to Safeguard Migrants’ Rights: A Critical Approach, Urban India” 34 I1 184 (2014), available at: https://www.shram.org/uploadFiles/20150417060636.pdf (last visited on Nov. 7, 2020).