Occupier under The Factories Act, 1948
The article "Occupier under The Factories Act, 1948" throws light on the concept of the occupier as a whole under The Factories Act, 1948.
The article "Occupier under The Factories Act, 1948" throws light on the concept of the occupier as a whole under The Factories Act, 1948. It specifically talks about who an occupier is, the scope of the term 'occupier', his duties, the judicial say on the concept of the occupier, and the concluding remarks that suggest the suitability of legal provisions in today's era.IntroductionA factory is an industrial unit whose primary function is to produce and manufacture uniform products on a...
The article "Occupier under The Factories Act, 1948" throws light on the concept of the occupier as a whole under The Factories Act, 1948. It specifically talks about who an occupier is, the scope of the term 'occupier', his duties, the judicial say on the concept of the occupier, and the concluding remarks that suggest the suitability of legal provisions in today's era.
Introduction
A factory is an industrial unit whose primary function is to produce and manufacture uniform products on a large scale. A factory, being a manufacturing unit, provides employment to a large number of people and carries a high level of associated risk. Therefore, the safety and welfare of its workers become an important factor for the smooth functioning of the factory. To monitor the safety measures and well-being of workers, the role of the occupier becomes important who is entrusted with the function of supervision and controlling the affairs of the factory.
Definition
According to Section 2(n) of the Factories Act, 1948, an occupier is a person who has ultimate control over the affairs of the factory.
Provided that—
a) in the case of a firm or other association of individuals, any one of the individual partners or members shall be deemed to be the occupier;
b) in the case of a company, any one of the directors shall be deemed to be the occupier
c) 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, as the case may be, shall be deemed to be the occupier
d) in the case of a ship that is being repaired, or on which maintenance work is being carried out, in a dry dock that is available for hire, the owner of the dock shall be deemed to be the occupier.
Scope of the Occupier
Section 2(n) of the Factories Act, 1948 only enlists the persons who can hold the position of an occupier. However, it is silent on the qualifications as to who, out of a category can become an occupier.
For e.g., it states that any one of the directors of a company can be an occupier. However, the act fails to provide from which category of directors, an occupier is to be chosen. Will it be the board of directors or managing directors, an independent director, or a woman director.
Case Laws
In the case of J.K. Industries Ltd. v. Chief Inspector of Fisheries and Boilers, SLP (C) No. 12498/96, Supreme Court held that "Only one of its directors and none of its employees or officer can be nominated as an occupier by a company owning a factory."
In the case of Mansinh L. Bhakta v. State of Maharashtra, 1991 (63) FLR 740 it was held that the "Managing director cannot be appointed as an occupier of a factory because as per section 2(n) of the factories act, an occupier is a person who has ultimate control over the affairs of the factory but Section 2(26) of Companies Act puts an embargo on the power of managing director and is made subject to the superintendence, control, and direction of the board of directors. Thus, the managing director cannot be an occupier in view of the definition as per section 2(n) of the factories act."
In the case of Employees State Insurance Corporation v. G.N. Mathur and Others, (1993) 95 BOMLR 740, it was held that for ascertaining whether a person is an occupier or not, it has to be ascertained whether he is in ultimate control of the factory or not.
Duties of the Occupier
An occupier of a factory holds enormous duties from supervision to maintaining safety to coordinating activities of the factory. The duties of an occupier of a factory are herein discussed in detail:
1. Sending Notice to Chief Inspector (Section 7)
The occupier of a factory is under an obligation to send a written notice to the chief inspector containing the particulars of the factory and such other particulars as may be prescribed within a specified period of time.
For e.g., Whenever a new manager is appointed, the occupier shall send to the Inspector a written notice and to the Chief Inspector a copy thereof within seven days from the date on which such person takes over charge.
2. General Duties (Section 7A)
The occupier of a factory has some general duties for the sake of health, safety, and welfare of the workers like;
a) Maintenance of plant and systems of work in the factory that are safe and without risks to health;
b) The arrangements for the use, handling, storage, and transport of articles and substances in the factory;
c) maintaining all places of work in the factory in a condition that is safe and without risks to health and provide and maintain such means of access to, and egress from, such places as are safe and without such risks;
d) Providing information, instruction, training, and supervision to ensure the health and safety of workers;
e) Monitoring of safe and adequate working environment in the factory;
f) Preparing a written statement of his general policy with respect to the health and safety of the workers at work and the organization and arrangements in force for carrying out that policy;
3. Appointment of Safety officers (Section 40-B)
The occupier shall appoint safety officers in a factory in the following cases:
a) If a factory is having one thousand or more ordinarily employed workers; or
b) If any manufacturing process or operation is carried on in a factory that involves any risk of bodily injury, poisoning or disease, or any other hazard to health, to the persons employed in the factory
4. Compulsory Disclosure of Information by the Occupier (Section 41-B)
The occupier of every factory involving a hazardous process shall disclose all information regarding dangers, including health hazards and the measures to overcome such hazards arising from the exposure to or handling of the materials or substances in the manufacturing, transportation, storage and other processes, to the following persons:
a) The workers employed in the factory,
b) The Chief Inspector,
c) The local authority within whose jurisdiction the factory is situated and
d) The general public in the vicinity.
5. Specific responsibility of the occupier in relation to hazardous processes (Section 41-C)
Every occupier of a factory involving any hazardous process shall-
(a) Maintain accurate and up-to-date health records or, as the case may be, medical
records, of the workers in the factory
(b) Appoint persons who possess qualifications and experience in handling hazardous
substances
(c) Provide for medical examination of every worker.
6. Workers' participation in safety management (Section 41-G)
The occupier shall, in every factory where a hazardous process takes place, or where hazardous substances are used or handled, set up a Safety Committee consisting of an equal number of representatives of workers and management to promote co-operation between the workers and the management in maintaining proper safety and health at work and to review periodical the measures taken in that behalf
7. Right of Workers to be warned about imminent dangers (Section 41-H)
It shall be the duty of the occupier to receive notice from the workers regarding the likelihood of imminent danger to their lives due to an accident in the hazardous activity being performed by the factory and to take immediate remedial action against the same.
8. Facilities for sitting and Canteens (Section 42 to 49)
It is the duty of the occupier to provide welfare facilities like Lunch rooms, Canteen,
Crèche, washing facilities, first-aid appliances etc. to all workers and appoint a welfare officer.
9. Annual Leave with Wage (Section 79)
For the purpose of ensuring the continuity of work, the occupier or manager of the factory, agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputes Act, 1947 or a similar Committee constituted under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with the Chief Inspector a scheme in writing whereby the grant of leave allowable under this section may be regulated.
10. Safety and Occupational Health Survey (Section 91-A)
The occupier or manager of the factory or any other person who for the time being purports to be in charge of the factory, undertake safety and occupational health surveys, and such occupier or manager or another person shall afford all facilities for such every, including facilities for the examination and testing of plant and machinery and collection of samples and other data relevant to the survey.
Conclusion
The role of the occupier is of utmost importance in a factory. He is the one who is answerable to the workmen as well as to the outside world. He plays a prime role in the overall functioning of the factory. Under the present factory act, the provisions provided for the occupier are suitable to the need of the present era. However, the possibility exists that it may be amended in the future to meet the need of the changing society.
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