Who Will Penalize the Laxity on the Part of Law Enforcers? – Part II

In the second of a five-part series on the absence of checks and balances on the State to ensure the effective operation of labour laws, and how it led to the shameful and tragic predicament faced by thousands of migrant workers across the country during the COVID-induced nation-wide lockdown last year, K.R. SHYAM SUNDAR delves into the failure of implementing the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.

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THE discussion of the non-implementation of the law relating to the unorganised workers brings me to discuss another utterly ignored law, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (the ISMW Act). It provides for an elaborate framework for formalising the employment of inter-state migrant workmen (ISMW). The law provides for the appointment of registering officers for registering the principal employers (under Section 4), employing five or more ISMW (whether or not in addition to other workmen), as well as the revocation of registration in certain cases (under Section 5).

Section 6 prohibits the principal employers from engaging ISMW without securing the registration certificate from the Labour Department. The licensing officers, after due investigation for grant of licenses to the contractors employing five or more ISMW (whether or not in addition to other workmen), are required to grant such licenses containing terms and conditions of employment of the ISMW (Sections 8 and 9).

It is essential to recognise that the Central Rules under the ISMW Act (the Rules), that govern the employment of ISMW, require the principal employers and contractors to provide, in the formats contained in several “administrative forms”, a rich database concerning the ISMW. The details required in these forms are set out below.

The forms and the database relating to the ISMW under the Rules

Form Details Details in the Forms
FORM I Application for registration of establishments employing migrant workmen by the Principal Employers
FORM II Certificate of registration
FORM III Register of Establishments
FORM IV Application for Licence for Recruitment by the Contractor
FORM V Application for Licence for Employment by the Contractor
FORM VI Form of certificate by principal employer
FORM VII Application for adjustment of security deposit by the contractor
FORM VIII Licence
FORM IX Application for Renewal of Licence
FORM X [Form in which to furnish particulars in respect of recruitment and employment of migrant workman/workmen as prescribed under sub-rule (1) of rule 21, to the authorities specified under the Explanation below sub-section (2) of section 12 of the ISMW Act] Serial Number

Name of migrant workmen

Father’s/Husband’s Name

Sex

Age

Permanent home address

Name and address of the next of kin of the migrant workman

Place and address of residence in the home state

Amount of displacement allowance paid

Amount of outward journey allowance paid

Amount of wages for outward journey period paid

Nature of job required to be performed

Date of recruitment

Date of employment

Detail of rates of wages and other allowances payable

Period of contract of employment

Detail of other service conditions

Remarks

FORM XI [Return to be sent by the contractor to the authorities specified under Explanation below sub-section (2) of section 12 of the ISMW Act]

Declaration

I/We hereby declare that all wages, other dues including displacement allowances, outward return journeys allowances and wages for journeys period payable to migrant workman/workmen named above by me/us have been paid by me/us to him/them.

Place:

Date:

Signature of the Contractor or his authorised representative

 

 

Serial No.

Name of migrant workman

Father’s/Husband’s name

Sex

Designation

Age

Permanent home address indicating the state

Place and address of residence in home state

Date of employment

Date on which ceased to be employed

Total days worked

Detail of rates of wages and other allowances paid.

Amount of displacement allowances paid.

Amount of outward journey allowances and wages for outward journey paid

Amount of return journey allowances and wages for return journey paid

Total wages paid.

Details of compensation and other allowances.

Amount of deduction, if any

Amount of advance, if any paid

Amount of advance, if any recovered

Remarks

FORM XII Register of Contractors Period of contract

 

Name and address of contractor.

Nature of work on contract.

Location of contract work.

From

To

Maximum number of migrant workmen employment by contractor.

FORM XIII Register of workmen employed by Contractor Serial No.

Name and surname of migrant workman

Age & Sex

Father’s/Husband’s Name

Nature of employment/ designation

Permanent home address of migrant workmen (Village and tahsil/Taluk and District)

Local address

Date of commencement of employment

Signature or thumb impression of migrant workmen

Date of termination of employment

Reasons for termination

Remarks

FORM XIV Service Certificate by the Contractor
FORM XV Displacement and outward journey allowance sheet
Form XVI Return Journey Allowance Register
FORM XVII Muster Roll
FORM XVIII Register of Wages
FORM XIX Register of deduction for damage or loss
FORM XX Register of Fines
FORM XXI Register of Advances
FORM XXII Register of Overtime
FORM XXIII Half-yearly return to be sent by the Contractor to the Licensing Officer
FORM XXIV Annual return of Principal Employer to be sent to the Registering Officer.

SourceChief Labour Commissioner (Central).

The above forms and the details they seek from the principal employers and the contractors form an excellent and elaborate database of the ISMW. However inadequate in coverage and other aspects, the ISMW Act and the Rules together have put in place a detailed labour administrative framework evidenced by numerous forms, registers, and returns (see the above table).

Ineffective implementation in light of the COVID-19 pandemic

When the COVID-19 pandemic struck India and the migrants fled their host states searching for lives and livelihood security, India stared at blank papers concerning statistics on the ISMW. I searched for the Annual Reports on the Working of the ISMW Act on the Labour Bureau’s website but could not find a single annual report under it.

The Chief Labour Commissioner (CLC) office’s reply to an RTI application filed on April 21, 2020, seeking statistical information on migrant workers was, “As per the stat (sic) section is concerned, no such details are available based on requisite information.”

This response, in typical cryptic and bureaucratic fashion, speaks volumes on the implementation of the ISMW Act. At a later stage, in early June, the CLC’s office released “incomplete data” on migrant workers.

Also Read: Centre still collecting data on the death of migrant workers during lockdown 

In the case of Shashank Mangal versus GNCTD (202), before the Single Judge Bench of Justice Pratibha M. Singh of the Delhi High Court, the Delhi Government in June 2020 submitted that not a single worker was registered under the ISMW Act. Further, there was no registration on the Shram Suvidha Portal, which enables online issuance of licenses and registrations under the ISMW Act.

The High Court observed that there was a “dire need” for creating a mechanism for the registration of migrant workers in Delhi.

Further, even months after witnessing painful social and economic experiences of millions of workers during the COVID-19 pandemic, the union government did not collect any data on migrant workers who lost their jobs or died due to the pandemic, as per the Union Labour Minister’s response submitted to the Parliament during the Monsoon session  of 2020.

Also Read: COVID-19 Ravages India: Migrant Workers Continue to Leave City, Informal Sector Faces Threat

Both the National Commission on Rural Labour (NCRL 1991, Chapter 9) and the National Commission on Enterprises in the Unorganised Sector (NCEUS, 2006-10, on page 165) flayed the government for the “tardy” implementation of the ISMW Act, that is, the poor rate of formalisation of contractors and principal employers, via licenses and registrations, and the “very weak” prosecution rates. They also observed that these deficits resulted in the “persistent vulnerability” of unskilled and poor migrant workers.

The NCRL, unlike the NCEUS, made detailed and specific recommendations (on page 123) for reform of the ISMW Act (e.g., framing of a national migration policy, effective administration of law, issuance of temporary ration cards to ISMW, etc.).  But none of the Governments paid attention to these recommendations or the criticism.

Also Read: Labour crisis may reverse economic recovery while migrant workers need support

The Governments and their administrative agencies failed in three major ways.

First, they did not implement the ISMW Act. Second, they did reform the law or its administrative system, despite sharp observations made by the NCRL. Third, even after the woeful and heart-breaking sufferings of the migrant workers witnessed during the onslaught of the pandemic, the Governments failed to respond adequately.

Part I | Part III | Part IV

This article series is an updated version of an earlier article by the author published by Newsclick last year. It has been published as a chapter in a book written by the author titled ‘Impact of COVID-19, Reforms and Poor Governance on Labour Rights in India’ (Synergy Books India, 2021).

(Dr K. R. Shyam Sundar is Professor, HRM Area, XLRI, Xavier School of Management, Jamshedpur. The views expressed are personal.)

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