Factories Act

November 30, 2014

Section 1. SHORT TITLE, EXTENT AND COMMENCEMENT. 

(1) This Act may be called the Factories Act, 1948.

¹[(2) It extends to the whole of India ²[***].]

(3) It shall come into force on the 1st day of April 1949.

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1. Subs. by the A.O. 1950, for sub-section (2).

2. The words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971).

Section 2. INTERPRETATION. 

In this Act, unless there is anything repugnant in the subject or context,—

(a) “adult” means a person who has completed his eighteenth year of age;

(b) “adolescent” means a person who has completed his fifteenth year of age but has not completed his eighteenth year;

¹[(bb) “calendar year” means the period of twelve months beginning with the first day of January in any year;]

(c) “child” means a person who has not completed his fifteenth year of age;

²[(ca) “competent person”, in relation to any provision of this Act, means a person or an institution recognised as such by the Chief Inspector for the purposes of carrying out tests, examinations and inspections required to be done in a factory under the provisions of this Act having regard to

(i) the qualifications and experience of the person and facilities available at his disposal; or

(ii) the qualifications and experience of the persons employed in such institution and facilities available therein, with regard to the conduct of such tests, examinations and inspections, and more than one person or institution can be recognised as a competent person in relation to a factory;

(cb) “hazardous process” means any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would—

(i) cause material impairment to the health of the persons engaged in or connected therewith, or

(ii) result in the pollution of the general environment:

Provided that the State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation of any industry specified in the said Schedule;]

(d) “young person” means a person who is either a child or an adolescent;

(e) “day” means a period of twenty-four hours beginning at midnight;

(f) “week” means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Chief Inspector of Factories;

(g) “power” means electrical energy or any other form of energy which is mechanically transmitted and is not generated by human or animal agency;

(h) “prime mover” means any engine, motor or other appliance which generates or otherwise provides power;

(i) “transmission machinery” means any shaft, wheel, drum, pulley, system of pulleys, coupling, clutch, driving belt or other appliance or device by which the motion of a prime mover is transmitted to or received by any machinery or appliance;

(j) “machinery” includes prime movers, transmission machinery and all other appliances whereby power is generated, transformed, transmitted or applied;

(k) “manufacturing process” means any process for—

(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal,

³[(ii) pumping oil, water, sewage or any other substance; or]

(iii) generating, transforming or transmitting power; or

⁴[(iv) composing types for printing, printing by letter press, lithography,
photogravure or other similar process or book binding;]⁵[or]

(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; ⁵[or] ⁵[(vi) preserving or storing any article in cold storage;]

l) “worker” means a person ⁶[employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process ⁵[but does not include any member of the armed forces of the Union];

(m) “factory” means any premises including the precincts thereof—

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

(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,—

but does not include a mine subject to the operation of ⁷[the Mines Act, 1952 (35 of 1952)], or ⁸[a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place].

⁵[Explanation ⁹[I].—For computing the number of workers for the purposes of this clause all the workers in ¹⁰[different groups and relays] in a day shall be taken into account;]

¹¹[Explanation II.—For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;]

(n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory¹²[***].

¹³[Provided that—

(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;

(ii) in the case of a company, any one of the directors shall be deemed to be the occupier

(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier:]

¹³[¹⁴[Provided further that] in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire,—

(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under:

(a) section 6, section 7, ¹³[section 7A, section 7B,] section 11 or section 12;

(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;

(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to the workers employed on such repair or maintenance;

(2) the owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16 or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to—

(a) the workers employed directly by him, or by or through any agency; and

(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in-charge or person;]

¹⁵[***]

(o) “prescribed” means prescribed by rules made by the State Government under this Act;

¹⁶[***]

(r) where work of the same kind is carried out by two or more sets of workers working during different periods of the day, each of such sets is called a ¹⁷[“group” or “relay”] and each of such periods is called a “shift”.

Comments

(i) The establishment of hotel would not fall for classification as a factory under section 2(m) of the Act; Lal Bovta Hotel Aur Bakery Mazdoor Union v. Ritz Private Ltd., 2007 (113) FLR 568.

(ii) The definition of “manufacturing process” does not depend upon and is not co-related with any end product being manufactured out of a manufacturing process. It includes even repair, finishing, oiling or cleaning process with view to its use, sale, transport, delivery or disposal. It cannot be restricted to an activity which may result into manufacturing something or production of a commercially different article. The “manufacturing process” cannot be interpreted in a narrow sense in respect of an act which is meant for the purpose connected with social welfare; M/s Qazi Noorul Hasan Hamid Hussain Petrol Pump v. Deputy Director, Employee’s State Insurance Corporation, 2003 LLR 476.

(iii) In the case of a company, which owns a factory, it is only one of the directors of the company who can be notified as the occupier of the factory for the purposes of the Act and the company cannot nominate any other employee to be the occupier of the factory under section 2(n); Container Corporation of India Ltd. v. Lt. Governor Delhi, 2002 LLR 1068 : 2003 (98) FLR 653.

(iv) Under section 2(m) “Factory” means any premises including the precincts thereof in which a manufacturing process is being carried on

Explanation II of section 2(m) sets out that the mere fact that an electronic data processing unit or a computer unit is installed in any premises or part thereof would not render a unit into a factory if no manufacturing process is carried on in such premises or part thereof. Seelan Raj v. Presiding officer 1st Additional Labour Court, Chennai, 2001 LLR 418

(v) It has to be kept in view that the definition of “manufacturing process” in section 2(k) of Act the has nothing to do with manufacturing of goods which may attract excise duty under the Central Excises and Salt Act, 1944; Lal Mohammad v. Indian Railway Construction Co. Ltd., AIR 1999 SC 355.

(vi) All the workers employed by the construction company would squarely attract the definition of the term ‘workman’ as found in section 2(l) of the Act as they are working for remuneration in a manufacturing process carried out by the project; Lal Mohammad v. Indian Railway Construction Co. Ltd., AIR 1999 SC 355.

(vii) For the purpose of section 2(n) what is to be seen is who has the ‘ultimate’ control over the affairs of the factory. Relevant provisions regarding establishment of the Indian Oil Corporation Ltd., and its working, leave no doubt that the ultimate control over all the affairs of the Corporation, including opening and running of factories, is with the Central Government. Acting through the corporation is only a method employed by the Central Government for running its petroleum industry. In the context of section 2(n) it will have to be held that all the activities of the Corporation are really carried on by the Central Government with a corporate mask; Indian Oil Corporation v. Labour Commissioner, AIR 1998 SC 2456.

(viii) Commercial establishment receiving the products in bulk and after unpacking such bulk products pack them according to the customers’ requirements and despatch such products to customers. Such an act is manufacturing process within the meaning of section 2(k); Parry & Co. Ltd. v. Presiding Officer, II Additional Labour Court, Madras, (1998) I LLJ 406.

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1 Ins. by Act 25 of 1954, sec. 2 (w.e.f. 7-5-1954)

2. Ins. by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).

3. Subs. by Act 94 of 1976, sec. 2, for sub-clause (ii) (w.e.f. 26-10-1976).

4. Subs. by Act 25 of 1954, sec. 2, for sub-clause (iv) (w.e.f. 7-5-1954).

5. Ins. by Act 94 of 1976, sec. 2, (w.e.f. 26-10-1976).

6. Subs. by Act 94 of 1976, sec. 2, for certain words (w.e.f. 26-10-1976).

7. Subs. by Act 25 of 1954, sec. 2, for “the Indian Mines Act, 1923 (4 of 1923)”.

8. Subs. by Act 94 of 1976, sec. 2, for “a railway running shed” (w.e.f. 26-10-1976).

9. Explanation numbered as Explanation I by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).

10. Subs. by Act 20 of 1987, sec. 2 for “different relays” (w.e.f. 1-12-1987).

11. Ins. by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).

12. Certain words omitted by Act 20 of 1987, sec. 2, (w.e.f. 1-12-1987).

13. Ins. by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).

14. Subs. by Act 20 of 1987, sec. 2, for “Provided that” (w.e.f. 1-12-1987).

15. Clause (o) omitted by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).

16. Clause (q) omitted by the A. O. 1950.

17 Subs. by Act 20 of 1987, sec. 2, for “relay” (w.e.f. 1-12-1987).

Section 3. REFERENCES TO TIME OF DAY. 

In this Act references to time of day are references to Indian Standard Time, being five and a half hours ahead of Greenwich Mean Time :

Provided that for any area in which Indian Standard Time is not ordinarily observed the State Government may make rules -

(a) specifying the area,

(b) defining the local mean time ordinarily observed therein, and

(c) permitting such time to be observed in all or any of the factories situated in the area.

 Section 4. POWER TO DECLARE DIFFERENT DEPARTMENTS TO BE SEPARATE FACTORIES OR TWO OR MORE FACTORIES TO BE A SINGLE FACTORY.

¹[Power to declare different departments to be separate factories or two or more factories to be a single factory.—The State Government may, ²[on its own or] on an application made in this behalf by an occupier, direct, by an order in writing ²[and subject to such conditions as it may deem fit], that for all or any of the purposes of this Act different departments or branches of a factory of the occupier specified in the application shall be treated as separate factories or that two or more factories of the occupier specified in the application shall be treated as a single factory:]

³[Provided that no order under this section shall be made by the State Government on its own motion unless an opportunity of being heard is given to the occupier.]

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1. Subs. by Act 25 of 1954, sec. 3, for section 4 (w.e.f.7-5-1954).

2. Ins. by Act 20 of 1987, sec. 3 (w.e.f. 1-12-1987).

3. Added by Act 20 of 1987, sec. 3 (w.e.f. 1-12-1987).

Section 5. POWER TO EXEMPT DURING PUBLIC EMERGENCY. 

In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act ¹except section 67 for such period and subject to such conditions as it may think fit : Provided that no such notification shall be made for a period exceeding three months at a time.

²Explanation : For the purposes of this section “public emergency” means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.

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1. Ins. by the A.O. 1950.

2.Ins. by Act 94 of 1976, sec. 3 (w.e.f. 26-10-1976).

Section 6. APPROVAL, LICENSING AND REGISTRATION OF FACTORIES. 

(1) The State Government may make rules -

¹(a) requiring, for the purposes of this Act, the submission of plans of any class or description of factories to the Chief Inspector or the State Government;

²(aa) requiring, the previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories;

(b) requiring for the purpose of considering applications for such permission the submission of plans and specifications;

(c) prescribing the nature of such plans and specifications and by whom they shall be certified;

(d) requiring the registration and licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licences;

(e) requiring that no licence shall be granted or renewed unless the notice specified in section 7 has been given.

(2) If on an application for permission referred to in ³clause (aa) of sub-section (1) accompanied by the plans and specifications required by the rules made under clause (b) of that sub-section, sent to the State Government or Chief inspector by registered post, no order is communicated to the applicant within three months from the date on which it is so sent, the permission applied for in the said application shall be deemed to have been granted.

(3) Where a State Government or a Chief Inspector refuses to grant permission to the site, construction or extension of a factory or to the registration and licensing of a factory, the applicant may within thirty days of the date of such refusal appeal to the Central Government if the decision appealed from was of the State Government and to the State Government in any other case.

Explanation : A factory shall not be deemed to be extended within the meaning of this section by reason only of the replacement of any plant or machinery, or within such limits as may be prescribed, of the addition of any plant or machinery ⁴if such replacement or addition does not reduce the minimum clear space required for safe working around the plant or machinery or adversely affect the environmental conditions from the evolution or emission of steam, heat or dust or fumes injurious to health.

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1. Ins. by Act 94 of 1976, sec. 4 (w.e.f. 26-10-1976).

2. Clause (a) re-lettered as clause (aa) by Act 94 of 1976, sec. 4 (w.e.f. 26-10-1976).

3. Subs. by Act 94 of 1976, sec. 4 “for clause (a)” (w.e.f. 26-10-1976).

4. Ins. by Act 94 of 1976, sec. 4 (w.e.f. 26-10-1976).

Section 7. NOTICE BY OCCUPIER. 

(1) The occupier shall, at least fifteen days before he begins to occupy or use any premises as a factory, send to the Chief Inspector a written notice containing -

(a) the name and situation of the factory;

(b) the name and address of the occupier;

¹(bb) the name and address of the owner of the premises or building (including the precincts thereof) referred to in section 93;

(c) the address to which communication relating to the factory may be sent;

(d) the nature of the manufacturing process -

(i) carried on in the factory during the last twelve months in the case of factories in existence on the date of the commencement of this Act, and

(ii) to be carried on in the factory during the next twelve months in the case of all factories;

²(e) 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-by plant;

(f) the name of the manager of the factory for the purposes of this Act;

(g) the number of workers likely to be employed in the factory;

(h) the average number of workers per day employed during the last

twelve months in the case of a factory in existence on the date of the commencement of this Act; (i) such other particulars as may be prescribed.

(2) In respect of all establishments which come within the scope of the Act for the first time, the occupier shall send a written notice to the Chief Inspector containing the particulars specified in sub-section (1) within thirty days, from the date of the commencement of this Act.

(3) Before a factory engaged in a manufacturing process which is ordinarily carried on for less than one hundred and eighty working days in the year resumes working, the occupier shall send a written notice to the Chief Inspector containing the particulars specified in sub-section (1)³ at least thirty days before the date of the commencement of work.

(4) Whenever a new manager is appointed, the occupier shall send to the ⁴Inspector a written notice and to the Chief Inspector a copy thereof within seven days from the date on which such person takes over charge.

(5) During any period for which no person has been designated as manager of a factory or during which the person designated does not manage the factory, any person found acting as manager, or if no such person is found, the occupier himself, shall be deemed to be the manager of the factory for the purposes of this Act.

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1. Ins. by Act 25 of 1954, sec. 4 (w.e.f. 7-5-1954).

2. Subs. by Act 94 of 1976, sec. 5, for clause (e) (w.e.f. 26-10-1976).

3. Subs. by Act 40 of 1949, sec. 3 and Sch. II, for “within thirty days”.

4. Subs. by Act 25 of 1954, sec. 4, for “Chief Inspector a written notice”.

Section 7 A. GENERAL DUTIES OF THE OCCUPIER. 

(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.

(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include – (a) the provision and maintenance of plant and systems of work in the factory that are safe and without risks to health;

(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety, of all workers at work;

(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;

(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.

(3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.

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1.   Ins. by Act 20 of 1987, sec. 4 (w.e.f. 1-12-1987).

Section 7 B. GENERAL DUTIES OF MANUFACTURERS, ETC., AS REGARDS ARTICLES AND SUBSTANCES FOR USE IN FACTORIES. 

¹(1) Every person who designs, manufactures, imports or supplies any article for use in any factory shall -

(a) ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safe and without risks to the health of the workers when properly used;

(b) carry out or arrange for the carrying out of such tests and examination as may be considered necessary for the effective implementation of the provisions of clause (a);

(c) take such steps as may be necessary to ensure that adequate information will be available -

(i) in connection with the use of the article in any factory;

(ii) about the use for which it is designed and tested; and

(iii) about any conditions necessary to ensure that the article, when put to such use, will be safe, and without risks to the health of the workers :

Provided that where an article is designed or manufactured outside India, it shall be obligatory on the part of the importer to see -

(a) that the article conforms to the same standards if such article is manufactured in India, or

(b) if the standards adopted in the country outside for the manufacture of such article is above the standards adopted in India, that the article conforms to such standards.

(2) Every person, who undertakes to design or manufacture any article for use in any factory, may carry out or arrange for the carrying out of necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimization of any risks to the health or safety of the workers to which the design or article may give rise.

(3) Nothing contained in sub-sections (1) and (2) shall be construed to require a person to repeat the testing, examination or research which has been carried out otherwise than by him or at his instance in so far as it is reasonable for him to rely on the results thereof for the purposes of the said sub-sections.

(4) Any duty imposed on any person by sub-sections (1) and (2) shall extend only to things done in the course of business carried on by him and to matters within his control.

(5) Where a person designs, manufactures, imports or supplies an article on the basis of a written undertaking by the user of such article to take the steps specified in such undertaking to ensure, so far as is reasonably practicable, that the article will be safe and without risks to the health of the workers when properly used, the undertaking shall have the effect of relieving the person designing, manufacturing, importing or supplying the article from the duty imposed by clause (a) of sub-section (1) to such extent as is reasonable having regard to the terms of the undertaking.

(6) For the purposes of this section, an article is not to be regarded as properly used if it is used without regard to any information or advice relating to its use which has been made available by the person who has designed, manufactured, imported or supplied the article.

Explanation : For the purposes of this section, “article” shall include plant and machinery

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1. Ins. by Act 20 of 1987, sec. 4 (w.e.f. 1-6-1988).

Section 8. INSPECTORS. 

(1) The State Government may, by notification in the Official Gazette, appoint such persons as possess the prescribed qualification to be Inspectors for the purposes of this Act and may assign to them such local limits as it may think fit.

(2) The State Government may, by notification in the Official Gazette, appoint any person to be a Chief Inspector who shall, in addition to the powers conferred on a Chief Inspector under this Act, exercise the powers of an Inspector throughout the State.

¹(2A) The State Government may, by notification in the Official Gazette, appoint as many Additional Chief Inspectors, Joint Chief Inspectors and Deputy Chief Inspectors and as many other officers as it thinks fit to assist the Chief Inspector and to exercise such of the powers of the Chief Inspector as may be specified in such notification.

(2B) Every Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector and every other officer appointed under sub-section (2A) shall, in addition to the powers of a Chief Inspector specified in the notification by which he is appointed, exercise the powers of an Inspector throughout the State.

(3) No person shall be appointed under sub-section (1), sub-section (2)¹sub-section (2A) lra-38 ] or sub-section (5), or having been so appointed, shall continue to hold office, who is or becomes directly or indirectly interested in a factory or in any process or business carried on therein or in any patent or machinery connected therewith.

(4) Every District Magistrate shall be an Inspector for his district.

(5) The State Government may also, by notification as aforesaid, appoint such public officers as it thinks fit to be additional Inspectors for all or any of the purposes of this Act, within such local limits as it may assign to them respectively.

(6) In any area where there are more Inspectors than one the State Government may, by notification as aforesaid, declare the powers, which such Inspectors shall respectively exercise and the Inspector to whom the prescribed notices are to be sent.

(7)² Every Chief Inspector, Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector, Inspector and every other officer appointed under this section shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority as the State Government may specify in this behalf.

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1.   Ins. by Act 94 of 1976, sec. 6 (w.e.f. 26-10-1976).

2.   Subs. by Act 94 of 1976, sec. 6, for “Every Chief Inspector or Inspector” (w.e.f. 26-10-1976).

Section 9. POWERS OF INSPECTORS. 

Subject to any rules made in this behalf, an Inspector may, within the local limits for which he is appointed, -

(a) enter, with such assistants, being persons in the service of the Government, or any local or other public authority, ¹[or with an expert] as he thinks fit, any place which is used, or which he has reason to believe is used, as a factory;

²[(b) make examination of the premises, plant, machinery, article or substance;

(c) inquire into any accident or dangerous occurrence, whether resulting in bodily injury, disability or not, and take on the spot or otherwise statements of any person which he may consider necessary for such inquiry;

(d) require the production of any prescribed register or any other document relating to the factory;

(e) seize, or take copies of, any register, record or other document or any portion thereof, as he may consider necessary in respect of any offence under this Act, which he has reason to believe, has been committed;

(f) direct the occupier that any premises or any part thereof, or anything lying therein, shall be left undisturbed (whether generally or in particular respects) for so long as is necessary for the purpose of any examination under clause (b);

(g) take measurements and photographs and make such recordings as he considers necessary for the purpose of any examination under clause (b), taking with him any necessary instrument or equipment;

(h) in case of any article or substance found in any premises, being an article or substance which appears to him as having caused or is likely to cause danger to the health or safety of the workers, direct it to be dismantled or subject it to any process or test (but not so as to damage or destroy it unless the same is, in the circumstances necessary, for carrying out the purposes of this Act), and take possession of any such article of substance or a part thereof, and detain it for so long as is necessary for such examination; (i) exercise such other powers as may be prescribed :

Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself.

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1.   Ins. by Act 20 of 1987, sec. 5 (w.e.f. 1-12-1987).

2.   Subs. by Act 20 of 1987, sec. 5, for clauses (b) and (c) (w.e.f. 1-12-1987).

Section 10 CERTIFYING SURGEONS. 

(1) The State Government may appoint qualified medical practitioners to be certifying surgeons for the purposes of this Act within such local limits or for such factory or class or description of factories as it may assign to them respectively.

(2) A certifying surgeon may, with the approval of the State Government, authorize any qualified medical practitioner to exercise any of his powers under this Act for such period as the certifying surgeon may specify and subject to such conditions as the State Government may think fit to impose, and references in this Act to a certifying surgeon shall be deemed to include references to any qualified medical practitioner when so authorized.

(3) No person shall be appointed to be, or authorized to exercise the powers of, a certifying surgeon, or having been so appointed or authorized, continue to exercise such powers, who is, or becomes the occupier of a factory or is or becomes directly or indirectly interested therein or in any process or business carried on therein or in any patent or machinery connected therewith or is otherwise in the employ of the factory :

¹Provided that the State Government may, by order in writing and subject to such conditions as may be specified in the order, exempt any person or class of persons from the provisions of this sub-section in respect of any factory or class or description of factories.

(4) The certifying surgeon shall carry out such duties as may be prescribed in connection with -

(a) the examination and certification of young persons under this Act;

(b) the examination of persons engaged in factories in such dangerous occupations or processes as may be prescribed;

(c) the exercising of such medical supervision as may be prescribed for any factory or class or description of factories where -

(i) cases of illness have occurred which it is reasonable to believe are due to the nature of the manufacturing process carried on, or other conditions of work prevailing, therein;

(ii) by reason of any change in the manufacturing process carried on or in the substances used therein or by reason of the adoption of any new manufacturing process or of any new substance for use in a manufacturing process, there is a likelihood of injury to the health of workers employed in that manufacturing process;

(iii) young persons are, or are about to be, employed in any work which is likely to cause injury to their health. Explanation : In this section “qualified medical practitioner” means a person holding a qualification granted by an authority specified in the Schedule to the Indian Medical Degrees Act, 1916 (7 of 1916) or in the Schedules to the Indian Medical Council Act, 1933 (27 of 1933). ²

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1.   Ins. by Act 94 of 1976, sec. 7 (w.e.f. 26-10-1976).

2.   Now see the Indian Medical Council Act, 1956 (102 of 1956).

Section 11. CLEANLINESS. 

(1) Every factory shall be kept clean and free from effluvia arising from any drain, privy or other, nuisance, and in particular -

(a) accumulations of dirt and refuse shall be removed daily by sweeping or by any other effective method from the floors and benches of workrooms and from staircases and passages, and disposed of in a suitable manner;

(b) the floor of every workroom shall be cleaned at least once in every week by washing, using disinfectant, where necessary, or by some other effective method;

(c) where a floor is liable to become wet in the course of any manufacturing process to such extent as is capable of being drained, effective means of drainage shall be provided and maintained;

(d) all inside walls and partitions, all ceilings or tops of rooms and all walls, sides and tops of passages and staircases shall—

(i) where they are 1[painted otherwise than with washable water-paint] or varnished, be re-painted or re-varnished at least once in every period of five years;

²[(ia) where they are painted with washable water-paint, be re-painted with at least one coat of such paint at least once in every period of three years and washed at least once in every period of six months;]

(ii) where they are painted or varnished or where they have smooth impervious surfaces be cleaned at least once in every period of fourteen months by such method as may be prescribed;

(iii) in any other case, be kept white washed or colourwashed, and the white-washing or colourwashing shall be carried out at least once in every period of fourteen months;

²[(dd) all doors and window frames and other wooden or metallic framework and shutters shall be kept painted or varnished and the painting or varnishing shall be carried out at least once in every period of five years;]

(e) the dates on which the processes required by clause (d) are carried out shall be entered in the prescribed register.

(2) If, in view of the nature of the operations carried on ³[in a factory or class or description of factories or any part of a factory or class or description of factories], it is not possible for the occupier to comply with all or any of the provisions of sub-section (1), the State Government may by order exempt such factory or class or description of factories ²[or part] from any of the provisions of that sub-section and specify alternative methods for keeping the factory in a clean state.

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1. Subs. by Act 94 of 1976, sec. 8, for “painted” (w.e.f. 26-10-1976).

2. Ins. by Act 94 of 1976, sec. 8 (w.e.f. 26-10-1976).

3. Subs. by Act 94 of 1976, sec. 8, for “in a factory” (w.e.f. 26-10-1976).

Section 12. DISPOSAL OF WASTES AND EFFLUENTS. 

(1) Effective arrangements shall be made in every factory for the treatment of wastes and effluents due to the manufacturing process carried on therein, so as to render them innocuous, and for their disposal.

(2) The State Government may make rules prescribing the arrangements to be made under sub-section (1) or requiring that the arrangements made in accordance with sub-section (1) shall be approved by such authority as may be prescribed.

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1.   Subs. by Act 94 of 1976, sec. 9, for sub-section (1) (w.e.f. 26-10-1976).

Section 13. VENTILATION AND TEMPERATURE. 

(1) Effective and suitable provision shall be made in every factory for securing and maintaining in every workroom -

(a) adequate ventilation by the circulation of fresh air, and

(b) such a temperature as will secure to workers therein reasonable conditions of comfort and prevent injury to health; and in particular, – (i) walls and roofs shall be of such material and so designed that such temperature shall not be exceeded but kept as low as practicable;

(ii) where the nature of the work carried on in the factory involves, or is likely to involve, the production of excessively high temperatures such adequate measures as are practicable shall be taken to protect the workers therefrom, by separating the process which produces such temperatures from the workroom, by insulating the hot parts or by other effective means.

(2) The State Government may prescribe a standard of adequate ventilation and reasonable temperature for any factory or class or description of factories or parts thereof and direct that ¹[proper measuring instruments, at such places and in such position as may be specified, shall be provided and such records, as may be prescribed, shall be maintained].

²[(3) If it appears to the Chief Inspector that excessively high temperatures in any factory can be reduced by the adoption of suitable measures, he may, without prejudice to the rules made under sub-section (2), serve on the occupier, an order in writing specifying the measures which, in his opinion, should be adopted, and requiring them to be carried out before a specified date.]

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1. Subs. by Act 20 of 1987, sec. 6, for certain words (w.e.f. 1-12-1987).

2. Subs. by Act 20 of 1987, sec. 6, for sub-section (3) (w.e.f. 1-12-1987).

Section 14. DUST AND FUME. 

(1) In every factory in which, by reason of the manufacturing process carried on, there is given off any dust or fume or other impurity of such a nature and to such an extent as is likely to be injurious or offensive to the workers employed therein, or any dust in substantial quantities, effective measures shall be taken to prevent its inhalation and accumulation in any workroom, and if any exhaust appliance is necessary for this purpose, it shall be applied as near as possible to the point of origin of the dust, fume or other impurity, and such point shall be enclosed so far as possible.

(2) In any factory no stationary internal combustion engine shall be operated unless the exhaust is conducted into the open air, and no other internal combustion engine shall be operated in any room unless effective measures have been taken to prevent such accumulation of fumes therefrom as are likely to be injurious to workers employed in the room.

Section 15. ARTIFICIAL HUMIDIFICATION. 

(1) In respect of all factories in which the humidity of the air is artificially increased, the State Government may make rules, -

(a) prescribing standards of humidification;

(b) regulating the methods used for artificially increasing the humidity of the air,

(c) directing prescribed tests for determining the humidity of the air to be correctly carried out and recorded;

(d) prescribing methods to be adopted for securing adequate ventilation and cooling of the air in the workrooms.

(2) In any factory in which the humidity of the air is artificially increased, the water used for the purpose shall be taken from a public supply, or other source of drinking water, or shall be effectively purified before it is so used.

(3) If it appears to an Inspector that the water used in a factory for increasing humidity which is required to be effectively purified under sub-section (2) is not effectively purified he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before specified date.

Section 16. OVERCROWDING. 

(1) No room in any factory shall be overcrowded to an extent injurious to the health of the workers employed therein.

(2) Without prejudice to the generality of sub-section (1) there shall be in every workroom of a factory in existence on the date of the commencement of this Act at least ¹[9.9 cubic metres] and of a factory built after the commencement of this Act at least ²[14.2 cubic metres] of space for every worker employed therein, and for the purposes of this sub-section no account shall be taken of any space which is more than ³[4.2 metres] above the level of the floor of the room.

(3) If the Chief Inspector by order in writing so requires, there shall be posted in each workroom of a factory a notice specifying the maximum number of workers who may, in compliance with the provisions of this section, be employed in the room.

(4) The Chief Inspector may by order in writing exempt, subject to such conditions, if any, as he may think fit to impose, any workroom from the provisions of this section, if he is satisfied that compliance therewith in respect of the room is unnecessary in the interest of the health of the workers employed therein.

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1.   Subs. by Act 20 of 1987, sec. 7, for “three hundred and fifty cubic feet” (w.e.f. 1-12-1987).

2.   Subs. by Act 20 of 1987, sec. 7, for “five hundred cubic feet” (w.e.f. 1-12-1987).

3.   Subs. by Act 20 of 1987, sec. 7, for “fourteen feet” (w.e.f. 1-12-1987).

Section 17. LIGHTING

(1) In every part of a factory where workers are working or passing there shall be provided and maintained sufficient and suitable lighting, natural or artificial, or both.

(2) In every factory all glazed windows and skylights used for the lighting of the workroom shall be kept clean on both the inner and outer surfaces and, so far as compliance with the provisions of any rules made, under sub-section (3) of section 13 will allow, free from obstruction.

(3) In every factory effective provision shall, so far as is practicable, be made for the prevention of -

(a) glare, either directly from a source of light or by reflection from a smooth or polished surface;

(b) the formation of shadows to such an extent as to cause eye-strain or the risk of accident to any worker.

(4) The State Government may prescribe standards of sufficient and suitable lighting for factories or for any class or description of factories or for any manufacturing process.

Section 18. DRINKING WATER. 

(1) In every factory effective arrangements shall be made to provide and maintain at suitable points conveniently situated for all workers employed therein a sufficient supply of wholesome drinking water.

(2) All such points shall be legibly marked “drinking water” in a language understood by a majority of the workers employed in the factory, and no such point shall be situated within ¹six metres of any washing place, urinal, latrine, spittoon, open drain carrying sullage or effluent or any other source of contamination unless a shorter distance is approved in writing by the Chief Inspector.

(3) In every factory wherein more than two hundred and fifty workers are ordinarily employed, provisions shall be made for cooling drinking water during hot weather by effective means and for distribution thereof.

(4) In respect of all factories or any class or description of factories the State Government may make rules for securing compliance with the provisions of sub-sections (1), (2) and (3) and for the examination by prescribed authorities of the supply and distribution of drinking water in factories.

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1.   Subs. by Act 20 of 1987, sec. 8, for certain words (w.e.f. 1-12-1987).

Section 19. LATRINES AND URINALS. 

(1) In every factory -

(a) sufficient latrine and urinal accommodation of prescribed types shall be provided conveniently situated and accessible to workers at all times while they are at the factory;

(b) separate enclosed accommodation shall be provided for male and female workers;

(c) such accommodation shall be adequately lighted and ventilated, and no latrine or urinal shall, unless specially exempted in writing by the Chief Inspector, communicate with any workroom except through an intervening open space or ventilated passage;

(d) all such accommodation shall be maintained in a clean and sanitary condition at all times;

(e) sweepers shall be employed whose primary duty it would be to keep clean latrines, urinals and washing places.

(2) In every factory wherein more than two hundred and fifty workers are ordinarily employed -

(a) all latrine and urinal accommodation shall be of prescribed sanitary types;

(b) the floors and internal walls, up to a height of ¹ninety centimeters, of the latrines and urinals and the sanitary blocks shall be laid in glazed titles or otherwise finished to provide a smooth polished impervious surface;

(c) without prejudice to the provisions of clauses (d) and (e) of sub-section (1), the floors, portions of the walls and blocks so laid or finished and the sanitary pans of latrines and urinals shall be thoroughly washed and cleaned at least once in every seven days with suitable detergents or disinfectants or with both.

(3) The State Government may prescribe the number of latrines and urinals to be provided in any factory in proportion to the numbers of male and female workers ordinarily employed therein, and provide for such further matters in respect of sanitation in factories, including the obligation of workers in this regard, as it considers necessary in the interest of the health of the workers employed therein.

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1.   Subs. by Act 20 of 1987, sec. 9, for “three feet” (w.e.f. 1-12-1987).

Section 20. SPITTOONS. 

(1) In every factory there shall be provided a sufficient number of spittoons in convenient places and they shall be maintained in a clean and hygienic condition.

(2) The State Government may make rules prescribing the type and the number of spittoons to be provided and their location in any factory and provide for such further matters relating to their maintenance in a clean and hygienic condition.

(3) No person shall spit within the premises of a factory except in the spittoons provided for the purpose and a notice containing this provision and the penalty for its violation shall be prominently displayed at suitable places in the premises.

(4) Whoever spits in contravention of sub-section (3) shall be punishable with fine not exceeding five rupees.

Section 21. FENCING OF MACHINERY. 

(1) In every factory the following, namely, -

(i) every moving part of a prime mover and every flywheel connected to a prime mover, whether the prime mover or flywheel is in the engine house or not;

(ii) the headrace and tailrace of every water-wheel and water turbine;

(iii) any part of a stock-bar which projects beyond the head stock of a lathe; and

(iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely -

(a) every part of an electric generator, a motor or rotary converter;

(b) every part of transmission machinery; and

(c) every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial construction which ¹shall be constantly maintained and kept in position while the parts of machinery they are fencing are in motion or in use :

²Provided that for the purpose of determining whether any part of machinery is in such position or is of such construction as to be safe as

aforesaid, account shall not be taken of any occasion when – (i) it is necessary to make an examination of any part of the machinery aforesaid while it is in motion or, as a result of such examination, to carry out lubrication or other adjusting operation while the machinery is in motion, being an examination or operation which it is necessary to be carried out while that part of the machinery is in motion, or

(ii) in the case of any part of a transmission machinery used in such process as may be prescribed (being a process of a continuous nature the carrying on of which shall be, or is likely to be, substantially interfered with by the stoppage of that part of the machinery), it is necessary to make an examination of such part of the machinery while it is in motion or, as a result of such examination, to carry out any mounting or shipping of belts or lubrication or other adjusting operation while the machinery is in motion, and such examination or operation is made or carried out in accordance with the provisions of sub-section (1) of section 22.

(2) The State Government may by rules prescribe such further precautions as it may consider necessary in respect of any particular machinery or part thereof, or exempt, subject to such condition as may be prescribed, for securing the safety of the workers, any particular machinery or part thereof from the provisions of this section.

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1. Subs. by Act 94 of 1976, sec. 10, for “shall be kept in position” (w.e.f. 26-10-1976).

2. Subs. by Act 94 of 1976 sec. 10, for the proviso (w.e.f. 26-10-1976).

Section 22. WORK ON OR NEAR MACHINERY IN MOTION. 

¹(1) Where in any factory it becomes necessary to examine any part of machinery referred to in section 21, while the machinery is in motion, or, as a result of such examination, to carry out -

(a) in a case referred to in clause (i) of the proviso to sub-section (1) of section 21, lubrication or other adjusting operation; or

(b) in a case referred to in clause (ii) of the proviso aforesaid, any mounting or shipping of belts or lubrication or other adjusting operation, while the machinery is in motion such examination or operation shall be made or carried out only by a specially trained adult male worker wearing tight fitting clothing (which shall be supplied by the occupier) whose name has been recorded in the register prescribed in this behalf and who has been furnished with a certificate of his appointment, and while he is so engaged, – (a) such worker shall not handle a belt at a moving pulley unless -

(i) the belt is not more than fifteen centimeters in width;

(ii) the pulley is normally for the purpose of drive and not merely a fly-wheel or balance wheel (in which case a belt is not permissible);

(iii) the belt joint is either laced or flush with the belt;

(iv) the belt, including the joint and the pulley rim, are in good repair;

(v) there is reasonable clearance between the pulley and any fixed plant or structure;

(vi) secure foothold and, where necessary, secure handhold, are provided for the operator; and

(vii) any ladder in use for carrying out any examination or operation aforesaid is securely fixed or lashed or is firmly held by a second person.

(b) without prejudice to any other provision of this Act relating to the fencing of machinery, every set screw, bolt and key on any revolving shaft, spindle, wheel or pinion, and all spur, worm and other toothed or friction gearing in motion with which such worker would otherwise be liable to come into contact, shall be securely fenced to prevent such contact.

²(2) No woman or young person shall be allowed to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion, or to clean, lubricate or adjust any part of any machine if the cleaning, lubrication or adjustment thereof would expose the woman or young person to risk of injury from any moving part either of that machine or of any adjacent machinery.

(3) The State Government may, by notification in the official. Gazette, prohibit, in any specified factory or class or description of factories, the cleaning, lubricating or adjusting by any person of specified parts of machinery when those parts are in motion.

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1.   Subs. by Act 94 of 1976, sec. 11, for the opening paragraph and clause (a) (w.e.f. 26-10-1976).

2.   Subs. by Act 25 of 1954, sec. 6, for sub-section (2) (w.e.f. 7-5-1954).

Section 23. EMPLOYMENT OF YOUNG PERSONS ON DANGEROUS MACHINES. 

(1) No young person ¹shall be required or allowed to work at any machine to which this section applies, unless he has been fully instructed as to the dangers arising in connection with the machine and the precautions to be observed and -

(a) has received sufficient training in work at the machine, or

(b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine. (2) Sub-section (1) shall apply to such machines as may be prescribed by the State Government, being machines which in its opinion are of such a dangerous character that young persons ought not to work at them unless the foregoing requirements are complied with.

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1.   Subs. by Act 20 of 1987, 10, for “shall work” (w.e.f. 1-12-1987).

Section 24. STRIKING GEAR AND DEVICES FOR CUTTING OFF POWER. 

(1) In every factory -

(a) suitable striking gear or other efficient mechanical appliance shall be provided and maintained and used to move driving belts to and from fast and loose pulleys which form part of the transmission machinery, such gear or appliances shall be so constructed, placed and maintained as to prevent the belt from creeping back on to the fast pulley;

(b) driving belts when not in use shall not be allowed to rest or ride upon shafting in motion.

(2) In every factory suitable devices for cutting off power in emergencies from running machinery shall be provided and maintained in every work-room:

Provided that in respect of factories in operation before the commencement of this Act, the provisions of this sub-section shall apply only to work-rooms in which electricity is used as power.

¹[(3) When a device, which can inadvertently shift from “off” to “on” position, is provided in a factory to cut off power, arrangements shall be provided for locking the device in safe position to prevent accidental starting of the transmission machinery or other machines to which the device is fitted].

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1. Ins. by Act 94 of 1976, sec. 12 (w.e.f. 26-10-1976).

Section 25. SELF-ACTING MACHINES. 

No traversing part of a self-acting machine in any factory and no material carried thereon shall, if the space over which it runs is a space over which any person is liable to pass, whether in the course of his employment or otherwise, be allowed to run on its outward or inward traverse within a distance of ¹forty-five centimeters from any fixed structure which is not part of the machine :

Provided that the Chief Inspector may permit the continued use of a machine installed before the commencement of this Act which does not comply with the requirements of this section on such conditions for ensuring safety as he may think fit to impose.

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  1.   Subs. by Act 20 of 1987, sec. 11, for “eighteen inches” (w.e.f. 1-12-1987).

Section 26. CASING OF NEW MACHINERY. 

(1) In all machinery driven by power and installed in any factory after the commencement of this Act, -

(a) every set screw, bolt or key on any revolving shaft, spindle, wheel pinion shall be so sunk, encased or otherwise effectively guarded as to prevent danger;

(b) all spur, worm and other toothed or friction gearing which does not require frequent adjustment while in motion shall be completely encased, unless it is so situated as to be as safe as it would be if it were completely encased.

(2) Whoever sells or lets on hire or, as agent of a seller or hirer, causes or procures to be sold on let or hire, for use in a factory any machinery driven by power which does not comply with the provisions of ¹Sub-section (1) or any rules made under sub-section (3), shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.

²[(3) The State Government may make rules specifying further safeguards to be provided in respect of any other dangerous part of any particular machine or class or description of machines.]

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1. Subs. by Act 25 of 1954, sec. 7, for “sub-section (1)”.

2. Subs. by Act 25 of 1954, sec. 7, for sub section (3).

Section 27. PROHIBITION OF EMPLOYMENT OF WOMEN AND CHILDREN NEAR COTTON-OPENERS. 

No woman or child shall be employed in any part of a factory for pressing cotton in which a cotton-opener is at work :

Provided that if the feed-end of a cotton-opener is in a room separated from the delivery end by a partition extending to the roof or to such height as the Inspector may in any particular case specify in writing, women and children may be employed on the side of the partition where the feed-end is situated.

Section 28. HOISTS AND LIFTS. 

(1) In every factory -

(a) every hoist and lift shall be -

(i) of good mechanical construction, sound material and adequate strength;

(ii) properly maintained, and shall be thoroughly examined by a competent person at least once in every period of six months, and a register shall be kept containing the prescribed particulars of every such examination;

(b) every hoistway and liftway shall be sufficiently protected by an enclosure fitted with gates, and the hoist or lift and every such enclosure shall be so constructed as to prevent any person or thing from being trapped between any part of the hoist or lift and any fixed structure or moving part;

(c) the maximum safe working load shall be plainly marked on every hoist or lift, and no load greater than such load shall be carried thereon;

(d) the cage of every hoist or lift used for carrying persons shall be fitted with a gate on each side from which access is afforded to a landing;

(e) every gate referred to in clause (b) or clause (a) shall be fitted with interlocking or other efficient device to secure that the gate cannot be opened except when the cage is at the landing and that the cage cannot be moved unless the gate is closed.

(2) The following additional requirements shall apply to hoists and lifts used for carrying persons and installed or reconstructed in a factory after the commencement of this Act, namely : (a) where the cage is supported by rope or chain, there shall be at least two ropes or chains separately connected with the cage and balance weight, and each rope or chain with its attachments shall be capable of carrying the whole weight of the cage together with its maximum load;

(b) efficient devices shall be provided and maintained capable of supporting the cage together with its maximum load in the event of breakage of the ropes, chains or attachments;

(c) an efficient automatic device shall be provided and maintained to prevent the cage from over-running.

(3) The Chief Inspector may permit the continued use of a hoist or lift installed in a factory before the commencement of this Act which does not fully comply with the provisions of sub-section (1) upon such conditions for ensuring safety as he may think fit to impose.

(4) The State Government may, if in respect of any class or description of hoist or lift, it is of opinion that it would be unreasonable to enforce any requirement of sub-sections. (1) and (2), by order direct that such requirement shall not apply to such class or description of hoist or lift.

¹[Explanation.—For the purposes of this section, no lifting machine or appliance shall be deemed to be a hoist or lift unless it has a platform or cage, the direction or movement of which is restricted by a guide or guides.]

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1. Ins. by Act 20 of 1987, sec. 12 (w.e.f. 1-12-1987).

Section 29. LIFTING MACHINES, CHAINS, ROPES AND LIFTING TACKLES. 

¹(1) In any factory the following provisions shall be complied with in respect of every lifting machine (other than a hoist and lift) and every chain, rope and lifting tackle for the purpose of raising or lowering persons, goods or materials :- (a) all parts, including the working gear, whether fixed or movable, of every lifting machine and every chain, rope or lifting tackle shall be -

(i) of good construction, sound material and adequate strength and free from defects;

(ii) properly maintained; and

(iii) thoroughly examined by a competent person at least once in every period of twelve months, or at such intervals as the Chief Inspector may specify in writing, and a register shall be kept containing the prescribed particulars of every such examination;

(b) no lifting machine and no chain, rope or lifting tackle shall, except for the purpose of test, be loaded beyond the safe working load which shall be plainly marked thereon together with an identification mark and duly entered in the prescribed register, and where this is not practicable, a table showing the safe working loads of every kind and size of lifting machine or, chain, rope or lifting tackle in use shall be displayed in prominent positions on the premises;

(c) while any person is employed or working on or near the wheel track of a travelling crane in any place where he would be liable to be struck by the crane, effective measures shall be taken to ensure that the crane does not approach within ²[six metres] of that place.

(2) The State Government may make rules in respect of any lifting machine or any chain, rope or lifting tackle used in factories – (a) prescribing further requirements to be complied with in addition to those set out in this section;

(b) providing for exemption from compliance with all or any of the requirements of this section, where in its opinion, such compliance is unnecessary or impracticable.

(3) For the purposes of this section a lifting machine or a chain, rope or lifting tackle shall be deemed to have been thoroughly examined if a visual examination supplemented, if necessary, by other means and by the dismantling of parts of the gear, has been carried out as carefully as the conditions permit in order to arrive at a reliable conclusion as to the safety of the parts examined. Explanation : In this section, -

(a) “lifting machine” means a crane, crab, winch, teagle, pulley block, gin wheel, transporter or runway;

³(b) “lifting tackle” means any chain, sling, rope sling, hook, shackle, swivel, coupling, socket, clamp, tray or similar appliance, whether fixed or movable, used in connection with the raising or lowering of persons, or loads by use of lifting machines.

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1. Subs. by Act 25 of 1954, sec. 8, for section 29 (w.e.f. 7-5-1954).

2. Subs. by Act 20 of 1987, sec. 13, for “twenty feet” (w.e.f. 1-12-1987).

3. Subs. by Act 20 of 1987, sec. 13, for clause (b) (w.e.f. 1-12-1987)

Section 30. REVOLVING MACHINERY. 

¹(1) In every factory in which the process of grinding is carried on there shall be permanently affixed to or placed near each machine in use a notice indicating the maximum safe working peripheral speed of every grindstone or abrasive wheel, the speed of the shaft or spindle upon which the wheel is mounted, and the diameter of the pulley upon such shaft or spindle necessary to secure such safe working peripheral speed.

(2) The speeds indicated in notices under sub-section (1) shall not be exceeded.

(3) Effective measures shall be taken in every factory to ensure that the safe working peripheral speed of every revolving vessel, cage, basket, flywheel, pulley, disc or similar appliance driven by power is not exceeded.

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1. Subs. by Act 20 of 1987 sec. 14, for “In every room in a factory” (w.e.f. 1-12-1987).

Section 31. PRESSURE PLANT. 

¹(1) If in any factory, any plant or machinery or any part thereof is operated at a pressure above atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such plant or machinery or part is not exceeded.

(2) The State Government may make rules providing for the examination and testing of any plant or machinery such as is referred to in sub-section (1) and prescribing such other safety measures in relation thereto as may in its opinion be necessary in any factory or class or description of factories.

²(3) The State Government may, by rules, exempt, subject to such conditions as may be specified therein, any part of any plant or machinery referred to in sub-section (1) from the provisions of this section.

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1. Subs. by Act 20 of 1987 sec. 15, for sub-section (1) (w.e.f. 1-12-1987).

2. Ins. by Act 94 of 1976, sec. 13 (w.e.f. 26-10-1976).

Section 32. FLOORS, STAIRS AND MEANS OF ACCESS.

In every factory – (a) all floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained ¹and shall be kept free from obstructions and substances likely to cause persons to slip, and where it is necessary to ensure safety, steps, stairs, passages and gangways shall be provided with substantial handrails;

(b) there shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person is at any time required to work.

²(c) when any person has to work at a height from where he is likely to fall, provision shall be made, so far as is reasonably practicable, by fencing or otherwise, to ensure the safety of the person so working.

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1. Ins. by Act 94 of 1976, sec. 14, (w.e.f. 26-10-1976).

2. Subs. by Act 20 of 1987, sec. 16, for clause (c) (w.e.f. 1-12-1987).

Section 33. PITS, SUMPS, OPENINGS IN FLOORS, ETC. 

(1) In every factory fixed vessel, sump, tank, pit or opening in the ground or in a floor which, by reasons of its depth, situation, construction or contents, is or may be a source of danger, shall be either securely covered or securely fenced.

(2) The State Government may, by order in writing, exempt, subject to such conditions as may be prescribed, any factory or class or description of factories in respect of any vessel, sump, tank, pit or opening from compliance with the provisions of this section.

Section 34. EXCESSIVE WEIGHTS. 

(1) No person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury.

(2) The State Government may make rules prescribing the maximum weights which may be lifted, carried or moved by adult men, adult women, adolescents and children employed in factories or in any class or description of factories or in carrying on any specified process

Section 35. PROTECTION OF EYES. 

In respect of any such manufacturing process carried on in any factory as may be prescribed, being a process which involves -

(a) risk of injury to the eyes from particles or fragments thrown off in the course of the process, or

(b) risk to the eyes by reason of exposure to excessive light, the State Government may by rules require that effective screens or suitable goggles shall be provided for the protection of persons employed on, or in the immediate vicinity of, the process.

Section 36. PRECAUTIONS AGAINST DANGEROUS FUMES, GASES, ETC. 

¹ (1) No person shall be required or allowed to enter any chamber, tank, vat, pit, pipe, flue or other confined space in any factory in which any gas, fume, vapour or dust is likely to be present to such an extent as to involve risk to persons being overcome thereby, unless it is provided with a manhole of adequate size or other effective means of egress.

(2) No person shall be required or allowed to enter any confined space as is referred to in sub-section (1), until all practicable measures have been taken to remove any gas, fume, vapour or dust, which may be present so as to bring its level within the permissible limits and to prevent any ingress of such gas, fume, vapour or dust and unless -

(a) a certificate in writing has been given by a competent person, based on a test carried out by himself that the space is reasonably free from dangerous gas, fume, vapour or dust; or

(b) such person is wearing suitable breathing apparatus and a belt securely attached to a rope the free end of which is held by a person outside the confined space.

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1. Subs. by Act 20 of 1987, sec. 17, for section 36 (w.e.f. 1-12-1987).

Section 36 A. PRECAUTIONS REGARDING THE USE OF PORTABLE ELECTRIC LIGHT. 

¹[36A. Precautions regarding the use of portable electric light.—In any factory—

(a) no portable electric light or any other electric appliance of voltage exceeding twenty-four volts shall be permitted for use inside any chamber, tank, vat, pit, pipe, flue or other confined space ²[unless adequate safety devices are provided]; and

(b) if any inflammable gas, fume or dust is likely to be present in such chamber, tank, vat, pit, pipe, flue or other confined space, no lamp or light other than that of flame-proof construction shall be permitted to be used therein.]

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1. Ins. by Act 94 of 1976, sec. 16 (w.e.f. 26-10-1976).

2. Ins. by Act 20 of 1987, sec. 18 (w.e.f. 1-12-1987).

Section 37. EXPLOSIVE OR INFLAMMABLE DUST, GAS, ETC. 

(1) Where in any factory any manufacturing process produces dust, gas, fume or vapour of such character and to such extent as to be likely to explode to ignition, all practicable measures shall be taken to prevent any such explosion by -

(a) effective enclosure of the plant or machinery used in the process;

(b) removal or prevention of the accumulation of such dust, gas, fume or vapour;

(c) exclusion or effective enclosure of all possible sources of ignition.

(2) Where in any factory the plant or machinery used in a process such as is referred to in sub-section (1) is not so constructed as to withstand the probable pressure which such an explosion as aforesaid would produce, all practicable measures shall be taken to restrict the spread and effects of the explosion by the provisions in the plant or machinery of chokes, baffles, vents or other effective appliances.

(3) Where any part of the plant or machinery in a factory contains any explosive or inflammable gas or vapour under pressure greater than atmospheric pressure, that part shall not be opened except in accordance with the following provisions, namely :-

(a) before the fastening of any joint of any pipe connected with the part of the fastening of the cover of any opening into the part is loosened, any flow of the gas or vapour into the part of any such pipe shall be effectively stopped by a stop valve or other means;

(b) before any such fastening as aforesaid is removed, all practicable measures shall be taken to reduce the pressure of the gas or vapour in the part or pipe to atmospheric pressure;

(c) where any such fastening as aforesaid has been loosened or removed

effective measures shall be taken to prevent any explosive or inflammable gas or vapour from entering the part of pipe until the fastening has been secured, or, as the case may be, securely replaced : Provided that the provisions of this sub-section shall not apply in the case of plant or machinery installed in the open air.

(4) No plant, tank or vessel which contains or has contained any explosive or inflammable substance shall be subjected in any factory to any welding, brazing, soldering or cutting operation which involves the application of heat unless adequate measures have first been taken to remove such substance and any fumes arising therefrom or to render such substance and fumes non-explosive or non-inflammable, and no such substance shall be allowed to enter such plant, tank or vessel after any such operation until the metal has cooled sufficiently to prevent any risk of igniting the substance.

(5) The State Government may by rules exempt, subject to such conditions as may be prescribed, any factory or class or description of factories from compliance with all or any of the provisions of this section.

Section 38. PRECAUTIONS IN CASE OF FIRE. 

¹38. PRECAUTIONS IN CASE OF FIRE. (1) In every factory, all practicable measures shall be taken to prevent outbreak of fire and its spread, both internally and externally, and to provide and maintain – (a) safe means of escape for all persons in the event of a fire, and (b) the necessary equipment and facilities for extinguishing fire.

(2) Effective measures shall be taken to ensure that in every factory all the workers are familiar with the means of escape in case of fire and have been adequately trained in the routine to be followed in such cases.

(3) The State Government may make rules, in respect of any factory or class or description of factories, requiring the measures to be adopted to give effect to the provisions of sub-sections (1) and (2).

(4) Notwithstanding anything contained in clause (a) of sub-section (1) or sub-section (2), if the Chief Inspector, having regard to the nature of the work carried on in any factory, the construction of such factory, special risk to life or safety, or any other circumstances, is of the opinion that the measures provided in the factory, whether as prescribed or not, for the purposes of clause (a) of sub-section (1) or sub-section (2), are inadequate, he may, by, order in writing, require that such additional measures as he may consider reasonable and necessary, be provided in the factory before such date as is specified in the order

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1.   Subs. by Act 20 of 1987, sec. 19, for section 38 (w.e.f. 1-12-1987).

Section 39. POWER TO REQUIRE SPECIFICATIONS OF DEFECTIVE PARTS OR TESTS OF STABILITY. 

If it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life or safety, he may serve on ¹the occupier or manager or both of the factory an order in writing requiring him before a specified date -

(a) to furnish such drawings, specifications and other particulars as may be necessary to determine whether such building, ways, machinery or plant can be used with safety, or

(b) to carry out such test in such manner as may be specified in the order, and to inform the Inspector of the results thereof.

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1.   Subs. by Act 94 of 1976, sec. 18, for “the manager” (w.e.f. 26-10-1976).

Section 40. SAFETY OF BUILDINGS AND MACHINERY. 

(1) If it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it is dangerous to human life or safety, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be adopted, and requiring them to be carried out before a specified date.

(2) If it appears to the Inspector that the use of any building or part of a building or any part of the ways, machinery or plant in a factory involves imminent danger to human life or safety, he may serve on ¹[the occupier or manager or both] of the factory an order in writing prohibiting its use until it has been properly repaired or altered.

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1. Subs. by Act 94 of 1976, sec. 18, for “the manager” (w.e.f. 26-10-1976).

Section 40 A. MAINTENANCE OF BUILDINGS. 

¹[40A. Maintenance of buildings.—If it appears to the Inspector that any building or part of a building in a factory is in such a state of disrepair as is likely to lead to conditions detrimental to the health and welfare of the workers, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be taken and requiring the same to be carried out before such date as is specified in the order.

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1.   Ins. by Act 94 of 1976, sec. 19 (w.e.f. 26-10-1976).

Section 40 B. SAFETY OFFICERS. 

¹[40B. Safety Officers.—(1) In every factory, -

(i) wherein one thousand or more workers are ordinarily employed, or

(ii) wherein, in the opinion of the State Government, any manufacturing process or operation is carried on, which process or operation involves any risk of bodily injury, poisoning or disease, or any other hazard to health, to the persons employed in the factory, the occupier shall, if so required by the State Government by notification in the Official Gazette, employ such number of Safety Officers as may be specified in that notification.

(2) The duties, qualifications and conditions of service of Safety Officers shall be such as may be prescribed by the State Government.

———-

1. Ins. by Act 94 of 1976, sec. 19 (w.e.f. 26-10-1976).

Section 41 POWER TO MAKE RULE TO SUPPLEMENT THIS CHAPTER. 

The State Government may make rules requiring the provision in any factory or in any class or description of factories of such further 1[devices and measures] for securing the safety of persons employed therein as it may deem necessary.

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1. Subs. by Act 94 of 1976, sec. 20, for “devices” (w.e.f. 26-10-1976).

Section 41 A. CONSTITUTION OF SITE APPRAISAL COMMITTEES. 

*41A. Constitution of Site Appraisal Committees.—(1) The State Government may, for purposes of advising it to consider applications for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of any such factory, appoint a Site Appraisal Committee consisting of -

(a) the Chief Inspector of the State who shall be its Chairman;

(b) a representative of the Central Board for the Prevention and Control of Water Pollution appointed by the Central Government under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(c) a representative of the Central Board for the Prevention and Control of Air Pollution referred to in section 3 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);

(d) a representative of the State Board appointed under section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(e) a representative of the State Board for the Prevention and Control of Air Pollution referred to in section 5 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);

(f) a representative of the Department of Environment in the State;

(g) a representative of the Meteorological Department of the Government of India;

(h) an expert in the field of occupational health; and

(i) a representative of the Town Planning Department of the State Government, and not more than five other members who may be co-opted by the State Government who shall be – (i) a scientist having specialised knowledge of the hazardous process which will be involved in the factory,

(ii) a representative of the local authority within whose jurisdiction the factory is to be established, and (iii) not more than three other persons as deemed fit by the State Government.

(2) The Site Appraisal Committee shall examine an application for the establishment of a factory involving hazardous process and make its recommendation to the State Government within a period of ninety days of the receipt of such applications in the prescribed form.

(3) Where any process relates to a factory owned or controlled by the Central Government or to a corporation or a company owned or controlled by the Central Government, the State Government shall co-opt in the Site Appraisal Committee a representative nominated by the Central Government as a member of that Committee.

(4) The Site Appraisal Committee shall have power to call for any information from the person making an application for the establishment or expansion of a factory involving a hazardous process.

(5) Where the State Government has granted approval to an application for the establishment or expansion of a factory involving hazardous process, it shall not be necessary for an applicant to obtain a further approval from the Central Board or the State Board established under the Water (Prevention and Control of Pollution) Act 1974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981).

—————

*Sections 41A ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 41 B. COMPULSORY DISCLOSURE OF INFORMATION BY THE OCCUPIER. 

*41B. Compulsory disclosure of information by the occupier. (1) The occupier of every factory involving a hazardous process shall disclose in the manner prescribed all information regarding dangers, including health hazards and the measures to overcome such hazards arising from the exposure to or handling of the materials or substances in the manufacture, transportation, storage and other processes, to the workers employed in the factory, the Chief Inspector, the local authority within whose jurisdiction the factory is situate and the general public in the vicinity.

(2) The occupier shall, at the time of registering the factory involving a hazardous process, lay down a detailed policy with respect to the health and safety of the workers employed therein and intimate such policy to the Chief Inspector and the local authority and, thereafter, at such intervals as may be prescribed, inform the Chief Inspector and the local authority of any change made in the said policy

(3) The information furnished under sub-section (1) shall include accurate information as to the quantity, specifications and other characteristics of wastes and the manner of their disposal.

(4) Every occupier shall, with the approval of the Chief Inspector, draw up an on-site emergency plan and detailed disaster control measures for his factory and make known to the workers employed therein and to the general public living in the vicinity of the factory the safety measures required to be taken in the event of an accident taking place.

(5) Every occupier of a factory shall, – (a) if such factory engaged in a hazardous process on the commencement of the Factories (Amendment) Act, 1987 (2 of 1987), within a period of thirty days of such commencement; and (b) if such factory proposes to engage in a hazardous process at any time after such commencement, within a period of thirty days before the commencement of such process, inform the Chief Inspector of the nature and details of the process in such form and in such manner as may be prescribed.

(6) Where any occupier of a factory contravenes the provisions of sub-section (5), the licence issued under section 6 to such factory shall, notwithstanding any penalty to which the occupier of factory shall be subjected to under the provisions of this Act, be liable for cancellation.

(7) The occupier of a factory involving a hazardous process shall, with the previous approval of the Chief Inspector, lay down measures for the handling, usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside the factory premises and publicise them in the manner prescribed among the workers and the general public living in the vicinity.

—————-

*Sections 41B ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 41 C. SPECIFIC RESPONSIBILITY OF THE OCCUPIER IN RELATION TO HAZARDOUS PROCESSES. 

*41C. Specific responsibility of the occupier in relation to hazardous processes. Every occupier of a factory involving any hazardous process shall -

(a) maintain accurate and up-to-date health records or, as the case may be, medical records, of the workers in the factory who are exposed to any chemical, toxic or any other harmful substances which are manufactured, stored, handled or transported and such records shall be accessible to the workers subject to such conditions as may be prescribed;

(b) appoint persons who possess qualifications and experience in handling hazardous substances and are competent to supervise such handling within the factory and to provide at the working place all the necessary facilities for protecting the workers in the manner prescribed :

Provided that where any question arises as to the qualifications and experience of a person so appointed, the decision of the Chief Inspector shall be final;

(c) provide for medical examination of every worker -

(i) before such worker is assigned to a job involving the handling of, or working with, a hazardous substance, and

(ii) while continuing in such job, and after he has ceased to work in such job, at intervals not exceeding twelve months, in such manner as may be prescribed.

————–

* Sections 41C ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 41 D. POWER OF CENTRAL GOVERNMENT TO APPOINT INQUIRY COMMITTEE. 

*41D. Power of Central Government to appoint Inquiry Committee. (1) The Central Government may, in the event of the occurrence of an extraordinary situation involving a factory engaged in a hazardous process, appoint an Inquiry Committee to inquire into the standards of health and safety observed in the factory with a view to finding out the causes of any failure or neglect in the adoption of any measures or standards prescribed for the health and safety of the workers employed in the factory or the general public affected, or likely to be affected, due to such failure or neglect and for the prevention and recurrence of such extraordinary situations in future in such factory or elsewhere.

(2) The Committee appointed under sub-section (1) shall consist of a chairman and two other members and the terms of reference of the Committee and the tenure of office of its members shall be such as may be determined by the Central Government according to the requirements of the situation.

(3) The recommendations of the Committee shall be advisory in nature.

—————

* Sections 41D ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 41 E. EMERGENCY STANDARDS. 

*41E. Emergency standards. (1) Where the Central Government is satisfied that no standards of safety have been prescribed in respect of a hazardous process or class of hazardous processes, or where the standards so prescribed are inadequate, it may direct the Director-General of Factory Advice Service and Labour Institutes or any institution specialised in matters relating to standards of safety in hazardous processes, to lay down emergency standards for enforcement of suitable standards in respect of such hazardous processes.

(2) The emergency standards laid down under sub-section (1) shall, until they are incorporated in the rules made under this Act, be enforceable and have the same effect as if they had been incorporated in the rules made under this Act.

—————-

*  Sections 41E ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 41 F. PERMISSIBLE LIMITS OF EXPOSURE OF CHEMICAL AND TOXIC SUBSTANCES. 

*41F. Permissible limits of exposure of chemical and toxic substances.—(1) The maximum permissible threshold limits of exposure of chemical and toxic substances in manufacturing processes (whether hazardous or otherwise) in any factory shall be of the value indicated in the Second Schedule.

(2) The Central Government may, at any time, for the purpose of giving effect to any scientific proof obtained from specialised institutions or experts in the field,, by notification in the Official Gazette, make suitable changes in the said Schedule.

————-

* Sections 41F ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-6-1988).

Section 41 G. WORKERS’ PARTICIPATION IN SAFETY MANAGEMENT.

*41G. Workers’ participation in safety management.—(1) The occupier shall, in every factory where a hazardous process takes place, or where hazardous substances are used or handled, set up a Safety Committee consisting of equal number of representatives of workers and management to promote cooperation between the workers and the management in maintaining proper safety and health at work and to review periodically the measures taken in that behalf :

Provided that the State Government may, by order in writing and for reasons to be recorded, exempt the occupier of any factory or class of factories from setting up such committee.

(2) The composition of the Safety Committee, the tenure of office of its members and their rights and duties shall be such as may be prescribed.

——————-

* Sections 41G ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 41 H. RIGHT OF WORKERS TO WARN ABOUT IMMINENT DANGER. 

*41H. Right of workers to warn about imminent danger. (1) Where the workers employed in any factory engaged in a hazardous process have reasonable apprehension that there is a likelihood of imminent danger to their lives or health due to any accident, they may bring the same to the notice of the occupier, agent, manager or any other person who is incharge of the factory or the process concerned directly or through their representatives in the Safety Committee and simultaneously bring the same to the notice of the Inspector.

(2) It shall be the duty of such occupier, agent, manager or the person incharge of the factory or process to take immediate remedial action if he is satisfied about the existence of such imminent danger and send a report forthwith of the action taken to the nearest Inspector.

(3) If the occupier, agent, manager or the person incharge referred to in sub-section (2) is not satisfied about the existence of any imminent danger as apprehended by the workers, he shall, nevertheless, refer the matter forthwith to the nearest Inspector whose decision on the question of the existence of such imminent danger shall be final.

——————

* Sections 41E ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).

Section 42. WASHING FACILITIES. 

(1) In every factory -

(a) adequate and suitable facilities for washing shall be provided and maintained for the use of the workers therein;

(b) separate and adequately screened facilities shall be provided for the use of male and female workers;

(c) such facilities shall be conveniently accessible and shall be kept clean.

(2) The State Government may, in respect of any factory or class or description of factories or of any manufacturing process, prescribe standards of adequate and suitable facilities for washing.

Section 43. FACILITIES FOR STORING AND DRYING CLOTHING. 

The State Government may, in respect of any factory or class or description of factories, make rules requiring the provision therein of suitable places for keeping clothing not worn during working hours and for the drying of wet clothing.

Section 44. FACILITIES FOR SITTING. 

(1) In every factory suitable arrangements for sitting shall be provided and maintained for all workers obliged to work in a standing position, in order that they may take advantage of any opportunities for rest which may occur in the course of their work.

(2) If, in the opinion of the Chief Inspector, the workers in any factory engaged in a particular manufacturing process or working in a particular room are able to do their work efficiently in a sitting position, he may, by order in writing, require the occupier of the factory to provide before a specified date such seating arrangements as may be practicable for all workers so engaged or working.

(3) The State Government may, by notification in the Official Gazette, declare that the provisions of sub-section (1) shall not apply to any specified factory or class or description of factories or to any specified manufacturing process.

Section 45. FIRST AID APPLIANCES. 

(1) There shall in every factory be provided and maintained so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the prescribed contents, and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed ¹[at any one time] in the factory.

²[(2) Nothing except the prescribed contents shall be kept in a first-aid box or cupboard.

(3) Each first-aid box or cupboard shall be kept in the charge of a separate responsible person ³[who holds a certificate in first-aid treatment recognised by the State Government] and who shall always be readily available during the working hours of the factory.]

⁴[(4)] In every factory wherein more than five hundred workers are 5[ordinarily employed] there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed 6[and those facilities shall always be made readily available during the working hours of the factory.

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1. Ins. by Act 25 of 1954, sec. 9 (w.e.f. 7-5-1954).

2. Subs. by Act 25 of 1954 sec. 9, for sub-section (2) (w.e.f. 7-5-1954).

3. Subs. by Act 94 of 1976, sec. 21, for “who is trained in first-aid treatment” (w.e.f. 26-10-1976).

4. Sub-section (3) re-numbered as sub-section (4) by Act 25 of 1954, sec. 9 (w.e.f. 7-5-1954).

5. Subs. by Act 94 of 1976, sec. 21, for “employed” (w.e.f. 26-10-1976).

6. Ins. by Act 94 of 1976, sec. 21 (w.e.f. 26-10-1976).

Section 46. CANTEENS. 

(1) The State Government may make rules requiring that in any specified factory wherein more than two hundred and, fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for -

(a) the date by which such canteen shall be provided;

(b) the standards in respect of construction, accommodation, furniture and other equipment of the canteen;

(c) the foodstuffs to be served therein and the charges which may be made therefor;

(d) the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen;

¹(dd) the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuffs and which shall be

borne by the employer;

(e) the delegation to the Chief Inspector, subject to such conditions as may be prescribed, of the power to make rules under clause (c).

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1. Ins. by Act 94 of 1976, sec. 22 (w.e.f. 26-10-1976).

Section 47. SHELTERS, REST ROOMS AND LUNCH ROOMS. 

(1) In every factory wherein more than one hundred and fifty workers are ordinarily employed, adequate and suitable shelters or rest rooms and a suitable lunch room, with provision for drinking water, where workers can eat meals brought by them, shall be provided and maintained for the use of the workers : Provided that any canteen maintained in accordance with the provisions of section 46 shall be regarded as part of the requirements of this sub-section : Provided further that where a lunch room exists no workers shall eat any food in the work room.

(2) The shelters or rest rooms or lunch rooms to be provided under sub-section (1) shall be sufficiently lighted and ventilated and shall be maintained in a cool and clean condition.

(3) The State Government may – (a) prescribe the standards in respect of construction, accommodation, furniture and other equipment of shelters, rest rooms and lunch rooms to be provided under this section;

(b) by notification in the Official Gazette, exempt any factory or class or description of factories from the requirements of this section.

Section 48. CRECHES. 

(1) In every factory wherein more than ¹thirty women workers are ordinarily employed there shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such women.

(2) Such rooms shall provide adequate accommodation, shall be adequately lighted and ventilated, shall be maintained in a clean and sanitary condition and shall be under the charge of women trained in the care of children and infants.

(3) The State Government may make rules – (a) prescribing the location and the standards in respect of construction, accommodation, furniture and other equipment of rooms to be provided, under this section;

(b) requiring the provision in factories to which this section applies of additional facilities for the care of children belonging to women workers, including suitable provision of facilities for washing and changing their clothing;

(c) requiring the provision in any factory of free milk or refreshment or both for such children;

(d) requiring that facilities shall be given in any factory for the mothers of such children to feed them at the necessary intervals.

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1.   Subs. by Act  94 of 1976, sec. 23, for “fifty women workers” (w.e.f. 26-10-1976).

Section 49. WELFARE OFFICERS. 

(1) In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of Welfare officers as may be prescribed.

(2) The State Government may prescribe the duties, qualifications and Conditions of service of officers employed under sub-section (1).

Section 50. POWER TO MAKE RULES TO SUPPLEMENT THIS CHAPTER. 

The State Government may make rules -

(a) exempting, subject to compliance with such alternative arrangements for the welfare of workers as may be prescribed, any factory or class or description of factories from compliance with any of the provisions of this Chapter;

(b) requiring in any factory or class or description of factories that representatives of the workers employed in the factory shall be associated with the management of the welfare arrangements of the workers.

 Section 51. WEEKLY HOURS. 

No adult workers shall be required or allowed to work in a factory for more than forty-eight hours in any week.

Section 52. WEEKLY HOLIDAYS.

(1) No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless -

(a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and

(b) the manager of the factory has, before the said day or the substituted day under clause (a), whichever is earlier, -

(i) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day which is to be substituted, and

(ii) displayed a notice to that effect in the factory : Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.

(2) Notices given under sub-section (1) may be cancelled by a notice delivered at the office of the Inspector and a notice displayed in the factory not later than the day before the said day or the holiday to be cancelled, whichever is earlier.

(3) Where, in accordance with the provisions of sub-section (1), any worker works on the said day and has had a holiday on one of the three days immediately before it, that said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week.

Section 53. COMPENSATORY HOLIDAYS. 

(1) Where, as a result of the passing of an order or the making of a rule under the provisions of this Act exempting a factory or the workers therein from the provisions of section 52, a worker is deprived of any of the weekly holidays for which provision is made in sub-section (1) of that section, he shall be allowed, within the month in which the holidays were due to him or within the two months immediately following that month, compensatory holidays of equal number to the holidays so lost.

(2) The State Government may prescribe the manner in which the holidays for which provision is made in sub-section (1) shall be allowed.

Section 54. DAILY HOURS. 

Subject to the provisions of section 51, not adult worker shall be required or allowed to work in a factory for more than nine hours in any day:

¹[Provided that, subject to the previous approval of the Chief Inspector, the daily maximum specified in this section may be exceeded in order to facilitate the change of shifts.]

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1. Added by Act 25 of 1954, sec. 10 (w.e.f. 7-5-1954).

Section 55. INTERVALS FOR REST. 

¹ (1)² The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.

³ (2) The State Government or, subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt any factory from the provisions of sub-section (1) so however that the total number of hours worked by a worker without an interval does not exceed six.

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1. Section 55 re-numbered as sub-section (1) of that section by Act 25 of 1954, sec. 11 (w.e.f. 7-5-1954).

2. Subs. by Act 40 of 1949, sec. 3 and Sch. II, for “The period” (w.e.f. 1-5-1949).

3. Added by Act 25 of 1954, sec. 11 (w.e.f. 7-5-1954).

Section 56. SPREADOVER. 

The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55, they shall not spreadover more than ten and a half hours in any day : Provided that the Chief Inspector may, for reasons to be specified in in writing, increase the spreadover up to twelve hours.

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1. Subs. by Act 94 of 1976, sec. 24, for “spread over to twelve hours” (w.e.f. 26-10-1976).

Section 57. NIGHT SHIFTS. 

Where a worker in a factory works on a shift which extends beyond midnight, -

(a) for the purposes of sections 52 and 53, a holiday for a whole day shall mean in his case a period of twenty-four consecutive hours beginning when his shift ends;

(b) the following day for him shall be deemed to be the period of twenty-four hours beginning when such shift ends, and the hours he has worked after midnight shall be counted in the previous day.

Section 58. PROHIBITION OF OVERLAPPING SHIFTS. 

(1) Work shall not be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers is engaged, in work of the same kind at the same time.

¹(2) The State Government or subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt on such conditions as may be deemed expedient, any factory or class or description of factories or any department or section of a factory or any category or description of workers therein from the provisions of sub-section (1).

——————————

1.   Subs. by Act 25 of 1954, sec. 12, for sub-section (2) (w.e.f. 7-5-1954).

Section 59. EXTRA WAGES FOR OVERTIME. 

(1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.

¹(2) For the purposes of sub-section (1), “ordinary rate of wages” means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work.

(3) Where any workers in a factory are paid on a piece-rate basis, the time rate shall be deemed to be equivalent to the daily average of their full-time earnings for the days on which they actually worked on the same or identical job during the month immediately preceding the calendar month during which the overtime work was done, and such time rates shall be deemed to be the ordinary rates of wages of those workers :

Provided that in the case of a worker who has not worked in the immediately preceding calendar month on the same or identical job, the time rate shall be deemed to be equivalent to the daily average of the earnings of the worker for the days on which he actually worked in the week in which the overtime work was done.

Explanation : For the purposes of this sub-section, in computing the earnings for the days on which the worker actually worked such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, shall be included but any bonus or wages for overtime work payable in relation to the period with reference to which the earnings are being computed shall be excluded.

²(4) The cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed as often as may be prescribed on the basis of the maximum quantity of foodgrains and other articles admissible to a standard family.

Explanation 1 : Standard family means a family consisting of the worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.

Explanation 2 : Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.

(5) The State Government may make rules prescribing -

(a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed; and

(b) the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.

——————————-

1. Subs. by Act 94 of 1976, sec. 25, for sub-sections (2) and (3) (w.e.f. 26-10-1976).

2. Subs. by Act 25 of 1954, sec. 13, for sub-section (4) (w.e.f. 7-5-1954).

Section 60. RESTRICTION ON DOUBLE EMPLOYMENT. 

No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory, save in such circumstances as may be prescribed.

Section 61. NOTICE OF PERIODS OF WORK FOR ADULTS. 

(1) There shall be displayed and correctly maintained in every factory in accordance with the provisions of sub-section (2) of section 108, a notice of periods of work for adults, showing clearly for every day the periods during which adult workers may be required to work.

(2) The periods shown in the notice required by sub-section (1) shall be fixed beforehand in accordance with the following provisions of this section, and shall be such that workers working for those periods would not be working in contravention of any of the provisions of sections 51, 52, 53, 54, ¹55, 56 and 58.

(3) Where all the adult workers in a factory are required to work during the same periods, the manager of the factory shall fix those periods for such workers generally.

(4) Where all the adult workers in a factory are not required to work during the same periods, the manager of the factory shall classify them into groups according to the nature of their work indicating the number of workers in each group.

(5) For each group which is not required to work on a system of shifts, the manager of the factory shall fix the periods during which the group may be required to work.

(6) Where any group is required to work on a system of shifts and the relays are not to be subject to predetermined periodical changes of shifts, the manager of the factory shall fix the periods during which each relay of the group may be required to work.

(7) Where any group is to work on a system of shifts and the relays are to be subject to predetermined periodical changes of shifts, the manager of the factory shall draw up a scheme of shifts whereunder the periods during which any relay of the group may be required to work and the relay which will be working at any time of the day shall be known for any day.

(8) The State Government may prescribe forms of the notice required by sub-section (1) and the manner in which it shall be maintained.

(9) In the case of a factory beginning work after the commencement of this Act, a copy of the notice referred to in sub-section (1) shall be sent in duplicate to the Inspector before the day on which work is begun in the factory.

(10) Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub-section (1) shall be notified to the Inspector in duplicate before the change is made, and except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change.

———————————

1.   Subs. by Act 25 of 1954, sec. 14, for “55 and 56”.

Section 62. REGISTER OF ADULT WORKERS. 

(1) The manager of every factory shall maintain a register of adult workers, to be available to the Inspector at all times during working hours, or when any work is being carried on in the factory, showing – (a) the name of each adult worker in the factory;

(b) the nature of his work;

(c) the group, if any, in which he is included;

(d) where his group works on shifts, the relay to which he is allotted; and

(e) such other particulars as may be prescribed :

Provided that if the Inspector is of opinion that any muster roll or register maintained as a part of the routine of a factory gives in respect of any or all the workers in the factory the particulars required under this section, he may, by order in writing, direct that such muster roll or register shall to the corresponding extent be maintained in place of, and be treated as, the register of adult workers in that factory.

¹[(1A) No adult worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of adult workers.]

(2) The State Government may prescribe the form of the register of adult workers, the manner in which it shall be maintained and the period for which it shall be preserved.

————————————-

1. Ins. by Act 94 of 1976, sec. 26 (w.e.f. 26-10-1976).

Section 63. HOURS OF WORK TO CORRESPOND WITH NOTICE UNDER SECTION 61 AND REGISTER UNDERSECTION 62. 

No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory.

Section 64. POWER TO MAKE EXEMPTING RULES. 

(1) The State Government may make rules defining the persons who hold positions of supervisions or management or are employed in a confidential position in a factory ¹or empowering the Chief inspector to declare any person, other than a person defined by such rules, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector, such person holds such position or is so employed and the provisions of this chapter, other than the provisions of clause (b) of sub-section (1) of section 66 and of the proviso to that sub-section, shall not apply to any person so defined or declared :

¹Provided that any person so defined or declared shall, where the ordinary rate of wages of such person ²does not exceed the wage limit specified in sub-section (6) of section 1 of the Payment of Wages Act, 1936 (4 of 1936), as amended from time to time, be entitled to extra wages in respect of over time work under section 59.

(2) The State Government may make rules in respect of adult workers in factories providing for the exemption, to such extent and subject to such conditions as may be prescribed. -

(a) of workers engaged on urgent repairs, from the provisions of sections 51, 52, 54, 55 and 56;

(b) of workers engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of the factory, from the provisions of sections 51, 54, 55 and 56;

(c) of workers engaged in work which is necessarily so intermittent that the intervals during which they do not work while on duty ordinarily amount to more than the intervals for rest required by or under section 55, from the provisions of sections 51, 54, 55 and 56;

(d) of workers engaged in any work which for technical reasons must be carried on continuously ³[***] from the provisions of sections 51, 52, 54, 55 and 56;

(e) of workers engaged in making or supplying articles of prime necessity which must be made or supplied every day, from the provisions of ⁴[section 51 and section 52];

(f) of workers engaged in a manufacturing process which cannot be carried on except during fixed seasons, from the provisions of ²[section 51, section 52 and section 54];

(g) of workers engaged in a manufacturing process which cannot be carried on except at times dependent on the irregular action of natural forces, from the provisions of sections 52 and 55;

(h) of workers engaged in engine-rooms or boiler-houses or in attending to power-plant or transmission machinery, from the provisions of ⁴[section 51 and section 52];

⁵[(i) of workers engaged in the printing of newspapers, who are held up on account of the breakdown of machinery, from the provisions of sections 51, 54 and 56.

Explanation.—In this clause the expression “newspapers” has the meaning assigned to it in the Press and Registration of Books Act, 1867 (25 of 1867);

(j) of workers engaged in the loading or unloading of railway wagons, 6[or lorries or trucks] from the provisions of sections 51, 52, 54, 55 and 56];

⁶[(k) of workers engaged in any work, which is notified by the State Government in the Official Gazette as a work of national importance, from the provisions of section 51, section 52, section 54, section 55 and section 56.]

(3) Rules made under sub-section (2) providing for any exemption may also provide for any consequential exemption from the provisions of section 61 which the State Government may deem to be expedient, subject to such conditions as it may prescribe.

⁷[(4) In making rules under this section, the State Government shall not exceed, except in respect of exemption under clause (a) of sub-section (2) the following limits of work inclusive of overtime:—

(i) the total number of hours of work in any day shall not exceed ten;

(ii) the spreadover, inclusive of intervals for rest, shall not exceed twelve hours in any one day :

Provided that the State Government may, in respect of any or all of the categories of workers referred to in clause (d) of sub-section (2), make rules prescribing the circumstances in which, and the conditions subject to which, the restrictions imposed by clause (i) and clause (ii) shall not apply in order to enable a shift worker to work the whole or part of a subsequent shift in the absence of a worker who has failed to report for duty;

⁸[(iii) the total number of hours of work in a week, including overtime, shall not exceed sixty;]

⁹[(iv)] the total number of hours of overtime shall not exceed fifty for any one quarter.

Explanation.—“Quarter” means a period of three consecutive months beginning on the 1st of January, the 1st of April, the 1st of July or the 1st of October.]

(5) Rules made under this section shall remain in force for not more than ¹⁰[five years].

————————————-

1. Ins. by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).

2. Subs. by Act 20 of 1987, 21, for “does not exceed rupees seven hundred and fifty per month” (w.e.f. 1-12-1987).

3. Omitted by Act 25 of 1954, sec. 15 for the words “throughout the day”.

4. Subs. by Act 94 of 1976, sec. 27 for “section 52” (w.e.f. 26-10-1976).

5. Added by Act 25 of 1954, sec. 15 (w.e.f. 7-5-1954).

6. Ins. by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).

7. Subs. by Act 25 of 1954, sec. 15, for sub-section (4) (w.e.f. 7-5-1954).

8. Ins. by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).

9. Clause (iii) re-numbered as clause (iv) by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).

10. Subs. by Act 94 of 1976, sec. 27, for “three years” (w.e.f. 26-10-1976).

Section 65. POWER TO MAKE EXEMPTING ORDERS. 

(1) Where the State Government is satisfied that, owing to the nature of the work carried on or to other circumstances, it is unreasonable to require that the periods of work of any adult workers in any factory or class or description of factories should be fixed beforehand, it may, by written order, relax or modify the provisions of section 61 in respect of such workers therein, to such extent and in such manner as it may think fit, and subject to such conditions as it may deem expedient to ensure control over periods of work.

(2) The State Government or, subject to the control of the State Government, the Chief Inspector, may by written order exempt, on such conditions as it or he may deem expedient, any or all of the adult workers in any factory or group or class or description of factories from any or all of the provisions of sections, 51, 52, 54 and 56 on the ground that the exemption is required to enable the factory or factories to deal with an exceptional press of work.

¹(3) Any exemption granted under sub-section (2) shall be subject to the following conditions, namely :- (i) the total number of hours of work in any day shall not exceed twelve;

(ii) the spread over, inclusive of intervals for rest, shall not exceed thirteen hours in any one day;

(iii) the total number of hours of work in any week, including overtime, shall not exceed sixty;

(iv) no worker shall be allowed to work overtime, for more than seven days at a stretch and the total number of hours of overtime work in any quarter shall not exceed seventy-five. Explanation : In this sub-section “quarter” has the same meaning as in sub-section (4) of section 64.

²[***]

————————————-

1. Subs. by Act 94 of 1976, sec. 28, for sub-section (3) (w.e.f. 26-10-1976).

2. Sub-section (4) omitted by Act 94 of 1976, sec. 28 (w.e.f. 26-10-1976).

Section 66. FURTHER RESTRICTIONS ON EMPLOYMENT OF WOMEN. 

(1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely :-

(a) no exemption from the provisions of section 54 may be granted in respect of any women;

(b) no woman shall be ¹[required or allowed to work in any factory] except between the hours of 6 A.M. and 7 P.M. :

Provided that the State Government may, by notification in the Official Gazette, in respect of ²[any factory or group or class or description of factories,] vary the limits laid down in clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.;

³[(c) there shall be no change of shifts except after a weekly holiday or any other holiday.]

(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to or deterioration in, any raw material.

(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.

————————-

1. Subs. by Act 94 of 1976, sec. 29, for “employed in any factory” (w.e.f. 26-10-1976).

2. Subs. by Act 94 of 1976, sec. 29, for “any class or deseription of factories”(w.e.f. 26-10-1976).

3. Ins. by Act 25 of 1954, sec. 17 (w.e.f. 7-5-1954).

Section 67. PROHIBITION OF EMPLOYMENT OF YOUNG CHILDREN. 

No child who has not completed his fourteenth year shall be required or allowed to work in any factory.

Section 68. NON-ADULT WORKERS TO CARRY TOKENS. 

A child who has completed his fourteenth year or an adolescent shall not be required or allowed to work in any factory unless -

(a) a certificate of fitness granted with reference to him under section 69 is in the custody of the manager of the factory; and

(b) such child or adolescent carries while he is at work a token giving a reference to such certificate.

Section 69. CERTIFICATES OF FITNESS. 

(1) A certifying surgeon shall, on the application of any young person or his parent or guardian accompanied by a document signed by the manager of a factory that such person will be employed therein if certified to be fit for work in a factory, or on the application of the manager of the factory in which any young person wishes to work, examine such person and ascertain his fitness for work in a factory.

(2) The certifying surgeon, after examination, may grant to such young person, in the prescribed form, or may renew – (a) a certificate of fitness to work in a factory as a child, if he is satisfied that the young person has completed his fourteenth year, that he has attained the prescribed physical standards and that he is fit for such work;

(b) a certificate of fitness to work in a factory as an adult, if he is satisfied that the young person has completed his fifteenth year, and is fit for a full day’s work in a factory :

Provided that unless the certifying surgeon has personal knowledge of the place where the young person proposes to work and of the manufacturing process in which he will be employed, he shall not grant or renew a certificate under this sub-section until he has examined such place.

(3) A certificate of fitness granted or renewed under sub-section (2) – (a) shall be valid only for a period of twelve months from the date thereof;

(b) may be made subject to conditions in regard to the nature of the work in which the young person may be employed, or requiring re-examination of the young person before the expiry of the period of twelve months.

(4) A certifying surgeon shall revoke any certificate granted or renewed under sub-section (2) if in his opinion the holder of it is no longer fit to work in the capacity stated therein in a factory.

(5) Where a certifying surgeon refuses to grant or renew a certificate or a certificate of the kind requested or revokes a certificate, he shall, if so requested by any person who could have applied for the certificate or the renewal thereof, state his reasons in writing for so doing.

(6) Where a certificate under this section with reference to any young person is granted or renewed subject to such conditions as are referred to in clause (b) of sub-section (3), the young person shall not be required or allowed to work in any factory except in accordance with those conditions.

(7) Any fee payable for a certificate under this section shall be paid by the occupier and shall not be recoverable from the young person, his parents or guardian.

Section 70. EFFECT OF CERTIFICATE OF FITNESS GRANTED TO ADOLESCENT. 

(1) An adolescent who has been granted a certificate of fitness to work in a factory as an adult under clause (b) of sub-section (2) of section 69, and who while at work in a factory carries a token giving reference to the certificate, shall be deemed to be an adult for all the purposes of Chapters VI and III.

¹[***]

²[(1A)

No female adolescent or a male adolescent who has not attained the age of seventeen years but who has been granted a certificate of fitness to work in a factory as an adult, shall be required or allowed to work in any factory except between 6 A.M. and 7 P.M. :

Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories -

(i) vary the limits laid down in this sub-section so, however, that no such section shall authorise the employment of any female adolescent between 10 P.M. and 5 A.M.;

(ii) grant exemption from the provisions of this sub-section in case of serious emergency where national interest is involved.

(2) An adolescent who has not been granted a certificate of fitness to work in a factory as an adult under the aforesaid clause (b) shall, notwithstanding his age, be deemed to be a child for all the purposes of

this Act.

——————————

1. The proviso and the Explanation omitted by Act 20 of 1987, sec. 22 (w.e.f. 1-12-1987).

2. Ins. by Act 20 of 1987, sec. 22 (w.e.f. 1-12-1987).

Section 71. WORKING HOURS FOR CHILDREN. 

(1) No child shall be employed or permitted to work, in any factory -

(a) for more than four and a half hours in any day;

¹[(b) during the night.

Explanation.—For the purpose of this sub-section “night” shall mean a period of at least twelve consecutive hours which shall include the interval between 10 P.M. and 6 A.M.]

(2) The period of work of all children employed in a factory shall be limited to two shifts which shall not overlap or spread over more than five hours each; and each child shall be employed in only one of the relays which shall not, except with the previous permission in writing of the Chief Inspector, be changed more frequently than once in a period of thirty days.

(3) The provisions of section 52 shall apply also to child workers and no exemption from the provisions of that section may be granted in respect of any child.

(4) No child shall be required or allowed to work in any factory on any day on which he has already been working in another factory.

²[(5) No female child shall be required or allowed to work in any factory except between 8 A.M. and 7 P.M.]

——————————-

1. Subs. by Act 25 of 1954, sec 19, for clause (b) (w.e.f. 7-5-1954).

2. Ins. by Act 20 of 1987, sec. 23 (w.e.f. 1-12-1987).

Section 72. NOTICE OF PERIODS OF WORK FOR CHILDREN. 

(1) There shall be displayed and correctly maintained in every factory in which children are employed, in accordance with the provisions of sub-section (2) of section 108 a notice of period of work for children, showing clearly for every day the periods during which children may be required or allowed to work.

(2) The periods shown in the notice required by sub-section (1) shall be fixed beforehand in accordance with the method laid down for adult workers in section 61, and shall be such that children working for those periods would not be working in contravention of any of the provisions of section 71.

(3) The provisions of sub-sections (8), (9) and (10) of section 61 shall apply also to the notice required by sub-section (1) of this section.

Section 73. REGISTER OF CHILD WORKERS. 

(1) The manager of every factory in which children are employed shall maintain a register of child workers, to be available to the Inspector at all times during working hours or when any work is being carried on in a factory, showing -

(a) the name of each child worker in the factory,

(b) the nature of his work,

(c) the group, if any, in which he is included,

(d) where his group works in shifts, the relay to which he is allotted, and

(e) the number of his certificate of fitness granted under section 69.

¹[(1A) No child worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of child workers.]

(2) The State Government may prescribe the form of the register of child workers, the manner in which it shall be maintained and the period for which it shall be preserved.

——————————–

1. Ins. by Act 94 of 1976, sec. 30 (w.e.f. 26-10-1976).

Section 74. HOURS OF WORK TO CORRESPOND WITH NOTICE UNDER SECTION 72 AND REGISTER UNDER SECTION 73. 

No child shall be employed in any factory otherwise than in accordance with the notice of periods of work for children displayed in the factory and the entries made beforehand against his name in the register of child workers of the factory.

Section 75. POWER TO REQUIRE MEDICAL EXAMINATION. 

Where an Inspector is of opinion -

(a) that any person working in a factory without a certificate of fitness is a young person, or

(b) that a young person working in a factory with a certificate of fitness is no longer fit to work in the capacity stated therein, – he may serve on the manager of the factory a notice requiring that such person or young person, as the case may be, shall be examined by a certifying surgeon, and such person or young person shall not, if the Inspector so directs, be employed, or permitted to work, in any factory until he has been so examined and has been granted a certificate of fitness or a fresh certificate of fitness, as the case may be, under section 69, or has been certified by the certifying surgeon examining him not to be a young person.

Section 76. POWER TO MAKE RULES. 

The State Government may make rules -

(a) prescribing the forms of certificates of fitness to be granted under section 69, providing for the grant of duplicates in the event of loss of the original certificates, and fixing the fees which may be charged for such certificates and renewals thereof and such duplicates;

(b) prescribing the physical standards to be attained by children and adolescents working in factories;

(c) regulating the procedure of certifying surgeons under this Chapter;

(d) specifying other duties which certifying surgeons may be required to perform in connection with the employment of young persons in factories, and fixing the fees which may be charged for such duties and the persons by whom they shall be payable.

 Section 77. CERTAIN OTHER PROVISIONS OF LAW NOT BARRED. 

The provisions of this Chapter shall be in addition to, and not in derogation of, the provisions of the Employment of Children Act, 1938 (26 of 1938).

Section 78. APPLICATION OF CHAPTER. 

(1) The provisions of this Chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, ¹[agreement (including settlement)] or contract of service:

²[Provided that if such award, agreement (including settlement) or contract of service provides for a longer annual leave with wages than provided in this Chapter, the quantum of leave, which the worker shall be entitled to, shall be in accordance with such award, agreement or contract of service, but in relation to matters not provided for in such award, agreement or contract of service or matters which are provided for less favourably therein, the provisions of sections 79 to 82, so far as may be, shall apply.]

(2) The provisions of this Chapter shall not apply to workers ³[in any factory] of any railway administered by the Government, who are governed by leave rules approved by the Central Government.

———————————–

1. Subs. by Act 94 of 1976, sec. 31, for “agreement” (w.e.f. 26-10-1976).

2. Subs. by Act 94 of 1976, sec. 31, for the proviso (w.e.f. 26-10-1976).

3. Subs. by Act 94 of 1976, sec. 31, for “in any workshop” (w.e.f. 26-10-1976).

Section 79. ANNUAL LEAVE WITH WAGES. 

(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of -

(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;

(ii) if a child, one day for every fifteen days of work formed by him during the previous calendar year.

Explanation 1 : For the purpose of this sub-section – (a) any days of lay off, by agreement or contract or as permissible under the standing orders;

(b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and

(c) the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.

Explanation 2 : The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.

(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid down in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calender year.

¹(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, during the course of the calendar year, he or his heir or nominee, as the case may be, shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before his discharge, dismissal, quitting of employment, superannuation or death calculated at the rates specified in sub-section (1), even if he had not worked for the entire period specified in sub-section (1) or sub-section (2) making him eligible to avail of such leave, and such payment shall be made -

(i) where the worker is discharged or dismissed or quits employment, before the expiry of the second working day from the date of such discharge, dismissal or quitting, and

(ii) where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuation or death.

(4) In calculating leave under this section, fraction of leave of half a day or more shall be treated as one full day’s leave, and fraction of less than half a day shall be omitted.

(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :

Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child :

Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in sub-sections (8) and (9) ²[or in contravention of sub-section (10)] shall be entitled to carry forward the ³[leave refused] without any limit.

(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year :

Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin, if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947) :

Provided further that the number of times in which leave may be taken during any year shall not exceed three.

(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section

(6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.

(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputes Act, 1947 (14 of 1947), or a similar Committee constituted under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with the Chief Inspector a scheme in writing whereby the grant of leave allowable under this section may be regulated.

(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be, in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.

(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).

(11) If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.

(12) The unavailed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.

——————————

1. Subs. by Act 94 of 1976, sec. 32, for sub-section (3) (w.e.f. 26-10-1976).

2. Ins. by Act 94 of 1976, sec. 32 (w.e.f. 26-10-1976).

3. Subs. by Act 94 of 1976, sec. 32, for “unavailed leave” (w.e.f. 26-10-1976).

Section 80. WAGES DURING LEAVE PERIOD. 

(1) For the leave allowed to him under ¹[section 78 or section 79, as the case may be,] a worker ²[shall be entitled to wages] at a rate equal to the daily average of his total full time earnings for the days on which ³[he actually worked] during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles:

⁴[Provided that in the case of a worker who has not worked on any day during the calendar month immediately preceding his leave, he shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the last calendar month preceding his leave, in which he actually worked, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the workers of foodgrains and other articles.]

(2) The cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles shall be computed as often as may be prescribed, on the basis of the maximum quantity of foodgrains and other articles admissible to a standard family.

Explanation 1 : “Standard family” means a family consisting of a worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.

Explanation 2 : Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.

(3) The State Government may make rules prescribing -

(a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed; and

(b) the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.

———————————

1.Subs. by Act 94 of 1976, sec. 33, for “section 79” (w.e.f. 26-10-1976).

2.Subs. by Act 20 of 1987, sec. 24, for “shall be paid” (w.e.f. 1-12-1987).

3.Subs. by Act 94 of 1976, sec. 33, for “he worked” (w.e.f. 26-10-1976).

4.Ins. by Act 20 of 1987, sec. 24 (w.e.f. 1-12-1987).

Section 81. PAYMENT IN ADVANCE IN CERTAIN CASES. 

A worker who has been allowed leave for not less than four days, in the case of an adult, and five days, in the case of a child, shall, before his leave begins, be paid the wages due for the period of the leave allowed.

Section 82. MODE OF RECOVERY OF UNPAID WAGES. 

Any sum required to be paid by an employer, under this chapter but not paid by him shall be recoverable as delayed wages under the provisions of the Payment of Wages Act, 1936 (4 of 1936).

Section 83. POWER TO MAKE RULES. 

The State Government may make rules directing managers of factories to keep registers containing such particulars as may be prescribed and requiring the registers to be made available for examination by Inspectors..

Section 84. POWERS TO EXEMPT FACTORIES. 

Where the State Government is satisfied that the leave rules applicable to workers in a factory provide benefits which in its opinion are not less favourable than those for which this Chapter makes provision it may, by written order, exempt the factory from all or any of the provisions of this Chapter subject to such conditions as may be specified in the order.

Explanation : For the purposes of this section, in deciding whether the benefits which are provided for by any leave rules are less favourable than those for which this Chapter makes provision, or not, the totality of the benefits shall be taken into account.

¹[Explanation.—For the purposes of this section, in deciding whether the benefits which are provided for by any leave rules are less favourable than those for which this Chapter makes provision, or not, the totality of the benefits shall be taken into account.]

———————————

1. Ins. by Act 94 of 1976, sec. 34 (w.e.f. 26-10-1976).

Section 85. POWER TO APPLY THE ACT TO CERTAIN PREMISES. 

(1) The State Government may, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwithstanding that -

(i) the number of persons employed therein is less than ten, if working with the aid of power and less than twenty if working without the aid of power, or

(ii) the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner :

Provided that the manufacturing process is not being carried on by the owner only with the aid of his family.

(2) After a place is so declared, it shall be deemed to be a factory for the purposes of this Act, and the owner shall be deemed to be the occupier, and any person working therein, a worker.

Explanation : For the purposes of this section, owner shall include a lessee or mortgagee with possession of the premises.

Section 86. POWER TO EXEMPT PUBLIC INSTITUTIONS. 

The State Government may exempt, subject to such conditions as it may consider necessary, any workshop or workplace where a manufacturing process is carried on and which is attached to a public institution, maintained for the purposes of education, ¹training, research or reformation, from all or any of the provisions of this Act :

Provided that no exemption shall be granted from the provisions relating to hours of work and holidays, unless the persons having the control of the institution submit, for the approval of the State Government, a scheme for the regulation of the hours of employment, intervals for meals, and holidays of the persons employed in or attending the institution or who are inmates of the institution, and the State Government is satisfied that the provisions of the scheme are not less favourable than the corresponding provisions of this Act.

—————————–

1.   Subs. by Act 94 of 1976, sec. 35, for “training” (w.e.f. 26-10-1976).

Section 87. DANGEROUS OPERATIONS. 

Where the State Government is of opinion that any 1[manufacturing process or operation] carried on in a factory exposes any persons employed in it to a serious risk of bodily injury, poisoning or disease, it may make rules applicable to any factory or class or description of factories in which the 1[manufacturing process or operation] is carried on—

(a) specifying the 1[manufacturing process or operation] and declaring it to be dangerous;

(b) prohibiting or restricting the employment of women, adolescents or children in the ¹[manufacturing process or operation];

(c) providing for the periodical medical examination of persons employed, or seeking to be employed, in the ¹[manufacturing process or operation], and prohibiting the employment or persons not certified as fit for such employment ²[and requiring the payment by the occupier of the factory of fees for such medical examination];

(d) providing for the protection of all persons employed in the 1[manufacturing process or operation] or in the vicinity of the places where it is carried on;

(e) prohibiting, restricting or controlling the use of any specified materials or processes in connection with the ¹[manufacturing process or operation];

²[(f) requiring the provision of additional welfare amenities and sanitary facilities and the supply of protective equipment and clothing, and laying down the standards thereof, having regard to the dangerous nature of the manufacturing process or operation.

³[***]

——————————-

1. Subs. by Act 94 of 1976, sec. 36, for “operation” (w.e.f. 26-10-1976).

2. Ins. by Act 94 of 1976, sec. 36 (w.e.f. 26-10-1976).

3. Clause (g) omitted by Act of 20 of 1987, sec. 25 (w.e.f. 1-12-1987).

Section 87 A. POWER TO PROHIBIT EMPLOYMENT ON ACCOUNT OF SERIOUS HAZARD. 

¹[87A. Power to prohibit employment on account of serious hazard.—(1) Where it appears to the Inspector that conditions in a factory or part thereof are such that they may cause serious hazard by way of injury or death to the persons employed therein or to the general public in the vicinity, he may, by order in writing to the occupier of the factory, state the particulars in respect of which he considers the factory or part thereof to be the cause of such serious hazard and prohibit such occupier from employing any person in the factory or any part thereof other than the minimum number of persons necessary to attend to the minimum tasks till the hazard is removed.

(2) Any order issued by the Inspector under sub-section (1) shall have effect for a period of three days until extended by the Chief Inspector by a subsequent order.

(3) Any person aggrieved by an order of the Inspector under sub-section (1), and the Chief Inspector under sub-section (2), shall have the right to appeal to the High Court.

(4) Any person whose employment has been affected by an order issued under sub-section (1), shall be entitled to wages and other benefits and it shall be the duty of the occupier to provide alternative employment to him wherever possible and in the manner prescribed.

(5) The provisions of sub-section (4) shall be without prejudice to the rights of the parties under the Industrial Disputes Act, 1947 (14 of 1947).

—————————-

1. Ins. by Act 20 of 1987, sec. 26 (w.e.f. 1-12-1987).

Section 88. NOTICE OF CERTAIN ACCIDENTS. 

¹(1) Where in any factory an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of forty-eight hours or more immediately following the accident, or which is of such nature as may be prescribed in this behalf, the manager of the factory shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed.

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

(3) The State Government may make rules for regulating the procedure at inquiries under this section.

————————-

1. Section 88 re-numbered as sub-section (1) thereof by Act 94 of 1976, sec. 37 (w.e.f. 26-10-1976).

2. Ins. by Act 94 of 1976, sec. 37 (w.e.f. 26-10-1976)

Section 88 A. NOTICE OF CERTAIN DANGEROUS OCCURRENCES. 

¹[88A. Notice of certain dangerous occurrences.—Where in a factory any dangerous occurrence of such nature as may be prescribed, occurs, whether causing any bodily injury or disability or not, the manager of the factosry shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed.

———

1.   Ins. by Act 94 of 1976, sec. 38 (w.e.f. 26-10-1976).

Section 89. NOTICE OF CERTAIN DISEASES. 

(1) Where any worker in a factory contracts any disease specified in¹ the Third Schedule, the manager of the factory shall send notice thereof to such authorities, and in such form and within such time as may be prescribed.

(2) If any medical practitioner attends on a person who is or has been employed in a factory, and who is, or is believed by the medical practitioner to be, suffering from any disease, specified in the Third Schedule the medical practitioner shall without delay send a report in writing to the office of the Chief Inspector stating -

(a) the name and full postal address of the patient,

(b) the disease from which he believes the patient to be suffering, and

(c) the name and address of the factory in which the patient is, or was last, employed.

(3) Where the report under sub-section (2) is confirmed to the satisfaction

of the Chief Inspector, by the certificate of a certifying surgeon or otherwise, that the person is suffering from a disease specified in the Third Schedule, he shall pay to the medical practitioner such fee as may be prescribed, and the fee so paid shall be recoverable as an arrear of land revenue from the occupier of the factory in which the person contracted the disease.

(4) If any medical practitioner fails to comply with the provisions of sub-section (2), he shall be punishable with fine which may extend to ²one thousand rupees.

³(5) The Central Government may, by notification in the Official Gazette,

add to or alter the Third Schedule and any such addition or alteration shall have effect as if it had been made by this Act.

—————————

1. Subs. by Act 20 of 1987, sec. 27, for “the Schedule” (w.e.f. 1-12-1987).

2. Subs. by Act 20 of 1987, sec. 27, for “fifty rupees” (w.e.f. 1-12-1987).

3. Added by Act 20 of 1987, sec. 27 (w.e.f. 1-12-1987).

Section 90. POWER TO DIRECT ENQUIRY INTO CASES OF ACCIDENT OR DISEASE. 

(1) The State Government may, if it considers it expedient so to do, appoint a competent person to inquire into the causes of any accident occurring in a factory or into any case where a disease specified in ¹the Third Schedule has been, or is suspected to have been, contracted in a factory, and may also appoint one or more persons possessing legal or special knowledge to act as assessors in such inquiry.

(2) The person appointed to hold an inquiry under this section shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purposes of enforcing the attendance of witnesses and compelling the production of documents and material objects, and may also, so far as may be necessary for the purposes of the inquiry, exercise any of the powers of an Inspector under this Act; and every person required by the person making the inquiry to furnish any information shall be deemed to be legally bound so to do within the meaning of section 176 of the Indian Penal Code, 1860 (45 of 1860).

(3) The person holding an inquiry under this section shall make a report to the State Government stating the causes of the accident, or as the case may be, disease, and any attendant circumstances, and adding any observations which he or any of the assessors may think fit to make.

(4) The State Government may, if it thinks fit, cause to be published any report made under this section or any extracts therefrom.

(5) The State Government may make rules for regulating the procedure as Inquiries under this section.

————————

1.   Subs. by Act 20 of 1987, sec. 28, for “the Schedule” (w.e.f. 1-12-1987).

Section 91. POWER TO TAKE SAMPLES. 

(1) An Inspector may at any time during the normal working hours of a factory, after informing the occupier or manager of the factory or other person for the time being purporting to be in charge of the factory, take in the manner hereinafter provided a sufficient sample of any substance used or intended to be used in the factory, such use being -

(a) in the belief of the Inspector in contravention of any of the provisions of this Act or the rules made thereunder, or

(b) in the opinion of the Inspector likely to cause bodily injury to, or injury to the health of, workers in the factory.

(2) Where the Inspector takes a sample under sub-section (1), he shall, in the presence of the person informed under that sub-section unless such person wilfully absents himself, divide the sample into three portions and effectively seal and suitably mark them, and shall permit such person to add his own seal and mark thereto.

(3) The person informed as aforesaid shall, if the Inspector so requires, provide the appliances for dividing, sealing and marking the sample taken under this section.

(4) The Inspector shall -

(a) forthwith give one portion of the sample to the person informed under sub-section (1);

(b) forthwith send the second portion to a Government Analyst for analysis and report thereon;

(c) retain the third portion for production to the Court before which proceedings, if any, are instituted in respect of the substance.

(5) Any document purporting to be a report under the hand of any Government Analyst upon any substance submitted to him for analysis and report under this section, may be used as evidence in any proceedings instituted in respect of the substance.

Section 91 A. SAFETY AND OCCUPATIONAL HEALTH SURVEYS. 

¹[91A. Safety and occupational health surveys.—(1) The Chief Inspector, or the Director General of Factory Advice Service and Labour Institutes, or the Director General of Health Services, to the Government of India, or such other officer as may be authorised in this behalf by the State Government or the Chief Inspector or the Director General of Factory Advice Service and Labour Institutes or the Director General of Health Services may, at any time during the normal working hours of a factory, or at any other time as is found by him to be necessary, after giving notice in writing to the occupier or manager of the factory or any other person who for the time being purports to be in charge of the factory, undertake safety and occupational health surveys and such occupier or manager or other person shall afford all facilities for such survey, including facilities for the examination and testing of plant and machinery and collection of samples and other data relevant to the survey.

(2) For the purpose of facilitating surveys under sub-section (1) every worker shall, if so required by the person conducting the survey, present himself to undergo such medical examination as may be considered necessary by such person and furnish all information in his possession and relevant to the survey.

(3) Any time spent by a worker for undergoing medical examination or furnishing information under sub-section (2) shall, for the purpose of calculating wages and extra wages for overtime work, be deemed to be time during which such worker worked in the factory.

Explanation : For the purposes of this section, the report, if any, submitted to the State Government by the person conducting the survey under sub-section (1) shall be deemed to be a report submitted by an Inspector under this Act.

²[Explanation.—For the purposes of this section, the report, if any, submitted to the State Government by the person conducting the survey under sub-section (1) shall be deemed to be a report submitted by an Inspector under this Act.]

————————————

1. Ins. by Act 94 of 1976, sec. 39 (w.e.f. 26-10-1976).

2. Ins. by Act 20 of 1987, sec. 29 (w.e.f. 1-12-1987).

Section 92. GENERAL PENALTY FOR OFFENCES. 

Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to

¹[two years] or with fine which may extend to ²[one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to ³[one thousand rupees] for each day on which the contravention is so continued:

⁴[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than ⁵[twenty-five thousand rupees] in the case of an accident causing death, and ⁶[five thousand rupees] in the case of an accident causing serious bodily injury.

Explanation : In this section and in section 94 “serious bodily injury” means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.

————————————-

1. Subs. by Act 20 of 1987, sec. 30, for “three months” (w.e.f. 1-12-1998).

2. Subs. by Act 20 of 1987, sec. 30, for “two thousand rupees” (w.e.f. 1-12-1987).

3. Subs. by Act 20 of 1987, sec. 30, for “seventy-five rupees” (w.e.f. 1-12-1987).

4. Ins. by Act 94 of 1976, sec. 40 (w.e.f. 26-10-1976).

5. Subs. by Act 20 of 1987, sec. 30, for “one thousand rupees” (w.e.f. 1-12-1987).

6. Subs. by Act 20 of 1987, sec. 30, for “five hundred rupees” (w.e.f. 1-12-1987).

Section 93. LIABILITY OF OWNER OF PREMISES IN CERTAIN CIRCUMSTANCES. 

¹[93. Liability of owner of premises in certain circumstances.—(1) Where in any premises separate buildings are leased to different occupiers for use as separate factories, the owner of the premises shall be responsible for the provision and maintenance of common facilities and services, such as approach roads, drainage, water supply, lighting and sanitation.

(2) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (1).

(3) Where in any premises, independent or self-contained, floors or flats are leased to different occupiers for use as separate factories, the owner of the premises shall be liable as if he were the occupier or manager of a factory, for any contravention of the provisions of this Act in respect of -

(i) latrines, urinals and washing facilities in so far as the maintenance of the common supply of water for these purposes is concerned;

(ii) fencing of machinery and plant belonging to the owner and not specifically entrusted to the custody or use of an occupier;

(iii) safe means of access to the floors or flats and maintenance and cleanliness of staircases and common passages;

(iv) precautions in case of fire;

(v) maintenance of hoists and lifts; and

(vi) maintenance of any other common facilities provided in the premises.

(4) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of sub-section (3).

(5) The provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, urinals and washing facilities are leased to different occupiers for use as separate factories :

Provided that the owner shall be responsible also for complying with the requirements relating to the provisions and maintenance of latrines, urinals and washing facilities.

(6) The Chief Inspector shall have, subject to the control of the State Government, the power to issue orders to the owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of section 46 or section 48.

(7) Where in any premises portions of a room or a shed are leased to different occupiers for use as separate factories, the owner of the premises shall be liable for any contravention of the provisions of – (i) Chapter III, except sections 14 and 15;

(ii) Chapter IV, except sections 22, 23, 27, 34, 35 and 36 :

Provided that in respect of the provisions of sections 21, 24 and 32 the owners liability shall be only in so far as such provisions relate to things under his control : Provided further that the occupier shall be responsible for complying with the provisions of Chapter IV in respect of plant and machinery belonging to or supplied by him;

(iii) section 42.

(8) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (7).

(9) In respect of sub-sections (5) and (7), while computing for the purposes of any of the provisions of this Act the total number of workers employed, the whole of the premises shall be deemed to be a single factory.

———————————–

1.   Subs. by Act 25 of 1954, sec. 21, for section 93 (w.e.f. 7-5-1954).

Section 94. ENHANCED PENALTY AFTER PREVIOUS CONVICTION. 

¹[(1)] If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to ²[three years] or with fine ³[which shall not be less than ⁴[ten thousand rupees] but which may extend to ⁵[two lakh rupees]] or with both:

⁶[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a fine of less than ⁴[ten thousand rupees]:

Provided further that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily in jury, the fine shall not be less than ⁷[thirty-five thousand rupees] in the case of an accident causing death and ⁵[ten thousand rupees] in the case of an accident causing serious bodily injury.]

⁹[(2) For the purposes of sub-section (1) no cognizance shall be taken of any conviction made more than two years before the commission of the offence for which the person is subsequently being convicted.]

———————————

1. Section 94 re-numbered as sub-section (1) thereof by Act 94 of 1976, sec. 41 (w.e.f.26-10-1976).

2. Subs. by Act 20 of 1987, sec. 31, for “six months” (w.e.f. 1-12-1987).

3. Subs. by Act 94 of 1976, sec. 41, for “which may extend to one thousand rupees”(w.e.f. 26-10-1976).

4. Subs. by Act 20 of 1987, sec. 31, for “ two hundred rupees” (w.e.f. 1-12-1987).

5. Subs. by Act 20 of 1987, sec. 31, for “five thousand rupees” (w.e.f. 1-12-1987).

6. Subs. by Act 94 of 1976, sec. 41, for the proviso (w.e.f. 26-10-1976).

7. Subs. by Act 20 of 1987 sec. 31, for “two thousand rupees” (w.e.f. 1-12-1987).

8. Subs. by Act 20 of 1987, sec. 31, for “one thousand rupees” (w.e.f. 1-12-1987).

9. Ins. by Act 94 of 1976, sec. 41 (w.e.f. 26-10-1976).

Section 95. PENALTY FOR OBSTRUCTING INSPECTOR. 

Whoever wilfully obstructs an Inspector in the exercise of any power conferred on him by or under this Act, or fails to produce on demand by an Inspector any registers or other documents in his custody kept in pursuance of this Act or of any rules made thereunder, or conceals or prevents any worker in a factory from appearing before, or being examined by, an Inspector, shall be punishable with imprisonment for a term which may extend to ¹[six months] or with fine which may extend to ²[ten thousand rupees] or with both.

——————————-

1. Subs. by Act 20 of 1987, sec. 32, for “three months” (w.e.f. 1-12-1987).

2. Subs. by Act 20 of 1987, sec. 32, for “five hundred rupees” (w.e.f. 1-12-1987).

Section 96. PENALTY FOR WRONGFULLY DISCLOSING RESULTS OF ANALYSIS UNDER SECTION 91. 

Whoever, except in so far as it may be necessary for the purposes of a prosecution for any offence punishable under this Act, publishes or discloses to any person the results of an analysis made under section 91, shall be punishable with imprisonment for a term which may extend to ¹[six months] or with fine which may extend to ²[ten thousand rupees] or with both.

——————————-

1. Subs. by Act 20 of 1987, sec. 33, for “three months” (w.e.f. 1-12-1987).

2. Subs. by Act 20 of 1987, sec. 33, for “five hundred rupees” (w.e.f. 1-12-1987).

Section 96 A. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF SECTIONS 41B, 41C AND 41H. 

¹(1) Whoever fails to comply with or contravenes any of the provisions of section 41B, 41C or 41H or the rules made thereunder, shall, in respect of such failure or contravention, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to two lakh rupees, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to ten years.

—————————-

1.   Ins. by Act 20 of 1987, sec. 34 (w.e..f. 1-12-1987).

Section 97. OFFENCES BY WORKERS. 

(1) Subject to the provisions of section 111, if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to ¹five hundred rupees.

(2) Where a worker is convicted of an offence punishable under sub-section (1), the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention.

——————————-

1.   Subs. by Act 20 of 1987, sec 35, for “twenty rupees” (w.e.f. 1-12-1987).

Section 98. PENALTY FOR USING FALSE CERTIFICATE OF FITNESS. 

Whoever knowingly uses or attempts to use, as a certificate of fitness granted to himself under section 70, a certificate granted to another person under that section, or who, having procured such a certificate, knowingly allows it to be used, or an attempt to use to be made, by another person, shall be punishable with imprisonment for a term which may extend to ¹[two months] or with fine which may extend to ²[one thousand rupees] or with both.

——————————-

1. Subs. by Act 20 of 1987, sec. 36, for “one month” (w.e.f. 1-12-1987).

2. Subs. by Act 20 of 1987 sec. 36, for “fifty rupees” (w.e.f. 1-12-1987).

Section 99. PENALTY FOR PERMITTING DOUBLE EMPLOYMENT OF CHILD. 

If a child works in a factory on any day on which he has already been working in another factory, the parent or guardian of the child or the person having custody of or control over him or obtaining any direct benefit from his wages, shall be punishable with fine which may extend to ¹one thousand rupees unless it appears to the Court that the child so worked without the consent or connivance of such parent, guardian or person.

—————————

1.   Subs. by Act 20 of 1987 sec. 37, for “fifty rupees” (w.e.f. 1-12-1987).

Section 100. DETENTION OF OCCUPIER IN CERTAIN CASES.

[Rep. by the Factories (Amendment) Act, 1987 (20 of 1987). Sec. 38 (w.e.f. 1-12-1987)].

Section 101. EXEMPTION OF OCCUPIER OR MANAGER FROM LIABILITY IN CERTAIN CASES. 

Where the occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or manager of the factory, as the case may be, proves to the satisfaction of the court -

(a) that he has used due diligence to enforce the execution of this Act, and

(b) that the said other person committed the offence in question without his knowledge, consent or connivance, – that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence : Provided that in seeking to prove as aforesaid, the occupier or manager of the factory, as the case may be, may be examined on oath, and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor : Provided further that, if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge, the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court, the Court shall proceed to hear the charge against the occupier or manager and shall, if the offence be proved, convict the occupier or manager.

Section 102. POWER OF COURT TO MAKE ORDERS. 

(1) Where the occupier or manager of a factory is convicted of an offence punishable under this Act the Court may, in addition to awarding any punishment, by order in writing require him, within a period specified in the order (which the Court may, if it thinks fit and on application in such behalf, from time to time extend) to take such measures as may be so specified for remedying the matters in respect of which the offence was committed.

(2) Where an order is made under sub-section (1), the occupier or manager of the factory, as the case may be, shall not be liable under this Act in respect of the continuation of the offence during the period or extended period, if any, allowed by the Court, but if, on the expiry of such period or extended period, as the case may be, the order of the Court has not been fully complied with, the occupier or manager, as the case may be, shall be deemed to have committed a further offence, and may be sentenced therefor by the Court to undergo imprisonment for a term which may extend to six months or to pay a fine which may extend to one hundred rupees for every day after such expiry on which the order has not been complied with, or both to undergo such imprisonment and to pay such fine, as aforesaid.

Section 103. PRESUMPTION AS TO EMPLOYMENT. 

If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory.

Section 104. ONUS AS TO AGE. 

(1) When any act or omission would, if a person were under a certain age, be an offence punishable under this Act, and such person is in the opinion of the Court prima facie under such age, the burden shall be on the accused to prove that such person is not under such age.

(2) A declaration in writing by a certifying surgeon relating to a worker that he has personally examined him and believes him to be under the age stated in such declaration shall, for the purposes of this Act and the rules made thereunder, be admissible as evidence of the age of that worker.

Section 104 A. ONUS OF PROVING LIMITS OF WHAT IS PRACTICABLE, ETC.

¹[104A. Onus of proving limits of what is practicable, etc.-In any proceeding for an offence for the contravention of any provision of this Act or rules made thereunder consisting of a failure to comply with a duty or requirement to do something, it shall be for the person who is alleged to have failed to comply with such duty or requirement, to prove that it was not reasonably practicable, or, as the case may be, all practicable measures were taken to satisfy the duty or requirement.

———————————

1.   Ins. by Act 20 of 1987, sec. 39 (w.e.f. 1-12-1987).

Section 105. COGNIZANCE OF OFFENCES.

(1) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector.

(2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence punishable under this Act.

comments

Since the written complaint was filed by an Inspector of the Factory himself, therefore no previous sanction at all was required to be taken; K.C. Majumdar v. State of Bihar, 2003 (98) FLR 116

state amendment

Himachal Pradesh.—In Section 105, in sub-section (2), omit the words “of a Presidency Magistrate or”.

[Vide Himachal Pradesh A.L.O. 1948 (w.e.f. 25-12-1948)].

Section 106. LIMITATION OF PROSECUTIONS. 

No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector :

Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.

¹Explanation : For the purposes of this section,

(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues;

(b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.

STATE AMENDMENT

Uttar Pradesh.—After section 106, insert the following section.—

“106A. Compounding in offences.—The Inspector may, subject to any general or special order of the State Government in this behalf, compound any offences punishable under this Act with fine only, and committed for the first time, either before or after the institution of the prosecution, on realisation of such amount of composition fee as he thinks fit not exceeding the maximum amount of fine fixed for the offence; and where the offence is so compounded,—

(i) before the institution of the prosecution, the offender shall not be liable to prosecution, for such offence and shall, if in custody, be set at liberty;

(ii) after the institution of the prosecution the composition shall amount to acquittal of the offender.”

[Vide Uttar Pradesh Act, 35 of 1979, sec. 4 (w.e.f. 21-12-1979)].

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1. Ins. by Act 94 of 1976, sec. 43 (w.e.f. 26-10-1976).

Section 106 A. JURISDICTION OF A COURT FOR ENTERTAINING PROCEEDINGS, ETC., FOR OFFENCE. 

¹[106A. Jurisdiction of a court for entertaining proceedings, etc., for offence.—For the purposes of conferring jurisdiction on any court in relation to an offence under this Act or the rules made thereunder in connection with the operation of any plant, the place where the plant is for the time being situate shall be deemed to be the place where such offence has been committed.]

————————————

1.Ins. by Act 20 of 1987, sec. 40 (w.e.f. 1-12-1987).

Section 107. APPEALS. 

(1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.

(2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and the other by such body representing the industry concerned as may be prescribed :

Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor.

(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal.

Section 108. DISPLAY OF NOTICES. 

(1) In addition to the notices required to be displayed in any factory by or under this Act, there shall be displayed in every factory a notice containing such abstracts of this Act and of the rules made thereunder as may be prescribed and also the name and address of the Inspector and the certifying surgeon.

(2) All notices required by or under this Act to be displayed in a factory shall be in English and in a language understood by the majority of the workers in the factory, and shall be displayed at some conspicuous and convenient place at or near the main entrance to the factory, and shall be maintained in a clean and legible condition.

(3) The Chief Inspector may, by order in writing served on the manager of any factory, require that there shall be displayed in the factory any other notice or poster relating to the health, safety or welfare of the workers in the factory.

 Section 109. SERVICE OF NOTICE.

The State Government may make rules prescribing the manner of the service of orders under this Act on owners, occupiers or managers of factories.

Section 110. RETURNS. 

The State Government may make rules requiring owners, occupiers or managers of factories to submit such returns, occasional or periodical, as may in its opinion be required for the purposes of this Act.

Section 111. OBLIGATIONS OF WORKERS. 

(1) No worker in a factory -

(a) shall wilfully interfere with or misuse any appliance, convenience or other thing provided in a factory for the purposes of securing the health, safety or welfare of the workers therein;

(b) shall wilfully and without reasonable cause do anything likely to endanger himself or others; and

(c) shall wilfully neglect to make use of any appliance or other thing provided in the factory for the purposes of securing the health or safety of the workers therein.

(2) If any worker employed in a factory contravenes any of the provisions of this section or of any rule or order made thereunder, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both.

Section 111 A. RIGHT OF WORKERS, ETC. 

¹[111A. Right of workers, etc.

Every worker shall have the right to -

(i) obtain from the occupier, information relating to workers’ health and safety at work;

(ii) get trained within the factory wherever possible, or, to get himself sponsored by the occupier for getting trained at a training centre or institute, duly approved by the Chief Inspector, where training is imparted for workers’ health and safety at work;

(iii) represent to the Inspector directly or through his representative in the matter of inadequate provision for protection of his health or safety in the factory.

————————–

1.   Ins. by Act 20 of 1987, sec. 41 (w.e.f. 1-12-1987).

Section 112. GENERAL POWER TO MAKE RULES. 

The State Government may make rules providing for any matter which, under any of the provisions of this Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act.

Section 113. POWERS OF CENTRE TO GIVE DIRECTIONS.

The Central Government may give directions to a State Government as to the carrying into execution of the provisions of this Act.

 Section 114. NO CHARGE FOR FACILITIES AND CONVENIENCES. 

Subject to the provisions of section 46 no fee or charge shall be realised from any worker in respect of any arrangements or facilities to be provided, or any equipments or appliances to be supplied by the occupier under the provisions of this Act.

Section 115. PUBLICATION OF RULES. 

¹[(1)] All rules made under this Act shall be published in the Official Gazette, and shall be subject to the condition of previous publication; and the date to be specified under clause (3) of section 23 of the General Clauses Act, 1897 (10 of 1897), shall be not less than ²[forty-five days] from the date on which the draft of the proposed rules was published.

³[(2) Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.]

———————

1. Section 115 re-numbered as sub-section (1) thereof by Act 20 of 1987 sec. 42 (w.e.f. 1-12-1987).

2. Subs. by Act 20 of 1987, sec. 42, for “three months” (w.e.f. 1-12-1987).

3. Ins. by Act 20 of 1987, sec. 42 (w.e.f. 1-12-1987).

Section 116. APPLICATION OF ACT TO GOVERNMENT FACTORIES. 

Unless otherwise provided this Act shall apply to factories belonging to the Central or any State Government.

Section 117. PROTECTION TO PERSONS ACTING UNDER THIS ACT. 

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

Section 118. RESTRICTION ON DISCLOSURE OF INFORMATION. 

(1) No Inspector shall, while in service or after leaving the service, disclose otherwise than in connection with the execution, or for the purposes, of this Act any information relating to any manufacturing or commercial business or any working process which may come to his knowledge in the course of his official duties.

(2) Nothing in sub-section (1) shall apply to any disclosure of information made with the previous consent in writing of the owner of such business or process of for the purposes of any legal proceeding (including arbitration) pursuant to this Act or of any criminal proceeding which may be taken, whether pursuant to this Act or otherwise, or for the purpose of any report of such proceedings as aforesaid.

(3) If any Inspector contravenes the provisions of sub-section (1) he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 118A. RESTRICTION ON DISCLOSURE OF INFORMATION. 

¹[118A. Restriction on disclosure of information.—(1) Every Inspector shall treat as confidential the source of any complaint brought to his notice on the breach of any provision of this Act.

(2) No inspector shall, while making an inspection under this Act, disclose to the occupier, manager or his representative that the inspection is made in pursuance of the receipt of a complaint : Provided that nothing in this sub-section shall apply to any case in which the person who has made the complaint has consented to disclose his name.

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1. Ins. by Act 20 of 1987, sec. 43 (w.e.f. 1-12-1987).

Section 119. ACT TO HAVE EFFECT NOTWITHSTANDING ANYTHING CONTAINED IN ACT 37 OF 1970. 

¹[119. Act to have effect notwithstanding anything contained in Act 37 of 1970. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Contract Labour (Regulation and Abolition) Act, 1970 ²[or any other law for the time being in force].]

——————————-

1. Ins. by Act 94 of 1976, sec. 44 (w.e.f. 26-10-1976). Earlier section 119 was repealed by Act 35 of 1950, sec. 2 and Sch. 1.

2. Ins. by Act 20 of 1987, sec. 44 (w.e.f. 1-12-1987)

Section 120. REPEAL AND SAVINGS. 

The enactments set out in the Table appended to this section are hereby repealed : Provided that anything done under the said enactments which could have been done under this Act if it had then been in force shall be deemed to have been done under this Act.

STATE AMENDMENT

Himachal Pradesh :

For section 120, substitute the following section, namely:—

“120. Any law in force in Himachal Pradesh relating to Factories other than this Act is hereby repealed:
Provided that anything done under any such law which could have been done under this Act if it had then been in force shall be deemed to have been done under this Act.”

[Vide Himachal Pradesh, A.L.O. 1948 (w.e.f. 25-12-1948)].

Table.—Enactments repealed.— [Rep. by the Repealing and Amending Act, 1950 (35 of 1950), Sec. 2 and Sch. I.]

Schedule I

LIST OF INDUSTRIES INVOLVING HAZARDOUS PROCESSES.

¹THE FIRST SCHEDULE

[See section 2(cb)]

1. Ferrous metallurgical Industries

– Integrated Iron and Steel

– Ferro-alloys

–Special Steels

2. Non-ferrous metallurgical Industries

- Primary Metallurgical Industries, namely, zinc, lead, copper manganese and aluminium

3. Foundries (ferrous and non-ferrous)

- Castings and forgings including cleaning or smoothing/roughening by sand and shot blasting.

4. Coal (including coke) industries. – Coal, Lignite, Coke, etc.

- Fuel Gases (including Coal gas, Producer gas, Water gas)

5. Power Generating Industries

6. Pulp and paper (including paper products) industries

7. Fertiliser Industries

- Nitrogenous

- Phosphatic

- Mixed

8. Cement Industries

- Portland Cement (including slag cement, puzzolona cement and their products)

9. Petroleum Industries

- Oil Refining

- Lubricating Oils and Greases

10. Petro-chemical Industries

11. Drugs and Pharmaceutical Industries

- Narcotics, Drugs and Pharmaceuticals

12. Fermentation Industries (Distilleries and Breweries)

13. Rubber (Synthetic) Industries

14. Paints and Pigment Industries

15. Leather Tanning Industries

16. Electro-plating Industries

17. Chemical Industries

– Coke Oven by-products and Coaltar Distillation Products

– Industrial Gases (nitrogen, oxygen, acetylene, argon, carbon-dioxide, hydrogen, sulphur-dioxide, nitrous oxide, halogenated hydro-carbon, ozone etc.)

– Industrial Carbon

- Alkalies and Acids

- Chromates and dichromates

- Leads and its compounds

- Electrochemicals (metallic sodium, potassium and magnesium, chlorates, perchlorates and peroxides)

- Electrothermal produces (artificial abrasive, calcium carbide)

- Nitrogenous compounds (cyanides, cyanamides and other nitrogenous compounds)

– Phosphorous and its compounds

- Halogens and Halogenated compounds (Chlorine, Fluorine, Bromine and Iodine)

– Explosives (including industrial explosives and detonators and fuses)

18. Insecticides, Fungicides, herbicides and other Pesticides Industries

19. Synthetic Resin and Plastics

20. Man-made Fibre (Cellulosic and non-cellulosic) Industry

21. Manufacture and repair of electrical accumulators

22. Glass and Ceramics

23. Grinding or glazing of metals

24. Manufacture, handling and processing of asbestos and its products

25. Extraction of oils and fats from vegetable and animal sources

26. Manufacture, handling and use of benzene and substances containing benzene

27. Manufacturing processes and operations involving carbon disulphide

28. Dyes and Dyestuff including their intermediates

29. Highly flammable liquids and gases.

————————–

1.   Ins. by Act 20 of 1987, sec. 45 (w.e.f. 1-12-1987).

Schedule. II

¹Schedule. II

[See section 41F]

PERMISSIBLE LEVELS OF CERTAIN CHEMICAL SUBSTANCES IN WORK ENVIRONMENT

1. Subs. by S.O. 170 (E), dated 2nd March, 1989.
2. Subs. by S.O. 342 (E), dated 19th April, 2001 (w.e.f. 19-4-2001).
* Lint-free dust as measured by the vertical clutricator cotton-dust sampler.

Schedule III

LIST OF NOTIFIABLE DISEASES

³Schedule III

[See sections 89 and 90]

1. Lead poisoning, including poisoning by any preparation or compound of lead or their sequelae.

2. Lead tetra-ethyl poisoning

3. Phosphorus poisoning or its sequelae.

4. Mercury poisoning or its sequelae.

5. Manganese poisoning or its sequelae.

6. Arsenic poisoning or its sequelae.

7. Poisoning by nitrous fumes.

8. Carbon disulphide poisoning.

9. Benzene poisoning, including poisoning by any of its homologues, their nitro or amido derivatives or its sequelae.

10. Chrome ulceration or its sequelae.

11. Anthrax.

12. Silicosis.

13. Poisoning by halogens or halogen derivatives of the hydrocarbons of the aliphatic series.

14. Pathological manifestations due to

(a) radium or other radio-active substances.

(b) X-rays.

15. Primary epitheliomatous cancer of skin.

16. Toxic anaemia.

17. Toxic jaundice due to poisonous substances.

²18. Oil acne or dermatitis due to mineral oils and compounds containing mineral oil base.

19. Byssionosis.

20. Asbestosis.

21. Occupational or contract dermatitis caused by direct contract with chemicals and paints. These are of two types, that is primary irritants and allergic sensitizers.

22. Noise induced hearing loss (exposure to high noise levels).

³23. Beriyllium poisoning.

⁴24. Carbon monoxide

25. Coal miners’ pnoumoconiosis.

26. Phosgene poisoning.

27. Occupational cancer.

28. Isocyanates poisoning.

29. Toxic nephirits.

—————

1.   The existing Schedule re-numbered as the Third  Schedule (w.e.f. 26-10-1976) by Act 20 of 1987, sec. 46 (w.e.f. 1-12-1987).

2.   Ins. by Act 94 of 1976, sec. 45 (w.e.f. 26-10-76).

3.   Ins. by Act 20 of 1987, sec. 46 (w.e.f. 1-12-1987).

4.   Subs. by S.O. 343 (E), dated 19th April, 2001 (w.e.f. 19-4-2001).

Information Technology Act

November 30, 2014

Section 1. Short title, extent, commencement and application. 

An Act to provide legal recognition for transactions carried out by means of electronic date interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternative to paper-based methods of communication and storage of information to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the India Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto;

WHEREAS the General Assembly of the United Nations by resolution A/RES/ 51/162, date 30th January 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law;

AND WHREAS the said resolution recommends, inter alia, that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper based methods of communication and storage of information;

AND WHEREAS it is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records;

BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-

(1) This Act may be called the Information Technology Act, 2000.

(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any or contravention thereunder committed outside India by any person.

(3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision.

(4) Nothing in this Act shall apply to-

(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, 1881 (26 of 1881);

(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882 (7 of 1882);

(c) a trust as defined in section 3 of the Indian Trusts Act, 1882 (2 of 1882);

(d) a will as defined in clause (h) of section (2) of the Indian Succession Act, 1925 (39 of 1925), including any testamentary disposition by whatever name called;

(e) any contract for the sale or conveyance of immovable property or any interest in such property;

(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette.

Section 2. Definitions. 

(1) In this Act, unless the context otherwise requires,- (a) “access”, with its grammatical variation and cognate expressions, means gaining entry into, instructing or communicating with the logical, arithmetical or memory function resources of a computer, computer system or computer network;

(b) “addressee” means a person who is intended by the originator to receive the electronic record but does not include any intermediary;

(c) “adjudicating officer” means an adjudicating officer appointed under sub-section (1) of section 46;

“affixing digital signature”, with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature;

“appropriate Government ” means as respects any matter- enumerated in List II of the Seventh Schedule to the Constitution;

relating to any State law enacted under List III of the Seventh Schedule to the Constitution,

the State Government and in any other case, the Central Government;

“asymmetric crypto system” means a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature;

“Certifying Authority” means a person who has been granted a licence to issue a Digital Signature Certificate under section 24;

“certification practice statement” issued by a Certifying Authority to specify the practices that the Certifying Authority employs in issuing Digital Signature Certificates;

“computer” means electronic, magnetic, optical or other high-speed date processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or relates to the computer in a computer system or computer network;

“computer network” means the inter-connection of one or more computers through-

(i) the use of satellite, microwave, terrestrial lime or other communication media; and

(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;

“computer resources” means computer, computer system, computer network, data, computer database or software;

“computer system” means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable being used in conjunction with external files which contain computer programmes, electronic instructions, input data and output data that performs logic, arithmetic, data storage and retrieval, communication control and other functions;

“Controller” means the Controller of Certifying Authorities appointed under sub-section (1) of section 17’

“Cyber Appellate Tribunal” means the cyber Regulations Appellate Tribunal established under sub-section (1) of section 48;

“data” means a representation of information, knowledge, facts, concepts or instruction which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

“digital signature” means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3;

“Digital Signature Certificate ” means a Digital Signature Certificate issued under sub-section (4) of section 35;

“electronic from”, with reference to information. Means, any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;

“Electronic Gazette” means Official Gazette published in the electronic form;”electronic record” means date, record or date generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;

“function”, in relation to a computer, includes logic, control, arithmetical process, deletion, storage and retrieval and retrieval and communication or telecommunication from or within a computer;

“information’ includes data, taxt, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche;

“intermediary” with respect to any particular electronic message, means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;

“key pair”, in an asymmetric crypto system, means a private key and its mathematically related public key., which are so related that the public key can verify a digital signature created by the private key;

“law” includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President under article 240, Bills enacted as President’s Act under sub-clause (a) of clause (1) of article 375 of the Constitution and includes rules, regulations, bye-laws and order issued or made thereunder;

“licence” means a licence granted to a Certifying Authority under section 24;

(za) “originator” means a licence granted to a Certifying Aauthority under section 24;

(zb) “prescribed” means prescribed by rules made under the Act;

(zc) “private key” means the key of a key pair used to create a digital signature;

(zd) “public key” means the key of a key pair used to verify a digital

signature and listed in the Digital Signature Certificate;

(ze) “secure system” means computer hardware, software and procedure that-

(a) are reasonably secure from unauthorised access and misuses;

(b) provide a reasonable level of reliability and correct operation;

(c) are reasonably suited to performing the intended functions; and

(d) adhere to generally accepted security procedures;

(zf) “security procedure” means the security procedure prescribed under section 16 by the Central Government;

(zg) “subscriber” means a person in whose name the Digital Signature Certificate is issued;

(zh) “verify”, in relation to a digital signature, electronic record or public key, with its grammatical variations and cognate expressions, means to determine whether- (a) the initial electronic record was affixed with the digital signature by the sue of private key corresponding to the public key of the subscriber;

(b) the initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.

(2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.

Chapter II Digital Signature

Section 3. Authentication of electronic records. 

(1) Subject to the provisions of this section, any subscriber may authenticate an electronic record by affixing his digital signature.

(2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record.

Explanation.- For the purposes of this sub-section, “hash function” means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known as “hash result” such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible-

(a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm;

(b) that two electronic records can produce the same hash result using algorithm.

(3) Any person by the use of a public key of the subscriber can verify the electronic record.

(4) The private key and the public key are unique to the subscriber and constitute a functioning key pair.

Chapter III – Electronic Governance

Section 4. Legal recognition of electronic records 

Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-

(a) rendered or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference.

Section 5. Legal recognition of digital signatures. 

Where any lay provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.

Explanation.- For the purposes of this section, “signed”, with its

grammatical variations and cognate expressions, shall, with reference to a person, means affixing of his hand written signature or any mark on any document and the expression “signature” shall be construed accordingly.

Section 6. Use of electronic records and digital signatures in Government and its agencies. – (1) Where any law provides for

(a) the filing of any form, application or any other document with any office authority, body for agency owned or controlled by the appropriate Government in a particular manner;

(b) the issue or grant of any licence, permit. Sanction or approval by whatever name called in a particular manner;

(c) the receipt or payment of money in a particular manner, the, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case be, is effected by means of such electronic form as may be prescribed by the appropriate Government.

(2) The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe-

(a) the manner and format in which such electronic records shall be filed, created or issued;

(b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic record clause (a).

Section 7. Retention of electronic records.

(1) Where any law provides that documents, records or information shall be retained for any specific period, the, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-

(a) the manner and format therein remains accessible so as to be usable for a subsequent reference;

(b) the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received;

(c) the details which will facilitate the identification of the origin,

destination, date and time of dispatch or receipt of such electronic record:

Provided that this clause does not apply to any information which is automatically generated solely for the purpose of enabling a record to be dispatched or received.

(2) Nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records.

Section 8. Publication of rule, regulation, etc., in Electronic Gazette.

Where any law provides that any rule, regulation, order, bye-law, notification or any6 other matte shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette:

Provided that where any rule, regulation, order, by-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.

Section 9. Section 6, 7 and 8 not to confer right to insist document should be accepted in electronic form.

Nothing contained in section 6, 7 and 8 shall be confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.

Section 10. Power to make rules by Central Government in respect of digital signature.

The Central Government may, for the purposes of this Act, by rules, prescribe-

(a) the type of digital signature;

(b) the manner and format in which the digital signature shall be affixed;

(c) the manner or procedure which facilitates identification of the person

affixing the digital signature;

(d) control processes and procedures to ensure adequate integrity, security and confidentiality of electronic records or payments; and

(e) any other matter which is necessary to give legal effect to digital signatures.

Chapter IV – Attribution, Acknowledgement and Despatch of Electronic records

Section 11. Attribution of electronic records.

An electronic record shall be attributed to the originator,-

(a) if it was sent by the originator himself;

(b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or

(c) by an information system programmed by or on behalf of the originator to operate automatically.

Section 12. Acknowledge of receipt.

(1) Where the originator has not agreed with the addressee that the acknowledgement of receipt of electronic record be given in a particular form or by a particular method, an acknowledgement may be given by-

(a) any communication by the addressee, automated or otherwise; or

(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.

Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgement of such electronic record by him, then, unless acknowledgement has been so received, the electronic record shall be deemed to have been never sent by the originator.

Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgement has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then, the originator may give notice to the addressee stating that no acknowledgement has been received by him and specifying a reasonable time by which he acknowledgement must be received by him and if no acknowledgement is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as tough it has never been sent.

Section 13. Time and place of despatch and receipt of electronic record. 

(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resources outside the control of the originator.;

Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:- the addressee has designated a computer resource for the purpose of receiving electronic record,- receipt occurs at the time when the electronic record enters the designated computer resources; or

if the electronic record is spent to a computer resources of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;

if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.

Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be received at the place where the addressee has his place of business.

The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3).

For the purpose of this section.- if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business;

if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business;

“usual place of residence “, in relation to a body corporate, means the place where it is registered.

Chapter V – Secure Electronic records and secure digital signatures

Section 14. Secure electronic record.

Where any security procedure has been applied to an electronic record at a specific point of time, then such record shall be deemed to be a secure electronic record from such point of time to the time of verification.

Section 15. Secure digital signature.

If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was –

(a) unique to the subscriber affixing it;

(b) capable of identifying such subscriber;

(c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which related in such a manner that if the electronic record was altered the digital signature would be invalidated, then such digital signature shall be deemed to be a secure digital signature.

Section 16. Security procedure.

The Central Government shall, for the purpose of this Act, prescribe the security procedure having regard to commercial circumstances prevailing at the time when the procedure was used, including-

(a) the nature of the transaction;

(b) the level of sophistication of the parties with reference to their technological capacity;

(c) the volume of similar transactions engaged in by other parties;

(d) the availability of alternatives offered to but rejected by any party;

(e) the cost of alternative procedures; and

(f) the procedures in general use for similar types of transaction or communications.

Chapter VI – Regulation of Certifying Authorities

Section 17. Appointment of Controller and other officers. 

(1) The Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of this Act and may, also by the same or subsequent notification, appoint such number of Deputy Controllers and Assistant Controllers as it deems fit.

(2) The Controller shall discharge his functions under this Act subject to the general control and directions of the Central Government.

(3) The Deputy Controllers and Assistant Controllers shall perform functions assigned to them by the Controller under the general superintendence and control of the Controller.

(4) The qualifications, experience and terms and conditions of service of Controller, Deputy Controllers and Assistant Controller shall be such as may be prescribed by the Central Government.

(5) The Head Office and Branch Officer of the officer of the Controller shall be at such places as the Central Government may specify, and these may be established at such places as the Central Government may think fit.

(6) There shall be a seal of the Office of the Controller.

Section 18. Functions of Controller. 

The Controller may perform all or any of the following function, namely:-

(a) exercising supervision over the activities of Certifying Authorities;

(b) certifying public keys of the Certifying Authorities;

(c) laying down the standards to be maintained by Certifying Authorities;

(d) specifying the qualifications and experience which employees of the Certifying Authorities should possess;

(e) specifying the conditions subject to which the Certifying Authority shall conduct their business;

(f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a Digital Signature Certificate and the public key;

(g) specifying the form and content of a Digital Signature Certificate and the key;

(h) specifying the form the manner in which accounts shall be maintained by the Certifying Authorities;

(i) specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;

(j) facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such system;

(k) specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;

(l) resolving any conflict of interests between the Certifying Authorities and the subscribers;

(m) laying down the duties of the Certifying Authorities;

(n) maintaining a data-base containing the disclosure record of ever Certifying Authority containing such particulars as may be specified by regulations which shall be accessible to public.

Section 19. Recognition of foreign Certifying Authorities. 

(1) Subject to such conditions and restrictions as may be specified, by regulations, the Controller may, with the previous approval of the Central Government, and by notification in the Official Gazette, recognise any Certifying Authority as a Certifying Authority for the purposes of this Act.

(2) Where any Certifying Authority is recognised under sub-section (1), the Digital Signature Certificate issued by such Certifying Authority shall be valid for the purposes of this Act.

(3) The Controller may if he is satisfied that any Certifying Authority has contravened any of the conditions and restrictions subject to which it was granted recognition under sub-section (1), he may, for reasons to be recorded in writing, by notification in the Official Gazette, revoke such recognition.

Section 20. Controller to act as repository. 

(1) The Controller shall be the repository of all Digital Signature Certificates issued under this Act.

(2) The Counter shall- (a) make use of hardware, software and procedures that are secure from intrusion and misuse;

(b) observe such other standards as may be prescribed by the Central Government.

To ensure that the secrecy and security of the digital signatures are assured.

(3) The Controller shall maintain a computerised data-base of all public keys in such a manner that such database and the public keys are available to any member of the public.

Section 21. Licence tissue Digital Signature Certificates. 

(1) Subject to the provisions of sub-section (2), any person may make an application to the Controller for a licence to issue Digital Signature Certificates.

(2) No licence shall be issued under sub-section (1), unless the applicant fulfills such requirements with respect to qualification, expertise, manpower, financial resources and other infrastructure facilities, which are necessary to issue Digital Signature Certificates as may be prescribed by the Central Government.

(3) A licence granted under this section shall- (a) be valid for such period as may be prescribed by the Central Government;

(b) not be transferable or heritable;

(c) be subject to such terms and conditions as may be specified by the regulations.

Section 22. Application for licence. 

(1) Every application for issue of a licence shall be in such form as may be prescribed by the Central Government.

(2) Every application for issue of a licence shall be accompanied by- (a) a certification practice statement;

(b) a statement including the procedures with respect to identification of the applicant;

(c) payment of such fees, not exceeding twenty-five thousand rupees as may be prescribed by the Central Government;

(d) such other documents, as may be prescribed by the Central Government.

Section 23. Renewal of licence 

An application for renewal of a licence shall be- (a) in such form;

(b) accompanied by such fees, not exceeding five thousand rupees, as may be prescribed by the Central Government and shall be made not less than forty-five days before the date of expiry of the period of validity of the licence.

Section 24. Procedure for grant or rejection of licence.

The Controller may, on receipt of an application under sub-section (1) of section 21, after considering the documents accompanying the application and such other factor, as he deems fit, grant the licence or reject the application:

Provided that no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case.

Section 25. Suspension of licence. 

(1) The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a Certifying Authority has-

(a) made a statement in, or in relation to, the application for the issue or renewal of the licence, which is incorrect or false in material particulars;

(b) failed to comply with the terms and conditions subject to which the licence was granted;

(c) failed to maintain the standards specified under clause (b) of sub-section (2) of section 20;

(d) contravened any provisions of this Act, rule, regulations or order made revoke the licence;

Provided that no licence shall be revoked unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed revocation.

(2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence pending the completion of any enquiry ordered by him:

Provided that no licence shall be suspended for a period exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed suspension:

Section 26. Notice of suspension revocation of licence.

(1) Where the licence of the Certifying Authority is suspended or revoked, the Controller shall publish notice of such suspension or revocation, as the case may be, in the database maintained by him.

(2) Where one or more repositories are specified, the Controller shall publish notices of such repositories:

Provided that the database containing the notice of such suspension or revocation, as the case may be, shall be made available through a web site which shall be accessible round the clock:

Provided further that the Controller may, if he considers necessary, publicise the contents of database in such electronic or other media, as the may consider appropriate.

Section 27. Power to delegate 

The Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to exercise any of the provisions of this Act, rules or regulations made thereunder.

Section 28. Power to investigate contraventions. 

(1) The Controller or any officer authrised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder.

(2) The controller or any officer authorised by him in this behalf shall exercise the like powers which are conferred on Income-tax authorities under Chapter XIII of the Income-tax Act, 1961, (43 of 1961), and shall exercise such powers, subject to such limitations laid down under that Act.

Section 29. Access to computers and data. 

(1) Without prejudice to the provisions of sub-section (1) of section 68, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder their has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or data contained in or available to such computer system.

(2) For the purposes of sub-section (1), the Controller or any person authorised by him may, by order, direct any person in charge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.

Section 30. Certifying Authority to follow certain procedures.

Every Certifying Authority shall,-

(a) make use of hardware, software, and procedures that the secure from intrusion and misuse;

(b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions;

(c) adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured; and

(d) observe such other standards as may be specified by regulations.

Section 31. Certifying Authority to ensure compliance of the Act, etc.

Every Certifying Authority shall ensure that every person employed or otherwise engaged by it complies in the course of his employment or engagement, with the provisions of this Act, rules regulations or orders made thereunder.

Section 32. Display of licence.

Every Certifying Authority shall display its licence at a conspicuous place of the premises in which it carries on its business.

Section 33. Surrender of licence. 

(1) Every Certifying Authority whose licence is suspended or revoked shall immediately after such suspension or revocation, surrender the licence to the Controller.

(2) Where any certifying authority fails to surrender a licence under sub-section (1), the person in whose favour a licence is issued, shall be guilty of an offences and shall be punished with imprisonment which may extend upto six months or a fire which may extend upto ten thousand rupees or with both

Section 34. Disclosure. 

(1) Every Certifying Authority shall disclose in the manner specified by regulations.-

(a) Its Digital Signature Certificate which contains the public key corresponding to the private key used by that Certifying Authority to digitally sign another Digital Signature Certificate;

(b) and certification practice statement relevant thereto;

(c) notice of the revocation or suspension of its Certifying Authority certificate if any; and

(d) any other fact that materially and adversely affects either the reliability of a Digital Signature Certificate, which that Authority has issued, or the Authority’s ability to perform its services.

(2) Where in the opinion of the Certifying Authority any event has occurred or any situation has arisen which may materially and adversely affect the integrity of its computer system or the conditions subject to which a Digital Signature Certificate was granted, then, the Certifying Authority shall-

(a) use reasonable efforts to notify any person who is likely to be affected by that occurrence: or

(b) act in accordance with the procedure specified in its certification practice statement to deal with such event or situation.

Chapter VII – Digital Signature Certificates

Section 35. Certifying authority to issue Digital Signature Certificate. 

(1) Any person may make an application to the Certifying Authority for the issue of a Digital Signature Certificate in such form as may be prescribed by the Central Government.

(2) Every such application shall be accompanied by such fee not exceeding twenty-five thousand rupees as may be prescribed by the Central Government, to be paid to the Certifying Authority:

Provided that while prescribing fees under sub-section (2) different fees may be prescribed for different classes of applicants.

Every such application shall be accompanied by a certification practice statement or where there is no such statement, a statement containing such particulars, as may be specified by regulations.

On receipt of an application under sub-section (1), the Certifying Authority may, after consideration of the certification practice statement or the other statement under sub-section (3) and after making such enquiries as it may deem fit, grant the Digital Signature Certificate or for reasons to be recorded in writing, reject the application:

Provided that no Digital Signature Certificate shall be granted unless the Certifying Authority is satisfied that-

the applicant holds the private key corresponding to the public key to be listed in the Digital Signature Certificate;

the applicant holds a private key, which is capable of creating a digital signature;

the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the applicant:

Provided further that no application shall be rejected unless the applicant has been given a reasonable opportunity of showing cause against the proposed rejection.

Section 36. Representations upon issuance Digital Signature Certificate. 

A Certifying Authority while issuing a Digital Signature Certificate shall certify that- it has complied with the provisions of this Act and the rules and regulations made there under;

it has published the Digital Signature Certificate or otherwise made it available to such person relying on it and the subscriber has accepted it;

the subscriber holds the private key corresponding to the public key, listed in the Digital Signature Certificate;

the subscriber’s public key and private key constitute a functioning key pair;

the information contained in the Digital Signature Certificate is accurate; and

it has no knowledge of any6 material fact, which if it had been included in the Digital Signature Certificate would adversely affect the reliability of the representations in clauses (a) to (d).

Section 37. Suspension of Digital Signature Certificate. 

(1) Subject to the provisions of sub-section (2), the Certifying Authority which has issued a Digital Signature Certificate may suspend such Digital Signature Certificate.- on receipt of a request to that effect from-

the subscriber listed in the Digital signature Certificate; or

any person duly authorised to act on behalf of that subscriber;

if it is of opinion that the Digital Signature Certificate should be suspended in public interest.

A Digital Signature Certificate shall not be suspended for a period exceeding fifteen days unless the subscriber has been given an opportunity of being heard in the matter.

On suspension of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.’

Section 38. Revocation of Digital Signature Certificate. 

(1) A Certifying Authority may revoke a Digital Signature Certificate issued by it-

where the subscriber or any other person authorised by him makes a request to that effect; or

upon the death of the subscriber; or

upon the dissolution of the firm or winding up of the company where the subscriber is a firm or a company.

Subject to the provisions of sub-section (3) and without prejudice to the provisions of sub-section (1), a Certifying Authority may revoke a Digital Signature Certificate which has been issued by it at any time, if it is of opinion that-

a material fact represent in the Digital Signature Certificate is false or had been concealed;

a requirement for issuance of the Digital Signature Certificate was not satisfied;

the Certifying Authority’s private key of security system was compromised in a manner materially affecting the Digital Signature Certificate’s reliability;

the subscriber has been declared insolvent or dead or where a subscriber is a firm or a company, which has been dissolved, wound-up or otherwise ceased to exist.

A Digital Signature Certificate shall not be revoked unless the subscriber has been given an opportunity of being heard in the matter.

On revocation of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.

Section 39. Notice of suspension or revocation. 

(1) Where a Digital Signature Certificate is suspended or revoked under section 37 or section 38, the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in the repository specified in the Digital Signature Certificate for publication of such notice.

Where one or more repositories are specified the Certifying Authority shall publish notices of such suspension or revocation, as the case may be, in all such repositories.

Chapter VIII – Duties of Subscribers

Section 40. Generating key pair.

Where any Digital Signature Certificate the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, the, the subscriber shall generate the key pair by applying the security procedure.

Section 41. Acceptance of Digital Signature Certificate. 

(1) A subscriber shall deemed to have accepted a Digital Signature Certificate is the publishes or authorises the publication of a Digital Signature Certificate- to one or more person;

in a repository; or otherwise demonstrates his approval of the Digital Signature Certificate in any manner.

By accepting a Digital Signature Certificate the subscriber certifies to all who reasonable rely on the information contained in the Digital Signature Certificate that—

the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to h old the same;

all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true;

all information in the Digital Signature Certificate that is writing the knowledge of the subscriber is true.

Section 42. Control of private key. 

(1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure to a person not authorised to affix the digital signature of the subscriber.

If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by the regulations.

Explanation:- For removal of doubts, it is hereby declared that the subscriber shall be liable till he has informed the certifying Authority that the private key has been compromised.

Chapter IX – Penalties and Adjudication

Section 43. Penalty for damage to computer, computer system, etc.

If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,- accesses or secures access to such computer, computer system or computer network downloads, copies or extracts any data, computer data base information from such computer, computer system or computer network including information or data held or stored in any removable storage medium.

Introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;

damages or causes to be damaged and computer, computer system or computer network, data, computer database or any other programmes residing in such computer, computer system or computer network;

disrupts or causes disruption of any computer, computer system or computer network;

denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;

provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;

charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system or compute network he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.

Explanation.-For the purposes of this section.- (i) “computer contaminant” means any set of computer instructions that are designed –

(a) to modify, destroy, record, transmit date or programme residing within a computer, computer system or computer network; or

(b) by any means to usurp the normal operation of the computer, compute system, or computer network;

(ii) “computer database” means a representation of information,

knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepare in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;

(iii) “computer virus” means any computer instruction, information, data or programme that destroys, damages, degrades adversely affects the performance of a computer resources or attaches itself to another itself to another computer resources and operates when a programme, date or instruction is executed or some other even takes place in that computer resource;

(iv) “damage” means to destroy, alter, delete, add, modify or re-arrange any computer resource by any means.

Section 44. Penalty for failure to furnish information, return, etc.

If any person who is required under this Act or any rules or regulations made thereunder to- (a) furnish any document, return or report to the Controller or the Certifying Authority fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;

(b) file any return or furnish any information, books or other documents within the time specified therefor in the regulations fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues;

(c) maintain books of account or records fails to maintain the same, he shall be liable to a penalty no exceeding ten thousand rupees for every day during which the failure continues.

Section 45. Residuary penalty.

Whoever contravenes any rules or regulations made under this Act, for the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.

Section 46. Power to adjudicate. 

(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central

Government shall, subject to the provisions of sub section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government .

(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.

(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the filed of Information Technology and legal or judicial experience as may be prescribed by the Central Government.

(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.

(5) Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section (2) of section 58, and-

(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of section 193 and 228 of the Indian Penal Code (45 of 1860);

(b) shall be deemed to be a civil court for the purpose of section 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 47. Factors to be taken into account by the adjudicating officer. 

While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely:-

(a) the amount of gain of unfair advantage, whenever quantifiable, made as a result of the default;

(b) the amount of loss caused to any person as a result of the default;

(c) the repetitive nature of the default.

Chapter X – The Cyber Regulations Appellate Tribunal

Section 48. Establishment of Cyber Appellate Tribunal. 

(1) The Central Government shall, by notification, establish one or more appellate tribunals to be known as the Cyber Regulations Appellate Tribunal.

(2) The Central Government shall also specify, in the notification referred to in sub-section (1), the matters and places in relation to which the Cyber Appellate Tribunal may exercise jurisdiction.

Section 49. Composition of Cyber Appellate Tribunal.

A cyber Appellate Tribunal shall consist of one person only (hereinafter referred to as the Presiding Officer of the Cyber Appellate Tribunal) to be appointed, by notification, by the Central Government.

Section 50. Qualifications for appointment as Presiding Officer of the Cyber Appellate Tribunal. 

A person shall not be qualified for appointment as the Presiding Officer of a Cyber Appellate Tribunal unless he-

(a) is, or has been, or is qualified to be, a Judge of a High Court; or

(b) is, or has been, a member of the Indian Legal Service and is holding or has held a post in Grade I of that Service for at least three years.

Section 51. Term of office. 

The Presiding Officer of a Cyber Appellate Tribunal shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of sixty-five years whichever is earlier.

Section 52. Salary , allowance and other terms conditions of service of Presiding Officer.

The salary and allowances payable to, and the other terms and conditions of service including pension, gratuity and other retirement benefits of, the Presiding Officer of a Cyber Appellate Tribunal shall be such as may be prescribed:

Provided that neither the salary and allowances nor the other terms and conditions of service of the Presiding Officers shall be varied to his disadvantage after appointment.

Section 53. Filling up of vacancies. 

If, for reason other than temporary absence, any vacancy occurs in the office of the Presiding Officer of a Cyber Appellate Tribunal, then the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Cyber appellate Tribunal from the state at which the vacancy is filled.

Section 54. Resignation and removal. 

(1) The Presiding Officer of a Cyber Appellate Tribunal may, by notice in writing under his hand addressed to the Central Government, resign his office:

Provided that the said Presiding Officer shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.

(2) The Presiding Officer of a Cyber Appellate Tribunal shall not be removed from his office except by an order by the Central Government on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which the Presiding Officer concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.

(3) the Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the aforesaid Presiding Officer.

Section 55. Orders constituting Appellate Tribunal to be final and not to invalidate its proceedings. 

No order of the Central Government appointing any person as the Presiding Officer of a Cyber Appellate Tribunal shall be called in question in any manner and no act or proceeding before a Cyber Appellate Tribunal shall be called in question in any manner on the ground merely of any defect in the constitution of Cyber Appellate Tribunal.

Section 56. Staff of the Cyber Appellate Tribunal. 

(1) The Central Government shall provide the Cyber Appellate Tribunal with such officers and employees as that Government may think fit.

(2) The officers and employees of the Cyber Appellate Tribunal shall discharge their functions under general superintendence of the Presiding Officer.

(3) The salaries any allowances and other conditions of service of the officers and employees of the Cyber Appellate Tribunal shall be such as may be prescribed by the Central Government.

Section 57. Appeal to Cyber Regulations Appellate Tribunal. 

(1) Save as provided in sub-section (2), any person aggrieved by an order made by controller or an adjudicating officer under this Act may prefer an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter.

(2) No appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties.

(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved and it shall be in such form and be accompanied by such fee as may be prescribed;

Provided that the Cyber Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an appeal under sub-section (1), the Cyber Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(5) the Cyber Appellate Tribunal shall send a copy of every order made by it to the parties tot he appeal and to the concerned controller or adjudicating officer.

(6) The appeal filed before the Cyber Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within sic months from the date of receipt of the appeal.

Section 58. Procedure and powers of the Cyber Appellate Tribunal. 

(1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings.

(2) The Cyber Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents or other electronic records;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) any other matter which may be prescribed.

(3) Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228, and for the purposes of section 196 of the Indian Penal Code(45 of 1860) and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

Section 59. Right to legal representation. 

The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to present his or its case before the Cyber Appellate Tribunal.

Section 60. Limitation. 

The provisions of the Limitation Act, 12963f (36 of 1963), shall, as far as may be, apply to an appeal made to the Cyber Appellate Tribunal.

Section 61. Civil court not to have jurisdiction. 

No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

Section 62. Appeal to High Court. 

Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order:

Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to filed within a further period not exceeding sixty days.

Section 63. Compounding of contraventions. 

(1) Any contravention under this Chapter may, either before or after the institution of adjudication proceedings, be compounded by the Controller or such other officer as may be specially authorised by him in this behalf or by the adjudicating officer, as the case may be, subject to such conditions as the Controller or such other officer or the adjudicating officer, as the case may be, subject to such conditions as the Controller or such other officer or the adjudicating officer may specify.

Provided that such sum shall not, in any case, exceed the maximum amount of the penalty which may be imposed under this Act for the contravention so compounded.

(2) Nothing in sub-section (1) shall apply to a person who commits the same or similar contravention within a period of three years form the date on which the first contravention, committed, by him, was compounded.

Explanation:- For the purposes of this sub-section, any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.

(3) Where any contravention has been compounded under sub-section(I), no proceeding or further proceeding, or further proceeding, as the case may be, shall be taken against the person guilty of such contravention in respect of the contravention so compounded.

Section 64. Recovery of penalty. 

A penalty imposed under this Act, if it is not paid shall be recovered as an arrear of land revenue and the licence or the Digital Signature Certificate, as the case may be, shall be suspended till the penalty is paid.

Chapter XI – Offences

Section 5. Tampering with computer source documents. 

Whoever knowingly or intentionally conceals, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

Explanation – For the purposes of this section, “computer source code” means the listing of programmes, compute commands, design and layout and programme analysis of computer resource in any form.

Section 66. Hacking with Computer System. 

(1) Whoever with the intent of cause or knowing that is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hacking.

(2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

[ Section 66 A Punishment for sending offensive messages through communication service, etc.

( Introduced vide ITAA 2008)
Any person who sends, by means of a computer resource or a communication device,
–
a) any information that is grossly offensive or has menacing character; or
b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the or igin of such messages (Inserted vide ITAA 2008) shall be punishable with imprisonment for a term which may extend to two three years and with fine.
Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message]

[ Section 66 B Punishment for dishonestly receiving stolen computer resource or communication device (Inserted Vide ITA 2008)

Section 67. Publishing of information which is obscene in electronic form.

Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

Section 68. Power of the Controller to give directions. 

(1) The Controller may, by order, direct a Certifying Authority or any employee of such Authority to take such measures or cease carrying on such activities as specified in the order if those are necessary to ensure compliance with the provisions of this Act, rules or any regulations made thereunder.

(2) Any person who fails to comply with any order under sub-section (1) shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding three years or to a fine not exceeding two lakh rupees or to both.

Section 69. Directions of Controller to a subscriber to extend facilities to decrypt information. 

(1) If the Controller is satisfied that it is necessry or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.

(2) The subscriber or any person in charge of the computer resource shall, when called upon by any agency which has been directed under sub-section (1), extend all facilities and technical assistance to decrypt the information.

(3) The subscriber or any person who fails to assist the agency referred to in sub-section (2) shall be punished with an imprisonment for a term which may extend to seven years.

Section 70. Protected system.

(1) The appropriate Government may, by notification in the Official Gazette, declare that any computer, computer system or computer network to be a protected system.

(2) The appropriate Government may, by order in writing, authorise the persons who are authorised to access protected systems notified under sub-section.

(3) Any person who secures access or attempts to secure access to a protected system in contravention of the provisions of this section shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Section 71. Penalty for misrepresentation.

Whoever makes any misrepresentation, to, or suppresses any material fact from, the Controller or the Certifying Authority for obtaining any licennce or Digital Signature Certificate, as the case may be, shall be punished with imprisonment for a terms which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 72. Breach of confidentiality and privacy.

Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 73. Penalty for publishing Digital Signature Certificate false in certain particulars. 

(1) No person shall publish a Digital Signature Certificate or otherwise make it available to any other person with the knowledge that-

(a) the Certifying Authority listed in the certificate has not issued it; or

(b) the subscriber listed in the certificate has not accepted it; or

(c) the certificate has been revoked or suspended, unless such publication is for the purposes of verifying a digital signature created prior to such suspension or revocation.

(2) Any person who contravenes the provisions of sub-section (1) shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 74. Publication for fraudulent purpose. 

Whoever knowingly creates, publishes or otherwise makes available a Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

Section 75. Act to apply for offence or contravention committed outside India. 

(1) Subject to the provision of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

(2) For the purposes of sub-section(1), this act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting located in India.

Section 76. Confiscation. 

Any computer, computer system, floppies, compact disks, tape drives or nay other accessories related thereto, in respect of the if which any provision of this Act, rule, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation:

Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules, orders or regulations made thereunder, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorised by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made thereunder as it may think fit.

Section 77. Penalties and confiscation not to interfere with other punishments. 

No penalty imposed or confiscation made under this Act shall prevent the imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force.

Section 78. Power to investigate offence. 

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a police officer not below the rank of Deputy Superintendent of Police shall investigate any offence under this Act.

Chapter XII – Network service providers not to be liable in certain cases

Section 79. Network service providers not to be liable in certain cases. 

For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence for contravention.

Explanation- For the purposes of this section,- (a) “network service provider” means an intermediary;

(b) “third party information” means any information dealt with by a network service provider in his capacity as an intermediary.

Chapter XIII – Miscellaneous

Section 80. Power of police officer and other officers to enter, search, etc. 

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 any police officer, not below the rank of a Deputy Superintendent of Police or any other officer of the Central Government or a State

Government auithorised by the Central Government in this behalf may enter any public place and search and the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act.

Explanation:- For the purposes of this sub-section, the expression “public place” includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public.

(2) Where any person is arrested under sub-section (1) by an officer other than a police officer, such officer shall, without unnecessary delay, take or sent the person arrest before a magistrate having jurisdiction in the case or before the officer-in-charge of a police station.

(3) The provisions of the Code of Criminal Procedure, 1973 shall, subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest, made under this section.

Section 81. Act to have overriding effect. 

The provisions of this Act shall have effect notwithstanding anything consistent therewith contained in any other law for the time being in force.

Section 82. Controller, Deputy Controller and Assistant Controllers to be public servants. 

The Presiding Officer and other officer and employees of a Cyber appellate Tribunal, the Controller, the Deputy Controller and the Assistant Controllers shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 83. Power to give directions.

The Central Government may give directions to any State Government as to the carrying into execution in the State of any of the provisions of this Act or of any rule, regulation or order made thereunder.

Section 84. Protection of action taken in good faith. 

No suit, prosecution or other legal proceeding shall lie against the Central Government, the State government, the Controller or any person acting on behalf of him, the Presiding Officer , adjudicating officers and the staff of the Cyber Appellate Tribunal for anything which is in good faith done or intended to be done in pursuance of this Act or any rule, regulation or order made thereunder.

Section 85. Offences by companies. 

(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place 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 director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

Explanation.-For the purposes of this section- (a) “company” means and body corporate and includes a firm or other association of individuals; and

(b) “directors”, in relation to a firm, means a partner in the firm.

Section 86. Removal of difficulties. 

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty;

Provide that no order shall be made under this section after the expiry of a period of two years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

Section 87. Power of Central Government to make rules. 

(1) The Central Government may, by notification in the Official Gazette and in the Electronic Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matter, namely:-

(a) the manner in which any information or matter may be authenticated by means of digital signature under section 5;

(b) the electronic form in which filing, issue, grant or payment shall be effected under sub-section (1) of section 6

(c) the manner and format in which electronic records shall be filed, or issued and the method of payment under sub-section (2) of section 6;

(d) the matters relating to the type of digital signature, manner and format in which it may be affixed under section 10;

(e) the security procedure for the purpose of creating secure electronic record and secure digital signature under section 16;

(f) the qualifications, experience and terms and conditions of service of controller, Deputy Controllers and Assistant Controller under section 17;

(g) other standards to be observed by the Controller under clause (b) of sub-section (2) of section 20;

(h) the requirements which an applicant must fulfil under sub-section (2) of section 21;

(i) the period of validity of licence granted under clause (a) of sub-section (3) of section 21;

(j) the form in which an application for licence may be made under sub-section 22;

(k) the amount of fees payable under clause (c)of sub-section (2)o of section 22;

(l) such other documents which shall accompany an application for licence under clause (d) of sub-section (2) of section 22;

(m) the form and the fee for renewal of a licence and the fee payable thereof under section 23;

(n) the amount of late fee payable under the proviso to section 23;

(o) the form in which application for issue of a Digital Signature Certificate my be made under sub-section (1) of section35;

(p) the fee to be paid to the Certifying Authority for issue of a Digital Signature Certificate under sub-section (2) of section 35;

(q) the manner in which the adjudicating officer shall hold inquiry under sub-section (1) of section 46;

(r) the qualification and experience which the adjudicating officer shall possess under sub-section (2) of section 46;

(s) the salary, allowances and the other terms and conditions of service of the Presiding Officer under section 52;

(t) the procedure for investigation of misbehaviour or incapacity of the Presiding Officer under sub-section (3) of section 54;

(u) the salary and allowances and other conditions of service of other officers and employees under sub-section (3) of section 56;

(v) the form in which appeal may be filed and the fee thereof under sub-section (3) of section 57;

(w) any other power of a civil court required to be prescribed under clause (g) of sub-section (2) of section 58; and

(x) any other matter which is required to be, or may be, prescribed.

(3) Every notification made by the Central Government under clause (f) of sub-section (4) of section 1 and every rule made by it shall be laid, as soon as may be after it is made, before each House of Parliament , while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or the rule or both Houses agree that the notification or the rule should not be made, the notification or the rule shall thereafter have effect only in 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 validity of anything previously done under that rule.

Section 88. Constitution of Advisory Committee. 

(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute a Committee called the Cyber Regulations Advisory Committee.

(2) The Cyber Regulations Advisory Committee shall consist of a Chairperson and such number of other official and non-official members representing the interests principal affected or having special knowledge of the subject-matter as the Central Government may deem fit.

(3) The Cyber Regulations Advisory Committee shall advise-

(a) the Central Government either generally as regards any rules or for any other purpose connected with this Act.

(4) There shall be paid to the non-official members of such Committee such traveling and other allowances as the Central Government may fix.

Section 89. Power of Controller to make regulations. 

(1) The Controller may, after consultation with the Cyber Regulations Advisory Committee and with the previous approval of the Central Government, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:-

(a) the particulars relating to maintenance of data-base containing the disclosure record of every Certifying Authority under clause (m) of section 18;

(b) the conditions and restrictions subject to which the Controller may recoginse any foreign Certifying Authority under sub-section (1) of section 19;

(c) the terms and conditions subject to which a licence may be granted under clause (c) of sub-section (3) of section 21;

(d) other standards to be observed by a Certifying Authority under clause (d) of section 30;

(e) the manner in which the Certifying shall disclose the matters specified in sub-section (1) of section 34;

(f) the particulars of statement which shall accompany an application under sub-section (3) of section 35.

(g) the manner by which the subscriber communicate the compromise of private key to the Certifying Authority under sub-section (2) of section 42.

(3) Every regulations made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in 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 validity of anything previously done under that regulation.

Section 90. Power of State Government to make rules. 

(1) The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the electronic form in which filing, issue, grant, receipt or payment shall be effected under sub-section (1) of section 6;

(b) for matters specified in sub-section (2) of section 6;

(c) any other matter which is required to be provided by rules by the State Government.

(3) Every rule made by the State Government under this section shall be laid , as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

Section 91. Amendment of Act 45 of 1860.

The Indian Penal Code shall be amended in the manner specified in the First Schedule to this Act.

Section 92. Amendment of Act 1 of 1872. 

The Indian Evidence Act, 1872 shall be amended in the manner specified in the Second Schedule to this Act.

Section 93. Amendment of Act 18 of 1891.

The Bankers’ Books Evidence Act, 1891 shall be amended in the manner specified in the Third Schedule to this Act.

Section 94. Amendment of Act 2 of 1934.

The Reserve Bank of India Act, 1934 shall be amended in the manner specified in the Fourth Schedule to this Act.

THE FIRST SCHEDULE

AMENDMENTS TO THE INDIAN PENAL CODE

1. After section 29, the following section shall be inserted, namely:- “29 A. Electronic record.- The words “electronic record” shall have the meaning assigned to them in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000″.

2. In section 167, for the words “such public servant, charged with the preparation or translation of any document, frames or translates that document”, the words “such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record” shall be substituted.

3. In section 172, for the words “produce a document in a Court of Justice”, the words “produce a document or an electronic record in a court of Justice” shall be substituted.

4. In section 173, for the words “to produce a document in a Court of Justice” , the words “to produce a document or electronic record in Court of Justice” shall be substituted.

5. In section 175, for the word “document” at both the places where it occurs, the words “document or electronic record” shall be substituted.

6. In section 192, for the words “makes any false entry in any book or record, or makes any document containing a false statement”, the words “makes any false entry in any book or record, or electronic record or makes any document or electronic recording containing a false statement ” shall be substituted.

7. In section 204, for the word “document” at both the places where it occurs, the words “document or electronic record” shall be substituted.

8. In section 463, for the words “Whoever makes any false documents or part of a document with intent to cause damage or injury”, the words “Whoever makes any false documents or false electronic record or party of a document or electronic record, with intent to cause damage or injury” shall be substituted.

9. In section 464,- (a) for the portion beginning with the words “A person is said to make a false document” and ending with the words “by reason of deception practised upon him, he does not know the contents of the documents or the nature of the alteration”, the following shall be substituted, namely:-

(a) makes, sign, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority or a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly-who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly:- Who dishonestly or fraudulently causes any person, sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration”.

(b) after Explanation 2, the following Explanation shall be inserted at the end, namely:-

‘Explantion 3.- For the purposes of this section, the expression “affixing digital signature’ shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000.

10. In section 466,-

(a) for the words “Whoever forges a document”, the words “Whoever forges a document or an electronic record” shall be substituted.

(b) the following Explanation shall be inserted at the end, namely:-

Explanation-For the purposes of this section, “register” includes any list, data or record of nay entries maintained in the electronic for as defined in clause ( r) of sub-section (1) of section2 of the Information Technology Act, 2000.

11. In section 468, for the words “document forged” , the words “document or electronic record forged” shall be substituted.

12. In section 469, for the words “intending that the document forged”, the words “intending that the document or electronic record forge” shall be substituted.

13. In section 470, for the word “document” in both the places where it occurs, the words “document or electronic record” shall be substituted.

14. In section 471, for the word “document” whenever it occurs, the words “document or electronic record” shall be substituted

15. In section 474, for the portion beginning with the words “Whoever has in his possession any document” and ending with the words ” if the document is one of the description mentioned in section 466 of this Code” the following shall be substitute, namely:-

“Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as a genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code.”

16. In section 476, for the words ” any document”, the words “any document or electronic record” shall be substituted.

17. In section 477a, for the words “book, paper, writing” at both the places where they occur, the words “book, electronic record, paper, writing ” shall be substituted.

THE SECOND SCHEDULE

AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872

1. In section 3,-

(a) in the definition of “Evidence’, for the words “all document produced for the inspection of the Court”, the words “all documents including electronic records produced for the inspection of the Court” shall be substituted ;

(b) after the definition of “India, the following shall be inserted, namely:-

‘the expressions “Certifying Authority”, digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber’ shall have the meanings respectively assigned to them in the Information Technology Act, 2000.

2. IN section 17, for the words “oral or documentary,” words “oral or documentary or contained in electronic form’ shall be substituted.

3. After section 22, the following section shall be inserted, namely:- “22A”. When oral admission as to contents of electronic records are relevant.-

Oral admission as to contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question”.

4. In section 34, for the words “Entries in the books of account”, the words “Entries in the books of account, including those maintained in an electronic form” shall be substituted.

5. In section 35, for the word “record”, in both the places where it occurs, the words “record or an electronic record” shall be substituted.

6. For section 39, the following section shall be substituted, namely:- “39. What evidence to be given when statement forms part of a conversation, documents, electronic record, book or series of letters or papers.-When any statement of which evidence is given forms part of longer statement, or of a conversation or part of an isolated documents, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.”

7. After section 47, the following section shall be inserted, namely:- “47A. Opinion as to digital signature when relevant.- When the court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the digital signature Certificate is a relevant fact”

8. In section 59, for the words “contents of documents “the words” contents of documents or electronic records” shall be substituted.

9. After section 65, the following shall be inserted, namely:- “65A. Special provisions as to evidence relating to electronic record.-the contents of electronic records may be proved in accordance with the provisions of section 65B.

65B. Admissibility of electronic records.-(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copies in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents;

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that the period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or

(b) by different computer operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting single computer, and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say-

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter sufficient for a matter to be stated to the best of knowledge and belief of the person stating it.

(5) For the purposes of this section,-

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, in duly supplied to that computer shall be taken to be supplied to it those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process;

10. After section 67, the following section shall be inserted , namely:- “67. Proof as to digital signature.- Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.’

11. After section 73, the following section shall be inserted, namely:- “73A. Proof as to verification of digital signature.-In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct-

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.”

Explanation .-For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000.”

12. After section 81, the following section shall be inserted, namely:- “81A. Presumption as to Gazettes in electronic forms.-The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.”

13. After section 85, the following sections shall be inserted, namely:- “85A. Presumption as to electronic agreements.- The court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties.

“85B. Presumption as to electronic records and digital signatures.-(1) IN any proceedings involving a secure digital signature, the Court shall presume unless the contrary is proved that-

(a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.

85C. Presumption as to Digital Signature Certificates.-The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber .”

14. After section 88, the following section shall be inserted, namely:- “88A. Presumption as to electronic messages.- The Court may presume that b electronic message forwarded by the originator through an electronic mail server to the addresses to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.”

Explanation.-for the purposes of this section, the expression “addressee’ and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the information Technology Act, 2000.”

15. After section 90, the following section shall be inserted, namely:- “90 A. . Presumption as to electronic records five years old.-where any electronic record, purporting or proved to be five years old, is produced from any custody which the court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him this behalf.

Explanation.-Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such and origin probable.

16. For section 131 the following section shall be substituted, namely:-

131. Production of documents or electronic records which another person, having possession, could refuse to produce.- No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they wer in his possessions or control, unless such last-mentioned person consents to their production.”

THE THIRD SCHEDULE

AMENDMENTS TO THE BANKERS’ BOOKS EVIDENCE ACT,1891

1. In section2,- (a) for clause (3), the following clause shall be substituted, namely:- (3) “bankers” books “include ledgers, day-books, accounts-books and all other books used in the ordinary business of a bank whether kept in the written form or as printouts of date stored in floppy, disc, tape or any other form of electro-magnetic data storage device:

(b) for clause (8), the following clause shall be substituted, namely:- (8) “certified copy” means when the books of a bank,-

(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscriber by the principal accountant or manger of the bank with his name and official title; and

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A;

2. After section 2, the following section shall be inserted, namely:- “2A”.Conditions in the printout.-A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:-

(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and

(b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of-

(A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised person;

(B) the safeguards adopted to prevent and detect unauthorised change of data;

(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;

(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;

(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;

(F) the mode of identification of such data storage devices;

(G) the arrangements for the storage and custody of such storage devices;

(H) the safeguards to prevent and detect any tampering with the system; and

(I) any other factor which will vouch for the integrity and accuracy of the system.

(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.”

THE FOURTH SCHEDULE

AMENDMENT TO THE RESERVE BANK OF INDIA ACT, 1934

In the Reserve Bank of India Act, 1934 in section 58, in sub-section (2), after clause (p), the following clause shall be inserted, namely:- “(pp) the regulation of fund transfer through electronic means between the banks or between the banks and other financial institution referred to in clause (c) of section 45-I, including the laying down of the conditions subject to which banks and other financial institutions shall participate in such fund transfers, the manner of such fund transfers and the rights and obligations of the participants in such fund transfers.

Drugs and Cosmetics Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Drugs ¹[and Cosmetics] Act, 1940.

(2) It extends to the whole of India ²[***].

(3) It shall come into force at once; but Chapter III shall take effect only from such date³ as the Central Government may, by notification in the Official Gazette, appoint in this behalf, and Chapter IV shall take effect in a particular State only from such date3 as the State Government may, by like notification, appoint in this behalf:

⁴[Provided that in relation to the State of Jammu and Kashmir, Chapter III shall take effect only from such date⁵ after the commencement of the Drugs and Cosmetics (Amendment) Act, 1972 (19 of 1972), as the Central Government may, by notification in the Official Gazette, appoint in this behalf.]

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1. Ins. by Act 21 of 1962, sec. 3 (w.e.f. 27-7-1964).

2. The words “except the State of Jammu and Kashmir” omitted by Act 19 of 1972, sec. 2 (w.e.f. 31-5-1972).

3. 1st April, 1947; see Notification No.F. 28(10) (3) 45H(I), dated 2nd September, 1946, Gazette of India, 1946, Pt. I, p. 1349.

Chapter IV came into force in the States of Delhi, Ajmer and Coorg on 1st April, 1947, see Notification No. F. 28 (10)(3) 45H(I), Chapters III and IV came into force in the States of Himachal Pradesh, Bilaspur, Kutch, Bhopal, Tripura, Vindhya Pradesh and Manipur on 1st April, 1953, vide Notification No. S.R.O. 663, dated 30th March, 1953, Gazette of India, Pt. II, Sec. 3, p. 451.

Chapter IV came into force in the Union Territory of Dadra and Nagar Haveli w.e.f. 1st August, 1968, see Notification No. ADM/Law/117(74), dated 20th July, 1968, Gazette of India, Pt. III, Sec. 3, p. 128. The Act is extended to Dadra and Nagar Haveli by Reg. 6 of 1963, sec. 2 and Sch. I; to Pondicherry by Reg. 7 of 1963, sec. 3 and Sch. I; to Goa, Daman and Diu by Reg. 11 of 1963, sec. 3 and Sch. and to Laccadive, Minicoy and Amindivi Islands by Reg. 8 of 1965, sec. 3 and Sch.

4. Added by Act 19 of 1972, sec. 2 (w.e.f. 31-5-1972).

5. 24th August, 1974, vide Notification No. S.O. 2185, dated 9th August, 1974, published in the Gazette of India, 1974, Pt. II, Sec. 3(ii), p. 2331.

Section 2. Application of other laws not barred. 

The provisions of this Act shall be in addition to, and not in derogation of, the Dangerous Drugs Act, 1930, and any other law for the time being in force.

 Section 3. Definitions. 

¹[(a)“²[Ayurvedic, Siddha or Unani] drug” includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of ³[disease or disorder in human beings or animals, and manufactured] exclusively in accordance with the formulae described in, the authoritative books of ⁴[Ayurvedic, Siddha and Unani Tibb systems of medicine], specified in the First Schedule;]

⁵[(aa)] “the Board” means—

(i) in relation to ²[Ayurvedic, Siddha or Unani] drug, the ⁶[Ayurvedic, Siddha and Unani Drugs Technical Advisory Board] constituted under section 33C; and

(ii) in relation to any other drug or cosmetic, the Drugs Technical Advisory Board constituted under section 5;]

⁵[⁷[(aaa)] “cosmetic” means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic ⁸[***];]

⁹[(b) “drug” includes—

¹⁰[(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;]

(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of ¹¹[vermin] or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;]

¹²[(iii) all substances intended for use as components of a drug including empty gelatin capsules; and

(iv) such devices* intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;]

¹³[(c) “Government Analyst” means—

(i) in relation to ¹⁴[Ayurvedic, Siddha or Unani] drug, a Government Analyst appointed by the Central Government or a State Government under section 33F; and

(ii) in relation to any other drug or cosmetic, a Government Analyst appointed by the Central Government or a State Government under section 20;]

¹⁵[***]

¹⁶[(e) “Inspector” means—

(i) in relation to ¹⁴[Ayurvedic, Siddha or Unani] drug, an Inspector appointed by the Central Government or a State Government under section 33G; and

(ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government under section 21;]

¹⁷[(f) “manufacture” in relation to any drug ¹⁸[or cosmetic] includes any process or part of a process for making, altering, ornamenting, finishing, packing, labelling, breaking up or otherwise treating or adopting any drug ¹³[or cosmetic] with a view to its ¹⁹[sale or distribution] but does not include the compounding or dispensing ²⁰[of any drug, or the packing of any drug or cosmetic,] in the ordinary course of retail business; and “to manufacture” shall be construed accordingly;]

²¹[(g)] “to import”, with its grammatical variations and cognate expressions means to bring into ²²[India];

²³[(h) “patent or proprietary medicine” means,—

(i) in relation to Ayurvedic, Siddha or Unani Tibb systems of medicine all formulations containing only such ingredients mentioned in the formulae described in the authoritative books of Ayurveda, Siddha or Unani Tibb systems of medicine specified in the First Schedule, but does not include a medicine which is administered by parenteral route and also a formulation included in the authoritative books as specified in clause (a);

(ii) in relation to any other systems of medicine, a drug which is a remedy or prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other Pharmacopoeia authorised in this behalf by the Central Government after consultation with the Drugs Technical Advisory Board constituted under section 5;]

²⁴[(i) “prescribed” means prescribed by rules made under this Act.]

²⁵[***]

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1.Ins. by Act 13 of 1964, sec. 2 (w.e.f. 15-9-1964)

2.Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

3.Subs. by Act 68 of 1982, sec. 3, for “disease in human beings, mentioned in, and processed and manufactured” (w.e.f. 1-2-1983).

4.Subs. by Act 68 of 1982, sec. 3, for “Ayurvedic (including Siddha) and Unani (Tibb) system of medicine” (w.e.f. 1-2-1983).

5.Original clause (a) relettered as clause (aa) and subs. by Act 13 of 1964, sec. 2 (w.e.f. 15-9-1964).

6.Subs. by Act 68 of 1982, sec. 3, for “Ayurvedic and Unani Drugs Technical Advisory Board” (w.e.f. 1-2-1983)

7.Clause (aa) ins. by Act 21 of 1962, sec. 4 (w.e.f. 27-7-1964) and relettered as clause (aaa) by Act 13 of 1964, sec. 2 (w.e.f. 15-9-1964).

8.The words “, but does not include soap” omitted by Act 68 of 1982, sec. 3 (w.e.f. 1-2-1983).

9.Subs. by Act 11 of 1955, sec. 2, for clause (b) (w.e.f. 15-4-1955).

10.Subs. by Act 68 of 1982, sec. 3, for sub-clause (i) (w.e.f. 1-2-1983).

11.Subs. by Act 13 of 1964, sec. 2, for “vermins” (w.e.f. 15-9-1964).

12.Ins. by Act 68 of 1982, sec. 3 (w.e.f. 1-2-1983).

13.Subs. by Act 13 of 1964, sec. 2, for clause (c) (w.e.f. 15-9-1964).

14.Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

15.Clause (d) omitted by Act 19 of 1972, sec. 3 (w.e.f. 31-5-1972).

16.Subs. by Act 13 of 1964, sec. 2, for clause (e) (w.e.f. 15-9-1964).

17.Clause (bbb) ins. by Act 11 of 1955, sec. 2 (w.e.f. 15-4-1955) and relettered as clause (f) by Act 35 of 1960, sec. 2 (w.e.f. 16-3-1961)

18.Ins. by Act 21 of 1962, sec. 4 (w.e.f. 27-7-1964).

19.Subs. by Act 68 of 1982, sec. 3, for “sale and distribution” (w.e.f. 1-2-1983)

20.Subs. by Act 21 of 1962, sec. 4, for “or packing of any drug”.

21.Clauses (c), (d) and (e) relettered as clauses (g), (h) and (i) respectively by Act 35 of 1960, sec. 2 (w.e.f. 16-3-1961).

22.Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

23.Clause (d) relettered as clause (h) by Act 35 of 1960, sec. 2 (w.e.f. 16-3-1961) and subs. by Act 68 of 1982, sec. 3 (w.e.f. 1-2-1983).

24.Clause (e) subs. by Act 11 of 1955, sec. 2 (w.e.f. 15-4-1955) and relettered as clause (i) by Act 35 of 1960, sec. 2 (w.e.f. 16-3-1961).

25.Clause (f) ins. by the A.O. 1950 and omitted by Act 3 of 1951, sec. 3 and Sch.

* The Central Government has specified (vide S.O. 1468(E), dated 6th October, 2005) the following devices intended for external or internal use in human beings or drugs with immediate effect, namely:—

(i) Cardiac Stents (vi) Bone Cements

(ii) Drug Eluding Stents (vii) Heart Valves

(iii) Catheters (viii) Sclap Vein Set

(iv) Intra Ocular Lenses (ix) Orthopaedic Implants

(v) I.V. Cannulac (x) Internal Prosthetic Replacements.

Section 3A. Constitution of references to any law not in force or any functionary not in existence in the State of Jammu and Kashmir. 

¹[3A. Construction of references to any law not in force or any functionary not in existence in the State of Jammu and Kashmir.

Any reference in this Act to any law which is not in force, or any functionary not in existence, in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to the corresponding law in force, or to the corresponding functionary in existence, in that State.

————————

1.   Ins. by Act 19 of 1972, sec. 4 (w.e.f. 31-5-1972).

Section 4. Presumption as to poisonous substances. 

Any substance specified as poisonous by rule made under Chapter III or Chapter IV ¹[or Chapter IVA] shall be deemed to be a poisonous substance for the purpose of Chapter III or Chapter IV 1[or Chapter IVA], as the case may be.

———————–

Section 5.The Drugs Technical Advisory Board. 

¹[(2) The Board shall consist of the following members, namely:—

(i) the Director General of Health Services, ex officio, who shall be Chairman;

(ii) the Drugs Controller, India, ex officio;

(iii) the Director of the Central Drugs Laboratory, Calcutta, ex officio;

(iv) the Director of the Central Research Institute, Kasauli, ex officio;

(v) the Director of the Indian Veterinary Research Institute, Izatnagar, ex officio;

(vi) the President of the Medical Council of India, ex officio;

(vii) the President of the Pharmacy Council of India, ex officio;

(viii) the Director of the Central Drug Research Institute, Lucknow, ex officio;

(ix) two persons to be nominated by the Central Government from among persons who are in charge of drugs control in the States;

(x) one person, to be elected by the Executive Committee of the Pharmacy Council of India, from among teachers in pharmacy or pharmaceutical chemistry or pharmacognosy on the staff of an Indian University or a college affiliated thereto;

(xi) one person, to be elected by the Executive Committee of the Medical Council of India, from among teachers in medicine or therapeutics on the staff of an Indian University or a college affiliated thereto;

(xii) one person to be nominated by the Central Government from the pharmaceutical industry;

(xiii) one pharmacologist to be elected by the Governing Body of the Indian Council of Medical Research;

(xiv) one person to be elected by the Central Council of the Indian Medical Association;

(xv) one person to be elected by the Council of the Indian Pharmaceutical Association;

(xvi) two persons holding the appointment of Government Analyst under this Act, to be nominated by the Central Government.]

(3) The nominated and elected members of the Board shall hold office for three years, but shall be eligible for re-nomination and re-election:

²[Provided that the person nominated or elected, as the case may be, under clause (ix) or clause (x) or clause (xi) or clause (xvi) of sub-section (2) shall hold office for so long as he holds the appointment of the office by virtue of which he was nominated or elected to the Board.]

(4) The Board may, subject to the previous approval of the Central Government, make bye-laws fixing a quorum and regulating its own procedure and the conduct of all business to be transacted by it.

(5) The Board may constitute sub-committees and may appoint to such sub-committees for such periods, not exceeding three years, as it may decide, or temporarily for the consideration of particular matters, persons who are not members of the Board.

(6) The functions of the Board may be exercised notwithstanding any vacancy therein.

(7) The Central Government shall appoint a person to be Secretary of the Board and shall provide the Board with such clerical and other staff as the Central Government considers necessary.

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1. Subs. by Act 13 of 1964, sec. 4, for sub-section (2) (w.e.f. 15-9-1964).

2. Subs. by Act 13 of 1964, sec. 4, for the Proviso (w.e.f. 15-9-1964).

Section 6. The Central Drugs Laboratory. 

(1) The Central Government shall, as soon as may be, establish a Central Drugs Laboratory under the control of a Director to be appointed by the Central Government, to carry out the functions entrusted to it by this Act or any rules made under this Chapter :

Provided that, if the Central Government so prescribes, the functions of the Central Drugs Laboratory in respect of any drug or class of drugs ¹[or cosmetic or class of cosmetics] shall be carried out at the Central Research Institute, Kasauli, or at any other prescribed Laboratory and the functions of the Director of the Central Drugs Laboratory in respect of such drug or class of drugs ¹[or such cosmetic or class of cosmetics] shall be exercised by the Director of that Institute or of that other Laboratory, as the case may be.

(2) The Central Government may, after consultation with the Board, make rules prescribing—

(a) the functions of the Central Drugs Laboratory;

²[***]

(d) the procedure for the submission of the said Laboratory ³[under Chapter IV or Chapter IVA] of samples of drugs ²[or cosmetics] for analysis or test, the forms of the Laboratory’s reports thereon and the fees payable in respect of such reports;

(e) such other matters as may be necessary or expedient to enable the said Laboratory to carry out its functions;

(f) the matters necessary to be prescribed for the purposes of the proviso to sub-section (1).

—————————-

1. Ins. by Act 21 of 1962, sec. 5 (w.e.f. 27-7-1964).

2. Clauses (b) and (c) omitted by Act 11 of 1955, sec. 4 (w.e.f. 15-4-1955).

3. Subs. by Act 13 of 1964, sec. 5, for “under Chapter IV” (w.e.f. 15-9-964).

Section 7. The Drugs Consultative Committee. 

(1) The Central Government may constitute an advisory committee to be called “the Drugs Consultative Committee” to advise the Central Government, the State Governments and the Drugs Technical Advisory Board on any matter tending to secure uniformity throughout ¹[ India] in the administration of this Act.

(2) The Drugs Consultative Committee shall consist of two representatives of the Central Government to be nominated by that Government and one representative of each State Government to be nominated by the State Government concerned.

(3) The Drugs Consultative Committee shall meet when required to do so by the Central Government and shall have power to regulate its own procedure.

—————————

1.   Ins. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

 Section 7 A. Section 5 and 7 not to apply to Ayurvedic, Siddha or Unani drugs. 

¹[7A. Sections 5 and 7 not to apply to Ayurvedic, Siddha or Unani drugs.—

Nothing contained in sections 5 and 7 shall apply to 2[Ayurvedic, Siddha or Unani] drugs.]

———————————

1. Ins. by Act 13 of 1964, sec. 6 (w.e.f. 15-9-1964).

2. Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

Section 8. Standards of quality. 

¹[(1) For the purposes of this Chapter, the expression “standard quality” means—

(a) in relation to a drug, that the drug complies with the standard set out in ²[the Second Schedule], and

(b) in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.]

(2) The Central Government, after consultation with the Board and after giving by notification in the Official Gazette not less than three months’ notice of its intention so to do, may by a like notification add to or otherwise amend ²[the Second Schedule], for the purposes of this Chapter, and thereupon ²[the Second Schedule] shall be deemed to be amended accordingly.

—————————–

1. Subs. by Act 21 of 1962, sec. 6, for sub-section (1) (w.e.f. 27-7-1964).

2. Subs. by Act 13 of 1964, sec. 7, for “the Schedule” (w.e.f. 15-9-1964).

Section 9. Misbranded drugs. 

¹[9. Misbranded drugs. For the purposes of this Chapter, a drug shall be deemed to be misbranded, –

(a) If it is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is ; or

(b) If it is not labeled in the prescribed manner ; or

(c) If its label or contained or anything accompanying the drug bears any statement, design or device which is false or misleading in any particular.]

—————————

1.   Subs. by Act 68 of 1982, sec. 5, for section 9 (w.e.f. 1-2-1983).

Section 9 A. Adulterated drugs. 

¹[9A. Adulterated drugs. For the purposes of this Chapter, a drug shall be deemed to be adulterated, –

(a) If it consists, in whole or in part, of any filthy, putrid or decomposed substance ; or

(b) If it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health ; or

(c) If its contained is composed in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

(d) If it bears or contains, for purposes of colouring only, a colour other than one which is prescribed ; or

(e) If it contains any harmful or toxic substance which may render it injurious to health ; or

(f) If any substance has been mixed therewith so as to reduce its quality or strength.

————————

1.   Section 9A ins. by Act 21 of 1962, sec. 7 and subs. by Act 68 of 1982, sec. 6 (w.e.f. 1-2-1983).

 Section 9 B. Spurious drugs. 

¹9B. Spurious drugs. –For the purposes of this Chapter, a drug shall be deemed to be spurious, –

(a) If it is imported under a name which belongs to another drug ; or

(b) If it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or contained the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug ; or

(c) If the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist ; or

(d) If it has been substituted wholly or in part by another drug or substance ; or

(e) If it purports to be the product of a manufacturer of whom it is only truly a product.

————————-

1.   Section 9B ins. by Act 13 of 1964, sec. 8 (w.e.f. 15-9-1964) and subs. by Act 68 of 1982, sec. 6 (w.e.f. 1-2-1983).

Section 9 C. Misbranded Cosmetics. 

¹9C. Misbranded Cosmetics.

For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded –

(a) If it contains a colour which is not prescribed ; or

(b) If it is not labeled in the prescribed manner ; or

(c) If the label or container or anything accompanying the cosmetic bears any statement, which is false or misleading in any particular.

—————————-

1.   Ins. by Act 68 of 1982, sec. 6 (w.e.f. 1-2-1983).

Section 9 D. Spurious cosmetics. 

¹[9D. Spurious cosmetics.

For the purposes of this Chapter, a cosmetic shall be deemed to be spurious, –

(a) If it is imported under a name which belongs to another cosmetic ; or

(b) If it is an imitation of, or is a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetic, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic ; or

(c) If the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist ; or

(d) If it purports to be the product of a manufacturer of whom it is.]

———————-

1.   Ins. by Act 68 of 1982, sec. 6 (w.e.f. 1-2-1983).

Section 10. Prohibition of import of certain drugs or cosmetics. 

From such date¹ as may be fixed by the Central Government by notification in the Official Gazette in this behalf, no person shall import—

(a) any drug ²[or cosmetic] which is not of standard quality;

³[(b) any misbranded drug ⁴[or misbranded or spurious cosmetic];]

⁵[(bb) any ⁶[adulterated or spurious] drug;]

(c) any drug ²[or cosmetic] for the import of which a licence is prescribed, otherwise than under, and in accordance with, such licence;

⁷[(d) any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof ⁸[the true formula or list of active ingredients contained in it together with the quantities thereof];]

(e) any drug which by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be prescribed;

⁹[(ee) any cosmetic containing any ingredient which may render it unsafe or harmful or use under the directions indicated or recommended;]

(f) any drug ¹[or cosmetic] the import of which is prohibited by rule made under this Chapter:

Provided that nothing in this section shall apply to the import, subject to prescribed conditions, of small quantities of any drug for the purpose of examination, test or analysis or for personal use:

Provided further that the Central Government may, after consultation with the Board, by notification in the Official Gazette, permit, subject to any conditions specified in the notification, the import of any drug or class of drugs not being of standard quality.

¹⁰[***]

————————

1.1st April, 1947, for clauses (a), (b), (c), (e) and (f) and 1st April, 1949, for clause (d), see Notification No. 18-12-46-D.I., dated 11th February, 1947, Gazette of India, 1947, Pt. I, p. 189 as amended by Notification No. F-1-2/48-D(I), dated 29th September, 1948. 1st April, 1953, for the States of Himachal Pradesh, Bilaspur, Kutch, Bhopal, Tripura, Vindhya Pradesh and Manipur vide Notification No. S.R.O. 666, dated 30th March, 1953, Gazette of India, 1953, Pt. II. Sec. 3, p. 451

2.Ins. by Act 21 of 1962, sec. 8 (w.e.f. 27-7-1964).

3.Subs. by Act 21 of 1962, sec. 8, for clause (b) (w.e.f. 27-7-1964).

4.Subs. by Act 68 of 1982, sec. 7, for “or misbranded cosmetic” (w.e.f. 1-2-1983).

5.Ins. by Act 13 of 1964, sec. 9 (w.e.f. 15-9-1964).

6.Subs. by Act 68 of 1982, sec. 7, for “adulterated” (w.e.f. 1-2-1983).

7.Subs. by Act 11 of 1955, sec. 5, for clause (d) (w.e.f. 15-4-1955).

8.Subs. by Act 68 of 1982, sec. 7, for certain words (w.e.f. 1-2-1983).

9.Ins. by Act 21 of 1962, sec. 8 (w.e.f. 27-7-1964).

10.Explanation omitted by Act 68 of 1982, sec. 7 (w.e.f. 1-2-1983).

Section 10 A. Power of Central Government to prohibit import of drugs and cosmetics in public interest. 

¹[10A. Power of Central Government to prohibit import of drugs and cosmetics in public interest.

Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do then, that Government may, by notification in the Official Gazette, prohibit the import of such drug or cosmetic.

————————

1. Ins. by Act 68 of 1982, sec. 8 (w.e.f. 1-2-1983).

Section 11. Application of law relating to sea customs and powers of Customs Officers. 

(1) The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by section 18 of the Sea Customs Act, 1878 (8 of 1878)¹ shall, subject to the provisions of section 13 of this Act, apply in respect of drugs ²[and cosmetics] the import of which is prohibited under this Chapter, and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a ³[Commissioner of Customs] and other officers of Customs, shall have the same powers in respect of such drugs ⁴[and cosmetics] as they have for the time being in respect of such goods as aforesaid.

⁵[(2) Without prejudice to the provisions of sub-section (1), the ⁶[Commissioner of Customs] or any officer of the Government authorised by the Central Government in this behalf, may detain any imported package which he suspects to contain any drug ⁷[or cosmetic] the import of which is prohibited under this Chapter and shall forthwith report such detention to the Drugs Controller, India, and if necessary, forward the package or sample of any suspected drug ⁷[or cosmetic] found therein to the Central Drugs Laboratory.]

————————

1. Now see the Customs Act, 1962 (52 of 1962).

2. Ins. by Act 21 of 1962, sec. 9 (w.e.f. 27-7-1964).

3. Subs. by Act 22 of 1995, sec. 83, for “Customs Collector” (w.e.f. 26-5-1995).

4. Ins. by Act 21 of 1962, sec. 9 (w.e.f. 27-7-1964).

5. Subs. by Act 11 of 1955, sec. 6, for sub-section (2) (w.e.f. 15-4-1955).

6. Subs. by Act 22 of 1995, sec. 83, for “Customs Collector” (w.e.f. 26-5-1995).

7. Ins. by Act 21 of 1962, sec. 9 (w.e.f. 27-7-1964).

Section 12. Power of Central Government to make rules. 

(1) The Central Government may, ¹[after consultation with or on the recommendation of the Board] and after previous publication by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of this Chapter:

²[Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case the Board shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.]

(2) Without prejudice to the generality of the foregoing power, such rules may—

(a) specify the drugs or classes of drugs ³[or cosmetics or classes of cosmetics] for the import of which a licence is required, ⁴[and prescribe the form and conditions of such licences, the authority empowered to issue the same, the fees payable therefor and provide for the cancellation, or suspension of such licence in any case where any provision of this Chapter or the rules made thereunder is contravened or any of the conditions subject to which the licence is issued is not complied with];

(b) prescribe the methods of test or analysis to be employed in determining whether a drug ³[or cosmetic] is of standard quality;

(c) prescribe, in respect of biological and organometallic compounds, the units or methods of standardisation;

⁵[(cc) prescribe under clause (d) of 6[section 9A] the colour or colours which a drug may bear or contain for purposes of colouring;]

(d) specify the diseases or ailments which an imported drug may not purport or claim ⁷[to prevent, cure or mitigate] and such other effects which such drug may not purport or claim to have;

(e) prescribe the conditions subject to which small quantities of drugs, the import of which is otherwise prohibited under this Chapter, may be imported for the purpose of examination, test or analysis or for personal use;

(f) prescribe the places at which drugs 8[or cosmetics] may be imported, and prohibit their import at any other place;

(g) require the date of manufacture and the date of expiry of potency to be clearly and truly stated on the label or container of any specified imported drug or class of such drug, and prohibit the import of the said drug or class of drug after the expiry of a specified period from the date of manufacture;

(h) regulate the submission by importers, and the securing, of samples of drugs ⁸[or cosmetics] for examination, test or analysis by the Central Drugs Laboratory, and prescribe the fees, if any, payable for such examination, test or analysis;

(i) prescribe the evidence to be supplied, whether by accompanying documents or otherwise, of the quality of drugs 8[or cosmetics] sought to be imported, the procedure of officers of Customs in dealing with such evidence, and the manner of storage at places of import of drugs 8[or cosmetics] detained pending admission;

(j) provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter and the rules made thereunder of drugs 8[or cosmetics] imported for the purpose only of transport through, and export from, ⁹[India];

(k) prescribe the conditions to be observed in the packing in bottles, packages or other containers, of imported drugs ⁸[or cosmetics] ¹⁰[including the use of packing material which comes into direct contact with the drugs];

(l) regulate the mode of labelling drugs ⁸[or cosmetics] imported for sale in packages, and prescribe the matters which shall or shall not be included in such labels;

(m) prescribe the maximum proportion of any poisonous substance which may be added to or contained in any imported drug, prohibit the import of any drug in which that proportion is exceeded, and specify substances which shall be deemed to be poisonous for the purposes of this Chapter and the rules made thereunder;

(n) require that the accepted scientific name of any specified drug shall be displayed in the prescribed manner on the label or wrapper of any imported, patent or proprietary medicine containing such drug;

(o) provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter or the rules made thereunder of any specified drug or class of drugs ¹¹[or cosmetics or class of cosmetics].

————————

1. Subs. by Act 68 of 1982, sec. 9, for “after consultation with the Board” (w.e.f. 1-2-1983).

2. Ins. by Act 11 of 1955, sec. 7 (w.e.f. 15-4-1955).

3. Ins. by Act 21 of 1962, sec. 10 (w.e.f. 27-7-1964).

4. Subs. by Act 68 of 1982, sec. 9, for certain words (w.e.f. 1-2-1983).

5. Ins. by Act 13 of 1964, sec. 10 (w.e.f. 15-9-1964).

6. Subs. by Act 68 of 1982, sec. 9 for “section 9B” (w.e.f. 1-2-1983).

7. Subs. by Act 11 of 1955, sec. 7, for “to cure or mitigate” (w.e.f. 15-4-1955).

8. Ins. by Act 21 of 1962, sec. 10 (w.e.f. 27-7-1964).

9. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.

10. Ins. by Act 68 of 1982, sec. 9 (w.e.f. 1-2-1983).

11. Ins. by Act 21 of 1962, sec. 10 (w.e.f. 27-7-1964).

Section 13. Offences.

13. Offences. – (1) Whoever himself or by any other person on his behalf imports,

(a) Any drug deemed to be adulterated under section 9A or deemed to be a spurious drug under section 9B or any spurious cosmetic referred to in section 9D or any cosmetic of the nature referred to in clause (ee) of section 10 shall be punishable with imprisonment for a term which may extend to three years and a fine which may extend to five thousand rupees .

(b) Any drug or cosmetic other than a drug or cosmetic referred to in clause (a), the import of which is prohibited under section 10, or any rule made under this Chapter, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both ;

(c) Any drug or cosmetic in contravention of the provisions of any notification issued under section 10A, shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both.

(2) Whoever having been convicted of an offence –

(a) Under clause (a) or clause (c) of sub-section (1), is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both ;

(b) Under clause (b) of sub-section (1), is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

(3) The punishment provided by this section shall be in addition to any penalty to which the offender may be liable under the provisions of section 11.

——————-

1.   Subs. by Act 68 of 1982, sec. 10, for section 13 (w.e.f. 1-2-1983).

Section 14. Confiscation.

Where any offence punishable under section 13 has been committed, the consignment of the drugs ¹or cosmetics] in respect of which the offence has been committed shall be liable to confiscation.

———————

1.   Ins. by Act 21 of 1962, sec. 11 (w.e.f. 27-7-1964).

Section  15. Jurisdiction. 

No Court inferior to that ¹[of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under section 13.

————————

1. Subs. by Act 68 of 1982, sec. 11, for certain words (w.e.f. 1-2-1983).

Section 16. Standards of quality.

¹[(1) For the purposes of this Chapter, the expression “standard quality” means—

(a) in relation to a drug, that the drug complies with the standard set out in ²[the Second Schedule], and

(b) in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.]

(2) The ³[Central Government], after consultation with the Board and after giving by notification in the Official Gazette not less than three months’ notice of its intention so to do, may by a like notification add to or otherwise amend ²[the Second Schedule] for the purposes of this Chapter, and thereupon ²[the Second Schedule] shall be deemed to be amended accordingly.

————————

1. Subs. by Act 21 of 1962, sec. 12, for sub-section (1) (w.e.f. 27-7-1964).

2. Subs. by Act 13 of 1964, sec. 11, for “the Schedule” (w.e.f. 15-9-1964).

3. Subs. by Act 11 of 1955, sec. 8, for “State Government” (w.e.f. 15-4-1955).

Section 17. Misbranded drugs. 

¹17. Misbranded drugs. For the purposes of this Chapter, a drug shall be deemed to be misbranded, –

(a) If it is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is ; or

(b) If it is not labeled in the prescribed manner ; or

(c) If its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.

————————

1.   Subs. by Act 68 of 1982, sec. 13, for section 17 (w.e.f. 1-2-1983).

Section 17 A. Adulterated drugs. 

For the purposes of this Chapter, a drug shall be deemed to be adulterated, –

(a) If it consists in whole or in part, of any filthy, putrid or decomposed substance ; or

(b) If it has been prepared, packed or stored under unsanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health ; or

(c) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health ; or

(d) If it bears or contains, for purposes of colouring only, a colour other than one which is prescribed ; or

(e) If it contains any harmful or toxic substance which may render it injurious to health ; or

(f) If any substance has been mixed therewith so as to reduce its quality or strength.

Section  17 B. Spurious drugs. 

For the purposes of this Chapter, a drug shall be deemed to be spurious, –

(a) If it is manufactured under a name which belongs to another drug; or

(b) If it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug ; or

(c) If the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist ; or

(d) If it has been substituted wholly or in part by another drug or substance ; or

(e) If it purports to be the product of a manufacturer of whom it is not truly a product.

Section 17 C. Misbranded cosmetics. 

For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded, –

(a) If it contains a colour which is not prescribed ; or

(b) If it is not labeled in the prescribed manner ; or

(c) If the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular.

Section 17 D. Spurious cosmetics. 

For the purposes of this Chapter, a cosmetic shall be deemed to be spurious, —

(a) If it is manufactured under a name which belongs to another cosmetic ; or

(b) If it is an imitation of, or a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic ; or

(c) If the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fictitious or does not exist ; or

(d) If it purports to be the product of a manufacturer of whom it is not truly a product.

————————–

1.   Ins. by Act 68 of 1982, sec. 13 (w.e.f. 1-2-1983).

The Drugs and Cosmetics Act, 1940

 Section 18 A. Disclosure of the name of the manufacturer, etc. 

¹[18A. Disclosure of the name of the manufacturer, etc. Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.

——————————-

1.   Ins. by Act 13 of 1964, sec. 14 (w.e.f. 15-9-1964).

Section 18 B. Maintenance of records and furnishing of information.

¹18B. Maintenance of records and furnishing of information. Every person holding a licence under clause (c) of section 18 shall keep and maintain such records, registers and other documents as may be prescribed and shall furnish to any officer or authority exercising any power or discharging any function under this Act such information as is required by such officer or authority for carrying out the purposes of this Act.

—————————-

1.   Ins. by Act 68 of 1982, sec. 15 (w.e.f 1-2-1983).

Section 19. Pleas. 

(1) Save as hereinafter provided in this section, it shall be no defence in a prosecution under this Chapter to prove merely that the accused was ignorant of the nature, substance or quality of the drug ¹[or cosmetic] in respect of which the offence has been committed or of the circumstances of its manufacture or import, or that a purchaser, having bought only for the purpose of test or analysis, has not been prejudiced by the sale.

(2) ²[For the purposes of section 18 a drug shall not be deemed to be misbranded or ³[adulterated or spurious] or to be below standard quality nor shall a cosmetic be deemed to be misbranded or to be below standard quality] only by reason of the fact that—

(a) there has been added thereto some innocuous substance or ingredient because the same is required for the manufacture or preparation of the drug ⁴[or cosmetic] as an article of commerce in a state fit for carriage or consumption, and not to increase the bulk, weight or measure of the drug ⁴[or cosmetic] or to conceal its inferior quality or other defects; or

⁵[***]

(b) in the process of manufacture, preparation or conveyance some extraneous substance has unavoidably become intermixed with it: provided that this clause shall not apply in relation to any sale or distribution of the drug ⁴[or cosmetic] occurring after the vendor or distributor became aware of such intermixture.

⁶[(3) A person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall not be liable for a contravention of section 18 if he proves—

(a) that he acquired the drug or cosmetic from a duly licensed manufacturer, distributor or dealer thereof;

(b) that he did not know and could not, with reasonable diligence, have ascertained that the drug or cosmetic in any way contravened the provisions of that section; and

(c) that the drug or cosmetic, while in his possession was properly stored and remained in the same state as when he acquired it.]

——————————–

1. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

2. Subs. by Act 13 of 1964, sec. 15, for certain words (w.e.f. 15-9-1964).

3. Subs. by Act 68 of 1982, sec. 16, for “adulterated” (w.e.f. 1-2-1983).

4. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

5. Clause (aa) ins. by Act 11 of 1955, sec. 10 (w.e.f. 15-4-1955) and omitted by Act 13 of 1964, sec. 15 (w.e.f. 15-9-1964).

6. Subs. by Act 13 of 1964, sec. 15, for sub-section (3) (w.e.f. 15-9-1964).

Section 20. Government Analysts. 

¹[20. Government Analysts.—(1) The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analysts for such areas in the State and in respect of such drugs or ²[classes of drugs or such cosmetics or classes of cosmetics] as may be specified in the notifications.

(2) The Central Government may also, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Government Analysts in respect of such drugs or ²[classes of drugs or such cosmetics or classes of cosmetics] as may be specified in the notification.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), neither the Central Government nor a State Government shall appoint as a Government Analyst any official not serving under it without the previous consent of the Government under which he is serving.]

³[(4) No person who has any financial interest in the import, manufacture or sale of drugs or cosmetics shall be appointed to be a Government Analyst under sub-section (1) or sub-section (2) of this section.]

——————————-

1. Subs. by Act 35 of 1960, sec. 4, for section 20 (w.e.f. 16-3-1961).

2. Subs. by Act 21 of 1962, sec. 16, for “class of drugs” (w.e.f. 27-7-1964).

3. Ins. by Act 68 of 1982, sec. 17 (w.e.f. 1-2-1983).

Section 21. Inspectors. 

¹[21. Inspectors.—(1) The Central Government or a State Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be.

(2) The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or ²[classes of drugs or cosmetics or classes of cosmetics] in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed shall be such as may be prescribed.

(3) No person who has any financial interest ³[in the import, manufacture or sale of drugs or cosmetics] shall be appointed to be an Inspector under this section.

(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority ⁴[, having the prescribed qualifications,] as the Government appointing him may specify in this behalf.]

——————————-

1. Subs. by Act 35 of 1960, sec. 4, for section 21 (w.e.f. 16-3-1961).

2. Subs. by Act 21 of 1962, sec. 17 for “class of drugs” (w.e.f. 27-7-1964).

3. Subs. by Act 21 of 1962, sec. 17, for “in the manufacture, import or sale of drugs” (w.e.f. 27-7-1964).

4. Ins. by Act 68 of 1982, sec. 18 (w.e.f. 1-2-1983).

Section 22. Powers of Inspectors. 

¹[22. Powers of Inspectors.—(1) Subject to the provisions of section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed,—

²[(a) inspect,—

(i) any premises wherein any drug or cosmetic is being manufactured and the means employed for standardising and testing the drug or cosmetic;

(ii) any premises wherein any drug or cosmetic is being sold, or stocked or exhibited or offered for sale, or distributed;

(b) take samples of any drug or cosmetic,—

(i) which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed;

(ii) from any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to a purchaser or a consignee;

(c) at all reasonable times, with such assistance, if any, as he considers necessary,—

(i) search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or

(ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or

(iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed,

and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence;]

³[(cc) examine any record, register, document or any other material object found ⁴[with any person, or in any place, vehicle, vessel or other conveyance referred to in clause (c)], and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the Rules made thereunder;]

⁵[(cca) require any person to produce any record, register, or other document relating to the manufacture for sale or for distribution, stocking, exhibition for sale, offer for sale or distribution of any drug or cosmetic in respect of which he has reason to believe that an offence under this Chapter has been, or is being, committed;]

(d) exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made thereunder.

(2) The provisions of ⁶[the Code of Criminal Procedure, 1973 (2 of 1974)] shall, so far as may be, apply to any search or seizure under this Chapter as they apply to any search or seizure made under the authority of a warrant issued under ⁷[section 94] of the said Code.

⁸[(2A) Every record, register or other document seized under clause (cc) or produced under clause (cca) shall be returned to the person, from whom they were seized or who produce the same, within a period of twenty days of the date of such seizure or production, as the case may be, after copies thereof or extracts therefrom certified by that person, in such manner as may be prescribed, have been taken.]

(3) If any person wilfully obstructs an Inspector in the exercise of the powers conferred upon him by or under this Chapter ⁸[or refuses to produce any record, register or other document when so required under clause (cca) of sub-section (1),] he shall be punishable with imprisonment which may extend to three years, or with fine, or with both.]

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1. Subs. by Act 11 of 1955, sec. 11, for section 22 (w.e.f. 15-4-1955).

2. Subs. by Act 68 of 1982, sec. 19, for clauses (a), (b) and (c) (w.e.f. 1-2-1983).

3. Ins. by Act 35 of 1960, sec. 5 (w.e.f. 16-3-1961).

4. Subs. by Act 68 of 1982, sec. 19, for “in any place mentioned in clause (c)” (w.e.f. 1-2-1983).

5. Ins. by Act 68 of 1982, sec. 19 (w.e.f. 1-2-1983).

6. Subs. by Act 68 of 1982, sec. 19, for “the Code of Criminal Procedure, 1898 (5 of 1898)” (w.e.f. 1-2-1983).

7. Subs. by Act 68 of 1982, sec. 19, for “section 98” (w.e.f. 1-2-1983).

8. Ins. by Act 68 of 1982, sec. 19 (w.e.f. 1-2-1983).

Section 23. Procedure of Inspectors. 

(1) Where an Inspector takes any sample of a drug ¹[or cosmetic] under this Chapter, he shall tender the fair price thereof and may require a written acknowledgement therefor.

(2) Where the price tendered under sub-section (1) is refused or where the Inspector seizes the stock of any drug ¹[or cosmetic] under clause (c) of section 22, he shall tender a receipt therefor in the prescribed form.

(3) Where an Inspector takes a sample of a drug ¹[or cosmetic] for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked:

Provided that where the sample is taken from premises whereon the drug ¹[or cosmetic] is being manufactured, it shall be necessary to divide the sample into three portions only:

Provided further that where the drug ¹[or cosmetic] is made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug ¹[or cosmetic] be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same and, where necessary, sealing them.

(4) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same as follows:—

(i) one portion or container he shall forthwith send to the Government Analyst for test or analysis;

(ii) the second he shall produce to the Court before which proceedings, if any, are instituted in respect of the drug ¹[or cosmetic]; and

²[(iii) the third, where taken, he shall send to the person, if any, whose name, address and other particulars have been disclosed under section 18A.]

(5) Where an Inspector takes any action under clause (c) of section 22,—

(a) he shall use all despatch in ascertaining whether or not the drug 1[or cosmetic] contravenes any of the provisions of section 18 and, if it is ascertained that the drug ¹[or cosmetic] does not so contravene forthwith revoke the order passed under the said clause or, as the case may be, take such action as may be necessary for the return of the stock seized;

(b) if he seizes the stock of the drug ¹[or cosmetic], he shall as soon as may be, inform ³[a Judicial Magistrate] and take his orders as to the custody thereof;

(c) without prejudice to the institution of any prosecution, if the alleged contravention be such that the defect may be remedied by the possessor of the drug ¹[or cosmetic], he shall, on being satisfied that the defect has been so remedied, forthwith revoke his order under the said clause.

⁴[(6) Where an Inspector seizes any record, register, document or any other material object under clause (cc) of sub-section (1) of section 22, he shall, as soon as may be, inform ³[a Judicial Magistrate] and take his orders as to the custody thereof.]

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1. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

2. Subs. by Act 13 of 1964, sec. 16, for clause (iii) (w.e.f. 15-9-1964).

3. Subs. by Act 68 of 1982, sec. 20, for “a Magistrate” (w.e.f. 1-2-1983).

4. Ins. by Act 35 of 1960, sec. 6 (w.e.f. 16-3-1961).

Section 24. Persons bound to disclose place where drugs or cosmetics are manufactured or kept. 

Every person for the time being in charge of any premises whereon any drug ¹[or cosmetic] is being manufactured or is kept for sale or distribution shall, on being required by any Inspector so to do, be legally bound to disclose to the Inspector the place where the drug 1[or cosmetic] is being manufactured or is kept, as the case may be.

——————————-

1. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

Section 25. Reports of Government Analysts. 

(1) The Government Analyst to whom a sample of any drug ¹[or cosmetic] has been submitted for test or analysis under sub-section (4) of section 23, shall deliver to the Inspector submitting it a signed report in triplicate in the prescribed form.

(2) The Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken ²[and another copy to the person, if any, whose name, address and other particulars have been disclosed under section 18A], and shall retain the third copy for use in any prosecution in respect of the sample.

(3) Any document purporting to be a report signed by a Government Analyst under this Chapter shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken ³[or the person whose name, address and other particulars have been disclosed under section 18A] has, within twenty-eight days of the receipt of a copy of the report, notified in writing the Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.

(4) Unless the sample has already been tested or analysed in the Central Drugs Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of a Government Analyst’s report, the Court may, of its own motion or in its discretion at the request either of the complainant or the accused: cause the sample of the drug¹[or cosmetic] produced before the Magistrate under sub-section (4) of section 23 to be sent for test or analysis to the said Laboratory, which shall make the test or analysis and report in writing signed by or under the authority of, the Director of the Central Drugs Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.

(5) The cost of a test or analysis made by the Central Drugs Laboratory under sub-section (4) shall be paid by the complainant or accused as the Court shall direct.

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1. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

2. Subs. by Act 13 of 1964, sec. 17, for certain words (w.e.f. 15-9-1964).

3. Subs. by Act 13 of 1964, sec. 17, for “or the said warrantor” (w.e.f. 15-9-1964).

Section 26. Purchaser of drug or cosmetic enabled to obtain test or analysis. 

Any person ¹[or any recognised consumer association, whether such person is a member of that association or not] shall, on application in the prescribed manner and on payment of the prescribed fee, be entitled to submit for test or analysis to a Government Analyst any drug ²[or cosmetic] ³[purchased by him or it] and to receive a report of such test or analysis signed by the Government Analyst.

⁴[Explanation.—For the purposes of this section and section 32, “recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force.]

——————————-

1. Ins. by Act 71 of 1986, sec. 2 (w.e.f. 15-9-1987).

2. Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

3. Subs. by Act 71 of 1986, sec. 2, for “purchased by him” (w.e.f. 15-9-1987).

4. Added by Act 71 of 1986, sec. 2 (w.e.f. 15-9-1987).

Section 26 A. Powers of Central Government to prohibit manufacture, etc., of drug and cosmetic in public interest. 

¹[26A. Powers of Central Government to prohibit manufacture, etc., of drug and cosmetic in public interest.—Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied, that the use of any drug or cosmetic is likely to involve any risk to human beings or animals or that any drug does not have the therapeutic value claimed or purported to be claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do, then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug or cosmetic.]

—————————

1.   Ins. by Act 68 of 1982, sec. 21 (w.e.f. 1-2-1983).

Section 27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter. 

Whoever, himself or by any other person on his behalf, manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,-

(a) any drug deemed to be adulterated under section 17A or spurious under section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees ;

(b) any drug —

(i) deemed to be adulterated under section 17A, but not being a drug referred to in clause (a), or

(ii) without a valid licence as required under clause © of section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees :

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees :

(c) any drug deemed to be spurious under section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees :

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgement, impose a sentence of imprisonment for a term of less than three years but not less than one year,

(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made there under, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine :

Provided that the Court may for any adequate and special reasons to be recorded in the judgement impose a sentence of imprisonment for a term of less than one year.

—————————–

1.   Section 27 subs. by Act 13 of 1964, sec. 18 (w.e.f. 15-9-1964) and again subs. by Act 68 of 1982, sec. 22 (w.e.f. 1-2-1983).

Section 27 A. Penalty for manufacture, sale, etc., of cosmetics in contravention of this Chapter. 

Whoever himself or by any other person on his behalf manufacturers for sale or for distribution, or sells, or stocks or exhibits or offers for sale –

(i) Any cosmetic deemed to be spurious under section 17C shall be punishable with imprisonment for a term, which may extend to three years and with fine ;

(ii) Any cosmetic other than a cosmetic referred to in clause (I) above in contravention of any provisions of this Chapter or any rule made there under shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.

——————————

1. Section 27A ins. by Act 21 of 1962, sec. 19 (w.e.f. 27-7-1964) and subs. by Act 68 of 1982, sec. 22 (w.e.f. 1-2-1983).

Section 28. Penalty for non-disclosure of the name of the manufacturer, etc.

¹[28. Penalty for non-disclosure of the name of the manufacturer, etc.—Whoever contravenes the provisions of section 18A ²[or section 24] shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ³[one thousand rupees], or with both.]

——————————-

1. Subs. by Act 13 of 1964, sec. 19, for section 28 (w.e.f. 15-9-1964).

2. Ins. by Act 68 of 1982, sec. 23 (w.e.f. 1-2-1983).

3. Subs. by Act 68 of 1982, sec. 23, for “five hundred rupees” (w.e.f. 1-2-1983).

Section 28 A – Penalty for not keeping documents, etc., and for non-disclosure of information.

¹[28A. Penalty for not keeping documents, etc., and for non-disclosure of information.—Whoever without reasonable cause or excuse, contravenes the provisions of section 18B shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.]

——————————

1. Ins. by Act 68 of 1982, sec. 24 (w.e.f. 1-2-1983).

Section 28 B. Penalty for manufacture, etc., of drugs or cosmetics in contravention of section 26A. 

¹[28B. Penalty for manufacture, etc., of drugs or cosmetics in contravention of section 26A. Whoever himself or by any other person on his behalf manufacturers or sells or distributes any drug or cosmetic in contravention of the provisions of any notification issued under section 26A, shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to five thousand rupees.

——————————-

1.   Ins. by Act 68 of 1982, sec. 24 (w.e.f. 1-2-1983).

Section 29. Penalty for use of Government Analyst’s report for advertising. 

Whoever uses any report of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, for the purpose of advertising any drug ¹ shall be punishable with fine which may extend to five hundred rupees.

—————————-

1.   Ins. by Act 21 of 1962, sec. 15 (w.e.f. 27-7-1964).

Section 30. Penalty for subsequent offences. – [(1) (Note: Subs. by Act 68 of 1982, sec.25, for sub-section (1) (w.e.f. 1-2-1983)) Whoever having been convicted of an offence, 

¹[30. Penalty for subsequent offences.—²[(1) Whoever having been convicted of an offence,—

(a) under clause (b) of section 27 is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to six years and with fine which shall not be less than ten thousand rupees:

Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than two years and of fine of less than ten thousand rupees;

(b) under clause (c) of section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than six years but which may extend to ten years and with fine which shall not be less than ten thousand rupees;

(c) under clause (d) of section 27, is again convicted of an offence under that clause shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to four years or with fine which shall not be less than five thousand rupees, or with both.]

³[(1A) Whoever, having been convicted of an offence under section 27A is again convicted under that section, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to ⁴[two thousand rupees], or with both.]

(2) Whoever, having been convicted of an offence under ⁵[***] section 29 is again convicted of an offence under the same section, shall be punishable with imprisonment which may extend to 6[ten years], or with fine, or with both.]

——————————-

1. Subs. by Act 11 of 1955, sec. 14, for section 30 (w.e.f. 15-4-1955).

2. Subs. by Act 68 of 1982, sec. 25, for sub-section (1) (w.e.f. 1-2-1983).

3. Ins. by Act 21 of 1962, sec. 20 (w.e.f. 27-7-1964).

4. Subs. by Act 68 of 1982, sec. 25, for “one thousand rupees” (w.e.f. 1-2-1983).

5. The words “section 28 or” omitted by Act 13 of 1964, sec. 20 (w.e.f. 15-9-1964).

6. Subs. by Act 13 of 1964, sec. 20, for “two years” (w.e.f. 15-9-1964).

Section 31. Confiscation. 

¹[(1)] Where any person has been convicted under this Chapter for contravening any such provision of this Chapter or any rule made thereunder as may be specified by rule made in this behalf, the stock of the drug ²[or cosmetic] in respect of which the contravention has been made shall be liable to confiscation ³[and if such contravention is in respect of—

⁴[(i) manufacture of any drug deemed to be misbranded under section 17, adulterated under section 17A or spurious under section 17B; or]

(ii) ⁵[manufacture for sale, or for distribution, sale, or stocking or exhibiting or offering for sale,] or distribution of any drug without a valid licence as required under clause (c) of section 18, any implements or machinery used in such manufacture, sale or distribution and any receptacles, packages or coverings in which such drug is contained and the animals, vehicles, vessels or other conveyances used in carrying such drug shall also be liable to confiscation].

⁶[(2) Without prejudice to the provisions contained in sub-section (1) where the Court is satisfied, on the application of an Inspector or otherwise and after such inquiry as may be necessary that the drug or cosmetic is not of standard quality ⁷[or is a 8[misbranded, adulterated or spurious drug or misbranded or spurious cosmetic,]] such drug or, as the case may be, such cosmetic shall be liable to confiscation.]

——————————-

1. Section 31 re-numbered as sub-section (1) of that section by Act 35 of 1960, sec. 9 (w.e.f. 16-3-1961).

2. Ins. by Act 21 of 1962, sec. 21 (w.e.f. 27-7-1964).

3. Added by Act 13 of 1964, sec. 21 (w.e.f. 15-9-1964).

4. Subs. by Act 68 of 1982, sec. 26, for clause (i) (w.e.f. 1-2-1983).

5. Subs. by Act 68 of 1982, sec. 26, for certain words (w.e.f. 1-2-1983).

6. Sub-section (2) ins. by Act 35 of 1960, sec. 9 (w.e.f. 16-3-1961) and subs. by Act 21 of 1962, sec. 21 (w.e.f. 27-7-1964).

7. Subs. by Act 13 of 1964, sec. 21, for “or is a misbranded drug” (w.e.f. 15-9-1964).

8. Subs. by Act 68 of 1982, sec. 26, for “misbranded or adulterated drug, or misbranded cosmetic” (w.e.f. 1-2-1983).

Section  31 A. Application of provisions to Government departments. 

¹[31A. Application of provisions to Government departments

The provisions of this Chapter except those contained in section 31 shall apply in relation to the manufacture, sale or distribution of drugs by any department of Government as they apply in relation to the manufacture, sale or distribution of drugs by any other person.

——————————

1.   Ins. by Act 13 of 1964, sec. 22 (w.e.f. 15-9-1964).

Section 32. Cognizance of offences. 

(1) No prosecution under this Chapter shall be instituted except by an Inspector ¹or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not.]

(2) No court inferior to that of ² a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission, which constitutes an offence against this Chapter.

——————————

1.   Ins. by Act 71 of 1986, sec. 3 (w.e.f. 15-9-1987).

2.   Subs.  by  Act  68   of  1982,  sec. 27, for “a  Presidency  Magistrate or  of  a Magistrate of the first class” (w.e.f. 1-2-1983).

Section 32 A. Power of Court to implead the manufacturer, etc. 

¹[32A. Power of Court to implead the manufacturer, etc.—Where, at any time during the trial of any offence under this Chapter alleged to have been committed by any person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof the Court is satisfied, on the evidence adduced before it, that such manufacturer or agent is also concerned in that offence, then, the Court may, notwithstanding anything contained ²[in sub-sections (1), (2) and (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974)], proceed against him as though a prosecution had been instituted against him under section 32.

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1. Ins. by Act 13 of 1964, sec. 23 (w.e.f. 15-9-1964).

2. Subs. by Act 68 of 1982, sec. 28, for “in sub-section (1) of section 351 of the Code of Criminal Procedure, 1898 (5 of 1898)” (w.e.f. 1-2-1983).

Section 33. Power of Central Government to make rules. 

¹[(1) The Central Government may ²[after consultation with, or on the recommendation of, the Board] and after previous publication by notification in the Official Gazette, make rules for the purposes of giving effect to the provisions of this Chapter:

Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case the Board shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.]

(2) Without prejudice to the generality of the foregoing power, such rules may—

(a) provide for the establishment of laboratories for testing and analysing drugs ³[or cosmetics];

(b) prescribe the qualifications and duties of Government Analysts and the qualifications of Inspectors;

(c) prescribe the methods of test or analysis to be employed in determining whether a drug ³[or cosmetic] is of standard quality;

(d) prescribe, in respect of biological and organometallic compounds, the units or methods of standardisation;

⁴[(dd) prescribe under clause (d) of ⁵[section 17A] the colour or colours which a drug may bear or contain for purposes of colouring;]

(e) prescribe the forms of licences 6[for the manufacture for sale or for distribution], for the sale and for the distribution of drugs or any specified drug or class of drugs ⁷[or of cosmetics or any specified cosmetic or class of cosmetics], the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same ⁸[the qualifications of such authority] and the fees payable therefor; ⁸[and provide for the cancellation or suspension of such licences in any case where any provision of this Chapter or the rules made thereunder is contravened or any of the conditions subject to which they are issued is not complied with];

⁸[(ee) prescribe the records, registers or other documents to be kept and maintained under section 18B;

(eea) prescribe the fees for the inspection (for the purposes of grant or renewal of licences) of premises, wherein any drug or cosmetic is being or is proposed to be manufactured;

(eeb) prescribe the manner in which copies are to be certified under sub-section (2A) of section 22;]

(f) specify the diseases or ailments which a drug may not purport or claim ⁹[to prevent, cure or mitigate] and such other effects which a drug may not purport or claim to have;

(g) prescribe the conditions subject to which small quantities of drugs may be manufactured for the purpose of examination, test or analysis;

(h) require the date of manufacture and the date of expiry of potency to be clearly and truly stated on the label or container of any specified drug or class of drugs, and prohibit the sale, stocking or exhibition for sale, or distribution of the said drug or class of drugs after the expiry of a specified period from the date of manufacture or after the expiry of the date of potency;

(i) prescribe the conditions to be observed in the packing in bottles, packages, and other containers of drugs ¹⁰[or cosmetics], ¹¹[including the use of packing material which comes into direct contact with the drugs] and prohibit the sale, stocking or exhibition for sale, or distribution of drugs ¹⁰[or cosmetics] packed in contravention of such conditions;

(j) regulate the mode of labelling packed drugs ¹⁰[or cosmetics], and prescribe the matters which shall or shall not be included in such labels;

(k) prescribe the maximum proportion of any poisonous substance which may be added to or contained in any drug, prohibit the manufacture, sale or stocking or exhibition for sale, or distribution of any drug in which that proportion is exceeded, and specify substances which shall be deemed to be poisonous for the purposes of this Chapter and the rules made thereunder;

(l) require that the accepted scientific name of any specified drug shall be displayed in the prescribed manner on the label or wrapper of any patent or proprietary medicine containing such drug;

¹²[***]

¹³[(n) prescribe the powers and duties of Inspectors ¹⁴[and the qualifications of the authority to which such Inspectors shall be subordinate] and ¹⁵[specify the drugs or classes of drugs or cosmetics or classes of cosmetics] in relation to which and the conditions, limitations or restrictions subject to which, such powers and duties may be exercised or performed;]

(o) prescribe the forms of report to be given by Government Analysts, and the manner of application for test or analysis under section 26 and the fees payable therefor;

¹⁶[(p) specify the offences against this Chapter or any rule made thereunder in relation to which an order of confiscation may be made under section 31; and]

(q) provide for the exemption, conditionally or otherwise, from all or any of the provisions of this Chapter or the rules made thereunder, of any specified drug or class of drugs ¹⁷[or cosmetic or class of cosmetics].

¹⁸[***]

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1. Subs. by Act 11 of 1955, sec. 15, for sub-section (1) (w.e.f. 15-4-1955).

2. Subs. by Act 68 of 1982, sec. 29, for “after consultation with the Board” (w.e.f. 1-2-1983).

3. Ins. by Act 21 of 1962, sec. 22 (w.e.f. 27-7-1964).

4. Ins. by Act 13 of 1964, sec. 24 (w.e.f. 15-9-1964).

5. Subs. by Act 68 of 1982, sec. 29, for “section 17B” (w.e.f. 1-2-1983).

6. Subs. by Act 68 of 1982, sec. 29, for “for the manufacture for sale” (w.e.f. 1-2-1983).

7. Ins. by Act 21 of 1962, sec. 22 (w.e.f. 27-7-1964).

8. Ins. by Act 68 of 1982, sec. 29 (w.e.f. 1-2-1983).

9. Subs. by Act 11 of 1955, sec. 15, for “to cure or mitigate” (w.e.f. 15-4-1955).

10. Ins. by Act 21 of 1962, sec. 22 (w.e.f. 27-7-1964).

11. Ins. by Act 68 of 1982, sec. 29 (w.e.f. 1-2-1983).

12. Clause (m) omitted by Act 13 of 1964, sec. 24 (w.e.f. 15-9-1964).

13. Subs. by Act 35 of 1960, sec. 10, for clause (n) (w.e.f. 16-3-1961).

14. Ins. by Act 68 of 1982, sec. 29 (w.e.f. 1-2-1983).

15. Subs. by Act 21 of 1962, sec. 22, for “the drugs or class of drugs” (w.e.f. 27-7-1964).

16. Subs. by Act 13 of 1964, sec. 24, for clause (p) (w.e.f. 15-9-1964).

17. Ins. by Act 21 of 1962, sec. 22 (w.e.f. 27-7-1964).

18. Sub-section (3) ins. by Act 35 of 1960, sec. 10 (w.e.f. 16-3-1961) and omitted by Act 13 of 1964, sec. 24 (w.e.f. 15-9-1964).

Section 33 A. Chapter not to apply to [Ayurvedic, Siddha or Unani] drugs. 

¹33A. Chapter not to apply to [Ayurvedic, Siddha or Unani] drugs. –Save as otherwise provided in this Act, nothing contained in this Chapter shall apply to ²[Ayurvedic, Siddha or Unani drugs.]

—————————-

1.   Ins. by Act 13 of 1964, sec. 25 (w.e.f. 1-2-1969).

2.   Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

Section 33 B. Application of Chapter IVA. 

This Chapter shall apply only to ¹Ayurvedic, Siddha and Unani] drugs.

—————————

1.   Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha)and Unani” (w.e.f. 1-2-1983).

Section 33 C. Ayurvedic and Unani Drugs Technical Advisory Board. 

(1) The Central Government shall, by notification in the Official Gazette and with effect from such date as may be specified therein, constitute a Board (to be called the ¹Ayurvedic, Siddha and Unani Drugs Technical Advisory Board] to advise the Central Government and the State Governments on technical matters arising out of this Chapter and to carry out the other functions assigned to it by this Chapter.

(2) The Board shall consist of the following members, namely, –

(i) The Director General of Health Services, ex officio ;

(ii) The Drugs Controller, India, ex officio,

²(iii) The principal officer dealing with Indian systems of medicine in the Ministry of Health, ex-officio;]

(iv) The Director of the Central Drugs Laboratory, Calcutta, ex-officio ;

(v) One person holding the appointment of Government Analyst under section 33F, to be nominated by the Central Government ;

(vi) One Pharmacognocist to be nominated by the Central Government ;

(vii) One Photo-chemist to be nominated by the Central Government ;

³(VIII)Four persons to be nominated by the Central Government, two from amongst the members of the Ayurvedic Pharmacopoeia Committee, one from amongst the members of Unani Pharmacopoeia Committee and one from amongst the members of the Siddha Pharmacopoeia Committee ;]

(ix) One teacher in Darvyaguna, and Bhaishajya Kalpana, to be nominated by the Central Government ;

⁴(x) One teacher in ILM-UL-ADVIA and TAKLIS-WA-DAWASAZI, to be nominated by the Central Government ;

[(xi) (Note: Subs. by Act 68 of 1982, sec.30, for clauses (xi) and (xii) (w.e.f. 1-2-1983)) One teacher in Gunapadam to be nominated by the Central Government ;

(xii) Three persons, one each to represent the Ayurvedic, Siddha and Unani drug industry, to be nominated by the Central Government ;

(xiii) Three persons, one each from amongst the practitioners of Ayurvedic, Siddha and Unani Tibb systems of medicine to be nominated by the Central Government.]

(3) The Central Government shall appoint a member of the Board as its Chairman.

(4) The nominated members of the Board shall hold office for three years

but shall be eligible for recombination.

(5) The Board may, subject to the previous approval of the Central Government, make bye-laws fixing quorum and regulating its own procedure and conduct of all business to be transacted by it.

(6) The functions of the Board may be exercised notwithstanding any vacancy therein.

(7) The Central Government shall appoint a person to be Secretary of the Board and shall provide the Board with such clerical and other staff as the Central Government considers necessary.

—————————-

1. Subs. by Act 68 of 1982, sec. 30, for “Ayurvedic and Unani Drugs Technical Adviory Board” (w.e.f. 1-2-1983).

2. Subs. by Act 68 of 1982, sec. 30, for clause (iii) (w.e.f. 1-2-1983).

3. Subs. by Act 68 of 1982, sec. 30, for clause (viii) (w.e.f. 1-2-1983).

4. Subs. by Act 68 of 1982, sec. 30, for clauses (xi) and (xii) (w.e.f. 1-2-1983).

Section 33 D. The Ayurvedic, Siddha and Unani Drugs Consultative Committee. 

¹33D. The Ayurvedic, Siddha and Unani Drugs Consultative Committee. (1) The Central Government may constitute an Advisory Committee to be called the Ayurvedic, Siddha and Unani Drugs Consultative Committee to advise the Central Government, the State Governments and the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board on any matter for the purpose of securing uniformity throughout India in the administration of this Act in so far as it relates to Ayurvedic, Siddha or Unani drugs.

(2) The Ayurvedic, Siddha and Unani Drugs Consultative Committee shall consist of two persons to be nominated by the Central Government as representatives of that Government and not more than one representative of each State to be nominated by the State Government concerned.

(3) The Ayurvedic, Siddha and Unani Drugs Consultative Committee shall meet when required to do so by the Central Government and shall regulate its own procedure.

——————————-

1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f. 1-2-1983).

Section 33 E. Misbranded drugs. 

For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be misbranded –

(a) If it is so coloured, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is ; or

(b) If it is not labeled in the prescribed manner ; or

(c) If its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.

——————————-

1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f. 1-2-1983).

Section 33 EE. Adulterated drugs. 

For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be adulterated, –

(a) If it consists, in whole or in part, of any filthy, putrid or decomposed substance ; or

(b) It has been prepared, packed or stored under in sanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health ; or

(c) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health ; or

(d) If it bears or contains, for purposes of colouring only, a colour other than one which is prescribed ; or

(e) If it contains any harmful or toxic substance which may render it injurious to health ; or

(f) If any substance has been mixed therewith so as to reduce its quality or strength.

Explanation. – For the purpose of clause (a), a drug shall not be deemed to consist, in whole or in part, of any decomposed substance only by reason of the fact that such decomposed substance is the result of any natural decomposition of the drug :

Provided that such decomposition is not due to any negligence on the part of the manufacturer of the drug or the dealer thereof and that it does not render the drug injurious to health.

——————————-

1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f.1-2-1983).

Section 33 EEA. Spurious drugs. 

For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be spurious –

(a) If it is sold, or offered or exhibited for sale, under a name which belongs to another drug ; or

(b) If it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive, or bears upon it or upon its label or container the name of another drug, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug ; or

(c) If the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist ; or

(d) If it has been substituted wholly or in part by any other drug or substance ; or

(e) If it purports to be the product of a manufacturer of whom it is not truly a product.

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1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f. 1-2-1983).

Section 33 EEB. Regulation of manufacturer for sale of Ayurvedic, Siddha and Unani drugs. 

¹33EEB. Regulation of manufacturer for sale of Ayurvedic, Siddha and Unani drugs.- No person shall manufacture for sale or for distribution any Ayurvedic, Siddha or Unani drug except in accordance with such standards, if any, as may be prescribed in relation to that drug.

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1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f. 1-2-1983).

Section 33 EEC. Prohibition of manufacture and sale of certain Ahyurvedic, Siddha and Unani drugs. 

¹ Prohibition of manufacture and sale of certain Ahyurvedic, Siddha and Unani drugs. –From such date as the State Government may, by notification in the Official Gazette, specify in this behalf, no person, either by himself or by any other person on his behalf, shall –

(a) Manufacture for sale or for distribution –

(i) Any misbranded, adulterated or Ayurvedic, siddha or Unani drug ;

(ii) Any patent or proprietary medicine, unless there is displayed in the prescribed manner on the label or container thereof the true list of all the ingredients contained in it ; and

(iii) Any Ayurvedic, Siddha or Unani drug in contravention of any of the provisions of this Chapter or any rule made thereunder ;

(b) Sell, stock or exhibit or offer for sale or offer for sale or distribute any Ayurvedic, Siddha or Unani drug which has been manufactured in contravention of any of the provisions of this Act, or any rule made thereunder :

(c) Manufacture for sale or for distribution, any Ahyurvedic, Siddha or Unani drug, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter by the prescribed authority.

Provided that nothing in this section shall apply to Vaidyas and Hakims who manufacture Ayurvedic, Siddha or Unani drug for the use of their own patients :

Provided further that nothing in this section shall apply to the manufacture, subject to the prescribed conditions, of small quantities of any Ayurvedic, Siddha or Unani drug for the purpose of examination, test or analysis.

——————————-

1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f. 1-2-1983).

Section 33 EED. Power of Central Government to prohibit manufacture, etc., of Ayurvedic, Siddha or Unani drugs in public interest. 

¹[33EED. Power of Central Government to prohibit manufacture, etc., of Ayurvedic, Siddha or Unani drugs in public interest.—Without prejudice to any other provision contained in this Chapter, if the Central Government is satisfied on the basis of any evidence or other material available before it that the use of any Ahyurvedic, Siddha or Unani drug is likely to involve any risk to human beings or animals or that any such drug does not have the therapeutic value claimed or purported to be claimed for it and that in the public interest it is necessary or expedient so to do then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution of such drug.]

——————————

1.   Subs. by Act 68 of 1982, sec. 31, for sections 33D and 33E (w.e.f. 1-2-1983).

Section 33 F. Government Analysts. 

(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Government Analysts for such areas as may be assigned to them by the Central Government or the State Government, as the case may be.

(2) Notwithstanding anything contained in sub-section (1), neither the Central Government nor a State Government shall appoint as a Government Analyst any official not serving under it without the previous consent of the Government under which he is serving.

¹(3) No person who has any financial interest in the manufacture or sale of any drug shall be appointed to be a Government Analyst under this section.]

—————————

1.   Ins. by Act 68 of 1982, sec. 32 (w.e.f. 1-2-1983).

Section 33 G. Inspectors. 

(1) The Central Government or a State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government as the case may be.

(2) The powers which may be exercised by an Inspector and the duties which may be performed by him and the conditions, limitations or restrictions subject to which such powers and duties may be exercised or performed shall be such as may be prescribed.

(3) No person who has any financial interest in the manufacture or sale of any drug shall be appointed to be an Inspector under this section.

(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code and shall be officially sub-ordinate to such authority as the Central Government appointing him may specify in this behalf.

Section 33 H. Application of provisions of sections 22, 23, 24 and 25. 

The provisions of sections 22, 23, 24 and 25 and the rules, if any, made there under shall, so far as may be, apply in relation to an Inspector and a Government Analyst appointed under this Chapter as they apply in relation to an Inspector and a Government Analyst appointed under Chapter IV, subject to the modification that the references to “drug” in the said sections, shall be construed as references to ¹Ayurvedic, Siddha or Unani] drug.

——————————-

1. Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

Section 33-I. Penalty for manufacture, sale, etc., of Ayurvedic, Siddha or Unani drug in contravention of this Chapter. 

¹[33-I. Penalty for manufacture, sale, etc., of Ayurvedic, Siddha or Unani drug in contravention of this Chapter.—Whoever himself or by any other person on his behalf—

(1) Manufactures for sale or for distribution –

(a) Any Ayurvedic, Siddha or Unani drug –

(i) Deemed to be adulterated under section 33EE, or

(ii) Without a valid licence as required under clause ( c) of section 33EEC,

shall be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than two thousand rupees ;

(b) Any Ayurvedic, Siddha or Unani drug deemed to be spurious under section 33EEA, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees :

Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees ; or

(2) Contravenes any other provisions of this Chapter or of section 24 as applied by section 33H or any rule made under this Chapter, shall be punishable with imprisonment for a term which may extend to three months and with fine which shall not be less than five hundred rupees.

—————————

1. Subs. by Act 68 of 1982, sec. 33, for sections 33-I (w.e.f. 1-2-1983).

Section 33 J. Penalty for subsequent offences. 

¹ 33J. Penalty for subsequent offences. -Whoever having been convicted of an offences, –

(a) Under clause (a) of sub-section (1) of section 33I is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than two thousand rupees ;

(b) Under clause (b) of sub-section (1) of section 33I is again convicted of an offence under that clause, shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to six years and with fine which shall not be less than five thousand rupees :

Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than two years and of fine of less than five thousand rupees ;

(c) Under sub-section (2) of section 33I is again convicted of an offence under that sub-section, shall be punishable with imprisonment for a term which may extend to six months and with fine which shall not be less than one thousand rupees.

——————————

1.   Subs. by Act 68 of 1982, sec. 33, for sections 3J (w.e.f. 1-2-1983).

Section 33 K. Confiscation. 

Where any person has been convicted under this Chapter, the stock of the ¹[Ayurvedic, Siddha or Unani] drug, in respect of which the contravention has been made, shall be liable to confiscation.

——————————-

1.   Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

Section 33 L. Application of provisions to Government departments. 

The provisions of this Chapter except those contained in section 33K shall apply in relation to the manufacture for sale, sale or distribution of any ¹drug by any department of Government as they apply in relation to the manufacture for sale, sale or distribution of such drug by any other person.

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1.   Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

Section 33 M. Cognizance of offences. 

(1) No prosecution under this Chapter shall be instituted except by an Inspector ¹with the previous sanction of the authority specified under sub-section (4) of section 33G].

(2) No Court inferior to that² of a Metropolitan Magistrate or of a Judicial Magistrate of the first class] shall try an offence punishable under this Chapter.

——————————-

1.   Ins. by Act 68 of 1982, sec. 34 (w.e.f. 1-2-1983).

2.   Subs.  by  Act  68  of  1982, sec. 34, for “of a Presidency Magistrate or of a Magistrate of the first class” (w.e.f. 1-2-1983).

Section 33 N. Power of Central Government to make rules. 

(1) The Central Government may, ¹[after consultation with, or on the recommendation of, the Board] and after previous publication by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of this Chapter:

Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case, the Board shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.

(2) Without prejudice to the generality of the foregoing power, such rules may—

(a) provide for the establishment of laboratories for testing and analysing ²[Ayurvedic, Siddha or Unani] drugs;

(b) prescribe the qualifications and duties of Government Analysts and the qualifications of Inspectors;

(c) prescribe the methods of test or analysis to be employed in determining whether any ²[Ayurvedic, Siddha or Unani] drug is labelled with the true list of the ingredients which it is purported to contain;

(d) specify any substance as a poisonous substance;

(e) prescribe the forms of licences for the manufacture for sale of ²[Ayurvedic, Siddha or Unani] drugs, ³[and for sale of processed Ayurvedic, Siddha or Unani drugs,] the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same and the fees payable therefor; ³[and provide for the cancellation or suspension of such licences in any case where any provision of this Chapter or rules made thereunder is contravened or any of the conditions subject to which they are issued is not complied with];

⁴[(f) prescribe the conditions to be observed in the packing of Ayurvedic, Siddha and Unani drugs including the use of packing material which comes into direct contact with the drugs, regulate the mode of labelling packed drugs and prescribe the matters which shall or shall not be included in such labels;]

(g) prescribe the conditions subject to which small quantities of ⁵[Ayurvedic, Siddha or Unani] drugs may be manufactured for the purpose of examination, test or analysis; and

⁶[(gg) prescribe under clause (d) of section 33EE the colour or colours which an Ayurvedic, Siddha or Unani drug may bear or contain for purposes of colouring;

(gga) prescribe the standards for Ayurvedic, Siddha or Unani drugs under section 33EEB;]

(h) any other matter which is to be or may be prescribed under this Chapter.

——————————-

1. Subs. by Act 68 of 1982, sec. 35, for “after consultation with the Board” (w.e.f. 1-2-1983).

2. Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

3. Ins. by Act 68 of 1982, sec. 35 (w.e.f. 1-2-1983).

4. Subs. by Act 68 of 1982, sec. 35, for “clause (f)” (w.e.f. 1-2-1983).

5. Subs. by Act 68 of 1982, sec. 2, for “Ayurvedic (including Siddha) or Unani” (w.e.f. 1-2-1983).

6. Ins. by Act 68 of 1982, sec. 35 (w.e.f. 1-2-1983).

Section 33-O. Power to amend First Schedule. 

The Central Government, after consultation with the Board and after giving, by notification in the Official Gazette, not less than three months’ notice of its intention so to do, may, by a like notification, add to or otherwise amend the First Schedule for the purposes of this Chapter and thereupon the said Schedule shall be deemed to be amended accordingly.

Section 33 P. Power to give directions. 

¹[²[33P.] Power to give directions.—The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of this Act or of any rule or order made there under

——————————-

1.   Ins. by Act 35 of 1960, sec. 11 (w.e.f. 16-3-1961).

2.   Section 33A re-numbered as section 33P by Act 13 of 1964, sec. 27 (w.e.f. 15-9-1964).

Section 34. Offences by companies. 

(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, 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 be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed 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 director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. – For the purposes of this section –

(a) “company” means a body corporate, and includes a firm or other association of individuals ; and

(b) “director” in relation to a firm means a partner in the firm.

 Section 34 A. Offences by Government Departments. 

Where an offence under Chapter IV or Chapter IVA has been committed by any department of Government, such authority as is specified by the Central Government to be in charge of manufacture, sale or distribution of drugs or where no authority is specified, the head of the department, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this section shall render any such authority or person liable to any punishment provided in Chapter IV or Chapter IVA, as the case may be, if such authority or person proves that the offence was committed without its or his knowledge or that such authority or person exercised all due diligence to prevent the commission of such offence.

————————

1.   Ins. by Act 13 of 1964, sec. 28 (w.e.f. 15-9-1964).

Section 34 AA. Penalty for vexatious search or seizure.

Any Inspector exercising powers under this Act or the rules made there under, who,-

(a) Without reasonable ground of suspicion searches any place, vehicle, vessel or other conveyance ; or

(b) Vexatiously and unnecessarily searches any person ; or

(c) Vexatiously and unnecessarily seizes any drug or cosmetic, or any substance or article, or any record, register, document or other material object ; or

(d) Commits, as such Inspector, any other act, to the injury of any person without having reason to believe that such act is required for the execution of his duty shall be punishable with fine which may extend to one thousand rupees.

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1.   Ins. by Act 68 of 1982, sec. 36 (w.e.f. 1-2-1983).

Section 35. Publication of sentences passed under this Act. 

(1) If any person is convicted of an offence under this Act, ¹[the Court before which the conviction takes place shall, on application made to it by the Inspector, cause] the offender’s name, place of residence, the offence of which he has been convicted and the penalty which has been inflicted upon him, to be published at the expense of such person in such newspapers or in such other manner as the Court may direct.

(2) The expenses of such publication shall be deemed to form part of the costs relating to the conviction and shall be recoverable in the same manner as those costs are recoverable.

—————————-

1.   Subs. by Act 68 of 1982, sec. 37, for certain words (w.e.f. 1-2-1983).

Section 36. Magistrate’s power to impose enhanced penalties. 

Notwithstanding anything contained in ¹[***] ²[the Code of Criminal Procedure, 1973 (2 of 1974)], it shall be lawful for ³[any Metropolitan Magistrate or any Judicial Magistrate of the first class] to pass any sentence authorized by this Act in excess of his powers under ¹[***] the said Code.

——————————

1.   The words “section 32 of” omitted by Act 13 of 1964, sec. 29 (w.e.f. 15-9-1964).

2.   Subs. by Act 68 of 1982, sec. 38, for “the Code of Criminal Procedure,1898 (5 of 1898)” (w.e.f. 1-2-1983).

3.   Subs. by Act 68 of 1982, sec. 38, for “any  Presidency Magistrate or any Magistrate of the first class” (w.e.f. 1-2-1983).

36A. Certain offences to be tried summarily. –

¹[36A. Certain offences to be tried summarily.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act, punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) of sub-section (1) of section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:

Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:

Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or rehear the case in the manner provided by the said Code.]

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1. Ins. by Act 68 of 1982, sec. 39 (w.e.f. 1-2-1983).

Section 37. Protection of action taken in good faith. 

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

Section 38. Rules to be laid before Parliament. 

Every rule made this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, ²[and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in 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 validity of anything previously done under that rule.

——————–

1.   Ins. by Act 13 of 1964, sec. 30 (w.e.f. 15-9-1964).

2.   Subs. by Act 68 of 1982, sec. 40, for certain words (w.e.f. 1-2-1983).

THE FIRST SCHEDULE

[See section 3(a)]

[A.—AYURVEDIC AND SIDDHA SYSTEMS] Ayurveda

1. Added by G.S.R. 735 (E), dated 28th August, 1987.

2. Subs. by Act 68 of 1982, sec. 41, for the heading “B.—UNANI (TIBB) SYSTEM” (w.e.f. 1-2-1983).

3. Added by G.S.R. 735 (E), dated 28th August, 1987.

4. The brackets, word and figure “(Part I)” omitted by G.S.R. 780 (E), dated 25th November, 2004.

5. Ins. by G.S.R. 780 (E), dated 25th November, 2004

 THE SECOND SCHEDULE

(See sections 8 and 16)

STANDARDS TO BE COMPLIED WITH BY IMPORTED DRUGS AND BY DRUGS MANUFACTURED FOR SALE, SOLD, STOCKED OR EXHIBITED FOR SALE FOR DISTRIBUTED

Standards of identity, purity and strength specified in the edition of the Indian Pharmacopoeia for the time being and such other standards as may be prescribed.In case the standards of identity, purity and strength for drugs are not specified in the edition of the Indian Pharmacopoeia for the time being in force but are specified in the edition of the Indian Pharmacopoeia immediately preceding, the standards of identity, purity and strength shall be those occurring in such immediately preceding edition of the Indian Pharmacopoeia and such other standards as may be prescribed.(b)   Drugs not included in the Indian Pharmacopoeia but which are included in the official Pharmacopoeia of any other country.

Standards of identity, purity and strength specified for drugs in the edition of such official Pharmacopoeia of any other country for the time being in force and such other standards as may be prescribed.In case the standards of identity, purity and strength for drugs are not specified in the edition of such official Pharmacopoeia for the time being in force but are specified in the edition immediately strength shall be those occurring in such immediately preceding edition of such official Pharmacopoeia and such other standards as may be prescribed.]

1. Ins. by S.O. 887, dated 19th March, 1966.

2. Subs. by G.S.R. 299 (E), dated 23rd April, 1984.

3. Omitted by G.S.R. 299 (E), dated 23rd April, 1984.

4. Subs. by G.S.R. 820, dated 6th June, 1978.

5. Subs. by G.S.R. 883, dated 18th August, 1973.

Industrial Disputes Act

November 30, 2014

Section 1. Short title, extent and commencement

ACT NO. 14 OF 1947 1* [11th March, 1947.]

(1) This Act may be called the Industrial Disputes Act, 1947.

¹[(2) It extends to the whole of India].

²[* * *]

(3) It shall come into force on the first day of April, 1947.

—————

1. Subs. by Act 36 of 1956, sec. 2, for the former sub-section (w.e.f. 29-8-1956).

2. Provision omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971).

Section 2.Definitions

In this Act, unless there is anything repugnant in the subject or context, -

(a) “Appropriate Government” means-

(i) In relation to any industrial dispute concerning ¹[* * *] any industry carried on by or under the authority of the Central Government, ²[* * *] or by a railway company ³[or concerning any such controlled industry as may be specified in this behalf by the Central Government] ⁴[* * *] or in relation to an industrial dispute concerning ⁵[ ⁶[ ⁷[ ⁸[a Dock Labour Board established under section 5A of the Dock Workers (Regulation of employment) Act;

1948 (9 of 1948), or ⁹[the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 (1 of 1956)] or the Employees’ State Insurance Corporation established under section 3 of the Employees State Insurance Act, 1948 (34of 1948), or the Board of Trustees constituted under section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5A and section 5B, respectively, of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), ¹⁰[* * *], or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or ⁹[the Oil and Natural Gas Corporation Limited registered under tile Companies Act, 1956 (1 of 1956)], or the Deposit insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under section 3 of tile Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16 of the Food Corporations Act, 1964 (37 of 1964), or ⁹[the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994)], or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976),or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India Limited ], ¹¹[ the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987)], or ¹²[ ⁹[an air transport service, or a banking or an insurance company], a mine, an oil-field,] ¹³[a Cantonment Board,] or a ⁵³[“major port, any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or any corporation, not being a corporation referred to in this clause, established by or under any law made by Parliament, or the Cental public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the Central Government, the Central Government, and”]

⁵⁴[“(ii) in relation to any other industrial dispute, including the State public sector undertaking, subsidiary companies set up by the principal undertaking and autonomous bodies owned or controlled by the State Government, the State Government:

Provided that in case of a dispute between a contractor and the contract labour employed through the contractor in any industrial establishment where such dispute first arose, the appropriate Government shall be the Central Government or the State Government, as the case may be, which has control over such industrial establishment.]

¹⁴[(aa) “Arbitrator” includes an umpire;]

¹⁵[ ¹⁶[ (aaa)] “Average pay” means the average of the wages payable to a workman-

(i) In the case of monthly paid workman, in the three complete calendar months,

(ii) In the case of weekly paid workman, in the four complete weeks,

(iii) In the case of daily paid workman, in the twelve full working days,

Preceding the date on which the average pay becomes payable if the workman had worked for three complete calendar months or four complete weeks or twelve full working days, as the case may be, and where such calculation cannot be made, the average pay shall be calculated as the average of the wages payable to a workman during the period he actually worked;]

¹⁷[ (b) ‘Award’ means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A;]

¹⁸[(bb) “Banking company” means a banking company as defined in section 5 of the Banking Companies Act, 1949, ¹⁹(10 of 1949) having branches or other establishments in more than one State, and includes ²⁰[ the Export-Import Bank of India] ²¹[the Industrial Reconstruction Bank of India,] ²²[the Industrial Development Bank of India,] ²³[the Small Industries Development Bank of India established under section 3 of the Small Industries Development Bank of India Act, 19891 the Reserve Bank of India, the State Bank of India, ²⁴[a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) ²⁵[a corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980, and any subsidiary bank], as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);

(c) ‘Board” means a Board of Conciliation constituted under this Act;

²⁶[(cc) “Closure’ means the permanent closing down of a place of employ or part thereof;]

(d) “Conciliation officer” means a conciliation officer appointed under this Act;

(e) “Conciliation proceeding” means any proceeding held by a conciliation officer or Board under this Act;

²⁷[(ee) ‘Controlled industry’ means any industry the control of which by the Union has been declared by any Central Act to be expedient in the public interest;]

²⁸ [* * * * *]

(f) “Court’ means a Court of Inquiry constituted under this Act;

(g) “Employer” means-

(i) In relation to any industry carried on by or under the authority of any department of ²⁹[the Central Government or a State Government,] the authority prescribed in this behalf, or where no authority is prescribed, the head of the department;

(ii) In relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority;

³⁰ [(gg) “Executive’, in relation to a trade union, means the body, by whatever name called, to which the management of the affairs of the trade union is entrusted;]

³¹[ * * * * *]

(i) A person shall be deemed to be “independent” for the purpose of his appointment as the Chairman or other member of a Board, Court or Tribunal, if he is unconnected with the industrial dispute referred to such Board, Court or Tribunal or with any industry directly affected by such dispute:

³²[Provided that no person shall cease to be independent by reason only of the fact that he is a shareholder of-an incorporated company which is connected with, or likely to be affected by, such industrial dispute; but in such a case, he shall disclose to the appropriate Government the nature and extent of the shares held by him in such company;]

*(j) “Industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen;

(k) “Industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;

³³[(ka) ‘Industrial establishment or undertaking’ means an establishment or undertaking in which any industry is carried on:

Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then-

(a) If any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking;

(b) If the predominant activity or each of the predominant activities carried on in such establishment or undertaking or any unit thereof is an industry and the other activity or each of the other activities carried on in such establishment, or undertaking or unit thereof is not severable from and is, for the purpose of carrying on, or aiding the carrying on of, such predominant activity or activities, the entire establishment or undertaking or, as the case may be, unit thereof shall be deemed to be an industrial establishment or undertaking;]

³⁴[(kk) “Insurance company “ means an insurance company as defined in section 2 of the Insurance Act, 1938 (4 of 1938), having branches or other establishments in more than one State;]

³⁵[(kka) “Khadi” has the meaning assigned to it in clause (d) of section 2 of the Khadi and Village Industries Commission Act, 1956 (61 of 1956);] ³⁵[ ³⁶[ (kkb)] ‘Labour Court’ means a Labour Court constituted under section 7;]

³⁷[(kkk) “Lay-off” (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery ³⁸[or natural calamity or for any other connected reason] to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.

Explanation.

Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause:

Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day:

Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day;]

(l) “Lock-out” means the ⁴⁰[temporary closing of a place of employment], or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him;

³⁹[(la) “Major port” means a major port as defined in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908);

(lb) “Mine” means a mine as defined in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);]

⁴⁰[(ll) “National Tribunal” means a National Industrial Tribunal constituted under section 7B;l

⁴¹[(lll) “Office beater”, in relation to a trade union, includes any member of the executive thereof, but does not include an auditor;]

(m) “Prescribed” means prescribed by rules made under this Act;

(n) “Public utility service” means-

(i) Any railway service ⁴²[or any transport service for the carriage of passengers or goods by air];

⁴³[(ia) Any service in, or in connection with the working of, any major port or dock;]

(ii) Any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;

(iii) Any postal, telegraph or telephone service;

(iv) Any industry, which supplies power, light or water to the public;

(v) Any system of public conservancy or sanitation;

(vi) Any industry specified in the ⁴⁴[First Schedule] which the appropriate Government may, if satisfied, that public emergency or public interest so requires, by notification in the Official Gazette, declared to be a public utility service for the purposes of this Act, for such period as may be specified in the notification:

Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension;

(o) “Railway company” means a railway company as defined in section 3 of the Indian Railways Act, 1890 (9 of 1890);

⁴⁵[(oo) “Retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action but does not include-

(a) Voluntary retirement of the workman; or

(b) Retirement of the workman on reaching the age of Superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

⁴⁶[(bb) Termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) Termination of the service of a workman on the ground of continued ill-health;]

⁴⁷[(p) “Settlement” means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to ⁴⁸[an officer authorised in this behalf by] the appropriate Government and the conciliation officer;]

(q) “Strike” means a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal, under a common understanding of any number of persons who are or have been so employed to continue to work or to accept employment;

⁴⁹[(qq) ‘Trade union’ means a trade union registered under the Trade Unions Act, 1926 (16 of 1926);]

⁵⁰[(r) “Tribunal” means an Industrial Tribunal constituted under section 7A and includes an Industrial Tribunal constituted before the 10th day of March, 1957, under this Act;]

⁵⁰[(ra) “Unfair labour practice” means any of the practices specified in the Fifth Schedule;

(rb) “Village industries” has the meaning assigned to it in clause (h) of section 2 of the Khadi and Village Industries Commission Act, 1956 (61 of 1956); j

⁵¹[(rr) “Wages” means a remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment of work done in such employment, and includes-

(i) Such allowances (including dearness allowance) as the workman is for the time being entitled to;

(ii) The value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;

(iii) Any travelling concession;

⁴⁹[(iv) Any commission payable on the promotion of sales or business or both;]

But does not include-

(a) Any bonus;

(b) Any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;

(c) Any gratuity payable on the termination of his service;];

⁵²[(s) “Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) Who is subject to the Air Force Act, 1950 (45of l950),or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or

(ii) Who is employed in the police service or as an officer or other employee of a prison; or

(iii) Who is employed mainly in a managerial or administrative capacity; or

(iv) Who, being employed in a supervisory capacity, draws wages exceeding ⁵⁵[ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.].

——————–

1. Certain words and figures inserted by Act 10 of 1963, sec. 47 and Sch. 11, Pt. 11 have been omitted by Act 36 of 1964, sec. 2 (w.e.f. 19-12-1964).

2. The words “by the Federal Railway Authority” omitted by the A.0. 1948.

3. Ins. by Act 65 of 1951, sec. 32.

4. The words “operating a Federal Railway” omitted by the A.0. 1950.

5. Ins. by Act 47 of 1961, sec. 51 and Sch. 11, Pt. III (w.e.f. 1-1-1962).

6. Subs. by Act 36 of 1964, sec. 2, for ‘the Deposit Insurance Corporation established’ (w.e.f. 19-12-1964).

7. Subs. by Act 45 of 1971, sec. 2 (w.e.f. 15-12,1971).

8. Subs. by Act 46 of 1982, sec. 2 (w.e.f. 21-8-1984).

9. Subs. by the Industrial Disputes (Amendment) Act, 1996 (w.e.f. 11-10-1995).

10. Omitted by the Industrial Disputes (Amendment) Act, 1996 (w.e.f.11-10-1995).

11. Ins. by Act 53 of 1987, sec. 56 and Second Sch., Part III (w.e.f. 9-7-1988).

12. Subs. by Act 54 of 1949, sec. 3, for “a mine, oil-field”.

13. Ins. by Act 36 of 1964, sec. 2 (w.e.f. 19-12-1964).

14. Ins. by Act 36 of 1964, sec. 2 (w.e.f. 19.12.1964).

15. Ins. by Act 43 of 1953, sec. 2 (w.e.f. 24-10-1953).

16. Clause (aa) re-lettered as “(aaa)” by Act 36 of 1964, sec. 2 (w.e.f. 19-12-1964).

17. Subs. by Act 36 of 1956, sec. 3, for cl. (b) (w.e.f. 10-3-1957).

18. Subs. by Act 38 of 1959, sec. 64 and Sch. 111, Pt. 11, for cl. (bb), which was ins. by Act 54 of 1949, sec. 3.

19. The short title now reads as “the Banking Regulation Act, 1949”.

20. Ins. by Act 28 of 1991, sec. 40 and (w.e.f. 1-1-1982) Sch. 11, Pt. 11.

21. Ins. by Act 62 of 1984, sec. 71, and Sch. III, Pt. 11 (w.e.f. 20-3-1985).

22. Ins. by Act 18 of 1964, sec. 38 and Sch. II, Pt. 11 (w.e.f. 1-7-1964).

23. Ins. by Act 39 of 1989, sec. 53 and 2nd Sch.

24. Subs. by Act 5 of 1970, sec. 20, for “and any subsidiary bank” (w.e.f. 19-7-1969).

25. Subs. by Act 40 of 1980, sec. 20, for certain words (w.e.f. 15-4-1980).

26. Ins. by Act 46 of 1982, sec. 2 (w.e.f. 21-8-1984).

27. Ins. by Act 65 of 1951, sec. 32.

28. Clause (eee) ins. by Act 43 of 1953, sec. 2, omitted by Act 36 of 1964, sec. 2 (w.e.f. 19-12-1964).

29. Subs. by the A.0. 1948, for “a Government in British India”.

30. Ins. by Act 45 of 1971, sec. 2 (w.e.f. 15-12-1971).

31. Cl. (h) omitted by the A.0. 1950.

32. Ins. by Act 18 of 1952, sec. 2.

* On the enforcement of clause (c) of sec. 2 of Act 46 of 1982, clause 0) of sec. 2 shall be stand substituted as directed in clause (c) of that Act. For the text of clause (j) of the Act, see Appendix.

33. Ins. by Act 46 of 1982, sec. 2 (w.e.f. 21-8-1964).

34. Ins. by Act 54 of 1949, sec. 3.

35. Clause (kka) re-lettered as clause (kkb) and clause (kka) ins. by Act 46 of 1982, sec. 2 (w.e.f. 21-8-1984).

36. Ins. by Act 36 of 1956, sec. 3 (w.e.f. 10-3-1957).

37. Ins. by Act 43 of 1953, sec. 2 (w.e.f. 24-10-1953).

38. Subs. by Act 46 of 1982, sec. 2 for certain words (w.e.f. 21-8-1984).

39. Ins. by Act 36 of 1964, sec. 2 (w.e.f. 19-12-1964).

40. Ins. by Act 36 of 1956, sec. 3 (w.e.f. 10-3-1957).

41. Ins. by Act 45 of 1971, sec. 2 (w.e.f. 15-12-1971).

42. Ins. by Act 36 of 1964, sec. 2 (w.e.f. 19-12-1964).

43. Ins. by Act 45 of 1971, sec. 2 (w.e.f. 15.12.1971).

44. Subs. by Act 36 of 1964, sec. 2, for “Schedule” (w.e.f. 19-12-1964).

45. Ins. by Act 43 of 1953, sec. 2 (w.e.f. 2,4-10-1953).

46. Ins. by Act 49 of 1984, sec. 2 (w.e.f. 18-8-1984).

47. Subs. by Act 36 of 1956, sec. 3 for cl. (p) (w.e.f. 7-10-1956).

48. Ins. by Act 35 of 1965, sec. 2 (w.e.f. 1-12-1965).

49. Ins. by Act 46 of 1982, sec. 2 (w.e.f. 21-8-1984).

50. Subs. by Act 18 of 1957, sec. 2 for cl. (r) (w.e.f. 10-3-1957).

51. Ins. by Act 43 of 1953, sec. 2 (w.e.f. 24-10-1953).

52. Subs. by Act 46 of 1982, sec. 2, for clause (s) (w.e.f. 21-8-1984).

53. Subs. by Act. 24 of 2010, for clause (a) w.e.f. 18-8-2010.

54. Subs. by Act. 24 of 2010, for clause (b) w.e.f. 18-8-2010.

55. Subs. by Act. 24 of 2010, for clause (s) w.e.f. 18-8-2010.

Section 2 A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute

¹[2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute. Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.]

²[“(2) Notwithstanding anything contained in Section 10, any such workman as is specified in sub-section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of forty-five days from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.

(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).”]

——————–

1. Ins. by Act 35 of 1965, for section 3 (w.e.f. 1-12-1965).

2. Ins. By. Act. 24 of 2010 w.e.f. 18-8-2010.

Section 3. Works Committee

(1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months, the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer. The representatives of the workmen shall be chosen in the prescribed manner from among the workmen engaged in the establishment and in consultation with their trade union, if any, registered under the Indian Trade Unions Act, 1926 (16 of 1926).

(2) It shall be the duty of the Works Committee to promote measures for securing and preserving amity and good relations between the employer and workmen and, to that end, to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.

Section 4. Conciliation officers

(1) The appropriate Government may, by notification in the Official Gazette, appoint such number of persons as it think–, fit, to be conciliation officers, charged with the duty of mediating in and promoting the settlement of industrial disputes.

(2) A conciliation officer may be appointed for a specified area or for specified industries in a specified area or for one or more specified industries and either permanently or for a limited period.

¹[“(f) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at least seven years’ experience in the labour department including three years of experience as Conciliation Officer:

Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before being appointed as the presiding officer; or

(g) he is an officer of Indian Legal Service in Grade HI with three years’ experience in the grade.”.]

——————–

1. Ins. by Act 24 of 2010 w.e.f. 18-8-2010.

Section 5. Boards of Conciliation

(1) The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Board of Conciliation for promoting the settlement of an industrial dispute.

(2) A Board shall consist of a chairman and two or four other members, as the appropriate Government thinks fit.

(3) The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appointed to represent a party shall be appointed on the recommendation of that party:

Provided that, if any party fails to make a recommendation as aforesaid within the prescribed time, the appropriate Government shall appoint such persons as it thinks fit to represent that party.

(4) A Board, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number:

Provided that if the appropriate Government notifies the Board that the services of the chairman or of any other member have ceased to be available, the Board shall not act until a new chairman or member, as the case may be, has been appointed.

Section 6. Courts of Inquiry

(1) The appropriate Government may as occasion arises by notification in the Official Gazette constitute a Court of Inquiry for inquiring into any matter appearing to be connected with or relevant to an industrial dispute.

(2) A Court may consist of one independent person or of such number of independent persons as the appropriate Government may think fit and where a Court consists of two or more members, one of them shall be appointed as the chairman.

(3) A Court, having the prescribed quorum, may act notwithstanding the absence of the chairman or any of its members or any vacancy in its number:

Provided that, if the appropriate Government notifies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new chairman has been appointed.

Section 7. Labour Courts

¹[7. Labour Courts. (1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the Second Schedule and for performing such other functions as may be assigned to then-, under this Act.

(2) A Labour Court shall consist of one person only to be appointed by the appropriate Government.

(3) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless.

²[(a) He is, or has been, a Judge of a High Court; or

(b) He has, for a period of not less than three years, been a District judge or an Additional District Judge; or

³[ * * * * *]

⁴[(d)] He has held any judicial office in India for not less than seven years; or

⁴[(e)] He has been the presiding officer of a Labour Court constituted under any provincial Act or State Act for not less than five years.

——————–

1. Subs. by Act 36 of 1956, sec. 4, for section 7 (w.e.f. 10-3-1957).

2. Ins. by Act 36 of 1964, sec. 3 (w.e.f. 19-12-1964).

3. Clause (c) omitted by Act 46 of 1982, sec. 3 (w.e.f. 21-8-1984).

4. Clauses (a) and (b) relettered as (d) and (e) respectively by Act 36 of 1964, sec. 3 (w.e.f. 19-12-1964).

Section 7A. Tribunals

(1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule ¹[and for performing such other functions as may be assigned to them under this Act].

(2) A Tribunal shall consist of one person only to be appointed by the appropriate Government.

(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless-

(a) He is, or has been, a Judge of a High Court; or

²[(aa) He has, for a period of not less than three-years, been a District Judge or an Additional District Judge; ³[ * * * ]

⁵[“(b) he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at least seven years’ experience in the labour department including three years of experience as Conciliation Officer:

Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before being appointed as the presiding officer; or

(c) he is an officer of Indian Legal Service in Grade III with three years’ experience in the grade.”]

⁴[* * * * * *]

(4) The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it.

——————–

1. Ins. by Act 46 of 1982, sec. 4 (w.e.f. 21-8-1984).

2. Ins. by Act 36 of 1964, sec. 4 (w.e.f. 19-12-1964).

3. Omitted by Act 46 of 1982, sec. 4 (w.e.f. 21-8-1984).

4. Omitted by Act 46 of 1982, sec. 4 (w.e.f. 21-8-1984).

5. Ins. by Act. 24 of 2010 sec. 7A (w.e.f. 18-8-2010).

Section 7 B. National Tribunals

(1) The Central Government may, by notification in the Official Gazette, constitute one or more National Industrial Tribunals for the adjudication of industrial disputes which, in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such disputes.

(2) A National Tribunal shall consist of one person only to be appointed by the Central Government.

(3) A person shall not be qualified for appointment as the presiding officer of a National Tribunal ¹[ unless he is, or has been, a Judge of a High Court.]

(4) The Central Government may, if it so thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceeding before it.

——————–

1. Subs. by Act 46 of 1982, sec. 5 (w.e.f. 21-8-1984).

Section 7 C. Disqualifications for the presiding officers of Labour Courts, Tribunals and National Tribunals

No person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal, if-

(a) He is not an independent person; or

(b) He has attained the age of sixty-five years.]

Section 8. Filling of vacancies

¹[8. Filling of vacancies. If, for any reason a vacancy (other than a temporary absence) occurs in the office of the presiding officer of a Labour Court, Tribunal or National Tribunal or in the office of the Chairman or any other member of a Board or Court, then, in the case of a National Tribunal, the Central Government and in any other case, the appropriate Government, shall appoint another person in accordance with the provisions of this Act to fill the vacancy, and the proceeding may be continued before the Labour Court, Tribunal, National Tribunal, Board or Court, as the case may be, from the stage at which the vacancy is filled.

——————–

1. Subs. by Act 36 of 1956, sec. 5, for sections 8 and 9 (w.e.f. 10-3-1957).

Section 9. Finality of orders constituting Boards, etc

(1) No order of the appropriate Government or of the Central Government appointing any person as the Chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in question in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court.

(2) No settlement arrived at in the course of a conciliation proceeding shall be invalid by reason only of the fact that such settlement was arrived at after the expiry of the period referred to in sub-section (6) of section 12 or sub-section (5) of section 13, as the case may be.

(3) Where the report of any settlement arrived at in the course of conciliation proceeding before a Board is signed by the chairman and all the other members of the Board, no such settlement shall be invalid by reason only of the casual or unforeseen absence of any of the members (including the Chairman) of the Board during any stage of the proceeding.]

¹[CHAPTER IIA

NOTICE OF CHANGE

——————–

1. Ins. by Act 36 of 1956, sec. 6 (w.e.f 10-3-1957).

Section 9 A. Notice of change

No, employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change, -

(a) Without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or

(b) Within twenty-one days of giving such notice

Provided that no notice shall be required for effecting any such change.

(a) Where the change is effected in pursuance of any ¹[settlement or award]; or

(b) Where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply

——————–

1. Subs. by Act 46 of 1982, sec. 6, for certain words, brackets and figures (w.e.f. 21-8 1984).

Section 9 B. Power of Government to exempt

Where the appropriate Government is of opinion that the application of the provisions of section 9. A to any class of industrial establishments or to any class of workmen employed in any industrial establishment affect the employers in relation thereto so prejudicially that such application may cause serious repercussion on the industry concerned and that public interest so requires, the appropriate Government may, by notification in the Official Gazette, direct that the provisions of the said section shall not apply or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of workmen employed in any industrial establishment.]¹

——————–

1. On the enforcement of section 7 of Act 46 of 1982, a new chapter IIB shall stand inserted as directed in section 7 of that Act. For the Text of section 7 of that Act, see Appendix.

“Chapter II-B

GRIEVANCE REDRESSAL MACHINERY

9-C. Setting up of Grievance Redressal Machinery.

(1) Every industrial establishment employing twenty or more workmen shall have one or more Grievance Redressal Committee for the resolution of disputes arising out of individual grievances.

(2) The Grievance Redressal Committee shall consist of equal number of members from the employer and the workmen.

(3) The Chairperson of the Grievance Redressal Committee shall be selected from the employer and from among the workmen alternatively on rotation basis every year.

(4) The total number of members of the Grievance Redressal Committee shall not exceed more than six:

Provided that there shall be, as far as practicable, one woman member if the Grievance Redressal Committee has two members and in case the number of members are more than two, the number of women members may be increased proportionately.

(5) Notwithstanding anything contained in this section, the setting up of Grievance Redressal Committee shall not affect the right of the workman to raise industrial dispute on the same matter under the provisions of this Act.

(6) The Grievance Redressal Committee may complete its proceedings within thirty days on receipt of a written application by or on behalf of the aggrieved party.

(7) The workman who is aggrieved of the decision of the Grievance Redressal Committee may prefer an appeal to the employer against the decision of Grievance Redressal Committee and the employer shall, within one month from the date of receipt of such appeal, dispose of the same and send a copy of his decision to the workman concerned.

(8) Nothing contained in this section shall apply to the workmen for whom there is an established Grievance Redressal Mechanism in the establishment concerned.”

Section 10. Reference of dispute to Boards, Courts or Tribunals

(1) ¹[Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing-

(a) Refer the dispute to a Board for promoting a settlement thereof; or

(b) Refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

²[(c) Refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) Refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):]

³[Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:

⁴[Provided also that where the dispute in the relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.]

⁵[(l A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.]

(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, ⁶[Labour Court, Tribunal or National Tribunal], the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.

⁷[(2A) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit it’s award on such dispute to the appropriate Government:

Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:

Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit:

Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:

Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed.]

(3) Where an industrial dispute has been referred to a Board, ⁶[Labour Court, Tribunal or National Tribunal] under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.

⁸[(4) Wherein an order referring an industrial dispute to ⁹[a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, ¹⁰[the Labour Court or the tribunal or the National Tribunal, as the case may be,] shall confine its adjudication to those points and matters incidental thereto.

(5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a ¹¹[Labour Court, Tribunal or National Tribunal] under this section and the appropriate Government is of opinion, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in, or affected by, such dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that reference such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class of establishments.]

¹²[(6) Where any reference has been made under sub-section (1A) to a National Tribunal then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accordingly, -

(a) If the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matter, shall be deemed to have been quashed on such reference to the National Tribunal; and

(b) It shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal.

¹³ [Explanation.-In this sub-section, “Labour Court” or “Tribunal” includes any Court or Tribunal or other authority constituted under any law relating to investigation and settlement of industrial disputes in force in any State.]

(7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government, is referred to a National Tribunal, then, notwithstanding anything contained in this Act, any reference in section 15, section 17, section 19, section 33A, section 33B and section 36A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government.]

¹⁴[(8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceedings and submit its award to the appropriate Government.]

——————–

1. Subs. by Act 18 of 1952, sec. 3, for ‘if any industrial dispute exists or is apprehended, the appropriate Government may”.

2. Subs. by Act 36 of 1956, sec. 7, for clause (c) (w.e.f. 10-3-1957).

3. Subs. by Act 36 of 1956, sec. 7, for ‘Provided that’ (w.e.f. 10-3-1957).

4. Ins. by Act 46 of 1982, sec. 8 (w.e.f. 21-8-1984).

5. Ins. by Act 36 of 1956, sec. 7 (w.e.f. 10-3-1957).

6. Subs. by Act 36 of 1956, sec. 7, for “or Tribunal” (w.e.f. 10-3-1957).

7. Ins. by Act 46 of 1982, sec. 8, (w.e.f. 21-8-1984).

8. Ins. by Act 18 of 1952, sec. 3.

9. Subs. by Act 36 of 1956, sec. 7, for “a Tribunal” (w.e.f. 10-3-1957).

10. Subs. by Act 36 of 1956, sec. 7, for the ‘Tribunal” (w.e.f. 10-3-1957).

11. Subs. by Act 36 of 1956, sec. 7, for “Tribunal’ (w.e.f. 10-3-1957).

12. Ins. by Act 36 of 1956, sec. 7 (w.e.f. 10-3-1957).

13. Ins. by Act 36 of 1964, sec. 5 w.e.f. 19-12-1964).

14. Ins. by Act 46 of 1982, sec. 8 (w.e.f. 21-8-1984).

APD1. APPENDIX

Extracts from the Industrial Disputes (Amendment) Act, 1982

(46 OF 1982)

1. Short title and commencement.

(1) x x x x

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Amendment of section 2.

In section 2 of the Industrial Disputes Act, 1947 (14 of 1947) (hereinafter referred to as the principal Act),-

(c) for clause (j) the following clause shall be substituted, namely : -

(j) “Industry’ means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, -

(i) Any capital has been invested for the purpose of carrying on such activity; or

(ii) Such activity is carried on, with a motive to make any gain or profit, and includes-

(a) Any activity of the Dock Labour Board established under section5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);

(b) Any activity relating to the promotion of sales or business or both carried on by an establishment. but does not include.

(1) Any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation.- For the purposes of this sub-clause, “agricultural operation” does not include any activity carried on in a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); or

(2) Hospitals or dispensaries; or

(3) Educational, scientific, research or training institutions; or

(4) Institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or

(5) Khadi or village industries; or

(6) Any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or

(7) Any domestic service; or

(8) Any activity being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or

(9) Any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the cooperative society, club or other like body of individuals in relation to such activity is less than ten;’

7. Insertion of new Chapter IIB.

After section 9B of tie principal Act, the following Chapter shall be inserted, namely

“CHAPTER IIB

REFERENCE OF CERTAIN INDIVIDUAL DISPUTES TO GRIEVANCE

SETTLEMENT AUTHORITIES

9C. Setting up of Grievance Settlement Authorities and reference of certain individual disputes to such authorities.

(1) The employer in relation to every industrial establishment in which fifty or more workmen are employed or have been employed on any day in the preceding twelve months, shall provide for in accordance with the rules made in that behalf under this Act, a Grievance Settlement Authority for the settlement of industrial disputes connected with an individual workman employed in the establishment.

(2) Where an industrial dispute connected with an individual workman arises in an establishment referred to in sub-section (1), a workman or any trade union of workmen of which such workman is a member, refer, in such manner as may be prescribed, such dispute to the Grievance Settlement Authority provided for by the employer under that sub-section for settlement.

(3) The Grievance Settlement Authority referred to in sub-section (1) shall follow such procedure and complete its proceedings within such period as may be prescribed.

(4) No reference shall be made under Chapter III with respect to any dispute referred to in this section unless such dispute has been referred to the Grievance Settlement Authority concerned and the decision of the Grievance Settlement Authority is not acceptable to any of the parties to the dispute.’

22. Amendment of section 38.

In sub-section (2) of section 38 of the principal Act, after clause (aaa), the following clause shall be inserted, namely: -

“[(ab) The constitution of Grievance Settlement Authorities referred to in section 9C, the manner in which industrial disputes may be referred to such authorities for settlement, the procedure to be followed by such authorities in the proceedings in relation to disputes referred to them and the period within which such proceedings shall be completed”.]

Section 10 A. Voluntary reference of disputes to arbitration

¹[10A. Voluntary reference of disputes to arbitration. (1) Where any industrial dispute exists or is apprehended and the employer and the workmen agree to refer the dispute to arbitration, they may, at any time before the dispute has been referred under section 10 to a Labour Court or Tribunal or National Tribunal, by a written agreement, refer the dispute to arbitration and the reference shall be to such person or persons (including the presiding officer of a Labour Court or Tribunal or National Tribunal) as an arbitrator or arbitrators as may be specified in the arbitration agreement.

²[(1 A) Where an arbitration agreement provides for a reference of the dispute to an even number of arbitrators, the agreement shall provide for the appointment of another person as umpire who shall enter upon the reference, if the arbitrators are equally divided in their opinion, and the award of the umpire shall prevail and shall be deemed to be the arbitration award for the purpose of this Act.]

(2) An arbitration agreement referred to in sub-section (1) shall be in such form and shall be signed by the parties thereto in such manner as may be prescribed.

(3) A copy of the arbitration agreement shall be forwarded to the appropriate Government and the conciliation officer and the appropriate Government shall, within ³[one month] from the date of the receipt of such copy, publish the same in the Official Gazette.

⁴[(3A) Where an industrial dispute has been referred to arbitration and the appropriate Government is satisfied that the persons making the reference represent the majority of each party, the appropriate Government may, within the time referred to in sub-section (3), issue a notification in such manner as may be prescribed; and when any such notification is issued, the employers and workmen who are not parties to the arbitration agreement but are concerned in the dispute, shall be given an opportunity of presenting their case before the arbitrator or arbitrators.]

(4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be.

⁴[(4A) Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-section (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference.]

(5) Nothing in the Arbitration Act, 1940 (10 of 1940) shall apply to arbitrations under this section.]

——————–

1. Ins. by Act 36 of 1956, sec. 8 (w.e.f. 10-3-1957).

2. Ins. by Act 36 of 1964, sec. 6 (w.e.f. 19-12,1964).

3. Subs. by Act 36 of 1964, sec. 6, for “fourteen days” (w.e.f. 19-12-1964).

4. Ins. by Act 36 of 1964, sec. 6 (w.e.f 19-12-1964).

Section 11. Procedure and power of conciliation officers, Boards, Courts and Tribunals

¹[(1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.]

(2) A conciliation officer or a member of a Board, ²[ or Court or the presiding officer of a Labour Court, Tribunal or National Tribunal] may for the purpose of inquiry into any existing or apprehended industrial dispute, after giving reasonable notice, enter the premises occupied by any establishment to which the dispute relates.

(3) Every Board, Court, ³[Labour Court, Tribunal and National Tribunal] shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely: -

(a) Enforcing the attendance of any person and examining him on oath;

(b) Compelling the production of documents and material object;

(c) Issuing commissions for the examination of witnesses;

(d) In respect of such other matters as may be prescribed,

And every inquiry or investigation by a Board, Court, ⁴[Labour Court, Tribunal or National Tribunal] shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860).

(4) A conciliation officer ⁵[may enforce the attendance of any person for the purpose of examination of such person or call for] and inspect any document which he has ground for considering to be relevant to the industrial dispute ⁶[or to be necessary for the purpose of verifying the implementation of any award or carrying out any other duty imposed on him under this Act, and for the aforesaid purposes, the conciliation officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), ⁵[ in respect of enforcing the attendance of any person and examining him or of compelling the production of documents]].

⁷[(5) A Court, Labour Court, Tribunal or National Tribunal may, if it so thinks fit, appoint one or more persons having special knowledge of the matter under consideration as an assessor or assessors to advise it in the proceeding before it.

(6) All conciliation officers, members of a board or court and the presiding officers of a Labour Court, Tribunal or National Tribunal shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

(7) Subject to any rules made under this Act, the costs of, and incidental to, any proceeding before a Labour Court, Tribunal or National Tribunal shall be in the discretion of that Labour Court, Tribunal or National Tribunal and the Labour Court, Tribunal or National Tribunal, as the case may be, shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such costs are to be paid, and to give all necessary directions for the purposes aforesaid and such costs may, on application made to the appropriate Government by the person entitled, be recovered by that Government in the same manner as an arrear of land revenue.]

⁸[(8) Every ⁹[Labour Court, Tribunal or National Tribunal] shall be deemed to be Civil Court for the purposes of ¹⁰[sections 345, 346 and 348 of the Code of Criminal Procedure, 1973 (2 of 1974)].]

¹¹[“(9) Every award made, order issued or settlement arrived at by or before Labour Court or Tribunal or National Tribunal shall be executed in accordance with the procedure laid down for execution of orders and decree of a civil court under Order 21 of the Code of Civil Procedure, 1908 (5 of 1908).

(10) The Labour Court or Tribunal or National Tribunal, as the case may be, shall transmit any award, order or settlement to a civil court having jurisdiction and such civil court shall executed the award, order or settlement as if it were a decree passed by it.”]

——————–

1. Subs. by Act 36 of 1956, sec. 9, for sub-section (1) (w.e.f. 10-3-1957).

2. Subs. by Act 36 of 1956, sec. 9, for “Court or Tribunal” (w.e.f. 10-3-1957).

3. Subs. by Act 36 of 1956, sec. 9, for ‘and Tribunal’ (w.e.f. 10-3-1957).

4. Subs. by Act 36 of 1956, sec. 9, for ‘or Tribunal” (w.e.f. 10-3-1957).

5. Subs. by Act 46 of 1982, sec. 9, for certain words (w.e.f. 21-8-1984).

6. Ins. by Act 36 of 1956, sec. 9 (w.e.f. 17-9-1956).

7. Subs. by Act 36 of 1956, sec. 9, for sub-sections (5) to (7) (w.e.f. 10-3-1957), sub-section (7) was ins. by Act 48 of 1950, sec. 34 and Sch.

8. Ins. by Act 48 of 1950, sec. 34 and Sch.

9. Subs. by Act 36 of 1956, sec. 9, for ‘Tribunal” (w.e.f. 10-3-1957).

10. Subs. by Act 46 of 1982, sec. 9, for certain words and figures (w.e.f. 21-8-1984).

11. Ins. by Act. 24 of 2010, sec. 9 & 10 (w.e.f. 18-8-2010).

Section 11 A. Powers of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen

¹[11A. Powers of Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]

——————–

1. Ins. by Act 45 of 1971, sec. 3 (w.e.f. 15-12-1971).

Section 12. Duties of conciliation officers

(1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under section 22 has been given, shall, hold conciliation proceedings in the prescribed manner.

(2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute without delay investigate the dispute and all matters affecting the merits and right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

(3) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government ¹[or an officer authorised in this behalf by the appropriate Government] together with a memorandum of the settlement signed by the parties to the dispute.

(4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at.

(5) If, on a consideration of the report referred to in sub-section (4), the appropriate Government is satisfied that there is a case for reference to a Board, ²[Labour Court, Tribunal or National Tribunal], it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor.

(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government.

³[Provided that, ⁴[subject to the approval of the conciliation officer,] the time for the submission of the report may be extended by such period as may be agreed upon in writing by all the parties to the dispute.]

——————–

1. Ins. by Act 35 of 1965, sec. 4 (w.e.f. 1-12-1965).

2. Subs. by Act 36 of 1956, sec. 10, for “or Tribunal” (w.e.f. 10-3-1957).

3. Ins. by Act 36 of 1956, sec. 10 (w.e.f. 17-9-1956).

4. Ins. by Act 36 of 1964, sec. 8 (w.e.f. 19-12-1964).

Section 13. Duties of Board

(1) Where a dispute has been referred to a Board under this Act, it shall be the duty of the Board to endeavour to bring about a settlement of the same and for this purpose the Board shall, in such manner as it thinks fit and without delay, investigate the dispute and all matters affecting the merit and the right settlement thereof and may do all such things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.

(2) If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings, the Board shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.

(3) If no such settlement is arrived at, the Board shall, as soon as practicable after the close of the investigation, send to the appropriate Government a full report setting for the proceedings and steps taken by the Board for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, its findings thereon, the reasons on account of which, in its opinion, a settlement could not be arrived at and its recommendations for the determination of the dispute.

(4) If, on the receipt of a report under sub-section (3) in respect of a dispute relating to a public utility service, the appropriate Government does not make a reference to a ¹[Labour Court, Tribunal or National Tribunal] under section 10, it shall record and communicate to the parties concerned its reasons therefor.

(5) The Board shall submit its report under this section within two months of the date ²[on which the dispute was referred to it] or within such shorter period as may be fixed by the appropriate Government:

Provided that the appropriate Government may from time to time extend the time for the submission of the report by such further periods not exceeding two months in the aggregate:

Provided further that the time for the submission of the report may be extended by such period as may be agreed on in writing by all the parties to the dispute.

——————–

1. Subs. by Act 36 of 1956, sec. 11, for ‘Tribunal’ (w.e.f. 10-3-1957).

2. Subs. by Act 40 of 1951, sec. 6, for ‘of the notice under section 22”.

Section 14. Duties of Courts

A Court shall inquire into the matters referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry.

Section 15. Duties of Labour Courts, Tribunals and National Tribunals

¹[15. Duties of Labour Courts, Tribunals and National Tribunals. Where an industrial dispute has been referred to a Labour Court, Tribunal or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shal1, ²[within the period specified in the order referring such industrial dispute or the further period extended under the second proviso to sub-section (2A) of section 10], submit its award to the appropriate Government.

——————–

1. Subs. by Act 36 of 1956, sec. 12, for sections 15,16,17and 17A (w.e.f. 10-3-1957), Section 17A was ins. by Act 48 of 1950, sec. 34 and Sch.

2. Subs. by Act 46 of 1982, sec. 10, for certain words (w.e.f. 21-8-1984).

Section 16. Form of report or award

(1) The report of a Board or Court shall be in writing and shall be signed by all the members of the Board or Court, as the case may be:

Provided that nothing in this section shall be deemed to prevent any member of the Board or Court from recording any minute of dissent from a report or from any recommendation made therein.

(2) The award of a Labour Court or Tribunal or National Tribunal shall be in writing and shall be signed by its presiding officer.

Section 17. Publication of reports and awards

(1) Every report of a Board or Court together with any minute of dissent recorded therewith, every arbitration award and every award of a Labour Court, Tribunal or National Tribunal shall, within a period of thirty days from the date of its receipt by the appropriate Government, be published in such manner as the appropriate Government thinks fit.

(2) Subject to the provisions of section 17A, the award published under sub-section (1) shall be final and shall not be called in question by any Court in any manner whatsoever.

Section 17 A. Commencement of the award

(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication under section 17):

Provided that-

(a) If the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or

(b) If the Central Government is of opinion, in any case where the award has been given by a National Tribunal,

That it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.

(2) Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award under section 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, Jay the award together with a copy of the order before the Legislature of the State, if the order has been made by a State Government, or before Parliament, if the order has been made by the Central Government.

(3) Where any award as rejected or modified by an order made under subsection (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid; and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in subsection (2).

(4) Subject to the provisions of sub-section (1) and sub-section (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under sub-section (1) or sub-section (3), as the case may be.]

Section 17 B. Payment of full wages to workman pending proceedings in higher courts

¹[17B. Payment of full wages to workman pending proceedings in higher courts. Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.]

——————–

1. Ins. by Act 46 of 1982, sec. 11 (w.e.f. 21-8-1984).

Section 18. Persons on whom settlements and awards are binding

¹[(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.

(2) ²[Subject to the provisions of sub-section (3), an arbitration award] which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration.]

³[(3)] A settlement arrived at in the course of conciliation proceedings under this Act ⁴[or an arbitration award in a case where a notification has been issued under sub-section (3A) of section IOA] or ⁵[an award ⁶[of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on-

(a) All parties to the industrial dispute;

(b) All other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, ⁷[arbitrator] ⁸[Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause;

(c) Where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;

(d) Where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part.

——————–

1. Ins. by Act 36 of 1956, sec. 13 (w.e.f. 7-10-1956).

2. Subs. by Act 36 of 1964, sec. 9, for “An arbitration award” (w.e.f. 19-12-1964).

3. Section 18 re-numbered as sub-section (3) of that section by Act 36 of 1956, sec. 13 (w.e.f. 7-10-1956).

4. Ins. by Act 36 of 1964, sec. 9 (w.e.f. 19-12-1964).

5. Subs. by Act 48 of 1950, sec. 34 and Sch., for ‘an award which is declared by the appropriate Government to be binding under sub-section (2) of section 15”.

6. Ins. by Act 36 of 1956, sec. 13 (w.e.f. 10-3-1957).

7. Ins. by Act 36 of 1964, sec. 9 (w.e.f. 19-12-1964).

8. Subs. by Act 36 of 1956, sec. 13, for “or Tribunal” (w.e.f. 10-3-1957).

Section 19. Period of operation of settlements and awards

(1) A settlement ¹[* * *] shall come into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of the settlement is signed by the parties to the dispute.

(2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period is agreed upon, for a period of six months ²[from the date on which the memorandum of settlement is signed by the parties to the dispute], and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.

³[(3) An award shall, subject to the provisions of this section, remain in operation for a period of one year ⁴[from the date on which the award becomes enforceable under section 17A]:

Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit:

Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.

(4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it ⁵[to a Labour Court, if the award was that of a Labour Court or to a Tribunal, if the award was that of a Tribunal or of a National Tribunal], for decision whether the period of operation should not, by reason of such change, be shortened and the decision of ⁶[Labour Court or the Tribunal, as the case may be] on such reference shall, ⁷[***] be final.

(6) Nothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.

(7) Notwithstanding the expiry of the period of operation under subsection (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating it intention to terminate the award.

⁴[(8) No notice given under sub-section (2) or sub-section (6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be.]

——————–

1. The words “arrived at in the course of a conciliation proceedings under this Act” omitted by Act 36 of 1956, sec. 14, (w.e.f. 7-10-1956).

2. Ins. by Act 36 of 1956, sec. 14 (w.e.f. 7-10-1956).

3. Subs. by Act 48 of 1950, sec. 34 and sch., for sub-section (3).

4. Ins. by Act 36 of 1956, sec. 14 (w.e.f. 7-10-1956).

5. Subs. by Act 36 of 1956, sec. 14, for “to a Tribunal” (w.e.f. 10-3-1957).

6. Subs. by Act 36 of 1956, sec. 14, for “the Tribunal” (w.e.f. 10-3-1957).

7. The words ‘subject to the provision for appeal’ omitted by Act 36 of 1956, sec. 14, (w.e.f. 10-3-1957).

Section 20. Commencement and conclusion of proceedings

(1) A conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike or lock-out under section 22 is received by the conciliation officer or on the date of the order referring the dispute to a Board, as the case may be.

(2) A conciliation proceeding shall be deemed to have concluded.

(a) Where a settlement is arrived at, when a memorandum of the settlement is signed by the parties to the dispute;

(b) Where no settlement is arrived at, when the report of the conciliation officer is received by the appropriate Government or when the report of the Board is published under section 17, as the case may be; or

(c) When a reference is made to a Court, ¹[Labour Court, Tribunal or National Tribunal] under section 10 during the pendency of conciliation proceedings.

(3) Proceedings ²[before an arbitrator under section 10A or before a Labour Court, Tribunal or National Tribunal I shall be deemed to have commenced on the date of the ³[reference of the dispute for arbitration or adjudication, as the case may be] and such proceedings shall be deemed to have concluded ⁴[on the date on which the award becomes enforceable under section 17A].

——————–

1. Subs. by Act 36 of 19Ei6, sec. 15, for ‘or Tribunal” (w.e.f. 10-3-1957).

2. Subs. by Act 36 of 1956, sec 15, for “before a Tribunal” (w.e.f. 10-3-1957).

3. Subs. by Act 36 of 1956, sec. 15, for “reference of a dispute for adjudication (w.e.f. 10-3-1957).

4. Subs. by Act 18 of 1952, sec. 4, for certain words and figures.

Section 21. Certain matters to be kept confidential

There shall not be included in any report or award under this Act, any information obtained by a conciliation officer, Board, Court, ¹[Labour Court, Tribunal, National Tribunal or an arbitrator] in the course of any investigation or inquiry as to a trade union or as to any individual business (whether carried on by a person, firm or company) which is not available otherwise than through the evidence given before such officer, Board, Court, ¹[Labour Court, Tribunal, National Tribunal or arbitrator], if the trade union, person, firm or company, in question has made a request in writing to the conciliation officer, Board, Court ¹[Labour Court, Tribunal, National Tribunal or arbitrator], as the case may be, that such information shall be treated as confidential; nor shall such conciliation officer or any individual member of the Board , ²[ or Court or the presiding officer of the Labour Court, Tribunal or National Tribunal or the arbitrator] or any person present at or concerned in the proceedings disclose any such information without the consent in writing of the secretary of the trade union or the person, firm or company in question, as the case may be:

Provided that nothing contained in this section shall apply to a disclosure of any such information for the purposes of a prosecution under section 193 of the Indian Penal Code (45 of 1860).

——————–

1. Subs. by Act 36 of 1956, sec. 16, for “or Tribunal” (w.e.f. 10-3-1957).

2. Subs. by Act 36 of 1956, sec. 16, for ‘court or Tribunal” (w.e.f 10-3-1957).

Section 22. Prohibition of strikes and lock-outs

(1) No person employed in a public utility service shall go on strike, in breach of contract-

(a) Without giving to the employer notice of strike, as hereinafter provided, within six weeks before striking; or

(b) Within fourteen days of giving such notice; or

(c) Before the expiry of the date of strike specified in any such notice as aforesaid; or

(d) During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

(2) No employer carrying on any public utility service shall lock-out any of his workman-

(a) Without giving them notice of lock-out as hereinafter provided, within six weeks before locking-out ; or

(b) Within fourteen days of giving such notice; or

(c) Before the expiry of the date of lock-out specified in any such notice as aforesaid ; or

(d) During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

(3) The notice of lock-out or strike under this section shall not be necessary where there is already in existence a strike or, as the case may be, lock-out in the public utility service, but the employer shall send intimation of such lockout or strike on the day on which it is declared, to such authority as may be specified by the appropriate Government either generally or for a particular area or for a particular class of public utility services.

(4) The notice of strike referred to in sub-section (1) shall be given by such number of persons to such person or persons and in such manner as may be prescribed.

(5) The notice of lock-out referred to in sub-section (2) shall be given in such manner as may be prescribed.

(6) If on any day an employer receives from any person employed by him any such notices as are referred to in sub-section (1) or gives to any persons employed by him any such notices as are referred to in sub-section (2), he shall within five days, thereof report to the appropriate Government or to such authority as that Government may prescribe the number of such notices received or given on that day.

Section 23. General prohibition of strikes and lock-outs

No workman who is employed in any industrial establishment shall go on strike in breach of contract and no employer of any such workman shall declare a lock-out.

(a) During the pendency of conciliation proceedings before a Board and seven days after the conclusion of such proceedings;

(b) During the pendency of proceedings before ¹[a Labour Court, Tribunal or National Tribunal] and two months, after the conclusion of such proceedings; ²[* * *]

³[(bb) During the pendency of arbitration proceedings before an arbitrator and two months after the conclusion of such proceedings, where a notification has been issued under sub-section (3A) of section 10A; or]

(c) During any period in which a settlement or award is in operation, in respect of any of the matters covered by the settlement or award.

——————–

1. Subs. by Act 36 of 1956, sec. 17, for ‘a Tribunal’ (w.e.f. 10-3-1957).

2. The word ‘or” omitted by Act 36 of 1964, sec. 11 (w.e.f. 19-12-1964).

3. Ins. by Act 36 of 1964, sec. 11, (w.e.f. 19-12-1964).

Section 24.Illegal strikes and lock-outs

(1) A strike or a lock-out shall be illegal if-

(i) It is commenced or declared in contravention of section 22 or section 23; or

(ii) It is continued in contravention of an order made under sub-section(3) of section 10 ¹[or sub-section (4A) of section 10 A].

(2) Where a strike or lock-out in pursuance of an industrial dispute has already commenced and is in existence at the time of the reference of the dispute to a Board, 1[an arbitrator, a] ²[Labour Court, Tribunal or national Tribunal], the continuance of such strike or lock-out shall not be deemed to be illegal, provided that such strike or lock-out was not at its commencement in contravention of the provisions of this Act or the continuance thereof was not prohibited under sub-section (3) of section 10 1[or sub-section (4A) of section 10A].

(3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal.

——————–

1. Ins. by Act 36 of 1964, sec. 12, (w.e.f 19-12-1964).

2. Subs. by Act 36 of 1956, sec. 18, for ‘or Tribunal’ (w.e.f. 10-3-1957).

Section 25. Prohibition of financial aid to illegal strikes and lock-outs

No person shall knowingly expend or apply any money in direct furtherance or support of any illegal strike or lock-out.

¹[CHAPTER VA

LAY-OFF AND RETRENCHMENT

——————–

1. Ins. by Act 43 of 1953, sec. 3 (w.e.f. 2,4-10-1953).

Section 25 A.Application of sections 25C to 25E

(1) Sections 25C to 25E inclusive shall not apply to Industrial Establishments to which Chapter VB applies, or-

(a) To industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calendar month; or

(b) To industrial establishments which are of a seasonal character or in which work is performed only intermittently.

(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.

Explanation.

In this section and in sections 25C, 25D and 25E, “industrial establishment” means.

(i) A factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948); or

(ii) A mine as defined in clause (o) of section 2 of the Mines Act, 1952 (35 of 1952); or

(iii) A plantation as defined in clause (o) of section 2 of the Plantations Labour Act, 1951 (69 of 1951)].

Section 25 B. Definition of continuous service

¹[25B. Definition of continuous service. For the purposes of this Chapter, -

(1) A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or as strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer.

(a) For a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) One hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) Two hundred and forty days, in any other case;

(b) For a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than.

(i) Ninety-five days, in the case of workman employed below ground in a mine; and

(ii) One hundred and twenty days, in any other case.

Explanation.

For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall include the days on which-

(i) He has been laid-off under an agreement or as permitted by standing orders made under the industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Act or under any other law applicable to the industrial establishment;

(ii) He has been on leave with full wages, earned in the previous years;

(iii) He has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and

(iv) In the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]

——————–

1. Subs. by Act 36 of 1964, sec. 13, for section 25B (w.e.f. 19-12-1964).

Section 25 C. Right of workmen laid-off for compensation

¹[25C. Right of workmen laid-off for compensation. Whenever a workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid off, whether continuously or intermittently, he shall be paid by the employer for all days during which he is so laid-off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent, of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off :

Provided that if during any period of twelve months, a workman is so laid-off for more than forty-five days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the first forty-five days, if there is an agreement to that effect between the workman and the employer:

Provided further that it shall be lawful for the employer in any case falling within the foregoing proviso to retrench the workman in accordance with the provisions contained in section 25F at any time after the expiry of the first forty five days of the lay-off and when he does so, any compensation paid to the workman for having been laid-off during the preceding twelve months may be set off against the compensation payable for retrenchment.

Explanation.

‘Badli workman” means a workman who is employed in an industrial establishment in the place of another workman whose name is borne on the muster rolls of the establishment, but shall cease to be regarded as such for the purposes of this section, if he has completed one year of continuous service in the establishment.]

——————–

1. Subs. by Act 35 of 1965, sec. 5, for the former section (w.e.f. 1-12-1965).

Section 25 D. Duty of an employer to maintain musters rolls of workmen

Notwithstanding that workmen in any industrial establishment have been laid-off, it shall be the duty of every employer to maintain for the purposes of this Chapter a muster roll, and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours.

Section 25 E. Workmen not entitled to compensation in certain cases

No compensation shall be paid to a workman who has been laid-off-

(i) If he refuses to accept any alternative employment in the same establishment from which he has been laid-off, or in any other establishment belonging to the same employer situate in the same town or village or situate within a radius of five miles from the establishment to which he belongs, if, in the opinion of the employer, such alternative employment does not call for any special skill or previous experience and can be done by the workman, provided that the wages which would normally have been paid to the workman are offered for the alternative employment also ;

(ii) If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day;

(iii) If such laying-off is due to a strike or slowing-down of production on the part of workmen in another part of the establishment.

Section 25 F. Conditions precedent to retrenchment of workmen

No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a) The workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; ¹[* * * * *]

(b) The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay ²[ for every completed year of continuous service] or any part thereof in excess of six months; and

(c) Notice in the prescribed manner is served on the appropriate Government ³[for such authority as may be specified by the appropriate Government by notification in the Official Gazette].

——————–

1. The proviso omitted by Act 49 of 1984, sec. 32 (w.e.f. 18-8-1984).

2. Subs. by Act 36 of 1964, sec. 14, for “for every completed year of service” (w.e.f. 19-12-1964).

3. Ins. by Act 36 of 1964, sec. 14 (w.e.f. 19-12-1964).

Section 25 FF. Compensation to workmen in case of transfer of undertakings

¹[25FF. Compensation to workmen in case of transfer of undertakings. Where the ownership of management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to or that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched :

Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if-

(a) The service of the workman has not been interrupted by such transfer;

(b) The terms and conditions of service applicable to the workman after such transfer are not in any way less favourable to the workman than those applicable to him immediately before the transfer; and

(c) The new employer is, under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer.

——————–

1. Subs. by Act 18 of 1957, sec. 3, for the former section (w.e.f. 28-11-1956). Section 25FF was originally ins. by Act 41 of 1956, sec. 3.

Section 25 FFA. Sixty days’ notice to be given of intention to close down any undertaking

¹[25FFA. Sixty days’ notice to be given of intention to close down any undertaking. (1) An employer who intends to close down an undertaking shall serve, at least sixty days before the date on which the intended closure is to become effective, a notice, in the prescribed manner, on the appropriate Government stating clearly the reasons for the intended closure of the undertaking:

Provided that nothing in this section shall apply to-

(a) An undertaking in which-

(i) Less than fifty workmen are employed, or

(ii) Less than fifty workmen were employed on an average per working day in the preceding twelve months,

(b) An undertaking set up for the construction of buildings, bridges, roads, canals, and dams or for other construction work or project.

(2) Notwithstanding anything contained in sub-section (1), the appropriate Government, may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like it is necessary so to do, by order, direct that provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order.]

——————–

1. Ins. by Act 32 of 1972, sec. 2 (w.e.f. 14-6-1972).

Section 25 FFF. Compensation to workmen in case of closing down of undertakings

(1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensation in accordance with the provisions of section 25F, as if the workman had been retrenched:

Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F, shall not exceed his average pay for three months.

¹[Explanation.

An undertaking which is closed down by reason merely of-

(i) Financial difficulties (including financial losses); or

(ii) Accumulation of indisposed stocks; or

(iii) The expiry of the period of the lease or licence granted to it; or

(iv) In case where the undertaking is engaged in mining operations, exhaustion of the minerals in the area in which operations are carried on,

Shall not be deemed to be closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this sub-section.]

²[(1A) Notwithstanding anything contained in sub-section (1), where an undertaking engaged in mining operations is closed down by reason merely of exhaustion of the minerals in the area in which such operations are carried on, no workman referred to in that sub-section shall be entitled to any notice or compensation in accordance with the provisions of section 25F, if-

(a) The employer provides the workman with alternative employment with effect from the date of closure at the same remuneration as he was entitled to receive, and on the same terms and conditions of service as were applicable to him, immediately before the closure;

(b) The service of the workman has not been interrupted by such alternative employment; and

(c) The employer is, under the terms of such alternative employment or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by such alternative employment.

(1B) For the purposes of sub-sections (1) and (IA), the expressions minerals’ and ‘mining operations” shall have the meanings respectively assigned to them in clauses (a) and (b) of section 3 of the Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957).]

(2) Where any undertaking set-up for the construction of buildings, bridges, roads, canals, dams or other construction work is closed down on account of the completion of the work within two years from the date on which the undertaking had been set-up, no workman employed therein shall be entitled to any compensation under clause (b) of section 25F, but if the construction work is not so completed within two years, he shall be entitled to notice and compensation under that section for every ³[completed year of continuous service] or any part thereof in excess of six months].

——————–

1. Subs. by Act 45 of 1971, sec. 4, for the original Explanation (w.e.f. 15-l2-1971).

2. Ins. by Act 45 of 1971, sec. 4 (w.e.f. 15-12-1971).

3. Subs. by Act 36 of 1964, sec. 15, for “completed year of service’ (w.e.f. 19-12-1964).

Section 25 G. Procedure for retrenchment

Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

Section 25 H. Re-employment of retrenched workmen

Where any workmen are retrenched, and the employer proposes to take into his employ any persons he shall, in such manner as may be prescribed, give an opportunity ¹[to the retrenched workmen who are citizens of India to offer themselves for reemployment, and such retrenched workmen] who offer themselves for reemployment shall have preference over other persons,

——————–

1. Subs. by Act 36 of 1964, sec. 16, for certain words (w.e.f 19-12-1964).

Section 25 I. Recovery of moneys due from employers under this Chapter

Rep. by The Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (36 of 1956), sec. 19 (w.e.f. 10-3-1957).

Section 25 J. Effect of Laws inconsistent with this Chapter

(1) The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law [including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946)]:

¹[Provided that where under the provisions of any other Act or rules, orders or notifications issued thereunder or under any standing orders or any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act; the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.]

(2) For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay-off and retrenchment shall be determined in accordance with the provisions of this Chapter.]

——————–

1. Subs. by Act 36 of 1964, sec. 17, for the proviso (w.e.f. 19-12-1964).

¹[CHAPTER VB

SPECIAL PROVISIONS RELATING TO LAY-OFF, RETRENCHMENT AND CLOSURE IN CERTAIN ESTABLISHMENTS

——————–

1. Chapter VB added by Act 32 of 1976, sec. 3 (w.e.f. 5-3-1976).

Section 25 K. Application of Chapter VB

(1) The provisions of the chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than ¹[one hundred] workmen were employed on an average per working day for the preceding twelve months.

(2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final.

——————–

1. Subs. by Act 46 of 1982, sec. 12, for the words ‘three hundred” (w.e.f. 31-8-1984).

Section 25 L. Definitions

For the purposes of this Chapter, -

(a) ‘Industrial establishment’ means-

(i) A factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(ii) A mine as defined in clause (o) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952); or

(iii) A plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);

(b) Notwithstanding anything contained in sub-clause (ii) of clause (a) of section 2,-

(i) In relation to any company in which not less than fifty-one per cent. of the paid-up share capital is held by the Central Government, or

(ii) In relation to any corporation not being a corporation referred to in sub-clause (i) of clause (a) of section 2 established by or under any law made by Parliament, the Central Government shall be the appropriate Government.

Section 25 M. Prohibition of lay-off

(1) No workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment to which this Chapter applies shall be laid-off by his employer except ¹[with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority), obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such layoff is due also to fire, flood, excess of inflammable gas or explosion].

²[(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended lay-off and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.

(3) Where the workmen (other than badli workmen or casual workmen) of an industrial establishment, being a mine, have been laid-off under subsection (I) for reasons of fire, flood or excess of inflammable gas or explosion, the employer, in relation to such establishment, shall, within a period of thirty days from the date of commencement of such lay-off, apply, in the prescribed manner, to the appropriate Government or the specified authority for permission to continue the lay-off.

(4) Where an application for permission under sub-section (1) or subsection (3) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such lay-off, may, having regard to the genuineness and adequacy of the reasons for such lay-off, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.

(5) Where an application for permission under sub-section (1) or subsection (3) has been made and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.

(6) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of subsection (7), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.

(7) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (4) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication :

Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.

(8) Where no application for permission under sub-section (1) is made, or where no application for permission under sub-section (3) is made within the period specified therein, or where the permission for any lay-off has been refused, such lay-off shall be deemed to be illegal from the date on which the workmen had been laid-off and the workmen shall be entitled to all the benefits under any law for the time being in force as if they had not been laid-off.

(9) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1), or, as the case may be, sub-section (3) shall not apply in relation to such establishment for such period as may be specified in the order.]

³[10] The provisions of section 25C (other than the second proviso thereto) shall apply to cases of lay-off referred to in this section.

Explanation.

For the purposes of this section, a workman shall not be deemed to be laid-off by an employer if such employer offers any alternative employment (which in the opinion of the employer does not call for any special skill or previous experience and can be done by the workman) in the same establishment from which he has been laid-off or in any other establishment belonging to the same employer, situate in the same town or village, or situate within such distance from the establishment to which he belongs that the transfer will not involve undue hardship to the workman having regard to the facts and circumstances of his case, provided that the wages which would normally have been paid to the workman are offered for the alternative appointment also.

——————–

1. Subs. by Act 49 of 1984, sec. 4, for certain words (w.e.f. 18-8-1984).

2. Subs. by Act 49 of 1984, sec. 4, for sub-sections (2) to (5) (w.e.f. 18-8-1984).

3. Sub-section (6) renumbered as sub-section (10) by Act 49 of 1984, sec. 4 (w.e.f. 18-8-1984).

Section 25 N. Conditions precedent to retrenchment of workmen

¹[25N. Conditions precedent to retrenchment of workmen. (1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until, -

(a) The workman has been given three months’ notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and

(b) The prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.

(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.

(3) Where an application for permission under sub-section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the person interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.

(4) Where an application for permission has been made under sub-section (1)and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.

(5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of subsection (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.

(6) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication :

Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.

(7) Where no application for permission under sub-section (1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him.

(8) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such establishment for such period as may be specified in the order.

(9) Where permission for retrenchment has been granted under subsection (3) or where permission for retrenchment is deemed to be granted under sub-section (4), every workman who is employed in that establishment immediately before the date of application for permission under this section shall be entitled to receive, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months.]

——————–

1. Subs. by Act 49 of 1984, sec. 5, for section 25 N (w.e.f. 18-8-1984).

Section 25 O. Procedure for closing down an undertaking

¹[25O. Procedure for closing down an undertaking. (1) An employer who intends to close down an undertaking of an industrial establishment to which this Chapter applies shall, in the prescribed manner, apply, for prior permission at least ninety days before the date on which the intended closure is to become effective, to the appropriate Government, stating clearly the reasons for the intended closure of the undertaking and a copy of such application shall also be served simultaneously on the representatives of the workmen in the prescribed manner:

Provided that nothing in this sub-section shall apply to an undertaking set up for the construction of buildings, bridges, roads, canals, and dams or for other construction work.

(2) Where an application for permission has been made under sub-section (1) the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and the persons interested in such closure may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.

(3) Where an application has been made under sub-section (1) and the appropriate Government does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.

(4) An order of the appropriate Government granting or refusing to grant permission shall, subject to the provisions of sub-section (5), be final and binding on all the parties and shall remain in force for one year from the date of such order.

(5) The appropriate Government may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub-section (2) or refer the matter to a tribunal for adjudication:

Provided that where a reference has been made to a Tribunal under this sub-section, it shall pass an award within a period of thirty days from the date of such reference.

(6) Where no application for permission under sub-section (1) is made within the period specified therein, or where the permission for closure has been refused, the closure of the undertaking shall be deemed to be illegal from the date of closure and the workmen shall be entitled to all the benefits under any law for the time being in force as if the undertaking had not been closed down.

(7) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the undertaking or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub-section (1) shall not apply in relation to such undertaking for such period as may be specified in the order. (8) Where an undertaking is permitted to be closed down under sub-section (2) or where permission for closure is deemed to be granted under subsection (3), every workman who is employed in that undertaking immediately before the date of application for permission under this section, shall be entitled to receive compensation which shall be equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months.]

——————-

1. Subs. by Act 46 of 1982, sec. 14, for section 250 (w.e.f. 21-8-1984).

Section 25 P. Special provision as to restarting undertakings closed down before commencement of the Industrial Disputes (Amendment) Act, 1976

If the appropriate Government is of opinion in respect of any undertaking or an industrial establishment, to which this Chapter applies and which closed down before the commencement of the Industrial Disputes (Amendment) Act, 1976 (32 of 1976)-

(a) That such undertaking was closed down otherwise than on account of unavoidable circumstances beyond the control of the employer;

(b) That there are possibilities of restarting the undertaking;

(c) That it is necessary for the rehabilitation of the workmen employed in such undertaking before its closure or for the maintenance of supplies and services essential to the life of the community to restart the undertaking or both; and

(d) That the restarting of the undertaking will not result in hardship to the employer in relation to the undertaking,

It may, after giving an opportunity to such employer and workmen, direct, by order published in the Official Gazette, that the undertaking shall be restarted within such time (not being less than one month from the date of the order) as may be specified in the order.

Section 25 Q. Penalty for lay-off and retrenchment without previous permission

Any employer who contravenes the provisions of section 25M or ¹[* * *] of section 25N shall be punishable with imprisonment for a term, which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

——————–

1. Certain words omitted by Act 49 of 1984, sec. 6 (w.e.f. 18-8-1984).

Section 25 R. Penalty for closure

(1) Any employer who closes down an undertaking without complying with the provisions of sub-section (1) of section 250 shall be punishable with imprisonment for a term, which may extend to six months, or with fine, which may extend to five thousand rupees, or with both.

(2) Any employer, who contravenes ¹[an order refusing to grant permission to close down an undertaking under sub-section (2) of section 25O or a direction given under section 25P], shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both, and where the contravention is a continuing one, with a further fine which may extend to two thousand rupees for every day during which the contravention continues after the conviction.

²[* * * * *]

——————–

1. Subs. by Act 46 of 1982, sec. 15, for certain words (w.e.f. 21-8-1984).

2. Sub-section (3) omitted by Act 46 of 1982, sec. 15 (w.e.f. 21-8-1984).

Section 25 S. Certain provisions of Chapter VA to apply to industrial establishment to which this Chapter applies

The provisions of sections 25B, 25D, 25FF, 25G, 25H and 25J in Chapter VA shall, so far as may be, apply also in relation to an industrial establishment to which the provisions of this Chapter apply.]

¹[CHAPTER VC]

UNFAIR LABOUR PRACTICES

——————–

1. Ins. by Act 46 of 1982, sec. 16 (w.e.f. 21-8-1984).

Section 25 T. Prohibition of unfair labour practice

No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.

Section 25 U. Penalty for committing unfair labour practices

Any person who commits any unfair labour practice shall be punishable with imprisonment for a term, which may extend to six months or with fine which may extend to one thousand rupees or with both.

Section 26. Penalty for illegal strikes and lock-outs

(1) Any workman who commences, continues or otherwise acts in furtherance of, a strike which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to fifty rupees, or with both.

(2) Any employer who commences, continues, or otherwise acts in furtherance of a lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

Section 27. Penalty for instigation, etc

Any person who instigates or incites others to take part in, or otherwise acts in furtherance of, a strike or lock-out which is illegal under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 28. Penalty forgiving financial aid to illegal strikes and lock-outs

Any person who knowingly expends or applies any money in direct furtherance or support of any illegal strike or lock-out shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 29. Penalty for breach of settlement or award

¹[29. Penalty for breach of settlement or award. Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, ²[and where the breach is a continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction for the first] and the Court trying the offence, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid, by way of compensation, to any person who, in its opinion has been injured by such breach.]

——————–

1. Subs. by Act 36 of 1956, sec. 20, for section 29 (w.e.f. 17-9-1956).

2. Ins. by Act 35 of 1965, sec. 6 (w.e.f. 1-12-1965).

Section 30. Penalty for disclosing confidential information

Any person who wilfully discloses any such information as is referred to in section 21 in contravention of the provisions of that section shall, on complaint made by or on behalf of the trade union or individual business affected, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 30 A. Penalty for closure without notice

¹[30A. Penalty for closure without notice. Any employer who closes down any undertaking without complying with the provisions of section 25FFA shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both.]

——————–

1. Ins. by Act 32 of 1972, sec. 3 (w.e.f. 14-6-1972).

Section 31. Penalty for other offences

(1) Any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term, which may extend to six months, or with fine, which may extend to one thousand rupees, or with both.

(2) Whoever contravenes any of the provisions of this act or any rule made thereunder shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with fine, which may extend to one hundred rupees.

Section 32. Offence by companies, etc

Where a person committing an offence under this Act is a company, or other body corporate, or an association of persons (whether incorporated or not), every director, manager, secretary, agent or other officer or person concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.

Section 33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings

¹[33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings. (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before ²[an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall-

(a) In regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) For any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute ²[or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]-

(a) Alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) For any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer

(3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute-

(a) By altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) By discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.

Explanation.

For the purposes of this sub-section, a “protected workman”, in relation to an establishment, means a workman who, being ³[a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.

(5) Where an employer makes an application to a conciliation officer, Board, ⁴[an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, ⁵[within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit :]

⁶[Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]

——————–

1. Subs. by Act 36 of 1956, sec. 21, for section 33 (w.e.f. 10-3-1957).

2. lns. by Act 36 of 1964, sec. 18 (w.e.f. 19-12-1964).

3. Subs. by Act 45 of 1971, sec. 5, for ‘an officer’ (w.e.f. 15-12-1971).

4. Ins. by Act 36 of 1964, sec. 18 (w.e.f. 19-12-64).

5. Subs. by Act 46 of 1982, sec. 17, for certain words (w.e.f. 21-8-1984).

6. Ins. by Act 46 of 1982, sec. 17 (w.e.f. 21-8-1984).

Section 33 A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding

¹[33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding. Where an employer contravenes the provisions of section 33 during the pendency of proceedings ²[before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal] any employee aggrieved by such contravention, may make a complaint in writing, ²[in the prescribed manner, -

(a) To such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and

(b) To such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate government and the provisions of this Act shall apply accordingly.]

——————–

1. Ins. by Act 48 of 1950, sec. 34 and sch.

2. Subs. by Act 46 of 1982, sec. 18 (w.e.f. 21-8-1984).

Section 33 B. Power to transfer certain proceedings

¹[33B. Power to transfer certain proceedings. (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred:

Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court.

(2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so authorised by the appropriate Government, may transfer any proceeding under section 33 or section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same.]

——————–

1. Ins. by Act 36 of 1956, sec. 23 (w.e.f. 10-3-1957).

Section 33 C. Recovery of Money Due from an Employer

¹[33C. Recovery of Money Due from an Employer. (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of ²[Chapter VA or Chapter VB] the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue :

Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.

(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government ³[within a period not exceeding three months.]

⁴[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]

(3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.

(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1).

(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.

Explanation.

In this section ‘Labour Court’ includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.]

——————–

1. Subs. by Act 36 of 1964, sec. 19, for the former section (w.e.f. 19-12,1964).

2. Subs. by Act 32 of 1976, sec. 4 (w.e.f. 5-3-1976).

3. Ins. by Act 46 of 1982, sec. 19 (w.e.f. 21-8-1984).

4. Added by Act 46 of 1982, sec. 19 (w.e.f. 21-8-1984).

Section 34. Cognizance of offences

(1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government.

(2) No Court inferior to that of ¹[a Metropolitan Magistrate or a judicial Magistrate of the first class] shall try any offence punishable under this Act.

——————-

1. Subs. by Act 46 of 1982, sec. 20, for certain words (w.e.f. 21-8-1984).

Section 35. Protection of persons

(1) No person refusing to take part or to continue to take part in any strike or lock-out which is illegal under this Act shall, by reason of such refusal or by reason of any action taken by him under this section, be subject to expulsion from any trade union or society, or to any fine or penalty, or to deprivation of any right or benefit to which he or his legal representatives would otherwise be entitled, or be liable to be placed in any respect, either directly or indirectly, under any disability or at any disadvantage as compared with other members of the union or society, anything to the contrary in the rules of a trade union or society notwithstanding.

(2) Nothing in the rules of a trade union or society requiring the settlement of disputes in any manner shall apply to any proceeding for enforcing any right or exemption secured by this section, and in any such proceeding the Civil Court may, in lieu of ordering a person who has been expelled from membership of a trade union or society to be restored to membership, order that he be paid out of the funds of the trade union or society such sum by way of compensation or damages as that Court thinks just.

Section 36. Representation of parties

¹[36.Representation of parties. (1) A workman who is a party to dispute shall be entitled to be represented in any proceeding under this Act by-

(a) ²[Any member of the executive or other office bearer] of a registered trade union of which he is a member;

(b) ²[Any member of the executive or other office bearer] of a federation of trade unions to which the trade union referred to in clause (a) is affiliated;

(c) Where the worker is not a member of any trade union, by ²[any member of the executive or other office bearer] of any trade union connected with, or by any other workman employed in, the Industry in which the worker is employed and authorised in such manner as may be prescribed.

(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by-

(a) An officer of an association of employers of which he is a member;

(b) An officer of a federation of association of employers to which the association referred to in clause (a) is affiliated-

(c) Where the employer is not a member of any association of employers, by an officer of any association of employers connected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed.

(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Act or in any proceedings before a Court.

(4) In any proceeding ³[before a Labour Court, Tribunal or National Tribunal], a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and ⁴[with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].]

——————–

1. Subs. by Act 48 of 1950, sec. 34 and Sch., for the original section.

2. Subs. by Act 45 of 1971, sec. 6, for ‘an officer” (w.e.f. 15-12-1971).

3. Subs. by Act 36 of 1956, sec. 24, for “before a Tribunal” (w.e.f. 10-3-1957).

4. Subs. by Act 36 of 1956, sec. 24, for “with the leave of the Tribunal” (w.e.f. 10-3-1957).

Section 36 A. Power to remove difficulties

¹[36A. Power to remove difficulties. (1) If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit.

(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after giving the parties an opportunity of being heard, decide such question and its decision shall be final and binding on all such parties.]

——————–

1. Ins. by Act 36 of 1956, sec. 25, (w.e.f. 10-3-1957).

Section 36 B. Power to exempt

¹[36B. Power to exempt. Where the appropriate government is satisfied in relation to any industrial establishment or undertaking or any class of industrial establishments or undertakings carried on by a department of that Government that adequate provisions exist for the investigation and settlement of industrial disputes in respect of workmen employed in such establishment or undertaking or class of establishments or undertakings, it may by notification in the Official Gazette, exempt, conditionally or unconditionally such establishment or undertaking or class of establishments or undertakings from all or any of the provisions of this Act.].

——————–

1. Ins. by Act 46 of 1982, sec.21 (w.e.f. 21-8-1984).

Section 37. Protection of action taken under the Act

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

Section 38. Power to make rules

¹38. Power to make rules. (1) The appropriate Government may, subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely.

[¹(a)¹⁰[***]

(b) [***]]

⁴[¹¹“(c) the salaries and allowances and the terms and conditions for appointment of the presiding officers of the Labour Court, Tribunal and the National Tribunal including the allowances admissible to members of courts, Boards and to assessors and witnesses;”]

(d) The ministerial establishment which may be allotted to a Court, Board, ⁴[Labour Court, Tribunal or National Tribunal] and the salaries and allowances payable to members of such establishment;

(e) The manner in which and the persons by and to whom notice of strike or lock-out may be given and the manner in which such notices shall be communicated;

(f) The conditions subject to which parties may be represented by legal practitioners in proceedings under this Act before a Court, ⁵[Labour Court, Tribunal or National Tribunal];

(g) Any other matter which is to be or may be prescribed.

(3) Rules made under this section may provide that a contravention thereof shall be punishable with fine not exceeding fifty rupees.

⁶[(4) All rules made under this section shall, as soon as possible after they are made, be laid before the State Legislature or, where the appropriate Government is the Central Government, before both Houses of Parliament.]

⁷[(5) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in ⁸[two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in 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 validity of anything previously done under that rule.]

——————–

1. Subs. by Act 36 of 1956, sec. 26, for ‘and Tribunal” (w.e.f. 10-3-1957).

2. Ins. by Act 36 of 1956, sec. 26 (w.e.f. 10-3-1957).

3. Ins. by Act 36 of 1964, sec. 20 (w.e.f. 19-12-1964).

4. Subs. by Act 36 of 1956, sec. 26, for “Boards and Tribunals” (w.e.f. 10-3-1957).

5. Subs. by Act 36 of 1956, sec. 26, for “or Tribunal” (w.e.f. 10-3-1957).

6. Ins. by Act 36 of 1956, sec. 26 (w.e.f. 10-3-1957).

7. Ins. by Act 36 of 1964, sec, 20 (w.e.f. 19-12-64).

8. Subs. by Act 32 of 1976, sec. 5 (w.e.f. 5-3-1976).

9. On the enforcement of section22 of Act 46of l982, a new Clause (ab) shall stand inserted in section 38 as directed in section 22 of that Act. For the text of section, 22 of that Act see Appendix.

10. Omitted by Act 24 of 2010 w.e.f. 18-8-2010.

11. Subs. by Act 24 of 2010 w.e.f. 18-8-2010.

Section 39. Delegation of powers

¹[39. Delegation of powers. The appropriate Government may, by notification in the official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also,-

(a) Where the appropriate Government is the Central Government, by such officer or authority subordinate to the Central Government or by the State Government, or by such officer or authority subordinate to the State Government, as may be specified in the notification; and

(b) Where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification.]

——————–

1. Subs. by Act 36 of 1956, sec. 27, for section 39 ( w.e.f. 17-9-1956).

Section 40. Power to amend Schedules

¹[40. Power to amend Schedules. (1) The appropriate Government may, if it is of opinion that it is expedient or necessary in the public interest so to do, by notification in the Official Gazette, add to the First Schedule any industry, and on any such notification being issued, the First Schedule shall be deemed to be amended accordingly.

(2) The Central Government may, by notification in the Official Gazette, add to or alter or amend the Second Schedule or the Third Schedule and on any such notification being issued, the Second Schedule or the Third Schedule, as the case may be, shall be deemed to be amended accordingly

(3) Every such notification shall, as soon as possible after it is issued, be laid before the Legislature of the State, if the notification has been issued by a State Government, or before Parliament, if the notification has been issued by the Central Government.]

——————–

1. Subs. by Act 36 of 1964, sec. 21, for sec. 40 (w.e.f. 19-12-1964) which was ins. by Act 36 of 1956, sec. 28, original section 40 was rep. by Act 35 of 1950, sec. 2 and Sch. I.

SCH1. THE FIRST SCHEDULE

¹[THE FIRST SCHEDULE

[See Section 2 (n) (vi)]

Industries which may be declared to be Public Utility Services under sub-clause (vi) of clause (n) of section 2

1 . Transport (other than railways) for the carriage of passengers or good S, ²[by land or water];

2. Banking;

3. Cement;

4. Coal;

5. Cotton textiles;

6. Food stuffs;

7. Iron and Steel;

8. Defence establishments;

9. Service in hospitals and dispensaries;

10. Fire Brigade Service;

³[11. India Government Mints;

12. India Security Press;]

⁴[13. Copper Mining;

14. Lead Mining;

15. Zinc Mining;]

⁵[16. Iron Ore Mining;]

⁶[17. Service in any oilfield;]

⁷[*** ]

⁸[19. Service in the Uranium Industry;]

⁹[20 Pyrites Mining;]

21. Security Paper Mill, Hoshangabad;

¹⁰[22. Services in the Bank Note Press, Dewas;]

¹¹[23. Phosphorite Mining;]

¹²[24. Magnesite Mining;]

¹³[ 25. Currency Note Press;]

¹⁴[26. Manufacture or production of mineral oil (crude oil), motor and aviation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils and their blends including synthetic fuels, lubricating oils and the like;]

¹⁵[27. Service in the International Airports Authority of India.]

——————–

1. Subs. by Act 36 of 1956, sec. 29, for the original Sch. (w.e.f. 10-3-1957).

2. Subs. by Act 36 of 1964, sec. 22, for “by land, water or air” (w.e.f. 19-12-1964).

3. Ins. by Notification No. S.O. 2193, dated 30th June 1965, published in Gazette of India, pt. 11, sec. 3(ii), dated 10th July 1965, and p. 2340.

4. Items, 13 to 15 added by Notification No. 1444 (w.e.f. 3-5-1966).

5. Ins. by Notification No. S.O. 726, published in Gazette of India, pt. 11, sec. 3 (ii), dated 4th March 1967.

6. Ins. by Notification No. 1776, dated 10th May 1967.

7. Entry 18 omitted by Act 45 of 1971, sec. 7 (w.e.f. 15-12-1971).

8. Ins. by Notification No. S.O. 1471 published in Gazette of India, dated 27th April, 1968, pt. 11, sec. 3 (ii), p. 2004.

9. Ins. by Notification No. S.O. 2061, dated 30th May, 1970, published in Gazette of India, dated 6th June, 1970, pt. 11, sec. 3 (ii), and p. 2616.

10. Ins. by Notification No. S.,C). 4697, dated 26th November, 1976, published in Gazette of India, dated 11th December, 1976, pt. 11, sec. 3 (ii), p. 4286.

11. Ins. by Notification No. S.O. 47, dated 17thDecember, 1976, published in Gazette of India, dated lst January, 1977, pt. 11, sec. 3 (ii), p. 69.

12. Ins. by Notification No. S.C). 2474, published in Gazette of India, pt. 11, sec. 3 (ii), dated 4th September, 1980.

13. Ins. by Notification No. S.C). 946, dated 7th March, 1981.

14. Ins. by Notification No. S.C). 4207, dated 20th November, 1984.

15. Ins. by Notification No. S.O. 1919, dated 8th July, 1987.

SCH2. THE SECOND SCHEDULE

(See Section 7)

Matters within the jurisdiction of Labour Courts

1. The propriety or legality of an order passed by an employer under the standing orders;

2. The application and interpretation of standing order;

3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;

4. Withdrawal of any customary concession or privilege;

5. Illegality or otherwise of a strike or lock-out; and

6. All matters other than those specified in the Third Schedule.

SCH3. THE THIRD SCHEDULE

(See Section 7A)

Matters within the jurisdiction of Industrial Tribunals

1. Wages, including the period and mode of payment;

2. Compensatory and other allowances;

3. Hours of work and rest intervals;

4. Leave with wages and holidays;

5. Bonus, profit sharing, provident fund and gratuity;

6. Shift working otherwise than in accordance with standing orders;

7. Classification by grades;

8. Rules of discipline;

9. Rationalisation;

10. Retrenchment of workmen and closure of establishment; and

11. Any other matter that may be prescribed.

SCH4. THE FOURTH SCHEDULE

(See Section 9A)

Conditions of Service for Change of which Notice is to be given

1. Wages, including the period and mode of payment;

2. Contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force;

3. Compensatory and other allowances;

4. Hours of work and rest intervals;

5. Leave with wages and holidays;

6. Starting alteration or discontinuance of shift working otherwise than in accordance with standing orders;

7. Classification by grades;

8. Withdrawal of any customary concession or privilege or change in usage;

9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;

10. Rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen;

11. Any increases or reduction (other than casual) in the number of persons employed or to be employed in any occupation or process or department or shift, ¹[not occasioned by circumstances over which the employer has no control].]

——————–

1. Subs. by Act No. 36 of 1964, sec. 2,3, for ‘not due to forced matters’ (w.e.f. 19-12-1964).

SCH5. THE FIFTH SCHEDULE

¹[THE FIFTH SCHEDULE

[See Section 2(ra)]

Unfair Labour Practices

I. On the part of employers and trade unions of employers

1. To interfere with, restrain from, or coerce, workmen in the exercise of their right to organise, form, join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, that is to say :-

(a) Threatening workmen with discharge or dismissal, if they join a trade union;

(b) Threatening a lock-out or closure, if a trade union is organised;

(c) Granting wage increase to workmen at crucial periods of trade union Organisations, with a view to undermining the efforts of the trade union Organisations.

2. To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is to say :-

(a) An employer taking an active interest in organising a trade union of his workmen; and

(b) An employer showing partiality or granting favour to one of several trade unions attempting to organise his workmen or to its members, where such a trade union is not a recognised trade union.

3. To establish employer sponsored trade unions of workmen.

4. To encourage or discourage membership in any trade union by discriminating against any workman, that is to say :-

(a) Discharging or punishing a workman, because he urged other workmen to join or organise a trade union;

(b) Discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under this Act);

(c) Changing seniority rating of workmen because of trade union activities;

(d) Refusing to promote workmen to higher posts on account of their trade union activities;

(e) Giving unmerited promotions to certain workmen with a view to creating discord amongst other workmen, or to undermine the strength of their trade union;

(f) Discharging office-bearers or active members of the trade union on account of their trade union activities.

5. To discharge or dismiss workmen-

(a) By way of victimisation;

(b) Not in good faith, but in the colourable exercise of the employer’s rights;

(c) By falsely implicating a workman in a criminal case on false evidence or on concocted evidence;

(d) For patently false reasons;

(e) On untrue or trumped up allegations of absence without leave;

(f) In utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;

(g) For misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.

6. To abolish the work of a regular nature being done by workmen, and to give such work to contractors as a measure of breaking a strike.

7. To transfer a workman mala fide from one place to another, under the guise of following management policy

8. To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a pre-condition to allowing them to resume work.

9. To show favouritism or partiality to one set of workers regardless of merit.

10. To employ workmen as ‘badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.

11. To discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.

12. To recruit workmen during a strike which is not an illegal strike.

13. Failure to implement award, settlement or agreement.

14. To indulge in act,, of force or violence.

15. To refuse to bargain collectively, in good faith with the recognised trade unions.

16. Proposing or continuing a lock-out deemed to be illegal under this Act.

——————–

1. Ins. by Act No. 46 of 1982, sec. 23 (w.e.f. 21-8-1984).

II.-On the part of workmen and trade unions of workmen

1. To advise or actively support or instigate any strike deemed to be illegal under this Act.

2. To coerce workmen in the exercise of their right to self-organisations or to join a trade union or refrain from joining any trade union, that is to say :-

(a) For a trade union or its members to picketing in such a manner that non-striking workmen are physically debarred from entering the work places;

(b) To indulge in acts of force or violence or to hold out threats of intimidation in connection with a strike against non-striking workmen or against managerial staff.

3. For a recognised union to refuse to bargain collectively in good faith with the employer.

4. To indulge in coercive activities against certification of a bar-gaining representative.

5. To stage, encourage or instigate such forms of coercive actions as wilful go slow”, squatting on the work premises after working hours or ‘gherao’ of any of the members of the managerial or other staff.

6. To stage demonstrations at the residences of the employers or the managerial staff members.

7. To incite or indulge in wilful damage to employer’s property connected with the industry.

8. To indulge in acts of force or violence or to hold out threats of intimidation against any workman with a view to prevent him from attending work.]

Registration Act

November 30, 2014

Section 1. Short title, extent and commencement

[Act No. 16 of 1908]

[18th December 1908]

An Act to consolidate the enactments relating to the Registration of Documents.

Whereas it is expedient to consolidate the enactments relating to the registration of documents;

It is hereby enacted as follows:

(1) This Act may be called the ¹[Registration Act, 1908.

²[(2) It extends to the whole of India except the State of Jammu and Kashmir:

Provided that the State Government may exclude any districts or tracts of country from its operation.]

(3) It shall come into force on the first day of January, 1909.

——————–

1. The word “Indian” omitted by Act No. 45 of 1969.

2. Subs. by Act No. 3 of 1951.

Section 2. Definitions

In this Act, unless there is anything repugnant in the subject or context, -

(1) “Addition” means the place of residence, and the profession, trade, rank and title (if any) of person described, and, in the case of an Indian, his father’s name, or where he is usually described as the son of his mother, then his mother’s name;

(2) “Book” includes a portion of a book and also any number of sheets connected together with a view of forming a book or portion of a book;

(3) “District” and “sub-district” respectively mean a district and sub-district formed under this Act;

(4) “District Court” includes the High Court in its ordinary original Civil jurisdiction;

(5) “Endorsement” and “endorsed” include and apply to an entry in writing by a registering officer on a rider or covering slip to any document tendered for Registration under this Act;

(6) “Immovable property” includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass;

[(6A) “India” means the territory of India excluding the State of Jammu and Kashmir ;

(7) “ Lease” includes a counter part, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;

(8) “Minor” means a person who, according to the personal law to which he is subject, has not attained majority;

(9) “Movable property” includes standing timber, growing corps and grass, fruit upon and juice in trees, and property of every other description, except immovable property; and

(10) “Representative” includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.

Section 3. Inspector General of Registration

(1) The State Government shall appoint an officer to be the Inspector General of Registration for the territories subject to such Government:

Provided that the State Government may, instead of making such appointment, direct that all or any of the powers and duties hereinafter conferred and imposed upon the Inspector-General shall be exercised and performed by such officer or officers, and within such local limits, as the State Government appoints in this behalf.

(2) Any Inspector-General may hold simultaneously any other officer under the Government.

Section 4. Repealed

4. [Repealed.]

Section 5. Districts and sub-districts

(1) For the purposes of this Act, the State Government shall form districts and sub-districts, and shall prescribe, and may alter, the limits of such districts and sub-districts,

(2) The districts and sub-districts formed under this section, together with the limits thereof, and every alternation of such limits, shall be notified in the Official Gazette.

(3) Every such alternation shall take effect on such day after the date of the notification as is therein mentioned.

Section 6. Registrars and Sub-Registrars

The State Government may appoint such person, whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub-Registrars of the several sub-districts, formed as aforesaid, respectively.

Section 7. Offices of Registrar and Sub-Registrar

(1) The State Government shall establish in every district and office to be styled the office of the Registrar and in every sub-district an office or offices to be styled the office of the Sub-Registrar or the offices of the Joint Sub-Registrars.

(2) The State Government may amalgamate with any office of a Registrar any office of a Sub-Registrar subordinate to such Registrar, and may authorize any Sub-Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate:

Provided that no such authorization shall enable a Sub-Registrar to hear an appeal against an order passed by himself under this Act.

Section 8. Inspectors of Registration-offices

(1) The State Government may also appoint officers, to be called Inspectors of Registration-offices, and may prescribe the duties of such officers.

(2) Every such Inspector shall be subordinate to the Inspector-General.

Section 9. Repealed

9. [Repealed]. -

Section 10. Absence of Registrar or vacancy in his office

(1) When any Registrar, other than the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector-General appoints in this behalf, or, in default of such appointment, the Judge of the District Court within the local limits of whose jurisdiction the Registrar’s office is situate, shall be the Registrar during such absence or until the State Government fills up the vacancy.

(2) When the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom, the Inspector-General appoints in this behalf shall be Sub-Registrar during such absence, or until the State Government fills up the vacancy.

Section 11. Absence of Registrar on duty in his district

When any Registrar is absent from his office on duty in his district, he may appoint any Sub-Registrar or other person in his district to perform, during such absence, all the duties of a Registrar except those mentioned in Sections 68 and 72.

Section 12. Absence of Sub-Registrar or vacancy in his office

When any Sub-Registrar is absent, or when his office is temporarily vacant, any person whom the Registrar of the district appoints in this behalf shall be Sub-Registrar during such absence, or until the vacancy is filled up.

Section 13. Report to State Government of appointments under Sections 10, 11 and 12

(1) All appointments made under Section 10, Section 11 or Section 12 shall be reported to the State Government by the Inspector-General.

(2) Such report shall be either special or general, as the State Government directs.

Section 14. Establishments of registering officers

[(1) Omitted

(2) State Government may allow proper establishments for the several offices under this Act.

Section 15. Seal of registering officers

The several Registrars and Sub-Registrars shall use a seal hearing the following inscription in English and in such other language as the State Government directs:-

“The seal of the Registrar (or of the Sub-Registrar) or”

Section 16. Register-books and fire-proof boxes

(1) The State Government shall provide for the office of every registering officer the books necessary for the purposes of this Act.

(2) The books so provided shall contain the forms form time to time prescribed by the Inspector-General, with the sanction of the State Government, and the pages Of Such books shall be consecutively numbered in print, and the number of pages in each book shall be certified on the title-page by the officer by whom Such books are issued.

(3) The State Government shall supply the office of every Registrar with a fireproof box, and shall in each District make suitable provision for the safe custody of the records connected with the registration of documents in such districts

Section 17. Documents of which registration is compulsory

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No, XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) Lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to. -

(i) Any composition-deed; or

(ii) Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property-, or

(iii) Any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or party of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) Any endorsement upon or transfer of any debenture issued by any such Company; or

(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding, or (vii) Any grant of immovable property by Government or

(viii) Any instrument of partition made by a Revenue-officer; or

(ix) Any order granting a loan or instrument of collateral security granted under the land improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) Any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

(xa) Any order made under the Charitable Endowments Act, 1890. (6 of 1890) vesting any property in a Treasurer of Charitable Endownments or divesting any such Treasurer of any property; or

(xi) Any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-officer.

Explanation. – A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the Ist day of January, 1872, and not conferred by a will, shall also be registered.

Section 18. Document of which registration is optional

Any of the following document may be registered under this Act, namely:

(a) Instruments (other than instrument of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;

(b) Instruments acknowledging the receipt or payment of any consideration of account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) Leases of immovable property for any term not exceeding one year, and leases exempted under Section 17;

(cc) Instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right title or interest, whether vested or contingent, or a value less than one hundred rupees, to or in immovable property;

(d) Instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) Wills; and

(f) All other documents not required by Section 17 to be registered.

Section 19. Documents in language not understood by registering officer

If any document duly presented for registration be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the documents, unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy.

Section 20. Documents containing interlineations, blanks, erasures or alterations

(1) The registering officer may in his discretion refuse to accept for registration any document in which any interlineations, blank, erasure or alteration appears, unless the persons executing the document attest with their signature or initials such interlineations, blank, erasure or alteration.

(2) If the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineations, blank, erasure or alteration.

Section 21. Description of property and maps or plans

(1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

(3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.

(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts.

Section 22. Description of houses and land by reference to Government maps or surveys

(1) Where it is, in the opinion of the State Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of Section 21, be so described.

(2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provision of Section 21, subsection (2) or sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property.

Section 23. Time for presenting documents

Subject to the provisions contained in Section 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:

Provided that a copy of a decree or order may he presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.

Section 23 A. Re-registration of certain documents

Notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provision of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to the re-registration of the document as if it has not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefor under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration:

Provided that, within three months, from the twelfth day of September 1917, any person claiming under a document to which this section applies may present the same or cause the same to be presented for re-registration in accordance with this section, whatever may have been the time when the first became aware that the registration of the document was invalid.

Section 24. Documents executed by several persons at different times

Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.

Section 25. Provision where delay in presentation is unavoidable

(1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration in after the expiration of the time herein before prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.

(2) Any application for such direction may be lodged with a Sub-Registrar, who shall, forthwith forward it to the Registrar to whom he is subordinate.

Section 26. Documents executed out of India

When a document purporting to have been executed by all or any of the parties out of India is not presented for registration in after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied. -

(a) That the instrument was so executed, and

(b) That it has been presented for registration within four months after its arrival in India,

May, on payment of the proper registration-fee, accept such document for registration.

Section 27. Wills may be presented or deposited at any time

A will may at any time be presented for registration or deposited in manner hereinafter provided.

Section 28. Place for registering documents relating of land

Save as in this Part otherwise provided every document mentioned in Section 17, sub-section (1), clauses (a), (b), (c), (d) and (e) Section 17, subsection (2), in so far as such document affects immovable property, and Section 18, clauses (a), (b) (c) and (cc), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

Section 29. Place for registering other documents

(1) Every document not being a document referred to in Section 28 or a copy of a decree or order, may be presented for registration either in the office of the Sub-Registrar in whose sub-district the document was executed, or in the office of any other Sub-Registrar under the State Government at which all the persons executing and claiming under the document desire the same to be registered.

(2) A copy of a decree or order may be presented for registration in the office of the Sub-Registrar in whose sub-district the original decree or order was made, or, where the decree or order does not affect immovable property, in the office of any other Sub-Register under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.

Section 30. Registration by Registrars in certain cases

(1) Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar subordinate to him.

(2) ¹[The Registrar of a district in which a Presidency-town in included and the Registrar of the Delhi district] may receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document relates.

——————–

1. Subs. by Act No. 45 of 1969, for “the Registrar of t district including a Presidency-town”.

Section 31. Registration or acceptance for deposit at private residence

In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer of the officer authorized to accept the same for registration or deposit:

Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.

Section 32. Persons to present documents for registration

Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,-

(a) By some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) By the representative or assign of such a person, or

(c) By the agent of such a person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.

Section 33. Power-of-attorney recognizable for purposes of Section 32

(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognized namely:-

(a) If the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;

(b) If the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;

(c) If the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian consul or Vice-Consul, or representative of the Central Government:

Provided that the following persons shall not be required to attend at ally registration office or Court for the purposes of executing ally such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:-

(i) Persons who by reason of bodily infirmity are unable without risk or serious inconvenience are to attend;

(ii) Persons who are in jail under civil or criminal process; and

(iii) Persons exempt by law form personal appearance in Court.

Explanation. -In this sub-section “India” means India, as defined in clause (28) of Section 3 of the General Clauses Act, 1897.

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

(4) Any power-of-attorney mentioned in this section may he proved by the production of it without further proof when it purports oil the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.

Section 34. Enquiry before registration by registering officer

(1) Subject to the provisions contained in this Part and in Sections 41, 43, 45, 69, 75, 77, 88, and 89, no document shall be registered under this Act, unless the persons executing such document or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25, and 26:

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that oil payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, it’ any, payable under Section 25, the document may be registered.

(2) Appearances under subsection (1) may be simultaneous or at different times.

The registering officer shall thereupon-

(a) Enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) Satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) In the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

Section 35. Procedure on admission and denial of execution respectively

(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or

(b) If in the case of any person appearing by a representative , assign or agent, such representative, assign or agent admits the execution, or

(c) If in the case of any person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Section 58 to 61, inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

(3) (a) If any person by whom the document purports to be executed denies its execution, or

(b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, where such officer is a Registrar, he shall fallow the procedure prescribed in Part XII:

Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents sub-section and of Part XII.

Section 36. Procedure where appearance of executant or witness is desired

If any person–presenting any document for registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, call upon such officer or Court as the State Government directs in this behalf to issue a summons requiring him to appear at the registration–office, either in person or by duly authorized agent, as in the summons may be mentioned, and at a time named therein.

Section 37. Officer or Court to issue and cause service of summons

The officer or Court, upon receipt of the peon’s fee payable in such cases, shall issue the summons accordingly, and cause it to be served upon the person whose appearance is so required.

Section 38. Persons exempt from appearance at registration-office

(1) (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration-office, or

(b) A person in jail under civil or criminal process, or

(c) Person exempt by law from personal appearance in Court, and who would but for the provision next hereinafter contained be required to appear in person at the registration-office, shall not be required so to appear.

(2) In the case of every such person the registration-officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination.

Section 39. Law as to summonses commissions and witness

The law in force for the time being as to summonses, commissions and compelling the attendance of witnesses, and for their remuneration in suits before Civil Courts, shall, save as aforesaid and mutatis mutandis, apply to any summons or commission issued and any person summoned to appear under the provisions of this Act.

Section 40. Persons entitled to present wills and authorities to adopt

(1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.

(2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.

Section 41. Registration of wills and authorities to adopt

(1) A will or an authority to adopt presented for registration by the testator or donor, may be registered in the same manner as any other document.

(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied-

(a) That the will or authority was executed by the testator or donor, as the case may be;

(b) That the testator or donor is dead; and

(c) That the person presenting the will or authority is, under Section 40 entitled to present the same.

Section 42. Deposit of wills

Any testator may, either personally or by duly authorized agent deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.

Section 43. Procedure on deposit of Wills

(1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No. 5 the superscription aforesaid, and shall note in the same book and on the said cover the, y ar, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.

(2) The Registrar shall then place and retain the scaled cover in his fireproof box.

Section 44. Withdrawal of sealed cover deposited under Section 42

If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorized agent, to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.

Section 45. Proceedings on death of depositor

(1) If, on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant’s presence, open the cover, and, at the application’s expense, cause the contents thereof to be copied into his Book No. 3.

(2) When such copy has been made, the Registrar shill re-deposit the original will.

Section 46. Saving of certain enactments and powers of Courts

(1) Nothing herein-before contained shall affect the provisions of Section 259 of the Indian Succession Act, 1865, or of Section 81 of the Probate and Administration Act, 1881, or the power of any Court be order to compel the production of any will.

(2) When any such order is made, the Registrar shall, unless the will has been already copied under Section 45, open the cover and cause the will to be copied into his Book No. 3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid.

Section 47. Time from which registered document operates

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

Section 48. Registered documents relating to property when to take effect against oral agreements

All non-testamentary documents duly registered under this Act, and relating to any property, whether movable or immovable, shall take effect against any oral agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under any law for the time being in force:

Provided that a mortgage by deposit of title deeds as defined in Section 58 of the Transfer of Property Act, 1882, shall take effect against any mortgage-deed Subsequently executed and registered which relates to the same property.

Section 49. Effect of non-registration of documents required to be registered

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-

(a) Affect any immovable property comprised therein, or

(b) Confer any power to adopt, or

(c) Be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1892, or as evidence of any collateral transaction not required to be effected by registered instrument.

Section 50. Certain registered documents relating to land to take effect against unregistered documents

(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of Section 17, sub-section (1) and clauses (a) and (b) of Section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.

(2) Nothing in sub-section (1) applies to leases exempted under the provision to sub-section (1) of Section 17 or to any document mentioned in subsection (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.

Explanation. -In cases where Act No. XVI of 1864 or the Indian Registration Act, 1866, was in force in the place and at the time in and at which such unregistered document was executed, “unregistered” means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act.

Section 51. Register-books to be kept in the several offices

(1) The following books shall be kept in the several offices hereinafter named, namely: –
A-In all registration offices-

Book 1, “Register of non-testamentary documents relating to immovable property”;

Book 2, “Record of reasons for refusal to register”;

Book 3, “Register of wills and authorities to adopt”; and Book 4, “Miscellaneous Register;”

B-In the offices of Registrars-

Book 5, “Register of deposits of wills”-.

(2) In Book I shall be entered or filed all documents or memoranda registered under Sections 17, 18, and 89, which relate to immovable property, and are not wills.

(3) In Book 4 shall be entered all documents registered under clauses (d) and (f) of Section 18 which do not relate to immovable property.

(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar.

Section 52. Duties of registering officers when document presented

(1) (a) The day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;

(b) A receipt for such document shall be given by the registering officer to the person presenting the same; and

(c) Subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.

(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

Section 53. Entries to be numbered consecutively

All entries in each book shall be numbered in a consecutive series, which shall commence and terminate with the year, a fresh series being commenced at the beginning of each year.

Section 54. Current indexes and entries therein

In every office in which any of the books hereinbefore mentioned are kept, there shall be prepared current indexes of the contents of such books; and every entry in such indexes shall be made, so far as practicable, immediately after the registering officer has copied, or filed a memorandum of, the document to which it relates.

Section 55. Indexes to be made by registering officers, and their contents

(1) Four such indexes shall be made in all registration offices, and shall be named, respectively, Index No. 1, Index No. II, and Index No. III and Index No. IV.

(2) Index No. I shall contain the names and additions of all persons executing and of all persons claiming under every document entered or memorandum filed in Book No. 1

(3) Index No. II shall contain such particulars mentioned in Section 21 relating to every such document and memorandum as the Inspector-General from time to time directs in that behalf.

(4) Index No. III shall contain the names and additions of all persons executing every will and authority entered in Book No. 3, and of the executors and persons respectively appointed thereunder, and after the death of the testator or the donor (but not before) the names and additions of all persons claiming under the same.

(5) Index No. IV shall contain the names and additions of all persons executing and of all persons claiming under every document entered in Book No. 4.

(6) Each Index shall contain such other particulars, and shall be prepared in such form, as the Inspector-General from time to time directs.

Section 56. Repealed by Act No. 15 of 1929

56. [Repealed by Act No. 15 of 1929]

Section 57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries

(1) Subject to the previous payment of the fees payable in that behalf, the Books Nos.1 and 2 and the Indexes relating to Book No. I shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies.

(2) Subject to the same provisions, copies of entries in Book No. 3 in the Index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies.

(3) Subject to the same provisions, copies of entries in Book No. 4 and in the Index relating thereto shall be given to any person executing or claiming under the documents to which such entries respectively refer, or to his agent or representative.

(4) The requisite search under this section for entries in Book No. 3 and 4 shall be made only by the registering officer.

(5) All copies given under this section shall be signed and scaled by the registering officer, and shall admissible for the purpose of proving the contents of the original documents.

Section 58. Particulars to be endorsed on documents admitted to registration

(1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under Section 89, there shall be endorsed from time to time the following particulars, namely: -

(a) The signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(b) The signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(c) Any payment of money or delivery of goods make in the presence of the registering officer in reference to the execution to the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.

Section 59. Endorsements to be dated and signed by registering officer

The registering officer shall affix the date and his signature to all endorsements made under section 52 and 58, relating to the same document and made in his presence on the same day.

Section 60. Certificate of registration

(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word registered,” together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duty registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.

Section 61. Endorsements and certificate to be copied and document returned

(1) The endorsements and certificate referred to and mentioned in Sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21 be filed in Book No. 1.

(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52.

Section 62. Procedure on presenting document in language unknown to registering officer

(1) When a document is presented for registration under Section 19, the translation shall be transcribed in the register of documents of the nature of the original, and, together with the copy referred to in Section 19, shall be filed in the registration office.

(2) The endorsements and certificate respectively mentioned in Sections 59 and 60 shall be made on the original, and, for the purpose of making the copies and memoranda required by Sections 57, 64, 65 and 66, the translation shall be treated as it were the original.

Section 63. Power to administer oaths and record of substance of statements

(1) Every registering officer may at his discretion administer an oath to any person examined by him under the provisions of this Act.

(2) Every such officer may also at his discretion record a note of the substance of the statement made by each such person, and such statement shall be read over, or (if made in a language with which such person is not acquainted) interpreted to him in a language with which he is acquainted, and, if he admits the correctness of such note, it shall be signed by the registering officer.

(3) Every such note so signed shall be admissible for the purpose that the statements therein recorded were made by the persons and under the circumstances therein stated,

Section 64. Procedure where document relates to land in several sub-districts

Every Sub-Registrar on registering a non-testamentary document relating to immovable property not wholly situate in his own sub district shall make a memorandum thereof and of the endorsement and certificate (if any) thereon, and send the same to every other Sub-Registrar subordinate to the same Registrar as himself in whose sub district any part of such property is sit-date, and such Sub-Registrar shall file the memorandum in his Book No. 1.

Section 65. Procedure where document relates to land in several districts

(1) Every Sub-Registrar on registering a non-testamentary document relating to immovable property situate in more districts than one shall also forward a copy thereof and of the endorsement and certificate (if any) thereon, together with a copy of the map or plan (if any) mentioned in Section 21, to the Registrar of every district in which any part of such property is situate other than the district in which his own sub-district is situate.

(2) The Registrar on receiving the same shall file in his Book No. 1., the copy of the document and the copy of the map or plan (if any), and shall forward a memorandum of the document to each of the Sub-Registrars subordinate to him within whose sub district any part of such property is situate; and every Sub-Registrar receiving such memorandum shall file in his Book No. l.

Section 66. Procedure after registration of documents relating to land

(1) On registering any non-testamentary document relating to immovable property. the Registrar shall forward a memorandum of such document to each Sub-Registrar subordinate to himself in whose sub-district any part of the property is situate.

(2) The registered shall also forward a copy of such document together with a copy of the map or plan (if any) mentioned in Section 21, to every other Registrar in whose district any part of such property is situate.

(3) Such Registrar on receiving any such copy shall file it in his Book No. 1, and shall also send a memorandum of the copy to each of the Sub-Registrars subordinate to him within whose sub-district any part of the property is situate.

(4) Every Sub-Registrar receiving any memorandum under this section shall file it in his Book No. 1.

Section 67. Procedure after registration under Section 30 sub-section (2)

On any document being registered under Section 30, subsection (2), a copy of such document and of the endorsements and certificate thereon shall be forwarded to every Registrar within whose district any part of the property to which the instrument relates is situate, and the Registrar receiving such copy shall follow the procedure prescribed for him in Section 66, sub-section (1).

Section 68. Power of Registrar to superintend and control Sub-Registrars

(1) Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate.

(2) Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.

Section 69. Power of Inspector-General to superintend registration-offices and make rules

(1) The Inspector-General shall exercise a general superintendence over all the registration-offices in the territories under the State Government, and shall have power from time to time to make rules consistent with this Act-

(a) Providing for the safe custody of books, papers and documents;

(b) Declaring what languages shall be deemed to be commonly used in each district;

(c) Declaring what territorial divisions shall be recognized under Section 21;

(d) Regulating the amount of fines imposed under Section 25 and 34, respectively;

(e) Regulating the exercise of the discretion reposed in the registering officer by Section 63;

(f) Regulating the form in which registering officers are to make memoranda of documents;

(g) Regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under Section 51:

(gg) Regulating the manner in which the instruments referred to in subsection (2) of Section 88 may be presented for registration;

(h) Declaring the particulars to be contained in Indexes Nos. 1, 11, III and IV respectively;

(i) Declaring the holidays that shall be observed in the registration-offices; and

(j) Generally, regulating the proceedings of the Registrars and Sub-Registrar.

(2) The rules so made shall be submitted to the State Government for approval, and after they have been approved, they shall be published in the Official Gazette, Vince oil publication shall have effect as if enacted in this Act.

Section 70. Power of Inspector-General to remit fines

The Inspector-General may also, in the exercise of his discretion, remit wholly or in part the difference between any fine levied under Section 25 or Section 34, and the amount of the proper registration fee.

Section 71. Reasons for refusal to register to be recorded

(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words “registration refused” on the document; and, on application made by any person executing of claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

Section 72. Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution

(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far follow the procedure prescribed in Sections 58, 59 and 60; and take effect as if the document had been registered when it was registration.

Section 73. Application to Registrar where Sub-Registrar refuses of denial execution

(1) When a Sub-Registrar has refused to the ground that any person by whom it purports to be executed, assign, denies its execution, any person claiming under such document, or his representative, assign or agent authorized as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered.

(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints.

Section 74. Procedure of Registrar on such application

In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire. -

(a) Whether the document has been executed;

(b) Whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.

Section 75. Order by Registrar to register and procedure thereon

(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.

(2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60.

(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.

(4) The Registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908.

Section 76. Order of refusal by Registrar

(1) Every Registrar refusing. -

(a) To register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub-Registrar, or

(b) To direct the registration of a document under Section 72 or Section 75, shall make an order of refusal and record the reasons for such order in his Book No.2, and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded.

(2) No appeal lies form any order by a Registrar under this section or Section 72.

Section 77. Suit in case of order of refusal by Registrar

(1) Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

(2) The provisions contained in sub-section (2) and (3) of Section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit.

Section 78. Fees to be fixed by State Government

The State Government shall prepare a table of fees payable. -

(a) For the registration of documents;

(b) For searching the registers;

(c) For making or granting copies of reasons, entries or documents, before, on or after registration;

And of extra or additional fees payable;

(d) For every registration under Section 30;

(e) For the issue of commissions;

(f) For filing translations;

(g) For attending at private residences;

(h) For the safe custody and return of documents; and

(i) For such other matters as appear to the State Government necessary to effect the purposes of this Act.

Section 79. Publication of fees

A table of the fees so payable shall be published in the Official Gazette, and a copy thereof in English and the vernacular language of the district shall be exposed to public view in every registration office.

Section 80. Fees payable on presentation

All fees for the registration of documents under this Act shall be payable on the presentation of such documents.

Section 81. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure

Every registering officer appointed under this Act and every person employed in his office for the purpose of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the Indian Penal Code, to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

Section 82. Penalty for making false statement, delivering false copies or translations, false personation, and abatement. Whoever

(a) Intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; or

(b) Intentionally delivers to a registering officer, in any proceeding under Section 19 or Section 21, a false copy or translation of a document, or a false copy of a map or plan; or

(c) Falsely pesonates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or

(d) Abets anything made punishable by this Act;

Shall be punishable with imprisonment for a term, which may extend to seven years; or with fine, or with both.

Section 83. Registering officer may commence prosecutions

(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar or the Sub-Registrar, in whose territories, district or sub district, as the case may be, the offence has been committed.

(2) Offences punishable under this Act shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the second class.

Section 84. Registering officers to be deemed public servants

(1) Every registering officer appointed under this Act shall be deemed to be a public servant within the meaning of the Indian Penal Code.

(2) Every person shall be legally bound to furnish information to such registering officer when required by him to do so.

(3) In Section 228 of the Indian Penal Code, the words “Judicial proceeding” shall be deemed to include any proceeding under this Act.

Section 85. Destruction of unclaimed documents

Documents (other than wills) remaining unclaimed in any registration-office for a period exceeding two years may be destroyed.

Section 86. Registering officer not liable for thing bona fide done or refused in his official capacity

No registering officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity.

Section 87. Nothing so done invalidated by defect in appointment or procedure

Nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.

Section 88. Registration of documents executed by Government officers or certain public functionaries

(1) Notwithstanding anything contained in this Act, it shall not he necessary for

(a) Any officer of Government, or

(b) Any Administrator General, Official Trustee or Official Assignee, or

(c) The Sheriff, Receiver or Registrar of a High Court, or

(d) The holder for the time being of such other public office as may be specified in a notification in the Official Gazette issued in that behalf by the State Government, to appear in person or by agent at any registration-office in any proceeding connected with the registration of any instrument executed by him or in his favour, in his official capacity, or to sign as provided in Section 58.

(2) Any instrument executed by or in favour of an officer of Government or any other person referred to in subsection (1) may be presented for registration in such manner as may be prescribe by rules made under Section 69.

(3) The registering officer to whom any instrument is presented for registration under this section may, if he things fit, refer to any Security to Government or to such officer of Government or other person referred to in subsection (1) for information respecting the same and, oil being satisfied of the execution thereof shall register the instrument.

Section 89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed

(1) Every officer granting a loan under the Land Improvement Loans Act, 1883, shall send a copy of his order to the registering officer within the local limits of whose jurisdiction the whole or any part of the land to be improved or of the land to be granted as collateral security, is situate, and such registering officer shall file the copy in his Book No. 1.

(2) Every Court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy in his Book No.1.

(3) Every officer granting a loan under the Agricultures Loans Act, 1884, shall send a copy of any instrument whereby immovable property is mortgaged for the purpose of securing the repayment of the loan, and, if any Such property is mortgaged for the sale purpose in the order granting the loan, a copy also of that order, to the registering officer within the local limits of whose jurisdiction the whole or any part of the property so mortgaged is situate, and such registering officer shall file the copy or copies, as the case may be, in his Book No. 1.

(4) Every Revenue-officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No. 1.

Section 90. Exemption of certain documents executed by or in favour of Government

(1) Nothing contained in this Act or in the Indian Registration Act, 1877, or in the Indian Registration Act, 1871, or in any Act thereby repealed, shall be deemed to require, or to have at any time required, the registration of any of the following documents or maps, namely:

(a) Documents issued, received or attested by any officer engaged in making a settlement or revision or settlement of land-revenue, and which from part of the records of such settlement; or

(b) Documents and maps issued, received or authenticated by any officer engaged on behalf of Government in making or revising the survey of any land, and which form part of the record of such survey; or

(c) Documents which, under any law for the time being in force, are filed periodically in any revenue-office by Patwaris or other officers charged with the preparation of village records; or

(d) Sanads, inam title-deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land; or

(e) Notices given under Section 74 or Section 76 of the Bombay Land-Revenue Code, 1879, or relinquishment of occupancy by occupants, or of alienated land by holders of such land.

(2) All such documents and maps shall, for the purposes of sections 48 and 49, be deemed to have been and to be registered in accordance with the provisions of this Act.

Section 91. Inspection and copies of such documents

Subject to such rules and the previous payment of such fees as the State Government prescribes in this behalf, all documents and maps mentioned in Section 90, clauses (a), (b), (c) and (e), and all registers of the documents mentioned in clause (d), shall be open to the inspection of any person applying to inspect the same, and, subject as aforesaid, copies of such documents shall be given to all persons applying for such copies.

Section 92. Rep. by the Government of India (Adaption of Indian Laws) Order, 1937

92. [Rep. by the Government of India (Adaption of Indian Laws) Order, 1937.]

Section 93. Repeals

93. [Repeals.] Rep. by the Repealing Act, 1938 (1 of 1938),

Schedule

THE SCHEDULE

[Repeal of enactments.] Rep. by the Repealing Act 1938 (1 of 1938)]

Specific Relief Act

November 30, 2014

Section 1. Short title, extent and commencement

(1) This Act may be called the Specific Relief Act, 1963.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force of such ^l[date] as the Central Government may, by notification in the Official Gazette, appoint.

——————–

1. 1st March 1964.

Section 2. Definitions

In this Act, unless the context otherwise requires, -

(a) “Obligation” includes every duty enforce by law;

(b) “Settlement” means an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925) whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of;

(c) “Trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882, and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;

(d) “Trustee” includes every person holding property in trust;

(e) All other words and expressions used herein, but not defined, and defined in the Indian Contract Act, 1872, have the meanings respectively assigned to them in that Act.

Section 3. Savings

Except as otherwise provided herein, nothing in this Act shall be deemed. -

(a) To deprive any person of any right to relief, other than specific performance, which he may have under any contract; or

(b) To affect the operation of the Indian Registration Act, 1908, on documents.

Section 4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws

Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Section 5. Recovery of specific immovable property

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure” 1908.

Section 6. Suit by person dispossessed of immovable property

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by Suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit wider this section shall be brought. -

(a) After the expiry of six months from the date of dispossession; or (b) Against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Section 7. Recovery of specific movable property

A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.

Explanation 1

A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.

Explanation 2

A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

Section 8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession

Any person having the possession or control of a particular session of movable property is sufficient to support a suit under this compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases: -

(a) When the thing claimed is held by the defendant as the agent or trustee of the plaintiff,

(b) When compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;

(c) When it would be extremely difficult to ascertain the actual damage caused by its loss;

(d) When the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Explanation

Unless and until he contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume-

(a) That compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;

(b) That it would be extremely difficult to ascertain the actual damage caused by its loss.

Section 9. Defences respecting suits for relief based on contract

Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defense any ground which is available to him under any law relating to contracts.

Section 10. Cases in which specific performance of contract enforceable

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-

(a) When there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or

(b) When the act agreed to be done is such that that compensation in money for its non-performance would not afford adequate relief.

Explanation

Unless and until the contrary is proved, the court shall presume. -

(i) That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) That the breach of a contract to transfer movable property can be so relieved except in the following cases: -

(a) Where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods, which are not easily obtainable in the market;

(b) Where the property is held by the defendant as the agent or trustee of the plaintiff.

Section 11. Cases in which specific performance of contracts connected with trusts enforceable

(1) Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of the court, be enforced, when the act agreed to be done is in the performance wholly or partly of a trust.

(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

Section 12. Specific performance of part of contract

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it. But the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part, which must be left unperformed either-

(a) Forms a considerable part of the whole, though admitting of compensation in money; or

(b) Does not admit of compensation in money;

He is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-

(i) In a case falling under clause (a), pays, or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case filling under clause (b), pays or had paid the consideration for the whole of the contract without any abatement; and

(ii) In either caste, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, call and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

Explanation

For the purposes of this section, a party to a contract shall he deemed to be unable to perform the whole of his part of it if a portion of its subject latter existing at the date of the contract has ceased to exist at the time of its performance.

Section 13. Rights of purchaser or lessee against person with no title or imperfect title

(1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely: -

(a) If the vendor or less or has Subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

(b) Where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or less or, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;

(c) Where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only as right to redeem it, the purchaser may compel him to redeem, the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgage;

(d) Where the vendor or less or sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect tide, the defendant has a right to a return of, his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or less or in the property which is the subject-matter of the contract.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

CONTRACTS, WHICH CANNOT BE SPECIFICALLY ENFORCED

Section 14. Contracts not specifically enforceable

(1) The following contracts cannot be specifically enforced, namely-

(a) A contract for the non-performance of which compensation is an adequate relief,

(b) A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

(c) A contract, which is in its nature determinable;

(d) A contract the performance of which involves the performance of a continuous duty, which the court cannot supervise.

(2) Save as provided by the Arbitration Act; 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases: -

(a) Where the suit is for the enforcement of a contract-

(i) To execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the vendor is willing to advance the remaining part of the loan in terms of the contract; or

(ii) To take up and pay for any debentures of a company;

(b) Where the suit is for,-

(i) The execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

(ii) The purchase of a share of a partner in a firm;

(c) Where the suit is for the enforcement of a contract for the-construction of any building or the execution of any other work on land:

Provided that the following conditions are fulfilled, namely:-

(i) The building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

(ii) The plaintiff has a substantial interest in the performance of ale contract and the interest is of such a nature that compensation in money for non-performance of the contract is not in adequate relief, and

(iii) The defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

Section 15. Who may obtain specific performance

Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by-

(a) Any party thereto;

(b) The representative in interest or the principal, of any party thereto:

Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;

(c) Where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;

(d) Where the contract has been entered into by a tenant for life in due exercise of a power, the remainderman;

(e) Reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;

(f) A reversioner in reminder, where the agreement is such a covenant, and the reversioner are entitled to the benefit thereof and will sustain material injury by reason of its breach;

(g) When a company has entered into a contract and subsequently becomes amalgamated with another company, the new company that arises out of the amalgamation;

(h) When the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.

Section 16. Personal bars to relief

Specific performance of a contract cannot be enforced in favour of a person-

(a) Who would not be entitled to recover compensation for its breach; or

(b) Who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or ill fully acts at variance with, or in subversion of, the relations intended to be established by the contract; or

(c) Who fails to aver and prove that he has or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

Explanation

For the purposes of clause I, -

(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) The plaintiff must ever performance of, or readiness and willing perform, the contract according to its true construction.

Section 17. Contract to sell or let property by one who has not title, not specifically enforceable

(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor. -

(a) Who, knowing not to have any title to the property, has contracted to sell or let the property;

(b) Who, though he entered into the contract believing that he had a good title to by the parties or by the court for the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.

(2) The provisions of sub-section (1) shall also apply as far may be, to contracts for the sale or hire of movable property.

Section 18. Non-enforcement except with variation

Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely. -

(a) Where by fraud, mistake or fact or misrepresentation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract;

(b) Where the object of the parties was to produce a certain legal result, which the contract as framed, is not calculated to produce;

(c) Where the parties have subsequently to the execution of the contract, varied its terms.

Section 19. Relief against parties and persons claiming under them by subsequent title

Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-

(a) Either party thereto;

(b) Any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c) Any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) When a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) When the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:

Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.

Section 20. Discretion as to decreeing specific performance

(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may property exercise discretion not to decree specific performance:-

(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the -contract was entered into are such that the contract, though not void able, gives the plaintiff an unfair advantage over the defendant; or

(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, or

(c) Where the defendant entered into the contract under circumstances, which though not rendering the contract void able, makes it inequitable to enforce specific performance.

Explanation 1

Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2

The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

Section 21. Power to award compensation in certain cases

(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:

Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

Explanation

The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.

Section 22. Power to grant relief for possession, partition, refund of earnest money, etc

(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-

(a) Possession, or partition and separate possession. of the property, in addition to such performance; or

(b) Any other relief to which he may be entitled, including the refund of any earliest money or deposit paid or made by him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under cleanse (b) of subsection (1) shall be without prejudice to its powers to award compensation under Section 21.

Section 23. Liquidation of damages not a bar to specific performance

(1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract, and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.

(2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.

Section 24. Bar of suit for compensation for breach after dismissal of suit for specific performance

The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff’s right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.

ENFORCEMENT OF AWARDS AND DIRECTIONS TO EXECUTE SETTLEMENTS

Section 25. Application of preceding sections to certain awards and testamentary directions to execute settlements

The provisions of this Chapter as to contracts shall apply to awards to which the Arbitration Act, 1940, does not apply and to directions in a will or codicil to execute a particular settlement.

Section 26. When instrument may be rectified

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956, applies) does not express their real intention, then-

(a) Either party or his representative in interest may institute a suit to have the instrument rectified; or

(b) The plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or

(c) A defendant in any such suit as is referred ‘to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.

(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:

Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.

Section 27. Where rescission may be adjudged or refused

(1) Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court in any of the following cases namely:-

(a) Where the contract is void able or terminable by the plaintiff,

(b) Where the contract is unlawful for causes not, apparent on its face and the defendant is more to blame than the plaintiff.

(2) Notwithstanding anything contained in subsection (1), the court may refuse to rescind the contract-

(a) Where the plaintiff has expressly or impliedly ratified the contract; or

(b) Where, owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or

(c) Where third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or

(d) Where only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Explanation

In this section “contract”, in relation to the territories to which the Transfer of Property Act, 1882, does not extend, means a contract in writing.

Section 28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

(2) Where a contract is rescinded under sub-section (1), the court. -

(a) Shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor; and

(b) May direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property form the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and if the justice of the case so requires, the refund of any sum paid by the vendee or the lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or other sum which lie is ordered to pay under the decree within the period referred to in subsection (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following relief’s, namely:-

(a) The execution of a proper conveyance or lease by the vendor or lessor;

(b) The delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief, which may be claimed under this section, shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be,

(5) The costs of any proceedings under this section shall be in the discretion of the court.

Section 29. Alternative prayer for rescission in suit for specific performance

A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refused to enforce the contract specifically, may direct it to be rescinded and delivered tip accordingly.

Section 30. Court may require parties rescinding to do equity

On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to restore, so far a may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require;

Section 31. When cancellation may be ordered

(1) Any person against whom a written instrument is void or void able, and who has reasonable apprehension that such instrument. if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908, the court shall also send a copy of its decree to the officer in whose officer the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

Section 32. What instruments may be partially cancelled

Where an instrument is evidence of different rights or different obligations, the court may, in a proper case cancel it in part and allows it to stand for residue.

Section 33. Power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable

(1) On adjudging the cancellation of an instrument, the Court may require the party to Whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require.

(2) Where a defendant successfully resists any suit on the ground. -

(a) That the instrument sought to be enforced against him in the suit is voidable. the court may if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be, such benefit to that party or to make compensation for it;

(b) That the agreement, ought to be enforced against him in the Suit is Void by reason of his not having been competent to contract under Section II of the Indian Contract Act, 1972, the court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be. such benefit to that party, to the extent to which he or his estate has benefited thereby.

Section 34. Discretion of court as to declaration of status or right

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such, suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation

A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.

Section 35. Effect of declaration

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.

Section 36. Preventive relief how granted

Preventive relief is granted, it the discretions of the court by injunction, temporary or perpetual.

Section 37. Temporary and perpetual injunctions

(1) Temporary injunction is such as are to continue until a specific time, or until the further order of Civil Procedure, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a Tight, or from the commission of an act, which would be contrary to the rights of the plaintiff.

Section 38. Perpetual injunction when granted

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-

(a) Where the defendant is trustee of the property for the plaintiff;

(b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) Where the invasion is such that compensation in money would not afford adequate relief;

(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Section 39. Mandatory injunctions

When to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Section 40. Damages in lieu of, or in addition to, injunction

(1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

Section 41. Injunction when refused

An injunction cannot be granted. -

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that :It will be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) When the plaintiff has a no personals interest in the matter.

Section 42. Injunction to perform negative agreement

Notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of’ the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

Section 43. Amendment of Act 10 of 1940

[Rep. by the Repealing and Amending Act, 1974 (56 of 1974)].

Section 44. Repeal

[Rep. by the Repealing and Amending Act, 1974 (56 of 1974)].

Arbitration and Conciliation Act

November 30, 2014

Section 1. Short title, extent and commencement.

(1) This Act may be called the Arbitration and Conciliation Act, 1996.

(2) It extends to the whole of India:

Provided that Parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation.

Explanation.—In this sub-section, the expression “international commercial conciliation” shall have the same meaning as the expression “international commercial arbitration” in clause (f) of sub-section (1) of section 2, subject to the modification that for the word “arbitration” occurring therein, the word “conciliation” shall be substituted.

(3) It shall come into force on such date1 as the Central Government may, by notification in the official Gazette, appoint.

—————

1. Came into force on 22-8-1996 vide G.S.R. 375 (E), dated 22nd August, 1996.

Section 2. Definitions.

(1) In this Part, unless the context otherwise requires,—

(a) “arbitration” means any arbitration whether or not administered by permanent arbitral institution;

(b) “arbitration agreement” means an agreement referred to in section 7;

(c) “arbitral award” includes an interim award;

(d) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;

(e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(f) “international commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is—

(i) an individual who is a national of, or habitually resident in, any country other than India; or

(ii) a body corporate which is incorporated in any country other than India; or

(iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or

(iv) the Government of a foreign country;

(g) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;

(h) “party” means a party to an arbitration agreement.

Scope

(2) This Part shall apply where the place of arbitration is in India.

(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.

(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.

(5) Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.

Construction of references

(6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.

(7) An arbitral award made under this Part shall be considered as a domestic award.

(8) Where this Part—

(a) refers to the fact that the parties have agreed or that they may agree, or

(b) in any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement.

(9) Where this Part, other than clause (a) of section 25 or clause (a) of sub-section (2) of section 32, refers to a claim, it shall also apply to a counter-claim, and where it refers to a defence, it shall also apply to a defence to that counter-claim.

Section 3. Receipt of written communications.

(1) Unless otherwise agreed by the parties,—

(a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and

(b) if none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last known place of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.

(2) The communication is deemed to have been received on the day it is so delivered.

(3) This section does not apply to written communications in respect of proceedings of any judicial authority.

Section 4. Waiver of right to object.

A party who knows that—

(a) any provision of this Part from which the parties may derogate, or

(b) any requirement under the arbitration agreement,has not been omplied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.

Section 5. Extent of judicial intervention.

Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

Section 6. Administrative assistance.

In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

Section 7. Arbitration agreement.

(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in—

(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

Section 8. Power to refer parties to arbitration where there is an arbitration agreement.

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration

may be commenced or continued and an arbitral award made.

Section 9. Interim measures, etc. by Court.

A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court—

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:—

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the court to be just and convenient,and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

Section 10. Number of arbitrators.

(1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.

(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.

Section 11. Appointment of arbitrators.

(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.

(4) If the appointment procedure in sub-section (3) applies and—

(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or

(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

(6) Where, under an appointment procedure agreed upon by the parties,—

(a) a party fails to act as required under that procedure; or

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure,a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.

(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to—

(a) any qualifications required of the arbitrator by the agreement of the parties; and

(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

(10) The Chief Justice may make such scheme1 as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him.

(11) Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant sub-section shall alone be competent to decide on the request.

(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to ‘‘Chief Justice’’ in those sub-sections shall be construed as a reference to the ‘‘Chief Justice of India’’.

(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.

Scope

It is well settled that where an arbitrator is named in the arbitration agreement, the provisions of section 11 of the Act are not attracted and the court will not have jurisdiction to try and decide the petition filed by party for appointment of another arbitrator; Kamla Solvent v. Manipal Finance Corpn. Ltd., AIR 2001 Mad 440.

Under section 11, there is no provision fixing any time limit except under sub-section (5) which provides the time limit of 30 days from the receipt of the request from the party for appointment of an arbitrator. Under sub-section (6) no such time limit have been fixed. It is required under the procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment; Ansal Properties & Industries Ltd. v. Himachal Pradesh State Electricity Board, AIR 1997 Arb LR 11.

Existence of arbitration clause and validity of reference

The existence of the arbitration clause and the validity of reference shall only be decided by the Arbitrator. It is also within the domain of the Arbitrator to decide whether the claim of the petitioner has already been settled on full satisfaction; Navratandas & Co. (P) Ltd. v. Tata Iron & Steel Co., AIR 2006 Jhar 7.

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1. See Appointment of Arbitrators by the Chief Justice of India Scheme, 1996, published in the Gazette of India, Extra., Pt. III, Sec. 1, dated 16th May, 1996.

Section 12. Grounds for challenge.

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.

(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.

(3) An arbitrator may be challenged only if—

(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or

(b) he does not possess the qualifications agreed to by the parties.

(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

Section 13. Challenge procedure.

(1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.

(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.

(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.

(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.

(6) Where an arbitral award is set aside on an application made under sub-section (5), the Court may decide as to whether the arbitrator who is challenged is entitled to any fees.

Section 14. Failure or impossibility to act.

(1) The mandate of an arbitrator shall terminate if—

(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and

(b) he withdraws from his office or the parties agree to the termination of his mandate.

(2) If a controversy remains concerning any of the grounds referred to inclause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.

(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.

Section 15. Termination of mandate and substitution of arbitrator.

(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate—

(a) where he withdraws from office for any reason; or

(b) by or pursuant to agreement of the parties.

(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

Section 16. Competence of arbitral tribunal to rule on its jurisdiction.

(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,—

(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified.

(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.

(6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34.

Section 17. Interim measures ordered by arbitral tribunal.

(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute.

(2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1).

Section 18. Equal treatment of parties.

The parties shall be treated with equality and each party shall be given a full opportunity to present his case.

Section 19. Determination of rules of procedure.

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.

(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.

(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Section 20. Place of arbitration.

(1) The parties are free to agree on the place of arbitration.

(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

Section 21. Commencement of arbitral proceedings.

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

Section 22. Language.

(1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings.

(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings.

(3) The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal.

(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

Section 23. Statement of claim and defence.

(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.

(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

Section 24. Hearings and written proceedings.

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials:

Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.

(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property.