1.3.

Employees Provident Fund and Miscellaneous Provisions Act, 1952;

Payment of Gratuity Act, 1972

The Payment of Gratuity Act 1972 is a social security enactment. An Act to provide for a
scheme for the payment of gratuity to employees engaged in factories, mines, oilfields,
plantations, ports, Railway companies, shops or other establishments[i]. The significance of
this legislation lies in the acceptance of the principle of gratuity as a compulsory statutory
retiral benefit.[ii] The Act accepts, in principle, compulsory payment of gratuity as a social
security measure to the wage-earning population in industries, factories and establishments.
Thus, the main purpose and concept of gratuity are to help the workman after retirement,
whether retirement is a result of the rules of superannuation or physical disablement or
impairment of vital part of the body.
Gratuity shall be payable to an employee on the termination of his employment after he has
rendered continuous service for not less than five years,-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement (five-year service not required) due to accident or disease
In the case of death of the employee, gratuity payable to him shall be paid to his nominee or,
if no nomination has been made, to his heirs, and where any such nominees or heirs is a
minor, the share of such minor shall be deposited with the controlling authority (i.e.
government officer) who shall invest the same for the benefit of such minor in such bank or
other financial institution, as may be prescribed, until such minor attains majority[iv]. In
computing the gratuity payable to an employee who is re-employed, after his disablement, on
reduced wages, his wages for the period preceding his disablement, shall be taken to be the
wages received by him during that period, and his wages for the period subsequent to his
disablement shall be taken to be the wages as so reduced.

Applicability Of The Act

a) every factory, mine, oilfield, plantation, port and railway company.
(b) Every shop or establishment within the meaning of any law for the time being in force in
relation to shops and establishment in a State, in which 10 or more persons are or were
employed on any day in the preceding 12 months.
(c) Such other establishments or class of establishment, in which 10 or more employees are
or were employed on any day in the preceding 12 months, as the Central Government may
notify in this behalf.

Salient Features Of The Payment Of Gratuity Act, 1972

1. The Act is a self-contained and an exhaustive Act and the provisions of this
Act and rules made under it have an overriding effect on all other Acts or
instruments or contracts so far as they are inconsistent with this Act.
2. The Act is fairly sweeping in coverage, as it applies to all factories, mines, oil
fields, plantations, ports and railways irrespective of the number of workmen
employed by them. It also covers shops and establishments employing 10 or
more persons.
 3. The Act gives a statutory right of gratuity to all the employees, who have
rendered five years’ continuous service and whose services stand terminated
after coming into force of the Act on account of superannuation, or retirement,
or resignation, or death or disablement.
4. The Act provides both executive and quasi-judicial machinery for matters
pertaining to nomination, determination and recovery of gratuity.
5. The executive machinery pertains to maintenance of records regarding
opening, change or closure of establishments, display of notices and
maintenance of records by the controlling authority. The quasi-judicial
functions have been divided between the employers and the Controlling
Authority in as much as for payment of gratuity, the first forum provided is an
application to the employer. When the employer has declined or avoided
payment of gratuity, then an application is required to be made to the
Controlling Authority.
6. The machinery provided for recovery rests with the Controlling Authority.
7. The orders of the Controlling Authority for payment or determination of
gratuity are applicable before the appropriate government or the appellate
authority.
Amount Of Gratuity
For every completed year of service or part thereof in excess of six months, the employer
shall pay gratuity to an employee at the rate of fifteen days’ wages based on the rate of wages
last drawn by the employee concerned In the case of a piece-rated employee, daily wages
shall be computed on the average of the total wages received by him for a period of three
months immediately preceding the termination of his employment, and, for this purpose, the
wages paid for any overtime work shall not be taken into account (in a piece rated system
there may not be the concept of basic, DA, HRA, CCA etc.
Calculation of Gratuity
Gratuity is calculated at 15 days wages last drawn by the employee for each completed year
of service. The monthly wage is divided by 26 and multiplied by 15. In computing a
completed year of service the period in excess of six months shall be taken as a full year.
Gratuity = Monthly salary x 15 days x No. of years of service. The maximum amount of
gratuity payable under the Act is Rs. 3,50,000.00.

Penalties
Failure to comply with the Payment of Gratuity Act 1972 entails certain penalties (Sec. 9)
[xxvi], which are the following:
(i) For avoiding any payment knowingly makes any false statement or representation shall
be punishable with imprisonment upto 6 months or fine upto Rs. 10,000.00 or both.
(ii) Failure to comply with any provision of the Act or Rules Shall be punishable with
imprisonment upto 1 year but will not be less than 3 months or with fine, which will not be
less than Rs. 10,000.00 but may extend upto Rs. 20,000.00 or with both.
(iii)Any offense relating to non-payment of gratuity under the Act Employer shall be
punishable with imprisonment for a term which shall not be less than 6 months but may
extend to 2 years, unless the court for reasons recorded decides for a lesser term of
imprisonment or fine.

Conclusion
The Payment of Gratuity Act, 1972 is a beneficial legislature meant for the welfare of
employees working under the non-government sector on small pay scale. It’s being a
beneficial legislature both the parliament and judiciary has given a wider prospective to the
scope of legislature to cover the maximum deserving employees in its ambit. In comparison
with most of the other countries the Indian law is not restricted just to the cases where
contract of employment is prematurely terminated by the employers but it covers almost
every case of termination of employment. However Indian law provides for compulsory
requirement for the five year continuing service.

1.4. Statutory Measures for Women and Children: Prevention of Sexual

Harassment at Workplace, Act (2013); Child Labour Prohibition and
Regulation Act (1986).

Prevention of Sexual Harassment at Workplace, Act (2013)

Workplace sexual harassment is a form of gender discrimination which violates a woman’s
fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the
Constitution of India (“Constitution”). Workplace sexual harassment not only creates an
insecure and hostile working environment for women but also impedes their ability to deliver
in today’s competitive world.
India’s first legislation specifically addressing the issue of workplace sexual harassment; the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development, India in
2013.
The POSH Act has been enacted to prevent and protect women against workplace sexual
harassment and to ensure effective redressal of complaints of sexual harassment. While the
statute aims at providing every woman (irrespective of her age or employment status) a safe,
secure and dignified working environment, free from all forms of harassment, proper
implementation of the provisions of the statute remains a challenge.

EVOLUTION OF POSH ACT

Workplace sexual harassment in India was for the very first time recognized by the Supreme
Court of India) in its landmark judgment of Vishaka v. State of Rajasthan wherein the
Supreme Court framed certain guidelines and issued directions to the Union of India to enact
an appropriate law for combating workplace sexual harassment. Which laid down certain
guidelines making it mandatory for every employer to provide a mechanism to redress
grievances about workplace sexual harassment (“Vishaka Guidelines”) which were followed
by employers until the enactment of the POSH Act.
Post Vishaka – Some Other Judgments
1. Apparel Export Promotion Council v. A.K Chopra (1999)
Here, the definition of sexual harassment was changed by ruling that physical contact was not
essential for it to amount to an act of sexual harassment.
The Supreme Court explained that “sexual harassment is a form of sex discrimination
projected through unwelcome sexual advances, request for sexual favours and other verbal or
physical conduct with sexual overtones, whether directly or by implication, particularly when
submission to or rejection of such conduct by the female employee was capable of being used
for affecting the employment of the female employee and unreasonably interfering with her
work performance and had the effect of creating an intimidating or hostile work environment
for her.”
2. Medha Kotwal Lele&Ors. V. Union of India &Ors.
The Supreme Court observed that “the implementation of the Vishaka Guidelines has to be
not only in form but also in substance and spirit to make the available safe and secure
environment for women at workplace in every aspect and thereby enabling working women
to work with dignity, decency and due respect.’
The Supreme Court asserted that in case of non-compliance or non-adherence to the Vishaka
Guidelines, it would be open to the aggrieved persons to approach the respective High
Courts.

IMPORTANT PROVISIONS OF THE POSH ACT

 Internal Complaints Committee (ICC):
Following Section 4 of the POSH Act, every office or branch of an organization employing
ten or more employees must have an internal committee dedicated to hearing and resolving
sexual harassment complaints. The Court held that there should be a fine imposed under the
POSH Act for failing to constitute the IC.
 Local Committee
Under Section 5 of the POSH Act, the district governments are required to set up local
committees to investigate and respond to complaints of sexual harassment from the
unorganized sector and from establishments where the IC has not been formed due to fewer
than 10 employees of the establishment or when the complaint is against the employer.
 Complaint mechanism
An aggrieved woman who intends to file a complaint is required to submit six copies of the
written complaint, along with supporting documents and names and addresses of the
witnesses to the IC or LC, within 3 months from the date of the incident and in case of a
series of incidents, within 3 months from the date of the last incident. Prompt reporting of an
act of sexual harassment is probably as important as swift action to be taken by the authorities
upon receiving a complaint. The more prompt the complaint is, the more authentic can it be
treated.
 Interim relief
In response to a complaint, the Local Committee or Internal Committee may recommend
interim measures to the employer, including the following:
  Relocation of the aggrieved woman or the respondent;
 Additional statutory/contractual leave of 3 months allowed to the aggrieved
woman;
 Refraining the respondent from reporting on the performance (work performance)
of the aggrieved woman or writing her confidential report, which can then be
delegated to another employee.

KEY DEFINITIONS UNDER THE POSH ACT

1. Sexual Harassment
The POSH Act states that ‘sexual harassment is any unwelcome sexual behaviour, whether
directly expressed or implied, and includes the cases of physical contact and advances, or a
sexual favour demanded or requested, or making remarks with sexual overtones, or showing
pornography or other offensive material, or acting in an unwelcome sexual manner through
physical, verbal, or non-verbal means.
2. Employee
Following Section 2(f), an employee is an individual who is engaged in a daily wage
position, either directly or through an agent, a co-worker, a probationer, a trainee, and an
apprentice, whether remunerated or not, whether voluntarily or otherwise, and whether or not
the terms of employment are express or implied.
3. Workplace
According to Section 2(o) of the Act, a ‘workplace’ refers to any place visited by an
employee as part of his or her employment, including any transportation provided by the
employer for travelling to and from work.

DRAWBACKS OF THE POSH ACT

1. Gender neutrality
This Act excludes the possibility of redress for complaints raised by men or LGBTQ+
members by limiting the scope to women only. The existence of a biased law perpetuates the
age-old stereotype of a male harasser and a female victim, vitiating the concept of equality in
the workplace. It is, therefore, necessary to propose a gender-neutral law which mandates that
workplaces have appropriate policies for addressing sexual harassment both by males and
individuals belonging to the LGBTQ+ community.

2. Threats of retaliation
The fear of retaliation by the harasser or organization is a large factor in women’s reluctance
to report workplace harassment. the majority of victims do not wish to raise their voices
against the perpetrator for fear of social stigma, embarrassment, or even further
harassment. There are additional challenges that women face if they complain about senior
employees, such as increasing their likelihood of hostility from their peers or supervisors, a
negative reference for future employers, or even losing their employment.
 3. Limited recourse for women in the informal sector
employees feel their incidents of sexual harassment are ‘trivial’ and they would be better
served by simply ignoring them rather than participating in a lengthy legal process that often
fails to satisfy their needs. The fact that complaints by women working in the informal sector
are not taken into account by the Act is particularly disappointing.
4. Compliance audit and governmental scrutiny
As a result of Sections 21, 23, 24 and 25 of the Act, the government is responsible for
monitoring the working of the Internal Committees, Local Committees, employers, and all
other aspects of the implementation of the Act. It is crucial to monitor compliance to identify
grey areas and to highlight those that need further investigation. The parties responsible for
failing to perform their obligations may not face any penalties without such scrutiny. The law
is also less efficient when it cannot be analysed for its shortcomings.

CONCLUSION:
The POSH Act is relatively new labour law in India, these judgements analysing various
intricate aspects under the POSH Act help provide better clarity not just for the employer and
the IC members, but also for the public at large. In light of the #MeToo movement, several
cases including those which occurred before the enactment of the POSH Act are now coming
into the limelight. With the rising number of reported cases of workplace sexual harassment
of women, it becomes imperative for employers and their respective HR & in-house legal
teams to take proactive steps to prevent and effectively redress complaints of workplace
sexual harassment. It is also important for employers to regularly train their IC members on
the nuances of the POSH Act and investigation formalities.

Child Labour Prohibition and Regulation Act (1986)

India is one of the countries where children below 14 years age and below have been making
them to work in menial, hazardous work environment and sometimes dirty jobs in hotels and
restaurants for washing of dishes and bowels, Child labor has been hired especially in the
small-scale units like leather, plastic, bangle manufacturing, poultry, food manufacturing and
Garment Manufacturing related units et cetera.
International Labour Organisation [ILO] defines child labour as work that not only affects
their childhood but also doesn’t let the children attend school regularly, or have a proper
education. Child labour also deprives children of their dignity, potential, and childhood.
Children working below the age of 14 years are not able to develop mentally, socially,
physically, or morally.
A different definition of child labour is given by the United Nations Children’s Fund
[UNICEF]. According to it, a child is considered as labor when:

 His/her age is between 5 to 11 years, and

 At least 1 hour of economic activity is performed by him/her or he/she is doing at least
28 hours of domestic work in a week.
If the children are between 12 to 14 years of age, then either they should be doing at least 14
hours of economic activity or at least 42 hours of domestic work per week to be considered as
child labor.

Objectives of the Child Labour (Prohibition and Regulation) Amendment

Act, 2016
Prohibit the engagement of children in all occupations and to prohibit the engagement of
adolescents in hazardous occupations and processes and the matters connected therewith or
incidental thereto
Under the Child Labour (Prohibition and Regulation) Amendment Act, 2016, children
younger than 14 years can now work in family enterprises and farms after school hours and
during holidays. Children working as artists in the audio-visual entertainment industry,
including advertisement, films, television serials or any such other entertainment or sports
activities, except the circus, have also been granted exemption, provided the work does not
affect their school education.
Besides, the Act provides banning employment of children between 15-18 years in hazardous
works, in sync with the Right to Children to Free and Compulsory Education Act 2009.
The Bill enhances the punishment for employing any child in an occupation. It also includes
penalty for employing an adolescent in a hazardous occupation.
The penalty for employing a child was increased to imprisonment between 6 months and two
years (from 3 months-one year) or a fine of Rs 20,000 to Rs 50,000 (from Rs 10,000-20,000)
or both.
The penalty for employing an adolescent in hazardous occupation is imprisonment between 6
months and two years or a fine of Rs 20,000 to Rs 50,000 or both.
anyone repeats offences like employing child or employing adolescents in hazardous
occupations mentions in this act under section 3A, they shall be punishable with
imprisonment for a term which shall not be less than one year but which may extend to three
years.
Article 24 of Indian Constitution says Prohibition of employment of children in factories,
etc. which means child below the age fourteen years should not be employed in work in any
factory or mine or engaged in any other hazardous employment.

Critical Analysis of the Child Labour (Prohibition and Regulation) Act,

1986:
In developed nations, children Laborers are part-time employees who pursue formal or
informal schooling. yet, in India, the majority of child laborers are either dropouts or do not
attend school. There is no mention of an employer's obligations in the Act.
The Act does not mention rehabilitative strategies for kids rescued from the forbidden
employments. The Act fails to identify dangerous job or consequently, even if some
industries are hazardous, so long as the Central Government notifies it and it is protected
under the Act.
Overall, the Act is good. Defending young workers' interests primarily in terms of labor laws
hours, holidays, and leave, and that just relies on the appointed authorities' observation and
inspection, or inspectors, which a complaint-based investigation may be started.
When records refer to country-wide increase in the use of child labor, very low rate of
complaint and conviction proves the ineffective implementation of the legislation. One of the
simplest explanations for why the Act has not been implemented is its reliance on the
sparsely populated position of labor inspectors compared to the numerous, highly subsidized
small-scale industrial units scattered and challenging to keep an eye on. inadequate
documentation evidence, and in the case of poor, uneducated people, accurate age proof in
particular are key reasons why a prosecution will fail.
The agricultural sector, which constitutes 80 percent of the child labour force, appears to be
outside the scope of regulation of the Act. Large number of small-scale units that operate as
household/family units falls outside the scope the Act.
The Child Labour (Prohibition and Regulation) Amendment Act, 2016:
The Parliament has passed this new Act to alter the main Act33 with the purpose of
harmonizing the Right with the Law Amended the Free and Compulsory Education Act of
2009 so that Children between the ages of 6 and 14 are not at risk.
As part of the Act, a definition for 'Adolescent' was absent from the original Act. The
meaning of the terms "child" and "adolescent" used in this Act change slightly from the
according to the Factories Act of 1948 definition.
Current principal The Act of 1986 exempted family businesses, which led to the removal of a
significant many small-scale businesses double as family homes and exploit child labor
widespread, beyond the reach of the law.
The new Act has defined the ‘family enterprises’ and has expanded the scope of the
definition of ‘family’ to include ‘father’s sister and brother’ and ‘mother’s sister and brother’,
as newly added into the definition of ‘family’ which was not there in the definition clause of
already in existence other labour laws. the definition of ‘family’ has left a scope of
exploitation of the poor children who have lost their parents. So the new Act, though seems
apparently a progressive legislation, it suffers from a lot of inbuilt lacunae.
It may be observed that the new Act, 2016 has just done a cosmetic change to show the
stricter punishment but it has no teeth to remedy the situation. More particularly it has
bypassed the main issue of addressing vastness of child labour market in small scale and
home-based work where the law should have extended its tentacles to reach the root of the
problem.

Conclusion:

When children are neglected, it hinders a nation's ability to develop. Due to the importance of
children and their employment as laborers valuable human resources is a nation’s greatest
asset. This is the good and obligation placed on the State to offer free and mandatory all
youngsters should receive an education till they turn 14 years old. It has been a long-standing
problem, hence the title of the primary causes of this are poverty and the family's low
economic situation. The issue cannot be resolved completely. In our nation, child labor is
considered a despite appearing to be a poverty-driven phenomenon, it actually reflects more
or less a societal views and attitudes. Where it is clear that some developing nations,
including Sri Lanka, Vietnam, Tanzania, Uganda, Zaire, Burma, Kenya, and China, have
successfully implemented programs of compulsory education, whether sponsored by the State
or a religious or social group, with corresponding decreases in child labor, the question of
why India has not done the same still remains. Of course, the legislative intent is the key to
the solution. Employers are enticed to use children, and legal restrictions tend to worsen the
situation.