The Kerala Casual, Temporary and Badli Workers (Wages) Act, 1990

--------------- l'HE KERALA CASUAL, TEMPORARY AND BADLI WORKERS (WAGES) ACT, 1989 (Act I of 1990) CONTENTS Preamble Stctlons Short title, extent, commencement and application 2 . DefinitiOns 3. Wages payable to casual, temporary or badh \\OrkeJs. 4 PoweJ of Government to appomt authOJttles f01 heat mg and dec1dmg clauns and complaints. J. Duty of employers to maintam reg1ste1 s 6 Inspectors 7. Penalties 8. Offences by Compamcs 9 Cogmzance and tnal of offences · l 0. Bw·dcn of proof II . Power to make rules ' ~~r I I • . - _THE KERALA CASUAL, TEMPORARY AND BADLI \'YORKERS (WAGES) ACT, 1989* (Act I of 1990) An Art to provtde for the fixatzim of the wages payable to casual, temporary and badli workers m ccrtam 8Stabhshmenls and employments and f07 matters connected thercwzth. P1eamblc.-WHEREAS 1t expedient to prov1dc f01 the fixat10n of the IS wages payable to casual, temporary and badh worke1 s in certam establish ments and employments and for matters connected therewitll, BE it enacted in the Fortieth Year of the Republic of lnd1a as follows: ·- ! . Short tztle, extent, commencement and applzcatzon.-( I) This Act may be called the Kerala Casual, Temporary and Badli Workers (Wages) Act, 1989. I' (2) It extends to the whole of th() State of Kerala. _ (3) It shall come into f01ce on such date 'as the Government may, by notification in the Gazette, appomt. (4) It shall apply to- (a) eve1 y factory, plantation and motor trampo1 t. undertaking; (b) every estabhslunent to which any of the provJsJons of the Ketala Shops and Conunercial Establishments Act, 1960 (34 of 1960), ~pphes, which is spectfied by the Govemment by notification in the Gazette and wh1ch is sttuate in such area or areas as may be speci~ed m the notification, (c) such other 'establishment or ~ndertakmg as the Government may, by nOtJficatJOn in the Gazette, spec1fy m th1~ behalf: • Prov1ded that no not1ficat10n under clause (b) or clause (c) shall be issued by the Gov~rnment, unless nOt Jess than tWO mOnths' notice Of thc1r Intention I :,.. so to do has been g1vcn and any ObJection or received in response ~uggestiOn to the notice has been'considered by the Government (5) It shall not apply to any establishment; factory, plantation, m~tor transport undertakmg or other undertakings belonging to or under the control of the Central Government 2. DefimtzoTIJ -In th1s Act, unless the context otherwise Jcquues, (a) "badh worke1" means a worker who is appomted m the place of a per:manent worl<er who tempotanly absent; IS *Rece1ved the assent of the. President on the 14th day of .January, 1990 and published in the Kc1ala Gazette E'\.traordinary No. 57 dated the 22nd January, 19,90. 34j1513j91jMC. . ' . 4 (b) 'casual worker" means a worker whose employment is a 01 ca .u~ .JdLure; (c) "employer" means, in "rclati~n "to any establishment, factory, plantation, motor ti anspoi t unde1 takmg or other undertaking,- (I} belongmg to, or under the control of any State Government, I 'a peison or authonty appomtcd by that Government for the supervisiOn and contiOl of workers, or, where no peison or authimty has been so appointed, the head of the Mimstly or the i.J Depa tment concerned, I > '(• (1i) belongmg to, or under the control of, any local autho11ty, the person appomted by such authonty for the supervision and control of workers, or, where no person has been so appomtcd, the ch1ef executive officer of the local authority; (in) many other case, the person who or the authority which ha~ the ultunate control over the affairs of the establishment, factory, pl antatJOn or undertakmg, and whete the said affairs are entrusted to any other person,· whether called manager, managmg director or by any other name, such person, (d\ "factory" has the meaning assigned to 1t in clause (m) of section 2 of the F~ctones ~ct, 1948 (Centrai"'Act 63 of 1948); ·. (c) "Inspector" means an mspector appojnted under section 6; I (f) "motor transport undertakmg" has the mearung assigned to that cxpre~s10n m clause (g) of section 2 of the Motor Transport Workers Act, 1961 (Central Act 27 of 1961); (g) ''permanent worker" means a worker who is employed on a pNmancnt basis; (h) "plantatlon'':has the meaning ass1gned~o it m clause (f) of sectiOn 2 of the PlantatiOns Labour Act, 1951 (Central Act 69 of 1951); • J (1) "State'' means the State of K-erala; (J) "temporary worker" means a worker who has been engaged for work which 1s of ao essentially temporary nature likely to be fi.mshed within a limited penod; (k) "wages'' has the meanmg ass1gned to that term m claus<; (vi) of section 2 of the Payment of Wagd Act, 1936 (Central Act 4 of 1936); · {l} "worker'' means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, m any establishment or employment to which this Act apphes and includes an out worker to whom any articles or matc11als are given out by another person to be made up; cleaned, washed, alte1ed, ornamented, furrushed, prepared, adopted or otherwise processed. 5 3 Wages payable to casual, temporary or badlz workm -Notwithstanding anythmg contamed m any law for the time bemg in force. or in any Judgment, decree or order of any court or other authonty, or m any contract or other agreement, no employer shall pay to any casual, temporary or badli workei employed by him in an establishment, factory, plantation, motor transport ' undertakmg or other undertaking, wages, whether payable in cash or in kmd, at rates less than the nummum of the wages payable by him to a permanent , w01ker for performmg the ~arne work or work of a similar nature • 4 Power of Govemment to appoznt authorzties for hearmg and deczdzng clawis and complaznts.-( I) The Government may, by notification m the Gazette, appoint such officers not below the rank of a District Labour Officer, as they thmk fit, to be the authorities for the purpose of hcanng and deciding- (a) complamts With rega1 d to the contravention of section 3, (b) claims ansmg out of non-payment of wages at the rates referred to in the said sect10n; and may by the same OI a subsequent notification define the local hm1ts witlun wluch each such authouty shall ex~I Cise its. J Unsdict•OT) (2) Every complamt or claim referred to m sub-section ( l) shall be made in such manner as may be prescnbcd (3) If any question anses as to whethc1 two OI mOle \\Oib ate of the same nature or of a sunilar natUie, 1t shall be dec1ded by the authonty appointed under sub-section ( l). ' (4) Where a complaint or cla1m 1s made to the autho11ty appointed under sub-section. ( l), 1t may, after givmg the apphcant and the employC'r, a11 opp01 tunity of bemg heard, and after such mqlllry a~ It may co•1~1der necessary, direct,- • (i) m the case of a clatm ansmg out of non-payment of wages -· at the rates referred to m section 3, that payment be made to the worke1 of the amount by which the wc~ges payable to him exceed the amount actually paid, • (n) in the case of a complaint, that adequate steps be taken by the •employer so as to ensure .that theie 1s no contraventiOn of section 3. (5) Every autho11ty appomted under sub-sectiOn (I) shall have all the powe1 s of a civil co'urt under the Code of Civil" Proccdui e, 1908 (Central Act 5 of 1908), for the purpose of takmg ev1dence and of enf01 cmg the atten dance of witnesses and compelling the production of documents, and every such authonty shall be deemed to be a civil court for all the purposes of sec- • tion 195 and Chapter XXVI of the Code of Cruninal P10cedurc, 1973 (Central Act 2 of 1974). · 6 (6) Any employer 01. worker agg11CVed by any 01 der made by ,m authority appomted under sub-sec: ion (I) on a complaint or cla1m may, wtthin tlmty days fi om the date of the order, p1 efer an appeal to such authonty as the Government may, hy notification in the Gazett<> spec1fy m th1s behalf, and that authority may, after heanng the appeal, confi1m, modify or 1everse ' the ord<'r appealed against and no further qppcal shall be against the order made bv such authonty. (7) The authonty relc11ed tom SL'h-scctJOn (6) may, 1f it is satisfied that the appellant was prevented by sufficient cavse fiom prefen mg the appeal wil hin the penod spec1fied m sub-section (6); aU ow the appeal to be pteferred within a furthet pcnod of th1rty <lays but :1ot thereafter (8) The p1ovis1ons of sub-sw !On (1) of sectiOn 33C of the lndust11al Disputes Act, 1947 (Ccn11al Act 14 of 1947), shall apply for the recove1y of monies due from an <>mploycr a11sing out of the decis10n of an auth01ity appoit:tted 11nder 1Im sect10n 5 Duty of employers to mamtam rcgzsters.-On and from .the commence ment of tl11S Act, every <'mployer shall mamtam ,c;uch registe1 s and oth·~r docuntents m relatiOn to the casual, te111p01 ;u y and bad!J workc1 s employed by him, as. may be prescribed .. 6 In~pectors -(l) The Government may, by notific~t10n in the Gazette, appomt such persons as they may think fit to be InspectOJ s for the put pose ofmakmg an mvestJgation as •o whether tht- p10visions of this Act or the 1u le~ made· thereunder aJe being complied with by employers, and may define th.e local limtts witlun which each Inspector n1ay make such mvestigation (2) Every Impcc101 shall be deemed to be a pubhc ~enant w1thin the meaning of section 21 of the Indian Penal Code (Central Act 45 of 1860) (3) An Inspector may, at any place w1thm the local hmit~ of lm junsdiction,- • (a~ enter, at any reasonable time, w;th such assistance as he thmks fi_t, any bwldmg, p1 ctmses, vehicle or vessel; io (b) require any employer produce any register, muster-roll •' or other document~ 1Cia1ing to the employment of worke1s, and examine such documents, (c) take, on the ~pot or otherwise, the ev1dencc of any pe1son for the purpose of asceltammg whether the prOVISIOns of ,this Act or the lUics made thereunder are bemg or have been complied with, (d) cxamin<> the employe!, his agent or servant 01 any other person found in charge of the cstabhshment, factory, plantation, motor transport undertakmg or other undertakin~ or any prcmtses connected therewtth or any person whom the Inspector has reasonable cause to believe to be, or to have been, a worker in the estabhshment,. factory, plantatiOn or undertaking; ' - 7 (c) make copies of, or take extracts from, any register or other d~~u­ ment maintained under this Act m relation to the establishment, factory, plantation, motor transport urtdertaking or other undertaking. (4) Any person required by an Inspector to produce any register or other document or to give any information shall comply with such requi sition . . '(5) Every employer shall afford the Inspector all facilities for making any entry, inspectiOn, exammation or investigation under this Act. I • 7. Penalties.-(1) If any employer contravenes the provisions of section 3, he shall be punishable with fine which may extend to five thousand rupees. (2) If any person being rcqmred so to do, omits or refuses to produce to an Inspector any register or other document or to give any information, he shall be punishable with fine which may extent to one thousand rupees. '(3) If any employer or other person obstructs any Inspector m the discharge "of his duties under this Act-l he shall be punishable with fine which may extend to. t wo thousand rupees . (4) If any employer refuses or wilfully neglects to afford an Inspector reasonable facilities for making an entry, inspection,· examination or investi gation under this Act, he shall be punishable with fine which may extend to two thousand r,upees. (5) If any employer, bemg required by or under this Act so to do, refuses to g1ve any evidence or prevents his agent, servant or any other person m charge of the establishment, factory, plantation, motor transport under takmg, or other unde~taking, as the case may be, or any worker, from giving evidence, he shall be punishable with fine which may extend to one thousand rupees. (6) If any person makes default m complying with the provisiOns of any rule or order made under this Act, he shall if no other penalty pro- IS •· v1ded for such contravention by this Act, be punishable with line which may extend to five hundred rupees . ' t ' 8. Offellces by Compames.-( I) Where an offence under this Act has been committed by a company every person who, at the time the offence was com mitted, was in charge of, and was responsible to, the company for the conduct of the business of. the company, as well as the company, shall be deemed to bt gmlty of the offenc~ and shall be liable to be proceeded against and punished accordmgly , Provided tfiat nothing contained m this sub-section shall render any such person liable to any punishment, 1f he proves that the offence was commttted without hts knowledge or that he had exerctsed all due dehgence to prevent the commissiOn of such offence. . 8 (2) Notwithstanding .anythmg contained m su~-sec1 ion ( l), where any offence under this Act has·.been comnutted by a company and it ts proved that the offence h;:u; been comnutted With the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such duector, manager secretary or other office! shall be deemed to be guilty of that offence 'ahd shall be hable to be proceeded against and punished accordingly. Explanatwn.-For the purposes of th1s section,- l (a) "company" means 'any body corporate and includ_es a firm or othet association of m<iiv1duals; and (b) "directoc", in relation to a fi1m, means a paitner m the firm . ' J \ ·9 .• Cogmzance and t1 zal of o.ffenm -(I~ No court infenor to that of a udic1al I Mag1strat'e of the first class shall try any offence pu~11Spable under th1s Act. .. . (2) No court sh~l! take cogntlance of an offence punis_hable under this Act. <'XCept upon a complnint mad<" With the sanct1on of the Government or ,an officer authonsed b~ them m tliis behalf . .... (3) No court shall take cogmzance of an offence punishable under 1h1s Act unless complamt thereof 1s made w1thin thtec months from the dale on · which sanction IS granted under th1s section I 0 Burden of prdoj -Notw1thstandmg anythmg con tamed m any ·law for the time being m force, m any proceedmg under this Act, the burden of proving that a work J}c1 formed by a casual, temporary or baclh worke1 IS not the same work or work of a Similai nature as that pe1 formed by a permanent worker shall be on the employer. • 11 4 II. Power to makr rules-( I) The Government may, by notificatiOn in the Gazette, make ,rules for caiTymg out the proviSions of this Act. -..1 (2) l n particular, and without prejudice to the generality of the fore- ·f> going powe1. such rules may provide for all or any of the followmg matte1 s, namely:- (a) the manne1 In which complamt oi f laun 1e fen ed to in sub-sectiOJl (I) of section 4 shall be made / (b) 1egJste1s and other documents which an employer 1s required' under sccnon 5 to maintain m Ielation to the casual, temporary and badh workers employed by him, ' (c) any othe1 matte1, which 1s required to be, or may, prescnbe ' d .. 9 {3) Every rule rn.1de under this Act shall be laid, as soon as may be after It IS made, before the Legislative Assembly while it is in session, for a total period of fourteen days, wh1ch may be comprised m one sess1on or in two success1ve sessions, and if, before the cxpi1 y of the sess1on in which it is so laid or the sessiOn Immediately following, the Legislative Assembly makes any modificatiOn in the rule or decides that the rule should not be made, the rule i shall thereaftei have effect only m such modified form or be of no effect, as the case may be; so however, that any such modificatiOn or annulment shall be without prejudice to the vahd1ty of anything previously done under that rule . • '. • t