The Odisha Labour Welfare Fund Act, 1996

*THE ORISSA LABOUR WELFARE FUND ACT, 1996

(ORISSA ACT 14 OF 2005)

[Received the assent of the President on the 28th November, 2005, first published in an extraordinary issue of the Orissa Gazette, Dated the 16th November 2005 (No, 2071)]

AN ACT TO PROVIDE FOR THE CONSTITUTION OF A FUND FOR THE FINANCING OF ACTIVITIES TO PROMOTE WELFARE OF LABOUR IN THE STATE OF ORISSA AND FOR THE ESTABLISHMENT OF BOARD FOR CONDUCTING SUCH ACTIVITIES AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO

BE itenactedbythelegislatureoftheStateofOrissaintheFifty-sixthYearofthe

Republic of India as follows:-

(1) This Act may be called the Orissa Labour Welfare Fund Act, 2005. (2) It shall come into force on such date as the State Government may, by notification, appoint.

In this Act, unless the context otherwise requires,- (a) “Board” means the Orissa Labour Welfare Board established under Section 4; (b) “Employee” means- (i) any person who is employed for hire or reward to do any work, skilled or unskilled. ,manual, supervisory, clerical or technical, in an establishment for a period of thirty days during the period of twelve months, whether the terms of employment be expressed or implied, but does not include any person- (a) who is employed mainly in a managerial capacity ; or (b) who, being employed in a supervisory capacity, exercises either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature : or (c) who is employed as an apprentice or on part-time basis. Explanation- An apprentice means a person who according to the certified Standing Orders applicable to the establishment is an apprentice or who is declared to be an apprentice by the authority specified in this behalf by the Government , and (ii) any other person employed in any establishment whom the Government may notification , declare to be an employee for the purposes of this Act : (c) “employer” means any person who employees either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes- (i) in a factory, any person named under clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 as the manager; (ii) in any establishment ,any person responsible to the owner for the supervision and control of the employees or for the payment of wages; (d) “establishment” means- (i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948; (ii) a motor transport undertaking as defined in clause (g) of section 2 of the Motor Transport Workers Act, 1961; (iii) any other establishment as defined in clause (8) of section 2 of the Orissa Shops and Commercial Establishment Act, 1956 and includes a society registered under any law in force in the State relating to registration of Societies, and a charitable or other trust, whether registered or not, which carries on any business or trade or any work in connection with or ancillary thereto and which employs, or on any working day during the preceding twelve months employed, twenty or more persons, but does not include an establishment, not being a factory, belonging to or under the control of the Central or any State Government; (e) “fund” means the Orissa Labour Welfare Fund constituted under section 3: (f) “Government” means the Government of Orissa : (g) “Inspector” means an Inspector appointed under section 18: (h) “Prescribed” means prescribed by rules: (i) “rules” means the rules made under this Act : (j) “unpaid accumulations” means all payments due to an employee but not paid to him within a period of five years from the date on which they become due, whether before or after the commencement of this Act, including the wages and gratuity legally payable, but not including the amount of contribution, if any paid by an employer to a provident fund established under the Employees:” Provident Funds and Miscellaneous Provisions Act, 1952 and the contribution payable under the Employees State insurance Act, 1948 : (k) “Wages” means all remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment express or implied were fulfilled the payable to an employee in respect of his employment and work done on such employment and includes bonus payable under the Payment of Bonus Act,1965 but does not include- (i) the value of any house accommodation supply of light, water, medical attendance or any other amenity or any service excluded from the computation of wages by general or special order of the Government: (ii) any contribution paid by the employer to any pension fund or provident fund or under any scheme of social insurance; (iii) any traveling allowance or the value of any traveling concession: (iv) any sum paid to the employee to delay special expenses entailed on him by the nature of his employment : (v) any gratuity payable on termination of employment ; (l) “Welfare Commissioner” mean the Welfare Commissioner appointed under Section 17.

(1) The Government shall constitute a fund to be called the Orissa Labour Welfare Fund and, notwithstanding anything contained in any other law for the time being in force or in any contract or instrument, all unpaid accumulations shall be paid, at such intervals as may be prescribed, to the Board, and be credited to the fund and the board shall keep a separate account therefore until claims thereto have been decided in the manner provided in Section 8. (2) There shall also be credited to the Fund- (a) unpaid accumulations paid to the Board under section 8 ; (b) all fines including the amount realized under Standing Order issued under the Orissa industrial Employment (Standing Order) Rules, 1946 from the employees by the employers, notwithstanding anything contained in any agreement between the employer and the employee ; (c) Deduction made under the proviso to sub-section (2) of section 9 of the payment of wages Act, 1936; (d) contribution by employers and employees; (e) any interest by way of penalty paid under section 9; (f) any voluntary donations; (g) any amount raised by the Board from other sources to augment the resources of the Board; (h) any fund transferred under sub-section (6) of section 12 ; (i) any sum borrowed under Section 13; (j) grants, subsidies or advances made by the Government; (k) any money deposited under sub-section (1) of section 8 of the Workmen’s Compensation Act, 1923 as compensation in respect of a deceased workmen where the Commissioner for Workmen’s Compensation is satisfied after necessary enquiry that no dependant exists, subject however, to the deductions permissible under the said sub-section, as also any amount remaining undisbursed out of such deposits. (3) The sums specified in sub-section(2) shall be paid to, or collected by such agencies, at such intervals, and in such manner, and the accounts of the fund shall be maintained and audited in such manner, as may be prescribed.

(1) The Government shall, by notification, establish a Board for the whole of the State of Orissa to be called the Orissa Labour Welfare Board for the purpose of administering the Fund and to carry on such other functions as are assigned to the Board by or under this Act. (2) The Board shall be body corporate by the name of the Orissa Labour Welfare Board having perpetual succession and a common seal with power to acquire hold dispose of property both movable and immovable and shall by the said name, sue and be sued. (3) The Board shall consist of the Following members, namely:- (i) Minister, Labour &Employment who shall be the Chairman: (ii) Secretary to Government, Finance Department, ex officio; (iii) Secretary to Government, Finance Department, ex officio; (iv) Secretary to Government, Industries Department , ex officio; (v) Secretary to Government, Welfare Department, ex officio; (vi) Secretary to Government, Women & Child Development Department, ex officio; (vii) Secretary to Government, Panchayati Raj Department, Higher Education Department, ex officio; (viii) Secretary to Government, Higher Education Department, ex officio; (ix) Special Secretary or, in absence, Additional Secretary to Government, Planning & Co-ordination Department, ex officio; (x) Labour Commissioner, Orissa who shall be the Member-Secretary; (xi) Director of Employment, Orissa, ex officio; (xii) Director, Employees’ State Insurance Scheme, Orissa ex officio; (xiii) Representatives of employers and employees in equal proportion, to be nominated by Government; (xiv) a woman member, to be nominated by Government. (4) The members constituting the Board shall be notified in the Gazette. (5) The term of office of the members, except the Chairman and ex officio members of the Board shall be three years commencing on the date on which their names are notified under sub-section (4). (6) The allowances, if any, payable to the members of the Board other then the ex officio members and the number and conditions of nomination of the representatives of the employers and employees shall be such as may be prescribed.

(1) No person shall be nominated as, or continue to be, a member under clauses (xii) and (xiv) of sub-section (3) of section 4 of the Board who- (a) is a salaried official of the Board : or (b) is, or at any time has been, adjudged insolvent or has suspended payment of his debts or has compounded with his creditors ; or (c) is found to be of unsound mind ; or (d) is or has been, convicted of any offence involving moral turpitude, unless such conviction has been set aside ; or

(1) A nominated member may resign his office by giving notice therof in writing to the Government and on the resignation being accepted, he shall be deemed to have vacated his office as such. (2) A casual vacancy in the office of a nominated member shall be filled by nomination of another person from the concerned category and a member so nominated shall hold office for the unexpired portion of the term of the office of his predecessor. (3) No act or proceedings of the Board shall be invalid on the ground merely of the existence of any vacancy in or any defect in the constitution of the Board.

For the purpose of advising the Board in the discharge of its functions and in particular for carrying into effect any of the matters specified in sub-section (3) of Section12, the Board may constitute one or more Committees consisting of at least one member of the Board and equal number of representative of employees and employers.

(1) If an employer does not pay to the Board any amount of unpaid accumulations, or fines realized from the employees, within the time specified therefore by or under this Act, the Welfare Commissioner may serve or cause to be served a notice on such employer to pay the amount within the period specified therein which shall not be less than thirty days from the date of service of such notice. (2) If the employer fails, without sufficient cause, to pay any such amount within the period specified in the notice, he shall, in addition to the amount, pay by way of penalty to the Board simple interest- (a) for the first three month, at one per centum of the said amount for each complete month or part thereof after the last date by which he should have paid it according to the notice , and (b) for each complete month or part thereof thereafter, at one and half percentum of that amount during the time he continues to make default in the payment of that amount.

(1) Every employee shall contribute such sum, exceeding ten Rs. 10, for every year and every employer shall, in respect of each employee. Contribute such sum, exceeding Rs. 20, for every year to the Fund, as may be prescribed. (2) Notwithstanding anything contained in any other law for the time being in force, the employer shall be entitled to recover from the employee. The employee’s contribution by deduction from his wages in such manner as may be prescribed and such deduction shall be deemed to be a deduction authorized by or under the payment of Wages Act, 1936. (3) Notwithstanding anything contained in any other law for the time being in force, any sum payable by the employer as its contribution including the sum recovered by the employer from the employees under sub-section (2) shall, in case the sum is not deposited into the fund within a reasonable period of time as may be prescribed be recoverable from the employer as if it is a claim under Section 15 of the Payment of Wages Act, 1936.

The Government may, from time to time, make grants or advance loans to the Board to the extent of the Fund available for the purposes of this Act on such terms and conditions as the Government may, in each case, determine.

Subject to the other provisions of this Act, the Board may, from time to time with the previous sanction of the Government and subject to such conditions as may be specified by the Government in this behalf, borrow any sum required for the purposes of this Act.

Where the Fund or any portion thereof can not be utilized within a period of ninety days for fulfilling the objects of this Act, the Board shall invest the same in any of the securities specified in clauses (a) to (d) of section 20 of the Indian Trusts Act, 1882 or in fixed deposited bonds of the State Co-operative Bank or such other Co-operative Bank as the Government may, by notification specify from time to time, or in such other security as may be expressly authorized by the Government in this behalf.

The Government may give to the Board such direction as in their opinion are necessary or expedient in connection with the expenditure from the Fund or for carrying out the purposes of this Act and the rules, and it shall be the duty of the Board to comply with all such directions.

(1) The Board, with the prior approval of Government may appoint inspectors to inspect records in connection with the sums payable into the Fund. (2) Any inspector may- (a) with such assistance as he thinks fit, enter at any reasonable time any premises for carrying out the provisions of this Act ; (b) exercise such other powers as may be prescribed ; (c) make such examination and hold such inquiry, as may be necessary for ascertaining whether the provisions of the Act have been and are being complied with ; (d) require the production of any prescribed register and any other document in possession of the employer in connection with the sums payable to the Fund.

The Board shall have power to appoint such officers and staff as it thinks fit to carry out its functions under this Act and to supervise and control the activities of any other body financed from the Fund; Provided that the expenditure on account of the officers and staff so appointed and any other administrative expenses to be incurred by the Board shall but exceed fifteen per centum of the annual income of the Fund.

The Government or any officer authorized by them in this behalf, may call for and examine the records of the Board for the purpose of supervising the working of the Board any may pass such orders as they or, as the case may be he may think fit.

Any sum Payable into the Fund under this Act shall without prejudice to any other mode of recovery be recoverable on behalf of the Board as an arrear of land revenue: Provided that Government May confer power as it may feel expedient so to do on such officers as it deems fit to realize dues payable to the fund under the provision contained under section 15 of the Payment of Wages Act, 1936 to the extent the dues are recoverable from the employer.

Any person who willfully obstructs an Inspector in the exercise of his powers or discharge of his duties under this Act and the rules or falls to produce for inspection on demand by an inspector any register, record or other document maintained in pursuance of the provisions of this Act or the rules or to supply to him on demand true copies of any such document shall, on conviction, be punished,- (a) for the first offence, with imprisonment for a term which may extend to three months or with the fine which may extend to five hundred rupees or with both; and (b) for a second or subsequent offence, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court in any case where the offenders is sentenced to fine only, the amount of shall not be less than fifty rupees.

(1) No Court shall take cognizance of any offence punishable under this Act except on a complaint by, or with the previous sanction in writing of the Welfare Commissioner. (2) No Court interior to that of a Magistrate of First Class shall try any offence punishable by or under this Act.

(1) If the person committing an offence under this Act is a company, every person who, at the time the offence was committed, was in charge of and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence, and shall be liable to be proceeded against and punished accordingly:- Provided that nothing contained in this sub-section shall render such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge, or that he exercised all due diligence to prevent the commission of the offence. (2) Notwithstanding anything in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purposes of this section,- (a) ‘company’ means a body corporate and includes a firm or other association of individuals; and (b) ‘director’ in relation to a firm, means a partner in the firm.

No court shall take cognizance of an offence punishable by or under this Act, unless a complaint thereof is made within six months of the date on which the offence is alleged to have been committed.

In regard to any money set apart in any establishment specifically for the purpose of promoting the welfare of the employees in such establishment, the Board shall have power- (i) to require the production of any document in possession of the employer of the establishment in connection with such money to satisfy itself as to whether such money is being applied for such purposes; (ii) to call for any such information from the employer of the establishment as it may deem relevant; and (iii) to issue such directions to the employer of the establishment as it may deem fit for the purpose of utilizing the Fund for promoting the welfare of the employees in the establishments.

Any person who willfully falls to produce any document required by the Board or to furnish any information called for by Board or to comply with any direction issued by the Board under Section 27 shall, on conviction, be punished with- (i) for the first offence, with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both; and (ii) for a second or subsequent offence, with imprisonment for a term which may extend to six months, or with fine which may extend one thousand, or with both; and

The Board shall, as soon as may be after the end of each year, prepare and submit to the Government before such date and in such form as may be prescribed, a report giving an account of its activities during the previous year and the report shall also give an account of the activities, if any, which are likely to be undertaken by the Board in the next year. A copy of such report shall be laid before the State Legislature.

If the Government are of opinion that the Board is unable to perform or has persistently made default in the performance of the duty imposed on it by or under this Act or has exceeded or abused its powers, they may, by notification, reconstitute the Board at any time notwithstanding anything in sub-section (5) of section 4.

All officers and employees of the Board shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860.

(1) The Government may, by notification, make rules to carry out all or any of the purposes of this Act. (2) In particular and without prejudice to the generally of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the agency for and the manner of collection of sums referred to in sub-section (3), of Section 3, and the period within which the same shall be paid to the credit of the Fund; (b) the manner in which the accounts of the Fund shall be maintained and audited under sub-section (3) of Section 3; (c) the procedure for making grants out of the Fund; (d) the procedure for defraying the expenditure incurred in administering the Fund; (e) the number of representatives of the employers and employees on the Board; (f) the allowances, if any, payable to them under Section 4; (g) the procedure to be followed at the meetings of the Board and the manner in which the Board shall conduct its business; (h) the particulars in the notice regarding unpaid accumulations; (i) the duties and powers of the Welfare Commissioner and the Inspectors and the conditions of service of the Welfare Commissioner and the Inspectors and other staff appointed by the Board under this Act: (j) the registers and records to be maintained by the Board or its officers and staff under this Act including the register to be kept separately for the account of unpaid accumulations; (k) the publication of the report of the activities of bodies financed from the Fund together with a statement of receipts and expenditure of the Fund and statement of accounts; (l) any other matter which is requited to be , or may be, prescribed.

(1) The Board may, by notifications, make regulations, not inconsistent with this Act and the rules, for the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for:- (a) all matters expressly required or allowed by this Act or the rules, to be made by regulations; (b) the terms and the conditions of appointment and service and the scales of pay of officers and staff of the Board, including the payment of traveling and daily allowances in respect of journeys under taken by such officers and staff of the Board; (c) the supervision and control over the acts and proceedings of the officers and staff of the Board and the maintenance of discipline and conduct among the officers and staff of the Board; (d) the procedure in regard to the transaction of business at the meeting of the Board including the quorum; (e) the purpose for which and the manner in which temporary association of persons may be made; (f) the duties, the functions, the terms and conditions of service of the members of the Committee; (g) the manner and the form relating to the maintenance of the accounts of the Board; (3) No regulation or its cancellation or modification shall have effect until the same has been approved by the Government. (4) The Government may, by notification, rescind any regulation made under this section and, thereupon, the regulation shall cases to have effect.