Gujarat HC Issues Notice On Challenge To 2020 State Ordinance Rendering Factories Act "Toothless" [Read Petition]

It is submitted that the questioned ordinance proposes to withdraw penal provisions contained in the Principal Act for factories running with the aid of power, employing more than 20 workers (instead of 10), and for factories running without aid of power, employing more than 40 workers instead of 20. Thus, the ordinance adversely affects the rights of workers in power-aided factories with 10 to 20 workers, and workers employed in factories operating without aid of power and having 20-40 workers. "In Gujarat there are large number of power aided factories employing more than 10 and less than 20 workers. Similarly, there are hundreds and thousands of factories running without aid of power in Gujarat where the workforce would be more than 20 and less than 40. Thus, amendment is sought to be made by the questioned ordinance to withdraw all sorts of protections given to the workers employed to the extent of 40 in the power aided factories and to the extent of 20 in the factories running without the aid of power. There is absolutely no rational logic for: withdrawing the basic protection given to the citizens by amending the pre-constitutional statute. In other words, the law of the land in respect of workers' health, safety, hygienic working conditions, working hours etc. would not apply in the factories as stated hereinabove", it is urged.

Further, before the ordinance, the State Government was empowered to issue notification under section 85 of the 1948 Act to declare any place as a "factory", where manufacturing process was carried out by not less than ten persons with the aid of power and twenty without the aid of power. The said numbers of persons engaged are now changed to not less than twenty with the aid of power and not less than forty without the aid of power for the purpose of issuance of notification for declaring any place as a "factory".

"The Scope of Section 85 contemplates a case where the persons working in the place are not employed by the owner of the place but they are working with the permission of, or under an agreement with the owner of the place. To such a case, Government may make the factories Act applicable by means of a notification, and after the place is so declared by notification, the place shall be deemed to be a factory , and the owner shall be deemed to be the occupier, and any person working therein, a worker.The amendment in the section as well as the insertion of Section 106B will make this section meaningless. The workers who are not directly engaged by the occupier (the principal employer in cases where the contractual workers are engaged) will have no rights or protection whatsoever", argues the plea.

Besides, a new section 106B namely "Compounding of offences" has been inserted in the principal Act, whereby the State government is authorised to make any or all offences under the Principal Act compoundable. "Primarily, constitution of offence and providing penalty for committing breach of any provision made under the law is a sanction to seek compliance of the law. The provisions relating to penalties and procedure are made in Chapter-X of the Principal Act. For illustration, Section 92 of the Principal Act provides for two years imprisonment of occupier or manager of the factory and fine of rupees one lakh for contravention of any provision of the Act or any rule made thereunder. Similar provisions are contained in section 94 and 96A", avers the petition.

It is submitted that compliance of the provisions made in the Principal Act in respect of health and hygiene of the workers, safety, hazardous processes, welfare, working hours, employment of young persons are mandatory in nature. By inserting section 106B in the Principal Act by the questioned ordinance, the entire Principal Act has been rendered toothless. In ultimate analysis, the employer will become immune from the penal actions for violating the provisions in respect of health and hygiene of the workers, safety, hazardous processes, welfare, working hours, employment of young persons provided in the Principal Act on payment of certain amounts to the government.

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