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1.

1 Social Security: Concept, Types, Evolution, Definition and Objectives


The term social security has been defined differently by authorities and, thus, there is no
commonly accepted definition of the term. There are mainly two streams of thought on this
issue, one represented by the ILO that limits the scope of social security to maintenance of
one’s income against loss or diminution.

Another view perceives social security in a broader sense; in this sense, it is a set of policies
and institutions designed to enable a person to attain and maintain a decent standard of life.
This is described as a preventive or promotional form of social security.
The ILO has defined social security as ‘the surety that society furnishes, through appropriate
organization, against certain risks to which the members are exposed. These risks are
essentially contingencies against which the individuals of small means and meagre resources
cannot effectively provide by their own ability or presight or even in private combination
with their fellow workers—these risks being sickness, maternity, invalidity, old age, and
death. It is the characteristics of these contingencies that they imperil the ability of the
working class to support itself and its dependent in health and decency’.
William Beveridge has defined social security as “a means of securing an income to take the
place of earnings when they are interrupted by unemployment, sickness or accident to
provide for the retirement through old age, to provide against loss of support by death of
another person or to meet exceptional expenditure connected with birth, death, or marriage.
The purpose of social security is to provide an income up to a minimum and also medical
treatment to bring the interruption of earnings to an end as soon as possible.”

Concept
Social Security envisages that the members of a community shall be protected by collective
action against social risk causing undue hardship and deprivation to individuals whose private
resources can seldom be adequate to meet them.

The concept of Social Security is based on ideas of human dignity and social justice. It
further tries to protect the citizens to contribute towards the countries total welfare.

The wages provided to the employees, particularly of the lower level may not be sufficient to
meet their needs like medical, children education, maternity needs of women employees and
employees’ wives’ etc. Therefore, Governments of various countries insist the employers to
provide the security to their employees against the social evils. In addition. Governments also
provide social security measures to the people.

Social security benefits in India are provided in two major way:


1. Social Insurance.
In this scheme, a common fund is established with periodical contributions from workers,
according to their nominal paying capacity. The employers and state provide the portion of
the finance. Provident fund and group insurance are example of this type.
2. Social Assistance.
Under this, the cost of benefits provided is financed fully by the government without any
contributions from workers and employers. However, benefits are paid after judging the
financial position of the beneficiary. Old age pension is an example.

Objectives of Social Security:

Compensation:

Compensation ensures security of income. It is based on this consideration that during the

period of contingency of risks, the individual and his/her family should not be subjected to a

double calamity, i.e., destitution and loss of health, limb, life or work.

Restoration:

It connotates cure of one’s sickness, reemployment so as to restore him/her to earlier

condition. In a sense, it is an extension of compensation.

Prevention:

These measures imply to avoid the loss of productive capacity due to sickness,

unemployment or invalidity to earn income. In other words, these measures are designed with
an objective to increase the material, intellectual and moral well-being of the community by

rendering available resources which are used up by avoidable disease and idleness.

Evolution of social security


http://www.mbaexamnotes.com/evolution-of-social-security.html
The evaluation of social security in India can be studied broadly in two segments.
I. Pre-Independence Period
II. Post-Independence Period

There was large scale industrialization in Indian from 1850 especially in the Textile
Industries. But as workers being totally unorganized no attention could be paid towards the
welfare.

Pre-Independence Period and Social Security of Workers

In 1877 first labour unrest took place at “Empress Mills Nagpur” for improving their wages.
In 1890 first Trade Union Bombay Mill Hands association was formed under the leadership
of N.M. Lokhande.
In 1885 the first Fatal accident Act was passed. Inspite of this workers were living under very
poor inhumane conditions. There was no provisions of any measures for social security
before 1920.
In 1920 International Labour Organization gave a boost to labour welfare and social security
schemes
After the first world war, due to Indian National movement. British Government started
thinking about the employees and accordingly (i) Workmen’s compensation Act, 1923 (ii)
The payment of wages Act’ 1936 (iii) Minimum wages Payment Act (iv) Maternity Benefits
Act were passed from time to timeMr.B.R. Ambedkar was appointed as a ‘labour member of
the victory’s council” after second world war.
In 1937 a contributory Health Insurance scheme was formulated.
In 1940 during the first Labour Minister’s conference the need for sickness Benefit fund was
felt.
In 1947, the Industrial dispute Act was enacted with the main objective was to make
provisions for the investigation and settlement of industrial disputes. Most important
contribution of employee’s State insurance Act 1923.
Post–Independence period and Social Security
Post–Independence period and Social Security

In 1947 India got Independence and Indian Government intensified the labour welfare and
social security measures. In 1948 employees state Insurance was duly modified and that was
beginning of the era of Social Insurance of Indian labour.
In 1948 Indian government made certain important amendments in existing Indian factories
act 1934 and came with an entirely new nomenclature “The factories act 1948” with a main
purpose of regulating conditions of work in manufacturing establishment for ensuring
adequate health, welfare measures, hours of work and leave with wages.
In 1948 the Government enacted Maximum wages Act for prevention of exploitation of
labour due to payment of unduly low wages.

In 1952 Government enacted Employee’s Provident fund and miscellaneous provision act
with a main objective of providing substantial measures of financial security and timely
monetary assistance to industrial works and their families.

‘Besides this’
(i) “The Assam tea plantations provident fund act 1995.” The personal injuries
(Compensation Insurance) act, 1963.
(ii) The seamen’s provident fund Act 1966
(iii) The plantation labour Act 1951
(iv) The(central) maternity benefit Act, 1961
Were enacted for providing social security to weaker section of the society where there were
more chances of exploitation and victimization
Types of Social Security Benefits- 5 types

the social security system in India includes not just an insurance payment of premiums into
government funds, but also lump sum employer obligations.

Generally, India’s social security schemes cover the following types of social insurances:

 Pension Provident Fund


 Health Insurance and Medical Benefit
 Disability Benefit
 Maternity Benefit
 Gratuity

While a great deal of the Indian population is in the unorganized sector and may not have an
opportunity to participate in each of these schemes, Indian citizens in the organized sector
(which include those employed by foreign investors) and their employers are entitled to
coverage under the above schemes.

The applicability of mandatory contributions to social insurances is varied. Some of the social
insurances require employer contributions from all companies, some from companies with a
minimum of 10 or more employees, and some from companies with 20 or more employees.

Pension or Employees’ Provident Fund (PF)

The schemes under the Employees’ Provident Fund Organization apply to businesses with at
least 20 employees. Contributions to the Employees’ Provident Fund Scheme are obligatory
for both the employer and the employee when the employee is earning up to 15,000
rupees(Rs) per month, and voluntary when the employee earns more than this amount. If the
pay of any employee exceeds this amount, the contribution payable by the employer will be
limited to the amount payable on the first Rs 15,000 only.

These four main types of pension (all monthly) are offered:

1. Pension upon disability;


2. Widow’s pension for death while in service;
3. Children’s pension; and,
4. Orphan’s pension.

Health Insurance and Medical Benefit

Under the Employees’ State Insurance Act, 1948 (ESI), companies with 10 or more
employees must extend benefits to any employee making under 21,000 Indian Rupees (INR)
per month. These benefits are offered in cases of sickness, maternity, and employment
injury.
Individuals covered by the ESI are entitled to receive medical treatment for themselves and
their dependents, unemployment cash benefits, maternity benefits, and a disablement benefit.

The financing for these benefits are paid by both the employer and employee. Employer
contributions are equivalent to 4.75% of payable wages and employee contributions are
equivalent to 1.75% of payable wages. Employees who make under INR 137 per day are
exempt from paying their contribution.

Disability Benefit

The Employee’s Compensation Act, 1923, formerly known as the ‘Workmen’s


Compensation Act, 1923, requires the employer to pay compensation to employees or their
families in cases of employment-related injuries that result in death or disability.

Compensation calculation depends on the situation of occupational disability:

(a) Death—50% of the monthly wage multiplied by the relevant factor (age) or an amount of
Rs 80,000, whichever is more.

(b) Total permanent disablement—60% of the monthly wage multiplied by the relevant factor
(age) or an amount of Rs 90,000, whichever is more.

Maternity Benefit

The Maternity Benefit (Amendment) Act, 2017. The amended law provides women in the
organized sector with paid maternity leave of 26 weeks, up from 12 weeks, for the first two
children. For the third child, the maternity leave entitled is 12 weeks. India now has the third
most maternity leave in the world, following Canada (50 weeks) and Norway (44 weeks).

The Act also secures 12 weeks of maternity leave for mothers adopting a child below the age
of three months as well as to commissioning mothers who opt to use a surrogate. The 12-
week period in these cases will be calculated from the date the child is handed over to the
adoptive or commissioning mother.

In other provisions, the law mandates that every establishment with more than 50 employees
must provide day care facilities within easy distance which the mother can visit up to four
times a day.

The Maternity Benefit (Amendment) Act introduces the option for women to negotiate work
from home arrangements, after the maternity leave ends.

Apart from 12 weeks of salary, a female worker is entitled to a medical bonus of Rs 3,500

The 1961 Act states that in the event of miscarriage or medical termination of pregnancy, the
employee is entitled to six weeks of paid maternity leave.

In addition to the above, the 1961 Act states that no company shall compel its female
employees to do tasks of a laborious nature or tasks that involve long hours of standing or
which in any way are likely to interfere with her pregnancy or the normal development of the
fetus, or are likely to cause her miscarriage or otherwise adversely affect her health.

Gratuity

The Payment of Gratuity Act, 1972 directs establishments with 10 or more employees to
provide the payment of 15 daysof additional wages for each year of service to employees
who have worked at a company for five years or more.

Gratuity is provided as a lump sum payout by a company. In the event of the death or
disablement of the employee, the gratuity must still be paid to the nominee or the heir of the
employee.

Gratuity = Last Drawn Salary × 15/26 × Years of Service, where:

 The ratio 15/26 represents 15 days out of 26 working days in a month.


 Last Drawn Salary = Basic Salary + Dearness Allowance.
 Years of Service are rounded up or down to the nearest full year. For example, if the
employee has a total service of 10 years, 10 months, and 25 days, 11 years will be
factored into the calculation.

1.2- Employee state Insurance


The employee state insurance is one type of an integrated social safeguard system having
multidimensional and customized to offer security and protection to the employees of India
and respective states. The said act was introduced as E.S.I ACT1948. This act basically
focuses on the safety of employees by providing help in case of sickness, death in the work
field, injury, maternity, etc. in this scheme complete medical care for the insured person
along with dependents will be benefitted. Employee State Insurance Guidelines
 For all employees earning 21000 or less than that per month as wages, the employer
contributes 4.75% and the employee contributes 1.75% making it total share of 6.75%. That
means both are liable under ESIS.
 According to the rules and regulation, all factories are mandatorily liable to register their
employees under ESI. all govt establishments as well and shops or offices employing 20
persons or more will register themselves.
 But as everything has exemptions, this law has certain exemptions. They are seasonal
factories activities like cotton ginning, jute pressing, decoration of grounds or factories
engaging workers not more than seven months in a year are exempted from registering under
ESI.
Employee State Insurance Features
 It includes all medical care facilities for the person who is insured as well as
dependent members of his/her family from day one.
 It includes medical coverage for a certain specific illness which includes cash
benefits. This covers 70% of the employee’s wages until 91 days. For this benefit to
avail, the workers required to contribute at least 78 days for a period of 6 months.
 There is a special benefit for women employees regarding maternity leave or for
medical problem in pregnancy etc. For maternity leave, there is a period of 26 weeks
which can be extended by one month. But there is no change in wage slab. They will
get at the rate of full wage to contribution for 70 days.
 For an unemployed person, this scheme is also applicable. They are also eligible for
being insured for at least three years, provided they will disclose details regarding
their previous place of work and retrenchment letter. In such case, a monthly payment
of 50%of their wage in cash for a maximum of 2 years can be availed by the
employeesEmployee State Insurance Instruction
 A new employer must be informed of the ESI registration number if the insurer
switches from one company to another company. This process will make insurer
eligible for getting the same benefits which were given in the previous company, if
and when needed.
 For the social security, personal identification card or named as Pehchan card serves
as a channel towards this scheme. it has to be prevented from getting damaged or lost
by the cardholder.
 In case the card is lost, then the insurer and the dependent family members who are
covered under the scheme have to immediately report to their branch office or
dispensary.
 In case an employee got transferred to other state or relocate for professional
reasons,he/she has to get the form 105 signed by their current and existing employer
to remain eligible for the benefits under ESI scheme in another location
Conclusion
For a working-class employee in India, the ESI Act is an essential utility that works in their
favor, while also being beneficial for sectors outside that of the working class. The ESI Act is
unique in the fact that it works in advantageous ways for both employees and employers.
While employees are insured under the act and get financial aid in case of an injury,
the employers are also protected from being jeopardized twice in lieu of paying compensation
to the employees.

The Employees’ State Insurance Act, apart from medical benefits provided to employees,
also controls many more indirect aspects of efficiently managing the Corporation established
by the Act, be it its sales proceedings, account management or separation of powers amongst
its various officers

1.3. Employees Provident Fund and Gratuity Act;


Employee Provident Fund:
Employees’ Provident Fund is a statutory benefit payable to employees working in India. The
Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 ("Act") is applicable
pan-India. The administration and management of Employees’ Provident Fund (EPF) is
carried out by the Central Board of Trustees (CBT) established by the Central Government
consisting of representatives of the Government, employers and employees respectively. The
Employees’ Provident Fund Organization (EPFO) assists this Board in its activities.
EPF is a welfare scheme brought into force to secure a better future for employees. It is a
statutory benefit available to the employees post retirement or when they leave the services.
In case of deceased employees, their dependents will be entitled for the benefits. Under the
Employees’ Provident Fund Scheme (EPF Scheme) both employers and employees have to
make their contributions towards the Fund. Interest earned on the amount is credited to the
member’s Provident Fund Account (PF account) and is available to the employee at the time
of retirement or exit from employment as the case may be, provided certain conditions are
fulfilled.

Applicability

Employees’ Provident Fund has been set up under The Employees’ Provident Fund and
Miscellaneous Provisions Act, 1952 (“Act”) applicable pan-India. The Act is applicable to
every factory or industry mentioned in Schedule 1 of the Act, wherein 20 or more persons are
employed or to any other establishment which the Central Government specifies by
notification in the official Gazette, even when the number of employees is less than 20.

Eligibility to be the member of EPF

Enrolment for PF membership is mandatory for:


1. Any person employed for wages for any work of an establishment either manual or
otherwise.
2. Any person employed through a contractor or engaged as an apprentice but not being
an apprentice under Apprentices Act, 1961.
3. Any person under the standing orders of an establishment, earning less than or equal
to Rs. 15,000per month other than the excluded and exempted employees under
Section 17 of the Act.
Calculation OF PF

https://www.bajajfinserv.in/how-to-calculate-pf-provident-fund#:~:text=To%20calculate
%20your%20provident%20fund,on%20the%20employee's%20basic%20pay.

Withdrawals from EPF account

1. The funds from an EPF account can be withdrawn completely in full settlements on
attaining 58 years of age or at the time of retirement the employee can claim for a
complete settlement or if an employee remains unemployed for a period of 2 months
or more or in the case of death while in service before attaining the age of retirement,
in which case the nominees or legal heirs are entitled to withdraw the accumulated
fund.
2. The partial withdrawal of funds from the EPF is available for educational opportunity,
medical treatment, repayment of home loan, marriage, purchase of land/house/flat, in
case the establishment/factory is closed, natural calamity, an year before retirement
and unemployment for a period of more than one month.

Benefits

The employees covered under the various schemes of the Act are entitled for the following
benefits
1. Employees can take advances or make withdrawals*.
2. PF amount of a deceased member is payable to the nominees or legal heirs.
3. The employer not only contributes towards the PF but also makes the necessary
contributions towards the employee’s pension which can be used by the employee
post-retirement
4. Under the EDLI Scheme employees are properly insured in order to avail the lump
sum benefit at the time of death while in service.
5. EEE (Exempt, Exempt, Exempt)tax benefit under the Income Tax Act enables tax-
free returns for the employees.
6. Employees receive special benefits in the form of added income to their savings in the
form of interest.
7. PF account can be transferrable if any member changes employment from one
establishment to another where such Provident Fund scheme is applicable.

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 lessthan 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 hisdisablement, 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 FeaturesOf 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

Gratuity = Last Drawn Salary × 15/26 × Years of Service, where:

 The ratio 15/26 represents 15 days out of 26 working days in a month.


 Last Drawn Salary = Basic Salary + Dearness Allowance.
 Years of Service are rounded up or down to the nearest full year. For example, if the
employee has a total service of 10 years, 10 months, and 25 days, 11 years will be
factored into the calculation.

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 uptoRs. 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
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.”
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 (solution)
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 thescope 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 belowhave 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 dropoutsor 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 Act 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 wherethe 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.

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