Code on Social Security 2020

The Code on Social Security, 2020 (Code) is enacted to reform the existing laws relating to the social security expanding its applicability to all employees and workers that includes organized, unorganized, and other sectors.

Key Objectives

The Code under 14 Chapters, 164 Sections, 7 Schedules, consolidates, amends, reforms, subsumes, and simplifies the provisions of:

  • The Employee's Compensation Act, 1923:- payment by certain classes of employers to their workmen of compensation for injury by accident.
  • The Employees' State Insurance Act, 1948:- certain benefits to employees in case of sickness, maternity and employment injury, related matters.
  • The Employees' Provident Funds and Miscellaneous Provisions Act, 1952:- institution of provident funds, pension fund, and deposit-linked insurance fund, for employees in factories and other establishments.
  • The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959:- compulsory notification of vacancies to employment exchanges.
  • The Maternity Benefit Act, 1961:- regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.
  • The Payment of Gratuity Act, 1972:- scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments.
  • The Cine-Workers Welfare Fund Act, 1981:- financing of activities to promote the welfare of certain cine- workers.
  • The Building and Other Construction Workers' Welfare Cess Act, 1996:- levy and collection of a cess on the cost of construction incurred by employers with a view to augmenting the resources of the Building and Other Construction Workers’ Welfare Boards constituted under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.
  • The Unorganised Workers' Social Security Act, 2008:- social security and welfare of unorganised workers.

Highlights of Code

  • Eliminates the diversified definitions and authorities that exists under the above-mentioned Acts by bringing uniformity.
  • Enables the establishments to register for ESI voluntarily even if the number of employees count is less than the prescribed threshold.
  • Defines the term ‘employee’ to cover maximum number of employees and workers and removes the term workers.
  • Includes the gig workers, platform workers and the other unorganized workers within its ambit of workers and simplify the registration process through Aadhar-based registration for all these organized and unorganized worker segment.
  • Reduces the multiple compliances under the aforesaid Acts to minimal level enabling ease of compliance to the employers.
  • Provides for the establishment and maintenance of separate social security funds for the welfare of the gig workers, platform workers and unorganized workers sector.
  • Provides for registration electronically, or otherwise, of every establishment.
  • The establishments that are already registered under other Central labour laws need not register again under this Code.
  • Provides the option for cancellation of registration by any establishment whose business are in the process of closure.

Applicability

  • The Code is applicable to the whole of India.
  • The Central Government will notify in the Official Gazette the date on which the Code will become effective and operational. It may be a single date appointed to bring the entire Code operational, or there may be different dates appointed for different provisions to come into force.
  • The Code is applicable to all the establishments, employers, and employees unless it is expressly exempted under any provisions.

Social Security Organizations

The Central Government will constitute the appropriate Boards to perform its relating and incidental functions under the Code viz.,

  • Board of Trustees of Employees’ Provident Fund
  • Employees’ State Insurance Corporation
  • National Social Security Board and State Unorganised Workers’ Board
  • State Building Workers’ Welfare Boards

Employees’ Provident Fund (PF)

Provident fund is a mandatory retirement savings scheme for the benefit of employees designed with prescribed contributions under certain schemes. It comprises the employer and employee contribution for the purpose of funds, pension and insurance schemes. Such such funds are handled by the authorities of the government with stipulated payouts.

Applicability

Employees' Provident Fund Every establishment in which twenty or more employees are employed.

Schemes

The Employees’ Provident Fund will be headed by a Central PF Commissioner; the Central Government may frame/modify schemes relating to Employees’ PF, Pension for Employees’, Superannuated employees, widow/widower, children, orphan, and nominees, Employees’ Deposit Linked Insurance, etc.; it may also frame schemes for providing the social security benefits to self-employed workers or any other class of persons.

PF, Pension and Deposit-Linked Insurance Funds

The Provident Fund will be established by the Central Government where the contributions paid by the employer be 10% of the wages for the time being payable to each of the employees (whether employed by him directly or by or through a contactor), and the employee's contribution shall be equal to the contribution payable by the employer in respect of him. If any employee prefers to contribute an amount exceeding 10% of the wages, may do so, but the employer need not pay any contribution over and above the 10% of the wages.

If the Central Government, for certain establishments, after inquiry if deems it fit, it may modify the 10% to 12%. The Central Government, after making such inquiry as it deems fit, may, specify rates of employees’ contributions and the period for which such rates shall apply for any class of employee.

The employer shall pay his contribution for the Pension Fund under the Scheme not exceeding 8.3% of the wages or such other percent as the Central Government may notify.

The employer shall pay into the Insurance Fund not exceeding one-fourth of the contribution which he is required to make under the Code, and as per the Central Government’s notification, from time to time, determining to meet all the expenses in connection with the administration of the Insurance Scheme other than the expenses towards the cost of any benefits provided by or under the Insurance Scheme.

The Chapter of Provident Funds under this Code shall not apply to:

  • Any establishment registered under the Co-operative Societies Act, 1912 or under any other law for the time being in force in any State relating to co-operative societies employing less than fifty persons and working without the aid of power; or
  • Any other establishment belonging to or under the control of the Central Government or a State Government and whose employees are entitled to the benefit of contributory provident fund or old age pension in accordance with any scheme or rule framed by the Central Government or the State Government governing such benefits; or
  • Any other establishment set up under any Central or State or any other law for the time being in force and whose employees are entitled to the benefits of contributory provident fund or old age pension in accordance with any scheme or rule framed under that law governing such benefits; or
  • The employees who, immediately before the commencement of this Code, were receiving benefits of Provident Fund under any Central or State enactment.

Employees’ State Insurance (ESI)

The ESI Funds will be utilized for the payment of benefits, provision of medical treatment, attendance to insured and, where the medical benefit is extended to their families, the provision of such medical benefit to their families; establishment and maintenance of hospitals, dispensaries and other institutions and the provision of medical and other ancillary services for the benefit of Insured Persons and, where the medical benefit is extended to their families; and for the other incidental expenses that are essential to enable the ESI provisions.

Applicability

Every establishment in which ten or more persons are employed other than a seasonal factory: Provided that Chapter IV shall also be applicable to an establishment, which carries on such hazardous or life threatening occupation as notified by the Central Government, in which even a single employee is employed: Provided further that an employer of a plantation, may opt the application of Chapter IV in respect of the plantation by giving willingness to the corporation, where the benefits available to the employees under that Chapter are better than what the employer is providing to them: Provided also that the contribution from the employers and employees of an establishment shall be payable under section 29 on and from the date on which any benefits under Chapter IV relating to the Employees State Insurance Corporation are provided by the Corporation to the employees of the establishment and such date shall be notified by the Central Government.

Contribution

The contribution payable in respect of an employee comprise employer's contribution as well as employee's contribution as per the rates prescribed by the Central Government. The contributions payable in respect of each wage period ordinarily fall due on the last day of the wage period, and where an employee is employed for part of the wage period, or is employed under two or more employers during the same wage period, the contributions fall due on such days as may be specified in the regulations.

The employer has to pay in respect of every employee, whether directly employed by him or by or through a contractor, both the employer's contribution and the employee's contribution.

In the case of an employee directly employed by the employer (not being an exempted employee), the employer can recover from the employee the employee's contribution by reduction from his wages and not otherwise.

No such deduction shall be made from any wages other than such as relates to the period or part of the period in respect of which the contribution is payable or in excess of the sum representing the employee's contribution for the period.

Neither the employer nor the contractor shall be entitled to deduct the employer's contribution from any wages payable to an employee or otherwise to recover it from him.

An employer, who has paid contribution in respect of an employee employed by or through a contractor, can recover the amount of the contribution so paid (that is to say the employer's contribution as well as the employee's contribution, if any,) from the contractor, either by deduction from any amount payable to him by the employer under any contract, or as a debt payable by the contractor.

The contractor has to maintain a register of employees employed by or through him as provided in the regulations and submit the same to the employer before the settlement of any amount payable. The contractor can recover the employee's contribution from the employee employed by or through him by deduction from wages and not otherwise.

Benefits

The Insured Persons, their dependants are entitled for following benefits,periodically:

  • Sickness Benefit
  • Maternity Benefit
  • Disablement Benefit
  • Dependants Benefit
  • Medical Benefit
  • Funeral Expenses

An Insured Person shall not be entitled to receive for the same period:

  • both sickness benefit and maternity benefit; or
  • both sickness benefit and disablement benefit for temporary disablement; or
  • both maternity benefit and disablement benefit for temporary disablement.
  • Where a person is entitled to more than one of the benefits, he shall be entitled to choose which benefit he shall receive.

If a person dies during any period for which he is entitled to a cash benefit, the amount of such benefit up to and including the day of his death shall be paid to any person nominated by the deceased person in writing in such form as may be specified in the regulations or, if there is no such nomination, to the heir or legal representative of the deceased person.

Any person eligible for availing dependant or disablement benefit under this Chapter shall not be entitled to claim Employees’ Compensation from his employer under Chapter VII (Employees Compensation).

Any women employee eligible for availing maternity benefit under this Chapter shall not be entitled to claim maternity benefit from her employer under Chapter VI (Maternity Benefit).

Where any person has received any benefit or payment under ESI when he is not lawfully entitled thereto, he shall be liable to repay to the ESI Corporation the value of the benefit or the amount of such payment, or in the case of death, his legal representative shall be liable to repay the same from the assets of the deceased devolved on him.

Gratuity

Gratuity is a monetary component offered by an employer to an employee in recognition of his/her service rendered to an organisation. It is paid by an employer when an employee leaves the job after serving the same organisation for a minimum period of 5 years.

Applicability

Gratuity is applicable to:

Every factory, mine, oilfield, plantation, port and railway company; and Every shop or establishment in which ten or more employees are employed, or were employed, on any day of the preceding twelve months; and such shops or establishments as may be notified by the appropriate Government from time to time.

Gratuity is payable to an employee on the termination of employment after such employee has rendered continuous service for not less than five years:

  • on superannuation; or
  • on retirement or resignation; or
  • on death or disablement due to accident or disease; or
  • on termination of contract period under fixed term employment; or
  • on happening of any such event as may be notified by the Central Government.

Provided that:

In case of working journalist (section 2(f) of the Working Journalists and Other Newspaper Employees (Condition of Service) and Miscellaneous Provisions Act, 1955), instead of five years it will be three years;

The completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement or expiration of fixed term employment or happening of any such event as may be notified by the Central Government.

In the case of death of the employee, gratuity payable shall be paid to the nominee or, if no nomination has been made, to the heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the competent authority as may be notified by the appropriate Government who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed by the appropriate Government, until such minor attains majority.

For every completed year of service or part thereof in excess of six months, the employer has to pay gratuity to an employee at the rate of fifteen days' wages or such number of days as may be notified by the Central Government, based on the rate of wages last drawn by the employee concerned:

Provided that in 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 employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account;

An employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days' wages for each season;

An employee employed on fixed term employment or a deceased employee, the employer shall pay gratuity on pro rata basis.

The amount of gratuity payable to an employee not to exceed such amount as may be notified by the Central Government.

For the purpose of computing the gratuity payable to an employee who is employed, after a disablement, on reduced wages, the wages for the period preceding such disablement shall be taken to be the wages received by the employee during that period, and the wages for the period subsequent to such disablement shall be taken to be the wages as so reduced.

The above provisions shall not affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

Forfeiture of Gratuity

The employer has the right to:

  • forfeit the gratuity to the extent of the damage or loss caused by an employee, who has been terminated for any act, wilful omission or negligence, causing any damage or loss to, or destruction of, property belonging to the employer.
  • wholly or partially forfeit the gratuity if the services of such employee have been terminated for riotous
  • or disorderly conduct or any other act of violence on his/her part, or
  • if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided such offence is committed by him/her in the course of his employment.

Explanation An employee does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.

Disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease, resulting in such disablement.

In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.

Continuous Service

An employee shall be said to be in continuous service for a period if such employee has for that period been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Code.

Where an employee (not being an employee employed in a seasonal establishment) is not in continuous service as stated above, for any period of one year or six months, such employee shall be deemed to be in continuous service under the employer:

For the said period of one year, if the employee during the 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:

  • one hundred and ninety days, in the case of any employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
  • two hundred and forty days, in any other case.

For the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than:

  • ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
  • one hundred and twenty days, in any other case.

The number of days on which an employee has actually worked under an employer shall include the days on which:

  • he / she has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946, or under the Industrial Disputes Act, 1947, or under any other law applicable to the establishment;
  • he / she has been on leave with full wages, earned in the previous year;
  • he / she has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
  • 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 twenty-six weeks.

Where an employee, employed in a seasonal establishment, is not in continuous service as stated above, for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five percent of the number of days on which the establishment was in operation during such period.

The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

Maternity Benefit

Maternity Benefit is an encouraging security measure for working women to protect them during pregnancy with paid leaves and benefits.

The employer has to make sure not to employ a woman during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. No woman should work in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.

Employer should ensure that a pregnant woman is not subjected to any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus or is likely to cause her miscarriage or otherwise to adversely affect her health, specifically:

  • During the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;
  • Any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence;

Explanation: The expression any work of arduous nature shall mean any work which involve or require strenuous effort or is difficult and tiring in nature.

Applicability

The Maternity Benefits are applicable to:

  • To every establishment being a factory, mine or plantation including any such establishment belonging to Government; and
  • To every shop or establishment in which ten or more employees are employed, or were employed, on any day of the preceding twelve months; and such other shops or establishments notified by the appropriate Government.

Right to payment of maternity benefit

Every woman is entitled to, and her employer is liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, and any period immediately following that day.

Explanation: The average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, subject to the minimum rate of wage fixed or revised under the Code on Wages, 2019.

A woman is not entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

Explanation: For the purposes of calculating the period, the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages, during the period of twelve months immediately preceding the expected date of her delivery shall be taken into account.

The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the expected date of her delivery.

Provided that:

The maximum period entitled to maternity benefit by a woman having two or more surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery;

Where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death;

Where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.

Explanation: Child includes a stillborn child.

A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

In case the work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.

Notice of claim for maternity benefit

Any woman employed in an establishment and entitled to maternity benefit under this maternity provisions may give notice in writing in the manner prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.

In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than eight weeks from the date of her expected delivery.

Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after her delivery.

On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.

The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed by the Central Government that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed by the Central Government that the woman has been delivered of a child.

The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Chapter if she is otherwise entitled to such benefit or amount and in any such case an Inspector-cum-Facilitator may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

In case of a death of a woman

If a woman entitled to maternity benefit or any other amount under the maternity benefits, dies before receiving such maternity benefit or amount, the employer shall pay such benefit or amount to the person nominated by the woman in the notice and in case there is no such nominee, to her legal representative.

Medical Bonus

Every woman entitled to maternity benefit under these above provisions shall also be entitled to receive from her employer a medical bonus of three thousand five hundred rupees or such amount as may be notified by the Central Government, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

Miscarriage Leave

In case of miscarriage, or medical termination of pregnancy, a woman shall, on production of such proof in the manner prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.

In case of tubectomy operation, a woman shall, on production of such proof in the manner prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage or medical termination of pregnancy shall, on production of such proof in the manner prescribed, be entitled, in addition to the period of absence allowed to her under section 62, or, 64(I), as the case may be, to leave with wages at the rate of maternity benefit for a maximum period of one month.

Nursing Breaks & Creche Facility

Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of such duration as may be prescribed by the Central Government, for nursing the child until the child attains the age of fifteen months.

The establishments to which the maternity provisions under this Code applies, in which fifty employees are employed shall have the facility of crèche within such distance in the manner prescribed, either separately or along with common facilities.

Provided that:

The employer shall allow four visits a day to the crèche by the woman, which shall also include the intervals of rest allowed to her;

An establishment may avail common crèche facility of the Central Government, State Government, municipality or private entity or provided by non-Governmental organisation or by any other organisation or group of establishments who may pool their resources for setting up of common crèche in the manner as they may agree for such purpose.

Every establishment to which the maternity provisions applies shall intimate in writing and electronically to every woman at the time of her initial appointment in such establishment regarding every benefit available under this Code.

Dismissal for absence during pregnancy

When a woman absents herself from work in accordance with the maternity provisions of this Code, it is unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

Provided that:

The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus under the maternity provisions, shall not have the effect of depriving her of the maternity benefit or medical bonus.

Where the dismissal is for any gross misconduct as may be prescribed by the Central Government, the employer may, by order in writing, communicated to the woman, deprive her of the maternity benefit or medical bonus, or both.

Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed as stated above, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to the competent authority, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus or both, or discharged or dismissed, shall be final.

Forfeiture of maternity benefits

A woman who works for remuneration during the period she has been permitted by an employer to absent herself for availing the maternity benefits provided under the maternity provisions of this Code shall not be entitled to receive maternity benefit for such period.

Employees Compensation

Where any employee suffer due to any accident or occupational diseases that arise out of or in the course of employment, the employer should compensate the employee to that effect.

Where, by any law for the time being in force, notice is required to be given to any authority, by or on behalf of an employer, of any accident occurring in his premises which results in death or serious bodily injury, the person required to give the notice should, within seven days of the death or serious bodily injury, send a report to the competent authority giving the circumstances attending the death or serious bodily injury, provided that where the State Government has so specified, the person required to give the notice may instead of sending such report to the competent authority send it to the authority to whom he is required to give the notice.

Explanation: 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 the sight or hearing, or the fracture of any limb, or the enforced absence of the injured person from work for a period exceeding twenty days.

Applicability

The provisions of Employees Compensation under Chapter VII of the Code shall apply subject to the provisions of the Second Schedule, and it applies to the employers and employees to whom Chapter IV (ESI) does not apply.

Employer’s liability for Compensation

If personal injury is caused to an employee by accident or an occupational disease listed in the Third Schedule arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Code.

Provided that the employer shall not be so liable:

  • In respect of such injury which does not result in the total or partial disablement of the employee for a period exceeding three days; and
  • In respect of such injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to the employee having been at the time thereof under the influence of drink or drugs, or the wilful disobedience of the employee to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of employees, or the wilful removal or disregard by the employee of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of employee.

An accident or an occupational disease as state above shall be deemed to arise out of and in the course of an employee's employment despite the fact that he is at the time of the accident or at the time of contracting the occupational disease, acting in contravention of the provisions of any law applicable to him, or of any orders given by or on behalf of his employer or that he is acting without instructions from his employer, if:

  • Such accident or contracting of such occupational disease would have been deemed so to have arisen had the act not been done in contravention as aforesaid or without instructions from his employer, as the case may be; and
  • The act is done for the purpose of, and in connection with, the employer's trade or business.

If an employee employed in any employment specified in the Second Schedule contracts any disease specified in the Third Schedule, being an occupational disease peculiar to that employment whilst in the service of an employer in whose service he has been employed for a continuous period of not less than six months, then, such disease shall be deemed to be an injury by accident within the meaning of this section and unless the contrary is proved, the accident shall be deemed to have arisen out of and in the course of the employment.

An accident occurring to an employee while commuting from his residence to the place of employment for duty or from the place of employment to his residence after performing duty, shall be deemed to have arisen out of and in the course of employment if nexus between the circumstances, time and place in which the accident occurred and his employment is established.

No compensation shall be payable to an employee in respect of any accident or disease unless the accident or disease is directly attributable to a specific injury by accident or disease arising out of and in the course of his employment.

The above provisions do not confer any right to compensation on an employee in respect of any accident or disease if he has instituted in a civil court a suit for damages in respect of the accident or disease against the employer or any other person; and no suit for damages shall be maintainable by an employee in any Court of law in respect of such accident or disease:

  • If he has instituted a claim to compensation in respect of the accident or disease before a competent authority; or
  • If an agreement has been made between the employee and his employer providing for the payment of compensation in respect of the accident or disease in accordance with the provisions of this Chapter.

If death or injury is caused to any worker or a member of his family as a result of the collapse of a house provided by the employer in a plantation, and the collapse is not solely and directly attributable to a fault on the part of any occupant of the house or to a natural calamity, the employer shall be liable to pay compensation under section 76 and the Sixth Schedule, so far as may be applicable.

Explanation: Worker means a person employed in a plantation for hire or reward, whether directly or through any agency, to do any work, skilled, unskilled, manual or clerical, and includes a person employed on contract for more than sixty days in a year, but does not include: (i) a medical officer employed in the plantation; (ii) any person employed in the plantation (including any member of the medical staff) whose monthly wages exceed the amount as determined by the appropriate Government, by notification, from time to time; (iii) any person employed in the plantation primarily in a managerial or administrative capacity, notwithstanding that his monthly wages do not exceed the amount as determined by the appropriate Government, by notification, from time to time; (iv) any person temporarily employed in the plantation in any work relating to the construction, development or maintenance of buildings, roads, bridges, drains or canals.

Amount of Compensation

Subject to the provisions, the amount of compensation shall be:

  • Where death results from the injury, an amount equal to fifty percent of the monthly wages of the deceased employee multiplied by the relevant factor or an amount as may be notified by the Central Government from time to time, whichever is more;
  • Where permanent total disablement results from the injury, an amount equal to sixty percent of the monthly wages of the injured employee multiplied by the relevant factor or an amount as may be notified by the Central Government from time to time, whichever is more.

Explanation: Relevant factor, in relation to an employee means the factor specified in column (3) of the Sixth Schedule relating to factors against the corresponding entry in column (2) thereof, specifying the number of years which are the same as the completed years of the age of the employee on his last birthday immediately preceding the date on which the compensation fell due;

Where permanent partial disablement results from the injury:

  • In the case of an injury specified in Part II of the Fourth Schedule, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
  • In the case of an injury not specified in the Fourth Schedule, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the medical practitioner) permanently caused by the injury.

Explanation:

Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.

In assessing the loss of earning capacity, the medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in the Fourth Schedule.

Where temporary disablement, whether total or partial, results from the injury, a half-monthly payment of the sum equivalent to twenty-five percent of monthly wages of the employee, to be paid as prescribed.

While fixing the amount of compensation payable to an employee in respect of an accident which occurred outside India, the competent authority shall take into account the amount of compensation, if any, awarded to such employee in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the employee in accordance with the law of that country.

The half-monthly payment referred above shall be payable on the sixteenth day:

  • From the date of disablement where such disablement lasts for a period of twenty-eight days or more; or
  • After the expiry of a waiting period of three days from the date of disablement, where such disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly during the disablement or during a period of five years, whichever is shorter.

Provided that:

There shall be deducted from any lump sum or half-monthly payments to which the employee is entitled, the amount of any payment or allowance which the employee has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be, and such payment or allowance which the employee has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation.

No half-monthly payment shall in any case exceed the amount, if any, by which half the amount of the monthly wages of the employee before the accident exceeds half the amount of such wages which he is earning after the accident.

The employee shall be reimbursed, the actual medical expenditure incurred by him for treatment of injuries caused during the course of employment, by his employer.

On the ceasing of the disablement before the date on which any half-monthly payment falls due, there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.

If the injury of the employee results in his death, the employer shall, in addition to the compensation, deposit with the competent authority a sum of not less than fifteen thousand rupees or such amount as may be prescribed by the State Government, for payment of the same to the eldest surviving dependant of the employee towards the expenditure of the funeral of such employee or where the employee did not have a dependant or was not living with his dependant at the time of his death, to the person who actually incurred such expenditure.

Method of calculating monthly wages for purposes of compensation

For the purposes of Employees Compensation provisions, the expression monthly wages means the amount of wages deemed to be payable for a month's service (whether the wages are payable by the month or by whatever other period or at piece rates), and calculated as follows, namely:

  • Where the employee has, during a continuous period of not less than twelve months immediately preceding the accident, been in the service of the employer who is liable to pay compensation, the monthly wages of the employee shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period;
  • Where the whole of the continuous period of service immediately preceding the accident during which the employee was in the service of the employer who is liable to pay the compensation was less than one month, the monthly wages of the employee shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by an employee employed on the same work by the same employer, or, if there was no employee so employed, by an employee employed on similar work in the same locality.

In other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages, the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation, divided by the number of days comprising such period.

Explanation: A period of service shall be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.

Social Security and Cess in respect of Building and Other Construction Workers

For the purposes of social security and welfare of building workers, there will be a cess levied and collected at a rate not less than 1 percent and nor exceeding 2 percent of the construction cost incurred by an employer. The cost of construction shall not include, (a) the cost of land; and (b) any compensation paid or payable to an employee or his kin under the provisions of Employees Compensation under this Code.

Applicability

These provisions apply to every establishment which falls under the building and other construction work.

Employer's Obligations

The cess levied shall be collected from every employer undertaking building or other construction work in such manner and at such time, including deduction at source in relation to a building or other construction work of a Government or of a public sector undertaking or advance collection through a local authority where an approval of such building or other construction work by such local authority or such other authority notified by the State Government is required, as may be prescribed by the Central Government.

The proceeds of the cess collected to be deposited by the local authority or such other authority notified by the State Government to the Building Workers' Welfare Board in such manner as may be prescribed by the Central Government.

If any employer fails to pay any amount of cess payable as stated above within such time as may be prescribed by the appropriate Government, such employer shall be liable to pay interest at such rate as may be prescribed, on the amount of cess, to be paid, for the period from the date on which such payment is due till such amount is actually paid.

The employer shall, within sixty days of the completion of each building and other construction work, pay such cess (adjusting the advance cess already paid) payable on the basis of his self-assessment on the cost of construction worked out on the basis of the documents and in the manner prescribed and after such payment of cess, shall file a return.

Every building worker who has completed eighteen years of age, but has not completed sixty years of age, and who has been engaged in any building or other construction work for not less than ninety days during the preceding twelve months shall be registered by the officer authorised by the Building Workers' Welfare Board as a beneficiary.

A building worker who has been registered as a beneficiary as stated above shall cease to be as such when he attains the age of sixty years or when he is not engaged in building or other construction work for not less than ninety days in a year, provided that in computing the period of ninety days under this sub-section, there shall be excluded any period of absence from the building or other construction work due to any personal injury caused to the building worker by accident arising out of and in the course of his employment.

If a person had been a beneficiary for at least three years continuously immediately before attaining the age of sixty years, then, he shall be eligible to get such benefits as may be prescribed by the Central Government.

Building Workers' Welfare Board

The Building Workers' Welfare Board will be constituted to credit the Building and Other Construction Workers' Welfare Fund and comprise the amount of any cess levied as aforesaid, any grants and loans made to the Building Workers' Welfare Board by the Central Government, and all sums received by the Building Workers' Welfare Board from such other sources as may be decided by the Central Government.

Social Security for Unorganized Workers, Gig Workers, and Platform Workers

The Central Government will frame and notify, from time to time, suitable welfare schemes for unorganised workers on matters relating to:

  • Life and disability cover;
  • Health and maternity benefits;
  • Old age protection;
  • Education; and
  • Any other benefit as may be determined by the Central Government.

The State Government will frame and notify, from time to time, suitable welfare schemes for unorganised workers, including schemes relating to:

  • Provident fund;
  • Employment injury benefit;
  • Housing;
  • Educational schemes for children;
  • Skill upgradation of workers;
  • Funeral assistance; and
  • Old age homes.

Registration of unorganised workers, gig workers and platform workers Every unorganised worker, gig worker or platform worker shall be required to be registered subject to the fulfilment of the following conditions, namely:

  • He has completed sixteen years of age;
  • He has submitted a self-declaration electronically.

Every eligible unorganised worker, gig worker or platform worker shall make an application for registration in such form along with such documents including Aadhaar number and such worker shall be assigned a distinguishable number to his application, provided that the system of electronic registration maintained by the appropriate Government shall also provide for self registration by any such worker in such manner as may be prescribed by the Central Government.

A registered unorganised worker, gig worker or platform worker shall be eligible to avail the benefit of the concerned scheme framed under this Chapter.

Employment Information and Monitoring

The employer in every establishment or any class or category of establishments, before filling up any vacancy in any employment in that establishment or such class or category of establishments, have to report that vacancy to such career centre as may be specified, and the employer should comply with such requisition. There is no obligation imposed upon any employer to recruit any person through the career centre to fill any vacancy merely because such vacancy has been reported.

Applicability

These provisions are applicable to the career centres, vacancies, persons seeking services of career centres and employers.

This does not apply in relation to vacancies in any employment in agriculture (including horticulture) in any establishment in private sector other than employment in plantation; or in any employment in domestic service; or in any employment connected with the staff of Parliament or any State Legislature; or in any employment the total duration of which is less than ninety days; or in any class or category of establishments as may be notified by the Central Government; or in any establishment (other than Government establishment) with less than twenty or such number of employees as may be notified by the Central Government; and in any other employment as may be notified by the Central Government.

The provisions of this Chapter shall not apply in relation to, vacancies which are proposed to be filled through promotion or by absorption of surplus staff of any branch or department of the same establishment or through independent recruitment agencies such as Union Public Service Commission, Staff Selection Commission or a State Public Service Commission or any other agencies as may be notified by the Central Government; or vacancies in an employment which carries a monthly remuneration of less than an amount notified by the appropriate Government.

Section 142 – Application of Aadhar

An employee or unorganised worker or any other person, as the case may be, for:

  • registration as member or beneficiary; or
  • seeking benefit whether in kind, cash or medical sickness benefit or pension, gratuity or maternity benefit or any other benefit or for withdrawal of fund; or
  • availing services of career centre; or
  • receiving any payment or medical attendance as Insured Person himself or for his dependants, under this Code or rules, regulations or schemes made or framed thereunder, shall establish his identity or, as the case may be, the identity of his family members or dependants through Aadhaar number and for such purpose the expression "Aadhaar" shall have the meaning as defined in clause (a) of section 2 of the Aadhaar (The Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Provided that any foreigner employee shall obtain and submit Aadhaar number for establishing his identity, as soon as possible, on becoming resident within the meaning of clause (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Inspector-cum-Facilitator

The Inspector-cum-Facilitators will be appointed, for the purposes of this Code, and may also have inspection scheme that provide for generation of a web-based inspection, calling of information relating to the inspection electronically, and may be conferred with other jurisdiction for randomised selection of inspection.

The Inspector-cum-Facilitator may advice the employers and employees relating to compliance with the provisions of this Code; and inspect the establishments as assigned to him under the provisions of this Code, subject to the instructions or guidelines issued by the appropriate Government from time to time.

Maintenance of records, registers, returns

An employer of an establishment shall:

  • Maintain records and registers in the prescribed manner, electronically or otherwise, containing such particulars and details with regard to persons employed, muster roll, wages and such other particulars and details, in such manner, as may be prescribed by the appropriate Government including:

  • Number of days for which work performed by employees;

  • Number of hours of work performed by the employees;

  • Wage paid;

  • Leave, leave wages, wages for overtime work and attendance;

  • Employees identification number, by whatever nomenclature it may be called;

  • Number of dangerous occurrences, accidents, injuries in respect of which compensation has been paid by the employer and the amount of such compensation relating to ESI and Employees Compensation, respectively;

  • Statutory deductions made by employer from the wages of an employee in respect of EPF and ESI;

  • Details as to cess paid in respect of building and other construction work;

  • Total number of employees (regular, contractual or fixed term employment) on the day specified;

  • Persons recruited during a particular period;

  • Occupational details of the employees; and

  • Vacancies for which suitable candidates were not available during the specified period.

  • Display notices at the workplaces of the employees in such manner and form in the prescribed manner.

  • Issue wage slips to the employees, in electronic forms or otherwise; and

  • File such return electronically or otherwise to such officer or authority in the prescribed manner;

Provided that:

Matters to be provided under the rules required to be made under this section relating to EPF shall, instead of providing them in rules to be made by the Central Government, be provided in the Provident Fund Scheme or the Pension Scheme or the Insurance Scheme, as the case may be:

The forms of records and registers and that of the returns to be filed under ESI provisions shall be specified in the regulations instead of providing them in the rules.

Offences and Penalties

An employer, if fails to pay any contribution, will be punished with imprisonment for a term:

  • which may extend to three years, but which shall not be less than one year, in case of failure to pay the employee's contribution which has been deducted by him from the employee's wages and shall also be liable to fine of one lakh rupees;
  • which shall not be less than two months but may be extended to six months, in any other case and shall also be liable to fine of fifty 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 lesser term.

An employer will be punished with fine which may extend to fifty thousand rupees upon committing any of the following, namely:

  • Deducts or attempts to deduct from the wages of an employee, the whole or any part of employer's contribution; or
  • In contravention of the provisions of this Code, reduces the wages or any privilege or benefits admissible to an employee; or
  • Fails or refuses to submit any return, report, statement or any other information required under this Code; or
  • Fails to pay any amount of compensation to which an employee is entitled under this Code; or
  • Fails to send to a competent authority a statement which he is required to send under the provisions of Employees Compensation; or
  • Is guilty of any contravention of or non-compliance with any of the requirements of this Code or the rules or the regulations or schemes made or framed thereunder in respect of which no special penalty is provided in this Chapter; or
  • Obstructs executive officer in exercising his functions under the provisions of Employment Information & Monitoring; or
  • Fails or makes default in complying with any condition subject to which exemption under section 143 was granted; or
  • Fails to pay any administrative or inspection charges payable under any of the schemes framed under EPF provisions.

An employer, will be punished with an imprisonment for a term which may extend to six months or with a fine which may extend to fifty thousand rupees, or with both, if:

  • In contravention of the provisions of ESI or Maternity Benefit relating to dismisses, discharges, reduces in rank or otherwise penalises a woman employee; or
  • Obstructs any Inspector-cum-Facilitator or other officer or staff of the Central Board or the Corporation or other Social Security Organisation or a competent authority in the discharge of his duties; or
  • Fails to provide any maternity benefit to which a woman is entitled under this Code; or
  • Fails to produce on demand by the Inspector-cum-Facilitator any register or document in his custody kept in pursuance of this Code or the rules, regulations or schemes made or framed thereunder; or
  • Fails to pay the cess for building workers which he is liable to pay under this Code; or
  • Dishonestly makes a false return, report, statement or information to be submitted thereunder.

An employer, if fails to pay any amount of gratuity to which an employee is entitled under this Code, will be punished with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees, or with both.

If the employer, having been convicted by a court of an offence punishable under this Code, commits the same offence shall, for second, or every subsequent such offence, will be punishable with imprisonment for a term which may extend to two years and with fine of two lakh rupees.

Provided that where such second or subsequent offence is for failure by the employer to pay any contribution, charges, cess, maternity benefit, gratuity or compensation which under this Code he is liable to pay, he shall, for such second or subsequent offence, be punishable with imprisonment for a term which may extend to three years but which shall not be less than two years and shall also be liable to fine of three lakh rupees.

Draft Rules

The Central Government has notified the Draft Code on Social Security (Central) Rules, 2020. It shall come into force after the date of their final publication in the Official Gazette, on the date of the commencement of the Social Security Code, 2020.

The Draft Rules, when becomes effective will supersede:

  • Employees’ State Insurance (Central) Rules, 1950;
  • Tribunal (Procedure) Rules, 1997;
  • Employees’ Provident Funds Appellate Tribunal(Conditions of Service) Rules, 1997;
  • Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960;
  • Maternity Benefit (Mines and Circus) Rules, 1963;
  • Payment of Gratuity (Central) Rules, 1972;
  • Cine-Workers Welfare Fund Rules, 1984;
  • Building and Other Constructions Workers’ Welfare Cess Rules, 1998; and
  • Unorganised Workers’ Social Security Rules, 2009.
  • The Central Government has published the Draft Code on Social Security (Employees’ Compensation) (Central) Rules, 2021 and this shall into force after the date of their final publication in the Official Gazette.
  • This Draft Rules, when becomes effective will supersede:
  • Employees’ Compensation Rules, 1924;
  • Employees’ Compensation (Transfer of Money) Rules, 1935; and
  • Employees’ Compensation (Venue of Proceedings) Rules, 1996.

Key Definitions

Aggregator means a digital intermediary or a market place for a buyer or user of a service to connect with the seller or the service provider.

Building or other construction work means the construction, alteration, repairs, maintenance or demolition in relation to buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, water works (including channels for distribution of water), oil and gas installations, electric lines, internet towers, wireless, radio, television, telephone, telegraph and overseas communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aquaducts, pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the Central Government, by notification, but does not include any building or other construction work which is related to any factory or mine or any building or other construction work employing less than ten workers in the preceding twelve months or where such work is related to own residential purposes of an individual or group of individuals for their own residence and the total cost of such work does not exceed fifty lakhs rupees or such higher amount and employing more than such number of workers as may be notified by the appropriate Government.

Building worker means a person who is employed to do any skilled, semi-skilled or unskilled, manual, technical or clerical work for hire or reward, whether the terms of such employment are express or implied, in connection with any building or other construction work, but does not include any such person who is employed mainly in a managerial or supervisory or administrative capacity.

Career centre means any office (including employment exchange, place or portal) established and maintained in the manner prescribed by the Central Government for providing such career services (including registration, collection and furnishing of information, either by the keeping of registers or otherwise, manually, digitally, virtually or through any other mode) as may be prescribed by the Central Government, which may, inter alia, relate generally or specifically to:

  • persons who seek to employ employees;
  • persons who seek employment;
  • occurrence of vacancies; and
  • persons who seek vocational guidance and career counselling or guidance to start self-employment.

Commissioning mother means a biological mother who uses her egg to create an embryo implanted in any other woman.

Completed year of service means continuous service for twelve months.

Confinement means labour resulting in the issue of a living child, or labour after twenty-six weeks of pregnancy resulting in the issue of a child whether alive or dead.

Contract labour means a worker who shall be deemed to be employed in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer and includes inter-State migrant worker but does not include an employee (other than part time employee) who is regularly employed by the contractor for any activity of his establishment and his employment is governed by mutually accepted standards of the conditions of employment (including engagement on permanent basis), and gets periodical increment in the pay, social security coverage and other welfare benefits in accordance with the law for the time being in force in such employment.

Contractor, in relation to an establishment means a person, who:

  • undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment through contract labour; or
  • supplies contract labour for any work of the establishment as mere human resource, and includes a sub-contractor.

Delivery means the birth of a child.

Dependant means any of the following relatives of deceased employee, namely:

  • a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted daughter or a widowed mother: provided that for the purposes of Chapter IV, a legitimate adopted son, who has not attained the age of twenty-five years, shall be dependant of the deceased employee;
  • if wholly dependant on the earnings of the employee at the time of his death, a legitimate or adopted son or a daughter who has attained the age of eighteen years and who is infirm; except for the purposes of Chapter IV wherein the word "eighteen" occurring in this sub-clause shall be deemed to have been substituted by the word "twenty-five";
  • if wholly or in part dependent on the earnings of the employee at the time of his death, (i) a widower; (ii) a parent other than a widowed mother; (iii) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate or adopted if married and a minor or if widowed and a minor; (iv) a minor brother or an unmarried sister or a widowed sister if a minor; (v) a widowed daughter-in-law; (vi) a minor child of a pre-deceased son; (vii) a minor child of a pre-deceased daughter where no parent of the child is alive, or; (viii) a grandparent if no parent of the employee is alive.

Explanation: references to a son, daughter or child include an adopted son, daughter or child, respectively.

Employee means any person (other than an apprentice engaged under the Apprentices Act, 1961) employed on wages by an establishment, either directly or through a contractor, to do any skilled, semi-skilled or unskilled, manual, operational, supervisory, managerial, administrative, technical, clerical or any other work, whether the terms of employment be express or implied, and also includes a person declared to be an employee by the appropriate Government, but does not include any member of the Armed Forces of the Union:

Provided that for the purposes of Chapter III, except in case of the Employees’ Provident Fund Scheme and Chapter IV, the term "employee" shall mean such employee drawing wages less than or equal to the wage ceiling notified by the Central Government and includes such other persons or class of persons as the Central Government may by notification, specify to be employee, for the purposes of those Chapters: Provided further that for the purposes of counting of employees for the coverage of an establishment under Chapter III and Chapter IV, as the case may be, the employees, whose wages are more than the wage ceiling so notified by the Central Government, shall also be taken into account: Provided also that for the purposes of Chapter VII, the term "employee" shall mean only such persons as specified in the Second Schedule and such other persons or class of persons as the Central Government, or as the case may be, the State Government may add to the said Schedule, by notification, for the purposes of that Government.

Employer means a person who employs, whether directly or through any person, or on his behalf, or on behalf of any person, one or more employees in his establishment and where the establishment is carried on by any department of the Central Government or the State Government, the authority specified, by the head of such department, in this behalf or where no authority is so specified, the head of the department and in relation to an establishment carried on by a local authority, the chief executive of that authority, and includes:

  • in relation to an establishment which is a factory, the occupier of the factory;
  • in relation to mine, the owner of the mine or agent or manager having requisite qualification under the law for the time being in force and appointed by the owner or agent of the mine as such;
  • in relation to any other establishment, the person who, or the authority which has ultimate control over the affairs of the establishment and where the said affairs are entrusted to a manager or managing director, such manager or managing director;
  • contractor; and
  • legal representative of a deceased employer.

Employment injury means a personal injury to an employee, caused by accident or an occupational disease, as the case may be, arising out of and in the course of his employment:

  • for the purposes of Chapter IV, if the employee is an insured or insurable employee under section 28 whether such accident occurs or the occupational disease is contracted within or outside the territorial limits of India; and
  • for the purposes of Chapter VII, whether such accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

Establishment means:

  • a place where any industry, trade, business, manufacture or occupation is carried on; or
  • a factory, motor transport undertaking, newspaper establishment, audiovisual production, building and other construction work or plantation; or
  • a mine, port or vicinity of port where dock work is carried out.

Explanation: For the purposes of Chapter III, where an establishment consists of different departments or has branches, whether situate in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment.

Exempted employee for the purposes of Chapter III, means an employee to whom any of the schemes referred to in section 15, but for the exemption granted under this Code, would have applied and for the purposes of Chapter IV, means an employee, whose wage is specified in the notification by the Central Government and who is not liable to pay employee's contribution.

Factory means any premises including the precincts thereof:

  • whereon ten or more employees 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
  • whereon twenty or more employees 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, or a mobile unit belonging to the Armed Forces of the Union, railways running shed or a hotel, restaurant or eating place.

Explanation:

For computing the number of employees for the purposes of this clause, all the employees in (different groups and relays) a day shall be taken into account.

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 as factory if no manufacturing process is being carried on in such premises or part thereof.

Family means all or any of the following relatives of an employee or an unorganised worker, as the case may be, namely:

  • a spouse;
  • a minor legitimate or adopted child dependent upon the employee or an unorganised worker, as the case may be;
  • a child who is wholly dependent on the earnings of the employee or an unorganised worker, as the case may be, and who is: receiving education, till he attains the age of twenty-one years; and an unmarried daughter;
  • a child who is infirm by reason of any physical or mental abnormality or injury and is wholly dependent on the earnings of the employee or an unorganised worker, as the case may be, so long as the infirmity continues;
  • dependent parents (including father-in-law and mother-in-law of a woman employee), whose income from all sources does not exceed such income as may be prescribed by the Central Government;
  • in case the employee or an unorganised worker, as the case may be, is unmarried and his parents are not alive, a minor brother or sister wholly dependent upon the earnings of the Insured Person.

Fixed term employment means the engagement of an employee on the basis of a written contract of employment for a fixed period:

Provided that:

  • his hours of work, wages, allowances and other benefits shall not be less than that of a permanent employee doing the same work or work of a similar nature; and
  • he shall be eligible for all benefits, under any law for the time being in force, available to a permanent employee proportionately according to the period of service rendered by him even if his period of employment does not extend to the required qualifying period of employment.

Gig worker means a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationship.

Home-based worker means a person engaged in, the production of goods or services for an employer in his home or other premises of his choice other than the workplace of the employer, for remuneration, irrespective of whether or not the employer provides the equipment, materials or other inputs.

Inter-State migrant worker means a person who is employed in an establishment and who:

  • has been recruited directly by the employer or indirectly through contractor in one State for employment in such establishment situated in another State; or
  • has come on his own from one State and obtained employment in an establishment of another State (hereinafter called destination State) or
  • has subsequently changed the establishment within the destination State, under an agreement or other arrangement for such employment and drawing wages not exceeding eighteen thousand rupees per month or such higher amount as may be notified by the Central Government from time to time.

Manufacturing process means any process for:

  • making, altering, repairing, ornamenting, finishing, oiling, washing, cleaning, breaking up, demolishing, refining, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or
  • pumping oil, water, sewage or any other substance; or
  • generating, transforming or transmitting power; or
  • composing, offset printing, printing by letter press, lithography, photogravure screen printing, three or four dimensional printing, prototyping, flexography or other types of printing process or book binding; or
  • constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
  • preserving or storing any article in cold storage; or
  • such other activities as the Central Government may notify.

Medical termination of pregnancy means the termination of pregnancy permissible under the provisions of the Medical Termination of Pregnancy Act, 1971.

Minor means a person who has not attained the age of eighteen years.

Miscarriage means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy, but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code.

Occupational disease means a disease specified in the Third Schedule as a disease peculiar to the employment of the employee.

Occupier in respect of a factory means the person who has ultimate control over the affairs of the factory:

Provided that:

  • in the case of a firm or other association of individuals, any one of the individual partners or members thereof;
  • in the case of a company, any one of the directors, except any independent director within the meaning of sub-section (6) of section 149 of the Companies Act, 2013;
  • 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 or such other authority as may be prescribed by the Central Government, shall be deemed to be the occupier:

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, the owner of the dock shall be deemed to be the occupier for all purposes except the matters as may be prescribed by the Central Government which are directly related to the condition of ship for which the owner of ship shall be deemed to be the occupier.

Organised sector means an enterprise which is not an unorganised sector.

Permanent partial disablement means, where the disablement is of a permanent nature, such disablement as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:

Provided that every injury specified in Part II of the Fourth Schedule shall be deemed to result in permanent partial disablement.

Permanent total disablement means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Fourth Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred percent.

Platform work means a work arrangement outside of a traditional employer employee relationship in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services or any such other activities which may be notified by the Central Government, in exchange for payment.

Platform worker means a person engaged in or undertaking platform work.

Retirement means termination of the service of an employee otherwise than on superannuation.

Seasonal factory means a factory which is exclusively engaged in one or more of the following manufacturing processes, namely, cotton ginning, cotton or jute pressing, decortication of ground-nuts, the manufacture of indigo, lac, sugar (including gur) or any manufacturing process which is incidental to or connected with any of the aforesaid processes and includes a factory which is engaged for a period not exceeding seven months in a year in a manufacturing process as the Central Government may, by notification, specify.

Self-employed worker means any person who is not employed by an employer, but engages himself in any occupation in the unorganised sector subject to a monthly earning of an amount as may be notified by the Central Government or the State Government, as the case may be, from time to time or holds cultivable land subject to such ceiling as may be notified by the State Government.

Shop, in respect of a State, means a shop as defined in any law for the time being in force dealing with the shop in that State.

Sickness means a condition which requires medical treatment and attendance and necessitates abstention from work on medical ground.

Social security means the measures of protection afforded to employees, unorganised workers, gig workers and platform workers to ensure access to health care and to provide income security, particularly in cases of old age, unemployment, sickness, invalidity, work injury, maternity or loss of a breadwinner by means of rights conferred on them and schemes framed, under this Code.

Superannuation, in relation to an employee, means the attainment by the employee of such age as is fixed in the contract or conditions of service, as the age on the attainment of which the employee shall vacate the employment:

Provided that for the purposes of Chapter III, the age of superannuation shall be fifty-eight years.

Temporary disablement means a condition resulting from an employment injury which requires medical treatment and renders an employee, as a result of such injury, temporarily incapable of doing the work which he was doing prior to or at the time of the injury.

Unorganised sector means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

Unorganised worker means a home-based worker, self-employed worker or a wage worker in the unorganised sector and includes a worker in the organised sector who is not covered by the Industrial Disputes Act, 1947 or Chapters III to VII of this Code.

Vacancy, for the purposes of Chapter XIII, means an unoccupied post (including newly created post, post of trainee, post to be filled through apprentice or any unoccupied post created in an establishment by any other means) in a cadre or occupation for the purpose of employing a person and carrying remuneration.

Wages means all remuneration, whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes,

(a) basic pay; (b) dearness allowance; and (c) retaining allowance, if any,

but does not include:

  • (a) any bonus payable under any law for the time being in force, which does not form part of the remuneration payable under the terms of employment;
  • (b) the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the appropriate Government;
  • (c) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;
  • (d) any conveyance allowance or the value of any travelling concession;
  • (e) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment;
  • (f) house rent allowance;
  • (g) remuneration payable under any award or settlement between the parties or order of a court or Tribunal;
  • (h) any overtime allowance;
  • (i) any commission payable to the employee;
  • (j) any gratuity payable on the termination of employment;
  • (k) any retrenchment compensation or other retirement benefit payable to the employee or any ex gratia payment made to him on the termination of employment, under any law for the time being in force:

Provided that for calculating the wages under this clause, if payments made by the employer to the employee under sub-clauses (a) to (i) exceeds one-half, or such other per cent. as may be notified by the Central Government, of all remuneration calculated under this clause, the amount which exceeds such one-half, or the per cent. so notified, shall be deemed as remuneration and shall be accordingly added in wages under this clause:

Provided further that for the purpose of equal wages to all genders and for the purpose of payment of wages, the emoluments specified in sub-clauses (d), (f), (g) and (h) shall be taken for computation of wage.

Explanation: Where an employee is given in lieu of the whole or part of the wages payable to him, any remuneration in kind by his employer, the value of such remuneration in kind which does not exceed fifteen per cent. of the total wages payable to him, shall be deemed to form part of the wages of such employee.

Wage ceiling means such amount of wages as may be notified by the Central Government, for the purposes of becoming a member under Chapter III and Chapter IV.

Wage worker means a person employed for remuneration in the unorganised sector, directly by an employer or through any contractor, irrespective of place of work, whether exclusively for one employer or for one or more employers, whether in cash or in kind, whether as a home-based worker, or as a temporary or casual worker, or as a migrant worker, or workers employed by households including domestic workers, with a monthly wage of an amount as may be notified by the Central Government and the State Government, as the case may be.

Woman means a woman employed, whether directly or through any contractor, for wages in any establishment:

Provided that for the purposes of Chapter IV, a woman who is or was an employee in respect of whom contribution is or were payable under the said Chapter and who is by reason thereof, entitled to any of the benefits provided under the said Chapter shall be called “insured woman” and shall include:

  • a commissioning mother who as biological mother wishes to have a child and prefers to get embryo implanted in any other woman;
  • a woman who legally adopts a child of up to three months of age.

Notifications

Draft of the Social Security (Employee's Compensation)(Central) Rules, 2021

03 Jun, 2021
The Ministry of Labour and Employment has notified the draft rules related to Employee’s Compensation under the Code on Social Security. Any objections and suggestions are required to be submitted within a period of 45 days from the date of notification.
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Section 142 of the Social Security Code comes into effect from 03 May 2021

03 May, 2021
The Central Government appoints 03 May 2021 as the date on which the provisions of section 142 of the Code on Social Security, 2020 come into force. Section 142 of the Code on Social Security (CoSS) provides for identifying an employee or a worker from unorganized sectors through Aadhar number so that they can seek certain benefits and avail the services under the CoSS.
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