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EXTRAORDINARY
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PART II—Section 2
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No. 48] NEW DELHI, WEDNESDAY, DECEMBER 11, 2019/AGRAHAYANA 20, 1941 (SAKA)
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Separate paging is given to this Part in order that it may be filed as a separate compilation.
LOK SABHA
————
The following Bills were introduced in Lok Sabha on 11th December, 2019:—
BILL NO. 372 OF 2019
A Bill to establish and incorporate Universities for teaching and research in Sanskrit,
to develop all-inclusive Sanskrit promotional activities and to provide for
matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Seventieth Year of the Republic of India as
follows:—
1. (1) This Act may be called the Central Sanskrit Universities Act, 2019. Short title and
commencement.
(2) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint.
2. In this Act, and in all Statutes made hereunder, unless the context otherwise Definitions.
requires,—
(a) "Academic Council" means the Academic Council of the University;2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) "academic staff" means such categories of staff as are designated as
academic staff by the Statutes and Ordinances made thereunder;
(c) "Board of Studies" means the Board of Studies of a Department of the
University;
(d) "Campus" means any unit established or constituted by the University at
any place within or outside India for making arrangements for instruction, research,
education and training in Sanskrit and includes an existing Campus established by
the University prior to the commencement of this Act;
(e) "Chancellor" and "Vice-Chancellor" mean, respectively, the Chancellor and
the Vice-Chancellor of the University;
(f) "College" means a College recognised or affiliated or maintained by the
University;
(g) "corresponding University" and "deemed to be University", in relation to
the society known as—
(i) the Rashtriya Sanskrit Sansthan, New Delhi, mean the Rashtriya Sanskrit
Sansthan, New Delhi established in the year 1970 which has been conferred the
status of deemed to be University in the year 2002;
(ii) Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi,
mean Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi
established in the year 1962 which has been conferred the status of deemed to
be University in the year 1987;
(iii) the Rashtriya Sanskrit Vidyapeeth, Tirupati, mean the Rashtriya
Sanskrit Vidyapeeth, Tirupati established in the year 1961 which has been
conferred the status of deemed to be University in the year 1987;
(h) "Court" means the Court of the University;
(i) "Department" means a Department of Studies and includes a Centre of
Studies;
(j) "Director" means the Head of a Campus or of a distance education system of
the University or of any other academic branch of studies as approved by the Executive
Council and prescribed by the Statutes;
(k) "distance education system" means the system of imparting education
through any means of communication, such as broadcasting, telecasting, internet,
correspondence course, seminar, contact programme, non-formal pattern or a
combination of any two or more such means, except the regular system of education;
(l) "employee" means any person appointed by the University on regular basis
and includes teaching and non-teaching staff, but does not include an employee of
any institution or college or school getting grant-in-aid to any extent whatsoever, or
affiliated or recognised, by the University;
(m) "Executive Council" means the Executive Council of the University;
(n) "Faculty" means a faculty of the University;
(o) "Hall" means a unit of residence or of corporate life, being hostel or otherwise,
for the students, authorities, officers and employees of the University, or of a Campus
or College or Institution or Centre or Department, maintained or authorised by the
University;
(p) "Institution" means an academic institution, not being a Campus or College
established or maintained or affiliated or recognised by the University;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 3
(q) "Principal" means the Head of a College or School or an Institution
established or maintained by the University;
(r) "Regulations" means the Regulations made by any authority of the University
under this Act for the time being in force;
(s) "Sanskrit" means the Sanskrit language, in modern, classical or ancient
form, and the knowledge available therein or related thereto, in addition to Sanskrit
language;
(t) "Schedule" means a Schedule appended to this Act;
(u) "School" means a School recognised or affiliated or maintained by the
University for secondary, primary and elementary levels or equivalent thereto;
(v) "School of Studies" means a School of Studies of the University;
(w) "Society" means any of the following societies registered under the Societies
21 of 1860. Registration Act, 1860, namely:-—
(i) the Rashtriya Sanskrit Sansthan, New Delhi (Registration No. S/4694
of 1970-71);
(ii) Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi
(Registration No. S17454 of 1987);
(iii) the Rashtriya Sanskrit Vidyapeeth, Tirupati (Registration No. 345 of
1986);
(x) "Statutes" and "Ordinances" mean, respectively, the Statutes and the
Ordinances of the University for the time being in force;
(y) "teachers of the University" means Professors, Associate Professors,
Assistant Professors and such other persons as may be appointed for imparting
instructions or conducting research in the University or in any College or Institution
maintained by the University and are designated as teachers by the Ordinances, but
does not include the teaching staff of an institution or a college or school getting
grant-in-aid to any extent whatsoever, or affiliated or recognised, by the University;
(z) "University" means a University established and incorporated as a University
under this Act.
3. (1) The following deemed to be Universities shall be established as three separate Establishment
Central Universities as under:— of
Universities.
(a) the Rashtriya Sanskrit Sansthan, New Delhi, along with its campuses as
specified in the First Schedule, shall be established as a body corporate under this
Act by the name of "the Central Sanskrit University", which shall have its headquarters
in New Delhi;
(b) Shri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi shall be
established as a body corporate under this Act by the name of "Shri Lal Bahadur
Shastri National Sanskrit University", which shall have its headquarters in New Delhi;
(c) the Rashtriya Sanskrit Vidyapeeth, Tirupati shall be established as a body
corporate under this Act by the name of "the National Sanskrit University", which
shall have its headquarters in Tirupati.
(2) The Chancellor, the Vice-Chancellor and the members of the Executive Council
and of the Academic Council of each University, and all persons who may hereafter become
such officers or members, so long as they continue to hold such office or membership, are
hereby constituted a body corporate by the name of the University.
(3) The University shall have perpetual succession and a common seal, and shall sue
and be sued by the said name.4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Effect of 4. On and from the date of commencement of this Act,—
establishment
(a) the societies, namely, the Rashtriya Sanskrit Sansthan, New Delhi, Shri Lal
of University.
Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi and the Rashtriya Sanskrit
Vidyapeeth, Tirupati shall stand dissolved;
(b) any reference to a society or to a deemed to be University in any law (other
than this Act) or in any contract or other instrument shall be deemed as a reference to
the corresponding University established and incorporated under this Act;
(c) all properties, movable and immovable, of or belonging to a society or to a
deemed to be University shall vest in the corresponding University established and
incorporated under this Act;
(d) all rights and liabilities of a society or of a deemed to be University shall be
transferred to, and be the rights and liabilities of, the corresponding University
established and incorporated under this Act;
(e) every person employed by a society or a deemed to be University immediately
before such commencement shall hold his office or service in the corresponding
University established and incorporated under this Act, by the same tenure, at the
same remuneration and upon the same terms and conditions and with the same rights
and privileges as to pension, leave, gratuity, provident fund and other matters as
they would have held the same if this Act had not been enacted and shall continue to
do so unless and until their employment is terminated or until such tenure,
remuneration and terms and conditions are duly altered by the Executive Council or
the Statutes:
Provided that if the alteration so made is not acceptable to such employee, his
employment may be terminated by the University in accordance with the term of the
contract with the employee or, if no provision is made therein in this behalf, on
payment to him by the University of compensation equivalent to three months'
remuneration in case of permanent employees and one month's remuneration in the
case of other employees:
Provided further that every person employed before the commencement of
this Act, pending the execution of a contract under section 34, shall be deemed to
have been appointed in accordance with the provisions of a contract consistent with
the provisions of this Act and the Statutes:
Provided also that any reference, by whatever form of words, to the
Vice-Chancellor of a deemed to be University in any law for the time being in force, or
in any contract or other document, shall be construed as a reference to the
Vice-Chancellor of the corresponding University established and incorporated under
this Act;
(f) the Vice-Chancellor of a deemed to be University appointed prior to the
commencement of this Act and holding office as such, shall be deemed to have been
appointed as the Vice-Chancellor of the corresponding University under this Act;
(g) all Colleges, Institutions, Schools of Studies, and Departments affiliated to,
or admitted to the privileges of, or maintained by, the deemed to be University shall
stand affiliated to, or admitted to the privilege of, or maintained by, the corresponding
University established and incorporated under this Act.
Objects of 5. The objects of the University shall be to disseminate and advance knowledge by
University. providing instructional, research and extension facilities to the promotion of Sanskrit
Language and such other branches of learning as it may deem fit; to make special provisions
for integrated courses in humanities, social sciences and science in its educational
programmes; to take appropriate measures for promoting innovations in teaching-learning
process and inter-disciplinary studies and research; to educate and train manpower for the
overall development, promotion, preservation and research in the field of Sanskrit and
Sanskrit traditional subjects.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 5
6. (1) The University shall have the following powers, namely:— Powers of
University.
(i) to provide for instructions in such branches of learning including Sanskrit
and Sanskrit traditional subjects, as may be specified in the Statute or as may be
determined by the University, from time to time, and to make provisions for research
and advancement and dissemination of knowledge;
(ii) to grant, subject to such condition as the University may determine, diplomas
or certificates to, and confer degrees or other academic distinctions on, persons on
the basis of examination, evaluation or any other method of testing, and to withdraw
any such diplomas, certificate, degrees or other academic distinctions for good and
sufficient cause;
(iii) to organise and undertake extramural studies, training, extension services
and such other measures for the promotion of Sanskrit education;
(iv) to confer honorary degrees or other distinctions in the manner prescribed
by the Statutes;
(v) to provide facilities of teaching and learning through the distance education
system or online mode, as it may determine;
(vi) to provide for education not only at University or College level leading to
excellence and innovations in various branches of knowledge as may be deemed fit,
but continue to provide education to schools already affiliated to the University;
(vii) to provide facilities for imparting higher education in such branches of
learning, including Indian Philosophy, Pali-Prakrit, Sanskrit literature, Yoga, Ayurveda
and Naturopathy, as the University may determine;
(viii) to institute Principalships, Professorships, Associate Professorships,
Assistant Professorships and other teaching or academic positions, required by the
University and to appoint persons for such Principalships, Professorships, Associate
Professorships, Assistant Professorships or other teaching or academic positions;
(ix) to recognise an institution of higher learning for such purposes as the
University may determine and to withdraw such recognition;
(x) to appoint persons working in any other University or academic institution
as teachers of the University in accordance with the Statutes;
(xi) to create administrative, ministerial and other posts and to make
appointments thereto, on regular basis as well as engagement on short-term basis in
accordance with the Statutes;
(xii) to co-operate, collaborate or associate with any other University or authority
or institution of higher learning, including those located outside the country, in such
manner and for such purposes, as the University may determine;
(xiii) to establish, maintain, affiliate, recognise Colleges, Institutions and such
Centres and specialised laboratories or other units for research and instruction as
are, in the opinion of the University, necessary for the furtherance of its objects;
(xiv) to institute and award fellowships, scholarships, studentships, medals
and prizes;
(xv) to make provision for research and consultancy or advisory services, and
for that purpose, to enter into such arrangements with other Universities, Institutions
or bodies, as the University may deem necessary;
(xvi) to organise and conduct refresher courses, workshops, seminars and other
programmes for teachers, evaluators and other academic and non-academic staff;
(xvii) to appoint on contract or otherwise Visiting Professors, Emeritus
Professors, Consultants, Professionals, Advocates, Counsels, Specialists and such
other persons who may contribute to the advancement of the objects of the University;6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(xviii) to confer autonomous status on a College or an Institution or a
Department, as the case may be, in accordance with the Statutes;
(xix) to determine standards and eligibilities for admission to the University,
which may include examination, evaluation or any other method of testing;
(xx) to demand and receive payment of fees and other charges in accordance
with the Statutes;
(xxi) to supervise or cause to supervise the residences of the staff, faculty and
students of the University and to make arrangements for promoting their health and
general welfare;
(xxii) to lay down conditions of service of all categories of employees, including
their code of conduct;
(xxiii) to regulate and enforce discipline among the students and employees of
the University, and to take such disciplinary measures in this regard as may be
deemed by the University to be necessary;
(xxiv) to make special arrangements in respect of women, children and persons
with disability, as the University may consider desirable;
(xxv) to accept benefactions, donations, gifts in cash or kind for furtherance of
the objects of the University, and to acquire, hold and manage and to dispose of with
the previous approval of the Central Government, any property, movable or immovable,
including trust and endowment properties for the purposes of the University;
(xxvi) to borrow, with the prior approval of the Central Government, on the
security of the property of the University, money for the purpose of the University;
(xxvii) to establish new Campuses in India and also off-shore campus or Centre
of the University with the prior permission of the Central Government as per the
procedure established thereof;
(xxviii) to do all such other acts and things as may be necessary, incidental or
conducive to the attainment of all or any of the objects of the University.
(2) In exercising its powers referred to in sub-section (1), it shall be the endeavor of
the University to maintain an all-India character and high standards of teaching and research,
and the University shall, among other measures which may be necessary for the said
purpose, take, in particular, the following measures, namely:—
(i) admission of students and recruitment of faculty shall be made on all-India
basis;
(ii) admissions of students shall be made on merit, either through Common
Entrance Tests conducted individually by the University or in combination with
other Universities, or on the basis of marks obtained in the qualifying examination in
such courses where the intake of students is small;
(iii) inter-University mobility of faculty, with portable pensions and protection
of seniority, shall be encouraged;
(iv) semester system, continuous evaluation, choice-based credit system or
any other ancient, traditional or modern appropriate system as may be deemed to be
fit and proper shall be introduced and the University shall enter into agreements with
other Universities and academic institutions for credit transfer and joint degree
programmes;
(v) ancient traditional teaching system including Gurukulas and Vedashalas
shall be adopted in such areas and conditions as may be determined by the Executive
Council.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 7
7. The University shall be open to all persons of either sex and whatever caste, creed, University to
race or class, and it shall not be lawful for the University to adopt or impose on any person, be open to all
caste, creed,
any test whatsoever of religious belief or profession in order to entitle him to be appointed
race or class.
as a teacher of the University or to hold any other office therein or be admitted as a student
in the University or to graduate thereat or to enjoy or exercise any privilege thereof:
Provided that nothing in this section shall be deemed to prevent the University from
making special provisions for the employment or admission of women, persons with
disabilities or of persons belonging to the weaker sections of the society and, in particular,
of the Scheduled Castes, the Scheduled Tribes and the other socially and educationally
backward classes of citizens, economically weaker section of the unreserved class and
other special categories as stipulated by the Central Government from time to time.
8. (1) The President of India shall be the Visitor of the University. Visitor of
University.
(2) The Visitor may, from time to time, appoint one or more persons to review the work
and progress of the University, Colleges, Schools and Institutions maintained by it, and to
submit a report thereon; and upon receipt of that report, the Visitor may, after obtaining the
views of the Executive Council thereon through the Vice-Chancellor, take such action and
issue such directions, as he considers necessary, in respect of any of the matters dealt with
in the report and the University shall abide by such action and be bound to comply with
such directions.
(3) The Visitor shall have the right to cause an inspection to be made by such person
or persons as he may direct, of the University, its buildings, libraries, laboratories and
equipment, and of any Centre, Department, School, College or Institution maintained by
the University and also of the examinations, teaching and other work conducted or done by
the University and to cause an inquiry to be made in like manner in respect of any matter
connected with the administration or finances of the University, Centre, Department or
Institution or affiliated or recognised College or School.
(4) The Visitor shall, in every matter referred to in sub-section (3), give notice of his
intention to cause an inspection or inquiry to be made, to the University, and the University
shall have the right to make such representations to the Visitor, as it may consider necessary.
(5) After considering the representations, if any, made by the University, the Visitor
may cause to be made such inspection or inquiry as is referred to in sub-section (3).
(6) Where any inspection or inquiry has been caused to be made by the Visitor, the
University shall be entitled to appoint a representative who shall have the right to be
present and be heard at such inspection or inquiry.
(7) The Visitor may, if the inspection or inquiry is made in respect of the University or
any College or School or Institution maintained by it, address the Vice-Chancellor with
reference to the result of such inspection or inquiry together with the such views and
advice with regard to the action to be taken thereon, as the Visitor may be pleased to offer
and on receipt of address made by the Visitor, the Vice-Chancellor shall communicate, to the
Executive Council, the views of the Visitor with such advice as the Visitor may offer upon
the action to be taken thereon.
(8) The Executive Council shall communicate through the Vice-Chancellor to the
Visitor such action, if any, as it proposes to take or has been taken upon the result of such
inspection or inquiry.
(9) Where the Executive Council does not, within a reasonable time, take action to the
satisfaction of the Visitor, the Visitor may, after considering any explanation furnished or
representation made by the Executive Council issue such directions as he may think fit and
the Executive Council shall comply with such directions.
(10) Without prejudice to the foregoing provisions of this section, the visitor may, by
order in writing, annul any proceeding of the University which is not in conformity with the
Act, the Statutes or the Ordinances:8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided that before making any such order, the Visitor shall call upon the Registrar
to show cause why such an order should not be made, and, if any cause is shown within a
reasonable time, he shall consider the same.
(11) The Visitor shall have such other powers as may be prescribed by the Statutes.
Officers of 9. The following shall be the officers of the University, namely:—
University.
(1) the Chancellor;
(2) the Vice-Chancellor;
(3) the Deans of School of Studies;
(4) the Registrar;
(5) the Finance Officer;
(6) the Controller of Examinations;
(7) the Librarian; and
(8) such other officers as may be declared by the Statutes to be the officers of
the University.
Chancellor. 10. (1) The Chancellor shall be appointed by the Visitor in such manner as may be
prescribed by the Statutes.
(2) The Chancellor shall, by virtue of his office, be the Head of the University and
shall, if present, preside at the Convocations of the University held for conferring degrees
and meetings of the Court.
(3) The Chancellor shall act as an appellate authority in the cases where the Executive
Council is the disciplinary authority.
Vice- 11. (1) The Vice-Chancellor shall be appointed by the Visitor in such manner as may
Chancellor. be prescribed by the Statutes.
(2) The Vice-Chancellor shall be the principal executive and academic officer of the
University and shall exercise general supervision and control over the affairs of the University
and give effect to the decision of all the authorities of the University.
(3) The Vice-Chancellor may, if he is of the opinion that immediate action is necessary
on any matter, exercise any power conferred on any authority of the University by or under
this Act and shall report to such authority at its next meeting the action taken by him on
such matter:
Provided that if the authority concerned is of the opinion that such action ought not
to have been taken, it may refer the matter to the Visitor whose decision thereon shall be
final:
Provided further that any person in the service of the University who is aggrieved by
the action taken by the Vice-Chancellor under this sub-section shall have the right to
represent against such action to the Executive Council within three months from the date
on which decision on such action is communicated to him and thereupon the Executive
Council may confirm, modify or reverse the action taken by the Vice-Chancellor.
(4) The Vice-Chancellor, if he is of the opinion that any decision of any authority of
the University is beyond the powers of the authority conferred by the provisions of this
Act, the Statutes or the Ordinances or that any decision taken is not in the interest of the
University, may ask the authority concerned to review its decision within sixty days of
such decision and if the authority refuses to review the decision either in whole or in part
or no decision is taken by it within the said period of sixty days, the matter shall be referred
to the Visitor whose decision thereon shall be final.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 9
(5) The Vice-Chancellor shall exercise such other powers and perform such other
duties as may be prescribed by the Statutes or the Ordinances.
12. Every Dean of School of Studies shall be appointed in such manner and shall Deans of
exercise such powers and perform such duties as may be prescribed by the Statutes. Schools of
Studies.
13. (1) The Registrar shall be appointed in such manner, and on such terms and Registrar.
conditions of service, as may be prescribed by the Statutes.
(2) The Registrar shall have the power to enter into agreements, sign documents and
authenticate records on behalf of the University, and shall exercise such other powers and
perform such other duties, as may be prescribed by the Statutes.
14. Every Director of the Campus shall be appointed in such manner and shall exercise Director of
such powers and perform such duties as may be prescribed by the Statutes. Campus.
15. The Finance Officer shall be appointed in such manner and shall exercise such Finance
powers and perform such duties as may be prescribed by the Statutes. Officer.
16. The Controller of Examinations shall be appointed in such manner and shall Controller of
exercise such powers and perform such duties as may be prescribed by the Statutes. Examinations.
17. The Librarian shall be appointed in such manner and on such terms and conditions Librarian.
of service and shall exercise such powers and perform such duties as may be prescribed by
the Statutes.
18. The manner of appointment and powers and duties of other officers of the Other officers.
University shall be as prescribed by the Statutes.
19. The following shall be the authorities of the University, namely:— Authorities of
University.
(i) the Court;
(ii) the Executive Council;
(iii) the Academic Council;
(iv) the Board of Studies;
(v) the Finance Committee;
(vi) the Planning and Monitoring Board; and
(vii) such other authorities as may be declared by the Statutes to be authorities
of the University.
20. (1) The Constitution of the Court and the term of office of its members shall be as The Court.
prescribed by the Statutes:
Provided that such number of members, as may be prescribed by the Statutes, shall
be elected from among the teachers, employees and students of the University.
(2) Subject to the provisions of this Act, the Court shall have the following powers
and functions, namely:—
(a) to review, from time to time, the broad policies and programmes of the
University, and to suggest measures for the improvement and development of the
University;
(b) to consider and pass resolutions on the annual report and the annual accounts
of the University and the audit report on such accounts;
(c) to advise the Visitor in respect of any matter which may be referred to it for
advice; and
(d) to perform such other functions as may be prescribed by the Statutes.10 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Executive 21. (1) The Executive Council shall be the principal executive body of the University.
Council.
(2) The constitution of the Executive Council, the term of office of its members and its
powers and functions shall be as prescribed by the Statutes.
Academic 22. (1) The Academic Council shall be the principal academic body of the University
Council. and shall, subject to the provisions of this Act, the Statutes and the Ordinances,
co-ordinate and exercise general supervision over the academic policies of the University.
(2) The constitution of the Academic Council, the term of office of its members and its
powers and functions shall be as prescribed by the Statutes.
Board of 23. The constitution, powers and functions of the Board of Studies shall be as
Studies. prescribed by the Statutes.
Finance 24. The constitutions, powers and functions of the Finance Committee shall be as
Committee. prescribed by the Statutes.
Planning and 25. The constitution, powers and functions of the Planning and Monitoring Board
Monitoring shall be as prescribed by the Statutes.
Board.
Other 26. The constitution, powers and functions of other authorities, as may be declared
authorities of by the Statutes to be the authorities of the University, shall be as prescribed by the Statutes.
University.
Power to 27. Subject to the provisions of this Act, the Statutes may provide for all or any of the
make Statutes. following matters, namely:—
(a) the constitution, powers and functions of the authorities and other bodies
of the University, as may be constituted from time to time;
(b) the appointment and continuance in office of the members of the said
authorities and bodies, the filling of vacancies of members and all other matters
relating to those authorities and other bodies for which it may be necessary or
desirable to provide;
(c) the appointment, powers and duties of the officers of the University and
their emoluments;
(d) the appointment of teachers, academic staff and other employees of the
University, their emoluments and conditions of service;
(e) the appointment of teachers and academic staff working in any other
University or organisation or institution for a specific period for undertaking a joint
project;
(f) the conditions of service of employees including provisions for pension,
insurance, provident fund, the manner of termination of service and disciplinary
actions;
(g) the principles governing seniority of service of the employees of the
University;
(h) the procedure for arbitration in cases of dispute between employees or
students and the University;
(i) the procedure for appeal to the Executive Council by any employee or student
against the action of any officer or authority of the University;
(j) the conferment of autonomous status on a College or an Institution or a
Department or a School or a Centre;
(k) the establishment or abolition of Campuses, Colleges, Institutions, Schools,
Centres or Halls;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 11
(l) the conferment of honorary degrees;
(m) the withdrawal of degrees, diplomas, certificates and other academic
distinctions;
(n) the management of Colleges and Institutions established by the University;
(o) the delegation of powers vested in the authorities or officers of the
University;
(p) the maintenance of discipline among the employees and students; and
(q) all other matters which by this Act are to be, or may be, provided for by the
Statutes.
28. (1) The First Statutes are those set out in the Second Schedule. Statutes, how
to be made.
(2) The Executive Council may, from time to time, make new or additional Statutes or
may amend or repeal the Statutes referred to in sub-section (1):
Provided that the Executive Council shall not make, amend or repeal any Statutes
affecting the status, power or constitution of any authority of the University until such
authority has been given an opportunity of expressing an opinion in writing on the proposed
changes, and any opinion so expressed shall be considered by the Executive Council.
(3) Every new Statute or addition to the Statutes or any amendment or repeal of a
Statute shall require the assent of the Visitor who may assent thereto or withhold assent or
remit to the Executive Council for reconsideration.
(4) A new Statute or a Statute amending or repealing existing Statutes shall have no
validity unless it has been assented to by the Visitor.
(5) Notwithstanding anything contained in the foregoing sub-sections, the Visitor
may make new or additional Statutes or amend or repeal the Statutes referred to in
sub-section (1) during the period of three years immediately after the commencement of
this Act:
Provided that the Visitor may, on the expiry of the said period of three years, make
within one year from the date of such expiry, such detailed Statutes as he may consider
necessary and such detailed Statutes shall be laid before both Houses of Parliament.
(6) Notwithstanding anything contained in this section, the Visitor may direct the
University to make provisions in the Statutes in respect of any matter specified by him and
if the Executive Council is unable to implement such direction within sixty days of its
receipt, the Visitor may, after considering the reasons, if any, communicated by the Executive
Council for its inability to comply with such direction, make or amend the Statutes suitably.
29. (1) Subject to the provisions of this Act and the Statutes, the Ordinances may Power to
provide for all or any of the following matters, namely:— make
Ordinances.
(a) the admission of students to the University and their enrolment as such;
(b) the courses of study to be laid down for all degrees, diplomas and certificates
of the University;
(c) the medium of instruction and examination;
(d) the award of degrees (including Honorary degrees), diplomas, certificates
and other academic distinctions, the qualifications for the same and the means to be
taken relating to the granting and obtaining of the same;
(e) the fees to be charged for courses of study in the University and for
admission to the examinations, degrees, diplomas and certificates of the University;
(f) the conditions for the award of fellowship, scholarships, studentships, medals
and prizes;12 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(g) the conduct of examinations, including the term of office and manner of
appointment and the duties of examining bodies, examiners and moderators;
(h) the conditions of residence of the students, classrooms, laboratories,
libraries, auditoriums, playgrounds and other amenities of the University;
(i) the special arrangements, if any, which may be made for the residence and
teaching of women students and the prescribing of special courses of studies for
them;
(j) the establishment of Centres of Studies, Boards of Studies, Inter-disciplinary
Studies, Special Centres, Specialised Laboratories and other Committees;
(k) the manner of co-operation and collaboration with other Universities,
institutions, and other agencies including learned bodies or associations;
(l) the creation, composition and functions of any other body which is
considered necessary for improving the academic life of the University;
(m) the institution of fellowships, scholarships, studentships, medals and prizes;
(n) the setting up of machinery for redressal of grievances of employees and
students;
(o) all other matters which by this Act, or the Statutes, are to be, or may be,
provided for by the Ordinances.
(2) The first Ordinances shall be made by the Vice-Chancellor with the previous
approval of the Executive Council and the Ordinances so made may also be amended,
repealed or added to at any time by the Executive Council in the manner prescribed by the
Statutes.
Regulations. 30. The authorities of the University may make Regulations, consistent with this Act,
the Statutes and the Ordinances, for the conduct of their own business and that of the
Committees, if any, appointed by them and not provided for by this Act, the Statutes or the
Ordinances, in the manner prescribed by the Statutes.
Annual report. 31. (1) The annual report of the University shall be prepared under the direction of
the Executive Council, which shall include, among other matters, the steps taken by the
University towards the fulfilment of its objects and shall be submitted to the Court on or
before such date as may be prescribed by the Statutes and the Court shall consider the
report in its annual meeting.
(2) The Court shall submit the annual report, along with its comments, if any, to the
Visitor.
(3) A copy of the annual report, as prepared under sub-section (1), shall also be
submitted to the Central Government, which shall, as soon as may be, cause the same to be
laid before both the Houses of Parliament.
Annual 32. (1) The annual accounts and balance-sheet of the University shall be prepared
accounts. under the direction of the Executive Council and shall, once at least every year and at
intervals of not more than fifteen months, be audited by the Comptroller and
Auditor-General of India or by such persons as he may authorise in this behalf.
(2) A copy of the annual accounts, together with the audit report thereon, shall be
submitted to the Court and the Visitor along with the observations of the Executive Council.
(3) Any observations made by the Visitor on the annual accounts shall be brought to
the notice of the Court and the observations of the Court, if any, shall, after being considered
by the Executive Council, be submitted to the Visitor.
(4) A copy of the annual accounts, together with the audit report as submitted to the
Visitor, shall also be submitted to the Central Government, which shall, as soon as may be,
cause the same to be laid before both the Houses of Parliament.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 13
(5) The audited annual accounts after having been laid before both the Houses of
Parliament shall be published in the Gazette of India.
33. The University shall furnish to the Central Government such returns or other Returns and
information with respect to its property or activities as the Central Government may, from information.
time to time, require, within such period as may be specified by the Central Government.
34. (1) Every employee of the University shall be appointed under a written contract, Conditions of
which shall be lodged with the University and a copy of which shall be furnished to the service of
employee concerned. employees,
etc.
(2) Any dispute arising out of the contract between the University and any employee
shall, at the request of the employee, be referred to a Tribunal of Arbitration consisting of
one member appointed by the Executive Council, one member nominated by the employee
concerned and an umpire appointed by the Visitor.
(3) The decision of the Tribunal shall be final and no suit shall lie in any civil court in
respect of the matters decided by the Tribunal:
Provided that nothing in this sub-section shall preclude the employee from availing
of the judicial remedies available under articles 32 and 226 of the Constitution.
(4) Every request made by the employee under sub-section (2) shall be deemed to be
a submission to arbitration upon the terms of this section within the meaning of the
26 of 1996. Arbitration and Conciliation Act, 1996.
(5) The procedure for regulating the work of the Tribunal shall be prescribed by the
Statutes.
35. (1) Any student or candidate for an examination whose name has been removed Procedure of
from the rolls of the University by the orders or resolution of the Vice-Chancellor, Discipline appeal and
arbitration in
Committee or Examination Committee, as the case may be, and who has been debarred from
disciplinary
appearing at the examinations of the University for more than one year, may, within ten
cases against
days of the date of receipt of such orders or copy of such resolution by him, appeal to the students.
Executive Council and the Executive Council may confirm, modify or reverse the decision of
the Vice-Chancellor or the Committee, as the case may be.
(2) Any dispute arising out of any disciplinary action taken by the University against
a student shall, at the request of such student, be referred to a Tribunal of Arbitration and
the provisions of sub-sections (2), (3), (4) and (5) of section 34 shall, as far as may be, apply
to a reference made under this sub-section.
36. Every employee or student of the University or of a College or Institution Right to
maintained by the University shall, notwithstanding anything contained in this Act, have appeal.
a right to appeal within such time as may be prescribed by the Statutes, to the Executive
Council against the decision of any officer or authority of the University, or, the Principal or
the management of any College or an Institution, as the case may be, and thereupon the
Executive Council may confirm, modify or reverse the decision appealed against.
37. (1) The University shall constitute for the benefits of its employees such provident Provident and
or pension fund or provide such insurance schemes and other welfare and social security pension funds.
measures, as it may deem fit, in such manner and subject to such conditions as may be
prescribed by the Statutes.
(2) Where such provident fund or pension fund has been so constituted, the
19 of 1925. Central Government may declare that the provision of the Provident Funds Act, 1925, shall
apply to such fund as if it were a Government provident fund.
38. If any question arises as to whether any person has been duly elected or nominated Disputes as to
or appointed, or is entitled to be, a member of any authority or other body of the University, constitution
of authorities
the matter shall be referred to the Visitor whose decision thereupon shall be final.
and bodies.14 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Filling of 39. All casual vacancies among the members (other than ex officio members) of any
casual authority or other body of the University shall be filled, as soon as may be, by the person
vacancies.
or body who elects, nominates, appoints or co-opts the member whose place has become
vacant and the person appointed, elected, nominated or co-opted to a casual vacancy shall
be a member of such authority or body for the residue of the term for which the person
whose place he fills would have been a member.
Proceedings 40. No act or proceeding of any authority or other body of the University shall be
of authorities invalid merely by reason of the existence of a vacancy or vacancies among its members.
or bodies not
invalidated by
vacancies.
Protection of 41. No suit or other legal proceedings shall lie against any officer or any other
action taken employee of the University for anything which is in good faith, done or intended to be
in good faith.
done, in pursuance of any of the provisions of this Act, the Statutes or the Ordinances.
Mode of proof 42. Notwithstanding anything contained in the Indian Evidence Act,1872 or in any 1 of 1872.
of University other law for the time being in force, a copy of any receipt, application, notice, order,
record.
proceeding or resolution of any authority or other body of the University, or any other
document in possession of the University or any entry in any register duly maintained by
the University if certified by the Registrar, shall be received as prima facie evidence of such
receipt, application, notice, order, proceeding, resolution or document or the existence of
entry in the register and shall be admitted as evidence of the matters and transactions
therein where the original thereof would, if produced, have been admissible in evidence.
Power to 43. (1) If any difficulty arises in giving effect to the provisions of this Act, the
remove Central Government may, by order published in the Official Gazette, make such provisions,
difficulties. not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient
for removing the difficulty:
Provided that no such order shall be made under this section after the expiry of three
years from the commencement of this Act.
(2) Every order made under sub-section (1) shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the order or both Houses agree
that the order should not be made, the order shall thereafter have effect only in such
modified form or be of no effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything previously done under
that order.
Statutes, 44. (1) Every Statute, Ordinances or Regulation made under this Act shall be published
Ordinances in the Official Gazette.
and
(2) Every Statute, Ordinances or Regulation made under this Act shall be laid, as
Regulations to
be published in soon as may be after it is made, before each House of Parliament, while it is in session, for
Official a total period of thirty days which may be comprised in one session or in two or more
Gazette and to
successive sessions, and if, before the expiry of the session immediately following the
be laid before
session or the successive sessions aforesaid, both Houses agree in making any modification
Parliament.
in the Statute, Ordinances or Regulation or both Houses agree that the Statute, Ordinances
or Regulation should not be made, the Statute, Ordinances or Regulation shall thereafter
have effect only in such modified form, or be of no effect, as the case may be; so however,
that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that Statute, Ordinances or Regulation.
(3) The power to make Statutes, Ordinances or Regulations shall include the power to
give retrospective effect, from a date not earlier than the date of commencement of this Act,
to the Statutes, Ordinances or Regulations or any of them but no retrospective effect shall
be given to any Statutes, Ordinances or Regulations so as to prejudicially affect the interests
of any person to whom such Statutes, Ordinances or Regulations may be applicable.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 15
45. (1) Notwithstanding anything contained in this Act and the Statutes,— Transitional
provisions.
(a) the Chancellor, Vice-Chancellor and other officers of each of the deemed to
be Universities holding office immediately before the commencement of this Act,
shall, on and from such commencement, continue to hold their respective offices by
the same tenure and upon the same terms and conditions as they held it immediately
before such commencement for the remaining period of their term;
(b) the members of the Executive Council, the Academic Council, the Finance
Committee, the Planning and Monitoring Board and Faculties of each of the deemed
to be Universities appointed as such prior to the commencement of this Act shall, on
and from such commencement, be deemed to have been appointed in the same capacity
under this Act for the remaining period of their term and shall continue to exercise all
the powers and perform all the functions of such authority under this Act;
(c) the first Court shall consist of not more than thirty-one members who shall be
nominated by the Central Government and shall hold office for a term of three years:
Provided that if any vacancy occurs in the offices or authorities referred to in
clauses (a) and (b) the same shall be filled by appointment by the Visitor or nomination
by the Central Government, as the case may be, and the person so appointed or
nominated shall hold office for so long as the officer or member in whose place he is
appointed or nominated would have held office, if such vacancy had not occurred:
Provided further that any ex officio member appointed to any of the authorities
referred to in clauses (a) and (b) prior to the commencement of this Act shall, if such
appointment is not in conformity with the provisions of this Act, cease to be a
member of such authority.
(2) All other officers and employees of the deemed to be Universities holding office
immediately before the commencement of this Act, shall, on and from such commencement,
continue to hold their respective offices by the same tenure and upon the same terms and
conditions as they held immediately before such commencement of this Act.
(3) All students admitted in any programme or course in a deemed to be University
immediately before the commencement of this Act, shall be deemed to have been migrated
under same programme or course to corresponding University under the same terms and
conditions as they held immediately before such commencement.
(4) Anything done or any action taken or any degree or other academic distinction
conferred by a deemed to be University before the commencement of this Act shall,
notwithstanding any change made by this Act in the constitution of the Court, the Executive
Council, the Academic Council, the Finance Committee, the Planning and Monitoring Board,
Faculties and other officers be valid, as if such thing was done, action taken, or degree or
academic distinction conferred under this Act.
(5) The Regulations, Bye-laws or Orders, if any, made prior to the commencement of
this Act, shall, in so far as they pertain to matters mentioned in section 30, continue to be
applicable till the Regulations, Bye-laws or Orders are made under this Act.
(6) The Central Government may, without prejudice to the provisions of this Act, and if it
considers it necessary and expedient so to do, by notification, take such measures, as may be
necessary, for the smooth transfer of the deemed to be University to the corresponding University.
46. The University may constitute such Councils, Boards, Standing Committees and Councils,
Cells, in furtherance of its functions, as it may deem necessary. Boards,
Standing
Committees
and Cells of
University.
47. Where any authority of the University is given power by this Act or the Statutes Constitution
to appoint Committees, such Committees shall, save as otherwise provided, consist of the of
Committees.
members of the authority concerned and of such other person, if any, as the authority in
each case may think fit.16 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
THE FIRST SCHEDULE
[See section 3(1)(a)]
Sl. No. Name of the State Name of the Campus
1. Jammu and Kashmir Shri Ranbir Campus
2. Uttar Pradesh (a) Lucknow Campus
(b) Ganganath Jha Campus
3. Karnataka Shri Rajiv Gandhi Campus
4. Rajasthan Jaipur Campus
5. Odisha Shri Sadashive Campus
6. Kerala Guruvayoor Campus
7. Madhya Pradesh Bhopal Campus
8. Maharashtra K.J. Somaiya Campus
9. Himachal Pradesh Veda Vyas Campus
10. Tripura Eklavya Campus
11. Uttarakhand Shri Raghunath Kirti Campus.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 17
THE SECOND SCHEDULE
(See section 28)
The Statutes of the University
1. Chancellor.—(1) The Minister in-Charge of the Ministry of Human Resource
Development shall be the ex officio Chancellor of the Central Sanskrit University, Delhi.
(2) The Chancellors of Shri Lal Bahadur Shastri National Sanskrit University, New
Delhi and the National Sanskrit University, Tirupati shall be appointed by the Visitor from a
panel of not less than three persons recommended by the Executive Council from amongst
persons of eminence in the academic or in public life of the country:
Provided that, if the Visitor does not approve of any of the persons so recommended,
he may, call for fresh recommendations of different names, from the Executive Council.
(3) The Chancellors of Shri Lal Bahadur Shastri National Sanskrit University, New
Delhi and of the National Sanskrit University, Tirupati shall hold office for a term of five
years and shall not be eligible for re-appointment:
Provided that notwithstanding the expiry of his term of office, the Chancellor shall
continue to hold office until his successor enters upon his office.
(4) The age of the Chancellors of Shri Lal Bahadur Shastri National Sanskrit University,
New Delhi and of the National Sanskrit University, Tirupati shall not be more than seventy
years as on the 1st day of January in the year during which the vacancy has arisen.
2. Vice-Chancellor.—(1) The Vice-Chancellor shall be appointed by the Visitor from
out of a panel of three names recommended by a Committee constituted under clause (3):
Provided that if the Visitor does not approve any of the persons included in the panel,
he may call for a fresh panel of new names.
(2) The Vice-Chancellor shall be an eminent scholar in the field of Sanskrit and allied
subjects and his qualifications shall be as specified in the regulations made under the
University Grants Commission Act, 1956 (3 of 1956) in this behalf.
(3) The Committee referred to in clause (1) shall consist of five persons, out of whom
two shall be nominated by the Executive Council and two by the Visitor, and one by the
Central Government and the nominee of the Visitor shall be the convener of the Committee:
Provided that none of the members of the Committee shall be an employee of the
University or a College or an Institution maintained by the University or a member of any
authority of the University.
(4) The Vice-Chancellor shall be a whole-time salaried employee of the University.
(5) The Vice-Chancellor shall hold office for a term of five years from the date on
which he enters upon his office, or until he attains the age of seventy years:
Provided that the Visitor may direct any Vice-Chancellor, after his term has expired, to
continue in office for such period, not exceeding a total period of one year, as may be
specified by him, subject to him not exceeding seventy years of age.
(6) Notwithstanding anything contained in clause (5), the Visitor may, at any time
after the Vice-Chancellor has entered upon his office, by order in writing, remove the
Vice-Chancellor from office on grounds of incapacity, misconduct or violation of statutory
provisions:18 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided that no such order shall be made by the Visitor unless the Vice-Chancellor
has been given a reasonable opportunity of showing cause against the action proposed to
be taken against him:
Provided further that the Visitor shall consult the Chancellor also before making such
order:
Provided also that the Visitor may, at any time, before making such order, place the
Vice-Chancellor under suspension, pending enquiry.
(7) The emoluments and other conditions of service of the Vice-Chancellor shall be as
follows:—
(i) the Vice-Chancellor shall be paid a monthly salary and allowances, other
than house rent allowance, at the rates fixed by the Central Government from time to
time and he shall be entitled, without payment of rent, to use a furnished residence
throughout his term of office and no charge shall fall on the Vice-Chancellor in respect
of the maintenance of such residence;
(ii) the Vice-Chancellor shall be entitled to such terminal benefits and allowances
as may be fixed by the Central Government from time to time:
Provided that where an employee of the University, or a College or an Institution
maintained by the University, or of any other University or any college or institution
maintained by or admitted to the privileges of, such other University, is appointed as
the Vice-Chancellor, he may be allowed to continue to contribute to any provident
fund of which he is a member and the University shall contribute to the account of
such person in that provident fund at the same rate at which the person had been
contributing immediately before his appointment as the Vice-Chancellor:
Provided further that where such employee had been a member of any pension
scheme, the University shall make necessary contribution to such scheme;
(iii) the Vice-Chancellor shall be entitled to travelling allowance at such rates
as may be fixed by the Central Government from time to time;
(iv) the Vice-Chancellor shall be entitled to leave on full pay at the rate of thirty
days in a calendar year and the leave shall be credited to his account in advance in
two half-yearly instalments of fifteen days each on the first day of January and July
every year:
Provided that if the Vice-Chancellor assumes or relinquishes charge of the
office of the Vice-Chancellor during the currency of a half year, the leave shall be
credited proportionately at the rate of two and-a-half days for each completed month
of service;
(v) in addition to the leave referred to in sub-clause (iv), the Vice-Chancellor
shall also be entitled to half-pay leave at the rate of twenty days for each completed
year of service, and half-pay leave may also be availed of as commuted leave on full
pay on medical certificate:
Provided that when such commuted leave is availed of, twice the amount of
half-pay leave shall be debited against half-pay leave due.
(8) If the office of the Vice-Chancellor becomes vacant due to death, resignation or
otherwise, or if he is unable to perform his duties due to ill-health or any other cause, the
senior-most Professor shall perform the duties of the Vice-Chancellor.
3. Powers and duties of Vice-Chancellor.—(1) The Vice-Chancellor shall be ex officio
Chairman of the Executive Council, the Academic Council, the Finance Committee and
Planning and Monitoring Board, and shall, in the absence of the Chancellor, preside at the
Convocations held for conferring degrees and at meetings of the Court.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 19
(2) The Vice-Chancellor shall be entitled to be present at, and address, any meeting of
any authority or other body of the University, but shall not be entitled to vote thereat
unless he is a member of such authority or body.
(3) It shall be the duty of the Vice-Chancellor to see that this Act, the Statutes, the
Ordinances and the Regulations are duly observed and he shall have all the powers necessary
to ensure such observance.
(4) The Vice-Chancellor shall have all the powers necessary for the proper maintenance
of discipline in the University and he may delegate any such powers to such person or
persons as he deems fit.
(5) The Vice-Chancellor shall have all the powers to convene or cause to be convened
the meetings of the Executive Council, the Academic Council, the Finance Committee and
the Planning and Monitoring Board.
4. Deans of School of Studies.— (1) Every Dean of School of Studies shall be appointed
by the Vice-Chancellor from amongst the Professors in the School of Studies by rotation in
the order of seniority for a period of three years:
Provided that in case there is only one Professor or no Professor in a School of
Studies, the Dean shall be appointed, for the time being, from amongst the Professors, if
any, and the Associate Professors in the School of Studies by rotation in the order of
seniority:
Provided further that a Dean on attaining the age of sixty-five years shall cease to
hold office as such.
(2) When the office of the Dean is vacant or when the Dean is, by reason of illness,
absence or any other cause, unable to perform duties of his office, the duties of the office
shall be performed by the senior-most Professor, as the case may be, in the School of
Studies.
(3) The Dean shall be the Head of the School of Studies and shall be responsible for
the conduct and maintenance of the standards of teaching and research in the School of
Studies and shall have such other functions as may be prescribed by the Ordinances.
(4) The Dean shall have the right to be present and to speak at any meeting of the
Boards of Studies or Committees of the School of Studies, as the case may be, but shall not
have the right to vote thereat unless he is a member thereof.
5. Registrar.—(1) The Registrar shall be appointed by the Executive Council on the
recommendation of a Selection Committee constituted for the purpose and shall be
whole-time salaried officer of the University.
(2) The Registrar shall be appointed for a term of five years and shall be eligible for
re-appointment after following such procedure as may be laid down for such appointment.
(3) The emoluments and other terms and conditions of service of the Registrar shall
be such as may be prescribed by the Central Government from time to time:
Provided that the Registrar shall retire on attaining the age of sixty-two years.
(4) When the office of the Registrar is vacant or when the Registrar is, by reason of
illness, absence or any other cause, unable to perform the duties of his office, the duties of
the office shall be performed by such person as the Vice-Chancellor may appoint for the
purpose.
(5) (a) The Registrar shall have power to take disciplinary action against such of the
employees, excluding teachers and other academic staff, as may be specified in the order of
the Executive Council and to suspend them pending inquiry, to administer warnings to
them or to impose on them the penalty of censure or the withholding of increment:20 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided that no such penalty shall be imposed unless the person has been given a
reasonable opportunity of showing cause against the action proposed to be taken in regard
to him;
(b) an appeal shall lie to the Vice-Chancellor against any order of the Registrar
imposing any of the penalties specified in sub-clause (a);
(c) in a case where the inquiry discloses that a punishment beyond the power of the
Registrar is called for, the Registrar shall, upon the conclusion of the inquiry, make a report
to the Vice-Chancellor along with his recommendations:
Provided that an appeal shall lie to the Executive Council against an order of the
Vice-Chancellor imposing any penalty.
(6) The Registrar shall be ex officio Secretary of the Executive Council and the Academic
Council, but shall not be deemed to be member of either of these authorities and he shall be
ex officio Member-Secretary of the Court and of the Planning and Monitoring Board.
(7) It shall be the duty of the Registrar—
(a) to be the custodian of the records, the common seal and such other property
of the University as the Executive Council shall commit to his charge;
(b) to issue all notices, convening meetings of the Court, the Executives Council,
the Academic Council, the Planning and Monitoring Board, and of any Committees
appointed by those authorities;
(c) to keep the minutes of all the meetings of the Court, the Executive Council,
the Academic Council, the Planning and Monitoring Board and of any Committees
appointed by those authorities;
(d) to conduct the official correspondence of the Court, the Executive Council,
the Academic Council and the Planning and Monitoring Board;
(e) to supply to Visitor, copies of the agenda of the meetings of the authorities
of the University as soon as they are issued and of the minutes of such meetings;
(f) to represent the University in suits or proceedings by or against the
University, sign powers of attorney and verify pleadings or depute his representative
for the purpose; and
(g) to perform such other duties as may be specified in the Statutes, the
Ordinances, the Regulations or as may be required from time to time by the Executive
Council or the Vice-Chancellor.
6. Finance Officer.—(1) The Finance Officer shall be appointed by the Executive
Council on the recommendations of a Selection Committee constituted for the purpose and
he shall be a whole-time salaried officer of the University.
(2) The Finance Officer shall be appointed for a term of five years and shall be eligible
for re-appointment after following such procedure as may be laid down for such appointment.
(3) The emoluments and other terms and conditions of service of the Finance Officer
shall be such as may be prescribed by the Central Government from time to time:
Provided that, the Finance Officer shall retire on attaining the age of sixty-two years.
(4) When the office of the Finance Officer is vacant or when the Finance Officer is, by
reason of illness, absence or any other cause, unable to perform the duties of his office, the
duties of the office shall be performed by such person as the Vice-Chancellor may appoint
for the purpose.
(5) The Finance Officer shall be ex officio Member—Secretary of the Finance Committee.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 21
(6) The Finance Officer shall—
(a) exercise general supervision over the funds of the University and shall
advise it as regards its financial policy; and
(b) perform such other financial functions as may be assigned to him by the
Executive Council or as may be prescribed by the Statutes or the Ordinances.
(7) Subject to the control of the Executive Council, the Finance Officer shall—
(a) hold and manage the property and investments of the University including
trust and endowed property;
(b) ensure that the limits fixed by the Executive Council for recurring and
non-recurring expenditure for a year are not exceeded and that all moneys are expended
on the purpose for which they are granted or allotted;
(c) be responsible for the preparation of annual accounts and the budget of the
University and for their presentation to the Executive Council;
(d) keep a constant watch on the state of the cash and bank balances and on
the state of investments;
(e) watch the progress of the collection of revenues and advise on the methods
of collection employed;
(f) ensure that the registers of buildings, land, furniture and equipment are
maintained up-to-date and that stock-checking is conducted, of equipment and other
consumable materials in all offices, Departments, Centres and Specialised Laboratories;
(g) bring to the notice of the Vice-Chancellor un-authorised expenditure and
other financial irregularities and suggest disciplinary action against persons at fault;
and
(h) call for, from any office, Department, Centre, Laboratory, College, School of
Studies or Institution maintained by the University, any information or returns that
he may consider necessary for the performance of his duties.
(8) Any receipt given by the Finance Officer or the person or persons duly authorised
in this behalf by the Executive Council for any money payable to the University shall be
sufficient discharge for payment of such money.
7. Controller of Examinations.—(1) The Controller of Examinations shall be appointed
by the Executive Council on the recommendations of a Selection Committee constituted for
the purpose and he shall be a whole-time salaried officer of the University.
(2) The Controller of Examinations shall be appointed for a term of five years and
shall be eligible for re-appointment after following such procedure as may be laid down for
such appointment.
(3) The emoluments and other terms and conditions of service of the Controller of
Examinations shall be such as may be prescribed by the Central Government from time to
time:
Provided that the Controller of Examinations shall retire on attaining the age of
sixty-two years.
(4) When the office of the Controller of Examinations is vacant or when the Controller
of Examinations is, by reason of illness, absence or any other cause, unable to perform the
duties of his office, the duties of the office shall be performed by such person as the
Vice-Chancellor may appoint for the purpose.
(5) The Controller of Examinations shall arrange for and superintend the examinations
of the University in the manner prescribed by the Ordinances.22 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
8. Librarian.—(1) The Librarian shall be appointed by the Executive Council on the
recommendations of the Selection Committee constituted for the purpose and he shall be a
whole-time salaried officer of the University.
(2) The Librarian shall exercise such powers and perform such duties as may be
assigned to him by the Executive Council.
9. Director of the Campus.—(1) The Director of a Campus shall be the senior-most
Professor and appointed by the Vice-Chancellor of the University on such terms and
conditions as may be prescribed by the Ordinances.
(2) The Director of the Campus shall exercise such powers and perform duties as may
be assigned to him by the Vice-Chancellor.
10. Meetings of Court.—(1) An annual meeting of the Court shall be held on a date to
be fixed by the Executive Council unless some other date has been fixed by the Court in
respect of any year.
(2) At an annual meeting of the Court, a report on the working of the University during
the previous year, together with a statement of the receipts and expenditure, the
balance-sheet as audited, and financial estimates for the next year shall be presented.
(3) A copy of the statement of receipts and expenditure, the balance-sheet and the
financial estimates referred to in clause (2) shall be sent to every member of the Court at
least seven days before the date of the annual meeting.
(4) Special meetings of the Court may be convened by the Executive Council or the
Vice-Chancellor or if there is no Vice-Chancellor, by the Registrar.
(5) Eleven members of the Court shall form a quorum for a meeting of the Court.
11. Executive Council.—(1) The Executive Council shall consist of the following
persons, namely:—
(a) Vice-Chancellor shall be the Chairperson;
(b) two Deans of the School of Studies by rotation according to the seniority;
(c) one Professor, other than a Dean by rotation according to seniority;
(d) one Associate Professor by rotation according to seniority;
(e) two members of the Court, none of whom shall be an employee of the
University or a college or an institution affiliated to or recognised by the University;
(f) one representative from the University Grants Commission;
(g) three eminent academics nominated by the Visitor;
(h) two eminent academics in the field of Sanskrit and allied subjects to be
nominated by the Central Government on the recommendations of the Vice-Chancellor;
(i) Joint Secretary in the Ministry of Human Resources Development looking
after the University;
(j) the Registrar of the University shall be the Secretary of the Executive Council.
(2) All the members of the Executive Council, other than ex officio members shall hold
office for a term of three years.
(3) Seven members of the Executive Council shall form a quorum for a meeting of the
Executive Council and it shall meet at least thrice in a year.
12. Powers and functions of Executive Council.—(1) The Executive Council shall
have power of management and administration of the revenues and property of the University
and the conduct of all administrative affairs of the University not otherwise provided for.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 23
(2) Subject to the provisions of this Act, the Statutes and the Ordinances, the Executive
Council shall, in addition to all other powers vested in it, have the following powers,
namely:—
(i) to create teaching and other academic posts including Chairs, to determine
the number and emoluments of such posts and to define the duties and conditions of
service of Professors, Associate Professors, Assistant Professors and other academic
staff:
Provided that no action shall be taken by the Executive Council in respect of
the number and qualifications of teachers and other academic staff otherwise than
after consideration of the recommendations of the Academic Council;
(ii) to appoint such Professors, Associate Professors, Assistant Professors
and other academic staff including Chairs, as may be necessary, on the
recommendation of the Selection Committee constituted for the purpose and to fill up
temporary vacancies therein;
(iii) to promote inter-facial research by making joint appointments of teaching
staff in different Schools, Departments and Centres;
(iv) to create administrative, ministerial and other necessary posts and to define
their duties and conditions of their service and to make appointments thereto in the
manner prescribed by the Ordinances;
(v) to grant leave of absence to any officer of the University other than the
Chancellor and the Vice-Chancellor, and to make necessary arrangements for the
discharge of the functions of such officer during his absence;
(vi) to regulate and enforce discipline among employees in accordance with
the Statutes and the Ordinances;
(vii) to manage and regulate the finances, accounts, investments, property,
business and all other administrative affairs of the University and for that purpose to
appoint such agents as it may think fit;
(viii) to fix limits on the total recurring and the total non-recurring expenditure
for a year on the recommendation of the Finance Committee;
(ix) to invest any money belonging to the University, including any unapplied
income, in such stocks, funds, shares or securities, from time to time, as it may think
fit or in the purchase of immovable property in India, with the like powers of varying
such investment from time to time;
(x) to transfer or accept transfers of any movable or immovable property on
behalf of the University;
(xi) to provide buildings, premises, furniture and apparatus and other means
needed for carrying on the work of the University;
(xii) to enter into, vary, carry out and cancel contracts on behalf of the University;
(xiii) to entertain, adjudicate upon, and if thought fit, to redress any grievances
of the employees and students of the University who may, for any reason, feel
aggrieved;
(xiv) to appoint examiners and moderators and, if necessary, to remove them,
and to fix their fees, emoluments and travelling and other allowances, after consulting
the Academic Council;
(xv) to select a common seal for the University and provide for the use of such
seal;24 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(xvi) to make such special arrangements as may be necessary for the residence
of women students;
(xvii) to institute fellowships, scholarships, studentships, medals and prizes;
(xviii) to provide for the appointment of Visiting Professors, Emeritus Professors,
Consultants and Scholars and determine the terms and conditions of such
appointments;
(xix) to approve the award of degrees and diplomas based on the results of the
examinations and tests to confer, grant of award of degrees, diplomas, certificates and
other academic titles and distinctions;
(xx) to raise and borrow money on bonds, mortgages, promissory notes or
other obligations or securities funded or based on any of the properties and assets of
the University or without any securities and upon such terms and conditions as it
may think fit and pay out of the funds of the University, all expenses, incidental to the
raising of money and to repay and redeem any money borrowed;
(xxi) to enter into partnership with industry and non-government agencies for
the advancement of knowledge and establish a corpus of funds out of the profits of
such partnership; and
(xxii) to exercise such other powers and perform such other duties as may be
conferred or imposed on it by this Act or the Statutes.
13. Academic Council.—(1) The Academic Council shall consist of the following
persons, namely:—
(a) the Vice-Chancellor shall be the Chairperson;
(b) Deans of School of Studies;
(c) Head of Departments and Director of Centres;
(d) two Professors other than Heads of Departments; according to seniority to
be nominated by the Vice-Chancellor;
(e) two Teachers of the University, at least one of whom shall be an Associate
Professor, by rotation according to seniority, to be nominated by the Vice-Chancellor;
(f) one member, other than those referred to in items (b), (c), (d) and (e) from each
Schools of studies and centres;
(g) three persons, not being employees of the University to be nominated by
the Vice-Chancellor on the recommendations of the Academic Council for their special
knowledge;
(h) two members of the Court, none of whom shall be an employee of the
University or a College or an Institution affiliated to or recognised by the University.
(2) The Registrar of the University shall be the Secretary of the Academic Council.
(3) All the members of the Academic Council, other than ex officio members shall
hold office for a term of three years and they shall be eligible for re-appointment after a
cooling off period of at least two years.
(4) Half of the sanctioned strength of the Academic Council shall form a quorum for
a meeting of the Academic Council.
14. Powers and functions of Academic Council.—Subject to the provisions of this
Act, the Statutes and the Ordinances, the Academic Council shall, in addition to all other
powers vested in it, have the following powers, namely:—
(a) to exercise general supervision over the academic policies of the University
and to give directions regarding methods of instruction, co-ordination of teaching
among the Colleges and the Institutions, evaluation of research and improvement of
academic standards;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 25
(b) to bring about and promote inter-School co-ordination and to establish or
appoint such Committees or Boards as may be deemed necessary for the purpose;
(c) to consider matters of general academic interest either on its own initiative,
or on a reference by a School or the Executive Council, and to take appropriate action
thereon;
(d) to frame such Regulations and rules consistent with the Statutes and the
Ordinances regarding the academic functioning of the University, discipline, residence,
admissions, award of fellowships and studentships, fees, concessions, corporate life
and attendance;
(e) to prescribe courses of study leading to degrees and diplomas of the
University; and
(f) to make recommendations to the Executive Council on the following matters:
(i) measures for improvement of standards of teaching, training and
research;
(ii) institution of Fellowships, Travelling Fellowships, Scholarships,
Medals and Prizes;
(iii) to recommend about the establishment or abolition of Centres or
Departments.
15. Planning and Monitoring Board.—(1) The Planning and Monitoring Board shall
consist of the following persons, namely:—
(i) the Vice-Chancellor shall be the Chairperson;
(ii) three internal members, to be nominated by the Executive Council;
(iii) three eminent educationists having special knowledge of the University
planning, to be appointed by the Executive Council;
(iv) the Finance Officer;
(v) the Registrar who shall be Member-Secretary.
(2) The term of the members of the Planning and Monitoring Board, excluding
ex officio members, shall be three years and they shall be eligible for re-appointment.
(3) The quorum for the meeting of the Planning and Monitoring Board shall be five.
(4) The Planning and Monitoring Board shall meet at least twice a year.
16. Powers and functions of the Planning and Monitoring Board.—(1) The Planning
and Monitoring Board, subject to the supervision of the Executive Council, shall—
(i) be responsible for overall perspective planning and development of the
University in consonance with its objective;
(ii) determine the area of excellence of the University and identify the thrust
areas for research;
(iii) examine, rationalise, coordinate the proposals of development received
from various Faculties and Departments to be submitted to the Executive Council and
the Academic Council for their consideration and approval;
(iv) monitor the implementation of the approved plan of the University;
(v) submit to the Academic Council and the Executive Council plans for
disciplines and courses of study;
(vi) propose to the Academic Council and the Faculty, measures regarding the
restructuring of courses and introduction of inter-disciplinary interaction amongst
the Departments of Studies;26 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(vii) perform such other functions and exercise such other powers as may be
assigned or delegated to it by the Executive Council.
(2) In case of difference of opinion between the Planning and Monitoring Board and
the Academic Council in regard to the academic planning, the matter shall be referred to the
Executive Council whose decision thereon shall be final.
(3) The Planning and Monitoring Board shall, under its overall supervision, establish
a planning cell to achieve its objectives and appoint as many Committees as it deems
necessary for such purpose:
Provided that two-third members of such Committee shall be from amongst the
teachers of the University.
17. Schools of Studies and Departments.—(1) The University shall have such Schools
of Studies as may be specified in the Statutes.
(2) Every School of studies shall have a School Board and the members of the first
School Board shall be nominated by the Executive Council for a period of three years.
(3) The composition, powers and functions of a School Board shall be prescribed by
the Ordinances.
(4) The conduct of the meetings of a School Board and the quorum required for such
meetings shall be prescribed by the Ordinances.
(5) (a) Every School shall consist of such Departments as may be assigned to it by
the Ordinances:
Provided that the Executive Council may, on the recommendation of the Academic
Council, establish Centres of Studies to which may be assigned such teachers of the
University as the Executive Council may consider necessary.
(b) Each Department shall consist of the following members, namely:—
(i) teachers of the Department;
(ii) persons conducting research in the Department;
(iii) Dean of the School;
(iv) Honorary Professors, if any, attached to the Department; and
(v) such other persons as may be members of the Department in accordance
with the provisions of the Ordinances.
18. Board of Studies.—(1) Each Department shall have a Board of Studies.
(2) The constitution of the Board of Studies and the term of office of its members
shall be prescribed by the Ordinances.
(3) Subject to the overall control and supervision of the Academic Council, the
functions of a Board of Studies shall be to approve subjects for research for various
degrees and other requirements of research degrees and to recommend to the concerned
School Board in the manner prescribed by the Ordinances—
(a) courses of studies and appointment of examiners for courses, but excluding
research degrees;
(b) appointment of supervisors for research; and
(c) measures for the improvement of the standard of teaching and research:
Provided that the above functions of a Board of Studies shall, during the
period of three years immediately after the commencement of this Act, be performed
by the Department.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 27
19. Finance Committee.—(1) The Finance Committee shall consist of the following
members, namely:—
(i) the Vice-Chancellor;
(ii) one person to be nominated by the Court;
(iii) three persons to be nominated by the Executive Council, out of whom at
least one shall be a member of the Executive Council;
(iv) one representative of the Ministry of Human Resource Development;
(v) Finance Officer shall be the Member—Secretary.
(2) Five members of the Finance Committee shall form a quorum for a meeting of the
Finance Committee.
(3) All the members of the Finance Committee, other than ex officio members, shall
hold office for a term of three years.
(4) A member of the Finance Committee shall have the right to record a minute of
dissent if he does not agree with any decision of the Finance Committee.
(5) The Finance Committee shall meet at least twice every year to examine the accounts
and to scrutinise proposals for expenditure.
(6) All proposals relating to creation of posts, and those items which have not been
included in the budget, shall be examined by the Finance Committee before they are
considered by the Executive Council.
(7) The annual accounts and the financial estimates of the University prepared by
Finance Officer shall be laid before the Finance Committee for consideration and comments
and thereafter submitted to the Executive Council for approval.
(8) The Finance Committee shall recommend limits for the total recurring expenditure
and the total non-recurring expenditure for the year, based on the income and resources of
the University (which, in the case of productive works, may include the proceeds of loans).
20. Selection Committees.—(1) There shall be Selection Committees for making
recommendations to the Executive Council for appointment to the posts of Professor,
Associate Professor, Assistant Professor, Registrar, Finance Officer, Controller of
Examinations, Librarian and Principals of Colleges and Institutions maintained by the
University.
(2) (a) The Selection Committee for appointment to the posts specified in column 1 of
the Table below shall consist of the Vice-Chancellor, a nominee of the Central Government
and the persons specified in the corresponding entry in column 2 of the said Table:
TABLE
1 2
Professor (i) The Dean of the School of Studies.
(ii) The Head of the Department, if he is a
Professor.
(iii) Three persons not in the service of the
University, nominated by the Vice-Chancellor, out of a
panel of names approved by the Executive Council and
recommended by the Academic Council for their special
knowledge of, or interest in, the subject with which the
Professor will be concerned.28 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
1 2
Associate Professor/ (i) The Dean of the School of Studies.
Assistant Professor
(ii) Head of the Department, if he is a Professor.
(iii) One Professor nominated by the
Vice-Chancellor.
(iv) Two persons not in the service of the
University, nominated by the Vice-Chancellor, out of a
panel of names approved by the Executive Council and
recommended by the Academic Council for their special
knowledge of, or interest in, the subject with which
the Associate Professor or Assistant Professor will be
concerned.
Registrar/Finance Officer/ (i) Two members of the Executive Council
Controller of Examinations nominated by it.
(ii) One person not in the service of the
University nominated by the Executive Council.
Librarian (i) Two persons not in the service of the
University who have special knowledge of the subject
of the Library Science or Library Administration
nominated by the Executive Council.
(ii) One person not in the service of the
University nominated by the Executive Council.
(b) There shall be a Selection Committee for making recommendations to the
Vice-Chancellor for appointments of employees, consultants, retainers and other
non-academic posts; and the Selection Committee for appointment to the post specified in
column 1 of the Table below shall consist of the persons mentioned in column 2, namely:—
TABLE
1 2
Group A, B and C non-teaching staff A Committee of three to five members
comprising of one to three senior officers and
teachers of the University to be nominated by
the Vice-Chancellor and two external members
with expertise in the relevant field to be nominated
by the Executive Council.
Note 1.—Where the appointment is being made for an inter-disciplinary project, the
head of the project shall be deemed to be the Head of the Department concerned.
Note 2.—The Professor to be nominated by the Vice-Chancellor shall be a Professor
concerned with the speciality for which the selection is being made and the Vice-Chancellor
shall consult the Head of the Department and the Dean of School of Studies before
nominating the Professor.
(3) The Vice-Chancellor, or in his absence, the senior-most Professor, shall convene
and preside at the meeting of the Selection Committee:
Provided that the proceedings of the Selection Committee shall not be valid unless,—
(a) where the number of Central Government nominee and the persons
nominated by the Executive Council is four in all, at least three of them attend the
meeting; andSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 29
(b) where the number of Central Government nominee and the persons
nominated by the Executive Council is three in all, at least two of them attend the
meeting.
(4) The procedure to be followed by the Selection Committee shall be laid down in
the Ordinances.
(5) If the Executive Council is unable to accept the recommendations made by the
Selection Committee, it shall record its reasons and submit the case to the Visitor for final
orders.
(6) Appointments to temporary posts shall be made in the manner indicated below:—
(i) if the temporary vacancy is for duration longer than one academic session,
it shall be filled on the advice of the Selection Committee in accordance with the
procedure indicated in the foregoing clauses:
Provided that if the Vice-Chancellor is satisfied that in the interests of work it
is necessary to fill the vacancy, the appointment may be made on a purely temporary
basis on the advice of a local Selection Committee referred to in sub-clause (ii) for a
period not exceeding six months;
(ii) if the temporary vacancy is for a period less than a year, an appointment to
such vacancy shall be made on the recommendation of a local Selection Committee
consisting of the Director of Campuses or Dean of School of Studies concerned, the
Head of the Department and a nominee of the Vice-Chancellor:
Provided that if the same person holds the offices of the Dean and the Head of
the Department, the Selection Committee may contain two nominees of the
Vice-Chancellor:
Provided further that in the case of sudden casual vacancies of teaching posts
caused by death or any other reason, the Dean may, in consultation with the Head of
the Department concerned, make a temporary appointment for a month and report to
the Vice-Chancellor and the Registrar about such appointment;
(iii) no teacher appointed temporarily shall, if he is not recommended by a
regular Selection Committee for appointment under the Statutes, be continued in
service on such temporary employment, unless he is subsequently selected by a
local Selection Committee or a regular Selection Committee, for a temporary or
permanent appointment, as the case may be.
21. Special mode of appointment.—(1) Notwithstanding anything contained in
Statute 20, the Executive Council may invite a person of high academic distinction and
professional to accept a post of Professor or Associate Professor or any other equivalent
academic post in the University on such terms and conditions as it deems fit and on the
person agreeing to do so appoint him to the post:
Provided that the Executive Council may also create supernumerary post for a specified
period for appointment of such persons:
Provided further that, the number of supernumerary posts so created, shall not
exceed five per cent. of the total posts in the University.
(2) The Executive Council may appoint a teacher or any other academic staff working
in any other University or organisation for undertaking a joint project in accordance with
the manner laid down in the Ordinances.
22. Appointment for tenure fixed.—The Executive Council may appoint a person
selected in accordance with the procedure laid down in Statute 20 for a fixed tenure on such
terms and conditions as it deems fit.
23. Committees.—(1) An authority of the University may appoint as many standing
Committees, as it may deem fit, and may appoint to such Committees persons who are not
members of such authority.30 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) A Committee appointed under clause (1) may deal with any subject delegated to
it subject to subsequent confirmation by the authority appointing it.
24. Terms and conditions of service and code of conduct of teachers, etc.—(1) All the
teachers and other academic staff of the University shall, in the absence of any agreement
to the contrary, be governed by the terms and conditions of service and code of conduct as
are specified in the Statutes, the Ordinances and the Regulations.
(2) The emoluments of members of the academic staff shall be such as may be
prescribed by the Ordinances.
(3) Every teacher and member of the academic staff of the University shall be appointed
on a written contract, the form of which shall be prescribed by the Ordinances.
(4) A copy of every contract referred to in clause (3) shall be deposited with the Registrar.
25. Terms and conditions of service and code of conduct of other employees.—(1) All
the employees of the University, other than the teachers and other academic staff shall, in
the absence of any contract to the contrary, be governed by the terms and conditions of
service and code of conduct as are specified in the Statutes, the Ordinances and the
Regulations.
(2) The manner of appointment and emoluments of employees, other than the teachers
and other academic staff, shall be such as may be prescribed by the Ordinances.
26. Seniority list.—(1) Whenever, in accordance with the Statutes, any person is to
hold an office or be a member of an authority of the University by rotation according to
seniority, such seniority shall be determined according to the length of continuous service
of such person in his grade and in accordance with such other principles as the Executive
Council may, from time to time, prescribe.
(2) It shall be the duty of the Registrar to prepare and maintain in respect of each
class of persons to whom the provisions of these Statutes apply, a complete and up-to-date
seniority list in accordance with the provisions of clause (1).
(3) If two or more persons have equal length of continuous service in a particular
grade or the relative seniority of any person or persons is otherwise in doubt, the Registrar
may, on his own motion, and shall, at the request of any such person, submit the matter to
the Executive Council whose decision thereon shall be final.
27. Removal of employees of University.—(1) Where there is an allegation of
misconduct against a teacher, a member of the academic staff or other employee of the
University, the Vice-Chancellor, in the case of teacher or a member of the academic staff and
the authority competent to appoint (hereinafter referred to as the appointing authority) in
the case of other employee may, by order in writing, place such teacher, member of the
academic staff or other employee, as the case may be, under suspension and shall forthwith
report to the Executive Council the circumstances in which the order was made:
Provided that the Executive Council may, if it is of the opinion, that the circumstances
of the case do not warrant the suspension of the teacher or a member of the academic staff,
revoke such order.
(2) Notwithstanding anything contained in the terms of the contract of appointment
or of any other provisions in the terms and conditions of service of the employees, the
Executive Council in respect of teachers and other academic staff, and the appointing
authority in respect of other employees, shall have the power to remove a teacher or a
member of the academic staff or other employee, as the case may be, on grounds of
misconduct.
(3) Save as aforesaid, the Executive Council, or as the case may be, the appointing
authority, shall not be entitled to remove any teacher, member of the academic staff or other
employee except for a good cause and after giving three months' notice or on payment of
three months' salary in lieu thereof.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 31
(4) No teacher, member of the academic staff or other employee shall be removed
under clause (2) or clause (3) unless he has been given a reasonable opportunity of showing
cause against the action proposed to be taken in regard to him.
(5) The removal of a teacher, member of the academic staff or any other regular
appointed employee shall require a two-thirds majority of the members of the Executive
Council present and voting and it shall take effect from the date on which the order of
removal is made:
Provided that where the teacher, member of the academic staff or other employee is
under suspension at the time of his removal, such removal shall take effect from the date on
which he was placed under suspension.
(6) Notwithstanding anything contained in the foregoing provisions of this Statute,
a teacher, member of the academic staff or any other employee may resign—
(a) if he is permanent employee, only after giving three months' notice in writing
to the Executive Council or the appointing authority, as the case may be, or by paying
three months' salary in lieu thereof;
(b) if he is not a permanent employee, only after given one month's notice in
writing to the Executive Council or, as the case may be, the appointing authority or by
paying one month's salary in lieu thereof:
Provided that such resignation shall take effect only on the date on which the
resignation is accepted by the Executive Council or the appointing authority, as the
case may be.
28. Honorary degrees.—(1) The Executive Council may, on the recommendation of
the Academic Council by a resolution passed by a majority of not less than two-thirds of the
members to the Visitor for the conferment of honorary degrees:
Provided that in case of emergency, the Executive Council may, on its own motion,
make such proposals.
(2) The Executive Council may, by a resolution passed by a majority of not less than
two-thirds of the members present and voting, withdraw, with the previous sanction of the
Visitor, any honorary degree conferred by the University.
29. Withdrawal of degrees, etc.—The Executive Council may, by a special resolution
passed by a majority of not less than two-thirds of the members present and voting, withdraw
a degree or academic distinction conferred on, or any certificate or diploma granted to, any
person by the University for good and sufficient cause:
Provided that no such resolution shall be passed until a notice in writing has been
given to that person calling upon him to show cause within such time as may be specified
in the notice as to why such a resolution should not be passed and until his objections, if
any, and any evidence he may produce in support of them, have been considered by the
Executive Council.
30. Maintenance of discipline amongst students of University.—(1) All powers
relating to the maintenance of discipline and disciplinary action in relation to the students
of the University shall vest in the Vice-Chancellor.
(2) There shall be a Proctor of the University to assist the Vice-Chancellor in the
exercise of the powers referred to in clause (1), who shall be appointed by Executive Council
from amongst the Professors and Associate Professors in the manner prescribed by the
Ordinances.
(3) The Vice-Chancellor may delegate all or any of the powers referred to in clause (1),
as he deems proper, to the Proctor and to such other officers as he may specify in this
behalf.32 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) Without prejudice to the generality of his powers relating to the maintenance of
discipline and taking such action, as may seem to him appropriate for the maintenance of
discipline, the Vice-Chancellor may, in exercise of such powers, by order, direct that any
student or students be expelled or rusticated, for a specified period, or be not admitted to a
course or courses of study in a College, Institution or Department or a School of the
University for a stated period, or be punished with fine for an amount to be specified in the
order, or be debarred from taking an examination or examinations conducted by the University,
College, Institution or Department or a School for one or more years, or that the results of
the student or students concerned in the examination or examinations in which he or they
have appeared be withheld or cancelled.
(5) The Directors of Campuses, Institutions, Deans of Schools of Studies and Heads
of teaching Departments in the University shall have the authority to exercise all such
disciplinary powers over the students in their respective Colleges, Campuses, Institutions,
Schools of Studies and teaching Departments in the University, as may be necessary, for
the proper conduct of such Colleges, Campuses, Institutions, Schools of Studies and
teaching Departments.
(6) Without prejudice to the powers of the Vice-Chancellor and the Principals and
other persons specified in clause (5), detailed rules of discipline and proper conduct shall
be made by the University and the Principals of Colleges, Institutions, Deans of Schools of
Studies and Heads of teaching Departments in the University may also make such
supplementary rules as they deem necessary for the purposes stated therein.
(7) At the time of admission, every student shall be required to sign a declaration to
the effect that he submits himself to the disciplinary jurisdiction of the Vice-Chancellor and
other authorities of the University.
31. Convocations.—Convocations of the University for the conferring of degrees or
for other purposes shall be held in such manner as may be prescribed by the Ordinances.
32. Acting Chairman of meetings.—Where no provision is made for a President or
Chairman to preside over a meeting of any authority of the University or any Committee of
such authority or when the President or Chairman so provided for is absent, the members
present shall elect one from among themselves to preside at such meeting.
33. Resignation.—Any member, other than an ex officio member of the Court, the
Executive Council, the Academic Council or any other authority of the University or any
Committee of such authority may resign by letter addressed to the Registrar and the
resignation shall take effect as soon as such letter is received by the Registrar.
34. Disqualification.—(1) A person shall be disqualified for being chosen as, and for
being, a member of any of the authorities, or for being appointed as, and for being, an
officer, of the University if—
(i) he is of unsound mind; or
(ii) he is an undischarged insolvent; or
(iii) he has been convicted by a court of law of an offence involving moral
turpitude and sentenced in respect thereof to imprisonment for not less than six
months.
(2) If any question arises as to whether a person is or had been subjected to any of
the disqualifications mentioned in clause (1), the question shall be referred to the Visitor
and his decision shall be final and no suit or other proceeding shall lie in any civil court
against such decision.
35. Residence condition for membership and office.—Notwithstanding anything
contained in the Statutes, a person who is not ordinarily resident in India shall not be
eligible to be an officer of the University or a member of any authority of the University.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 33
36. Membership of authorities by virtue of membership of other bodies.—
Notwithstanding anything contained in the Statutes, a person who holds any post in the
University or is a member of any authority or body of the University in his capacity as a
member of a particular authority or body or as the holder of a particular appointment shall
hold such office or membership only for so long as he continues to be a member of that
particular authority or body or the holder of that particular appointment, as the case may be.
37. Alumni Association.—(1) There shall be an Alumni Association for the University.
(2) The subscription for membership of the Alumni Association shall be prescribed
by the Ordinances.
(3) No member of the Alumni Association shall be entitled to vote or stand for election
unless he has been a member of the Association for at least one year prior to the date of
election and is a degree holder of the University of at least five years standing:
Provided that the condition relating to the completion of one year's membership shall
not apply in the case of the first election.
38. Students' Council.—(1) There shall be constituted in the University, a Students'
Council for every academic year, consisting of—
(i) the Dean of Students' Welfare who shall be the Chairman of the Students'
Council;
(ii) twenty students to be nominated by the Academic Council on the basis of
merit in studies, sports and extra-curricular activities; and
(iii) twenty students to be elected by the students as their representatives:
Provided that any student of the University shall have the right to bring up any
matter concerning the University before the Students' Council, if so permitted by the
Chairman, and he shall have the right to participate in the discussions at any meeting
when the matter is taken up for consideration.
(2) The functions of the Students' Council shall be to make suggestions to the
appropriate authorities of the University in regard to the programmes of studies, students'
welfare and other matters of importance, in regard to the working of the University in
general and such suggestions shall be made on the basis of consensus of opinion.
(3) The Students' Council shall meet at least twice in every academic year and the first
meeting of the Council be held in the beginning of the academic session.
39. Ordinances how to be made.—(1) The first Ordinances made under
sub-section (2) of section 29 may be amended, repealed or added to at any time by the
Executive Council in the manner specified in the following clauses.
(2) No Ordinance in respect of the matters enumerated in sub-section (1) of section 29
shall be made by the Executive Council unless a draft of such Ordinance has been proposed
by the Academic Council.
(3) The Executive Council shall not have power to amend any draft of any Ordinance
proposed by the Academic Council under clause (2), but may reject the proposal or return
the draft to the Academic Council for re-consideration, either in whole or in part, together
with any amendment which the Executive Council may suggest.
(4) Where the Executive Council has rejected or returned the draft of an Ordinances
proposed by the Academic Council, the Academic Council may consider the question
afresh and in case the original draft is reaffirmed by a majority of not less than two-thirds of
the members present and voting and more than half the total number of members of the
Academic Council, the draft may be sent back to the Executive Council which shall either
adopt it or refer it to the Visitor whose decision shall be final.34 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(5) Every Ordinances made by the Executive Council shall come into effect immediately.
(6) Every Ordinances made by the Executive Council shall be submitted to the Visitor
within two weeks from the date of its adoption.
(7) The Visitor shall have the power to direct the University to suspend the operation
of any Ordinances.
(8) The Visitor shall inform the Executive Council about his objection to the Ordinances
referred to in clause (7) and may, after receiving the comments of the University, either
withdraw the order suspending the Ordinances or disallow the Ordinances, and his decision
shall be final.
40. Regulations.—(1) The authorities of the University may make Regulations
consistent with this Act, the Statutes and the Ordinances for the following matters, namely:—
(i) laying down the procedure to be observed at their meetings and the number
of members required to form a quorum;
(ii) providing for all matters which are required by this Act, the Statutes or the
Ordinances to be prescribed by Regulations; and
(iii) providing for all other matters solely concerning such authorities or
committees appointed by them and not provided for by this Act, the Statutes or the
Ordinances.
(2) Every authority of the University shall make Regulations providing for the giving
of notice to the members of such authority of the dates of meeting and of the business to
be considered at meetings and for the keeping of a record of the proceedings of meetings.
(3) The Executive Council may direct the amendment in such manner as it may specify
of any Regulation made under the Statutes or the annulment of any such Regulation.
41. Establishment of campuses in India and outside India.—(1) The establishment of
Campuses and the abolition thereof shall be governed by the Statutes provided the same
have received the assent of the Visitor.
(2) The procedures to be followed for establishment and abolition of Campuses shall
be as prescribed in the Ordinances.
42. Distance education system.—(1) Subject to the provisions of the Act and the
Statutes, the University shall have a distance education system as prescribed in the
Ordinance.
(2) The composition, powers and functions of the Distance Education System shall
be as prescribed in the Ordinances.
43. Delegation of Powers.—Subject to the provisions of this Act and the Statutes,
any officer or authority of the University may delegate his or its powers to any other officer
or authority or person under his or its respective control and subject to the condition that
overall responsibility for the exercise of the power so delegated shall continue to vest in the
officer or authority delegating such powers.
44. Correspondence with the Visitor.—All the correspondences with the Visitor by
the University or its authorities or officers shall be routed through the Central Government.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 35
STATEMENT OF OBJECTS AND REASONS
The upgradation of three Deemed to be Universities in Sanskrit, namely, Rashtriya
Sanskrit Sansthan, Delhi, Sri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi
and Rashtriya Sanskrit Vidyapeeth, Tirupati into Central Universities through the Central
Sanskrit Universities Bill, 2019 would enhance the status of these Universities and will give
a boost to Post Graduate, Doctoral and Post Doctoral education and Research in the field of
Sanskrit and Shastraic education. It would help in getting better faculty, attract foreign
students, Sanskrit scholars, foreign faculty of international repute and help in international
collaborations with global Universities across the world. This will also help in enhancing the
opportunities for imparting education in the field of Indian Philosophy, Yoga, Ayurveda and
Naturopathy.
2. The Bill seeks to achieve the above objectives.
NEW DELHI; RAMESH POKHRIYAL 'NISHANK'.
The 5th December, 2019.36 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
FINANCIAL MEMORANDUM
The Central Sanskrit Universities Bill, 2019 proposes to convert the existing three
Deemed to be Universities in Sanskrit as Central Universities. These three institutions are at
present given budgetary support for their establishment and also for all developmental
activities. The same would continue even after they are declared as Central Universities
under this Act. Therefore, there is no additional financial implication on account of the Bill.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 37
BILL NO. 373 OF 2019
A Bill to provide for protection of the privacy of individuals relating to their personal
data, specify the flow and usage of personal data, create a relationship of trust
between persons and entities processing the personal data, protect the
rights of individuals whose personal data are processed, to create a
framework for organisational and technical measures in processing
of data, laying down norms for social media intermediary,
cross-border transfer, accountability of entities processing
personal data, remedies for unauthorised and harmful
processing, and to establish a Data Protection
Authority of India for the said purposes and
for matters connected therewith or
incidental thereto.
WHEREAS the right to privacy is a fundamental right and it is necessary to protect
personal data as an essential facet of informational privacy;
AND WHEREAS the growth of the digital economy has expanded the use of data as a
critical means of communication between persons;38 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
AND WHEREAS it is necessary to create a collective culture that fosters a free and fair
digital economy, respecting the informational privacy of individuals, and ensuring
empowerment, progress and innovation through digital governance and inclusion and for
matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
Short title and 1. (1) This Act may be called the Personal Data Protection Act, 2019.
commencement.
(2) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint; and different dates may be appointed for different provisions
of this Act and any reference in any such provision to the commencement of this Act shall
be construed as a reference to the coming into force of that provision.
Application of 2. The provisions of this Act,—
Act to
processing of (A) shall apply to—
personal data.
(a) the processing of personal data where such data has been collected,
disclosed, shared or otherwise processed within the territory of India;
(b) the processing of personal data by the State, any Indian company, any
citizen of India or any person or body of persons incorporated or created under
Indian law;
(c) the processing of personal data by data fiduciaries or data processors
not present within the territory of India, if such processing is—
(i) in connection with any business carried on in India, or any
systematic activity of offering goods or services to data principals within
the territory of India; or
(ii) in connection with any activity which involves profiling of data
principals within the territory of India.
(B) shall not apply to the processing of anonymised data, other than the
anonymised data referred to in section 91.
Definitions. 3. In this Act, unless the context otherwise requires,—
(1) "Adjudicating Officer" means the Adjudicating Officer appointed as such
under sub-section (1) of section 62;
(2) "anonymisation" in relation to personal data, means such irreversible process
of transforming or converting personal data to a form in which a data principal cannot
be identified, which meets the standards of irreversibility specified by the Authority;
(3) "anonymised data" means data which has undergone the process of
anonymisation;
(4) "Appellate Tribunal" means the Tribunal established under sub-section (1)
or notified under sub-section (4) of section 67;
(5) "Authority" means the Data Protection Authority of India established under
sub-section (1) of section 41;
(6) "automated means" means any equipment capable of operating automatically
in response to instructions given for the purpose of processing data;
(7) "biometric data" means facial images, fingerprints, iris scans, or any other
similar personal data resulting from measurements or technical processing operationsSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 39
carried out on physical, physiological, or behavioural characteristics of a data principal,
which allow or confirm the unique identification of that natural person;
(8) "child" means a person who has not completed eighteen years of age;
(9) "code of practice" means a code of practice issued by the Authority under
section 50;
(10) "consent" means the consent referred to in section 11;
(11) "data" includes a representation of information, facts, concepts, opinions
or instructions in a manner suitable for communication, interpretation or processing
by humans or by automated means;
(12) "data auditor" means an independent data auditor referred to in section 29;
(13) "data fiduciary" means any person, including the State, a company, any
juristic entity or any individual who alone or in conjunction with others determines the
purpose and means of processing of personal data;
(14) "data principal" means the natural person to whom the personal data relates;
(15) "data processor" means any person, including the State, a company, any
juristic entity or any individual, who processes personal data on behalf of a data
fiduciary;
(16) "de-identification" means the process by which a data fiduciary or data
processor may remove, or mask identifiers from personal data, or replace them with
such other fictitious name or code that is unique to an individual but does not, on its
own, directly identify the data principal;
(17) "disaster" shall have the same meaning as assigned to it in clause (d) of
53 of 2005. section 2 of the Disaster Management Act, 2005;
(18) "financial data" means any number or other personal data used to identify
an account opened by, or card or payment instrument issued by a financial institution
to a data principal or any personal data regarding the relationship between a financial
institution and a data principal including financial status and credit history;
(19) "genetic data" means personal data relating to the inherited or acquired
genetic characteristics of a natural person which give unique information about the
behavioural characteristics, physiology or the health of that natural person and which
result, in particular, from an analysis of a biological sample from the natural person in
question;
(20) "harm" includes—
(i) bodily or mental injury;
(ii) loss, distortion or theft of identity;
(iii) financial loss or loss of property;
(iv) loss of reputation or humiliation;
(v) loss of employment;
(vi) any discriminatory treatment;
(vii) any subjection to blackmail or extortion;
(viii) any denial or withdrawal of a service, benefit or good resulting from
an evaluative decision about the data principal;
(ix) any restriction placed or suffered directly or indirectly on speech,
movement or any other action arising out of a fear of being observed or surveilled;
or40 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(x) any observation or surveillance that is not reasonably expected by the
data principal;
(21) "health data" means the data related to the state of physical or mental
health of the data principal and includes records regarding the past, present or future
state of the health of such data principal, data collected in the course of registration
for, or provision of health services, data associating the data principal to the provision
of specific health services;
(22) "intra-group schemes" means the schemes approved by the Authority
under clause (a) of sub-section (1) of section 34;
(23) "in writing" includes any communication in electronic format as defined in
clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000; 21 of 2000.
(24) "journalistic purpose" means any activity intended towards the
dissemination through print, electronic or any other media of factual reports, analysis,
opinions, views or documentaries regarding—
(i) news, recent or current events; or
(ii) any other information which the data fiduciary believes the public, or
any significantly discernible class of the public, to have an interest in;
(25) "notification" means a notification published in the Official Gazette and the
expression "notify" shall be construed accordingly;
(26) "official identifier" means any number, code, or other identifier, assigned to
a data principal under a law made by Parliament or any State Legislature which may be
used for the purpose of verifying the identity of a data principal;
(27) "person" includes—
(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a firm,
(v) an association of persons or a body of individuals, whether incorporated
or not,
(vi) the State, and
(vii) every artificial juridical person, not falling within any of the preceding
sub-clauses;
(28) "personal data" means data about or relating to a natural person who is
directly or indirectly identifiable, having regard to any characteristic, trait, attribute or
any other feature of the identity of such natural person, whether online or offline, or
any combination of such features with any other information, and shall include any
inference drawn from such data for the purpose of profiling;
(29) "personal data breach" means any unauthorised or accidental disclosure,
acquisition, sharing, use, alteration, destruction of or loss of access to, personal data
that compromises the confidentiality, integrity or availability of personal data to a data
principal;
(30) "prescribed" means prescribed by rules made under this Act;
(31) "processing" in relation to personal data, means an operation or set of
operations performed on personal data, and may include operations such as collection,
recording, organisation, structuring, storage, adaptation, alteration, retrieval, use,
alignment or combination, indexing, disclosure by transmission, dissemination or
otherwise making available, restriction, erasure or destruction;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 41
(32) "profiling" means any form of processing of personal data that analyses or
predicts aspects concerning the behaviour, attributes or interests of a data principal;
(33) "regulations" means the regulations made by the Authority under this Act;
(34) "re-identification" means the process by which a data fiduciary or data
processor may reverse a process of de-identification;
(35) "Schedule" means the Schedule appended to this Act;
(36) "sensitive personal data" means such personal data, which may, reveal, be
related to, or constitute—
(i) financial data;
(ii) health data;
(iii) official identifier;
(iv) sex life;
(v) sexual orientation;
(vi) biometric data;
(vii) genetic data;
(viii) transgender status;
(ix) intersex status;
(x) caste or tribe;
(xi) religious or political belief or affiliation; or
(xii) any other data categorised as sensitive personal data under section 15.
Explanation.— For the purposes of this clause, the expressions,—
(a) "intersex status" means the condition of a data principal who is—
(i) a combination of female or male;
(ii) neither wholly female nor wholly male; or
(iii) neither female nor male;
(b) "transgender status" means the condition of a data principal whose
sense of gender does not match with the gender assigned to that data principal
at birth, whether or not they have undergone sex reassignment surgery, hormone
therapy, laser therapy, or any other similar medical procedure;
(37) "significant data fiduciary" means a data fiduciary classified as such under
sub-section (1) of section 26;
(38) "significant harm" means harm that has an aggravated effect having regard
to the nature of the personal data being processed, the impact, continuity, persistence
or irreversibility of the harm;
(39) "State" means the State as defined under article 12 of the Constitution;
(40) "systematic activity" means any structured or organised activity that
involves an element of planning, method, continuity or persistence.42 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
CHAPTER II
OBLIGATIONS OF DATA FIDUCIARY
Prohibition of 4. No personal data shall be processed by any person, except for any specific, clear
processing of and lawful purpose.
personal data.
Limitation on 5. Every person processing personal data of a data principal shall process such personal
purpose of data—
processing of
personal data. (a) in a fair and reasonable manner and ensure the privacy of the data principal;
and
(b) for the purpose consented to by the data principal or which is incidental to
or connected with such purpose, and which the data principal would reasonably
expect that such personal data shall be used for, having regard to the purpose, and in
the context and circumstances in which the personal data was collected.
Limitation on 6. The personal data shall be collected only to the extent that is necessary for the
collection of purposes of processing of such personal data.
personal data.
Requirement 7. (1) Every data fiduciary shall give to the data principal a notice, at the time of
of notice for collection of the personal data, or if the data is not collected from the data principal, as soon
collection or
as reasonably practicable, containing the following information, namely:—
processing of
personal data.
(a) the purposes for which the personal data is to be processed;
(b) the nature and categories of personal data being collected;
(c) the identity and contact details of the data fiduciary and the contact details
of the data protection officer, if applicable;
(d) the right of the data principal to withdraw his consent, and the procedure for
such withdrawal, if the personal data is intended to be processed on the basis of
consent;
(e) the basis for such processing, and the consequences of the failure to provide
such personal data, if the processing of the personal data is based on the grounds
specified in sections 12 to 14;
( f ) the source of such collection, if the personal data is not collected from the
data principal;
(g) the individuals or entities including other data fiduciaries or data processors,
with whom such personal data may be shared, if applicable;
(h) information regarding any cross-border transfer of the personal data that the
data fiduciary intends to carry out, if applicable;
(i) the period for which the personal data shall be retained in terms of section 9
or where such period is not known, the criteria for determining such period;
( j) the existence of and procedure for the exercise of rights mentioned in Chapter V
and any related contact details for the same;
(k) the procedure for grievance redressal under section 32;
(l) the existence of a right to file complaints to the Authority;
(m) where applicable, any rating in the form of a data trust score that may be
assigned to the data fiduciary under sub-section (5) of section 29; and
(n) any other information as may be specified by the regulations.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 43
(2) The notice referred to in sub-section (1) shall be clear, concise and easily
comprehensible to a reasonable person and in multiple languages where necessary and
practicable.
(3) The provisions of sub-section (1) shall not apply where such notice substantially
prejudices the purpose of processing of personal data under section 12.
8. (1) The data fiduciary shall take necessary steps to ensure that the personal data
Quality of
processed is complete, accurate, not misleading and updated, having regard to the purpose personal data
for which it is processed. processed.
(2) While taking any steps under sub-section (1), the data fiduciary shall have regard
to whether the personal data—
(a) is likely to be used to make a decision about the data principal;
(b) is likely to be disclosed to other individuals or entities including other data
fiduciaries or processors; or
(c) is kept in a form that distinguishes personal data based on facts from personal
data based on opinions or personal assessments.
(3) Where personal data is disclosed to any other individual or entity, including other
data fiduciary or processor, and the data fiduciary finds that such data does not comply with
the requirement of sub-section (1), the data fiduciary shall take reasonable steps to notify
such individual or entity of this fact.
9. (1) The data fiduciary shall not retain any personal data beyond the period necessary Restriction on
to satisfy the purpose for which it is processed and shall delete the personal data at the end retention of
of the processing. personal data.
(2) Notwithstanding anything contained in sub-section (1), the personal data may be
retained for a longer period if explicitly consented to by the data principal, or necessary to
comply with any obligation under any law for the time being in force.
(3) The data fiduciary shall undertake periodic review to determine whether it is
necessary to retain the personal data in its possession.
(4) Where it is not necessary for personal data to be retained by the data fiduciary
under sub-section (1) or sub-section (2), then, such personal data shall be deleted in such
manner as may be specified by regulations.
10. The data fiduciary shall be responsible for complying with the provisions of this
Accountability
Act in respect of any processing undertaken by it or on its behalf. of data
fiduciary.
11. (1) The personal data shall not be processed, except on the consent given by the Consent
data principal at the commencement of its processing. necessary for
processing of
(2) The consent of the data principal shall not be valid, unless such consent is— personal data.
(a) free, having regard to whether it complies with the standard specified under
9 of 1872. section 14 of the Indian Contract Act, 1872;
(b) informed, having regard to whether the data principal has been provided
with the information required under section 7;
(c) specific, having regard to whether the data principal can determine the scope
of consent in respect of the purpose of processing;
(d) clear, having regard to whether it is indicated through an affirmative action
that is meaningful in a given context; and
(e) capable of being withdrawn, having regard to whether the ease of such
withdrawal is comparable to the ease with which consent may be given.44 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(3) In addition to the provisions contained in sub-section (2), the consent of the data
principal in respect of processing of any sensitive personal data shall be explicitly obtained—
(a) after informing him the purpose of, or operation in, processing which is likely
to cause significant harm to the data principal;
(b) in clear terms without recourse to inference from conduct in a context; and
(c) after giving him the choice of separately consenting to the purposes of,
operations in, the use of different categories of, sensitive personal data relevant to
processing.
(4) The provision of any goods or services or the quality thereof, or the performance
of any contract, or the enjoyment of any legal right or claim, shall not be made conditional on
the consent to the processing of any personal data not necessary for that purpose.
(5) The burden of proof that the consent has been given by the data principal for
processing of the personal data under this section shall be on the data fiduciary.
(6) Where the data principal withdraws his consent from the processing of any personal
data without any valid reason, all legal consequences for the effects of such withdrawal
shall be borne by such data principal.
CHAPTER III
GROUNDS FOR PROCESSING OF PERSONAL DATA WITHOUT CONSENT
Grounds for 12. Notwithstanding anything contained in section 11, the personal data may be
processing of processed if such processing is necessary,—
personal data
without
consent in
certain cases.
(a) for the performance of any function of the State authorised by law for—
(i) the provision of any service or benefit to the data principal from the
State; or
(ii) the issuance of any certification, licence or permit for any action or
activity of the data principal by the State;
(b) under any law for the time being in force made by the Parliament or any State
Legislature; or
(c) for compliance with any order or judgment of any Court or Tribunal in India;
(d) to respond to any medical emergency involving a threat to the life or a severe
threat to the health of the data principal or any other individual;
(e) to undertake any measure to provide medical treatment or health services to
any individual during an epidemic, outbreak of disease or any other threat to public
health; or
(f) to undertake any measure to ensure safety of, or provide assistance or services
to, any individual during any disaster or any breakdown of public order.
Processing of 13. (1) Notwithstanding anything contained in section 11 and subject to sub-section
personal data (2), any personal data, not being any sensitive personal data, may be processed, if such
necessary for
processing is necessary for—
purposes
related to
(a) recruitment or termination of employment of a data principal by the data
employment,
fiduciary;
etc.
(b) provision of any service to, or benefit sought by, the data principal who is an
employee of the data fiduciary;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 45
(c) verifying the attendance of the data principal who is an employee of the data
fiduciary; or
(d) any other activity relating to the assessment of the performance of the data
principal who is an employee of the data fiduciary.
(2) Any personal data, not being sensitive personal data, may be processed under
sub-section (1), where the consent of the data principal is not appropriate having regard to
the employment relationship between the data fiduciary and the data principal, or would
involve a disproportionate effort on the part of the data fiduciary due to the nature of the
processing under the said sub-section.
14. (1) In addition to the grounds referred to under sections 12 and 13, the personal Processing of
data may be processed without obtaining consent under section 11, if such processing is personal data
necessary for such reasonable purposes as may be specified by regulations, after taking for other
reasonable
into consideration—
purposes.
(a) the interest of the data fiduciary in processing for that purpose;
(b) whether the data fiduciary can reasonably be expected to obtain the consent
of the data principal;
(c) any public interest in processing for that purpose;
(d) the effect of the processing activity on the rights of the data principal; and
(e) the reasonable expectations of the data principal having regard to the context
of the processing.
(2) For the purpose of sub-section (1), the expression "reasonable purposes" may
include—
(a) prevention and detection of any unlawful activity including fraud;
(b) whistle blowing;
(c) mergers and acquisitions;
(d) network and information security;
(e) credit scoring;
(f) recovery of debt;
(g) processing of publicly available personal data; and
(h) the operation of search engines.
(3) Where the Authority specifies a reasonable purpose under sub-section (1), it
shall—
(a) lay down, by regulations, such safeguards as may be appropriate to ensure
the protection of the rights of data principals; and
(b) determine where the provision of notice under section 7 shall apply or not
apply having regard to the fact whether such provision shall substantially prejudice
the relevant reasonable purpose.
15. (1) The Central Government shall, in consultation with the Authority and the
Categorisation
sectoral regulator concerned, notify such categories of personal data as "sensitive personal of personal
data", having regard to— data as
sensitive
(a) the risk of significant harm that may be caused to the data principal by the personal data.
processing of such category of personal data;
(b) the expectation of confidentiality attached to such category of personal
data;46 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(c) whether a significantly discernible class of data principals may suffer
significant harm from the processing of such category of personal data; and
(d) the adequacy of protection afforded by ordinary provisions applicable to
personal data.
(2) The Authority may specify, by regulations, the additional safeguards or restrictions
for the purposes of repeated, continuous or systematic collection of sensitive personal data
for profiling of such personal data.
CHAPTER IV
PERSONAL DATA AND SENSITIVE PERSONAL DATA OF CHILDREN
Processing of 16. (1) Every data fiduciary shall process personal data of a child in such manner that
personal data protects the rights of, and is in the best interests of, the child.
and sensitive
personal data (2) The data fiduciary shall, before processing of any personal data of a child, verify
of children. his age and obtain the consent of his parent or guardian, in such manner as may be specified
by regulations.
(3) The manner for verification of the age of child under sub-section (2) shall be
specified by regulations, taking into consideration—
(a) the volume of personal data processed;
(b) the proportion of such personal data likely to be that of child;
(c) possibility of harm to child arising out of processing of personal data; and
(d) such other factors as may be prescribed.
(4) The Authority shall, by regulations, classify any data fiduciary, as guardian data
fiduciary, who—
(a) operate commercial websites or online services directed at children; or
(b) process large volumes of personal data of children.
(5) The guardian data fiduciary shall be barred from profiling, tracking or behaviouraly
monitoring of, or targeted advertising directed at, children and undertaking any other
processing of personal data that can cause significant harm to the child.
(6) The provisions of sub-section (5) shall apply in such modified form to the data
fiduciary offering counselling or child protection services to a child, as the Authority may
by regulations specify.
(7) A guardian data fiduciary providing exclusive counselling or child protection
services to a child shall not require to obtain the consent of parent or guardian of the child
under sub-section (2).
Explanation.—For the purposes of this section, the expression "guardian data
fiduciary" means any data fiduciary classified as a guardian data fiduciary under
sub-section (4).
CHAPTER V
RIGHTS OF DATA PRINCIPAL
Right to 17. (1) The data principal shall have the right to obtain from the data fiduciary—
confirmation
and access. (a) confirmation whether the data fiduciary is processing or has processed
personal data of the data principal;
(b) the personal data of the data principal being processed or that has been
processed by the data fiduciary, or any summary thereof;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 47
(c) a brief summary of processing activities undertaken by the data fiduciary
with respect to the personal data of the data principal, including any information
provided in the notice under section 7 in relation to such processing.
(2) The data fiduciary shall provide the information under sub-section (1) to the data
principal in a clear and concise manner that is easily comprehensible to a reasonable person.
(3) The data principal shall have the right to access in one place the identities of the
data fiduciaries with whom his personal data has been shared by any data fiduciary together
with the categories of personal data shared with them, in such manner as may be specified
by regulations.
18. (1) The data principal shall where necessary, having regard to the purposes for Right to
which personal data is being processed, subject to such conditions and in such manner as correction and
may be specified by regulations, have the right to— erasure.
(a) the correction of inaccurate or misleading personal data;
(b) the completion of incomplete personal data;
(c) the updating of personal data that is out-of-date; and
(d) the erasure of personal data which is no longer necessary for the purpose for
which it was processed.
(2) Where the data fiduciary receives a request under sub-section (1), and the data
fiduciary does not agree with such correction, completion, updation or erasure having regard
to the purposes of processing, such data fiduciary shall provide the data principal with
adequate justification in writing for rejecting the application.
(3) Where the data principal is not satisfied with the justification provided by the data
fiduciary under sub-section (2), the data principal may require that the data fiduciary take
reasonable steps to indicate, alongside the relevant personal data, that the same is disputed
by the data principal.
(4) Where the data fiduciary corrects, completes, updates or erases any personal data
in accordance with sub-section (1), such data fiduciary shall also take necessary steps to
notify all relevant entities or individuals to whom such personal data may have been disclosed
regarding the relevant correction, completion, updation or erasure, particularly where such
action may have an impact on the rights and interests of the data principal or on decisions
made regarding them.
19. (1) Where the processing has been carried out through automated means, the data
Right to data
principal shall have the right to— portability.
(a) receive the following personal data in a structured, commonly used and
machine-readable format—
(i) the personal data provided to the data fiduciary;
(ii) the data which has been generated in the course of provision of services
or use of goods by the data fiduciary; or
(iii) the data which forms part of any profile on the data principal, or which
the data fiduciary has otherwise obtained; and
(b) have the personal data referred to in clause (a) transferred to any other data
fiduciary in the format referred to in that clause.
(2) The provisions of sub-section (1) shall not apply where—
(a) processing is necessary for functions of the State or in compliance of law or
order of a court under section 12;
(b) compliance with the request in sub-section (1) would reveal a trade secret of
any data fiduciary or would not be technically feasible.48 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Right to be 20. (1) The data principal shall have the right to restrict or prevent the continuing
forgotten. disclosure of his personal data by a data fiduciary where such disclosure—
(a) has served the purpose for which it was collected or is no longer necessary
for the purpose;
(b) was made with the consent of the data principal under section 11 and such
consent has since been withdrawn; or
(c) was made contrary to the provisions of this Act or any other law for the time
being in force.
(2) The rights under sub-section (1) may be enforced only on an order of the
Adjudicating Officer made on an application filed by the data principal, in such form and
manner as may be prescribed, on any of the grounds specified under clauses (a), (b) or
clause (c) of that sub-section:
Provided that no order shall be made under this sub-section unless it is shown by the
data principal that his right or interest in preventing or restricting the continued disclosure
of his personal data overrides the right to freedom of speech and expression and the right to
information of any other citizen.
(3) The Adjudicating Officer shall, while making an order under sub-section (2), having
regard to—
(a) the sensitivity of the personal data;
(b) the scale of disclosure and the degree of accessibility sought to be restricted
or prevented;
(c) the role of the data principal in public life;
(d) the relevance of the personal data to the public; and
(e) the nature of the disclosure and of the activities of the data fiduciary,
particularly whether the data fiduciary systematically facilitates access to personal
data and whether the activities shall be significantly impeded if disclosures of the
relevant nature were to be restricted or prevented.
(4) Where any person finds that personal data, the disclosure of which has been
restricted or prevented by an order of the Adjudicating Officer under sub-section (2), does
not satisfy the conditions referred to in that sub-section, he may apply for the review of that
order to the Adjudicating Officer in such manner as may be prescribed, and the Adjudicating
Officer shall review his order.
(5) Any person aggrieved by an order made under this section by the Adjudicating
Officer may prefer an appeal to the Appellate Tribunal.
General 21. (1) The data principal, for exercising any right under this Chapter, except the right
conditions for
under section 20, shall make a request in writing to the data fiduciary either directly or
the exercise of
rights in this through a consent manager with the necessary information as regard to his identity, and the
Chapter. data fiduciary shall acknowledge the receipt of such request within such period as may be
specified by regulations.
(2) For complying with the request made under sub-section (1), the data fiduciary may
charge such fee as may be specified by regulations:
Provided that no fee shall be required for any request in respect of rights referred to in
clause (a) or (b) of sub-section (1) of section 17 or section 18.
(3) The data fiduciary shall comply with the request under this Chapter and
communicate the same to the data principal, within such period as may be specified by
regulations.
(4) Where any request made under this Chapter is refused by the data fiduciary, it
shall provide the data principal the reasons in writing for such refusal and shall inform theSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 49
data principal regarding the right to file a complaint with the Authority against the refusal,
within such period and in such manner as may be specified by regulations.
(5) The data fiduciary is not obliged to comply with any request under this Chapter
where such compliance shall harm the rights of any other data principal under this Act.
CHAPTER VI
TRANSPARENCY AND ACCOUNTABILITY MEASURES
22. (1) Every data fiduciary shall prepare a privacy by design policy, containing—
Privacy by
design policy.
(a) the managerial, organisational, business practices and technical systems
designed to anticipate, identify and avoid harm to the data principal;
(b) the obligations of data fiduciaries;
(c) the technology used in the processing of personal data is in accordance with
commercially accepted or certified standards;
(d) the legitimate interests of businesses including any innovation is achieved
without compromising privacy interests;
(e) the protection of privacy throughout processing from the point of collection
to deletion of personal data;
(f) the processing of personal data in a transparent manner; and
(g) the interest of the data principal is accounted for at every stage of processing
of personal data.
(2) Subject to the regulations made by the Authority, the data fiduciary may submit its
privacy by design policy prepared under sub-section (1) to the Authority for certification
within such period and in such manner as may be specified by regulations.
(3) The Authority, or an officer authorised by it, shall certify the privacy by design
policy on being satisfied that it complies with the requirements of sub-section (1).
(4) The privacy by design policy certified under sub-section (3) shall be published on
the website of the data fiduciary and the Authority.
23. (1) Every data fiduciary shall take necessary steps to maintain transparency in Transparency
processing personal data and shall make the following information available in such form in processing
and manner as may be specified by regulations— of personal
data.
(a) the categories of personal data generally collected and the manner of such
collection;
(b) the purposes for which personal data is generally processed;
(c) any categories of personal data processed in exceptional situations or any
exceptional purposes of processing that create a risk of significant harm;
(d) the existence of and the procedure for exercise of rights of data principal
under Chapter V and any related contact details for the same;
(e) the right of data principal to file complaint against the data fiduciary to the
Authority;
(f) where applicable, any rating in the form of a data trust score that may be
accorded to the data fiduciary under sub-section (5) of section 29;
(g) where applicable, information regarding cross-border transfers of personal
data that the data fiduciary generally carries out; and
(h) any other information as may be specified by regulations.50 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) The data fiduciary shall notify, from time to time, the important operations in the
processing of personal data related to the data principal in such manner as may be specified
by regulations.
(3) The data principal may give or withdraw his consent to the data fiduciary through
a consent manager.
(4) Where the data principal gives or withdraws consent to the data fiduciary through
a consent manager, such consent or its withdrawal shall be deemed to have been
communicated directly by the data principal.
(5) The consent manager under sub-section (3), shall be registered with the Authority
in such manner and subject to such technical, operational, financial and other conditions as
may be specified by regulations.
Explanation.—For the purposes of this section, a "consent manager" is a data fiduciary
which enables a data principal to gain, withdraw, review and manage his consent through an
accessible, transparent and interoperable platform.
Security 24. (1) Every data fiduciary and the data processor shall, having regard to the nature,
safeguards.
scope and purpose of processing personal data, the risks associated with such processing,
and the likelihood and severity of the harm that may result from such processing, implement
necessary security safeguards, including—
(a) use of methods such as de-identification and encryption;
(b) steps necessary to protect the integrity of personal data; and
(c) steps necessary to prevent misuse, unauthorised access to, modification,
disclosure or destruction of personal data.
(2) Every data fiduciary and data processor shall undertake a review of its security
safeguards periodically in such manner as may be specified by regulations and take
appropriate measures accordingly.
Reporting of 25. (1) Every data fiduciary shall by notice inform the Authority about the breach of
personal data any personal data processed by the data fiduciary where such breach is likely to cause harm
breach.
to any data principal.
(2) The notice referred to in sub-section (1) shall include the following particulars,
namely:—
(a) nature of personal data which is the subject-matter of the breach;
(b) number of data principals affected by the breach;
(c) possible consequences of the breach; and
(d) action being taken by the data fiduciary to remedy the breach.
(3) The notice referred to in sub-section (1) shall be made by the data fiduciary to the
Authority as soon as possible and within such period as may be specified by regulations,
following the breach after accounting for any period that may be required to adopt any
urgent measures to remedy the breach or mitigate any immediate harm.
(4) Where it is not possible to provide all the information specified in sub-section (2)
at the same time, the data fiduciary shall provide such information to the Authority in phases
without undue delay.
(5) Upon receipt of a notice, the Authority shall determine whether such breach should
be reported by the data fiduciary to the data principal, taking into account the severity of the
harm that may be caused to such data principal or whether some action is required on the
part of the data principal to mitigate such harm.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 51
(6) The Authority may, in addition to requiring the data fiduciary to report the personal
data breach to the data principal under sub-section (5), direct the data fiduciary to take
appropriate remedial action as soon as possible and to conspicuously post the details of the
personal data breach on its website.
(7) The Authority may, in addition, also post the details of the personal data breach on
its website.
26. (1) The Authority shall, having regard to the following factors, notify any data Classification
fiduciary or class of data fiduciary as significant data fiduciary, namely:— of data
fiduciaries as
(a) volume of personal data processed; significant
data
(b) sensitivity of personal data processed; fiduciaries.
(c) turnover of the data fiduciary;
(d) risk of harm by processing by the data fiduciary;
(e) use of new technologies for processing; and
(f) any other factor causing harm from such processing.
(2) The data fiduciary or class of data fiduciary referred to in sub-section (1) shall
register itself with the Authority in such manner as may be specified by regulations.
(3) Notwithstanding anything in this Act, if the Authority is of the opinion that any
processing by any data fiduciary or class of data fiduciary carries a risk of significant harm
to any data principal, it may, by notification, apply all or any of the obligations specified in
sections 27 to 30 to such data fiduciary or class of data fiduciary as if it is a significant data
fiduciary.
(4) Notwithstanding anything contained in this section, any social media intermediary,—
(i) with users above such threshold as may be notified by the Central
Government, in consultation with the Authority; and
(ii) whose actions have, or are likely to have a significant impact on electoral
democracy, security of the State, public order or the sovereignty and integrity of India,
shall be notified by the Central Government, in consultation with the Authority, as a significant
data fiduciary:
Provided that different thresholds may be notified for different classes of social media
intermediaries.
Explanation.—For the purposes of this sub-section, a "social media intermediary" is
an intermediary who primarily or solely enables online interaction between two or more
users and allows them to create, upload, share, disseminate, modify or access information
using its services, but shall not include intermediaries which primarily,—
(a) enable commercial or business oriented transactions;
(b) provide access to the Internet;
(c) in the nature of search-engines, on-line encyclopedias, e-mail services or on-
line storage services.
27. (1) Where the significant data fiduciary intends to undertake any processing Data
involving new technologies or large scale profiling or use of sensitive personal data such as protection
genetic data or biometric data, or any other processing which carries a risk of significant impact
assessment.
harm to data principals, such processing shall not be commenced unless the data fiduciary
has undertaken a data protection impact assessment in accordance with the provisions of
this section.52 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) The Authority may, by regulations specify, such circumstances, or class of data
fiduciary, or processing operation where such data protection impact assessment shall be
mandatory, and also specify the instances where a data auditor under this Act shall be
engaged by the data fiduciary to undertake a data protection impact assessment.
(3) A data protection impact assessment shall, inter alia, contain—
(a) detailed description of the proposed processing operation, the purpose of
processing and the nature of personal data being processed;
(b) assessment of the potential harm that may be caused to the data principals
whose personal data is proposed to be processed; and
(c) measures for managing, minimising, mitigating or removing such risk of
harm.
(4) Upon completion of the data protection impact assessment, the data protection
officer appointed under sub-section (1) of section 30, shall review the assessment and
submit the assessment with his finding to the Authority in such manner as may be specified
by regulations.
(5) On receipt of the assessment and its review, if the Authority has reason to believe
that the processing is likely to cause harm to the data principals, the Authority may direct
the data fiduciary to cease such processing or direct that such processing shall be subject
to such conditions as the Authority may deem fit.
Maintenance 28. (1) The significant data fiduciary shall maintain accurate and up-to-date records of
of records.
the following, in such form and manner as may be specified by regulations, namely:—
(a) important operations in the data life-cycle including collection, transfers,
and erasure of personal data to demonstrate compliance as required under section 10;
(b) periodic review of security safeguards under section 24;
(c) data protection impact assessments under section 27; and
(d) any other aspect of processing as may be specified by regulations.
(2) Notwithstanding anything contained in this Act, this section shall also apply to
the State.
(3) Every social media intermediary which is notified as a significant data fiduciary
under sub-section (4) of section 26 shall enable the users who register their service from
India, or use their services in India, to voluntarily verify their accounts in such manner as
may be prescribed.
(4) Any user who voluntarily verifies his account shall be provided with such
demonstrable and visible mark of verification, which shall be visible to all users of the
service, in such manner as may be prescribed.
Audit of 29. (1) The significant data fiduciary shall have its policies and the conduct of its
policies and
processing of personal data audited annually by an independent data auditor under this
conduct of
Act.
processing,
etc.
(2) The data auditor shall evaluate the compliance of the data fiduciary with the
provisions of this Act, including—
(a) clarity and effectiveness of notices under section 7;
(b) effectiveness of measures adopted under section 22;
(c) transparency in relation to processing activities under section 23;
(d) security safeguards adopted pursuant to section 24;
(e) instances of personal data breach and response of the data fiduciary, including
the promptness of notice to the Authority under section 25;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 53
(f) timely implementation of processes and effective adherence to obligations
under sub-section (3) of section 28; and
(g) any other matter as may be specified by regulations.
(3) The Authority shall specify, by regulations, the form and procedure for conducting
audits under this section.
(4) The Authority shall register in such manner, the persons with expertise in the area
of information technology, computer systems, data science, data protection or privacy,
possessing such qualifications, experience and eligibility having regard to factors such as
independence, integrity and ability, as it may be specified by regulations, as data auditors
under this Act.
(5) A data auditor may assign a rating in the form of a data trust score to the data
fiduciary pursuant to a data audit conducted under this section.
(6) The Authority shall, by regulations, specify the criteria for assigning a rating in the
form of a data trust score having regard to the factors mentioned in sub-section (2).
(7) Notwithstanding anything contained in sub-section (1), where the Authority is of
the view that the data fiduciary is processing personal data in such manner that is likely to
cause harm to a data principal, the Authority may direct the data fiduciary to conduct an
audit and shall appoint a data auditor for that purpose.
30. (1) Every significant data fiduciary shall appoint a data protection officer possessing Data
such qualification and experience as may be specified by regulations for carrying out the protection
following functions— officer.
(a) providing information and advice to the data fiduciary on matters relating to
fulfilling its obligations under this Act;
(b) monitoring personal data processing activities of the data fiduciary to ensure
that such processing does not violate the provisions of this Act;
(c) providing advice to the data fiduciary on carrying out the data protection
impact assessments, and carry out its review under sub-section (4) of section 27;
(d) providing advice to the data fiduciary on the development of internal
mechanisms to satisfy the principles specified under section 22;
(e) providing assistance to and co-operating with the Authority on matters of
compliance of the data fiduciary with the provisions under this Act;
(f) act as the point of contact for the data principal for the purpose of grievances
redressal under section 32; and
(g) maintaining an inventory of records to be maintained by the data fiduciary
under section 28.
(2) Nothing contained in sub-section (1) shall prevent the data fiduciary from assigning
any other function to the data protection officer, which it may consider necessary.
(3) The data protection officer appointed under sub-section (1) shall be based in India
and shall represent the data fiduciary under this Act.
31. (1) The data fiduciary shall not engage, appoint, use or involve a data processor to Processing by
process personal data on its behalf without a contract entered into by the data fiduciary and entities other
such data processor. than data
fiduciaries.
(2) The data processor referred to in sub-section (1) shall not engage, appoint, use, or
involve another data processor in the processing on its behalf, except with the authorisation
of the data fiduciary and unless permitted in the contract referred to in sub-section (1).54 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(3) The data processor, and any employee of the data fiduciary or the data processor,
shall only process personal data in accordance with the instructions of the data fiduciary
and treat it confidential.
Grievance 32. (1) Every data fiduciary shall have in place the procedure and effective mechanisms
redressal by to redress the grievances of data principals efficiently and in a speedy manner.
data fiduciary.
(2) A data principal may make a complaint of contravention of any of the provisions
of this Act or the rules or regulations made thereunder, which has caused or is likely to cause
harm to such data principal, to—
(a) the data protection officer, in case of a significant data fiduciary; or
(b) an officer designated for this purpose, in case of any other data fiduciary.
(3) A complaint made under sub-section (2) shall be resolved by the data fiduciary in
an expeditious manner and not later than thirty days from the date of receipt of the complaint
by such data fiduciary.
(4) Where a complaint is not resolved within the period specified under sub-section (3),
or where the data principal is not satisfied with the manner in which the complaint is resolved,
or the data fiduciary has rejected the complaint, the data principal may file a complaint to the
Authority in such manner as may be prescribed.
CHAPTER VII
RESTRICTION ON TRANSFER OF PERSONAL DATA OUTSIDE INDIA
Prohibition on 33. (1) Subject to the conditions in sub-section (1) of section 34, the sensitive personal
processing of data may be transferred outside India, but such sensitive personal data shall continue to be
sensitive stored in India.
personal data
and critical
personal data
outside India
(2) The critical personal data shall only be processed in India.
Explanation.—For the purposes of sub-section (2), the expression "critical personal
data" means such personal data as may be notified by the Central Government to be the
critical personal data.
Conditions 34. (1) The sensitive personal data may only be transferred outside India for the
for transfer of purpose of processing, when explicit consent is given by the data principal for such transfer,
sensitive and where—
personal data
and critical
personal data.
(a) the transfer is made pursuant to a contract or intra-group scheme approved
by the Authority:
Provided that such contract or intra-group scheme shall not be approved, unless
it makes the provisions for—
(i) effective protection of the rights of the data principal under this Act,
including in relation to further transfer to any other person; and
(ii) liability of the data fiduciary for harm caused due to non-compliance
of the provisions of such contract or intra-group scheme by such transfer; or
(b) the Central Government, after consultation with the Authority, has allowed
the transfer to a country or, such entity or class of entity in a country or, an international
organisation on the basis of its finding that—
(i) such sensitive personal data shall be subject to an adequate level of
protection, having regard to the applicable laws and international agreements;
andSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 55
(ii) such transfer shall not prejudicially affect the enforcement of relevant
laws by authorities with appropriate jurisdiction:
Provided that any finding under this clause shall be reviewed periodically
in such manner as may be prescribed;
(c) the Authority has allowed transfer of any sensitive personal data or class of
sensitive personal data necessary for any specific purpose.
(2) Notwithstanding anything contained in sub-section (2) of section 33, any critical
personal data may be transferred outside India, only where such transfer is—
(a) to a person or entity engaged in the provision of health services or emergency
services where such transfer is necessary for prompt action under section 12; or
(b) to a country or, any entity or class of entity in a country or, to an international
organisation, where the Central Government has deemed such transfer to be permissible
under clause (b) of sub-section (1) and where such transfer in the opinion of the
Central Government does not prejudicially affect the security and strategic interest of
the State.
(3) Any transfer under clause (a) of sub-section (2) shall be notified to the Authority
within such period as may be specified by regulations.
CHAPTER VIII
EXEMPTIONS
35. Where the Central Government is satisfied that it is necessary or expedient,— Power of
Central
Government
to exempt
any agency of
Government
from
application of
Act.
(i) in the interest of sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order; or
(ii) for preventing incitement to the commission of any cognizable offence relating
to sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order,
it may, by order, for reasons to be recorded in writing, direct that all or any of the provisions
of this Act shall not apply to any agency of the Government in respect of processing of such
personal data, as may be specified in the order subject to such procedure, safeguards and
oversight mechanism to be followed by the agency, as may be prescribed.
Explanation.—For the purposes of this section,—
(i) the term "cognizable offence" means the offence as defined in
2 of 1974. clause (c) of section 2 of the Code of Criminal Procedure, 1973;
(ii) the expression "processing of such personal data" includes sharing
by or sharing with such agency of the Government by any data fiduciary, data
processor or data principal.
36. The provisions of Chapter II except section 4, Chapters III to V, Chapter VI except
Exemption of
section 24, and Chapter VII shall not apply where— certain
provisions for
certain
processing of
(a) personal data is processed in the interests of prevention, detection, personal data.
investigation and prosecution of any offence or any other contravention of any law
for the time being in force;56 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) disclosure of personal data is necessary for enforcing any legal right or
claim, seeking any relief, defending any charge, opposing any claim, or obtaining any
legal advice from an advocate in any impending legal proceeding;
(c) processing of personal data by any court or tribunal in India is necessary for
the exercise of any judicial function;
(d) personal data is processed by a natural person for any personal or domestic
purpose, except where such processing involves disclosure to the public, or is
undertaken in connection with any professional or commercial activity; or
(e) processing of personal data is necessary for or relevant to a journalistic
purpose, by any person and is in compliance with any code of ethics issued by the
Press Council of India, or by any media self-regulatory organisation.
Power of 37. The Central Government may, by notification, exempt from the application of this
Central Act, the processing of personal data of data principals not within the territory of India,
Government pursuant to any contract entered into with any person outside the territory of India, including
to exempt
any company incorporated outside the territory of India, by any data processor or any class
certain data
processors. of data processors incorporated under Indian law.
Exemption 38. Where the processing of personal data is necessary for research, archiving, or
for research, statistical purposes, and the Authority is satisfied that—
archiving or
statistical
purposes.
(a) the compliance with the provisions of this Act shall disproportionately divert
resources from such purpose;
(b) the purposes of processing cannot be achieved if the personal data is
anonymised;
(c) the data fiduciary has carried out de-identification in accordance with the
code of practice specified under section 50 and the purpose of processing can be
achieved if the personal data is in de-identified form;
(d) the personal data shall not be used to take any decision specific to or action
directed to the data principal; and
(e) the personal data shall not be processed in the manner that gives rise to a
risk of significant harm to the data principal,
it may, by notification, exempt such class of research, archiving, or statistical purposes from
the application of any of the provisions of this Act as may be specified by regulations.
Exemption 39. (1) The provisions of sections 7, 8, 9, clause (c) of sub-section (1) of section 17
for manual and sections 19 to 32 shall not apply where the processing of personal data by a small entity
processing by
is not automated.
small entities.
(2) For the purposes of sub-section (1), a "small entity" means such data fiduciary as
may be classified, by regulations, by Authority, having regard to—
(a) the turnover of data fiduciary in the preceding financial year;
(b) the purpose of collection of personal data for disclosure to any other
individuals or entities; and
(c) the volume of personal data processed by such data fiduciary in any one day
in the preceding twelve calendar months.
Sandbox for 40. (1) The Authority shall, for the purposes of encouraging innovation in artificial
encouraging intelligence, machine-learning or any other emerging technology in public interest, create a
innovation,
Sandbox.
etc.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 57
(2) Any data fiduciary whose privacy by design policy is certified by the Authority
under sub-section (3) of section 22 shall be eligible to apply, in such manner as may be
specified by regulations, for inclusion in the Sandbox created under sub-section (1).
(3) Any data fiduciary applying for inclusion in the Sandbox under sub-section (2)
shall furnish the following information, namely:—
(a) the term for which it seeks to utilise the benefits of Sandbox, provided that
such term shall not exceed twelve months;
(b) the innovative use of technology and its beneficial uses;
(c) the data principals or categories of data principals participating under the
proposed processing; and
(d) any other information as may be specified by regulations.
(4) The Authority shall, while including any data fiduciary in the Sandbox, specify—
(a) the term of the inclusion in the Sandbox, which may be renewed not more
than twice, subject to a total period of thirty-six months;
(b) the safeguards including terms and conditions in view of the obligations
under clause (c) including the requirement of consent of data principals participating
under any licensed activity, compensation to such data principals and penalties in
relation to such safeguards; and
(c) that the following obligations shall not apply or apply with modified form to
such data fiduciary, namely:—
(i) the obligation to specify clear and specific purposes under sections 4
and 5;
(ii) limitation on collection of personal data under section 6; and
(iii) any other obligation to the extent, it is directly depending on the
obligations under sections 5 and 6; and
(iv) the restriction on retention of personal data under section 9.
CHAPTER IX
DATA PROTECTION AUTHORITY OF INDIA
41. (1) The Central Government shall, by notification, establish, for the purposes of Establishment
this Act, an Authority to be called the Data Protection Authority of India. of Authority.
(2) The Authority referred to in sub-section (1) shall be a body corporate by the name
aforesaid, having perpetual succession and a common seal, with power, subject to the
provisions of this Act, to acquire, hold and dispose of property, both movable and immovable,
and to contract and shall, by the said name, sue or be sued.
(3) The head office of the Authority shall be at such place as may be prescribed.
(4) The Authority may, with the prior approval of the Central Government, establish its
offices at other places in India.
42. (1) The Authority shall consist of a Chairperson and not more than six whole-time Composition
Members, of which one shall be a person having qualification and experience in law. and
qualifications
(2) The Chairperson and the Members of the Authority shall be appointed by the for
Central Government on the recommendation made by a selection committee consisting of— appointment
of Members.
(a) the Cabinet Secretary, who shall be Chairperson of the selection committee;
(b) the Secretary to the Government of India in the Ministry or Department
dealing with the Legal Affairs; and58 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(c) the Secretary to the Government of India in the Ministry or Department
dealing with the Electronics and Information Technology.
(3) The procedure to be followed by the Selection Committee for recommending the
names under sub-section (2) shall be such as may be prescribed.
(4) The Chairperson and the Members of the Authority shall be persons of ability,
integrity and standing, and shall have qualification and specialised knowledge and experience
of, and not less than ten years in the field of data protection, information technology, data
management, data science, data security, cyber and internet laws, public administration,
national security or related subjects.
(5) A vacancy caused to the office of the Chairperson or any other member of the
Authority shall be filled up within a period of three months from the date on which such
vacancy occurs.
Terms and 43. (1) The Chairperson and the Members of the Authority shall be appointed for a
conditions of term of five years or till they attain the age of sixty-five years, whichever is earlier, and they
appointment.
shall not be eligible for re-appointment.
(2) The salaries and allowances payable to, and other terms and conditions of service
of the Chairperson and the Members of the Authority shall be such as may be prescribed.
(3) The Chairperson and the Members shall not, during their term and for a period of
two years from the date on which they cease to hold office, accept—
(a) any employment either under the Central Government or under any State
Government; or
(b) any appointment, in any capacity whatsoever, with a significant data fiduciary.
(4) Notwithstanding anything contained in sub-section (1), the Chairperson or a
Member of the Authority may—
(a) relinquish his office by giving in writing to the Central Government a notice
of not less than three months; or
(b) be removed from his office in accordance with the provisions of this Act.
Removal of 44. (1) The Central Government may remove from office, the Chairperson or any
Chairperson or Member of the Authority who—
other
Members.
(a) has been adjudged as an insolvent;
(b) has become physically or mentally incapable of acting as a Chairperson or
member;
(c) has been convicted of an offence, which in the opinion of the Central
Government, involves moral turpitude;
(d) has so abused their position as to render their continuation in office
detrimental to the public interest; or
(e) has acquired such financial or other interest as is likely to affect prejudicially
their functions as a Chairperson or a member.
(2) No Chairperson or any member of the Authority shall be removed under clause (d)
or (e) of sub-section (1) unless he has been given a reasonable opportunity of being heard.
Powers of 45. The Chairperson of the Authority shall have powers of general superintendence
Chairperson. and direction of the affairs of the Authority and shall also exercise all powers and do all such
acts and things which may be exercised or done by the Authority under this Act.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 59
46. (1) The Chairperson and Members of the Authority shall meet at such times and Meetings of
places and shall observe such rules and procedures in regard to transaction of business at Authority.
its meetings including quorum at such meetings, as may be prescribed.
(2) If, for any reason, the Chairperson is unable to attend any meeting of the Authority,
any other member chosen by the Members present at the meeting, shall preside the meeting.
(3) All questions which come up before any meeting of the Authority shall be decided
by a majority of votes of the Members present and voting, and in the event of an equality of
votes, the Chairperson or in his absence, the member presiding, shall have the right to
exercise a second or casting vote.
(4) Any Member who has any direct or indirect pecuniary interest in any matter coming
up for consideration at a meeting of the Authority shall disclose the nature of his interest at
such meeting, which shall be recorded in the proceedings of the Authority and such member
shall not take part in any deliberation or decision of the Authority with respect to that matter.
47. No act or proceeding of the Authority shall be invalid merely by reason of— Vacancies,
etc., not to
(a) any vacancy or defect in the constitution of the Authority;
invalidate
proceedings
(b) any defect in the appointment of a person as a Chairperson or member; or
of Authority.
(c) any irregularity in the procedure of the Authority not affecting the merits of
the case.
48. (1) The Authority may appoint such officers, other employees, consultants and Officers and
experts as it may consider necessary for effectively discharging of its functions under this other
employees of
Act.
Authority.
(2) Any remuneration, salary or allowances, and other terms and conditions of service
of such officers, employees, consultants and experts shall be such as may be specified by
regulations.
49. (1) It shall be the duty of the Authority to protect the interests of data principals,
Powers and
prevent any misuse of personal data, ensure compliance with the provisions of this Act, and functions of
promote awareness about data protection. Authority.
(2) Without prejudice to the generality of the foregoing and other functions under
this Act, the functions of the Authority shall include—
(a) monitoring and enforcing application of the provisions of this Act;
(b) taking prompt and appropriate action in response to personal data breach in
accordance with the provisions of this Act;
(c) maintaining a database on its website containing names of significant data
fiduciaries along with a rating in the form of a data trust score indicating compliance
with the obligations of this Act by such fiduciaries;
(d) examination of any data audit reports and taking any action pursuant thereto;
(e) issuance of a certificate of registration to data auditors and renewal, withdrawal,
suspension or cancellation thereof and maintaining a database of registered data
auditors and specifying the qualifications, code of conduct, practical training and
functions to be performed by such data auditors;
( f ) classification of data fiduciaries;
(g) monitoring cross-border transfer of personal data;
(h) specifying codes of practice;60 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(i) promoting awareness and understanding of the risks, rules, safeguards and
rights in respect of protection of personal data amongst data fiduciaries and data
principals;
(j) monitoring technological developments and commercial practices that may
affect protection of personal data;
(k) promoting measures and undertaking research for innovation in the field of
protection of personal data;
(l) advising Central Government, State Government and any other authority on
measures required to be taken to promote protection of personal data and ensuring
consistency of application and enforcement of this Act;
(m) specifying fees and other charges for carrying out the purposes of this Act;
(n) receiving and inquiring complaints under this Act; and
(o) performing such other functions as may be prescribed.
(3) Where, pursuant to the provisions of this Act, the Authority processes any personal
data, it shall be construed as the data fiduciary or the data processor in relation to such
personal data as applicable, and where the Authority comes into possession of any
information that is treated as confidential by the data fiduciary or data processor, it shall not
disclose such information unless required under any law to do so, or where it is required to
carry out its function under this section.
Codes of
50. (1) The Authority shall, by regulations, specify codes of practice to promote good
practice.
practices of data protection and facilitate compliance with the obligations under this Act.
(2) Notwithstanding anything contained in sub-section (1), the Authority may approve
any code of practice submitted by an industry or trade association, an association
representing the interest of data principals, any sectoral regulator or statutory Authority, or
any departments or ministries of the Central or State Government.
(3) The Authority shall ensure transparency and compliance with the obligations of
data fiduciary and the rights of the data principal under this Act while specifying or approving
any code of practice under this section.
(4) A code of practice under sub-section (1) or sub-section (2), shall not be issued
unless the Authority has made consultation with the sectoral regulators and other
stakeholders including the public and has followed such procedure as may be prescribed.
(5) A code of practice issued under this section shall not derogate from the provisions
of this Act or any other law for the time being in force.
(6) The code of practice under this Act may include the following matters, namely:—
(a) requirements for notice under section 7 including any model forms or guidance
relating to notice;
(b) measures for ensuring quality of personal data processed under section 8;
(c) measures pertaining to the retention of personal data under section 9;
(d) manner for obtaining valid consent under section 11;
(e) processing of personal data under section 12;
(f) activities where processing of personal data may be undertaken under
section 14;
(g) processing of sensitive personal data under Chapter III;
(h) processing of personal data under any other ground for processing, including
processing of personal data of children and age-verification under this Act;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 61
(i) exercise of any right by data principals under Chapter V;
(j) the standards and means by which a data principal may avail the right to data
portability under section 19;
(k) transparency and accountability measures including the standards thereof
to be maintained by data fiduciaries and data processors under Chapter VI;
(l) standards for security safeguards to be maintained by data fiduciaries and
data processors under section 24;
(m) methods of de-identification and anonymisation;
(n) methods of destruction, deletion, or erasure of personal data where required
under this Act;
(o) appropriate action to be taken by the data fiduciary or data processor in
response to a personal data breach under section 25;
(p) manner in which data protection impact assessments may be carried out by
the data fiduciary or a class thereof under section 27;
(q) transfer of personal data outside India pursuant to section 34;
(r) processing of any personal data or sensitive personal data to carry out any
activity necessary for research, archiving or statistical purposes under section 38;
and
(s) any other matter which, in the view of the Authority, may be necessary to be
provided in the code of practice.
(7) The Authority may review, modify or revoke a code of practice issued under this
section in such manner as may be prescribed.
51. (1) The Authority may, for the discharge of its functions under this Act, issue such Power of
directions from time to time as it may consider necessary to any data fiduciary or data Authority to
issue
processor who shall be bound to comply with such directions.
directions.
(2) No direction shall be issued under sub-section (1) unless the Authority has given
a reasonable opportunity of being heard to the data fiduciaries or data processor concerned.
(3) The Authority may, on a representation made to it or on its own motion, modify,
suspend, withdraw or cancel any direction issued under sub-section (1) and in doing so,
may impose such conditions as it deems fit, subject to which the modification, suspension,
withdrawal or cancellation shall have effect.
52. (1) Without prejudice to the other provisions of this Act, the Authority may Power of
require a data fiduciary or data processor to provide such information as may be reasonably Authority to
call for
required by it for discharging its functions under this Act.
information.
(2) If the Authority requires a data fiduciary or a data processor to provide any
information under sub-section (1), it shall provide a notice in writing to the data fiduciary or
the data processor stating the reasons for such requisition.
(3) The Authority shall, by regulations, specify the manner in which the data fiduciary
or data processor shall provide the information sought in sub-section (1), including the
designation of the officer or employee of the Authority who may seek such information, the
period within which such information is to be furnished and the form in which such information
may be provided.
53. (1) The Authority may, on its own or on a complaint received by it, inquire or cause Power of
to be inquired, if it has reasonable grounds to believe that— Authority to
conduct
inquiry.
(a) the activities of the data fiduciary or data processor are being conducted in
a manner which is detrimental to the interest of data principals; or62 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) any data fiduciary or data processor has contravened any of the provisions
of this Act or the rules or regulations made thereunder, or any direction of the Authority.
(2) For the purposes of sub-section (1), the Authority shall, by an order in writing,
appoint one of its officers as an Inquiry Officer to inquire into the affairs of such data
fiduciary or data processor and to report to the Authority on any inquiry made.
(3) For the purpose of any inquiry under this section, the Inquiry Officer may, wherever
necessary, seek the assistance of any other person.
(4) The order referred to in sub-section (2) shall specify the reasons for the inquiry
and the scope of the inquiry and may be modified from time to time.
(5) Every officer, employee or other person acting under the direct authority of the
data fiduciary or the data processor, or a service provider, or a contractor, where services are
being obtained by or provided to the data fiduciary or data processor, as the case may be,
shall be bound to produce before the Inquiry Officer, all such books, registers, documents,
records and any data in their custody or power and to furnish to the Inquiry Officer any
statement and information relating to the affairs of the data fiduciary or data processor as
the Inquiry Officer may require within such time as the said Inquiry Officer may specify.
(6) The Inquiry Officer shall provide a notice in writing to the persons referred to in
sub-section (5) stating the reasons thereof and the relationship between the data fiduciary
and the Inquiry Officer.
(7) The Inquiry Officer may keep in its custody any books, registers, documents,
records and other data produced under sub-section (5) for six months and thereafter shall
return the same to the person by whom or on whose behalf such books, registers, documents,
record and data are produced, unless an approval to retain such books, registers, documents,
record and data for an additional period not exceeding three months has been obtained from
the Authority.
(8) Notwithstanding anything contained in any other law for the time being in force,
while exercising the powers under this section, the Authority or the Inquiry Officer, as the
case may be, shall have the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908 while trying a suit, in respect of the following matters, namely— 5 of 1908.
(a) the discovery and production of books of account and other documents, at
such place and at such time as may be specified;
(b) summoning and enforcing the attendance of persons and examining them on
oath;
(c) inspection of any book, document, register or record of any data fiduciary;
(d) issuing commissions for the examination of witnesses or documents; and
(e) any other matter which may be prescribed.
Action to be 54. (1) On receipt of a report under sub-section (2) of section 53, the Authority may,
taken by
after giving such opportunity to the data fiduciary or data processor to make a representation
Authority
pursuant to an in connection with the report as the Authority deems reasonable, by an order in writing—
inquiry.
(a) issue a warning to the data fiduciary or data processor where the business or
activity is likely to violate the provisions of this Act;
(b) issue a reprimand to the data fiduciary or data processor where the business
or activity has violated the provisions of this Act;
(c) require the data fiduciary or data processor to cease and desist from
committing or causing any violation of the provisions of this Act;
(d) require the data fiduciary or data processor to modify its business or activity
to bring it in compliance with the provisions of this Act;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 63
(e) temporarily suspend or discontinue business or activity of the data fiduciary
or data processor which is in contravention of the provisions of this Act;
(f) vary, suspend or cancel any registration granted by the Authority in case of
a significant data fiduciary;
(g) suspend or discontinue any cross-border flow of personal data; or
(h) require the data fiduciary or data processor to take any such action in respect
of any matter arising out of the report as the Authority may deems fit.
(2) A data fiduciary or data processor aggrieved by an order made under this section
may prefer an appeal to the Appellate Tribunal.
55. (1) Where in the course of inquiry under section 53, the Inquiry Officer has Search and
reasonable ground to believe that any books, registers, documents, records or data belonging seizure.
to any person as mentioned therein, are likely to be tampered with, altered, mutilated,
manufactured, falsified or destroyed, the Inquiry Officer may make an application to such
designated court, as may be notified by the Central Government, for an order for the seizure
of such books, registers, documents and records.
(2) The Inquiry Officer may require the services of any police officer or any officer of
the Central Government, or of both, to assist him for the purposes specified in
sub-section (1) and it shall be the duty of every such officer to comply with such requisition.
(3) After considering the application and hearing the Inquiry Officer, if necessary, the
designated court may, by order, authorise the Inquiry Officer—
(a) to enter, with such assistance, as may be required, the place or places where such
books, registers, documents and records are kept;
(b) to search that place or those places in the manner specified in the order; and
(c) to seize books, registers, documents and records it considers necessary for the
purposes of the inquiry.
(4)The Inquiry Officer shall keep in its custody the books, registers, documents and
records seized under this section for such period not later than the conclusion of the inquiry
as it considers necessary and thereafter shall return the same to the person, from whose
custody or power they were seized and inform the designated court of such return.
(5) Save as otherwise provided in this section, every search or seizure made under this
section shall be carried out in accordance with the provisions of the Code of Criminal
2 of 1974. Procedure, 1973 relating to searches or seizures made under that Code.
56. Where any action proposed to be taken by the Authority under this Act is such Co-ordination
that any other regulator or authority constituted under a law made by Parliament or the State between
Authority and
legislature may also have concurrent jurisdiction, the Authority shall consult such other
other
regulator or authority before taking such action and may also enter into a memorandum of regulators or
understanding with such other regulator or authority governing the coordination of such authorities.
actions.
CHAPTER X
PENALTIES AND COMPENSATION
57. (1) Where the data fiduciary contravenes any of the following provisions,— Penalties for
contravening
certain
provisions of
the Act.
(a) obligation to take prompt and appropriate action in response to a data security
breach under section 25;
(b) failure to register with the Authority under sub-section (2) of section 26,64 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(c) obligation to undertake a data protection impact assessment by a significant
data fiduciary under section 27;
(d) obligation to conduct a data audit by a significant data fiduciary under
section 29;
(e) appointment of a data protection officer by a significant data fiduciary under
section 30,
it shall be liable to a penalty which may extend to five crore rupees or two per cent. of its total
worldwide turnover of the preceding financial year, whichever is higher;
(2) Where a data fiduciary contravenes any of the following provisions,—
(a) processing of personal data in violation of the provisions of Chapter II or
Chapter III;
(b) processing of personal data of children in violation of the provisions of
Chapter IV;
(c) failure to adhere to security safeguards as per section 24; or
(d) transfer of personal data outside India in violation of the provisions of
Chapter VII,
it shall be liable to a penalty which may extend to fifteen crore rupees or four per cent. of its
total worldwide turnover of the preceding financial year, whichever is higher.
(3) For the purposes of this section,—
(a) the expression "total worldwide turnover" means the gross amount of
revenue recognised in the profit and loss account or any other equivalent statement,
as applicable, from the sale, supply or distribution of goods or services or on account
of services rendered, or both, and where such revenue is generated within India and
outside India.
(b) it is hereby clarified that total worldwide turnover in relation to a data fiduciary
is the total worldwide turnover of the data fiduciary and the total worldwide turnover
of any group entity of the data fiduciary where such turnover of a group entity arises
as a result of the processing activities of the data fiduciary, having regard to factors,
including—
(i) the alignment of the overall economic interests of the data fiduciary
and the group entity;
(ii) the relationship between the data fiduciary and the group entity
specifically in relation to the processing activity undertaken by the data fiduciary;
and
(iii) the degree of control exercised by the group entity over the data
fiduciary or vice versa, as the case may be.
(c) where of any provisions referred to in this section has been contravened by
the State, the maximum penalty shall not exceed five crore rupees under
sub-section (1), and fifteen crore rupees under sub-section (2), respectively.
Penalty for 58. Where, any data fiduciary, without any reasonable explanation, fails to comply
failure to with any request made by a data principal under Chapter V, such data fiduciary shall be liable
comply with to a penalty of five thousand rupees for each day during which such default continues,
data principal
subject to a maximum of ten lakh rupees in case of significant data fiduciaries and five lakh
requests under
Chapter V. rupees in other cases.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 65
59. If any data fiduciary, who is required under this Act, or the rules or regulations Penalty for
made thereunder, to furnish any report, return or information to the Authority, fails to furnish failure to
furnish report,
the same, then such data fiduciary shall be liable to penalty which shall be ten thousand
returns,
rupees for each day during which such default continues, subject to a maximum of twenty
information,
lakh rupees in case of significant data fiduciaries and five lakh rupees in other cases. etc.
60. If any data fiduciary or data processor fails to comply with any direction issued by Penalty for
the Authority under section 51or order issued by the Authority under section 54, such data failure to
comply with
fiduciary or data processor shall be liable to a penalty which may extend to twenty thousand
direction or
rupees for each day during which such default continues, subject to a maximum of two
order issued by
crores in case of a data processor it may extend to five thousand rupees for each day during Authority.
which such default continues, subject to a maximum of fifty lakh rupees.
61. Where any person fails to comply with any provision of this Act or the rules or Penalty for
regulations made thereunder applicable to such person, for which no separate penalty has contravention
been provided, then, such person shall be liable to a penalty which may extend to a maximum where no
separate
of one crore rupees in case of significant data fiduciaries, and a maximum of twenty five lakh
penalty has
rupees in other cases. been provided.
62. (1) For the purpose of adjudging the penalties under sections 57 to 61or awarding Appointment
compensation under section 64, the Authority shall appoint such Adjudicating Officer as of
may be prescribed. Adjudicating
Officer.
(2) The Central Government shall, having regard to the need to ensure the operational
segregation, independence, and neutrality of the adjudication under this Act, prescribe—
(a) number of Adjudicating Officers to be appointed under sub-section (1);
(b) manner and terms of appointment of Adjudicating Officers ensuring
independence of such officers;
(c) jurisdiction of Adjudicating Officers;
(d) other such requirements as the Central Government may deem fit.
(3) The Adjudicating Officers shall be persons of ability, integrity and standing, and
must have specialised knowledge of, and not less than seven years professional experience
in the fields of law, cyber and internet laws, information technology law and policy, data
protection and related subjects.
63. (1) No penalty shall be imposed under this Chapter, except after an inquiry made in Procedure for
such manner as may be prescribed, and the data fiduciary or data processor or any person, adjudication
as the case may be, has been given a reasonable opportunity of being heard: by
Adjudicating
Provided that no inquiry under this section shall be initiated except by a complaint Officer.
made by the Authority.
(2) While holding an inquiry, the Adjudicating Officer shall have the power to summon
and enforce the attendance of any person acquainted with the facts and circumstances of
the case to give evidence or to produce any document which, in the opinion of the
Adjudicating Officer, may be useful for or relevant to the subject matter of the inquiry.
(3) If, on the conclusion of such inquiry, the Adjudicating Officer is satisfied that the
person has failed to comply with the provisions of this Act or has caused harm to any data
principal as a result of any contravention of the provisions of this Act, the Adjudicating
Officer may impose such penalty specified under relevant section.
(4) While deciding whether to impose a penalty under sub-section (3) and in determining
the quantum of penalty under sections 57 to 61, the Adjudicating Officer shall have due
regard to the following factors, namely:—
(a) nature, gravity and duration of violation taking into account the nature,
scope and purpose of processing concerned;66 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) number of data principals affected, and the level of harm suffered by them;
(c) intentional or negligent character of the violation;
(d) nature of personal data impacted by the violation;
(e) repetitive nature of the default;
(f) transparency and accountability measures implemented by the data fiduciary
or data processor including adherence to any relevant code of practice relating to
security safeguards;
(g) action taken by the data fiduciary or data processor to mitigate the harm
suffered by data principals; and
(h) any other aggravating or mitigating factors relevant to the circumstances of
the case, such as, the amount of disproportionate gain or unfair advantage, wherever
quantifiable, made as a result of the default.
(5) Any person aggrieved by an order under this section by the Adjudicating Officer
may prefer an appeal to the Appellate Tribunal.
Compensation. 64. (1) Any data principal who has suffered harm as a result of any violation of any
provision under this Act or the rules or regulations made thereunder, by a data fiduciary or
a data processor, shall have the right to seek compensation from the data fiduciary or the
data processor, as the case may be.
Explanation.—For the removal of doubts, it is hereby clarified that a data processor
shall be liable only where it has acted outside or contrary to the instructions of the data
fiduciary pursuant to section 31, or where the data processor is found to have acted in a
negligent manner, or where the data processor has not incorporated adequate security
safeguards under section 24, or where it has violated any provisions of this Act expressly
applicable to it.
(2) The data principal may seek compensation under this section by making a complaint
to the Adjudicating Officer in such form and manner as may be prescribed.
(3) Where there are one or more data principals or any identifiable class of data
principals who have suffered harm as a result of any contravention by the same data fiduciary
or data processor, one complaint may be instituted on behalf of all such data principals
seeking compensation for the harm suffered.
(4) While deciding to award compensation and the amount of compensation under
this section, the Adjudicating Officer shall have regard to the following factors, namely:—
(a) nature, duration and extent of violation of the provisions of the Act, rules
prescribed, or regulations specified thereunder;
(b) nature and extent of harm suffered by the data principal;
(c) intentional or negligent character of the violation;
(d) transparency and accountability measures implemented by the data fiduciary
or the data processor, as the case may be, including adherence to any relevant code of
practice relating to security safeguards;
(e) action taken by the data fiduciary or the data processor, as the case may be,
to mitigate the damage suffered by the data principal;
(f) previous history of any, or such, violation by the data fiduciary or the data
processor, as the case may be;
(g) whether the arrangement between the data fiduciary and data processor
contains adequate transparency and accountability measures to safeguard the personal
data being processed by the data processor on behalf of the data fiduciary;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 67
(h) any other aggravating or mitigating factor relevant to the circumstances of
the case, such as, the amount of disproportionate gain or unfair advantage, wherever
quantifiable, made as a result of the default.
(5) Where more than one data fiduciary or data processor, or both a data fiduciary and
a data processor are involved in the same processing activity and are found to have caused
harm to the data principal, then, each data fiduciary or data processor may be ordered to pay
the entire compensation for the harm to ensure effective and speedy compensation to the
data principal.
(6) Where a data fiduciary or a data processor has, in accordance with sub-section (5),
paid the entire amount of compensation for the harm suffered by the data principal, such
data fiduciary or data processor shall be entitled to claim from the other data fiduciaries or
data processors, as the case may be, that amount of compensation corresponding to their
part of responsibility for the harm caused.
(7) Any person aggrieved by an order made under this section by the Adjudicating
Officer may prefer an appeal to the Appellate Tribunal.
(8) The Central Government may prescribe the procedure for hearing of a complaint
under this section.
65. No compensation awarded, or penalty imposed, under this Act shall prevent the
Compensation
award of compensation or imposition of any other penalty or punishment under this Act or or penalties
any other law for the time being in force. not to
interfere with
other
punishment.
66. (1) The amount of any penalty imposed or compensation awarded under this Act,
Recovery of
if not paid, may be recovered as if it were an arrear of land revenue. amounts.
(2) All sums realised by way of penalties under this Act shall be credited to the
Consolidated Fund of India.
CHAPTER XI
APPELLATE TRIBUNAL
67. (1) The Central Government shall, by notification, establish an Appellate
Establishment
Tribunal to— of Appellate
Tribunal.
(a) hear and dispose of any appeal from an order of the Adjudicating Officer
under sub-section (5) of section 20;
(b) hear and dispose of any appeal from an order of the Authority under
sub-section (2) of section 54;
(c) hear and dispose of any appeal from an order of the Adjudicating Officer
under sub-section (5) of section 63; and
(d) hear and dispose of any appeal from an order of an Adjudicating Officer
under sub-section (7) of section 64.
(2) The Appellate Tribunal shall consist of a Chairperson and not more than three
members to be appointed by the Central Government.
(3) The Appellate Tribunal shall be established at such place or places, as the
Central Government may, in consultation with the Chairperson of the Appellate Tribunal,
notify.
(4) Notwithstanding anything contained in sub-sections (1) to (3), where, in the opinion
of the Central Government, any existing body is competent to discharge the functions of the
Appellate Tribunal under this Act, then, the Central Government may notify such body to
act as the Appellate Tribunal under this Act.68 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Qualifications, 68. (1) A person shall not be qualified for appointment as the Chairperson or a member
appointment, of the Appellate Tribunal unless he—
term,
conditions of
service of
Members.
(a) in the case of Chairperson, is, or has been a Judge of the Supreme Court or
Chief Justice of a High Court;
(b) in the case of a member, has held the post of Secretary to the Government of
India or any equivalent post in the Central Government for a period of not less than
two years or a person who is well versed in the field of data protection, information
technology, data management, data science, data security, cyber and internet laws or
any related subject.
(2) The Central Government may prescribe the manner of appointment, term of office,
salaries and allowances, resignation, removal and the other terms and conditions of service
of the Chairperson and any member of the Appellate Tribunal.
Vacancies. 69. If, for reason other than temporary absence, any vacancy occurs in the office of
the Chairperson or a member of the Appellate Tribunal, the Central Government shall appoint
another person in accordance with the provisions of this Act and the rules prescribed to fill
the vacancy and the proceedings may be continued before the Appellate Tribunal from the
stage at which the vacancy is filled.
Staff of 70. (1) The Central Government shall provide the Appellate Tribunal with such officers
Appellate and employees as it may deem fit.
Tribunal.
(2) The officers and employees of the Appellate Tribunal shall discharge their functions
under the general superintendence of its Chairperson.
(3) The salaries and allowances and other conditions of service of such officers and
employees of the Appellate Tribunal shall be such as may be prescribed.
Distribution of 71. (1) Subject to the provisions of this Act, the jurisdiction of the Appellate Tribunal
business may be exercised by Benches thereof, which shall be constituted by the Chairperson.
amongst
Benches. (2) Where Benches of the Appellate Tribunal are constituted under sub-section (1),
the Chairperson may, from time to time, by notification, make provisions as to the distribution
of the business of the Appellate Tribunal amongst the Benches, transfer of Members between
Benches, and also provide for the matters which may be dealt with by each bench.
(3) On the application of any of the parties and after notice to the parties, and after
hearing such of them as the Chairperson may desire to be heard, or on the Chairperson's
own motion without such notice, the Chairperson of the Appellate Tribunal may transfer
any case pending before one Bench, for disposal, to any other Bench.
Appeals to 72. (1) Any person aggrieved by the decision of the Authority, may prefer an appeal
Appellate to the Appellate Tribunal within a period of thirty days from the receipt of the order appealed
Tribunal.
against, in such form, verified in such manner and be accompanied by such fee, as may be
prescribed:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of the
said period of thirty days if it is satisfied that there was sufficient cause for not filing it within
that period.
(2) On receipt of an appeal under this section, the Appellate Tribunal may, after
providing the parties to the dispute or appeal, an opportunity of being heard, pass such
orders thereon as it deems fit.
(3) The Appellate Tribunal shall send a copy of every order made by it to the parties
to the dispute or the appeal and to the Authority, as the case may be.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 69
(4) The Appellate Tribunal may, for the purpose of examining the legality or propriety
or correctness, of any decision, or order of the Authority or Adjudicating Officer referred to
in the appeal preferred under this section, on its own motion or otherwise, call for the records
relevant to disposing of such appeal or application and make such orders as it thinks fit.
73. (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Procedure and
5 of 1908. Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, powers of
Appellate
subject to the other provisions of this Act, the Appellate Tribunal shall have powers to
Tribunal.
regulate its own procedure.
(2) The Appellate Tribunal shall have, for the purposes of discharging its functions
under this Act, the same powers as are vested in a civil court under the Code of Civil
5 of 1908. Procedure, 1908, while trying a suit, in respect of the following matters, namely—
(a) summoning and enforcing the attendance of any person and examining his
on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of section 123 and section 124 of the Indian Evidence
1 of 1872. Act, 1872, requisitioning any public record or document or a copy of such record or
document, from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it, ex parte;
(h) setting aside any order of dismissal of any application for default or any
order passed by it, ex parte; and
(i) any other matter which may be prescribed.
(3) Every proceeding before the Appellate Tribunal shall be deemed to be a judicial
proceeding within the meaning of sections 193 and 228, and for the purposes of section 196
45 of 1860. of the Indian Penal Code and the Appellate Tribunal shall be deemed to be a civil court for
2 of 1974. the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
74. (1) An order passed by the Appellate Tribunal under this Act shall be executable Orders passed
by the Appellate Tribunal as a decree of civil court, and for this purpose, the Appellate by Appellate
Tribunal shall have all the powers of a civil court. Tribunal to
be executable
(2) Notwithstanding anything contained in sub-section (1), the Appellate Tribunal as a decree.
may transmit any order made by it to a civil court having local jurisdiction and such civil
court shall execute the order as if it were a decree made by that court.
5 of 1908. 75. (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 or in Appeal to
any other law, an appeal shall lie against any order of the Appellate Tribunal, not being an Supreme
interlocutory order, to the Supreme Court on any substantial question of law. Court.
(2) No appeal shall lie against any decision or order made by the Appellate Tribunal
with the consent of the parties.
(3) Every appeal under this section shall be preferred within a period of ninety days
from the date of the decision or order appealed against:
Provided that the Supreme Court may entertain the appeal after the expiry of the said
period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause
from preferring the appeal in time.70 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Right to legal 76. The applicant or appellant may either appear in person or authorise one or more
representation. legal practitioners or any of its officers to present his or its case before the Appellate
Tribunal.
Explanation.—For the purposes of this section, "legal practitioner" includes an
advocate, or an attorney and includes a pleader in practice.
Civil court not 77. No civil court shall have jurisdiction to entertain any suit or proceeding in respect
to have
of any matter which the Appellate Tribunal is empowered by or under this Act to determine
jurisdiction.
and no injunction shall be granted by any court or other authority in respect of any action
taken or to be taken in pursuance of any power conferred by or under this Act.
CHAPTER XII
FINANCE, ACCOUNTS AND AUDIT
Grants by 78. The Central Government may, after due appropriation made by Parliament by law
Central in this behalf, make to the Authority grants of such sums of money as it may think fit for the
Government.
purposes of this Act.
Data 79. (1) There shall be constituted a Fund to be called the Data Protection Authority
Protection
Fund to which the following shall be credited—
Authority of
India Funds.
(a) all Government grants, fees and charges received by the Authority under
this Act; and
(b) all sums received by the Authority from such other source as may be
decided upon by the Central Government.
(2) The Data Protection Authority Fund shall be applied for meeting—
(i) the salaries, allowances and other remuneration of the Chairperson, Members,
officers, employees, consultants and experts appointed by the Authority; and
(ii) the other expenses of the Authority in connection with the discharge of its
functions and for the purposes of this Act.
Accounts and 80. (1) The Authority shall maintain proper accounts and other relevant records and
Audit. prepare an annual statement of accounts in such form as may be prescribed in consultation
with the Comptroller and Auditor-General of India.
(2) The accounts of the Authority shall be audited by the Comptroller and
Auditor-General of India at such intervals as may be prescribed and any expenditure incurred
by him in connection with such audit shall be reimbursed to him by the Authority.
(3) The Comptroller and Auditor-General of India and any other person appointed by
him in connection with the audit of the accounts of the Authority shall have the same rights
and privileges and authority in connection with such audit as the Comptroller and
Auditor-General of India generally has in connection with the audit of the Government
accounts and, in particular, shall have the right to demand the production of books, accounts,
connected vouchers and other documents and papers, and to inspect any of the offices of
the Authority.
(4) The accounts of the Authority as certified by the Comptroller and Auditor-General
of India or any other person appointed by the Comptroller and Auditor-General of India in
this behalf together with the audit report thereon shall be forwarded annually to the
Central Government and the Central Government shall cause the same to be laid before each
House of the Parliament.
Furnishing of 81. (1) The Authority shall furnish to the Central Government at such time and in such
returns, etc., form and manner as may be prescribed or as the Central Government may direct, such
to Central
returns and statements (including statement on enforcement action taken) and such
Government.
particulars in regard to any proposed or existing programme for the promotion and
development of protection of personal data, as the Central Government from time to time,
require.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 71
(2) The Authority shall prepare once every year in such form and at such time as may
be prescribed, an annual report giving a summary of its activities during the previous year
and copies of the report shall be forwarded to the Central Government.
(3) A copy of the report prepared under sub-section (2) shall be laid, as soon as may
be after it is received, before each House of the Parliament.
(4) A copy of the report prepared under sub-section (2) shall also be made publicly
available by the Authority.
CHAPTER XIII
OFFENCES
82. (1) Any person who, knowingly or intentionally— Re-
identification
and processing
of de-
identified
personal data.
(a) re-identifies personal data which has been de-identified by a data fiduciary
or a data processor, as the case may be; or
(b) re-identifies and processes such personal data as mentioned in clause (a),
without the consent of such data fiduciary or data processor, then, such person shall be
punishable with imprisonment for a term not exceeding three years or with a fine which may
extend to two lakh rupees or both.
(2) Nothing contained in sub-section (1) shall render any such person liable to any
punishment under this section, if he proves that—
(a) the personal data belongs to the person charged with the offence under
sub-section (1); or
(b) the data principal whose personal data is in question has explicitly consented
to such re-identification or processing as per the provisions of this Act.
2 of 1974. 83. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, Offences to
an offence punishable under this Act shall be cognizable and non-bailable. be cognizable
and non-
(2) No court shall take cognizance of any offence under this Act, save on a complaint bailable.
made by the Authority.
84. (1) Where an offence under this Act has been committed by a company, every Offences by
person who, at the time the offence was committed was in charge of, and was responsible to, companies.
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.
(2) Nothing contained in sub-section (1) shall render any such person liable to any
punishment provided in this Act, if he proves that the offence was committed without his
knowledge or that he had exercised all due diligence to prevent the commission of such
offence.
(3) Notwithstanding anything contained 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 the offence and shall be liable
to be proceeded against and punished accordingly.
Explanation.—For the purpose of this section—
(a) "company" means any body corporate, and includes—
(i) a firm; and72 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(ii) an association of persons or a body of individuals whether incorporated
or not;
(b) "director" in relation to—
(i) a firm, means a partner in the firm;
(ii) an association of persons or a body of individuals, means any member
controlling affairs thereof.
Offences by 85. (1) Where it has been proved that an offence under this Act has been committed
State. by any department or authority or body of the State, by whatever name called, the head of
such department or authority or body shall be deemed to be guilty of the offence and shall
be liable to be proceeded against and punished accordingly.
(2) Nothing contained in sub-section (1) shall render any such person liable to any
punishment provided in this Act, if he proves that the offence was committed without his
knowledge or that he had exercised all due diligence to prevent the commission of such
offence.
(3) Notwithstanding anything contained in sub-section (1), where an offence under
this Act has been committed by a department of the Central or State Government, or any
authority of the State 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 officer, other than the
head of the department or authority, such officer shall also be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly.
(4) Notwithstanding anything contained in this section, the provisions of the Code of
Criminal Procedure, 1973 relating to public servants shall continue to apply. 2 of 1974.
CHAPTER XIV
MISCELLANEOUS
Power of 86. (1) The Central Government may, from time to time, issue to the Authority such
Central directions as it may think necessary in the interest of the sovereignty and integrity of India,
Government
the security of the State, friendly relations with foreign States or public order.
to issue
directions.
(2) Without prejudice to the foregoing provisions of this Act, the Authority shall, in
exercise of its powers or the performance of its functions under this Act, be bound by such
directions on questions of policy as the Central Government may give in writing to it from
time to time:
Provided that the Authority shall, as far as practicable, be given an opportunity to
express its views before any direction is given under this sub-section.
(3) The decision of the Central Government whether a question is one of policy or not
shall be final.
Members, etc., 87. The Chairperson, Members, officers and employees of the Authority and the
to be public Appellate Tribunal shall be deemed, when acting or purporting to act in pursuance of any of
servants. the provisions of this Act, to be public servants within the meaning of section 21 of the
Indian Penal Code. 45 of 1860.
Protection of 88. No suit, prosecution or other legal proceedings shall lie against the Authority or
action taken
its Chairperson, member, employee or officer for anything which is done in good faith or
in good faith.
intended to be done under this Act, or the rules prescribed, or the regulations specified
thereunder.
Exemption 89. Notwithstanding anything contained in the Income Tax Act, 1961 or any other 43 of 1961.
from tax on enactment for the time being in force relating to tax on income, profits or gains, as the case
income.
may be, the Authority shall not be liable to pay income-tax or any other tax in respect of its
income, profits or gains derived.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 73
90. The Authority may, by general or special order in writing delegate to any member Delegation.
or officer of the Authority subject to such conditions, if any, as may be specified in the order,
such of its powers and functions under this Act, except the powers under section 94, as it
may deem necessary.
91. (1) Nothing in this Act shall prevent the Central Government from framing of any Act to
policy for the digital economy, including measures for its growth, security, integrity, prevention promote
of misuse, insofar as such policy do not govern personal data. framing of
policies for
(2) The Central Government may, in consultation with the Authority, direct any data digital
economy, etc..
fiduciary or data processor to provide any personal data anonymised or other non-personal
data to enable better targeting of delivery of services or formulation of evidence-based
policies by the Central Government, in such manner as may be prescribed.
Explanation.—For the purposes of this sub-section, the expression "non-personal
data" means the data other than personal data.
(3) The Central Government shall disclose annually the directions, made by it under
sub-section (2), in such form as may be prescribed.
92. No data fiduciary shall process such biometric data as may be notified by the Bar on
Central Government, unless such processing is permitted by law. processing
certain forms
of biometric
data.
93. (1) The Central Government may, by notification, make rules to carry out the Power to
provisions of this Act. make rules.
(2) In particular, and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:—
(a) any other categories of sensitive personal data under section 15;
(b) other factors to be taken into consideration under clause (d) of
sub-section (3) of section 16;
(c) the form and manner in which an application may be made to exercise the
right under sub-section (2), and the manner of review of the order passed by the
Adjudicating Officer under sub-section (4) of section 20;
(d) the methods of voluntary identification to identify users of social media
under sub-section (3) and the identifying mark of verification of a voluntarily verified
user under sub-section (4) of section 28;
(e) the manner in which a complaint may be filed under sub-section (4) of
section 32;
(f) the entity or class of entity in a country, or international organisations to
which transfers may be permitted under clause (b) of sub-section (1) of section 34;
(g) the place of head office of the Authority under sub-section (3) of section 41;
(h) procedure to be followed by the selection committee under sub-section (3)
of section 42;
(i) the salaries and allowances payable to, and other terms and conditions of
service of the Chairperson and the Members of the Authority under sub-section (2) of
section 43;
(j) the time and place for, and the rules and procedures in regard to, transaction
of business at the meetings of the Authority under sub-section (1) of section 46;
(k) other functions of the Authority under clause (o) of sub-section (2) of
section 49;74 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(l) the procedure of issuance of a code of practice under sub-section (4), the
manner in which the Authority may review, modify or revoke a code of practice under
sub-section (7), of section 50;
(m) other matters under clause (e) of sub-section (8) of section 53, in respect of
which the Authority shall have powers;
(n) the number of Adjudicating Officers, manner and terms of their appointment,
their jurisdiction and other requirements under sub-section (2) of section 62;
(o) the manner in which the Adjudicating Officer shall conduct an inquiry under
sub-section (1) of section 63;
(p) the form and manner of making a complaint under sub-section (2), and the
procedure for hearing of a complaint under sub-section (8) of section 64;
(q) the manner of appointment, term of office, salaries and allowances,
resignation, removal and the other terms and conditions of service of the Chairperson
and any member of the Appellate Tribunal under sub-section (2) of section 68;
(r) the procedure of filling of vacancies in the Appellate Tribunal under section 69;
(s) the salaries and allowances and other conditions of service of the officers
and employees of the Appellate Tribunal under sub-section (3) of section 70;
(t) the form, manner and fee for filing an appeal or application, as the case may
be, with the Appellate Tribunal under sub-section (1) of section 72;
(u) other matters under clause (i) of sub-section (2) of section 73 in respect of
powers of the Appellate Tribunal;
(v) the form of accounts, other relevant records and annual statement of accounts
under sub-section (1), the intervals at which the accounts of the Authority shall be
audited under sub-section (2) of section 80;
(w) the time in which and the form and manner in which the returns, statements,
and particulars are to be furnished to the Central Government under sub-section (1),
and annual report under sub-section (2) of section 81;
(x) the manner in which the Central Government may issue a direction, including
the specific purposes for which data is sought under sub-section (2) and the form of
disclosure of such directions under sub-section (3) of section 91; or
( y) any other matter which is required to be, or may be, prescribed, or in respect
of which provision is to be made, by rules.
Power to 94. (1) The Authority may, by notification, make regulations consistent with this Act
make and the rules made thereunder to carry out the provisions of this Act.
regulations.
(2) In particular, and without prejudice to the generality of the foregoing power, such
regulations may provide for all or any of the following matters, namely:—
(a) information required to be provided by the data fiduciary to the data principal
in its notice under clause (n) of sub-section (1) of section 7;
(b) manner in which the personal data retained by the data fiduciary must be
deleted under sub-section (4) of section 9;
(c) the safeguards for protecting the rights of data principals under
sub-section (3) of section 14;
(d) the additional safeguards or restrictions under sub-section (2) of section 15;
(e) the manner of obtaining consent of the parent or guardian of a child under
sub-section (2), the manner of verification of age of a child under sub-section (3),SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 75
application of provision in modified form to data fiduciaries offering counselling or
child protection services under sub-section (6) of section 16;
(f) the period within which a data fiduciary must acknowledge the receipt of
request under sub-section (1), the fee to be charged under sub-section (2), the period
within which request is to be complied with under sub-section (3), and the manner and
the period within which a data principal may file a complaint under sub-section (4) of
section 21;
(g) the manner for submission of privacy by design policy under sub-section (2)
of section 22;
(h) the manner and the technical, operation, financial and other conditions for
registration of the consent manager and its compliance under sub-section (5) of
section 23;
(i) the manner of registration of significant data fiduciaries under
sub-section (2) of section 26;
(j) the circumstances or classes of data fiduciaries or processing operations
where data protection impact assessments shall be mandatory and instances where
data auditor shall be appointed under sub-section (2), and the manner in which data
protection officer shall review the data protection impact assessment and submit to
the Authority under sub-section (4) of section 27;
(k) the form and manner for maintaining the records, and any other aspect of
processing for which records shall be maintained under sub-section (1) of section 28;
(l) the other factors to be taken into consideration under clause (g) of
sub-section (2); the form and procedure for conducting audits under sub-section (3);
the manner of registration of auditors under sub-section (4); criteria on the basis of
which rating in the form of a data trust score may be assigned to a data fiduciary under
sub-section (6) of section 29;
(m) the qualification and experience of a data protection officer under
sub-section (1) of section 30;
(n) the period within which transfer of personal data shall be notified to the
Authority under sub-section (3) of section 34;
(o) the provisions of the Act and the class of research, archival or statistical
purposes which may be exempted under section 38;
(p) the remuneration, salary or allowances and other terms and conditions of
service of such officers, employees, consultants and experts under sub-section (2) of
section 48;
(q) the code of practice under sub-section (1) of section 50;
(r) the form and manner for providing information to the Authority by the data
fiduciary under sub-section (3) of section 52;
(s) any other matter which is required to be, or may be specified, or in respect of
which provision is to be or may be made by regulations.
95. Every rule and regulation made under this Act and notification issued under Rules and
sub-section (4) of section 67 shall be laid, as soon as may be after it is made, before each House regulations to
of Parliament, while it is in session, for a total period of thirty days which may be comprised in be laid before
Parliament.
one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or regulation or notification or both Houses agree that the
rule or regulation or notification should not be made, the rule or regulation or notification shall
thereafter have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule or regulation or notification.76 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Overriding 96. Save as otherwise provided in this Act, the provisions of this Act shall have effect
effect of this notwithstanding anything inconsistent therewith any other law for the time being in force or
Act.
any instrument having effect by virtue of any law other than this Act.
Power to 97. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central
remove Government may, by order, published in the Official Gazette, make such provisions not
difficulties.
inconsistent with the provisions of this Act as may appear to be necessary or expedient for
removing the difficulty:
Provided that no such order shall be made under this section after the expiry of five
years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made,
before each House of Parliament.
Amendment 98. The Information Technology Act, 2000 shall be amended in the manner specified
of Act 21 of in the Schedule to this Act.
2000.
THE SCHEDULE
(See section 98)
AMENDMENTS TO THE INFORMATION TECHNOLOGY ACT, 2000
(21 OF 2000)
Omission of 1. Section 43A of the Information Technology Act, 2000 (hereafter in this Schedule
section 43A. referred to as the principal Act) shall be omitted.
Amendment 2. In section 87 of the principal Act, in sub-section (2), clause (ob) shall be omitted.
of section 87.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 77
STATEMENT OF OBJECTS AND REASONS
In the matter of Justice K.S. Puttaswami and another Vs. Union of India [WP 494 of
2012], a nine Judge Constitutional Bench of the Supreme Court, while delivering its judgment
on 24th August, 2017, declared "privacy" as a fundamental right under article 21 of the
Constitution. Subsequently, on 26th September, 2018, a five Judge Constitutional Bench of
the Supreme Court while delivering its final judgment in the above case impressed upon the
Government to bring out a robust data protection regime.
2. The Government on 31st July, 2017 constituted a "Committee of Experts on Data
Protection" chaired by Justice B.N. Srikrishna to examine the issues relating to data protection.
The said Committee examined the issues on data protection and submitted its Report on 27th
July, 2018. On the basis of the recommendations made in the said Report and the suggestions
received from various stakeholders, it is proposed to enact a legislation, namely, the Personal
Data Protection Bill, 2019.
3. The proposed Legislation seeks to bring a strong and robust data protection
framework for India and to set up an Authority for protecting personal data and empowering
the citizens' with rights relating to their personal data ensuring their fundamental right to
"privacy and protection of personal data".
4. The salient features of the Data Protection Bill, 2019, inter alia, are as under—
(i) to promote the concepts such as consent framework, purpose limitation,
storage limitation and the data minimisation;
(ii) to lay down obligations on entities collecting personal data (data fiduciary)
to collect only that data which is required for a specific purpose and with the express
consent of the individual (data principal);
(iii) to confer rights on the individual to obtain personal data, correct inaccurate
data, erase data, update the data, port the data to other fiduciaries and the right to
restrict or prevent the disclosure of personal data;
(iv) to establish an Authority to be called the "Data Protection Authority of
India" (the Authority) which shall consist of a Chairperson and not more than six
whole-time Members to be appointed by the Central Government;
(v) to provide that the Authority shall protect the interests of data principals,
prevent any misuse of personal data, ensure compliance with the provisions of the
proposed legislation and promote awareness about the data protection;
(vi) to specify a provision relating to "social media intermediary" whose actions
have significant impact on electoral democracy, security of the State, public order or
the sovereignty and integrity of India and to empower the Central Government, in
consultation with the Authority, to notify the said intermediary as a significant data
fiduciary;
(vii) to confer a "right of grievance" on data principal to make a complaint
against the grievance to the data fiduciary and if aggrieved by the decision of such
data fiduciary, he may approach the Authority;
(viii) to empower the Central Government to exempt any agency of Government
from application of the proposed Legislation;
(ix) to empower the Authority to specify the "code of practice" to promote good
practices of data protection and facilitate compliance with the obligations under this
legislation;
(x) to appoint the "Adjudicating Officer" for the purpose of adjudging the
penalties to be imposed and the compensation to be awarded under the provisions of
this legislation;78 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(xi) to establish an "Appellate Tribunal" to hear and dispose of any appeal from
an order of the Authority under clause 54 and the Adjudicating Officer under
clauses 63 and 64; and
(xii) to impose "fines and penalties" for contravention of the provisions of the
proposed legislation.
5. The Notes on Clauses explain in detail the various provisions contained in the Bill.
6. The Bill seeks to achieve the above objectives.
NEW DELHI; RAVI SHANKAR PRASAD.
The 5th December, 2019.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 79
Notes on Clauses
Clause 1.—This clause seeks to provide for short title and commencement of the Act.
Clause 2.—This clause seeks to clarify the application of the Act with regard to
personal data of Indians and save for clause 91 would not be applicable to processing of
anonymised data.
Clause 3.—This clause seeks to define certain expressions occurring in the Act.
Clause 4.—This clause seeks to prohibit processing of personal data without any
specific, clear and lawful purpose.
Clause 5.—This clause seeks to limit the processing of personal data to the purpose
consented to by the data principal or which is incidental or connected thereto.
Clause 6.—This clause seeks to lay down limitation on collection of personal data
specifying that it should be only to the extent that is necessary.
Clause 7.—This clause seeks to lay down the requirement of notice for collection or
processing of personal data and lists the various types of information that should be contained
in the notice given to the data principal.
Clause 8.—This clause seeks to lay down that the data fiduciary should ensure the
quality of the personal data processed.
Clause 9.—This clause seeks to lay down restriction on retention of personal data
beyond what is necessary.
Clause 10.—This clause seeks to lay down the responsibility for complying with the
provisions of this Act on the data fiduciary.
Clause 11.—This clause seeks to expound the various aspects of consent which are
necessary for processing of personal data.
Clause 12.—This clause seeks to list out certain cases which provide for processing
of personal data without consent.
Clause 13.—This clause seeks to provide for processing of personal data necessary
for purposes related to employment.
Clause 14.—This clause seeks to provide for other reasonable purposes for which
personal data may be processed.
Clause 15.—This clause seeks to provide for categorisation of personal data as
sensitive personal data and lists out criteria for such categorisation.
Clause 16.—This clause seeks to provide for obligations on data fiduciaries who
processed personal data of children.
Clause 17.—This clause seeks to provide the data principal with the right to
confirmation and access to his personal data.
Clause 18.—This clause seeks to provide the data principal with a right to correct and
erase his personal data.
Clause 19.—This clause seeks to provide the data principal the right to port personal
data to any data fiduciary.
Clause 20.—This clause seeks to provide the data principal the right to be forgotten.
Clause 21.—This clause seeks to lay down the general conditions for the exercise of
the rights in clauses 17 to 20.
Clause 22.—This clause seeks to list out the constituents of privacy by design policy.80 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Clause 23.—This clause seeks to require transparency in processing of personal data
by requiring the fiduciary to inform the data principal and making information available.
Clause 24.—This clause seeks to require the data fiduciary to implement necessary
security safeguards.
Clause 25.—This clause seeks to require the data fiduciary to report to the Authority
about breach of any personal data.
Clause 26.—This clause seeks to provide for classification of certain data fiduciaries
as significant data fiduciaries including certain social media intermediaries.
Clause 27.—This clause seeks to require significant data fiduciaries to undertake data
protection impact assessment.
Clause 28.—This clause seeks to require significant data fiduciaries to maintain accurate
and up-to-date records, including requiring significant social media intermediaries to provide
for voluntary verification mechanism.
Clause 29.—This clause seeks to require significant data fiduciaries to have their
policies and conduct audited by data auditors.
Clause 30.—This clause seeks to require significant data fiduciaries to appoint a Data
Protection Officer.
Clause 31.—This clause seeks to require data fiduciaries to ensure a contract for
processing by other data processors.
Clause 32.—This clause seeks to require every data fiduciary to have a grievance
redressal mechanism.
Clause 33.—This clause seeks to prohibit processing of sensitive personal data and
critical personal data outside India.
Clause 34.—This clause seeks to list out conditions under which sensitive personal
data and critical personal data could be transferred outside India.
Clause 35.—This clause seeks to empower the Central Government to exempt any
agency of the Government from application of the Act.
Clause 36.—This clause seeks to provide for exemption of certain provisions of the
Act for certain processing of personal data.
Clause 37.—This clause seeks to clarify that the Government could exempt certain
data processors who are processing data of foreigners, from the application of this Act.
Clause 38.—This clause seeks to provide for exemption when personal data is
processed for research, archival or statistical purposes.
Clause 39.—This clause seeks to provide for exemption for small entities who are
engaged in manual processing of personal data.
Clause 40.—This clause seeks to provide for a Sandbox which can facilitate new ideas
and approaches without any regulatory violations.
Clause 41.—This clause seeks to establish a regulator namely the Data Protection
Authority of India (the Authority).
Clause 42.—This clause seeks to lift the compositions and qualifications for
appointment of Chairperson and Members of the Authority and their method of selection.
Clause 43.—This clause seeks to list the terms and conditions of appointment for the
Chairperson and Members of the Authority.
Clause 44.—This clause seeks to list the conditions under which a Chairperson or
other Members of the Authority can be removed.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 81
Clause 45.—This clause seeks to lay down that the powers of the Authority rests with
the Chairperson.
Clause 46.—This clause seeks to provide for the matters relating to meetings of the
Authority.
Clause 47.—This clause seeks to provide that the proceedings of the Authority would
not be invalidated due to vacancy, procedural irregularity, etc.
Clause 48.—This clause seeks to empower the Authority to appoint officers and other
employees.
Clause 49.—This clause seeks to list the powers and functions of the Authority.
Clause 50.—This clause seeks to require the Authority to specify codes of practice to
promote good practices of data protection.
Clause 51.—This clause seeks to empower the Authority to issue directions to any
data fiduciary for the discharge of its functions.
Clause 52.—This clause seeks to empower the Authority to call for information from
any data fiduciary.
Clause 53.—This clause seeks to empower the Authority to conduct an inquiry into
the affairs of a data fiduciary.
Clause 54.— This clause seeks to list out various actions that can be taken by the
Authority pursuant to an inquiry.
Clause 55.—This clause seeks to empower the Inquiry Officer of the Authority to
order for search and seizure of documents, records, etc.
Clause 56.—This clause seeks to provide for coordination between the Authority and
other regulators.
Clause 57.—This clause seeks to list out penalties for contravening certain provisions
of the Act.
Clause 58.—This clause seeks to list out penalties for failure to comply with request
made by data principal.
Clause 59.—This clause seeks to list out penalty for failure of the data fiduciary to
furnish report, return, information to the Authority.
Clause 60.—This clause seeks to list out penalty for failure of the data fiduciary to
comply with direction or order issued by the Authority.
Clause 61.—This clause seeks to list out penalty for contravention of any provision
of this Act or rules or regulations made thereunder, for which no separate penalty has been
provided.
Clause 62.—This clause seeks to provide for appointment of Adjudicating Officer for
adjudging penalties.
Clause 63.—This clause seeks to lay down the procedure for adjudication by
Adjudicating Officer.
Clause 64.—This clause seeks to provide for data principal's right to seek compensation
from the data fiduciary in case of suffering harm.
Clause 65.—This clause seeks to ensure that compensation or penalties under this
Act would not interfere with any other penalty or punishment.
Clause 66.—This clause seeks to lay down that penalties or compensation awarded
under this Act may be recovered as arrear of land revenue.82 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Clause 67.—This clause seeks to lay down provisions relating to establishment of
Appellate Tribunal.
Clause 68.—This clause seeks to list out qualifications, appointment, term, conditions
of service of Chairperson and Members of Appellate Tribunal.
Clause 69.—This clause seeks to provide for filling up vacancies in the office of
Chairperson and Members of Appellate Tribunal.
Clause 70.—This clause seeks to provide for staffing of Appellate Tribunal.
Clause 71.—This clause seeks to provide for distribution of business to different
benches of the Appellate Tribunal.
Clause 72.—This clause seeks to provide for appeal to the Appellate Tribunal against
any decision of the Authority.
Clause 73.—This clause seeks to lay down the procedure and powers of the Appellate
Tribunal.
Clause 74.—This clause seeks to provide that the Appellate Tribunal shall have all
the powers of a civil court.
Clause 75.—This clause seeks to provide for an appeal to the Supreme Court against
any order of the Appellate Tribunal.
Clause 76.—This clause seeks to provide for the applicant or appellant to appear in
person or authorise legal representative.
Clause 77.—This clause seeks to lay down that no civil court would have jurisdiction
to entertain any suit on any matter which falls within the ambit of Appellate Tribunal.
Clause 78.—This clause seeks to provide for the Central Government to make grants
to the Authority.
Clause 79. —This clause seeks to provide for constitution of the Data Protection
Authority Fund.
Clause 80.—This clause seeks to require the Authority to maintain proper accounts
which are to be audited by the Comptroller and Auditor-General of India.
Clause 81.—This clause seeks to require the Authority to furnish returns, statements,
etc., to the Central Government.
Clause 82.—This clause seeks to list out punishment for the offence of reidentifying
of deidentified personal data.
Clause 83.—This clause seeks to lays out that offence in clause 82 to be cognizable
and non-bailable.
Clause 84.—This clause seeks to list out provisions relating to commission of offence
by companies.
Clause 85.—This clause seeks to list out provisions relating to commission of offence
by any State Government or Central Government Department or agency.
Clause 86.—This clause seeks to empower the Central Government to issue directions
to the Authority.
Clause 87.—This clause seeks to deem Members, officers, etc., of the Authority to be
public servants when acting pursuant to any provisions of the Act.
Clause 88.—This clause seeks to protect the Authority, Member, employee in case of
action done under this Act in good faith.
Clause 89.—This clause seeks to exempts Authority from tax on income in respect of
its income, profits.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 83
Clause 90.—This clause seeks to empower the Authority to delegate its powers or
functions to any Member or officer.
Clause 91.—This clause seeks to empower the Central Government to frame policies
for digital economy in respect of non-personal data.
Clause 92.—This clause seeks to ban processing of certain forms of biometric data
unless permitted by law.
Clause 93.—This clause seeks to empowers the Central Government to make rules to
carry out the provisions of the Act.
Clause 94.—This clause seeks to empowers the Authority to make regulations
consistent with the Act and rules made thereunder.
Clause 95.—This clause seeks to require that rules and regulations made under this
Act are to be laid before the Parliament.
Clause 96.—This clause seeks to provide for the overriding effect of this Act
notwithstanding anything inconsistent with any other law.
Clause 97.—This clause seeks to provide for power of Central Government to remove
difficulties.
Clause 98.—This clause seeks to provide for related amendments to the Informations
Technology Act, 2000.84 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
FINANCIAL MEMORANDUM
Sub-clause (2) of clause 43 provides for the payment of salaries and allowances to
the Chairperson, Members of the Authority.
2. Sub-clause (2) of clause 48 provides for the payment of salaries and allowances
to the officers and employees of the Authority.
3. Sub-clause (2) of clause 68 provides for the payment of salaries and allowances
to the Chairperson and Members of the Appellate Tribunal.
4. Sub-clause (3) of clause 70 provides for the payment of salaries and allowances
to the officers and employees of the Appellate Tribunal.
5. For the aforesaid provisions, it would involve an expenditure of (recurring or
non-recurring) one hundred crore rupees from the Consolidated Fund of India.
————
MEMORANDUM REGARDING DELEGATED LEGISLATION
Clause 93 of the Personal Data Protection Bill 2019 seeks to empower the
Central Government to make rules for—(a) categorization of sensitive personal data under
section 15; (b) verification of the age of child under sub-section (3) of section (3); (c) the
form and manner in which an application to enforce the right to be forgotten can be exercised
under sub-section (2) of section 20 and the manner of review of order passed by the
Adjudicating Officer under sub-section (4) of section 20; (d) the methods of voluntary
identification to identify users of social media under sub-section (3) and the identifying
mark of verification of a voluntarily verified user under sub-section (4) of section 28; (e) the
manner in which a complaint regarding grievance redressal may be filed under sub-section
(4) of section 32 ; (f) the entity or class of entity in a country, or international organisations
to which transfers may be permitted under clause (b) of sub-section (1) of section 34; (g) the
place of head office of the Authority under sub-section (3) of section 41; (h) procedure to be
followed by the Selection Committee under sub-section (3) of section 42; (i) the salaries and
allowances payable to, and other terms and conditions of service of the Chairperson and the
Members of the Authority under sub-section (2) of section 43; (j) the procedure for conducting
any inquiry under sub-section (2) of section 44; (k) the time and place for, and the rules and
procedures in regard to, transaction of business at the meetings of the Authority under
sub-section (1) of section 46; (l) other functions of the Authority under clause (o) of
sub-section (2) of section 49; (m) the procedure of issuance of a code of practice under
sub-section (4), the manner in which the Authority may review, modify or revoke a code of
practice under sub-section (7), of section 50; (n) other matters under clause (e) of
sub-section (8) of section 53 in respect of which the Authority shall have powers; (o) the
number of Adjudicating Officers, manner and terms of their appointment, their jurisdiction
and other requirements under sub-section (2) of section 62; (p) the manner in which the
Adjudicating Officer shall conduct an inquiry under sub-section (1) of section 63; (q) the
form and manner of making a complaint under sub-section (2), and the procedure for hearing
of a complaint under sub-section (8) of section 64; (r) the manner of appointment, term of
office, salaries and allowances, resignation, removal and the other terms and conditions of
service of the Chairperson and any member of the Appellate Tribunal under sub-section (2)
of section 68; (s) the procedure of filling of vacancies in the Appellate Tribunal under
section 69; (t) the salaries and allowances and other conditions of service of the officers and
employees of the Appellate Tribunal under sub-section (3) of section 70; (u) the form,SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 85
manner and fee for filing an appeal or application, as the case may be, with the Appellate
Tribunal under sub-section (1) of section 72; (v) other matters under clause (i) of sub-
section (2) of section 73 in respect of powers of the Appellate Tribunal; (w) the form of
accounts, other relevant records and annual statement of accounts under sub-section (1),
the intervals at which the accounts of the Authority shall be audited under sub-section (2)
of section 80; (x) the time in which and the form and manner in which the returns, statements,
and particulars are to be furnished to the Central Government under sub-section (1) and
annual report under sub-section (2) of section 81; (y) the manner in which the Central
Government may issue a direction, including the specific purposes for which data is sought
under sub-section (2) and the form of disclosure of such directions under sub-section (3) of
section 91; (z) any other matter which is required to be, or may be, prescribed, or in respect
of which provision is to be made, by rules.
2. Clause 94 of the Bill empowers the Authority, with the previous approval of the
Central Government, by notification, to make regulations consistent with the provisions of
the Act and the rules made thereunder to provide for—(a) information required to be provided
by the data fiduciary to the data principal in its notice under clause (n) of sub-section (1) of
section 7; (b) manner in which the personal data retained by the data fiduciary must be
deleted under sub-section (4) of section 9; (c) the safeguards for protecting the rights of
data principals under sub-section (3) of section 14; (d) the additional safeguards or restrictions
under sub-section (2) of section 15; (e) the manner of obtaining consent of the parent or
guardian of a child under sub-section (2), the manner of verification of age of a child under
sub-section (3), application of provision in modified form to data fiduciaries offering
counselling or child protection services under sub-section (6) of section 16; (f) the period
within which a data fiduciary must acknowledge the receipt of request under sub-section
(1), the fee to be charged under sub-section (2), the period within which request is to be
complied with under sub-section (3), and the manner and the period within which a data
principal may file a complaint under sub-section (4) of section 21; (g) the manner for
submission of privacy by design policy under sub-section (2) of section 22; (h) the manner
and the technical, operation, financial and other conditions for registration of the consent
manager and its compliance under sub-section (5) of section 23; (i) the manner of registration
of significant data fiduciaries under sub-section (2) of section 26; (j) the circumstances or
classes of data fiduciaries or processing operations where data protection impact assessments
shall be mandatory and instances where data auditor shall be appointed under sub-section (2),
and the manner in which data protection officer shall review the data protection impact
assessment and submit to the Authority under sub-section (4) of section 27; (k) the form
and manner for maintaining the records, and any other aspect of processing for which
records shall be maintained under sub-section (1) of section 28; (l) the other factors to be
taken into consideration under clause (g) of sub-section (2); the form and procedure for
conducting audits under sub-section (3); the manner of registration of auditors under
sub-section (4); criteria on the basis of which rating in the form of a data trust score may be
assigned to a data fiduciary under sub-section (6) of section 29; (m) the qualification and
experience of a data protection officer under sub-section (1) of section 30; (n) the period
within which transfer of personal data shall be notified to the Authority under sub-section (3)
of section 34; (o) the provisions of the Act and the class of research, archival or statistical
purposes which may be exempted under section 38; (p) the remuneration, salary or allowances
and other terms and conditions of service of such officers, employees, consultants and
experts under sub-section (2) of section 48; (q) the code of practice under sub-section (1) of
section 50; (r) the form and manner for providing information to the Authority by the data
fiduciary under sub-section (3) of section 52; and (s) any other matter which is required to86 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
be, or may be specified, or in respect of which provision is to be or may be made by
regulations.
3. The matters in respect of which the aforementioned rules and regulations may be
made are matters of procedure and administrative detail, and as such, it is not practicable to
provide for them in the proposed Bill itself. The delegation of legislative power is, therefore,
of a normal character.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 87
BILL NO. 375 OF 2019
A Bill to amend and consolidate the laws relating to social security of the employees
and the matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Code on Social Security, 2019. Short title,
extent,
(2) It extends to the whole of India. commencement
and
(3) It shall come into force on such date as the Central Government may, by notification
application.
in the Official Gazette, appoint; and different dates may be appointed for different provisions
of this Code and any reference in any such provision to the commencement of this Code
shall be construed as a reference to the coming into force of that provision.88 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) The applicability of the Chapters specified in columns (1) and (2) of the First
Schedule shall, without prejudice to the applicability of the other provisions of this Code, be
such as is specified in corresponding entry in column (3) of that Schedule.
(5) Notwithstanding anything contained in sub-section (4), where it appears to the
Central Provident Fund Commissioner, whether on an application made to him by the employer
of an establishment or otherwise, that the employer and majority of employees of that
establishment have agreed that the provisions of Chapter III should be made applicable to
that establishment, the Central Provident Fund Commissioner, may, by notification, apply
the provisions of the said Chapter to that establishment on and from the date of such
agreement or from any subsequent date specified in the agreement.
(6) Notwithstanding anything contained in sub-section (4), where it appears to the
Director General of the Corporation, whether on an application made to him by the employer
of an establishment or otherwise, that the employer and majority of employees of that
establishment have agreed that the provisions of Chapter IV should be made applicable to
that establishment, the Director General of the Corporation, may, by notification, apply the
provisions of the said Chapter to that establishment on and from the date of such agreement
or from any subsequent date specified in the agreement.
(7) Notwithstanding anything contained in sub-section (4), an establishment to which
any Chapter applies at the first instance shall continue to be applied thereafter even if the
number of employees therein at any subsequent time falls below the threshold specified in
the First Schedule in respect of that Chapter.
Definitions. 2. In this Code, unless the context otherwise requires,—
(1) "agent" when used in relation to an establishment, means every person,
whether appointed as such or not, who acting or purporting to act on behalf of the
owner, takes part in the management, control, supervision or direction of such
establishment or part thereof;
(2) "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;
(3) "appropriate Government" means—
(a) in relation to, an establishment carried on by or under the authority of
the Central Government or the establishment of railways, mines, oilfield, major
ports, air transport service, telecommunication, banking and insurance company
or a corporation or other authority established by a Central Act or a central
public sector undertaking or subsidiary companies set up by central public
sector undertakings or autonomous bodies owned or controlled by the Central
Government, including establishment of contractors for the purposes of such
establishment, corporation or other authority, central public sector undertakings,
subsidiary companies or autonomous bodies or in relation to an establishment
having departments or branches in more than one State, as the case may be, the
Central Government; and
(b) in relation to any other establishment, the State Government;
(4) "audio-visual production" means audio-visual produced wholly or partly in
India including animation, cartoon depiction and audio-visual advertisement including
digital production or any of the activities in respect of making thereof;
(5) "Authorised Officer" means such officer of the Central Board, or as the case
may be, of the Corporation notified by the Central Government;
(6) "building or other construction work" means the construction, alteration,
repair, 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), oilSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 89
and gas installations, electric lines, internet towers, wireless, radio, television, telephone,
telegraph and overseas communications, dams, canals, reservoirs, watercourses,
tunnels, bridges, viaducts, aqua-ducts, 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 of any factory or mine or any building or other construction work employing less
than ten workers or any building or other construction work related to own residential
property not employing the workers more than such number as may be notified by the
Central Government from time to time;
(7) "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;
(8) "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 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—
(i) persons who seek to employ employees;
(ii) persons who seek employment;
(iii) occurrence of vacancies; and
(iv) persons who seek vocational guidance and career counseling or guidance
to start self-employment;
(9) "Central Board" means the Board of Trustees of the Employees' Provident
Fund constituted under section 4;
(10) "Central Provident Fund Commissioner" means the Central Provident Fund
Commissioner of the Central Board appointed under sub-section (1) of section 14;
(11) "child", for the purposes of Chapter VI, includes a stillborn child;
(12) "Commissioning mother" means a biological mother who uses her egg to
create an embryo implanted in any other woman;
(13) "company" means a company as defined in clause (20) of section 2 of the
18 of 2013. Companies Act, 2013;
(14) "compensation" means compensation as provided under Chapter VII;
(15) "competent authority" means any authority notified under this Code as
competent authority for the purposes of Chapters V, VI and VII and the provisions of
this Code relating to those Chapters;
(16) "completed year of service" means continuous service for twelve months;
(17) "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;
(18) "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
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 other90 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
welfare benefits in accordance with the law for the time being in force in such
employment;
(19) "contractor", in relation to an establishment means a person, who—
(i) 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
(ii) supplies contract labour for any work of the establishment as mere
human resource and includes a sub-contractor;
(20) "contribution" means the sum of money payable by the employer, under
this Code, to the Central Board and to the Corporation, as the case may be, and
includes any amount payable by or on behalf of the employee in accordance with the
provisions of this Code;
(21) "contribution period" in relation to an employee, means the period not
exceeding one calendar month in respect of which wages are ordinarily payable to him
whether in terms of the contract of employment, express or implied or otherwise;
(22) "Corporation" means the Employees' State Insurance Corporation
constituted under section 5;
(23) "delivery" means the birth of a child;
(24) "dependant" means any of the following relatives of deceased employee,
namely:—
(a) a widow, a minor legitimate or adopted son, an unmarried legitimate or
adopted daughter or a widowed mother;
(b) if wholly dependant on the earnings of the employee at the time of his
death, a 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";
(c) if wholly or in part dependant 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.—For the purposes of sub-clause (b) and items (vii)
and (viii) of sub-clause (c), references to a son, daughter or child include
an adopted son, daughter or child respectively;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 91
(25) "dock work" means any work in or within the vicinity of any port in
connection with, or required for, or incidental to, the loading, unloading, movement or
storage of cargoes into or from ship or other vessel, port, dock, storage place or
landing place, and includes—
(i) work in connection with the preparation of ships or other vessels for
receipt or discharge of cargoes or leaving port;
(ii) all repairing and maintenance processes connected with any hold,
tank structure or lifting machinery or any other storage area on board the ship or
in the docks; and
(iii) chipping, painting or cleaning of any hold, tank, structure or lifting
machinery or any other storage area in board the ship or in the docks;
(26) "employee" means any person (other than an apprentice engaged under
52 of 1961. the Apprentices Act, 1961) employed on wages by an establishment to do any skilled,
semi-skilled or unskilled, manual, operational, supervisory, managerial, administrative,
technical or clerical work for hire or reward, 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 for Chapter III and Chapter IV, the term "employee"
shall mean only such employee drawing wages less than or equal to the wage ceiling
notified by the Central Government, respectively, for said Chapters and such other
persons or class of persons as the Central Government may, by notification specify to
be employee for the purposes of either of such Chapters, or both:
Provided further 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;
(27) "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,—
(a) in relation to an establishment which is a factory, the occupier of the
factory;
(b) 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;
(c) 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;
(d) contractor; and
(e) legal representative of a deceased employer;
(28) "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, being an insurable employment only for the purposes of
Chapter IV, whether the accident occurs or the occupational disease is contracted
within or outside the territorial limits of India;92 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(29) "establishment" means—
(a) a place where any industry, trade, business, manufacture or occupation
is carried on; or
(b) a factory, motor transport undertaking, newspaper establishment,
audio-visual production, building and other construction work or plantation;
(c) a mine or dock work;
(30) "executive officer" means such officer of the appropriate Government as
may be notified by that Government for the purposes of Chapter XIII or an officer
authorised in writing by such executive officer to discharge his duties under that
Chapter;
(31) "exempted employee" for the purpose 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;
(32) "factory" means any premises including the precincts thereof—
(a) 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
(b) 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 I.—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;
Explanation II.—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;
(33) "family" means all or any of the following relatives of an employee or an
unorganised worker, as the case may be, namely:—
(a) a spouse;
(b) a minor legitimate or adopted child dependant upon the employee or
an unorganised worker, as the case may be;
(c) a child who is wholly dependant on the earnings of the employee or an
unorganised worker, as the case may be, and who is—
(i) receiving education, till he attains the age of twenty-one years;
and
(ii) an unmarried daughter;
(d) a child who is infirm by reason of any physical or mental abnormality
or injury and is wholly dependant on the earnings of the employee or an
unorganised worker, as the case may be, so long as the infirmity continues;
(e) dependant 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;
(f) 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
dependant upon the earnings of the insured person;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 93
(34) "fixed term employment" means the engagement of an employee on the
basis of a written contract of employment for a fixed period:
Provided that—
(a) 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
(b) he shall be eligible for all benefits under law 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;
(35) "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;
(36) "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;
(37) "Inspector-cum-Facilitator" means an Inspector-cum-Facilitator appointed
under section 122;
(38) "Inter-State migrant worker" means any person who is recruited by—
(i) an employer in one State for employment in his establishment situated
in another State; or
(ii) through a contractor in one State for employment in an establishment
in another State,
under an agreement or other arrangement for such employment and draws wages not
exceeding the amount notified by the Central Government from time to time;
(39) "major port" has the meaning assigned to it in clause (8) of section 3 of the
Indian Ports Act, 1908;
15 of 1908.
(40) "manufacturing process" means any process for—
(i) making, altering, repairing, ornamenting, finishing, packing, 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
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) 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
(v) constructing, reconstructing, repairing, refitting, finishing or breaking
upships or vessels; or
(vi) preserving or storing any article in cold storage; or
(vii) such other processes as the Central Government may notify;
(41) "medical practitioner" means a person registered under any law for the time
being in force, or any person declared by the State Government, by notification, to be
qualified as medical practitioner for the purposes of this Code:94 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided that different class or classes of medical practitioner having specific
qualification may be notified by the Central Government for the purpose of Chapter IV
and by the appropriate Government for other Chapters of this Code;
(42) "medical termination of pregnancy" means the termination of pregnancy
permissible under the provisions of the Medical Termination of Pregnancy Act, 1971; 34 of 1971.
(43) "mine" has the meaning assigned to it in clause (j) of sub-section (1) of
section 2 of the Mines Act, 1952; 35 of 1952.
(44) "minor" means a person who has not attained the age of eighteen years;
(45) "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; 45 of 1860.
(46) "motor transport worker" means a person who is employed in a motor
transport undertaking directly or through an agency, whether for wages or not, to
work in a professional capacity on a transport vehicle or to attend the duties in
connection with the arrival, departure, loading or unloading of such transport vehicle
and includes a driver, conductor, cleaner, station staff, line checking staff, booking
clerk, cash clerk, depot clerk, time-keeper, watchman or attendant, but does not include
any such person—
(i) who is employed in a factory;
(ii) to whom the provisions of any law for the time being in force regulating
the conditions of service of persons employed in shops or commercial
establishments apply;
(47) "notification" means a notification published in the Gazette of India or the
Official Gazette of a State, as the case may be, and the expression "notify" with its
grammatical variations and cognate expressions shall be construed accordingly;
(48) "occupational disease" means a disease specified in the Third Schedule as
a disease peculiar to the employment of the employee;
(49) "occupier" in respect of a factory means the 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 thereof;
(b) 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; 18 of 2013.
(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 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;
(50) "oilfield" has the meaning assigned to it in clause (e) of section 3 of the
Oilfields (Regulation and Development) Act, 1948; 53 of 1948.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 95
(51) "organised sector" means an enterprise which is not an unorganised sector;
(52) "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;
(53) "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
per cent.;
(54) "plantation" means—
(a) any land used or intended to be used for—
(i) growing tea, coffee, rubber, cinchona or cardamom which
admeasures five hectares or more;
(ii) growing any other plant, which admeasures five hectares or
more and in which ten or more persons are employed or were employed on
any day of the preceding twelve months, if, after obtaining the approval
of the Central Government, the State Government, by notification, so
directs.
Explanation.—Where any piece of land used for growing any plant referred
to in this sub-clause admeasures less than five hectares and is contiguous to
any other piece of land not being so used, but capable of being so used, and
both such pieces of land are under the management of the same employer, then,
for the purposes of this sub-clause, the piece of land first mentioned shall be
deemed to be a plantation, if the total area of both such pieces of land admeasures
five hectares or more;
(b) any land which the State Government may, by notification, declare and
which is used or intended to be used for growing any plant referred to in sub-
clause (a), notwithstanding that it admeasures less than five hectares:
Provided that no such declaration shall be made in respect of such land
which admeasures less than five hectares immediately before the commencement
of this Code; and
(c) offices, hospitals, dispensaries, schools and any other premises used
for any purpose connected with any plantation within the meaning of sub-
clause (a) and sub-clause (b); but does not include factory on the premises;
(55) "platform work" means a form of employment in which organisations or
individuals use an online platform to access other organisations or individuals to
solve specific problems or to provide specific services in exchange for payment;
(56) "platform worker" means a person engaged in or undertaking platform
work;
(57) "port" has the meaning assigned to it in clause (4) of section 3 of the Indian
15 of 1908. Ports Act, 1908;
(58) "prescribed" means prescribed by rules made under this Code;
(59)"railway" has the meaning assigned to it in clause (31) of section 2 of the
24 of 1989. Railways Act, 1989;96 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(60) "railway company" includes any persons whether incorporated or not,
who are owners or lessees of a railway or parties to an agreement for working a
railway;
(61) "Recovery Officer" means any officer of the Central Government, State
Government, Central Board or the Corporation, who may be authorised by the Central
Government or the State Government, as the case may be, by notification, to discharge
the functions and to exercise the powers of a Recovery Officer under this Code;
(62) "regulations" means regulations made by the Corporation under this
Code;
(63) "retirement" means termination of the service of an employee otherwise
than on superannuation;
(64) "sales promotion employees" means the sales promotion employees as
defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of
Service) Act, 1976; 11 of 1976.
(65) "Schedule" means a Schedule to this Code;
(66) "seamen" means any person forming part of the crew of any ship, but does
not include the master of the ship;
(67) " 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;
(68) 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;
(69) "shop", in respect of a State, means a shop as defined in any law for the
time being in force dealing with the shop and for the time being in force in that State;
(70) "social security" means the measures of protection afforded to employees
to ensure access to healthcare 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 enshrined and schemes framed under the Code;
(71) "Social Security Organisation" means any of the following organisations
established under this Code, namely:—
(a) the Central Board of Trustees for Employees Provident Fund
constituted under section 4;
(b) the Employees State Insurance Corporation constituted under section
5;
(c) the National Social Security Board for Unorganised Workers
constituted under section 6;
(d) the State Unorganised Workers’ Social Security Board constituted
under section 6; and
(e) the State Building Workers’ Welfare Boards constituted under section
7;
(72) "State" includes a Union territory;
(73) "State Government" includes—
(a) in relation to a Union territory with legislature, the Government of the
Union territory; andSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 97
(b) in relation to a Union territory without legislature, the administrator
appointed under article 239 of the Constitution as an administrator thereof;
(74) "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;
(75) "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;
(76) "Tribunal" means the Industrial Tribunal constituted by the appropriate
14 of 1947. Government under section 7A of the Industrial Disputes Act, 1947;
(77) "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;
(78) ‘‘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
14 of 1947. sector who is not covered by the Industrial Disputes Act, 1947 or Chapters III to VII
of this Code;
(79) "vacancy", for the purposes of Chapter XIII, means an unoccupied post
(including newly created post, post of trainee, post 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 in it and carrying remuneration;
(80) "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;98 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
( 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:
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 the 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;
(81) "wage ceiling" means such amount of wages or income as may be notified
by the Central Government, from time to time for the purposes of this Code;
(82) "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 State Government, as the case may be;
(83) "woman" means a woman employed, whether directly or through any
agency, for wages in any establishment.
Registration 3. Every establishment to which this Code applies shall be registered within such time
of
and in such manner as may be prescribed by the Central Government:
establishment.
Provided that the establishment which is already registered under any other labour
law for the time being in force shall not be required to obtain registration again under this
Code and such registration shall be deemed to be registration for the purposes of this Code.
CHAPTER II
SOCIAL SECURITY ORGANISATIONS
Constitution 4. (1) The Central Government may, by notification, constitute, with effect from such
of Central date as may be specified therein, a Board of Trustees for the purposes of Chapter III and the
Board of
provisions of this Code relating to that Chapter, for the territories to which this Chapter
Trustees.
extends for the administration of the funds vested in it in such manner as may be prescribed
by the Central Government, consisting of the following members, namely:—
(a) a Chairperson and a Vice-Chairperson to be appointed by the Central
Government;
(b) not more than five persons appointed by the Central Government from
amongst its officials;
(c) not more than fifteen persons representing Governments of such States as
the Central Government may specify in this behalf, to be appointed by the Central
Government;
(d) ten persons representing employers of the establishments to which the
scheme referred to in sub-section (1) of section 15 applies, to be appointed by theSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 99
Central Government after consultation with such organisations of employers as may
be recognised by the Central Government in this behalf;
(e) ten persons representing employees in the establishments to which scheme
framed under Chapter III applies, who shall be appointed by the Central Government
after consultation with such organisations of employees as may be recognised by the
Central Government in this behalf; and
( f ) the Central Provident Fund Commissioner, ex officio.
(2) The Central Board shall be a body corporate, having perpetual succession and a
common seal and shall by the said name sue and be sued.
(3) The Central Government may, by notification, constitute, with effect from such
date as may be specified therein, an Executive Committee from amongst the members of the
Central Board to assist the Central Board in performance of its functions in such manner as
may be prescribed by the Central Government.
(4) The Central Board may, by order, constitute one or more committees of such
composition as may be specified in the order to assist it in the discharge of its functions.
(5) The terms and conditions, including tenure of office, subject to which a member of
the Central Board and Executive Committee shall discharge their respective duties may be
such as may be prescribed by the Central Government:
Provided that a member of the Central Board shall, notwithstanding the expiry of the
tenure of his office, continue to hold office until his successor is appointed.
(6) The Central Board, apart from the functions specified in this Code, shall also
perform such other functions in such manner as may be prescribed by the Central Government.
5. (1) The Central Government may, by notification, constitute with effect from such
Constitution
date as may be specified therein, a Corporation for the purposes of Chapter IV and the of Employees'
provisions of this Code relating to that Chapter, for the administration of Scheme of Employees State
Insurance
State Insurance (hereinafter referred to as Employees' State Insurance Scheme) in such
Corporation.
manner as may be prescribed by the Central Government, consisting of the following members,
namely:—
(a) a Chairperson to be appointed by the Central Government;
(b) a Vice-Chairperson to be appointed by the Central Government;
(c) not more than five persons to be appointed by the Central Government from
amongst its officials;
(d) one person representing each of such States in such manner, as may be
prescribed by the Central Government;
(e) one person to be appointed by the Central Government to represent the
Union territories;
(f) ten persons representing employers to be appointed by the Central
Government in consultation with such organisations of employers as may be recognised
for the purpose by the Central Government;
(g) ten persons representing employees to be appointed by the Central
Government in consultation with such organisations of employees as may be recognised
for the purpose by the Central Government;
(h) two persons representing the medical profession to be appointed by the
Central Government in consultation with such organisations of medical practitioners
as may be recognised for the purpose by the Central Government;
(i) three members of Parliament of whom two shall be members of the House of the
People (Lok Sabha) and one shall be a member of the Council of States (Rajya Sabha)100 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
elected respectively by the members of the House of the People and the members of
the Council of States; and
( j) the Director General of the Corporation, ex officio.
(2)The corporation shall be a body corporate, having perpetual succession and a
common seal and shall by the said name sue and be sued.
(3) The Central Government may, by notification, constitute, with effect from such
date as may be specified therein, a Standing Committee from amongst the members of the
Corporation in such manner, as may be prescribed by the Central Government.
(4) Subject to the general superintendence and control of the Corporation, the Standing
Committee—
(a) shall administer the affairs of the Corporation and may exercise any of the
powers and perform any of the functions of the Corporation in such manner as may be
prescribed by the Central Government;
(b) shall submit for the consideration and decision of the Corporation all such
cases and matters as may be specified in the regulations made in this behalf; and
(c) may, in its discretion, submit any other case or matter for the decision of the
Corporation.
(5) The Central Government may, by notification, constitute, with effect from such
date as may be specified therein, a Medical Benefit Committee of such composition as may
be prescribed by it, to assist the Corporation in performance of its functions relating to
administration of medical benefits.
(6) The Corporation may, by order, constitute one or more committees of such
composition as may be specified in the regulations to assist it in the discharge of its functions.
(7) The terms and conditions, including tenure of office, subject to which a member of
the Corporation and Standing Committee shall discharge their respective duties may be
such as may be prescribed by the Central Government:
Provided that a member of the Corporation shall, notwithstanding the expiry of the
tenure of his office, continue to hold office until his successor is appointed.
National 6. (1) The Central Government shall, by notification, constitute a National Social
Social Security Board for unorganised workers (hereinafter referred to as National Social Security
Security
Board) to exercise the powers conferred on, and to perform the functions assigned to it
Boards.
under this Code, in such manner as may be prescribed by the Central Government.
(2) The National Social Security Board shall consist of the following members, namely:—
(a) Union Minister for Labour and Employment as Chairperson;
(b) Secretary, Ministry of Labour and Employment as Vice-Chairperson;
(c) thirty-five members to be nominated by the Central Government, out of
whom—
(i) seven members representing unorganised sector workers;
(ii) seven members representing employers of unorganised sector;
(iii) seven members representing eminent persons from civil society;
(iv) two members representing the Lok Sabha and one from the Rajya Sabha;
(v) five members representing Central Government Ministries and
Departments concerned;
(vi) five members representing State Governments; andSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 101
(vii) one member representing the Union territories;
(d) Director General Labour Welfare—Member Secretary, ex officio.
(3) The Chairperson and other members of the National Social Security Board shall be
from amongst persons of eminence in the fields of labour welfare, management, finance, law
and administration.
(4) The number of persons to be nominated as members from each of the categories
specified in clause (c) of sub-section (2), the term of office and other conditions of service of
members, the procedure to be followed in the discharge of their functions by, and the manner
of filling vacancies among the members of, the National Social Security Board shall be such
as may be prescribed by the Central Government:
Provided that adequate representation shall be given to persons belonging to the
Scheduled Castes, the Scheduled Tribes, the minorities and women.
(5) The term of the National Social Security Board shall be three years.
(6) The National Social Security Board shall meet at least thrice a year, at such time and
place and shall observe such rules of procedure relating to the transaction of business at its
meetings, as may be prescribed.
(7) The National Social Security Board shall perform the following functions, namely:—
(a) recommend to the Central Government suitable schemes for different sections
of unorganised workers;
(b) advise the Central Government on such matters arising out of the
administration of this Code as may be referred to it;
(c) monitor such social welfare schemes for unorganised workers as are
administered by the Central Government;
(d) review the record keeping functions performed at the State level;
(e) review the expenditure from the funds under various schemes; and
(f) undertake such other functions as are assigned to it by the Central Government
from time to time.
(8) The Central Government may, by notification, constitute with effect from such date
as may be specified therein one or more advisory committee to advise the Central Government
upon such matters arising out of the administration of this Code relating to unorganised
workers and such other matters as the Central Government may refer to it for advice.
(9) Every State Government shall, by notification, constitute a State Board to be
known as (name of the State) Unorganised Workers' Social Security Board (hereinafter
referred to as the State Unorganised Workers' Board) to exercise the powers conferred on,
and to perform the functions assigned to it under this Code, in such manner as may be
prescribed by the State Government.
(10) Every State Unorganised Workers' Board shall consist of the following members,
namely:—
(a) Minister of Labour and Employment of the concerned State-Chairperson,
ex officio;
(b) Principal Secretary or Secretary (Labour) as Vice-Chairperson;
(c) twenty-eight members to be nominated by the State Government, out of
whom—
(i) seven representing the unorganised workers;
(ii) seven representing employers of unorganised workers;102 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(iii) two members representing the Legislative Assembly of the concerned
State;
(iv) five members representing eminent persons from civil society;
(v) seven members representing State Government Departments
concerned; and
(d) Member-Secretary as notified by the State Government.
(11) The Chairperson and other members of the State Unorganised Workers' Board
shall be from amongst persons of eminence in the fields of labour welfare, management,
finance, law and administration.
(12) The number of persons to be nominated as members from each of the categories
specified in clause (c) of sub-section (10), the term of office and other conditions of service
of members, the procedure to be followed in the discharge of their functions by, and the
manner of filling vacancies among the members of, the State Unorganised Workers' Board
shall be such as may be prescribed by the State Government:
Provided that adequate representation shall be given to persons belonging to the
Scheduled Castes, the Scheduled Tribes, the minorities and women.
(13) The term of the State Unorganised Workers' Board shall be three years.
(14) The State Unorganised Workers' Board shall meet at least once in a quarter at
such time and place and shall observe such rules of procedure relating to the transaction of
business at its meetings, as may be prescribed by the State Government.
(15) The State Board shall perform the following functions, namely:—
(a) recommend the State Government in formulating suitable schemes for different
sections of the unorganised sector workers;
(b) advise the State Government on such matters arising out of the administration
of this Code as may be referred to it;
(c) monitor such social welfare schemes for unorganised workers as are
administered by the State Government;
(d) review the record keeping functions performed at the district level;
(e) review the progress of registration and issue of cards to unorganised sector
workers;
( f ) review the expenditure from the funds under various schemes; and
(g) undertake such other functions as are assigned to it by the State Government
from time to time.
(16) The State Government may, by notification, constitute with effect from such date
as may be specified therein one or more advisory committee to advise the State Government
upon such matters arising out of the administration of this Code relating to unorganised
workers and such other matters as the State Government may refer to it for advice.
Constitution 7. (1) Every State Government shall, with effect from such date as it may, by notification,
of State appoint, constitute a Board to be known as the................(name of the State) Building and
Building
Other Construction Workers' Welfare Board (hereinafter referred to as Building Workers'
Workers
Welfare Board) to exercise the powers conferred on, and perform the functions assigned to,
Welfare
Boards. it under this Chapter.
(2) The Building Workers' Welfare Board shall be a body corporate by the name
aforesaid, having perpetual succession and a common seal and shall by the said name sue
and be sued.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 103
(3) The Building Workers' Welfare Board shall consist of a chairperson to be nominated
by the State Government, one member to be nominated by the Central Government and such
number of other members, not exceeding fifteen, as may be appointed to it by the State
Government:
Provided that the Building Workers' Welfare Board shall include an equal number of
members representing the State Government, the employers and the building workers and
that at least one member of the Board shall be a woman.
(4) The terms and conditions of appointment and the salaries and other allowances
payable to the chairperson and the other members of the Building Workers' Welfare Board,
and the manner of filling of casual vacancies of the members of the Building Workers'
Welfare Board, shall be such as may be prescribed by the State Government.
(5) (a) The Building Workers' Welfare Board shall appoint a Secretary and such officers
and employees as it considers necessary for the efficient discharge of its functions of the
Building Workers' Welfare Board under this Code.
(b) The Secretary of the Building Workers' Welfare Board shall be its chief
executive officer.
(c) The terms and conditions of appointment and the salary and allowances
payable to the Secretary and the other officers and employees of the Building
Workers' Welfare Board shall be such as may be prescribed by the State Government.
(6) The Building Workers' Welfare Board shall perform the following functions,
namely:—
(a) provide death and disability benefits to a beneficiary or his dependants;
(b) make payment of pension to the beneficiaries who have completed the age of
sixty years;
(c) pay such amount in connection with premium for Group Insurance Scheme
of the beneficiaries as may be prescribed by the appropriate Government;
(d) frame educational schemes for the benefit of children of the beneficiaries as
may be prescribed by the appropriate Government;
(e) meet such medical expenses for treatment of major ailments of a beneficiary
or, such dependant, as may be prescribed by the appropriate Government;
( f ) make payment of maternity benefit to the beneficiaries;
(g) frame skill development and awareness schemes for the beneficiaries;
(h) provide transit accommodation or hostel facility to the beneficiaries;
(i) formulation of any other welfare scheme for the building worker beneficiaries
by State Government in concurrence with the Central Government; and
( j) make provision and improvement of such other welfare measures and facilities
as may be prescribed by the Central Government.
(7) The State Government may, by notification, constitute with effect from such date
as may be specified therein one or more advisory committee to advise the State Government
upon such matters arising out of the administration of this Code relating to building workers
and such other matters as the State Government may refer to it for advice.
8. (1) No person shall be chosen as, or continue to be, a member of a Social Security Disqualification
Organisation, or any Committee thereof who,— and removal
of a member
(a) is or at any time has been adjudged an insolvent; or of any Social
Security
(b) is found to be a lunatic or becomes of unsound mind; or Organisation.104 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(c) is or has been convicted of any offence involving moral turpitude; or
(d) is an employer in an establishment and has defaulted in the payment of any
dues under this Code;
(e) is a member of a Social Security Organisation being a member of the Parliament
or a member of a State Legislative Assembly, when he ceases to be such member of the
Parliament or State Legislative Assembly, as the case may be; or
( f ) is a member of Social Security Organisation being a member of the Parliament
or a member of a State Legislative Assembly, and he becomes a—
(i) Minister of Central or State Government; or
(ii) Speaker or Deputy Speaker of House of the People or a State Legislative
Assembly; or
(iii) Deputy Chairman of the Council of States.
Explanation 1.—If any question arises whether any person is disqualified under
clause (d), it shall be referred to the appropriate Government and the decision of the appropriate
Government on any such question shall be final.
Explanation 2.—Clause (f) shall not apply in case of persons who are members of the
Social Security Organisation ex officio, by virtue of being a Minister.
(2) The Central Government, in case of the Central Board, the Corporation and the
National Social Security Board and the State Government in case of the State Unorganised
Workers' Board and the Building Workers' Welfare Board, may remove any member of such
Social Security Organisation from his office, who,—
(a) is or has become subject to any of the disqualifications mentioned in
sub-section (1); or
(b) is absent without leave of the Social Security Organisation of which he is a
member for more than three consecutive meetings of the Social Security Organisation
or a Committee thereof;
(c) in the opinion of such Government, has so abused the position of his office
as to render that member's continuation in the office detrimental to the public interest
or is otherwise unfit or unsuitable to continue as such member in the opinion of such
Government:
Provided that, no person shall be removed under clauses (b) and (c), unless that
person has been given an opportunity to show cause as to why he should not be removed:
Provided further that a member of the Executive Committee of the Central Board or the
Standing Committee of the Corporation shall cease to hold office if he ceases to be a member
of the Central Board or the Corporation, as the case may be.
(3) Any member of a Social Security Organisation or a Committee thereof may at any
time resign from his office in writing under his hand addressed to the Central Government or
the State Government, as the case may be, which had made his appointment and on
acceptance of such resignation, his office shall become vacant.
(4) If in a Social Security Organisation or a Committee thereof, the Central Government
or the State Government, as the case may be, is of the opinion that—
(a) any member thereof representing employers or the employees or the
unorganised workers, as the case may be, ceases to adequately represent so; or
(b) any member thereof representing to be an expert in a specified area, is later
on found not to possess sufficient expertise in that area; orSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 105
(c) having regard to exigencies of circumstances or services in such Government,
the member thereof representing such Government cannot continue to represent the
Government;
then, such Government may, by order, remove such member from his office:
Provided that no person shall be removed under clause (a) or clause (b), unless
that person has been given an opportunity to show cause as to why he should not be
removed.
(5) If any member of a Social Security Organisation or a Committee thereof, who is a
director of a company and who as such director, has any direct or indirect pecuniary interest
in any matter coming up for consideration of the Social Security Organisation or a Committee
thereof, then, he shall, as soon as may be possible after such fact of interest has come to his
knowledge, disclose the nature of the interest and such disclosure shall be recorded in the
proceedings of the Social Security Organisation or the Committee thereof, as the case may
be, and such member, thereafter, shall not take part in any proceeding or decision of the
Social Security Organisation, or a Committee thereof relating to that matter.
9. (1) A Social Security Organisation or any committee thereof shall meet at such Procedure for
intervals and observe such procedure in regard to the transaction of business at its meetings transaction of
(including the quorum at such meetings) as may be prescribed by the Central Government. business of
Social
(2) All orders and decisions of the Social Security Organisation shall be authenticated Security
Organisation,
by the signature of the Central Provident Fund Commissioner, Director General, Director
etc.
General Labour Welfare, State Principal Secretary or Secretary (Labour) of the respective
Social Security Organisations or such other member as may be prescribed by the appropriate
Government and all other instruments issued by the Social Security Organisation shall be
authenticated by the signature of such officer or member so prescribed.
(3) No act done or proceeding taken by a Social Security Organisation or any Committee
thereof shall be questioned on the ground merely of the existence of any vacancy in, or any
defect in the constitution of the Social Security Organisation or the Committee thereof, as
the case may be.
(4) Such members of a Social Security Organisation or any Committee thereof shall be
entitled for such fee and allowances as may be prescribed by the Central Government.
10. The Central Provident Fund Commissioner and the Director General shall be the Executive
whole-time officer of the Central Board or the Corporation, as the case may be, and shall not Heads of
undertake any work unconnected with his office without the prior approval of the Central Central Board
and
Government.
Corporation.
11. (1) If the Central Government in case of the Central Board, the Corporation or the Supersession
National Social Security Board and the State Government, in case of the State Unorganised of
Workers' Board or the Building Workers' Welfare Board is of the opinion that the Corporation Corporation,
Central Board
or the Central Board of Trustees or the National Social Security Board or the State Unorganised
of Trustees,
Workers Board or the Building Workers' Welfare Board or any of the Committee thereof, as Unorganised
the case may be, is unable to perform its functions, or, has persistently made delay in the Workers
discharge of its functions or has exceeded or abused its powers or jurisdiction, then such National
Social Security
Government may, by notification, supersede the Corporation or the Central Board or the
Board or State
National Social Security Board or the State Unorganised Workers Board or the Building Unorganised
Workers' Welfare Board, or any of the Committees thereof, as the case may be, and Workers
re-constitute it in such manner as may be prescribed by the Central Government: Social Security
Board.
Provided that, before issuing a notification under this sub-section on any of the
grounds specified herein, such Government shall give an opportunity to the Corporation or
the Central Board or the National Social Security Board or the State Unorganised Workers
Board or the Building Workers' Welfare Board or any Committee thereof, as the case may be,
to show cause as to why it should not be superseded and shall consider the explanations
and objections raised by it and take appropriate action thereon.106 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) After the supersession of the Corporation, or the Central Board or the National
Social Security Board, the State Unorganised Workers Board or the Building Workers' Welfare
Board, or any of the Committee thereof, as the case may be, and until it is reconstituted, the
Central Government or the State Government, as the case may be, shall make such alternate
arrangements for the purpose of administration of the relevant provisions of this Code, as
may be prescribed by the Central Government.
(3) The Central Government or the State Government shall cause, a full report of any
action taken by it under this section and the circumstances leading to such action, to be laid
before each House of Parliament or the State Legislature, as the case may be, at the earliest
opportunity and in any case not later than three months from the date of the notification of
supersession issued under sub-section (1).
State Board, 12. The Central Government may, by notification,—
Regional
Boards, local (i) and after consultation with the Government of any State, constitute for that
committees, State, a Board of Trustees (hereinafter in this Code referred to as a State Board) which
etc.
shall exercise such powers and perform such functions as may be assigned by
notification, to it by the Central Government from time to time;
(ii) specify the manner of constitution of a State Board, the terms and conditions
of the appointment of its members and the procedure of its meeting and other
proceedings relating thereto; and
(iii) after consultation with the Corporation, appoint Regional Boards and local
committees in such area and in such manner to perform such functions and to exercise
such powers as may be specified in the notification.
Entrustment 13. Notwithstanding anything contained in this Code, the Central Government may,
of additional by notification,—
functions to
Social Security (i) assign additional functions to a Social Security Organisation including
Organisations.
administration of any other Act or scheme relating to social security subject to such
provisions as may be specified in this behalf in the notification:
Provided that while the additional function of administering the Act or scheme
are assigned under this clause to a Social Security Organisation, then, the officer or
authority of such organisation, to whom such function has been assigned, shall
exercise the powers under the enactment or scheme required for discharging such
function in the manner as may be specified in the notification:
Provided further that the Social Security Organisations may assign such
additional functions to existing officers or appoint or engage new officers necessary
for such purpose, if such functions may not be performed and completed with the
assistance of its personnel as existing immediately before the assignment of the
additional functions;
(ii) specify the terms and conditions of discharging the functions under
clause (i) by the Social Security Organisation;
(iii) provide that the expenditure incurred in discharging the functions specified
in clause (i) including appointment or engagement of personnel necessary for proper
discharge of such functions shall be borne by the Central Government;
(iv) specify the powers which the Social Security Organisation shall exercise
while discharging the functions specified in clause (i); and
(iv) provide that any expenditure referred to in clause (iii) shall be made by the
Social Security Organisation after prior approval of the Central Government.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 107
CHAPTER III
EMPLOYEES PROVIDENT FUND
14. (1) The Central Government may appoint a Central Provident Fund Commissioner Appointment
of the Central Board who shall be subject to the general control and superintendence of that of officers of
Board. Central
Board.
(2) The Central Government shall also appoint a Financial Advisor and Chief Accounts
Officer to assist the Central Provident Fund Commissioner in the discharge of his duties.
(3) The Central Board may appoint, subject to the maximum scale of pay, as may be
specified in the Scheme, as many Additional Central Provident Fund Commissioners, Deputy
Provident Fund Commissioners, Regional Provident Fund Commissioners, Assistant
Provident Fund Commissioners and such other officers and employees as it may consider
necessary for the efficient administration of the Provident Fund Scheme, the Pension Scheme
and the Insurance Scheme, respectively, referred to in section 15 or other responsibilities
assigned to the Central Board from time to time by the Central Government.
(4) No appointment to the post of the Central Provident Fund Commissioner or an
Additional Central Provident Fund Commissioner or a Financial Adviser and Chief Accounts
Officer or any other post under the Central Board carrying a scale of pay equivalent to the
scale of pay of any Group 'A' or Group 'B' post under the Central Government shall be made
except after consultation with the Union Public Service Commission:
Provided that no such consultation shall be necessary in regard to any such
appointment—
(a) for a period not exceeding one year; or
(b) if the person to be appointed is at the time of his appointment—
(i) a member of the Indian Administrative Service, or
(ii) in the service of the Central Government or the Central Board in a
Group 'A' or Group 'B' post.
(5) The method of recruitment, salary and allowances, discipline and other conditions of
service of the Central Provident Fund Commissioner and the Financial Adviser and Chief Accounts
Officer shall be such as may be specified by the Central Government and such salary and
allowances shall be paid out of the fund referred to in clause (a) of sub-clause (1) of section 16.
(6) (a)The method of recruitment, salary and allowances, discipline and other conditions
of service of the Additional Central Provident Fund Commissioners, Deputy Provident Fund
Commissioners, Regional Provident Fund Commissioners, Assistant Provident Fund
Commissioners and other officers and employees of the Central Board shall be such as may
be specified by the Central Board in accordance with the rules and orders applicable to the
officers and employees of the Central Government drawing corresponding scales of pay:
Provided that where the Central Board is of the opinion that it is necessary to make a
departure from the said rules or orders in respect of any of the matters aforesaid, it shall
obtain the prior approval of the Central Government.
(b) In determining the corresponding scales of pay of officers and employees under
clause (a), the Central Board shall have regard to the educational qualifications, method of
recruitment, duties and responsibilities of such officers and employees under the Central
Government and in case of any doubt, the Central Board shall refer the matter to the Central
Government whose decision thereon shall be final.
15. (1) The Central Government may, by notification:— Schemes.
(a) frame a scheme to be called the Employees' Provident Fund Scheme (hereinafter
referred to as the Provident Fund Scheme) for which the provident funds shall be108 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
established under this Chapter for employees or for any class of employees and specify
the establishments or class of establishments to which the said scheme shall apply;
(b) frame a scheme to be called the Employees' Pension Scheme (hereinafter
referred to as the Pension Scheme) for the purpose of providing for—
(i) superannuation pension, retiring pension or permanent total
disablement pension to the employees of any establishment or class of
establishments to which this Chapter applies; and
(ii) widow or widower's pension, children pension or orphan pension
payable to the beneficiaries of such employees;
(c) frame a scheme to be called the Employees' Deposit Linked Insurance Scheme
(hereinafter referred to as Insurance Scheme) for the purpose of providing life insurance
benefits to the employees of any establishment or class of establishments to which
this Chapter applies; and
(d) modify any scheme referred to in clauses (a), (b) and (c) by adding thereto,
amending or varying therein, either prospectively or retrospectively.
(2) Subject to the provisions of this Chapter, the schemes referred to in clauses (a), (b)
and (c) of sub-section (1) may provide for all or any of the matters respectively specified in
Part A, Part B and Part C of the Fifth Schedule.
(3) The schemes may provide that all or any of its provisions shall take effect either
prospectively or retrospectively on and from such date as may be specified in that behalf in
the scheme.
Funds. 16. (1) The Central Government may, for the purposes of—
(a) the Provident Fund Scheme, establish a Provident Fund where the
contribution paid by the employer to the fund shall be ten per cent. 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 and may, if any employee so
desires, be an amount exceeding ten per cent. of the wages, subject to the condition
that the employer shall not be under an obligation to pay any contribution over and
above his contribution payable under this section:
Provided that in its application to any establishment or class of establishments
which the Central Government, after making such inquiry as it deems fit, may, by
notification in the Official Gazette specify, this section shall be subject to the
modification that for the words "ten per cent." at both the places where they occur, the
words "twelve per cent". shall be substituted:
Provided further that the Central Government, after making such inquiry as it
deems fit, may, by notification, specify rates of employees' contributions and the
period for which such rates shall apply for any class of employee;
(b) the Pension Scheme, establish a pension fund (hereinafter referred to as the
Pension Fund) in the manner prescribed by that Government into which there shall be
paid, from time to time, in respect of every employee who is a member of the Pension
Scheme,—
(i) such sums from the employer's contribution under clause (a) not
exceeding eight and one-third per cent. of the wages or such per cent. of wages
as may be notified by the Central Government;
(ii) such sums payable as contribution to the pension fund, as may be
specified in the Pension Scheme, by the employers of the exempted
establishments under section 144 to which the pension scheme applies;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 109
(iii) such sums as the Central Government after due appropriation by
Parliament by law in this behalf, specify;
(c) the Insurance Scheme, establish a Deposit-Linked Insurance Fund (hereinafter
referred to as the Insurance Fund) in the manner prescribed by that Government into
which shall be paid by the employer from time to time in respect of every such employee
in relation to whom he is the employer, such amount, not being more than one per cent.
of the wages or such per cent. of wages as may be notified by the Central Government
for the time being payable in relation to such employee:
Provided that the employer shall pay into the Insurance Fund such further sums of
money, not exceeding one-fourth of the contribution which he is required to make under this
clause, as the Central Government may, from time to time, determine 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.
(2) The Provident Fund, the Pension Fund and the Insurance Fund shall vest in, and
be administered by, the Central Board in such manner as may be specified in the respective
Schemes.
17. (1) The amount of contribution (that is to say, the employer's contribution as well Contribution
as the employee's contribution in pursuance of any Scheme and the employer's contribution in respect of
in pursuance of the Insurance Scheme) and any charge for meeting the cost of administering employees
and
the Fund paid or payable by an employer in respect of an employee employed by or through
contractors.
a contractor may be recovered by such employer from the contractor, either by deduction
from any amount payable to the contractor under any contract or as a debt payable by the
contractor.
(2) A contractor from whom the amounts mentioned in sub-section (1) may be recovered
in respect of any employee employed by or through him may recover from such employee
the employee's contribution under any Scheme by deduction from the wages payable to
such employee.
(3) Notwithstanding any contract to the contrary, no contractor shall be entitled to
deduct the employer's contribution or the charges referred to in sub-section (1) from the
wages payable to an employee employed by or through him or otherwise to recover such
contribution or charges from such employee.
18. For the purposes of the Income-tax Act, 1961, the Provident Fund shall be deemed Fund to be
to be a recognised provident fund within the meaning of clause (38) of section 2 of that Act: recognised
under Act 43
of 1961.
Provided that nothing contained in the said Act shall operate to render ineffective any
provision of the Provident Fund Scheme (under which the Provident Fund is established)
which is repugnant to any of the provisions of that Act or of the rules made thereunder.
19. Notwithstanding anything contained in any other law for the time being in force, Priority of
any amount due under this Chapter shall be the charge on the assets of the establishment to payment of
which it relates and shall be paid in priority in accordance with the provisions of section 53 contributions
over other
31 of 2016. of the Insolvency and Bankruptcy Code, 2016.
debts.
20. (1) This Chapter shall not apply—
Chapter not
to apply to
2 of 1912. (a) to any establishment registered under the Co-operative Societies Act, 1912
certain
or under any other law for the time being in force in any State relating to cooperative establishment.
societies employing less than fifty persons and working without the aid of power; or
(b) to 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;
or110 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(c) to 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.
(2) If the Central Government is of the opinion that having regard to the financial
position of any class of establishment or other circumstances of the case, it is necessary or
expedient so to do, it may, by notification and subject to such conditions, as may be specified
in the notification, exempt, whether prospectively or retrospectively, that class of establishments
from the operation of this Chapter for such period as may be specified in the notification.
Authorising 21. (1) The Central Government may, on an application made to it in this behalf by the
certain employer and the majority of employees in relation to an establishment employing one
employers to
hundred or more persons, authorise the employer by an order in writing, to maintain a
maintain
provident fund provident fund account in relation to the establishment, in such manner as may be prescribed
accounts. by the Central Government and subject to such terms and conditions as may be specified in
the Scheme:
Provided that no authorisation shall be made under this sub-section if the employer of
such establishment had committed any default in the payment of provident fund contribution
or had committed any other offence under this Code during the three years immediately
preceding the date of such authorisation.
(2) Where an establishment is authorised to maintain a provident fund account under
sub-section (1), the employer in relation to such establishment shall maintain such account,
submit such return, deposit the contribution in such manner, provide for such facilities for
inspection, pay such administrative charges, and abide by such other terms and conditions,
as may be specified in the Scheme.
(3) Any authorisation made under this section may be cancelled by the Central
Government by order in writing if the employer fails to comply with any of the terms and
conditions of the authorisation or where he commits any offence under any provision of this
Code:
Provided that before cancelling the authorisation, the Central Government shall give
the employer a reasonable opportunity of being heard.
Transfer of 22. Where an employee,—
accounts.
(a) employed in an establishment to which this Chapter applies, relinquishes his
employment therefrom and obtains employment in any other establishment to which
this Chapter applies or not; or
(b) employed in an establishment to which this Chapter does not apply,
relinquishes his employment therefrom and obtains employment in an establishment
to which this Chapter applies,
then, his accumulated amount in provident fund account or pension account, as the case
may be, shall be transferred or dealt with in the manner as may be prescribed by the Central
Government.
Appeal to 23. (1) Any person aggrieved by an order passed by the Central Government or any
Tribunal. other authority in regard to the following matters may prefer an appeal to the Tribunal
constituted by the Central Government, namely:—
(a) determination and assessment of dues under section 125;
(b) order of the appellate authority under section 127 in respect of Chapter III;
(c) determination of escaped amount under section 128 in respect of Chapter III;
and
(d) levy of damages under section 130.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 111
(2) Every appeal under sub-section (1) shall be filed in such form and manner, within
such time and accompanied by such fees as may be prescribed by the Central Government.
CHAPTER IV
EMPLOYEES STATE INSURANCE CORPORATION
24. (1) The Central Government may, in consultation with the Corporation, appoint a Principal
Director General of the Corporation and a Financial Commissioner, who shall be the Principal Officers and
Officers of the Corporation. other staff.
(2) The Director General or the Financial Commissioner shall hold office for such
period, not exceeding five years, as may be specified in the order appointing him:
Provided that outgoing Director General or Financial Commissioner shall be eligible
for reappointment if he is otherwise qualified.
(3) The Director General or the Financial Commissioner shall receive such salary and
allowances as may be prescribed by the Central Government.
(4) A person shall be disqualified from being appointed as or for being the Director
General of the Corporation or the Financial Commissioner if he is subject to any of the
disqualifications specified in section 8.
(5) The Central Government may at any time remove the Director General of the
Corporation or the Financial Commissioner from office and shall do so if such removal is
recommended by a resolution of the Corporation passed at a special meeting called for the
purpose and supported by the votes of not less than two-third of the total strength of the
Corporation.
(6) The Corporation may employ such other officers and employees as may be
necessary for the efficient transaction of its business and for discharge of any other
responsibilities assigned to the Corporation from time to time by the Central Government:
Provided that the sanction of the Central Government shall be obtained for the creation
of any post the maximum monthly salary of which exceeds such salary as may be prescribed
by the Central Government.
(7) (a) The method of recruitment, salary and allowances, discipline and other
conditions of service of the officers and employees of the Corporation shall be such as may
be specified in the regulations made by the Corporation in accordance with the rules and
orders applicable to the officers and employees of the Central Government drawing
corresponding scales of pay:
Provided that where the Corporation is of the opinion that it is necessary to make a
departure from the said rules or orders in respect of any of the matters aforesaid, it shall
obtain the prior approval of the Central Government:
Provided further that this sub-section shall not apply to appointment of consultants
and specialists in various fields appointed on contract basis.
(b) In determining the corresponding scales of pay of the members of the staff under
clause (a), the Corporation shall have regard to the educational qualifications, method of
recruitment, duties and responsibilities of such officers and employees under the Central
Government and in case of any doubt, the Corporation shall refer the matter to the Central
Government whose decision thereon shall be final.
(8) Every appointment to posts (other than medical, nursing or para-medical posts)
corresponding to group A and group B Gazetted posts under the Central Government shall
be made in consultation with the Union Public Service Commission:
Provided that the provisions of this sub-section shall not apply to an officiating or
temporary appointment for a period not exceeding one year:112 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided further that any such officiating or temporary appointment shall not confer
any claim for regular appointment and the services rendered in that capacity shall not count
towards seniority or minimum qualifying service specified in the regulations for promotion
to next higher grade.
(9) If any question arises whether a post corresponds to a group A and group B post
under the Central Government, the question shall be referred to that Government whose
decision thereon shall be final.
Employees' 25. (1) All contributions paid under this Chapter and all other moneys received on
State behalf of the Corporation shall be paid into a fund (hereinafter referred as the Employees'
Insurance
State Insurance Fund) which shall be held and administered by the Corporation for the
Fund.
purposes of this Chapter.
(2) The Corporation may accept grants, donations, Corporate Social Responsibility
Fund and gifts from the Central or any State Government, local authority, or any individual
or body whether incorporated or not, for all or any of the purposes of this Chapter.
(3) Subject to the other provisions contained in this Code and to any rules or
regulations made in this behalf, all moneys accruing or payable to the said Fund shall be
deposited in such bank or banks as may be approved by the Central Government to the
credit of an account styled the account of the Employees' State Insurance Fund.
(4) The Employees State Insurance Fund or any other money which is held by the
Corporation shall be deposited or invested in the manner approved by the Central Government
after consultation with the Corporation.
(5) Such account shall be operated by such officers as may be authorised by the
Committee constituted under sub-section (3) of section 5 (hereinafter referred to as the
Standing Committee) with the approval of the Corporation.
Purposes for 26. Subject to the provisions of this Chapter and the rules and regulations relating
which thereto, made under this Code, the Employees' State Insurance Fund shall be expended only
Employees' for the following purposes, namely:—
State
Insurance (a) payment of benefits and provision of medical treatment and attendance to
Fund may be
insured persons referred to in section 28 and, where the medical benefit is extended to
expanded.
their families, the provision of such medical benefit to their families, in accordance
with the provisions of this Chapter and the rules and regulations relating thereto and
defraying the charges and costs in connection therewith;
(b) payment of fees and allowances to members of the Corporation, the Standing
Committee, the Medical Benefit Committee or other Committees thereof;
(c) payment of salaries, leave and joining time allowances, travelling and
compensatory allowances, gratuities and compassionate allowances, pensions,
contributions to provident or other benefit fund of officers and staff of the Corporation
and meeting the expenditure in respect of officers and staff and other services set up
for the purpose of giving effect to the provisions of this Code relating to this Chapter;
(d) establishment and maintenance of hospitals, dispensaries and other
institutions and the provision of medical and other ancillary services for the benefit of
insured persons referred to in section 28 and, where the medical benefit is extended to
their families, their families;
(e) payment of contributions to any State Government, local authority or any
private body or individual, towards the cost of medical treatment
and attendance provided to insured persons referred to in section 28 and, where the
medical benefit is extended to their families, their families, including the cost of any
building and equipment, in accordance with any agreement entered into by the
Corporation;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 113
( f ) defraying the cost (including all expenses) of auditing the accounts of the
Corporation and of the valuation of its assets and liabilities;
(g) defraying the cost (including all expenses) of the Employees' Insurance
Courts set up under this Chapter;
(h) payment of any sums under any contract entered into for the purposes of
this Code by Corporation or the Standing Committee or by any officer duly authorised
by the Corporation or the Standing Committee in that behalf;
(i) payment of sums under any decree, order or award of any Court or Tribunal
against the Corporation or any of its officers or staff for any act done in the execution
of his duty or under a compromise or settlement of any suit or other legal proceeding
or claim instituted or made against the Corporation;
( j) defraying the cost and other charges of instituting or defending any civil or
criminal proceedings arising out of any action taken under this Code relating to this
Chapter;
(k) defraying expenditure, within the limits prescribed by the Central Government
after consultation with the Corporation, on measures for the improvement of the health
and welfare of insured persons and for the rehabilitation and re-employment of insured
persons referred to in section 28 who have been disabled or injured; and
(l) such other purposes as may be authorised by the Corporation with the
previous approval of the Central Government.
27. (1) The Corporation may, subject to such conditions as may be prescribed by the Holding of
Central Government after consultation with the Corporation, acquire and hold property, property, etc.
both movable and immovable, sell or otherwise transfer any movable or immovable property
which may have become vested in or have been acquired by it and do all things necessary
for the purposes for which the Corporation is established.
(2) Subject to such conditions as may be prescribed by the Central Government and
after consultation with the Corporation, the Corporation may from time to time invest any
moneys which are not immediately required for expenses properly defrayable under this
Code and may, subject to as aforesaid, from time to time re-invest or realise such investments.
(3) The Corporation may, with the previous sanction of the Central Government and
on such terms as may be prescribed by it, raise loans and take measures for discharging such
loans.
(4) The Corporation may constitute for the benefit of its officers and staff or any class
of them, such provident or other benefit fund as it may think fit.
28. Subject to the provisions of this Code, all employees in establishments to which All employees
this Chapter applies shall be insured (hereinafter referred to as insured persons) in such to be insured.
manner whether electronically or otherwise, as may be prescribed by the Central Government.
29. (1) The contribution payable under this Chapter in respect of an employee shall Contributions.
comprise contribution payable by the employer (hereinafter referred to as the employer's
contribution) and contribution payable by the employee (hereinafter referred to as the
employee's contribution) and shall be paid to the Corporation.
(2) The contributions (employer's contribution and the employees' contribution both)
shall be paid at such rates as may be prescribed by the Central Government.
(3) The wage period in relation to an employee shall be the unit as specified in the
regulation (hereinafter referred to as the wage period) in respect of which all contributions
shall be payable under this Chapter.
(4) The contributions payable in respect of each wage period shall ordinarily fall due
on the last day of the wage period, and where an employee is employed for part of the wage114 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
period, or is employed under two or more employers during the same wage period the
contributions shall fall due on such days as may be prescribed by the Central Government.
Administrative 30. The types of expenses which may be termed as administrative expenses and the
expenses. percentage of the income of the Corporation which may be spent for such expenses shall be
such as may be prescribed by the Central Government and the Corporation shall keep its
administrative expenses within the limit so prescribed by the Central Government.
Provisions as 31. (1) The employer shall pay in respect of every employee, whether directly employed
to payment of by him or by or through a contractor, both the employer's contribution and the employee's
contributions
contribution.
by employer,
etc.
(2) Notwithstanding anything contained in any other law for the time being in force,
but subject to the provisions of this Code and the rules and regulations, if any, made
thereunder in this behalf, the employer shall, in the case of an employee directly employed
by him (not being an exempted employee), be entitled to recover from the employee the
employee's contribution by reduction from his wages and not otherwise:
Provided that 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.
(3) Notwithstanding any contract to the contrary, 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.
(4) Any sum deducted by the employer from wages under this Chapter shall be deemed
to have been entrusted to him by the employee for the purpose of paying the contribution
in respect of which it was deducted.
(5) The employer shall bear the expenses of remitting the contributions to the
Corporation.
(6) An employer, who has paid contribution in respect of an employee employed by or
through a contractor, shall be entitled to 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.
(7) The contractor shall 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 under sub-section (6).
(8) In the case referred to in sub-section (6), the contractor shall be entitled to recover
the employee's contribution from the employee employed by or through him by deduction
from wages and not otherwise, subject to such conditions as may be specified in the
regulations.
(9) Subject to the provisions of this Code, the Corporation may make regulations for
any matter relating or incidental to the payment and collection of contributions payable
under this Chapter.
Benefits. 32. (1) Subject to the provisions of this Code, the insured persons, their dependants
or the persons hereinafter mentioned, as the case may be, shall be entitled to the following
benefits, namely:—
(a) periodical payments to any insured person in case of his sickness certified
by a duly appointed medical practitioner or by any other person possessing such
qualifications and experience as the Corporation may, by regulations, specify in this
behalf (hereinafter referred to as sickness benefit);
(b) periodical payments to an insured person being a woman in case of
confinement or miscarriage or sickness arising out of pregnancy, confinement, prematureSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 115
birth of child or miscarriage, such woman being certified to be eligible for such payments
by an authority specified in this behalf by the regulations (hereinafter referred to as
maternity benefit);
(c) periodical payments to an insured person suffering from disablement as a
result of an employment injury sustained by him as an employee for the purposes of
this Chapter and certified to be eligible for such payments by an authority specified in
this behalf by the regulations (hereinafter referred to as disablement benefit);
(d) periodical payments to such dependants of an insured person who dies as a
result of an employment injury sustained by him as an employee for the purposes of
this Chapter, as are entitled under this Chapter (hereinafter referred to as dependants'
benefit);
(e) medical treatment for and attendance on insured persons (hereinafter referred
to as medical benefit); and
(f) payment to the eldest surviving member of the family of an insured person
who has died, towards the expenditure on the funeral of the deceased insured person,
or, where the insured person did not have a family or was not living with his family at
the time of his death, to the person who actually incurs the expenditure on the funeral
of the deceased insured person (to be known as funeral expenses):
Provided that the amount of payment under this clause shall not exceed such amount
as may be prescribed by the Central Government and the claim for such payment shall be
made within three months of the death of the insured person or within such extended period
as the Corporation or any officer or authority authorised by it in this behalf may allow.
(2) The Corporation may, subject to such conditions as may be laid down in the
regulations, extend the medical benefits to the family of an insured person.
(3) The qualification of a person to claim sickness benefit, maternity benefit, disablement
benefit and dependant benefit and the conditions subject to which such benefit may be
given, the rate and period thereof shall be such as may be prescribed by the Central
Government.
(4) Subject to the provisions of this Code, the Corporation may make regulations for
any matter relating or incidental to the accrual and payment of benefits payable under this
Chapter.
33. The Corporation may, in addition to the benefits specified in this Chapter, promote Corporation's
measures for the improvement of the health and welfare of insured persons and for the power to
promote
rehabilitation and re-employment of insured persons who have been disabled or injured and
measures for
may incur in respect of such measures expenditure from the Employees' State Insurance
health, etc., of
Fund of the Corporation within such limits as may be prescribed by the Central Government. insured
persons.
34. (1) For the purposes of this Chapter, an accident arising in the course of an Presumption
employee's employment shall be presumed, in the absence of evidence to the contrary, to as to accident
arising in
have arisen out of that employment.
course of
(2) An accident happening to an employee in or about any premises at which he is for employment.
the time being employed for the purpose of his employer's trade or business shall be deemed
to arise out of and in the course of his employment, if it happens while he is taking steps, on
an actual or supposed emergency at those premises, to rescue, succour or protect persons
who are, or are thought to be or possibly to be, injured or imperilled, or to avert or minimise
serious damage to property.
(3) 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 if116 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
nexus between the circumstances, time and place in which the accident occurred and the
employment is established.
(4) An accident happening while an employee is, with the express or implied permission
of his employer, travelling as a passenger by any vehicle to or from his place of work shall,
notwithstanding that he is under no obligation to his employer to travel by that vehicle, be
deemed to arise out of and in the course of his employment, if—
(a) the accident would have been deemed so to have arisen had he been under
such obligation; and
(b) at the time of the accident, the vehicle—
(i) is being operated by or on behalf of his employer or some other person
by whom it is provided in pursuance of arrangements made with his employer;
and
(ii) is not being operated in the ordinary course of public transport service.
Explanation.—In this section, "vehicle" includes a vessel and an aircraft.
Accidents 35. An accident shall be deemed to arise out of and in the course of an employee's
happening employment notwithstanding that he is at the time of the accident acting in contravention of
while acting
the provisions of any law applicable to him, or of any orders given by or on behalf of his
in breach of
law, etc. employer or that he is acting without instructions from his employer, if—
(a) the accident 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
(b) the act is done for the purpose of and in connection with the employer's
trade or business.
Occupational 36. (1) If an employee employed in any employment specified in Part A of the Third
disease. Schedule contracts any disease specified therein as an occupational disease peculiar to that
employment, or if an employee employed in the employment specified in Part B of that
Schedule for a continuous period of not less than six months contracts any disease specified
therein as an occupational disease peculiar to that employment or if an employee employed
in any employment specified in Part C of that Schedule for such continuous period as the
Corporation may specify by regulations in respect of each such employment, contracts any
disease specified in such Part C as an occupational disease peculiar to that employment, the
contracting of the disease shall, unless the contrary is proved, be deemed to be an
"employment injury" arising out of and in the course of employment.
(2) Save as provided by sub-section (1), no benefit shall be payable to an employee in
respect of any disease unless the disease is directly attributable to a specific injury by
accident arising out of and in the course of his employment.
References to 37. (1) Any question—
medical board.
(a) whether the relevant accident has resulted in permanent disablement; or
(b) whether the extent of loss of earning capacity can be assessed provisionally
or finally; or
(c) whether the assessment of the proportion of the loss of earning capacity is
provisional or final; or
(d) in the case of provisional assessment, as to the period for which such
assessment shall hold good,
shall be determined by a medical board constituted in accordance with the provisions
of the regulations (hereinafter referred to as medical board) and any such question
shall hereafter be referred to as the "disablement question".SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 117
(2) The case of any insured person for permanent disablement benefit shall be referred
by the Corporation to a medical board for determination of the disablement question and if,
on that or any subsequent reference, the extent of loss of earning capacity of the insured
person is provisionally assessed, it shall again be so referred to the medical board not later
than the end of the period taken into account by the provisional assessment.
(3) Any decision under this Chapter of a medical board may be reviewed at any time by
the medical board if it is satisfied by fresh evidence that the decision was given in
consequence of the non-disclosure or misrepresentation by the employee or any other
person of a material fact whether the non-disclosure or misrepresentation was or was not
fraudulent.
(4) Any assessment of the extent of the disablement resulting from the relevant
employment injury may also be reviewed by a medical board if it is satisfied that since the
making of the assessment there has been a substantial and unforeseen aggravation of the
results of the relevant injury:
Provided that an assessment shall not be reviewed under this sub-section unless the
medical board is of the opinion, having regard to the period taken into account by the
assessment and the probable duration of the aggravation aforesaid, that substantial injustice
will be done by not reviewing it.
(5) Except with the leave of a medical appeal tribunal constituted by regulations, an
assessment shall not be reviewed under sub-section (3) on any application made less than
five years, or in the case of a provisional assessment, six months, from the date thereof and
on such a review the period to be taken into account by any revised assessment shall not
include any period before the date of the application.
(6) Subject to the foregoing provisions of this section, a medical board may deal with
a case of review in any manner in which it could deal with it on an original reference to it, and
in particular may make a provisional assessment notwithstanding that the assessment under
review was final and the provisions of sub-section (1) shall apply to an application for
review under this sub-section and to a decision of a medical board in connection with such
application as they apply to a case for disablement benefit under that sub-section and to a
decision of the medical board in connection with such case.
(7) If the insured person or the Corporation is aggrieved by any decision of the
medical board, the insured person or the Corporation, as the case may be, may appeal to the
medical appeal tribunal in the manner specified in the regulations or directly to the Employees'
Insurance Courts constituted under section 48.
38. (1) If an insured person dies as a result of an employment injury sustained as an Dependants'
employee under this Chapter (whether or not he was in receipt of any periodical payment for benefit.
temporary disablement in respect of the injury) dependants' benefit shall be payable to his
dependants specified in sub-clause (a) and sub-clause (b) of clause (24) of section 2 at such
rates and for such periods and subject to such conditions as may be prescribed by the
Central Government.
(2) In case the insured person dies without leaving behind him the dependants as
aforesaid, the dependants' benefit shall be paid to the other dependants of the deceased at
such rates and for such periods and subject to such conditions as may be prescribed by the
Central Government.
(3) Any decision awarding dependants' benefit under this Chapter may be reviewed at
any time by the Corporation if it is satisfied by fresh evidence that the decision was given in
consequence of non-disclosure or misrepresentation by the claimant or any other person of
a material fact (whether the non-disclosure or misrepresentation was or was not fraudulent)
or that the decision is no longer in accordance with this Chapter due to any birth or death or
due to the marriage, re-marriage, or infirmity of, or attainment of the age of eighteen years by,
a claimant.118 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) Subject to the provisions of this Chapter, the Corporation may, on such review
under sub-section (3), direct that the dependants' benefit be continued, increased, reduced
or discontinued.
Medical benefit. 39. (1) An insured person or (where such medical benefit is extended to his family) a
member of his family whose condition requires medical treatment and attendance shall be
entitled to receive medical benefit.
(2) Such medical benefit may be given either in the form of out-patient treatment and
attendance in a hospital or dispensary, clinic or other institution or by visits to the home of
the insured person or treatment as in-patient in a hospital or other institution.
(3) The qualification of an insured person and (where such medical benefit is extended
to his family) his family, to claim medical benefit and the conditions subject to which such
benefit may be given, the scale and period thereof shall be such as may be prescribed by the
Central Government in consultation with the Corporation:
Provided that an insured person who has attained the age of superannuation, a person
who retires under a Voluntary Retirement Scheme or takes premature retirement, and his
spouse shall be eligible to receive medical benefits subject to payment of contribution and
such other conditions as may be specified in the regulations:
Provided further that an insured person who ceases to be in insurable employment on
account of permanent disablement shall continue, subject to payment of contribution and
other conditions as may be prescribed by the Central Government, to receive medical benefit
till the date on which he would have vacated the employment on attaining the age of
superannuation had he not attained such permanent disablement.
(4) The Corporation may establish medical colleges, dental colleges, nursing colleges
and training institutes for its officers and staff with a view to improve the quality of services
provided under the Employees' State Insurance Scheme.
(5) The colleges and training institutions referred to in sub-section (4) may be run by
the Corporation itself or on the request of the Corporation by the Central Government, any
State Government, any Public Sector Undertaking of the Central Government or the State
Government or any other body notified by the Central Government.
Explanation.—For the purposes of sub-section (5), the expression ‘‘other body’’
means any such organisation of persons which the Central Government considers capable
to run colleges and training institutions referred to in sub-section (4).
Provision of 40. (1) The State Government shall provide for insured persons and (where such
medical benefit is extended to their families) their families in the State, reasonable medical, surgical
treatment by
and obstetric treatment:
State
Government Provided that the State Government may, with the approval of the Corporation, arrange
or by
for medical treatment at clinics of medical practitioners on such scale and subject to such
Corporation.
terms and conditions as may be agreed upon.
(2) Where the incidence of sickness benefit payment to insured persons in any State
is found to exceed the all-India average, the amount of such excess shall be shared between
the Corporation and the State Government in such proportion as may be fixed by agreement
between them:
Provided that the Corporation may in any case waive the recovery of the whole or any
part of the share which is to be borne by the State Government.
(3) The Corporation may enter into an agreement with a State Government in regard to
the nature and scale of the medical treatment that should be provided to insured persons
and (where such medical benefit is extended to the families) their families (including provision
of buildings, equipment, medicines, and staff) and for the sharing of the cost thereof and of
any excess in the incidence of sickness benefit to insured persons between the Corporation
and the State Government.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 119
(4) In default of agreement between the Corporation and any State Government as
aforesaid, the nature and extent of the medical treatment to be provided by the State
Government and the proportion in which the cost thereof and of the excess in the incidence
of sickness benefit shall be shared between the Corporation and that Government, shall be
determined by an arbitrator (who shall be or shall have been a Judge of the High Court of a
State appointed by the Chief Justice of India and the award of the arbitrator shall be binding
on the Corporation and the State Government).
(5) The State Government may, in addition to the Corporation under this Code, with
the previous approval of the Central Government, establish such organisation (by whatever
name called) to provide for certain benefits to employees in case of sickness, maternity and
employment injury:
Provided that any reference to the State Government in this Code relating to this
Chapter shall also include reference to the organisation as and when such organisation is
established by the State Government.
(6) The organisation referred to in sub-section (5) shall have such structure, discharge
functions, exercise powers and undertake such activities as may be prescribed by the State
Government.
(7) The Corporation may, with the approval of the Central Government establish and
maintain in a State such hospitals, dispensaries and other medical and surgical services as it
may think fit for the benefit of insured persons and (where such medical benefit is extended
to their families), their families.
(8) The Corporation may enter into agreement with any local authority, private body or
individual in regard to the provision of medical treatment and attendance for insured persons
and (where such medical benefit is extended to their families) their families, in any area and
sharing the cost thereof.
(9) The Corporation may also enter into agreement with any local authority, local body
or private body for commissioning and running Employees' State Insurance hospitals through
third party participation for providing medical treatment and attendance to insured persons
and (where such medical benefit has been extended to their families), to their families.
(10) Notwithstanding anything contained in any other provision of this Chapter, the
Corporation may, in consultation with the State Government, undertake the responsibility
for providing medical benefit to insured persons and (where such medical benefit is extended
to their families), to the families of such insured persons in the State subject to the condition
that the State Government shall share the cost of such medical benefit in such proportion as
may be agreed upon between the State Government and the Corporation.
(11) In the event of the Corporation exercising its power under sub-section (10), the
provisions relating to medical benefit under this Chapter shall apply, so far as may be, as if
a reference therein to the State Government were a reference to the Corporation.
(12) Notwithstanding anything contained in this Code, in respect of establishments
located in the States where medical benefit is provided by the Corporation, the Central
Government shall be the appropriate Government.
41. (1) Save as may be provided in the regulations, no person shall be entitled to General
commute for a lump sum any disablement benefit admissible under this Chapter. provisions as
to benefits.
(2) Save as may be provided in the regulations, no person shall be entitled to sickness
benefit or disablement benefit for temporary disablement on any day on which he works or
remains on leave or on a holiday in respect of which he receives wages or on any day on
which he remains on strike.
(3) A person who is in receipt of sickness benefit or disablement benefit (other than
benefit granted on permanent disablement)—
(a) shall remain under medical treatment at a dispensary, hospital, clinic or other
institution provided under this Chapter, and shall carry out the instructions given by
the medical officer or medical attendant in-charge thereof;120 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) shall not while under treatment do anything which might retard or prejudice
his chances of recovery;
(c) shall not leave the area in which medical treatment provided by this Chapter
is being given, without the permission of the medical officer, medical attendant or
such other authority as may be specified in this behalf by the regulations; and
(d) shall allow himself to be examined by any duly appointed medical officer or
other person authorised by the Corporation in this behalf.
(4) An insured person shall not be entitled to receive for the same period—
(a) both sickness benefit and maternity benefit; or
(b) both sickness benefit and disablement benefit for temporary disablement; or
(c) both maternity benefit and disablement benefit for temporary disablement.
(5) Where a person is entitled to more than one of the benefits mentioned in
sub-section (4), he shall be entitled to choose which benefit he shall receive.
(6) If a person dies during any period for which he is entitled to a cash benefit under
this Chapter, 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.
(7) (a) 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.
(b) 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.
(8) Where any person has received any benefit or payment under this Chapter when
he is not lawfully entitled thereto, he shall be liable to repay to the 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.
(9) The value of any benefits received other than cash payments shall be determined
by such authority as may be specified in the regulations made in this behalf and the decision
of such authority shall be final.
(10) The amount recoverable under this section may be recovered in the manner
specified under sections 131 to 134.
Corporation's 42. (1) If any employer,—
rights when
an employer (a) fails or neglects to insure under section 28, an employee at the time of his
fails to appointment or within such extended period as may be prescribed by the Central
register, etc.
Government, as a result of which the employee becomes disentitled to any benefit
under this Chapter; or
(b) insures under section 28, an employee on or after the date of accident which
resulted in personal injury to such employee which has the effect of making such
employee entitled to receive any dependant benefit or disablement benefit from the
Corporation; or
(c) fails or neglects to pay any contribution which under this Chapter he is liable
to pay in respect of any employee and by reason thereof such employee becomes
disentitled to any benefit or becomes entitled to a benefit on a lower scale,
then, the Corporation may, on being satisfied in the manner prescribed by the Central
Government that the benefit is payable to the employee, pay to the employee benefitSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 121
at such rate to which he is entitled or would have been entitled if the failure or neglect
would not have occurred, and the Corporation shall be entitled to recover from the
employer, subject to the employer being given an opportunity of being heard, the
capitalised value of the benefit paid to the employee, to be calculated in such manner
as may be prescribed by the Central Government:
Provided that the capitalised value to be calculated may be adjusted for the payment
of any contribution and interest or damages that the employer is liable to pay for delay in the
payment of or non-payment of such contribution.
(2) The amount recoverable under this section may be recovered as if it were an arrear
of land revenue or recovered in the manner specified under sections 131 to 134.
43. (1) Where the Corporation considers that the incidence of sickness among insured Liability of
persons is excessive by reason of— owner or
occupier of
(a) insanitary working conditions in a factory or other establishment or the factories, etc.,
neglect of the owner or occupier of the factory or other establishment to observe any for excessive
sickness
health regulations enjoined on him by or under any enactment for the time being in
benefit.
force, or
(b) insanitary conditions of any tenements or lodgings occupied by insured
persons and such insanitary conditions are attributable to the neglect of the owner of
the tenements or lodgings to observe any health regulations enjoined on him by or
under any enactments for the time being in force,
then, the Corporation may send to the owner or occupier of the factory or other
establishment or to the owner of the tenement or lodgings, as the case may be, a claim
for the payment of the amount of the extra expenditure incurred by the Corporation as
sickness benefit; and if the claim is not settled by agreement, the Corporation may
refer the matter, with a statement in support of its claim, to the appropriate Government.
(2) If the appropriate Government is of the opinion that a prima facie case for inquiry
is disclosed, it may appoint a competent person or persons to hold an inquiry into the matter
referred under sub-section (1).
(3) If upon inquiry under sub-section (2), it is proved to the satisfaction of the person
or persons holding the inquiry that the excess in incidence of sickness among the insured
persons is due to the default or neglect of the owner or occupier of the factory or other
establishment or the owner of the tenements or lodgings, as the case may be, the said person
or persons shall determine the amount of the extra expenditure incurred as sickness benefit,
and the person or persons by whom the whole or any part of such amount shall be paid to
the Corporation.
(4) A determination under sub-section (3) may be enforced as if it were a decree for
payment of money passed in a suit by a Civil Court.
(5) For the purposes of this section, "owner" of tenements or lodging shall include
any agent of the owner and any person who is entitled to collect the rent of the tenements or
lodgings as a lessee of the owner.
44. Notwithstanding anything contained in this Chapter, the Central Government may, Scheme for
in consultation with the Corporation, and by notification, frame scheme for other beneficiaries other
and the members of their families for providing medical facility in any hospital established by beneficiaries.
the Corporation in any area which is underutilised on payment of user charges, and prescribe
the terms and conditions subject to which the scheme may be operated.
Explanation.—For the purposes of this section,—
(a) "other beneficiaries" means persons other than employees insured under
section 28;122 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(b) "underutilised hospital" means any hospital not fully utilised by the
employees insured under section 28; and
(c) "user charges" means the amount which is to be charged from other
beneficiaries for medical facilities as may be specified in the regulations after prior
approval of the Central Government.
Schemes for 45. (1) Notwithstanding anything contained in this Chapter, the Central Government
unorganised may, in consultation with the Corporation, and by notification, frame scheme for unorganised
workers, gig workers, gig workers and platform workers and the members of their families for providing
workers and
benefits admissible under this Chapter by the Corporation.
platform
workers.
(2) The contribution, user charges, scale of benefits, qualifying and eligibility conditions
and other terms and conditions subject to which the scheme may be operated shall be such
as may be prescribed in the scheme.
Exemption of 46. The appropriate Government may, after consultation with the Corporation, by
factories or notification and subject to such conditions as may be specified in the notification, exempt
other
any factory or other establishment belonging to any local authority, from the operation of
establishments
this Chapter if the employees in any such factory or other establishment are otherwise in
belonging to
Government receipt of benefits substantially similar or superior to the benefits provided under this
or any local Chapter.
authority.
Contributions,
47. Notwithstanding anything contained in any other law for the time being in force,
etc., due to
any amount due under this Chapter shall be the charge on the assets of the establishment to
Corporation
to have which it relates and shall be paid in priority in accordance with the provisions of section 53
priority over of the Insolvency and Bankruptcy Code, 2016. 31 of 2016.
other debts.
Constitution
48. (1) The State Government shall, by notification, constitute an Employees' Insurance
of Employees'
Court for such local area as may be specified in the notification.
Insurance
Court.
(2) The Court shall consist of such number of Judges as the State Government may
think fit.
(3) Any person who is or has been a judicial officer or is a legal practitioner of five
years' standing shall be qualified to be a Judge of the Employees' Insurance Court.
(4) The State Government may appoint the same Court for two or more local areas or
two or more Courts for the same local area.
(5) Where more than one Court has been appointed for the same local area, the State
Government may by general or special order regulate the distribution of business between
them.
Matters to be
49. (1) If any question or dispute or claim arises as to—
decided by
Employees' (a) whether any person is an employee within the meaning of this Code relating
Insurance to this Chapter or whether he is liable to pay the employee's contribution; or
Court.
(b) the rate of wages or average daily wages of an employee for the purposes of
this Chapter; or
(c) the rate of contribution payable by an employer in respect of any employee
under this Chapter; or
(d) the person who is or was the employer in respect of any employee for the
purposes of this Chapter; or
(e) the right of any person to any benefit under this Chapter and as to the
amount and duration thereof; or
( f ) any direction issued by the Corporation on a review of any payment of
dependants' benefit under this Chapter; orSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 123
(g) any other matter which is in dispute between an employer and the Corporation
relating to this Chapter, or between an employer and a Contractor relating to this
Chapter or between a person and the Corporation relating to this Chapter or between
an employee and an employer or Contractor relating to this Chapter, in respect of any
contribution or benefit or other dues payable or recoverable under this Code relating
to this Chapter;
(h) claim for the recovery of contributions from the employer under this Code
relating to this Chapter;
(i) claim under sub-section (8) of section 41 for the recovery of the value or
amount of the benefits received by a person when he is not lawfully entitled thereto;
( j) claim against an employer under section 42;
(k) order of the appellate authority under section 127 in respect of Chapter IV;
(l) claim by an employer to recover contributions from any contractor under this
Code relating to this Chapter; and
(m) any other claim for the recovery of any benefit admissible under this Chapter,
such matter shall be decided by the Employers' Insurance Court.
(2) No matter which is in dispute between an employer and the Corporation in respect
of any contribution or any other dues under this Chapter shall be raised by the employer in
the Employees' Insurance Court unless he has deposited with the Court fifty per cent. of the
amount due from him as claimed by the Corporation:
Provided that the Employees' Insurance Court may, for reasons to be recorded in
writing, waive or reduce the amount to be deposited under this sub-section.
(3) No Civil Court shall have jurisdiction to decide or deal with any question or dispute
as specified in sub-section (1) or to adjudicate on any liability which by or under this Code
relating to this Chapter is to be decided by a medical board, or by a medical appeal tribunal
or by the Employees' Insurance Court.
50. (1) The Employees' Insurance Court shall have all the powers of a Civil Court for Powers of
the purposes of summoning and enforcing the attendance of witnesses, compelling the Employees'
discovery and production of documents and material objects, administering oath and recording Insurance
Court.
evidence and such court shall be deemed to be a Civil Court within the meaning of
2 of 1974. section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
(2) The Employees' Insurance Court shall follow such procedure as may be prescribed
by the State Government.
(3) All costs incidental to any proceeding before an Employees' Insurance Court shall,
subject to such rules as may be made in this behalf by the State Government, be in the
discretion of the court.
(4) An order of the Employees' Insurance Court shall be enforceable as if it were a
decree passed in a suit by a Civil Court.
51. (1) The manner of commencement of proceedings before the Employees Insurance Proceedings of
Court and the time limit of filing, fees and procedure thereof shall be such as may be prescribed Employees'
by the State Government. Insurance
Courts.
(2) Any application, appearance or act required to be made or done by any person to
or before an Employees' Insurance Court (other than appearance of a person required for the
purpose of his examination as a witness) may be made or done by a legal practitioner or by
an officer of a registered trade union authorised in writing by such person or with the
permission of the court, by any other person so authorised.124 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(3) An Employees' Insurance Court may submit any question of law for the decision of
the High Court and if it does so shall decide the question pending before it in accordance
with such decision.
Appeal to
52. (1) Save as expressly provided in this section, no appeal shall lie from an order of
High Court.
an Employees' Insurance Court.
(2) An appeal shall lie to the High Court from an order of an Employees' Insurance
Court if it involves a substantial question of law.
(3) The appeal shall be filed under this section within a period of sixty days from the
date of the order made by the Employees' Insurance Court.
(4) The provisions of sections 5 and 12 of the Limitation Act, 1963 shall apply to 36 of 1963.
appeals under this section.
(5) Where the Corporation has presented an appeal against an order of the Employees'
Insurance Court, that Court may, and if so directed by the High Court, shall, pending the
decision of the appeal, withhold the payment of any sum directed to be paid by the order
appealed against.
CHAPTER V
GRATUITY
Payment of
53. (1) Gratuity shall be payable to an employee on the termination of his employment
gratuity.
after he has rendered continuous service for not less than five years,—
(a) on his superannuation; or
(b) on his retirement or resignation; or
(c) on his death or disablement due to accident or disease; or
(d) on termination of his contract period under fixed term employment; or
(e) on happening any such event as may be notified by the Central Government:
Provided that 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:
Provided further that in the case of death of the employee, gratuity payable to
him shall be paid to his nominee or, if no nomination has been made, to his heirs, and
where any such nominees or heirs is a minor, the share of such minor, shall be deposited
with the 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.
(2) For every completed year of service or part thereof in excess of six months, the
employer shall 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 the 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 his employment, and, for this purpose, the wages paid for any
overtime work shall not be taken into account:
Provided further that in the case of 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:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 125
Provided also that in the case of an employee employed on fixed term employment or
a deceased employee, the employer shall pay gratuity on pro rata basis.
(3) The amount of gratuity payable to an employee shall not exceed such amount as
may be notified by the Central Government.
(4) For the purpose of computing the gratuity payable to an employee who is employed,
after his disablement, on reduced wages, his wages for the period preceding his disablement
shall be taken to be the wages received by him during that period, and his wages for the
period subsequent to his disablement shall be taken to be the wages as so reduced.
(5) Nothing in this section shall affect the right of an employee to receive better terms
of gratuity under any award or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (1),—
(a) the gratuity of an employee, whose services have been terminated for any
act, wilful omission or negligence causing any damage or loss to, or destruction of,
property belonging to the employer, shall be forfeited to the extent of the damage or
loss so caused;
(b) the gratuity payable to an employee may be wholly or partially forfeited—
(i) if the services of such employee have been terminated for his riotous or
disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act
which constitutes an offence involving moral turpitude, provided that such
offence is committed by him in the course of his employment.
Explanation 1.—For the purposes of this Chapter, 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.
Explanation 2.—For the purposes of this section, 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.
Explanation 3.—For the purposes of this section, it is clarified that 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.
54. For the purposes of this Chapter,— Continuous
service.
(A) an employee shall be said to be in continuous service for a period if he 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;
(B) where an employee (not being an employee employed in a seasonal
establishment) is not in continuous service within the meaning of clause (A), for any
period of one year or six months, he shall be deemed to be in continuous service under
the employer—
(a) 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—
(i)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; and126 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(ii) two hundred and forty days, in any other case;
(b) 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—
(i) 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
(ii) one hundred and twenty days, in any other case.
Explanation.—For the purposes of this clause, the number of days on
which an employee has actually worked under an employer shall include the
days on which—
(i) he 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 20 of 1946.
law applicable to the establishment; 14 of 1947.
(ii) he has been on leave with full wages, earned in the previous
year;
(iii) he has been absent due to temporary disablement caused by
accident arising out of and in the course of his employment; and
(iv) 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;
(C) where an employee, employed in a seasonal establishment, is not in
continuous service within the meaning of clause (A), 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 per cent. of the number
of days on which the establishment was in operation during such period.
Nomination. 55. (1) Each employee, who has completed one year of service, shall make, a nomination
within such time, in such form and in such manner, as may be prescribed by the appropriate
Government.
(2) An employee may, in his nomination, distribute the amount of gratuity payable to
him under this Chapter amongst more than one nominee.
(3) If an employee has a family at the time of making a nomination, the nomination shall
be made in favour of one or more members of his family, and any nomination made by such
employee in favour of a person who is not a member of his family shall be void.
(4) If at the time of making a nomination the employee has no family, the nomination
may be made in favour of any person or persons but if the employee subsequently acquires
a family, such nomination shall forthwith become invalid and the employee shall make,
within such time as may be prescribed by the appropriate Government, a fresh nomination in
favour of one or more members of his family.
(5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified
by an employee at any time, after giving to his employer a written intimation in such form and
in such manner as may be prescribed by the appropriate Government, of his intention to do so.
(6) If a nominee predeceases the employee, the interest of the nominee shall revert to
the employee who shall make a fresh nomination, in the form prescribed by the appropriate
Government, in respect of such interest.
(7) Every nomination, fresh nomination or alteration of nomination, as the case may be,
shall be sent by the employee to his employer, who shall keep the same in his safe custody.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 127
56. (1) A person who is eligible for payment of gratuity under this Chapter or any Determination
person authorised, in writing, to act on his behalf shall send a written application to the of amount of
gratuity.
employer, within such time and in such form, as may be prescribed by the appropriate
Government, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application
referred to in sub-section (1) has been made or not, determine the amount of gratuity and
give notice in writing to the person to whom the gratuity is payable and also to the competent
authority specifying the amount of gratuity so determined.
(3) 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.
(4) If the amount of gratuity payable under sub-section (3) is not paid by the employer
within the period specified in sub-section (3), the employer shall pay, from the date on which
the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not
exceeding the rate notified by the Central Government from time to time for repayment of
long term deposits:
Provided that no such interest shall be payable if the delay in the payment is due to the
fault of the employee and the employer has obtained permission in writing from the competent
authority for the delayed payment on this ground.
(5) (a) If there is any dispute as to the amount of gratuity payable to an employee
under this Chapter or as to the admissibility of any claim of, or in relation to, an employee for
payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall
deposit with the competent authority such amount as he admits to be payable by him as
gratuity.
(b) Where there is a dispute with regard to any matter or matters specified in clause (a),
the employer or employee or any other person raising the dispute may make an application
to the competent authority in the form prescribed by the Central Government for deciding
the dispute.
(c) The competent authority shall, after due inquiry and after giving the parties to the
dispute a reasonable opportunity of being heard, determine the matter or matters in dispute
and if, as a result of such inquiry any amount is found to be payable to the employee, the
competent authority shall direct the employer to pay such amount or, as the case may be,
such amount as reduced by the amount already deposited by the employer.
(d) The competent authority shall pay the amount deposited, including the excess
amount, if any, deposited by the employer, to the person entitled thereto.
(e) As soon as may be after a deposit is made under clause (a), the competent authority
shall pay the amount of the deposit—
(i) to the applicant where he is the employee; or
(ii) where the applicant is not the employee, to the nominee or, as the case may
be, the guardian of such nominee or heir of the employee if the competent authority is
satisfied that there is no dispute as to the right of the applicant to receive the amount
of gratuity.
(6) For the purpose of conducting an inquiry under sub-section (5), the competent
authority shall have the same powers as are vested in a court, while trying a suit, under the
5 of 1908. Code of Civil Procedure, 1908, in respect of the following matters, namely:—
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses.128 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(7) Any inquiry under this section shall be a judicial proceeding within the meaning of
section 193, section 228, and for the purpose of section 196, of the Indian Penal Code. 45 of 1860.
(8) Any person aggrieved by an order under sub-section (5) may, within sixty days
from the date of the receipt of the order, prefer an appeal to the appropriate Government or
such other authority as may be specified by the appropriate Government in this behalf:
Provided that the appropriate Government or the appellate authority, as the case may
be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring
the appeal within the said period of sixty days, extend the said period by a further period of
sixty days:
Provided further that no appeal by an employer shall be admitted unless at the time of
preferring the appeal, the appellant either produces a certificate of the competent authority
to the effect that the appellant has deposited with him an amount equal to the amount of
gratuity required to be deposited under sub-section (5), or deposits with the appellate
authority such amount.
(9) The appropriate Government or the appellate authority, as the case may be, may,
after giving the parties to the appeal a reasonable opportunity of being heard, confirm,
modify, or reverse the decision of the competent authority.
Compulsory 57. (1) With effect from such date as may be notified by the appropriate Government
insurance.
in this behalf, every employer, other than an employer or an establishment belonging to, or
under the control of, the Central Government or a State Government, shall, subject to the
provisions of sub-section (2), obtain an insurance in the manner prescribed by the Central
Government, for his liability for payment towards the gratuity under this Chapter, from any
insurance company regulated by the Authority as defined under clause (b) of sub-section (1)
of section 2 of the Insurance Regulatory and Development Authority Act, 1999: 41 of 1999.
Provided that different dates may be appointed for different establishments or class of
establishments or for different areas.
(2) The appropriate Government may, subject to such conditions as may be prescribed
by the Central Government, exempt every employer who had already established an approved
gratuity fund in respect of his employees and who desires to continue such arrangement,
and every employer employing five hundred or more persons who establishes an approved
gratuity fund in the manner prescribed by the Central Government from the provisions of
sub-section (1).
(3) For the purposes of effectively implementing the provisions of this section, every
employer shall within such time as may be prescribed by the Central Government get his
establishment registered with the competent authority in the manner prescribed by the
Central Government and no employer shall be registered under the provisions of this section
unless he has taken an insurance referred to in sub-section (1) or has established an approved
gratuity fund referred to in sub-section (2).
(4) The appropriate Government may prescribe rules to give effect to the provisions of
this section and the rules so prescribed may provide for the composition of the Board of
Trustees of the approved gratuity fund and for the recovery by the competent authority of
the amount of the gratuity payable to an employee from the insurer with whom an insurance
has been taken under sub-section (1), or as the case may be, the Board of Trustees of the
approved gratuity fund.
(5) Where an employer fails to make any payment by way of premium in respect of the
insurance referred to in sub-section (1) or by way of contribution to an approved gratuity
fund referred to in sub-section (2), he shall be liable to pay the amount of gratuity due under
this Chapter (including interest, if any, for delayed payments) forthwith to the competent
authority.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 129
Explanation.—In this section, "approved gratuity fund" shall have the same meaning
43 of 1961. as assigned to it in sub-section (5) of section 2 of the Income-tax Act, 1961.
58. (1)The appropriate Government may, by notification, appoint any person having Competent
such qualifications and experience as may be prescribed by that Government to be a competent Authority.
authority for implementation of any provision of this Chapter for such area as may be
specified in the notification.
(2) Where more than one competent authority has been appointed for any area, the
appropriate Government may, by general or special order, regulate the distribution of business
among them.
(3) Any competent authority may, for the purpose of deciding any matter referred to
him for decision under this Chapter, choose one or more persons possessing special
knowledge of any matter relevant to the matter under reference to assist him in holding the
inquiry relating thereto.
CHAPTER VI
MATERNITY BENEFIT
59. (1) No employer shall knowingly employ a woman in any establishment during the Employment
six weeks immediately following the day of her delivery, miscarriage or medical termination of of, or work
pregnancy. by, women
prohibited
(2) No woman shall work in any establishment during the six weeks immediately during certain
period.
following the day of her delivery, miscarriage or medical termination of pregnancy.
(3) Without prejudice to the provisions of section 62, no pregnant woman shall, on a
request being made by her in this behalf, be required by her employer to do, during the
period specified in sub-section (4), 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.
(4) The period referred to in sub-section (3) shall be—
(a) the period of one month immediately preceding the period of six weeks,
before the date of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman
does not avail of leave of absence under section 62.
60. (1) Subject to the other provisions of this Code, every woman shall be entitled to,
Right to
and her employer shall be liable for, the payment of maternity benefit at the rate of the payment of
average daily wage for the period of her actual absence, that is to say, the period immediately maternity
benefit.
preceding the day of her delivery, and any period immediately following that day.
Explanation.—For the purposes of this sub-section, "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
29 of 2019. under the Code on Wages, 2019.
(2) No woman shall be 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 under this sub-section, 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.130 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(3) 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:
Provided further that 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:
Provided also that 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 upto and including the date of the death of the child.
Explanation.—For the purposes of this sub-section, "child" includes a stillborn
child.
(4) 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.
(5) 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.
Continuance 61. Every woman entitled to the payment of maternity benefit under this Chapter,
of payment shall, notwithstanding the application of Chapter IV to the factory or other establishment in
of maternity
which she is employed, continue to be so entitled until she becomes qualified to claim
benefit in
certain cases. maternity benefit under section 32.
Notice of 62. (1) Any woman employed in an establishment and entitled to maternity benefit
claim for under the provisions of this Chapter may give notice in writing in such form as may be
maternity
prescribed by the Central Government, to her employer, stating that her maternity benefit
benefit and
payment and any other amount to which she may be entitled under this Chapter may be paid to her or
thereof. 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.
(2) 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 six weeks from the date of her
expected delivery.
(3) Any woman who has not given the notice when she was pregnant may give such
notice as soon as possible after her delivery.
(4) 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.
(5) 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.
(6) 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 orSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 131
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.
63. If a woman entitled to maternity benefit or any other amount under this Chapter, Payment of
dies before receiving such maternity benefit or amount, or where the employer is liable for maternity
maternity benefit under the second proviso to sub-section (3) of section 60, the employer benefit in case
of death of a
shall pay such benefit or amount to the person nominated by the woman in the notice given
woman.
under section 62 and in case there is no such nominee, to her legal representative.
64. Every woman entitled to maternity benefit under this Chapter shall also be entitled Payment of
to receive from her employer a medical bonus of three thousand five hundred rupees or as medical bonus.
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.
65. (1) In case of miscarriage, or medical termination of pregnancy, a woman shall, on
Leave for
production of such proof as may be prescribed by the Central Government, be entitled to miscarriage,
leave with wages at the rate of maternity benefit, for a period of six weeks immediately etc.
following the day of her miscarriage or, as the case may be, her medical termination of
pregnancy.
(2) In case of tubectomy operation, a woman shall, on production of such proof as
may be prescribed by the Central Government, 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.
(3) 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
as may be prescribed by the Central Government, be entitled, in addition to the period of
absence allowed to her under section 62, or, as the case may be, under sub-section (1), to
leave with wages at the rate of maternity benefit for a maximum period of one month.
66. Every woman delivered of a child who returns to duty after such delivery shall, in Nursing
addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks.
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.
67. (1) Every establishment to which this Chapter applies, in which fifty employees or Creche
such number of employees as may be prescribed by the Central Government, are employed facility.
shall have the facility of crèche within such distance as may be prescribed by the Central
Government, 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.
(2) Every establishment to which this Chapter 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 Chapter.
68. (1) When a woman absents herself from work in accordance with the provisions of Dismissal for
this Chapter, it shall be unlawful for her employer to discharge or dismiss her during or on absence during
account of such absence or to give notice of discharge or dismissal on such a day that the pregnancy.
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 this Chapter, shall not have the effect of depriving her of the
maternity benefit or medical bonus:132 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided further that 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.
(2) Any woman deprived of maternity benefit or medical bonus, or both, or discharged
or dismissed under sub-section (1), 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.
No deduction 69. No deduction from the normal and usual daily wages of a woman entitled to
of wages in
maternity benefit under the provisions of this Chapter shall be made by reason only of—
certain cases.
(a) the nature of work assigned to her by virtue of the provisions contained in
section 59; or
(b) breaks for nursing the child allowed to her under the provisions of section 66.
Forfeiture of 70. A woman who works for remuneration during the period she has been permitted by
maternity an employer to absent herself for availing the maternity benefits provided under this Chapter
benefit.
shall not be entitled to receive maternity benefit for such period.
Duties of 71. An abstract of the provisions of this Chapter and the rules relating thereto in the
employer. language or languages of the locality shall be exhibited in a conspicuous place by the
employer in every part of the establishment in which women are employed.
Power of 72. (1) Any woman claiming that,—
Inspector-
cum- (a) maternity benefit or any other amount to which she is entitled under this
Facilitator to Chapter and any person claiming that payment due under this Chapter has been
direct
improperly withheld;
payments to
be made.
(b) her employer has discharged or dismissed her during or on account of her
absence from work in accordance with the provisions of this Chapter,
may make a complaint to the Inspector-cum-Facilitator.
(2) The Inspector-cum-Facilitator may, on receipt of a complaint referred to in
sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that—
(a) payment has been wrongfully withheld, may direct the payment to be made
in accordance with his order in writing;
(b) she has been discharged or dismissed during or on account of her absence
from work in accordance with the provisions of this Chapter, may pass such orders as
he deems just and proper according to the circumstances of the case.
(3) Any person aggrieved by the order of the Inspector-cum-Facilitator under
sub-section (2) may, within thirty days from the date on which such order is communicated
to such person, appeal to the authority prescribed by the appropriate Government.
(4) The decision of the authority referred to in sub-section (3), where an appeal has
been preferred to it under that sub-section or of the Inspector-cum-Facilitator where no
such appeal has been preferred shall be final.
CHAPTER VII
EMPLOYEE'S COMPENSATION
Reports of
73. (1) Where, by any law for the time being in force, notice is required to be given to
fatal accidents
any authority, by or on behalf of an employer, of any accident occurring on his premises
and serious
bodily which results in death or serious bodily injury, the person required to give the notice shall,
injuries. 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:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 133
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.— For the purposes of this sub-section, "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.
(2) The State Government may, by notification, extend the provisions of sub-section (1)
to any class of premises other than those coming within the scope of that sub-section, and
may, by such notification, specify the persons who shall send the report to the competent
authority.
(3) Nothing in this section shall apply to establishments to which Chapter IV, relating
to Employees' State Insurance Corporation, applies.
74. (1) If personal injury is caused to an employee by accident or an occupational Employer's
disease listed in the Third Schedule arising out of and in the course of his employment, his liability for
employer shall be liable to pay compensation in accordance with the provisions of this compensation.
Chapter:
Provided that the employer shall not be so liable—
(a) in respect of any injury which does not result in the total or partial disablement
of the employee for a period exceeding three days; and
(b) in respect of any injury, not resulting in death or permanent total disablement
caused by an accident which is directly attributable to—
(i) the employee having been at the time thereof under the influence of
drink or drugs, or
(ii) 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
(iii) 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.
(2) An accident or an occupational disease referred to in sub-section (1) shall be
deemed to arise out of and in the course of an employee's employment notwithstanding that
he is at the time of the accident or at the time of contacting the occupational disease, referred
to in that sub-section, 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 —
(a) such accident or contacting 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
(b) the act is done for the purpose of and in connection with the employer's
trade or business.
(3) 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.134 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) 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.
(5) The Central Government or the State Government, after giving, by notification, not
less than three months' notice of its intention so to do, may, by a like notification, modify or
add any description of employment to the employments specified in the Second Schedule,
and shall specify in the case of employments so modified or added, the diseases which shall
be deemed for the purposes of this section to be occupational diseases peculiar to those
employments respectively, and thereupon the provisions of sub-section (2) shall apply, in
the case of a notification by the Central Government, within the territories to which this
Code extends or, in case of a notification by the State Government, within that State as if
such diseases had been declared by this Code to be occupational diseases peculiar to those
employments.
(6) Save as provided by sub-sections (2), (3) and (4), 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.
(7) Nothing herein contained shall be deemed to 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—
(a) if he has instituted a claim to compensation in respect of the accident or
disease before a competent authority; or
(b) 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.
Compensation 75. If death or injury is caused to any worker or a member of his family as a result of the
in case of
collapse of a house provided by the employer in a plantation, and the collapse is not solely
death of or
and directly attributable to a fault on the part of any occupant of the house or to a natural
injury in
plantation. calamity, the employer shall be liable to pay compensation under section 74.
Explanation.—For the purposes of this section, the expression "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.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 135
76. (1) Subject to the provisions of this Chapter, the amount of compensation shall Amount of
be,— Compensation.
(a) where death results from the injury, an amount equal to fifty per cent 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;
(b) where permanent total disablement results from the injury, an amount equal
to sixty per cent. 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 or, whichever is more:
Provided that the Central Government may, by notification from time to time, enhance
the amount of compensation specified in clauses (a) and (b).
Explanation.—For the purposes of clauses (a) and (b), "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;
(c) where permanent partial disablement results from the injury,—
(i) 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
(ii) 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 1.—For the purposes of this clause, 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.
Explanation 2.—In assessing the loss of earning capacity under
sub-clause (ii), 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;
(d) where temporary disablement, whether total or partial, results from the injury,
a half-monthly payment of the sum equivalent to twenty-five per cent. of monthly
wages of the employee, to be paid in accordance with the provisions of sub-section (4).
(2) Notwithstanding anything contained in sub-section (1), 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.
(3) The Central Government may, by notification, specify for the purposes of
sub-section (1), such monthly wages in relation to an employee as it may consider
necessary.136 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) The half-monthly payment referred to in clause (d) of sub-section (1) shall be
payable on the sixteenth day—
(i) from the date of disablement where such disablement lasts for a period of
twenty-eight days or more; or
(ii) 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—
(a) 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;
(b) 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.
(5) 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.
(6) 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.
(7) If the injury of the employee results in his death, the employer shall, in addition to
the compensation under sub-section (1), deposit with the competent authority a sum of not
less than fifteen thousand rupees for payment of the same to the eldest surviving dependent
of the employee towards the expenditure of the funeral of such employee or where the
employee did not have a dependent or was not living with his dependent at the time of his
death, to the person who actually incurred such expenditure:
Provided that the Central Government may, by notification from time to time, enhance
the amount specified in this sub-section.
Compensation 77. (1) Compensation under section 74 shall be paid as soon as it falls due.
to be paid
when due and (2) In cases where the employer does not accept the liability for compensation to the
damages for extent claimed, he shall be bound to make provisional payment based on the extent of
default.
liability which he accepts, and, such payment shall be deposited with the competent authority
or made to the employee, as the case may be, without prejudice to the right of the employee
to make any further claim.
(3) Where any employer is in default in paying the compensation due under this
Chapter within one month from the date it fell due, the competent authority shall—
(a) direct that the employer shall, in addition to the amount of the arrears, pay
interest at such rate as may be prescribed by the Central Government, on the amount
due; and
(b) if in his opinion, there is no justification for the delay, direct that the employer
shall, in addition to the amount of the arrears and interest thereon, pay a further sum
not exceeding fifty per cent. of such amount of arrears by way of damages:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 137
Provided that an order for the payment of damages shall not be passed under clause (b)
without giving a reasonable opportunity to the employer to show cause as to why it should
not be passed.
(4) The interest and the damages payable under sub-section (3) shall be paid to the
employee or his dependent, as the case may be.
78. For the purposes of calculation of compensation under section 74, the expression Method of
"monthly wages" means the amount of wages deemed to be payable for a month's service calculating
(whether the wages are payable by the month or by whatever other period or at piece rates), monthly
wages for
and calculated as follows, namely:—
purposes of
compensation.
(a) 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;
(b) 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;
(c) in other cases including cases in which it is not possible for want of necessary
information to calculate the monthly wages under clause (b), 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. — For the purpose of this section, "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.
79. (1) Any half-monthly payment payable under this Chapter, either under an agreement Review.
between the parties or under the order of a competent authority, may be reviewed by the
competent authority, on the application either of the employer or of the employee
accompanied by the certificate of a medical practitioner that there has been a change in the
condition of the employee or, subject to such conditions as may be prescribed by the State
Government, on application made without such certificate.
(2) Any half-monthly payment may, on review under this section, subject to the
provisions of this Chapter, be continued, increased, decreased or ended, or if the accident is
found to have resulted in permanent disablement, be converted to the lump sum to which the
employee is entitled less any amount which he has already received by way of half-monthly
payments.
80. Any right to receive half-monthly payments may, by agreement between the parties Commutation
or, if the parties cannot agree and the payments have been continued for not less than six of half-
monthly
months, on the application of either party to the competent authority be redeemed by the
payments.
payment of a lump sum of such amount as may be agreed to by the parties or determined by
the competent authority, as the case may be.
81. (1) No payment of compensation in respect of an employee whose injury has Distribution of
resulted in death, and no payment of a lump sum as compensation to a woman or a person compensation.
under a legal disability, shall be made otherwise than by deposit with the competent authority,
and no such payment made directly by an employer shall be deemed to be a payment of
compensation:138 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided that, in the case of a deceased employee, an employer may make to any
dependent advances on account of compensation of an amount equal to three months'
wages of such employee and so much of such amount as does not exceed the compensation
payable to that dependent shall be deducted by the competent authority from such
compensation and repaid to the employer.
(2) Any other sum amounting to not less than five thousand rupees which is payable
as compensation may be deposited with the competent authority on behalf of the person
entitled thereto.
(3) The receipt of the competent authority shall be a sufficient discharge in respect of
any compensation deposited with him.
(4) (a) On the deposit of any money under sub-section (1) as compensation in respect
of a deceased employee, the competent authority shall, if he thinks necessary, cause notice
to be published or to be served on each dependent in such manner as he thinks fit, calling
upon the dependents to appear before him on such date as he may fix for determining the
distribution of the compensation.
(b) If the competent authority is satisfied after any inquiry which he may deem necessary,
that no dependent exists, he shall repay the balance of the money to the employer by whom
it was paid.
(c) The competent authority shall, on an application by the employer, furnish a statement
showing in detail all disbursements made.
(5) The compensation deposited in respect of a deceased employee shall, subject to
any deduction made under sub-section (1), be apportioned by order by the competent
authority among the dependents of the deceased employee or any of them in such proportion
as the competent authority thinks fit, or may, in the discretion of the competent authority, be
allotted to any one dependent:
Provided that the competent authority shall not make any order under this
sub-section without hearing the dependents and shall record reasons in the order for the
apportionment of such compensation among dependents or any of them, as the case may
be.
(6) Where any compensation deposited with the competent authority is payable to
any person, other than a woman or a person under legal disability, the competent authority
may pay the compensation to the person entitled thereto.
(7) Where any lump sum deposited with the competent authority is payable to a
woman or a person under a legal disability, such sum may be invested, applied or otherwise
dealt with for the benefit of the woman, or of such person during his disability, in such
manner as the competent authority may direct; and where a half-monthly payment is payable
to any person under a legal disability, the competent authority may, of his own motion or on
an application made to him in this behalf, order that the payment be made during the disability
to any dependent of the employee or to any other person, whom the competent authority
thinks fit to provide for the welfare of the employee.
(8) Where, on application made to him in this behalf or otherwise, the competent
authority is satisfied that, on account of neglect of children on the part of a parent or on
account of the variation of the circumstances of any dependent or for any other sufficient
cause, an order of the competent authority as to the distribution of any sum paid as
compensation or as to the manner in which any sum payable to any such dependent is to be
invested, applied or otherwise dealt with, ought to be varied, the competent authority may
make such orders for the variation of the former order as he thinks just in the circumstances
of the case:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 139
Provided that no such order prejudicial to any person shall be made unless such
person has been given an opportunity of showing cause as to why the order should not be
made, or shall be made in any case in which it would involve the repayment by a dependent
of any sum already paid to him.
(9) Where the competent authority varies any order under sub-section (8) by reason
of the fact that payment of compensation to any person has been obtained by fraud,
impersonation or other improper means, any amount so paid to or on behalf of such person
may be recovered in the manner as specified in sub-section (10).
(10) The competent authority may recover as an arrear of land revenue any amount
referred to in sub-section (9), and for such purpose the competent authority shall be deemed
1 of 1890. to be a public officer within the meaning of section 5 of the Revenue Recovery Act, 1890.
82. (1) No claim for compensation shall be entertained by a competent authority Notice and
unless notice of the accident has been given in the manner hereinafter provided as soon as claim.
practicable after the happening thereof and unless the claim is preferred before him within
two years of the occurrence of the accident or, in case of death, within two years from the
date of death:
Provided that where the accident is the contracting of a disease in respect of which the
provisions of sub-section (3) of section 74 are applicable, the accident shall be deemed to
have occurred on the first of the days during which the employee was continuously absent
from work in consequence of the disablement caused by the disease:
Provided further that in case of partial disablement due to the contracting of any such
disease and which does not force the employee to absent himself from work, the period of
two years shall be counted from the day the employee gives notice of the disablement to his
employer:
Provided also that if an employee who, having been employed in an employment for a
continuous period specified under sub-section (3) of section 74 in respect of that employment,
ceases to be so employed and develops symptoms of an occupational disease peculiar to
that employment within two years of the cessation of employment, the accident shall be
deemed to have occurred on the day on which the symptoms were first detected.
(2) The want of or any defect or irregularity, in a notice given under sub-section (1)
shall not be a bar to the entertainment of a claim—
(a) if the claim is preferred in respect of the death of an employee resulting from
an accident which occurred on the premises of the employer, or at any place where the
employee at the time of the accident was working under the control of the employer or
of any person employed by him, and the employee died on such premises or at such
place, or on any premises belonging to the employer, or died without having left the
vicinity of the premises or place where the accident occurred, or
(b) if the employer or any one of several employers or any person responsible to
the employer for the management of any branch of the trade or business in which the
injured employee was employed had knowledge of the accident from any other source
at or about the time when it occurred:
Provided that the competent authority may entertain and decide any claim to
compensation in any case notwithstanding that the notice has not been given, or the
claim has not been preferred in due time as provided under sub-section (1), if he is
satisfied that the failure so to give the notice or prefer the claim, as the case may be,
was due to sufficient cause.
(3) Every such notice shall give the name and address of the person injured and shall
state the cause of the injury and the date on which the accident happened, and shall be
served on the employer or upon any one of several employers, or upon any person responsible140 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
to the employer for the management of any branch of the trade or business in which the
injured employee was employed.
(4) The appropriate Government may require that any class of employers as may be
prescribed by that Government shall maintain, at their premises, at which employees are
employed, a notice-book, in such form as may be prescribed by that Government, which
shall be readily accessible at all reasonable times to any injured employee employed on the
premises and to any person acting bonafide on his behalf.
(5) A notice under this section may be served by delivering it at, or sending it by
registered post addressed to, the residence or any office or place of business of the person
on whom it is to be served, or where possible, electronically or, where a notice-book is
maintained, by entry in the notice-book.
Special 83. (1) The provisions of this section shall, subject to the modifications specified in
provisions
this section, apply in case of employees who are—
relating to
accidents
occurring
outside Indian
territory.
(a) masters of ships or seamen; or
(b) captain and other members of crew of aircraft;
(c) persons recruited by companies registered in India and working as such
abroad;
(d) persons sent for work abroad along with motor vehicles registered under the
Motor Vehicles Act, 1988 as drivers, helpers, mechanics, cleaners or other employees.
59 of 1988.
(2) The notice of the accident and the claim for compensation by a person injured may
be served on the following persons, as if they were the employer—
(a) in case of accident where the person injured is a seamen, but not the master
of the ship, on the master of the ship;
(b) in case of accident where the person injured is a member of crew of an
aircraft, but not the captain of the aircraft, on the captain of the aircraft;
(c) in case of persons recruited by companies registered in India and working as
such abroad, on the local agent of the company;
(d) in case of persons sent for work abroad along with motor vehicles as drivers,
helpers, mechanics, cleaners or other employees, on the local agent of the owner of
the motor vehicle, in the country of the accident:
Provided that where the accident happened and the disablement commenced
on board, the ship or aircraft, as the case may be, then, it shall not be necessary for any
seaman or members of the crew of aircraft to give any notice of the accident.
(3) The claim of compensation shall be made—
(a) in the case of the death of an employee referred to in sub-section (1), one
year after the news of the death has been received by the claimant;
(b) in the case where the ship or the aircraft as the case may be, has been or is
deemed to have been lost with all hands, eighteen months of the date on which the
ship or the aircraft was, or is deemed to have been, so lost:
Provided that the competent authority may entertain any claim to compensation
in any case notwithstanding that the claim has not been preferred in due time as
provided in this sub-section, if he is satisfied that the failure so to prefer the claim was
due to sufficient cause.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 141
(4) Where an injured employee referred to in sub-section (1) is discharged or left
behind in any part of India or in any foreign country, then, any depositions taken by any
Judge or Magistrate in that part or by any Consular Officer in the foreign country and
transmitted by the person by whom they are taken to the Central Government or any State
Government shall, in any proceedings for enforcing the claim, be admissible in evidence—
(a) if the deposition is authenticated by the signature of the Judge, Magistrate
or Consular Officer before whom it is made;
(b) if the defendant or the person accused, as the case may be, had an opportunity
by himself or his agent to cross-examine the witness; and
(c) if the deposition was made in the course of a criminal proceeding, on proof
that the deposition was made in the presence of the person accused,
and it shall not be necessary in any case to prove the signature or official character of the
person appearing to have signed any such deposition and a certificate by such person that
the defendant or the person accused had an opportunity of cross-examining the witness and
that the deposition if made in a criminal proceeding was made in the presence of the person
accused shall, unless the contrary is proved, be sufficient evidence that he had that
opportunity and that it was so made.
(5) No half-monthly payment shall be payable in respect of the period during which
the owner of the ship is, under any law in force for the time being relating to merchant
shipping, liable to defray the expenses of maintenance of the injured master or seaman.
(6) Failure to give a notice or make a claim or commence proceedings within the time
required by this section shall not be a bar to the maintenance of proceedings under this
Chapter in respect of any personal injury, if such proceedings under this Chapter are
commenced within one month from the date on which the said certificate of the appropriate
Government was furnished to the person commencing the proceedings.
84. (1) Where an employee has given notice of an accident, he, shall, if the employer, Medical
before the expiry of three days from the time at which service of the notice has been effected, examination.
offers to have him examined free of charge by a medical practitioner, submit himself for such
examination, and any employee who is in receipt of a half-monthly payment under this
Chapter shall, if so required, submit himself for such examination from time to time:
Provided that an employee shall not be required to submit himself for examination by
a medical practitioner at more than such frequent interval as may be prescribed by the
appropriate Government.
(2) If an employee, on being required to do so by the employer under sub-section (1)
or by the competent authority at any time, refuses to submit himself for examination by a
medical practitioner or in any way obstructs the same, his right to compensation shall be
suspended during the continuance of such refusal or obstruction unless in the case of
refusal, he was prevented by any sufficient cause from so submitting himself.
(3) If an employee, before the expiry of the period within which he is liable under
sub-section (1) to be required to submit himself for medical examination, voluntarily leaves
the vicinity of the place in which he was employed without having been so examined, his
right to compensation shall be suspended until he returns and offers himself for such
examination:
Provided that where such employee proves before the medical practitioner that he
could not so submit himself for medical examination due to the circumstances beyond his
control and he was also handicapped to communicate such information in writing, the medical
practitioner may after recording such reasons in writing, condone the delay and his right to
compensation shall be revived as if no such suspension was made.142 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) Where an employee, whose right to compensation has been suspended under
sub-section (2) or sub-section (3), dies without having submitted himself for medical
examination as required by either of those sub-sections, the competent authority may, if he
thinks fit, direct the payment of compensation to the dependants of the deceased employee.
(5) Where under sub-section (2) or sub-section (3), a right to compensation is
suspended, no compensation shall be payable in respect of the period of suspension, and,
if the period of suspension commences before the expiry of the waiting period referred to in
clause (ii) of sub-section (4) of section 76, the waiting period shall be increased by the
period during which the suspension continues.
(6) Where an injured employee has refused to be attended by a medical practitioner
whose services have been offered to him by the employer free of charge or having accepted
such offer has deliberately disregarded the instructions of such medical practitioner, then, if
it is proved that the employee has not thereafter been regularly attended by a medical
practitioner or having been so attended has deliberately failed to follow his instructions and
that such refusal, disregard or failure was unreasonable in the circumstances of the case and
that the injury has been aggravated thereby, the injury and resulting disablement shall be
deemed to be of the same nature and duration as they might reasonably have been expected
to be if the employee had been regularly attended by a medical practitioner, whose instructions
he had followed, and compensation, if any, shall be payable accordingly.
Contracting. 85. (1) Where any employer in the course of or for the purposes of his trade or
business contracts with contractor for the execution by or under the contractor of the whole
or any part of any work which is ordinarily part of the trade or business of the employer, the
employer shall be liable to pay to any employee employed in the execution of the work any
compensation, which he would have been liable to pay if that employee had been immediately
employed by him; and that the amount of compansation shall be calculated with reference to
the wages of the employee under the employer by whom he is immediately employed.
(2) Where the employer is liable to pay compansation under this section, he shall be
entitled to be indemnified by the contractor, or any other person from whom the employee
could have recovered the compansation and where a contractor who is himself an employer
is liable to pay compansation or to indemnify an employer under this section, he shall be
entitled to be indemnified by any person standing to him in relation of a contractor from
whom the employee could have recovered the compansation, and all questions as to the
right to and the amount of any such indemnity shall, in default of agreement, be settled by
the competent authority.
(3) Nothing in this section shall be construed as preventing an employee from
recovering compansation referred to in sub-section (2) from the contractor instead of the
employer.
(4) The provisions of this section shall not apply in any case where the accident
occurred elsewhere than on, in or about the premises on which the employer has undertaken
or usually undertakes, as the case may be, to execute the work or which are otherwise under
his control or management.
Remedies of 86. Where an employee has recovered compensation in respect of any injury caused
employer under circumstances creating a legal liability of some person other than the person by whom
against
the compensation was paid to pay damages in respect thereof, the person by whom the
stranger.
compensation was paid and any person who has been called on to pay an indemnity under
section 85 shall be entitled to be indemnified by the person so liable to pay damages as
aforesaid.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 143
87. (1) Where any employer has entered into a contract with any insurers in respect of Insolvency of
any liability under this Chapter to any employee, then, in the event of the employer becoming employer.
insolvent or making a composition or scheme of arrangement with his creditors or, if the
employer is a company, in the event of the company having commenced to be wound up, the
rights of the employer against the insurers as respects that liability shall, notwithstanding
anything in any law for the time being in force relating to insolvency or the winding up of
companies, be transferred to and vest in the employee, and upon any such transfer the
insurers shall have the same rights and remedies and be subject to the same liabilities as if
they were the employer, so, however, that the insurers shall not be under any greater liability
to the employee than they would have been under the employer.
(2) If the liability of the insurers to the employee is less than the liability of the
employer to the employee, the burden of proof shall lie on the employee for the balance in
the insolvency proceedings or liquidation.
(3) Where in any case such as is referred to in sub-section (1) the contract of the
employer with the insurers is void or voidable by reason of non-compliance on the part of
the employer with any terms or conditions of the contract (other than a stipulation for the
payment of premium), the provisions of that sub-section shall apply as if the contract were
not void or voidable, and the insurers shall be entitled to prove in the insolvency proceedings
or liquidation for the amount paid to the employee:
Provided that the provisions of this sub-section shall not apply in any case in which
the employee fails to give notice to the insurers of the happening of the accident and of any
resulting disablement as soon as practicable after he becomes aware of the institution of the
insolvency or liquidation proceedings.
(4) There shall be deemed to be included among the debts which under section 53 of
31 of 2016. the Insolvency and Bankruptcy Code, 2016 or under section 320 of the Companies Act, 2013
18 of 2013.
are in the distribution of the assets of an insolvent or in the distribution of the assets of a
company being wound up to be paid in priority to all other debts, the amount due in respect
of any compensation, the liability accrued before the date of the order of adjudication of the
insolvent or the date of the commencement of the winding up, as the case may be, and the
provisions of that Code and Act shall have effect accordingly.
(5) Where the compensation is a half-monthly payment, the amount due in respect
thereof shall, for the purposes of this section, be taken to be the amount of the lump sum for
which the half-monthly payment could, if redeemable, be redeemed if applications were
made for that purpose under section 80, and a certificate of the competent authority as to the
amount of such sum shall be conclusive proof thereof.
(6) The provisions of sub-section (4) shall apply in the case of any amount for which
an insurer is entitled to prove under sub-section (3), but otherwise those provisions shall
not apply where the insolvent or the company being wound up has entered into such a
contract with insurers as is referred to in sub-section (1).
(7) The provisions of this section shall not apply where a company is wound up
voluntarily merely for the purposes of reconstruction or of amalgamation with another
company.
88. (1) Where a competent authority receives information from any source that an Power to
employee has died as a result of an accident arising out of and in the course of his employment, require from
employers
he may send by registered post or where possible, electronically a notice to the employee's
statements
employer requiring him to submit, within thirty days of the service of the notice, a statement, regarding fatal
in such form as may be prescribed by the appropriate Government, giving the circumstances accidents.
attending the death of the employee, and indicating whether, in the opinion of the employer,144 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
he is or is not liable to deposit compensation on account of the death and a copy of such
notice shall also be sent by the competent authority in the same manner to the dependants
of such employee ascertained by the competent authority in such manner as may be
prescribed by the appropriate Government.
(2) If the employer is of the opinion that he is liable to deposit compensation, he shall
make the deposit within thirty days of the service of the notice.
(3) If the employer is of the opinion that he is not liable to deposit compensation, he
shall in his statement indicate the grounds on which he disclaims liability.
(4) Where the employer has so disclaimed liability, the competent authority, after such
inquiry as he may think fit, may inform any of the dependants of the deceased employee,
that it is open to the dependants to prefer a claim for compensation, and may give them such
other further information as he may think fit.
(5) Where in the opinion of the competent authority, a dependant of the deceased
employee is not in a position to engage an advocate to file a claim for compensation, the
competent authority may provide an advocate to such dependant in such manner as may be
prescribed by the appropriate Government for such purpose.
Registration 89. (1) Where the amount of any lump sum payable as compensation has been settled
of
by agreement, whether by way of redemption of a half-monthly payment or otherwise, or
agreements.
where any compensation has been so settled as being payable to a woman, or a person
under a legal disability, a memorandum thereof shall be sent by the employer to the competent
authority, who shall, on being satisfied as to its genuineness, record the memorandum in a
register, electronically or otherwise, in such manner as may be prescribed by the appropriate
Government:
Provided that—
(a) no such memorandum shall be recorded before seven days after
communication by the competent authority of notice to the parties concerned;
(b) the competent authority may at any time rectify the register;
(c) where it appears to the competent authority that an agreement as to the
payment of a lump sum whether by way of redemption of a half-monthly payment or
otherwise, or an agreement as to the amount of compensation payable, to a woman or
a person under a legal disability ought not to be registered by reason of the inadequacy
of the sum or amount, or by reason of the agreement having been obtained by fraud or
undue influence or other improper means, the competent authority may refuse to
record the memorandum of the agreement and may make such order including an order
as to any sum already paid under the agreement, as the competent authority thinks
just in the circumstances.
(2) An agreement for the payment of compensation which has been registered under
sub-section (1) shall be enforceable under this Code notwithstanding anything contained
in the Indian Contract Act, 1872, or in any other law for the time being in force. 9 of 1872.
(3) Where a memorandum of any agreement, the registration of which is required
under this section, is not sent to the competent authority as required by this section, the
employer shall be liable to pay the full amount of compensation which he is liable to pay
under the provisions of this Chapter, and notwithstanding anything contained in the proviso
to sub-section (1) of section 76, shall not, unless the competent authority otherwise directs,
be entitled to deduct more than half of any amount paid to the employee by way of
compensation whether under the agreement or otherwise.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 145
90. (1) If any question arises in any proceedings under this Chapter as to the liability Reference to
of any person to pay compensation (including any question as to whether a person injured competent
authority.
is or is not an employee or as to the amount or duration of compensation (including any
question as to the nature or extent of disablement), the question shall, in default of agreement,
be settled by a competent authority.
(2) No Civil Court shall have jurisdiction to settle, decide or deal with any question
which is by or under this Chapter required to be settled, decided or dealt with by a competent
authority or to enforce any liability incurred under this Chapter.
91. (1) The State Government may, by notification, appoint any person who is or has Appointment
been a member of a State Judicial Service for a period of not less than five years or is or has of competent
been for not less than five years an advocate or is or has been a Gazetted Officer for not less authority.
than five years having educational qualifications and experience in personnel management,
human resource development, industrial relations and legal affairs or such other experience
and qualifications as may be prescribed by the appropriate Government to be a competent
authority for Employee's Compensation for such area as may be specified in the notification.
(2) Where more than one competent authority has been appointed for any area, the
State Government may, by general or special order, regulate the distribution of business
amongst them.
(3) Any competent authority may, for the purpose of deciding any matter referred to
him for decision under this Chapter, choose one or more persons possessing special
knowledge of any matter relevant to the matter under inquiry to assist him in holding the
inquiry.
92. (1) Where any matter under this Chapter is to be done by or before a competent
Venue of
authority, the same shall, subject to the provisions of this Chapter and in the manner prescribed proceedings
in this behalf by the State Government, be done by or before the competent authority for the and transfer.
area in which—
(a) the accident took place which resulted in the injury; or
(b) the employee or in case of his death, the dependant claiming the
compensation ordinarily resides; or
(c) the employer has his registered office:
Provided that no matter shall be processed before or by a competent authority,
other than the competent authority having jurisdiction over the area in which the
accident took place, without his giving notice electronically or otherwise in the manner
prescribed by the Central Government to the competent authority having jurisdiction
over the area and the State Government concerned:
Provided further that, where the employee, being the master of a ship or a
seaman or the captain or a member of the crew of an aircraft or an employee in a motor
vehicle or a company, meets with the accident outside India, any such matter may be
done by or before a competent authority for the area in which the owner or agent of the
ship, aircraft or motor vehicle resides or carries on business or the registered office of
the company is situate, as the case may be.
(2) If a competent authority, other than the competent authority with whom any money
has been deposited under section 81, proceeds with a matter under this Chapter, the former
may for the proper disposal of the matter call for transfer of any records or moneys remaining
with the latter and on receipt of such a request, he shall comply with the same.
(3) If a competent authority is satisfied that any matter arising out of any proceedings
pending before him can be more conveniently dealt with by any other competent authority,
whether in the same State or not, he may, subject to rules made under this Code relating to
this Chapter, order such matter to be transferred to such other competent authority either for146 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
report or for disposal, and, if he does so, shall forthwith transmit to such other competent
authority all documents relevant for the decision of such matter and, where the matter is
transferred for disposal, shall also transmit in the manner as may be prescribed by the
Central Government any money remaining in his hands or invested by him for the benefit of
any party to the proceedings:
Provided that the competent authority shall not, where any party to the proceedings
has appeared before him, make any order of transfer relating to the distribution among
dependants of a lump sum without giving such party an opportunity of being heard.
(4) The competent authority to whom any matter is so transferred shall, subject to
rules made under this Code relating to this Chapter, inquire therein to and, if the matter was
transferred for report, return his report thereon or, if the matter was transferred for disposal,
continue the proceedings as if they had originally commenced before him.
(5) On receipt of a report from a competent authority to whom any matter has been
transferred for report under sub-section (3), the competent authority by whom it was referred
shall decide the matter referred to in conformity with such report.
(6) The State Government may transfer any matter from any competent authority
appointed by it to any other competent authority appointed by it.
Form of 93. (1) Where an accident occurs in respect of which liability to pay compensation
application. under this Chapter arises, a claim for such compensation may, subject to the provisions of
this Chapter, be made before the competent authority.
(2) Subject to the provisions of sub-section (1), no application for the settlement of
any matter by competent authority, other than an application by a dependant or joint
application by dependants for compensation, shall be made unless and until some question
has arisen between the parties in connection therewith which they have been unable to
settle by agreement.
(3) An application to a competent authority for claim under sub-section (1) or settlement
under sub-section (2) may be made electronically or otherwise in such form and in such
manner accompanied by such fee, if any, as may be prescribed by the Central Government.
(4) The time limit for the disposal of applications under this section and the costs
incidental to the proceedings under this section to be imposed by the competent authority
shall be such as may be prescribed by the State Government.
Power of 94. (1) Where any sum has been deposited by an employer as compensation payable
competent in respect of an employee whose injury has resulted in death, and in the opinion of the
authority to
competent authority such sum is insufficient, the competent authority may, by notice in
require further
writing stating his reasons, call upon the employer to show cause why he should not make
deposit in
cases of fatal a further deposit within such time as may be stated in the notice.
accident.
(2) If the employer fails to show cause to the satisfaction of the competent authority,
the competent authority may make an award determining the total amount payable, and
requiring the employer to deposit the deficiency.
Powers and 95. The competent authority shall have all the powers of a Civil Court under the Code
procedure of of Civil Procedure, 1908, for the purpose of taking evidence on oath (which such competent
5 of 1908.
competent authority is hereby empowered to impose) and of enforcing the attendance of witnesses and
authority.
compelling the production of documents and material objects, and the competent authority
shall be deemed to be a Civil Court for all the purposes of section 195 and of Chapter XXVI
of the Code of Criminal Procedure, 1973. 2 of 1974.
Appearance of 96. Any appearance, application or act required to be made or done by any person
parties. before or to a competent authority (other than an appearance of a party which is required for
the purpose of his examination as a witness) may be made or done on behalf of such person
by a legal practitioner or by an official of an Insurance Company or a registered Trade UnionSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 147
or by an Inspector-cum-Facilitator appointed under sub-section (1) of section 122 or by any
other officer specified by the State Government in this behalf, authorised in writing by such
person, or, with the permission of the competent authority, by any other person so authorised.
97. The competent authority shall make a brief memorandum of the substance of the Method of
evidence of every witness as the examination of the witness proceeds, and such memorandum recording
evidence.
shall be authenticated under the hand of the competent authority or in the manner as may be
prescribed by the State Government and shall form part of the record:
Provided that, if the competent authority is prevented from making such memorandum,
he shall record the reason of his inability to do so and shall cause such memorandum to be
made in writing from his dictation and shall sign the same, and such memorandum shall form
part of the record:
Provided further that the evidence of any medical witness shall be taken down as
nearly as may be word for word.
98. A competent authority may, if he thinks fit, submit any question of law for the Power to
decision of the High Court and, if he does so, shall decide the question in conformity with submit cases.
such decision.
99. (1) An appeal shall lie to the High Court from the following orders of a competent Appeal against
authority under this Chapter, namely:— order of
competent
(a) an order awarding as compensation a lump sum whether by way of authority.
redemption of a half-monthly payment or otherwise or disallowing a claim in full or in
part for a lump sum;
(b) an order awarding interest or penalty by way of damages under section 77;
(c) an order refusing to allow redemption of a half-monthly payment;
(d) an order providing for the distribution of compensation among the
dependants of a deceased employee, or disallowing any claim of a person alleging
himself to be such dependant;
(e) an order allowing or disallowing any claim for the amount of an indemnity
under the provisions of sub-section (2) of section 85; or
(f) an order refusing to register a memorandum of agreement or registering the
same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question
of law is involved in the appeal, and in the case of an order other than an order as
referred to in clause (c), unless the amount in dispute in the appeal is not less than ten
thousand rupees or such higher amount as the Central Government may, by notification
in the Official Gazette, specify:
Provided further that no appeal shall lie in any case in which the parties have
agreed to abide by the decision of the competent authority, or in which the order of the
competent authority gives effect to an agreement come to by the parties:
Provided also that no appeal by an employer under clause (a) shall lie unless the
memorandum of appeal is accompanied by a certificate by the competent authority to
the effect that the appellant has deposited with him the amount payable under the
order appealed against.
(2) The period of limitation for an appeal under this section shall be sixty days.
(3) The provisions of section 5 of the Limitation Act, 1963, shall be applicable to
36 of 1963.
appeal under this section.148 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
CHAPTER VIII
SOCIAL SECURITY AND CESS IN RESPECT OF BUILDING AND OTHER CONSTRUCTION WORKERS
Levy and 100. (1) There shall be levied and collected a cess for the purposes of social security
collection of and welfare of building workers at such rate not exceeding two per cent. but not less than
cess.
one per cent. of the cost of construction incurred by an employer, as the Central Government
may, by notification, from time to time specify.
Explanation.— For the purposes of this sub-section, 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 Chapter
VII.
(2) The cess levied under sub-section (1) 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.
(3) The proceeds of the cess collected under sub-section (2) shall be deposited by the
local authority or such other authority notified by the State Government to the Board in
such manner as may be prescribed by the Central Government.
Explanation.—For the purposes of this Chapter, the expression "Board" means the
Building and other construction Workers' Welfare Board constituted under section 7.
(4) Notwithstanding anything contained in sub-section (1) or sub-section (2), the
cess leviable under this Chapter including payment of such cess in advance may, subject to
final assessment to be made, be collected at a uniform rate or rates as may be prescribed by
the Central Government on the basis of the quantum of the building or other construction
work involved.
Interest 101. If any employer fails to pay any amount of cess payable under section 100 within
payable on
such time as may be prescribed by the appropriate Government, such employer shall be
delay in
liable to pay interest at such rate as may be prescribed by the Central Government, on the
payment of
cess. amount of cess, to be paid, for the period from the date on which such payment is due till
such amount is actually paid.
Power to 102. Notwithstanding anything contained in this Chapter, the Central Government
exempt from
may, by notification, exempt any employer or class of employers in a State from the payment
cess.
of cess payable under this Chapter where such cess is already levied and payable under any
corresponding law in force in that State.
Self- 103. (1) The employer shall, within sixty days or such period as may be notified by the
assessment of
appropriate Government of the completion of his each building and other construction
cess.
work, pay such cess (adjusting the advance cess already paid under section 100) payable
under this Chapter 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 by the Central Government
and after such payment of cess, he shall file a return under clause (d) of section 123.
(2) If the officer or the authority to whom or to which the return has been filed under
sub-section (1) finds any discrepancy in the payment under the self assessment and the
payment required under the return referred to in that sub-section, then, he or it shall, after
making or causing to be made such inquiry as he or it thinks fit and after such inquiry make
the appropriate assessment order.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 149
(3) An order of assessment made under sub-section (1) or sub-section (2) shall specify
the date within which the cess shall be paid by the employer, if any.
104. If any amount of cess payable by any employer under section 103 is not paid Penalty for
within the date specified in the order of assessment made under sub-section (2) of section non-payment
103, it shall be deemed to be in arrears and the authority prescribed by the Central Government of cess within
the specified
in this behalf may, after making such inquiry as it deems fit, impose on such employer a
time.
penalty not exceeding the amount of cess:
Provided that, before imposing any such penalty, such employer shall be given a
reasonable opportunity of being heard and if after such hearing the said authority is satisfied
that the default was for any good and sufficient reason, no penalty shall be imposed under
this section.
105. (1) Any employer aggrieved by an order of assessment made under section 103 Appeal to
or by an order imposing penalty made under section 104 may, within such time as may be appellate
prescribed by the Central Government, appeal to such appellate authority in such form and authority.
in such manner as may be prescribed by the Central Government.
(2) Every appeal preferred under sub-section (1) shall be accompanied by such fees as
may be prescribed by the appropriate Government.
(3) After the receipt of any appeal under sub-section (1), the appellate authority shall,
after giving the appellant an opportunity of being heard in the matter, dispose of the appeal
as expeditiously as possible.
(4) Every order passed in appeal under this section shall be final and shall not be
called in question in any court of law.
106. Every building worker who has completed eighteen years of age, but has not Registration
completed sixty years of age, and who has been engaged in any building or other construction of building
work for not less than ninety days during the preceding twelve months shall be registered workers as
beneficiaries.
by the officer authorised by the Board as a beneficiary under this Chapter in such manner as
may be prescribed by the Central Government.
107. (1) A building worker who has been registered as a beneficiary under section 106 Cessation as a
shall cease to be as such when he attains the age of sixty years or when he is not engaged beneficiary.
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.
(2) Notwithstanding anything contained in sub-section (1), 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.
Explanation.—For computing the period of three years under this sub-section as a
beneficiary registered with a Board, there shall be added any period for which a person had
been a beneficiary registered with any other Board immediately before his registration with
the Board.
108. (1) There shall be constituted by a Board a fund to be called the Building and Building and
Other Construction Workers' Welfare Fund and there shall be credited thereto— Other
Construction
(a) the amount of any cess levied under sub-section (1) of section 100; Workers'
Welfare Fund
(b) any grants and loans made to the Board by the Central Government; and its
application.
(c) all sums received by the Board from such other sources as may be decided
by the Central Government.150 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) The Building and other Construction Worker, Welfare Fund shall be applied for
meeting—
(a) expenses of the Board in the discharge of its functions under sub-section (6)
of section 7; and
(b) salaries, allowances and other remuneration of the members, officers and
other employees of the Board;
(c) expenses on objects and for purposes authorised by this Code.
(3) No Board shall, in any financial year, incur expenses towards salaries, allowances
and other remuneration to its members, officers and other employees and for meeting the
other administrative expenses exceeding five per cent. of its total expenses during that
financial year.
CHAPTER IX
SOCIAL SECURITY FOR UNORGANISED WORKERS
Framing of 109. (1) The Central Government shall formulate and notify, from time to time, suitable
scheme for
welfare schemes for unorganised workers (including audio visual workers, beedi workers,
unorganised
non-coal workers) on matters relating to—
workers, and
constitution
(i) life and disability cover;
of social
security fund (ii) health and maternity benefits;
for gig
workers, (iii) old age protection;
platform
workers, etc. (iv) education;
(v) housing; and
(vi) any other benefit as may be determined by the Central Government.
(2) The State Government shall formulate and notify, from time to time, suitable welfare
schemes for unorganised workers, including schemes relating to—
(i) provident fund;
(ii) employment injury benefit;
(iii) housing;
(iv) educational schemes for children;
(v) skill upgradation of workers;
(vi) funeral assistance; and
(vii) old age homes.
(3) Any scheme notified by the Central Government may be—
(i) wholly funded by the Central Government; or
(ii) partly funded by the Central Government and partly funded by the State
Government; or
(iii) partly funded by the Central Government, partly funded by the State
Government and partly funded through contributions collected from the beneficiaries
of the scheme or the employers as may be specified in the scheme by the Central
Government; or
(iv) funded from any source including corporate social responsibility fund
within the meaning of the Companies Act, 2013 or any other such source as may be 18 of 2013.
specified in the scheme.
(4) The Central Government may, by notification, constitute a Social Security Fund or
funds for provision of social security to the unorganised workers, platform workers or gigSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 151
workers or any class of such workers comprising of the funding received under sub-section
(3) or from any other source as may be notified by the Central Government.
(5) The Social Security Fund or funds as constituted under sub-section (4) shall be
administered by the Central Government in such manner as may be prescribed by the Central
Government.
(6) Every scheme notified by the Central Government under sub-section (1) shall
provide for such matters that are necessary for the efficient implementation of the scheme
including the matters relating to all or any of the following, namely:—
(i) scope of the scheme;
(ii) authority to implement the scheme;
(iii) beneficiaries of the scheme;
(iv) resources of the scheme;
(v) agency or agencies that will implement the scheme;
(vi) redressal of grievances; and
(vii) any other relevant matter,
and a special purpose vehicle may also be constituted by the Central Government for the
purpose of implementation of such scheme.
110. (1) Any scheme notified by the State Government under sub-section (2) of section 109 Funding of
maybe— State
Government
(a) wholly funded by the State Government; or schemes.
(b) partly funded by the State Government, partly funded through contributions
collected from the beneficiaries of the scheme or the employers as may be specified in
the scheme by the State Government; or
(c) funded from any source including corporate social responsibility fund referred
to in clause (iv) of sub-section (3) of section 109 or any other such source as may be
specified in the scheme.
(2) The State Government may seek financial assistance from the Central Government
for the schemes formulated by it.
(3) The Central Government may provide such financial assistance to the State
Governments for the purpose of schemes for such period and on such terms and conditions
as it may deem fit.
111. The Government formulating and notifying the scheme under this Chapter shall Record
provide therein the form and manner of keeping the records electronically or otherwise keeping.
relating to the scheme and the authority by whom such records shall be maintained:
Provided that such record shall, as far as may be possible, bear continuous number for
the purpose of proper management of the scheme and for avoiding any duplication and
overlapping in records.
112. The Central Government or the State Government may set up such workers Workers
facilitation centres as may be considered necessary from time to time to perform the following facilitation
functions, namely:— centres.
(a) disseminate information on available social security schemes for the
unorganised workers;
(b) facilitate filling, processing and forwarding of application forms for registration
of unorganised workers;
(c) assist unorganised worker to obtain registration from the authority specified
in the scheme; and
(d) facilitate the enrolment of the registered unorganised workers in social
security schemes.152 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Registration of 113. (1) Every unorganised worker shall be eligible for registration, for the purposes
unorganised of this Chapter, subject to the fulfilment of the following conditions, namely:—
worker.
(a) he has completed sixteen years of age or such age as may be prescribed by
the Central Government;
(b) he has submitted a self-declaration electronically or otherwise in such form,
in such manner and to such authority containing such information as may be prescribed
by the Central Government.
(2) Every eligible unorganised worker under sub-section (1) shall make an application
for registration in such form along with such documents, to such registering authority as
may be prescribed by the Central Government and such unorganised worker shall be registered
by such registering authority by assigning a distinguishable number to his application or by
linking the application to the Aadhaar number.
(3) A registered unorganised worker shall be eligible to avail the benefit of a scheme
framed under this Chapter on making such contribution, if any, as may be specified in the
scheme.
(4) The Central Government, or as the case may be, the State Government shall make
such contribution in a scheme as may be specified therein.
Schemes for 114. (1) The Central Government may formulate and notify, from time to time, suitable
gig workers social security schemes for gig workers and platform worker on matters relating to—
and platform
workers. (a) life and disability cover;
(b) health and maternity benefits;
(c) old age protection; and
(d) any other benefit as may be determined by the Central Government.
(2) Every scheme formulated and notified under sub-section (1) may provide for—
(a) the manner of administration of the scheme;
(b) the agency or agencies for implementing the scheme;
(c) the role of aggregators in the scheme;
(d) the sources of funding of the scheme; and
(e) any other matter as the Central Government may consider necessary for the
efficient administration of the scheme.
CHAPTER X
FINANCE AND ACCOUNTS
Accounts.
115. Each of the Social Security Organisations shall maintain proper accounts of its
income and expenditure in such form and in such manner as the appropriate Government
may, after consultation with the Comptroller and Auditor-General of India, specify.
Audit. 116. (1) The accounts of each of the Social Security Organisations shall be audited
annually by the Comptroller and Auditor-General of India and any expenditure incurred by
him in connection with such audit shall be payable by the respective Social Security
Organisation to the Comptroller and Auditor-General of India.
(2) The Comptroller and Auditor-General of India and any person appointed by him in
connection with the audit of the accounts of a Social Security Organisation shall have the
same rights and privileges and authority in connection with such audit as the Comptroller
and Auditor-General has, in connection with the audit of Government accounts and, in
particular, shall have the right to demand the production of books, accounts, connected
vouchers, documents and papers and to inspect any of the offices of the Social Security
Organisation.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 153
(3) The accounts of a Social Security Organisation as certified by the Comptroller and
Auditor-General of India or any other person appointed by him in this behalf together with
the audit report thereon shall be forwarded to the Social Security Organisation which shall
along with its comments on the audit report of the Comptroller and Auditor-General of India
forward the same to the appropriate Government.
117. (1) Each of the Social Security Organisations shall in each year frame a budget Budget
showing the probable receipts and the expenditure which it proposes to incur during the estimates.
following year and shall submit a copy of the budget for the approval of the appropriate
Government before such date as may be fixed by it in that behalf.
(2) The budget shall contain provisions adequate in the opinion of the appropriate
Government for the discharge of the liabilities incurred by the Social Security Organisation
and for the maintenance of a working balance.
118. (1) Each of the Social Security Organisations shall submit to the appropriate Annual report.
Government an annual report of its work and activities along with the budget finally adopted
by the Social Security Organisation.
(2) The appropriate Government shall cause a copy of the annual report, budget and
the audited accounts together with the report of the Comptroller and Auditor-General of
India and the comments of the respective Social Security Organisation thereon to be laid
before each House of Parliament or the State legislature, as the case may be.
119. Each of the fund maintained by a Social Security Organisation or by an Valuation of
establishment under this Code shall have a valuation of its assets and liabilities made by a assets and
valuer or actuary, as the case may be, appointed, with the prior approval of the appropriate liabilities.
Government, by such Social Security Organisation or the establishment, as the case may be,
in the following manner, namely:—
(a) in case of Central Board, annually;
(b) in case of Corporation, once in every three years;
(c) in case of any other Social Security Organisation or establishment, as
specified by the appropriate Government, by order:
Provided that the appropriate Government, if it considers necessary, may direct
such valuation to be made at such intervals other than provided in this section.
120. (1) A Social Security Organisation may, subject to such conditions as may be Holding of
prescribed by the appropriate Government, acquire and hold property, both movable and property, etc.
immovable, sell or otherwise transfer any movable or immovable property which may have
become vested in or have been acquired by it and do all things necessary for such purposes
and for the purposes for which the said Social Security Organisation is established.
(2) Subject to such conditions as may be prescribed by the appropriate Government,
a Social Security Organisation may, from time to time invest any moneys vested in it, which
are not immediately required for expenses properly defrayable and may, subject to as aforesaid,
from time to time re-invest or realise such investments.
(3) Each of the Social Security Organisations may, with the previous sanction of the
appropriate Government and on such terms as may be prescribed by such Government, raise
loans and take measures for discharging such loans.
(4) Each of the Social Security Organisations, may, with the previous sanction of the
appropriate Government and on such terms as may be prescribed by such Government,
constitute for the benefit of its officers and staff or any class of them, such provident or
other benefit funds as it may think fit.
121. Subject to the conditions as may be prescribed by the appropriate Government, Writing off of
where any of the Social Security Organisations is of the opinion that the amount of losses.154 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
contribution, cess, interest and damages due to it, under this Code, is irrecoverable, the
concerned Social Security Organisation may sanction the writing off of the said amount in
such manner as may be prescribed by the appropriate Government.
CHAPTER XI
AUTHORITIES, ASSESSMENT, COMPLIANCE AND RECOVERY
Appointment 122. (1) The Central Government for the purposes of Chapter III and Chapter IV and
of Inspector- the provisions in this Code relating to those Chapters, and the appropriate Government for
cum- the purposes of other provisions of this Code, may, by notification, appoint Inspector-cum-
Facilitators
Facilitators who shall exercise the powers conferred on them under sub-section (6) in
and their
powers. accordance with the inspection scheme referred to in sub-section (2).
(2) The Central Government for the purposes of Chapter III and Chapter IV and the
provisions in this Code relating to those Chapters and the appropriate Government in respect
of other provisions of this Code, may, by notification, lay down an inspection scheme which
may provide for generation of a web-based inspection and calling of information relating to
the inspection under this Code electronically and such scheme shall, inter alia, have
provisions to cater to special circumstances for assigning inspections and calling for
information from the establishment or any other person.
(3) Without prejudice to the provisions of sub-section (2), the Central Government for
the purposes of Chapter III and Chapter IV and the other provisions in this Code relating to
those Chapters and the appropriate Government in relation to other provisions of this Code,
may, by notification, confer such jurisdiction of randomised selection of inspection for the
purposes of this Code, to the Inspector-cum-Facilitators as may be specified in such
notification.
(4) Without prejudice to the powers of the Central Government or the appropriate
Government, as the case may be, under this section, the inspection scheme may be designed
taking into account, inter alia, the following factors, namely:—
(a) assignment of unique number to each establishment (which will be same as
the registration number allotted to that establishment), each Inspector-cum-Facilitator
and each inspection in such manner as may be notified for the purposes of Chapter III
and Chapter IV and the other provisions of this Code relating to those Chapters, by
the Central Government, and in respect of other provisions of this Code as aforesaid,
by the appropriate Government;
(b) timely uploading of inspection reports in such manner and subject to such
conditions as may be notified, for the purposes of Chapter III and Chapter IV and the
other provisions of this Code relating to those Chapters, by the Central Government,
and in respect of other provisions of this Code as aforesaid, by the appropriate
Government;
(c) provisions for special inspections based on such parameters as may be
notified, for the purposes of Chapter III and Chapter IV and the other provisions of
this Code relating to those Chapters, by the Central Government, and in respect of
other provisions of this Code as aforesaid, by the appropriate Government; and
(d) the characteristics of employment relationships, the nature of work and
characteristics of the workplaces based on such parameters as may be notified, for the
purposes of Chapter III and Chapter IV and the other provisions of this Code relating
to those Chapters, by the Central Government, and in respect of other provisions of
this Code as aforesaid, by the appropriate Government.
(5) The Inspector-cum-Facilitator may—
(a) advice the employers and employees relating to compliance with the
provisions of this Code; andSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 155
(b) 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.
(6) Subject to the provisions of sub-section (4), the Inspector-cum-Facilitator may,—
(a) examine any person who is found in any premises of the establishment,
whom the Inspector-cum-Facilitator has reasonable cause to believe, is an employee
of the establishment;
(b) require any person to give any information, which is in his power to give with
respect to the names and addresses of the persons;
(c) search, seize or take copies of such register, record of wages or notices or
portions thereof as the Inspector-cum-Facilitator may consider relevant in respect of
an offence under this Code and which the Inspector-cum-Facilitator has reason to
believe has been committed by the employer;
(d) bring to the notice of the appropriate Government defects or abuses not
covered by any law for the time being in force; and
(e) exercise such other powers as may be prescribed by the appropriate
Government.
(7) Any person required to produce any document or to give any information required
by an Inspector-cum-Facilitator for the purposes of sub-section (5) shall be deemed to be
legally bound to do so within the meaning of section 175 and section 176 of the Indian Penal
45 of 1860. Code.
2 of 1974. (8) The provisions of the Code of Criminal Procedure, 1973 shall, so far as may be,
apply to the search or seizure for the purposes of sub-section (5), as they apply to the search
or seizure made under the authority of a warrant issued under section 94 of the said Code.
123. An employer of an establishment shall— Maintenance
of records,
registers,
returns, etc.
(a) maintain records and registers in the form prescribed by the appropriate
Government, 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—
(i) number of days for which work performed;
(ii) number of hours of work performed by the employees;
(iii) wage paid;
(iv) leave, leave wages, wages for overtime work and attendance;
(v) employees identification number, by whatever nomenclature it may be
called;
(vi) 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 Chapter IV and Chapter VII, respectively;
(vii) statutory deductions made by employer from the wages of an employee
in respect of Chapter III and Chapter IV;
(viii) details as to cess paid in respect of building and other construction
work;
(ix) total number of employees (regular, contractual or fixed term
employment) on the day specified;156 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(x) persons recruited during a particular period;
(xi) occupational details of the employees; and
(xii) vacancies for which suitable candidates were not available during
the specified period.
(b) display notices at the work places of the employees in such manner and form
as may be prescribed by appropriate Government;
(c) issue wage slips to the employees, in electronic forms or otherwise; and
(d) file such return electronically or otherwise to such officer or authority in such
manner and during such periods as may be prescribed by the appropriate Government.
Employer not 124. No employer in relation to an establishment to which this Code or any scheme
to reduce
framed thereunder applies shall, by reason only of his liability for the payment of any
wages, etc.
contribution under this Code, or any charges thereunder reduce whether directly or indirectly,
the wages of any employee to whom the provisions of this Code or any scheme framed
thereunder applies or the total quantum of benefits to which such employee is entitled under
the terms of his employment, express or implied.
Assessment 125. (1) The Central Government may, by notification, authorise, such officers of the
and
Central Board or the Corporation, as the case may be, not below the rank of Group A officer
determination
of dues from of that Government, to function as the Authorised Officers for the purposes of Chapter III or
employer. Chapter IV, as the case may be, who may, by order—
(a) in a case where a dispute arises regarding the applicability of Chapter III or
Chapter IV, as the case may be, to an establishment, decide such dispute; and
(b) determine the amount due from any employer under any provision of
Chapter III or Chapter IV, as the case may be, or the schemes made under such Chapter;
and
(c) for any of the purposes relating to clause (a) and clause (b), conduct such
inquiry, as he may deem necessary for such purposes:
Provided that no proceeding under this sub-section shall be initiated after the
expiry of the period of five years from the date on which the dispute referred to in
clause (a) is alleged to have been arisen or, as the case may be, the amount referred to
in clause (b) is alleged to have been due from an employer.
(2) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the 5 of 1908.
inquiry under sub-section (1), as far as practicable, shall be held on day-to-day basis and
endeavour shall be made to ensure that the inquiry is concluded within a period of two years:
Provided that where the inquiry is not concluded within the said period of two years,
the Authorised Officer conducting such inquiry shall record the circumstances and reasons
for not having concluded so and submit the circumstances and reasons so recorded to the
Central Provident Fund Commissioner or the Director General of the Corporation, as the
case may be, or such other officer authorised by him in this behalf:
Provided further that the Central Provident Fund Commissioner or the Director General
of the Corporation, as the case may be, after considering the circumstances and the reasons
which have been submitted by the Authorised Officer may grant an extension of one year to
conclude the said inquiry:
Provided also that the inquiries which are pending immediately before the date of
commencement of this Code shall be concluded by the Authorised Officer within a period
not exceeding two years from the date of such commencement.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 157
(3) The Authorised Officer conducting the inquiry under sub-section (1) shall, for the
purposes of such inquiry have the same powers as are vested in a court under the Code of
5 of 1908. Civil Procedure, 1908, for trying a suit in respect of the following matters, namely:—
(a) enforcing the attendance of any person or examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit; and
(d) issuing commissions for the examination of witnesses,
and any such inquiry shall be deemed to be a judicial proceeding within the meaning of
45 of 1860. sections 193 and 228, and for the purpose of section 196 of the Indian Penal Code.
(4) No order shall be made under sub-section (1), unless the employer concerned is
given a reasonable opportunity of representing his case.
(5) Where the employer, employee or any other person required to attend the inquiry
under sub-section (1) fails to attend such inquiry without assigning any valid reason or fails
to produce any document or to file any report or return when called upon to do so by the
Authorised Officer conducting the inquiry, such inquiry officer may decide the applicability
of the relevant provisions of this Code or determine the amount due from any employer, as
the case may be, on the basis of the evidence adduced during such inquiry and other
documents available on record.
(6) Where an order under sub-section (1) is passed against an employer ex parte, he
may, within three months from the date of communication of such order, apply to the
Authorised Officer who conducted the inquiry for setting aside such order and if the
Authorised Officer is satisfied that the show cause notice was not duly served or that such
employer was prevented by any sufficient cause from appearing when the inquiry was held,
the Authorised Officer shall make an order setting aside his earlier order and shall appoint a
date for proceeding with the inquiry:
Provided that no such order shall be set aside merely on the ground that there has
been an irregularity in the service of the show cause notice if the Authorised Officer is
satisfied that the employer had notice of the date of hearing and had sufficient time to appear
before the Authorised Officer.
Explanation.—Where an appeal has been preferred under this Code against an order
passed ex parte and such appeal has been disposed of otherwise than on the ground that
the appellant has withdrawn the appeal, no application shall lie under this sub-section for
setting aside the ex parte order.
(7) No order passed under this section shall be set aside on any application under
sub-section (4) unless notice thereof has been served on the opposite party.
126. (1) Any person considering himself aggrieved by an order made under Review of
section 125, but from which no appeal has been preferred under section 127, and if such orders passed
person, from the discovery of new and important matter or evidence which, after the exercise under
section 125.
of due diligence was not within his knowledge or could not be produced by him at the time
when the order was made, or on account of some mistake or error apparent on the face of the
record or for any other sufficient reason, desires to obtain a review of such order made against
him, may apply for a review of that order to the Authorised Officer who made the order:
Provided that such Authorised Officer may also on his own motion review his order if
he is satisfied that it is necessary so to do in the interest of justice.
(2) Every application for review under sub-section (1) shall be filed in such form and
manner and within such time as may be prescribed by the Central Government.
(3) Where it appears to the Authorised Officer, receiving an application for review
under sub-section (2), that there is no sufficient ground for review, he shall reject the
application.158 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(4) Where the Authorised Officer is of the opinion that such application for review
may be granted, he shall grant the same:
Provided that no such application shall be granted,—
(a) without previous notice to all the opposite parties in the application to
enable them to appear and be heard in support of the order against which the review
is filed; and
(b) on the ground of discovery of new matter or evidence which the applicant
alleges was not within his knowledge or could not be produced by him when the order
was made, without proof of such allegation.
Appeal against 127. If an employer is not satisfied with the order made under section 125, he may
order of prefer an appeal to an appellate authority as may be prescribed by the Central Government,
Authorised
within sixty days of the date of such order on deposit of twenty-five per cent. of the
Officer.
contribution so ordered or the contribution as per his own calculation, whichever is higher,
with the concerned Social Security Organisation:
Provided that such order made under section 125 shall not be brought into operation
for such period as may be notified by the Central Government to provide convenience to the
employer to prefer appeal:
Provided further that if the employer finally succeeds in the appeal, the concerned
Social Security Organisation shall refund such deposit to the employer together with interest
at such rate as may be prescribed by the Central Government within forty-five days of such
final order in appeal.
128. Where an order determining the amount due from an employer under section 125
Determination
of escaped or section 126 has been passed and if the Authorised Officer who passed the orders—
amount.
(a) has reason to believe that by reason of the omission or failure on the part of
the employer to make any document or report available, or to disclose, fully and truly,
all material facts necessary for determining the correct amount due from the employer,
any amount so due from such employer for any period has escaped his notice;
(b) has, in consequence of information in his possession, reason to believe that
any amount to be determined under section 125 or section 126 has escaped from his
determination for any period notwithstanding that there has been no omission or
failure as mentioned in clause (a) on the part of the employer,
he may, within a period of five years from the date of communication of the order passed
under section 125 or section 126, reopen the case and pass appropriate orders redetermining
the amount due from the employer in accordance with the provisions of this Chapter:
Provided that no order redetermining the amount due from the employer shall be
passed under this section unless the employer is given a reasonable opportunity of
representing his case.
Interest on 129. Except where expressly provided otherwise in this Code, the employer shall be
amount due. liable to pay simple interest at such rate as may be prescribed by the Central Government,
from the date on which any amount has become due under this Code till the date of its actual
payment.
Power to 130. Where an employer makes default in the payment of any contribution which he
recover is liable to pay in accordance with the provisions of Chapter III or Chapter IV, as the case
damages.
may be, or any scheme framed thereunder or in the transfer of accumulations under Chapter
III, or in the payment of any charges payable under any other provision of this Code, the
Central Provident Fund Commissioner or the Director General of the Corporation, as the
case may be, or such other officer as may be authorised, by notification, by the appropriate
Government, may levy on, and recover from, the employer by way of damages, an amount
not exceeding the amount of arrears, in such manner as may be prescribed by the Central
Government:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 159
Provided that before levying and recovering such damages, the employer shall be
given an opportunity of being heard:
Provided further that the Central Board or the Corporation, as the case may be, may
reduce or waive the damages levied under this section in relation to an establishment for
which a resolution plan or repayment plan recommending such waiver has been approved
31 of 2016. by the adjudicating authority established under the Insolvency and Bankruptcy Code, 2016
subject to the terms and conditions as may be specified by notification, by the Central
Government.
131. (1) Any amount due from an employer or any other person in relation to an Recovery of
establishment including any contribution or cess payable, charges, interest, damages, or amount due.
benefit or any other amount may, if the amount is in arrear, be recovered in the manner
specified in this section and sections 132 to 134.
(2) Where any amount is in arrear under this Code, the Authorised Officer, or the
competent authority, as the case may be, shall issue to the Recovery Officer referred to in
sub-section (4), a certificate under his signature, electronically or otherwise, specifying the
amount of arrears and the Recovery Officer, on receipt of such certificate, shall proceed to
recover the amount specified therein from the establishment or, as the case may be, the
employer by one or more of the modes mentioned below, namely:—
(a) attachment and sale of the movable or immovable property of the
establishment or, as the case may be, of the employer;
(b) arrest of the employer and his detention in prison;
(c) appointing a receiver for the management of the movable or immovable
properties of the defaulter:
Provided that the attachment and sale of any property under this section shall
first be effected against the properties of the establishment and where such attachment
and sale is insufficient for recovering the whole of the amount or arrears specified in
the certificate, the Recovery Officer may move such proceeding against the property
of the employer for recovery of the whole or any part of such arrears.
(3) The Authorised Officer or the competent authority, as the case may be, may issue
a certificate under sub-section (2), notwithstanding that proceeding for recovery of the
arrears by any other mode has been taken.
(4) The Authorised Officer or the competent authority, as the case may be, may forward
the certificate issued under this section, to the Recovery Officer within whose jurisdiction
the employer—
(a) carries on his business or profession or within whose jurisdiction the principal
place of his establishment is situate; or
(b) resides or any movable or immovable property of, the establishment or, the
employer is situates.
(5) Where an establishment or the employer has property within the jurisdiction of
more than one Recovery Officers and the Recovery Officer to whom a certificate is sent by
the Authorised Officer or the competent authority, as the case may be—
(a) is not able to recover the entire amount by the sale of the property, movable
or immovable, within his jurisdiction, or
(b) is of the opinion that, for the purpose of expediting or securing the recovery
of the whole or any part of the amount, it is necessary so to do,
he may send the certificate or, where only a part of the amount is to be recovered, a copy of
the certificate certified in the manner prescribed by the Central Government, specifying the
amount to be recovered to the Recovery Officer within whose jurisdiction the establishment160 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
or the employer has property or the employer resides, and thereupon that Recovery Officer
shall proceed to recover the amount due under this section as if the certificate or the copy
thereof had been the certificate sent to him by the Authorised Officer or the competent
authority, as the case may be.
Validity of 132. (1) When the Authorised officer or the competent authority, as the case may be,
certificate and
issues a certificate to a Recovery Officer under section 131, it shall not be open to the
amendment
employer to dispute before the Recovery Officer the correctness of the amount, and no
thereof.
objection to the certificate on any other ground shall be entertained by the Recovery Officer.
(2) Notwithstanding the issue of a certificate to a Recovery Officer, the Authorised
Officer or the competent authority, as the case may be, shall have power to withdraw the
certificate or correct any clerical or arithmetical mistake in the certificate by sending intimation
to the Recovery Officer.
(3) The Authorised Officer or the competent authority, as the case may be, shall
intimate to the Recovery Officer any orders of withdrawing or cancelling a certificate or any
correction made by him in respect of the said certificate under sub-section (2).
(4) Notwithstanding that a certificate has been issued to the Recovery Officer for the
recovery of any amount, the Authorised Officer or the competent authority, as the case may
be, may grant time to the employer for payment of the amount recoverable under the certificate
and thereupon the Recovery Officer shall stay the proceedings until the expiry of the time so
granted.
(5) Where a certificate for the recovery of amount has been issued, the Authorised
Officer or the competent authority, as the case may be, shall keep the Recovery Officer
informed of any amount paid or time granted for payment, subsequent to the issue of such
certificate.
(6) Where the order giving rise to a demand of amount for which a certificate for
recovery has been issued under section 131 has been modified in appeal or other proceeding
under this Code, resulting in reduction of the demand but the order is the subject-matter of
further proceeding under this Code, the Authorised Officer or the competent authority, as
the case may be, shall stay the recovery of such part of the amount of the certificate as
pertains to the said reduction for the period for which the appeal or other proceeding
remains pending.
(7) Where a certificate for the recovery of amount has been issued and subsequently
the amount of the outstanding demand is reduced as a result of an appeal or other proceeding
under this Code, the Authorised Officer or the competent authority, as the case may be,
shall, when the order being the subject-matter of such appeal or other proceeding become
final and conclusive, amend the certificate or withdraw it, as the case may be, in consonance
with such finality or conclusion.
Other modes 133. (1) Notwithstanding the issue of a certificate to the Recovery Officer under
of recovery. section 131, the Central Provident Fund Commissioner or the Director General of the
Corporation, as the case may be, or any other officer of such Social Security Organisation so
authorised by it in this behalf, may, recover the amount by any one or more of the modes
provided in this section.
(2) If any amount is due from any person to any employer who is in arrears, the Central
Provident Fund Commissioner or the Director General of the Corporation, as the case may
be, or any other officer of such Social Security Organisation authorised by it in this behalf,
may, require such person to deduct from the said amount the arrears so due, and such
person shall comply with any such requisition and shall pay the sum so deducted to the
credit of the Central Provident Fund Commissioner or the Director General of the Corporation,
as the case may be, or any other officer of such Social Security Organisation so authorised
by it in this behalf:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 161
Provided that nothing in this sub-section shall apply to any part of the amount exempt
from attachment in execution of a decree of a civil court under section 60 of the Code of
5 of 1908. Civil Procedure, 1908.
(3) (a) The Central Provident Fund Commissioner or the Director General of the
Corporation, as the case may be, or any other officer of such Social Security Organisation
authorised by it in this behalf may, at any time or from time to time, by notice in writing,
require any person from whom money is due or may become due to the employer or, as the
case may be, the establishment or any person who holds or may subsequently hold money
for or on account of the employer or, as the case may be, the establishment, to pay to the
Central Provident Fund Commissioner or the Director General of the Corporation, as the case
may be, or any other officer authorised by it in this behalf either forthwith upon the money
becoming due or being held at or within the time specified in the notice (not being before the
money becomes due or is held) so much of the money as is sufficient to pay the amount due
from the employer in respect of arrears or the whole of the money when it is equal to or less
than that amount.
(b) A notice under this sub-section may be issued to any person who holds or may
subsequently hold any money for or on account of the employer jointly with any other
person and for the purposes of this sub-section, the shares of the joint holders in such
account shall be presumed, until the contrary is proved, to be equal.
(c)A copy of the notice shall be forwarded to the employer at his last address known
to the Central Provident Fund Commissioner or the Director General of the Corporation, as
the case may be, or any other officer of such Social Security Organisation authorised by it in
this behalf and in the case of a joint account to all the joint holders at their last addresses so
known.
(d) Save as otherwise provided in this sub-section, every person to whom a notice is
issued under this sub-section shall be bound to comply with such notice, and, in particular,
where any such notice is issued to a post office, bank or an insurer, it shall not be necessary
for any pass book, deposit receipt, policy or any other document to be produced for the
purpose of any entry, endorsement or the like being made before payment is made
notwithstanding any rule, practice or requirement to the contrary.
(e)Any claim respecting any property in relation to which a notice under this
sub-section has been issued arising after the date of the notice shall be void as against any
demand contained in the notice.
(f)Where a person to whom a notice under this sub-section is sent objects to it by
statement on oath that the sum demanded or any part thereof is not due to the employer or
that he does not hold any money for or on account of the employer, then, nothing contained
in this sub-section shall be deemed to require such person to pay any such sum or part
thereof, as the case may be, but if it is discovered that such statement was false in any
material particular, such person shall be personally liable to the Central Provident Fund
Commissioner or the Director General of the Corporation, as the case may be, or any other
officer of such Social Security Organisation authorised by it in this behalf, to the extent of
his own liability to the employer on the date of the notice, or to the extent of the employer's
liability for any sum due under this Code, whichever is less.
(g)The Central Provident Fund Commissioner or the Director General of the
Corporation, as the case may be, or any other officer of such Social Security Organisation
authorised by it in this behalf, may, at any time or from time to time, amend or revoke any
notice issued under this sub-section or extend the time for making any payment in pursuance
of such notice.
(h)The Central Provident Fund Commissioner or the Director General of the
Corporation, as the case may be, or any other officer of such Social Security Organisation
authorised by it in this behalf, shall grant a receipt for any amount paid in compliance with a162 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
notice issued under this sub-section, and the person so paying shall be fully discharged
from his liability to the employer to the extent of the amount so paid.
(i)Any person discharging any liability to the employer after the receipt of a notice
under this sub-section shall be personally liable to the Central Provident Fund Commissioner
or the Director General of the Corporation, as the case may be, or any other officer of such
Social Security Organisation authorised by it in this behalf, to the extent of his own liability
to the employer so discharged or to the extent of the employer's liability for any sum due
under this Code, whichever is less.
(j)If the person to whom a notice under this sub-section is sent fails to make payment
in pursuance thereof to the Central Provident Fund Commissioner or the Director General of
the Corporation, as the case may be, or any other officer of such Social Security Organisation
authorised by it in this behalf, he shall be deemed to be an employer in default in respect of
the amount specified in the notice and further proceeding may be moved against him for the
realisation of the amount as if it were an arrear due from him, in the manner provided in
sections 131 to 134 and the notice shall have the same effect as an attachment of amount in
arrears by the Recovery Officer in exercise of his powers under section 131.
(4) The Central Provident Fund Commissioner or the Director General of the Corporation,
as the case may be, or any other officer of such Social Security Organisation authorised by
it in this behalf may apply to the court in whose custody there is money belonging to the
employer for payment to him of the entire amount of such money, or if it is more than the
amount due, an amount sufficient to discharge the amount due.
(5) The Central Provident Fund Commissioner or the Director General of the Corporation,
as the case may be, or any other officer of such Social Security Organisation authorised by
it in this behalf, if so authorised by the Central Government by general or special order,
recover any arrears of amount due from an employer or, as the case may be, from the
establishment by distraint and sale of his or its movable property in the manner laid down in
the Third Schedule to the Income-tax Act, 1961. 43 of 1961.
Application of 134. The provisions of the Second Schedule and the Third Schedule to the Income-
certain tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time 43 of 1961.
provisions of to time, shall apply with necessary modifications as if the said provisions and the rules refer
Income-tax
to the amount in arrears of the amount mentioned in section 131 of this Code instead of to
Act.
the income-tax:
Provided that any reference in the said provisions and the rules to the "assessees"
shall be construed as a reference to an employer as defined in this Code.
CHAPTER XII
OFFENCES AND PENALTIES
Penalty for 135. If any person,—
failure to pay
contributions,
etc.
(a) being an employer, fails to pay any contribution which he is liable to pay
under this Code or rules, regulations or schemes made thereunder; or
(b) deducts or attempts to deduct from the wages of an employee, the whole or
any part of employer's contribution; or
(c) in contravention of the provisions of this Code, reduces the wages or any
privilege or benefits admissible to an employee; or
(d) in contravention of the provisions of Chapter IV or Chapter VI or rules,
regulations or schemes made or framed under this Code relating, respectively, to such
Chapters, dismisses, discharges, reduces in rank or otherwise penalises a woman
employee; orSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 163
(e) fails or refuses to submit any return, report, statement or any other information
required under this Code or any rules, regulations or schemes made or framed
thereunder; or
(f) 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
(g) fails to pay any amount of gratuity to which an employee is entitled under
this Code; or
(h) fails to pay any amount of compensation to which an employee is entitled
under this Code; or
(i) fails to provide any maternity benefit to which a woman is entitled under this
Code; or
(j) fails to send to a competent authority a statement which he is required to
send under Chapter VII; or
(k) 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;
(l) fails to pay the cess for building workers which he is liable to pay under this
Code; or
(m) 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
(n) obstructs executive officer in exercising his functions under Chapter XIII, or
(o) dishonestly makes a false return, report, statement or information to be
submitted thereunder,
he shall be punishable—
(i) where he commits an offence under clause (a) with imprisonment for a
term which may extend to three years but—
(a) 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;
(b) which shall not be less than 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;
(ii) where he commits an offence under any of the clauses (b) to (g)
[except clause (e)] , clauses (i) and (k) to (m), with imprisonment for a term which
may extend to one year or with fine which may extend to fifty thousand rupees,
or with both;
(iii) where he commits an offence under clauses (e), (h), (j) or clause (n)
with a fine which may extend to fifty thousand rupees;
(iv) where he commits an offence under clause (o), with imprisonment for
a term which may extend to six months.
136. Whoever, having been convicted by a court of an offence punishable under this Enhanced
Code, commits the same offence shall, for second, or every subsequent such offence, be punishment in
punishable with imprisonment for a term which may extend to two years and with fine of two certain cases
after previous
lakh rupees:
conviction.164 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
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 five years but which shall not
be less than two years and shall also be liable to fine of three lakh rupees.
Offences by 137. (1) Where an offence under this Chapter has been committed by a company,
companies.
every person who, at the time the offence was committed, was directly 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 any such person
liable to any punishment, if he proves that the offence was committed without his knowledge
or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence 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,
secretary or other officer of the company, such director, 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 any 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.
Cognizance of 138. (1) No court shall take cognizance of an offence punishable under this Code
offences.
except on a complaint made by such officer or other person as may be prescribed for the
purposes of offences relating to Chapter III and Chapter IV and the rules, regulations or
schemes made or framed under this Code relating to those Chapters, by the Central
Government; and for the purposes of offences relating to other provisions of this Code and
the rules, regulations or schemes made or framed thereunder, by the appropriate Government.
(2) Notwithstanding anything contained in sub-section (1), no prosecution under
this Code shall be instituted except by or with the previous sanction of the authority
prescribed for the purposes of offences relating to Chapter III and Chapter IV and the rules,
regulations or schemes made or framed under this Code relating to those Chapters, by the
Central Government; and for the purposes of offences relating to other provisions of this
Code and the rules, regulations or schemes made thereunder, by the appropriate Government.
(3) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence punishable under this Chapter.
Prior 139. Notwithstanding anything contained in this Chapter, the Inspector-cum-Facilitator
opportunity or any other officer notified for the purposes of offences relating to Chapter III and
before
Chapter IV and the rules, regulations or schemes made or framed under this Code relating to
prosecution.
those Chapters, by the Central Government; and for the purposes of offences relating to
other provisions of this Code and the rules, regulations or schemes made or framed under
this Code relating thereto, by the appropriate Government, shall, before initiation of
prosecution proceeding against an employer for any offence under this Chapter, give an
opportunity to the employer to comply with the aforesaid relevant provisions by way of a
written direction, which shall lay down a time period for such compliance, and, if the employer
complies with the direction within such period, then, no such proceeding shall be initiated
against the employer; but no such opportunity shall be accorded to an employer, if theSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 165
violation of the same nature of such provisions is repeated within a period of five years from
the date on which such first violation was committed and in such case the prosecution shall
be initiated in accordance with the provisions of this Chapter.
2 of 1974. 140. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, Compounding
any offence committed for the first time, punishable under this Chapter, not being an offence of offences.
punishable with imprisonment only, or with imprisonment and also with fine, may, on an
application made, either before or after the institution of any prosecution, be compounded
by an officer authorised by the Central Government for the purposes of offences relating to
Chapter III and Chapter IV and the rules, regulations or schemes made or framed under this
Code relating to those Chapters, by the Central Government; and for the purposes of offences
relating to other provisions of this Code and the rules, regulations or schemes made or
framed under this Code relating thereto, by the appropriate Government, in such manner as
may be prescribed by the Central Government on payment by the offender to the appropriate
Government such amount as may be notified by that Government.
(2) Nothing contained in sub-section (1) shall apply to an offence committed by a
person for the second time or thereafter within a period of five years from the date —
(a) of commission of a similar offence which was earlier compounded; or
(b) of commission of similar offence for which such person was earlier convicted.
(3) Every officer referred to in sub-section (1) shall exercise the powers to compound
an offence, subject to the direction, control and supervision of the Central Government for
the purposes of offences relating to Chapter III and Chapter IV and the rules, regulations or
schemes made or framed under this Code relating to those Chapters, by the Central
Government; and for the purposes of offences relating to other provisions of this Code and
the rules, regulations or schemes made or framed under this Code relating thereto, by the
appropriate Government.
(4) Every application for the compounding of an offence shall be made in such form
and in such manner as may be prescribed by the Central Government.
(5) Where any offence is compounded before the institution of any prosecution, no
prosecution shall be instituted in relation to such offence, against the offender in relation to
whom the offence is so compounded.
(6) Where the compounding of any offence is made after the institution of any
prosecution, such compounding shall be brought to the notice of the court in which the
prosecution is pending in writing by the officer referred to in sub-section (1), and on such
notice of the compounding of the offence being given to the court, the person against whom
the offence is so compounded shall be discharged.
(7) Any person who fails to comply with the order made by the officer referred to in
sub-section (1), shall be liable to pay a sum equivalent to twenty per cent. of the maximum
fine provided for the offence, in addition to such fine.
CHAPTER XIII
EMPLOYMENT INFORMATION AND MONITORING
141. (1) The appropriate Government may, by notification, require that from such date Reporting of
as may be specified in the notification, the employer in every establishment or any class or vacancies to
career centres.
category of establishments, before filling up any vacancy in any employment in that
establishment or such class or category of establishment, as the case may be, shall report or
cause to be reported that vacancy to such career centre as may be specified in the notification,
and the employer shall thereupon comply with such requisition.166 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) For the purposes of sub-section (1), the appropriate Government may prescribe
the following, namely:—
(i) the manner in which the vacancies, referred to in sub-section (1), shall be
reported to the career centres electronically or otherwise;
(ii) the form in which such vacancies shall be reported to the career centres; and
(iii) the manner and form of filing the return by the employer to the concerned
career centre.
(3) Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation
upon any employer to recruit any person through the career centre to fill any vacancy
merely because such vacancy has been reported.
(4) The executive officer shall have access to any record or document in the possession
of any employer required to furnish any information or returns for the purposes of this
Chapter and may enter at any reasonable time any premises where he believes such record
or document to be and inspect or take copies of such records or documents or ask any
question necessary for obtaining any information required.
Exclusions 142. (1) The provisions of section 141 shall not apply in relation to vacancies,—
from
application of (a) in any employment in agriculture (including horticulture) in any establishment
this Chapter. in private sector other than employment in plantation; or
(b) in any employment in domestic service; or
(c) in any employment connected with the staff of Parliament or any
State Legislature; or
(d) in any employment the total duration of which is less than ninety days; or
(e)in any class or category of establishments as may be notified by the Central
Government; and
(f) in any other employment as may be notified by the Central Government.
(2) Unless the Central Government, by notification direct, the provisions of this Chapter
shall not apply in relation to—
(a) 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
(b) vacancies in an employment which carries a monthly remuneration of less
than an amount notified by the appropriate Government.
CHAPTER XIV
MISCELLANEOUS
Application 143. (1) An employee or unorganised worker or any other person, as the case may be,
of Aadhaar. for—
(a) registration as member or beneficiary; or
(b) 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
(c) receiving any payment or medical attendance as insured person himself or
for his dependants,SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 167
under this Code or rules, regulations or schemes made or framed thereunder has to establish
his identity or, as the case may be, the identity of his family members or dependants through
Aadhaar number in such manner as may be prescribed by the Central Government and for
such purpose the expression "Aadhaar" shall have the meaning as defined in clause (a) of
section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and
18 of 2016. Services) Act, 2016.
(2) For the purposes of sub-section (1), the Aadhaar number issued to an individual
shall be in accordance with the provisions of section 3 of the Aadhaar (Targeted Delivery of
18 of 2016. Financial and Other Subsidies, Benefits and Services) Act, 2016.
144. (1) Notwithstanding anything contained in this Code, the appropriate Government Power to
may, by notification, and subject to the conditions which may include the eligibility conditions exempt
to be fulfilled prior to exemption and the conditions to be complied with after exemption, as establishment.
may be prescribed by the Central Government in this behalf, grant exemption to an
establishment or class of establishments (including factory or other establishments under
the control of Central Government or State Government or local bodies) or employees or
class of employees, from any or all of the provisions of this Code as may be specified in the
notification and may renew for further period such exemption by like notification:
Provided that no such exemption,—
(i) in respect of Chapter III, without prior consultation with the Central Board;
and
(ii) in respect of Chapter IV, without prior consultation with the Corporation,
shall be granted or renewed and the Central Board or the Corporation, as the case may be,
shall on such consultation forward its view to the appropriate Government within such time
as may be prescribed by that Government:
Provided further that in case such exemption is in respect of those Chapters or in
respect of any of them, the establishment or class of establishments so exempted shall, in
order to provide benefits which are substantially similar or superior to the benefits provided
in those Chapters or any of them arrange insurance of such value which the appropriate
Government considers appropriate for granting such exemption.
(2) The appropriate Government may, in the notification referred to in sub-section (1),
specify therein conditions as may be prescribed which the exempted establishment or the
class of establishment or employee or class of employees, as the case may be, shall comply
with after such exemption.
(3) The exemption granted under sub-section (1) to an establishment or class of
establishment or employee or class of employees, as the case may be, shall be initially for a
period of three years from the date of publication of such notification and may be extended
by the appropriate Government to the extent of such period as may be prescribed by the
Central Government.
(4) The exemption granted under sub-section (1) shall only be granted if the employees
in the establishment or class of establishments or employee or the class of employees so
exempted are otherwise in receipt of benefits substantially similar or superior to the benefits
provided in the provisions of this Code to be so exempted.
(5) If the establishment or class of establishments or employee or class of employees
in respect of whom the exemption has been granted under sub-section (1), fails to comply
with, any conditions specified under that sub-section, then, the appropriate Government
may on such failure cancel the exemption so granted.
145. Where an employer transfers his establishment in whole or in part, by sale, gift, Liability in case
lease or licence or in any other manner whatsoever, the employer and the person to whom of transfer of
establishment.
the establishment is so transferred shall jointly and severally be liable to pay the amount due
in respect of any liabilities, cess or any other amount payable under this Code in respect of
the periods up to the date of such transfer:168 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided that the liability of the transferee shall be limited to the value of the assets
obtained by him by such transfer.
The members, 146. Every member of a Social Security Organisation and the officers and staff thereof,
officers and any Inspector-cum-Facilitator, competent authority, Authorised officer, Recovery Officer
staff to be
and any other person discharging any function under this Code shall be deemed to be
public
public servants within the meaning of section 21 of the Indian Penal Code.
servants. 45 of 1860.
Protection of 147. No suit, prosecution or other legal proceeding shall lie against —
action taken
in good faith. (i) the Central Government;
(ii) a State Government;
(iii) a Social Security Organisation;
(iv) a competent authority;
(v) any officer or staff of a Social Security Organisation; or
(vi) any other person or authority,
discharging the functions or exercising the powers under this Code, for anything which is in
good faith done or intended to be done in pursuance of this Code or of any rules, regulations
or schemes made or framed thereunder.
148. If the appropriate Government is satisfied in the manner prescribed by it that any
Misuse of
benefits. establishment or any other person has misused any benefit provided to him under this Code
or rules, regulations or schemes made or framed thereunder, then, such Government may, by
notification, deprive such establishment or other person, as the case may be, from such
benefit for such time as may be specified in the notification:
Provided that no such order shall be passed unless an opportunity of being heard is
given to such establishment or other person, as the case may be.
Power of 149. The Central Government may give directions to the Social Security Organisations
Central in respect of matters relating to the implementation of the provisions of this Code.
Government to
give directions.
Power to 150. The appropriate Government may, subject to the condition of previous publication,
frame frame schemes not inconsistent with this Code, for the purposes of giving effect to the
schemes.
provisions thereof.
Protection 151. (1) Notwithstanding anything contained in any law for the time being in force,
against the amount standing to be credited in favour of the employee under Chapters III, IV, V, VI or
attachment,
VII or, of any member of any fund under this Code, or of any exempted employee in a
etc.
provident fund maintained by his employer, shall not in any way be capable of being assigned
or charged and shall not be liable to attachment under any decree or order of any Court in
respect of any debt or liability incurred by such employee or member or the exempted
employee, as the case may be.
(2) Any amount standing to the credit of a member in the fund or of an exempted
employee in a provident fund maintained by his employer at the time of the death of such
member or the exempted employee, as the case may be, and payable to his nominee under
the scheme or the rules of the fund shall, subject to any deduction authorised by the said
scheme or rules, as the case may be, vest in the nominee and shall be free from any debt or
other liability incurred by the deceased or the nominee before his death and shall also not be
liable to attachment under any decree or order of any court.
(3) Notwithstanding anything contained in any other law for the time being in force,
any amount due under the Chapters referred to in sub-section (1) shall be the charge on the
assets of the establishment to which it relates and shall be paid in priority in accordance with
the provisions of section 53 of the Insolvency and Bankruptcy Code, 2016. 31 of 2016.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 169
152. (1) If the Central Government is satisfied that it is necessary or expedient so to Power to
do, it may, by notification amend the First Schedule, Fourth Schedule, Fifth Schedule and amend
Sixth Schedule by way of addition or deletion therein and upon such addition or deletion, Schedule.
the Schedules shall stand to have been amended accordingly.
(2) If the appropriate Government is satisfied that it is necessary or expedient so to do,
it may, by notification amend the Second Schedule and Third Schedule by way of addition
therein and not otherwise, and upon such addition, the Schedule shall stand to have been
amended accordingly.
153. (1) The appropriate Government may, by notification, and subject to the condition
Power of
of previous publication, make rules not inconsistent with this Code, for the purpose of appropriate
giving effect to the provisions thereof. Government
to make rules.
(2) In particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:—
(a) the amount in connection with premium for Group Insurance Scheme of the
beneficiaries under clause (c), educational schemes for the benefit of children of the
beneficiaries under clause (d), medical expenses for treatment of major ailments of a
beneficiary or, such dependant under clause (e), of sub-section (6) of section 7;
(b) other member who may authenticate by signature the orders and decisions
of the Social Security Organisations and other instruments issued under
sub-section (2) of section 9;
(c) bank or other financial institution in which the gratuity shall be invested for
the benefit of minor under the second proviso to sub-section (1) of section 53;
(d) time, form and manner of nomination by an employee under sub-section (1),
time to make fresh nomination under sub-section (4), the form and manner of
modification of a nomination under sub-section (5), and the form for fresh nomination
under sub-section (6), of section 55;
(e) time and form of application under sub-section (1) of section 56;
(f) the composition of the Board of Trustees of the approved gratuity fund and
for the recovery by the competent authority of the amount of the gratuity payable to
an employee from the insurer under sub-section (4) of section 57;
(g) the qualifications and experience of competent authority under sub-section (1)
of section 58;
(h) authority to whom an appeal may be preferred under sub-section (3) of
section 72;
(i) class of employers and the form of notice-book under sub-section (4) of
section 82;
(j) the interval for medical examination under proviso to sub-section (1) of
section 84;
(k) form of statement and the manner of ascertaining the dependants under
sub-section (1) and the manner of providing an advocate to the dependant under
sub-section (5) of section 88;
(l) manner of recording memorandum under sub-section (1) of section 89;
(m) such other experience and qualifications for appointment as a competent
authority under sub-section (1) of section 91;
(n) time-limit to pay the amount of cess under section 101;
(o) fees for appeal under sub-section (2) of section 105;170 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(p) conditions to acquire, hold, sell or otherwise transfer any movable or
immovable property under sub-section (1), conditions to invest moneys, re-invest or
realise investments under sub-section (2), terms to raise loans and take measures for
discharging such loans under sub-section (3), and terms to constitute provident or
other benefit funds under sub-section (4), of section 120;
(q) conditions and manner of writing off losses under section 121;
(r) other powers of Inspector-cum-Facilitator under clause (e) of sub-section (6)
of section 122;
(s) form and manner for maintenance of records and registers and other particulars
and details under clause (a), manner and form for display of notices at the work places
of the employees under clause (b), and the manner, officer or authority and period of
filing returns to the officer or authority under clause (d), of section 123;
(t) officer or other person who may make complaint under sub-section (1), and the
authority to give sanction for prosecution under sub-section (2) of section 138;
(u) the manner and form for reporting vacancies to the career centres under
clauses (i) and (ii), and the manner and form of filing the return by the employer to the
concerned career centre under clause (iii), of sub-section (2), of section 141;
(v) the time within which the Central Board or the Corporation, as the case may
be, shall forward its view to the appropriate Government under sub-section (1); and
the conditions which the exempted establishment or the class of establishment or
class of employees shall comply after exemption under sub-section (2), of section 144;
(w) any other matter which is required to be, or may be, prescribed by the
appropriate Government under the provisions of this Code.
Power of 154. (1) The Central Government may, by notification, and subject to the condition of
Central previous publication, make rules not inconsistent with this Code, for the purpose of giving
Government
effect to the provisions thereof.
to make rules.
(2) In particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:—
(a) manner of establishment and maintenance of career centre and the career
services under clause (8) of section 2;
(b) the income of dependent parents (including father-in-law and mother-in-law
of a woman employee) under sub-clause (e) of clause (33) of section 2;
(c) such other authority who, may appoint the person or persons to manage the
affairs of the factory and the matters which are directly related to the condition of ship
for which the owner of ship shall be deemed to be the occupier, under the proviso to
clause (49) of section 2;
(d) the time and manner of registration of establishment under section 3;
(e) the manner of administration of the funds vested in the Board under
sub-section (1), the manner of performance of functions by an Executive Committee
under sub-section (3), the terms and conditions, including tenure of office of member
of the Central Board and Executive Committee and their duties under sub-section (5),
and the manner of performance of such other functions under sub-section (6), of
section 4;
(f) the manner of administration of Employees' State Insurance Scheme; and the
manner of representation of States under clause (d), of sub-section (1), the manner of
constitution of Standing Committee under sub-section (3), the manner of administration
of the affairs of the Corporation, exercise of powers and performance of function by
the Standing Committee under clause (a) of sub-section (4), the composition of the
Medical Benefit Committee under sub-section (5), and the terms and conditions,SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 171
including tenure of office, subject to which a member of the Corporation and Standing
Committee shall discharge their respective duties under sub-section (7), of section 5;
(g) the manner of exercising the powers and performance of the functions by the
National Social Security Board under sub-section (1), the number of persons to be
nominated as members, their term of office and other conditions of their service,
procedure to be followed in the discharge their functions and manner of filling vacancies
under sub-section (4) and time, place and rules of procedure relating to transaction of
business under sub-section (6), of section 6.
(h) welfare measures and facilities under clause (j) of sub-section (6) of section 7;
(i) meetings and procedure in regard to the transaction of business at meetings
and the fee and allowances of members of Social Security Organisation or any
Committee under sub-section (4), of section 9;
(j) manner of re-constitution of the Corporation or the Central Board or the
National Social Security Board or the State Unorganised Workers Board or the Building
Workers' Welfare Board, or any of the Committees under sub-section (1), and alternate
arrangements for the purpose of administration of the relevant provisions of this Code
under sub-section (2), of section 11;
(k) manner of establishment of a Pension Fund under clause (b) and the manner
of establishment of Insurance Fund under clause (c), of sub-section (1) of section 16;
(l) the manner of maintenance of a provident fund account in relation to the
establishment under sub-section (1) of section 21;
(m) the manner of transfer and dealing with accounts under section 22;
(n) form, manner, time-limits and fees for filing of appeal under sub-section (2) of
section 23;
(o) salary and allowances of the Director General or the Financial Commissioner
under sub-section (3) and the limit of maximum monthly salary under the proviso to
sub-section (6), of section 24;
(p) limits for defraying expenditure under clause (k) of section 26;
(q) conditions to acquire, hold, sell or otherwise transfer any movable or
immovable property under sub-section (1), conditions to invest moneys by the
Corporation under sub-section (2), and the terms to raise loans and take measures for
discharging such loans under sub-section (3), of section 27;
(r) manner of insurance of employees under section 28;
(s) the rate of contributions under sub-section (2), and the days on which the
contributions fall due where an employee is employed for part of the wage period, or
is employed under two or more employers during the same wage period under
sub-section (4), of section 29;
(t) the percentage of income which may be spent on expenses and the limits for
such expenses under section 30;
(u) the amount of payment under the proviso to clause (f) of sub-section (1), and
the qualifications to claim benefits, conditions, rate and period thereof under
sub-section (3), of section 32;
(v) the limits within which the Corporation may incur expenditure from the
Employees' State Insurance Fund under section 33;
(w) the rates, periods and conditions for payment of dependants' benefit under
sub-sections (1) and (2) of section 38;172 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(x) the qualification of an insured person and his family, to claim medical benefit
and the conditions subject to which such benefit may be given, the scale and period
thereof under sub-section (3), and the payment of contribution and other conditions
under the second proviso to sub-section (3), of section 39;
(y) the terms and conditions subject to which the scheme may be operated
under section 44;
(z) the contribution, user charges, scale of benefits, qualifying and eligibility
conditions and other terms and conditions under sub-section (2) of section 45;
(za) the form of application to the competent authority under clause (b) of
sub-section (5) of section 56;
(zb) the manner of obtaining an insurance by every employer, other than an
employer or an establishment belonging to, or under the control of, the Central
Government or a State Government under sub-section (1), the conditions to exempt
and manner of establishing an approved gratuity fund under sub-section (2), and the
time and manner to get establishment registered and the manner thereof under
sub-section (3), of section 57;
(zc) the form of notice under sub-section (1), and the proof of pregnancy and
proof of delivery under sub-section (5), of section 62;
(zd) the proof of miscarriage or medical termination of pregnancy under
sub-section (1), the proof of tubectomy operation under sub-section (2), and the
proof of illness under sub-section (3), of section 65;
(ze) the duration of breaks under section 66;
(zf) the number of employees and distance for creche facility under sub-section (1)
of section 67;
(zg) gross misconduct under the second proviso to sub-section (1) of
section 68;
( zh) rate of interest to be paid by the employer under clause (a) of sub-section (3)
of section 77;
(zi) the manner of notice under the first proviso to sub-section (1), and the
manner of transmitting money under sub-section (3), of section 92;
(zj) the form, manner and fee for application for claim or settlement under
sub-section (3) of section 93;
(zk) the manner and time of collection of cess under sub-section (2), and
manner of deposit of the cess so collected under sub-section (3), and the uniform rate
or rates of advance cess under sub-section (4), of section 100;
(zl) the rate of interest in case of delayed payment of cess under section 101;
(zm) the manner of self-assessment of cess under sub-section (1) of section
103;
(zn) the authority to inquire and impose penalty under section 104;
(zo) time-limit to prefer appeal, appellate authority, form and manner of appeal
under sub-section (1) of section 105;
(zp) manner of registration as beneficiary under section 106;
(zq) benefits of a beneficiary under sub-section (2) of section 107;
(zr) manner of administration of the Social Security Fund or funds under
sub-section (5) of section 109;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 173
(zs) eligible age for registration under clause (a) and form, manner, authority and
information under clause (b) of sub-section (1), and the form of application and
documents for registration and registering authority under sub-section (2), of
section 113;
(zt) form, manner and time for filing application for review under sub-section (2),
of section 126;
(zu) appellate authority to whom an employer may prefer an appeal under
section 127, and rate of interest on the refund of deposit to the employer, under the
second proviso, to the said section;
(zv) the rate of simple interest which the employer shall be liable to pay under
section 129;
(zw) manner of levying and recovery of damages under section 130;
(zx) manner to certify under sub-section (5) of section 131;
(zy) manner of compounding of offences under sub-section (1), and the form and
manner of application for compounding of an offence under sub-section (4), of
section 140;
(zz) manner to establish identity under section 143;
(zza) the eligibility conditions to be fulfilled prior to exemption and the conditions
to be complied with after exemption under sub-section (1), and the period of extension
of exemption under sub-section (3), of section 144;
(zzb) any other matter which is required to be, or may be, prescribed by the
Central Government under the provisions of this Code.
155. (1) The State Government may, by notification, and subject to the condition of Power of State
previous publication, make rules not inconsistent with this Code, for the purpose of giving Government
effect to the provisions thereof. to make rules.
(2) In particular and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:—
(a) the manner of exercising the powers and performance of functions by State
Unorganised Workers' Board under sub-section (9), the number of persons to be
nominated as members, their term of office and other conditions of service, the
procedure to be followed in the discharge of their functions by, and the manner of
filling vacancies among the members of, the State Unorganised Workers' Board under
sub-section (12), and the time, place and rules of procedure relating to the transaction
of business at its meetings under sub-section (14), of section 6;
(b) the terms and conditions of appointment and the salaries and other allowances
payable to the chairperson and the other members, and the manner of filling of casual
vacancies of the members, and the terms and conditions of appointment and the
salary and allowances payable to the Secretary and the other officers and employees
under clause (c) of sub-section (5) of section 7;
(c) structure, functions, powers and activities of the organisations under
sub-section (6) of section 40;
(d) procedure to be followed by the Employees' Insurance Court under
sub-section (2) of section 50;
(e) manner of commencement of proceedings before the Employees' Insurance
Court and the time-limit of filing, fees and procedure thereof under sub-section (1) of
section 51;
(f) conditions when application for review is made without certificate of a medical
practitioner under sub-section (1) of section 79;174 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(g) manner of matters to be dealt by or before a competent authority under
sub-section (1) of section 92;
(h) time- limit for disposal of application and costs incidental to the proceedings
under sub-section (4) of section 93;
(i) the manner of authentication of memorandum under section 97; and
(j) any other matter which is required to be, or may be, prescribed by the State
Government under the provisions of this Code.
156. (1) The Corporation may, by notification, and subject to the condition of previous
Power of
Corporation publication, make regulations, not inconsistent with this Code and the rules and schemes
to make made or framed thereunder, for the administration of the affairs of the Corporation and for
regulations.
carrying into effect the provisions of Chapter IV and the provisions of this Code relating to
that Chapter.
(2) In particular and without prejudice to the generality of the foregoing power, such
regulations may provide for all or any of the following matters, namely:—
(a) the cases and matters to be submitted for the decision of the Corporation
under clause (b) of sub-section (4) and the composition of committees under
sub-section (6), of section 5;
(b) the method of recruitment, salary and allowances, discipline and other con-
ditions of service of the officers and employees under clause (a) of sub-section (7) of
section 24;
(c) unit in respect of which all contribution shall be payable under sub-section (3)
of section 29;
(d) maintenance of register of employees by or through the contractor under
sub-section (7), conditions for deduction of wages under sub-section (8) and any
matter relating or incidental to the payment and collection of contribution under
sub-section (9), of section 31;
(e) qualifications and experience of other person to certify sickness under
clause (a), authority to certify eligibility of a woman under clause (b), authority to
certify eligibility for payment under clause (c) of sub-section (I), the conditions for
extension of medical benefits under sub-section (2) and any matter relating or incidental
to the accrual and payment of benefits under sub-section (4), of section 32;
(f) continuous period in which the employee contracts occupational disease
under sub-section (1) of section 36;
(g) constitution of medical board under sub-section (1), constitution of medical
appeal tribunal under sub-section (5) and manner of filing appeals before the medical
appeal tribunal under sub-section (7), of section 37;
(h) conditions for voluntary retirement scheme under the first proviso to
sub-section (3) of section 39;
(i) other authority for providing permission under clause (c) of sub-section (3),
form of nomination under sub-section (6) and the authority to determine benifits
under sub-section (9), of section 41;
(j) user charges to be paid by other beneficiaries for medical facilities under
clause (c) of the Explanation to section 44; and
(k) any matter in respect of which regulations are required or permitted to be
made by this Code.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 175
157. The power to make rules, regulations and schemes under this Code shall be Prior
subject to the condition of the previous publication of the same being made, in the following publication of
rules,
manner, namely:—
regulations,
(a) the date to be specified after a draft of rules, regulations and schemes under etc.
consideration, shall not be less than forty-five days from the date on which the draft
of the proposed rules, regulations and schemes is published for general information in
the Official Gazette;
(b) rules, regulations and schemes shall finally be published in the Official Gazette
and, on such publication, shall have effect as if enacted in this Code.
158. (1) The Central Government may, by notification, make rules for the transfer to Rules to give
any foreign country of money deposited with a competent authority under Chapter VII effect to
which has been awarded to or may be due to, any person residing or about to reside in such arrangements
with other
foreign country and for the receipt, distribution and administration in any State of any
countries for
money deposited under the law relating to employees' compensation in any foreign country, the transfer of
which has been awarded to, or may be due to any person residing or about to reside in any money paid as
State: compensation.
Provided that no sum deposited under Chapter VII in respect of fatal accidents shall
be so transferred without the consent of the employer concerned after the competent authority
receiving the sum has passed orders determining its distribution and apportionment under
section 81.
(2) Where money deposited with a competent authority has been so transferred in
accordance with the rules made under this section, the provisions elsewhere contained in
this Code regarding distribution by the competent authority of compensation deposited
with him shall cease to apply in respect of any such money.
159. (1) Every rule, regulation, notification and scheme made or framed by the Central Laying of
Government or the Corporation, as the case may be, under this Code shall be laid, as soon as rules,
may be after it is made or framed, before each House of Parliament, while it is in session, for regulations
and schemes,
a total period of thirty days which may be comprised in one session or in two or more
etc.
successive sessions, and if, before the expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in making any modification
in the rule, regulation, notification or scheme, as the case may be, or both Houses agree that
the rule, regulation, notification or scheme, as the case may be, should not be made, such
rule, regulation, notification or scheme shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done under that
rule, regulation, notification or scheme, as the case may be.
(2) Every rule and scheme made or framed, and every notification issued by, the State
Government under this Code, shall be laid as soon as may be after it is made or framed, before
the State Legislatures, where it consists of two Houses, or where such legislature consists
of one House, before that House.
160.(1) The provisions of this Code shall have effect notwithstanding anything Effect of laws
inconsistent therewith contained in any other law for the time being in force, or in the terms and
agreements
of any award, agreement or contract of service, whether made before or after the coming into
inconsistent
force of this Code: with this
Code.
Provided that where under any such award, agreement, contract of service or otherwise,
a person is entitled to benefits in respect of any matter which are more favourable to him than
those to which he would be entitled under this Code, the person shall continue to be entitled
to the more favourable benefits in respect of that matter, notwithstanding that he is entitled
to receive benefits in respect of other matters under this Code.176 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(2) Nothing contained in this Code shall be construed to preclude a person from
entering into an agreement with his employer for granting him rights or privileges in respect
of any matter which are more favourable to him than those to which he would be entitled
under this Code.
Delegation of 161. The appropriate Government may, by notification, direct that all or any of the
powers.
powers and functions which may be exercised or performed by that Government may, in
relation to such matters and subject to such conditions, if any, as may be specified, be also
exercisable by the Central Board, the Corporation, the National Social Security Board, the
State Unorganised Workers Board, Building Workers Welfare Board or any officer or authority
subordinate to the Central Board, the Corporation, the National Social Security Board, the
State Unorganised Workers Board, Building Workers Welfare Board.
Power to 162. (1) If any difficulty arises in giving effect to the provisions of this Code, the
remove
Central Government may, by order, published in the Official Gazette, make such provisions,
difficulties.
not inconsistent with the provisions of this Code, as may be necessary or expedient for
removing the difficulty:
Provided that no such order shall be made under this section after the expiry of a
period of two years from the commencement of this Code.
(2) Every order made under this section shall be laid, as soon as may be after it is made,
before each House of Parliament.
Repeal and 163. (1) The following enactments are hereby repealed, namely:—
savings.
1. The Employees' Compensation Act, 1923; 8 of 1923.
2. The Employees' State Insurance Act, 1948; 34 of 1948.
3. The Employees' Provident Funds and Miscellaneous Provisions Act, 1952; 19 of 1952.
4. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959; 31 of 1959.
5. The Maternity Benefit Act, 1961; 53 of 1961.
6. The Payment of Gratuity Act, 1972; 39 of 1972.
7. The Cine-Workers Welfare Fund Act, 1981; 33 of 1981.
8. The Building and Other Construction Workers’ Welfare Cess Act, 1996; 28 of 1996.
9. The Unorganised Workers Social Security Act, 2008. 33 of 2008.
(2) Notwithstanding such repeal,—
(a) anything done or any action taken under the enactments so repealed
including any rule, regulation, notification (including the notifications issued by the
States), scheme, appointment, order or direction made thereunder or any benefit
provided or given under any provision of such enactments, rules, regulations,
notifications or schemes made thereunder for any purpose shall be deemed to have
been done or taken or provided for such purpose under the corresponding provisions
of this Code including any rule, regulation, notification, scheme, appointment, order
or direction made thereunder and shall be in force to the extent they are not contrary
to the provisions of this Code including any rule, regulation, notification, scheme,
appointment, order or direction made thereunder till they are repealed under the
corresponding provisions of this Code including any rule, regulation, notification,
scheme, appointment, order or direction made thereunder by the appropriate
Government.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 177
(b) the Central Board and the Executive Committee constituted under the
19 of 1952. Employees' Provident Funds and Miscellaneous Provisions Act, 1952 so repealed and
the Corporation, Standing Committee and the Medical Benefit Council constituted
34 of 1948. under Employees' State Insurance Act, 1948 so repealed shall remain so constituted
and discharge respectively the functions and exercise the powers of the Central Board,
Executive Committee, Corporation, Standing Committee and Medical Benefit Committee
under this Code, till such Central Board, Executive Committee, Corporation, Standing
Committee and Medical Benefit Committee are constituted in accordance with the
provisions of this Code.
(c) any exemption given under any enactments so repealed shall continue to be
in force till its validity expires or it is ceased to be in operation under the provisions of
this Code or any direction made thereunder for such purpose.
(3) Without prejudice to the provisions of sub-section (2), the provisions of section 6
10 of 1897. of the General Clauses Act, 1897 shall apply to the repeal of such enactments.178 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
THE FIRST SCHEDULE
[See section 1(4)]
APPLICABILITY
Chapter No. Chapter Heading Applicability
(1) (2) (3)
III Employees' Provident Fund Every establishment in which twenty or more
employees are employed.
IV Employees' State Insurance Every establishment in which ten or more
Corporation employees 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.
V Gratuity (a) every factory, mine, oilfield, plantation,
port and railway company; and
(b) 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.
VI Maternity Benefit (a) to every establishment being a factory,
mine or plantation including any such
establishment belonging to Government;
andSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 179
(1) (2) (3)
(b) 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.
VII Employee's Compensation Subject to the provisions of the Second
Schedule, it applies to the employers and
employees to whom Chapter IV does not
apply.
VIII Social Security and Cess in Every establishment which falls under the
respect of Building and building and other construction work.
Other Construction Workers
IX Social Security for Unorganised sector, unorganised workers,
Unorganised Workers gig worker, platform worker.
XIII Employment Information Career centres, vacancies and employers.
and Monitoring180 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
THE SECOND SCHEDULE
[See section 2(26)]
LIST OF PERSONS WHO ARE EMPLOYEES WITHIN THE MEANING OF SECOND
PROVISO TO CLAUSE (26) OF SECTION 2
The following persons are employees within the meaning of second proviso to
clause (26) of section 2 and subject to the said proviso, any person who is—
(i) employed in railways, in connection with the operation, repair or maintenance
of a lift or a vehicle propelled by steam or other mechanical power or by electricity or
in connection with the loading or unloading of any such vehicle; or
(ii) employed, in any premises wherein or within the precincts whereof a
manufacturing process as defined in clause (k) of section 2 of the Factories Act, 1948
(63 of 1948), is being carried on, or in any kind of work whatsoever incidental to or
connected with any such manufacturing process or with the article made whether or
not employment in any such work is within such premises or precincts, and steam,
water or other mechanical power or electrical power is used; or
(iii) employed for the purpose of making, altering, repairing, ornamenting,
finishing or otherwise adapting for use, transport or sale any article or part of an article
in any premises; or
Explanation.—For the purposes of this clause, persons employed outside such
premises or precincts but in any work incidental to, or connected with, the work
relating to making, altering, repairing, ornamenting, finishing or otherwise adapting
for use, transport or sale of any article or part of an article shall be deemed to be
employed within such premises or precincts; or
(iv) employed in the manufacture or handling of explosives in connection with
the employer's trade or business; or
(v) employed, in any mine as defined in clause (j) of section 2 of the Mines Act,
1952 (35 of 1952), in any mining operation or in any kind of work, incidental to or
connected with any mining operation or with the mineral obtained, or in any kind of
work whatsoever below ground; or
(vi) employed as the master or as a seaman of—
(a) any ship which is propelled wholly or in part by steam or other
mechanical power or by electricity or which is towed or intended to be towed by
a ship so propelled; or
(b) any sea going ship not included in sub-clause (a) provided with
sufficient area for navigation under sails alone; or
(vii) employed for the purpose of—
(a) loading, unloading, fuelling, constructing, repairing, demolishing,
cleaning or painting any ship of which he is not the master or a member of the
crew, or handling or transport within the limits of any port subject to the Ports
Act, 1908 (15 of 1908), or the Major Port Trusts Act, 1963 (38 of 1963) of goods
which have been discharged from or are to be loaded into any vessel; or
(b) warping a ship through the lock; or
(c) mooring and unmooring ships at harbour wall berths or in pier; or
(d) removing or replacing dry dock caissons when vessels are entering or
leaving dry docks; orSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 181
(e) the docking or undocking of any vessel during an emergency; or
(f) preparing splicing coir springs and check wires, painting depth marks
on lock-sides, removing or replacing fenders whenever necessary, landing of
gangways, maintaining life-buoys up to standard or any other maintenance
work of a like nature; or
(g) any work on jolly-boats for bringing a ship's line to the wharf; or
(viii) employed in the construction, maintenance, repair or demolition of—
(a) any building which is designed to be or is or has been more than one
storey in height above the ground or twelve feet or more from the ground level
to the apex of the roof; or
(b) any dam or embankment which is twelve feet or more in height from its
lowest to its highest point; or
(c) any road, bridge, tunnel or canal; or
(d) any wharf, quay, sea-wall or other marine work including any moorings
of ships; or
(ix) employed in setting up, maintaining, repairing or taking down any telegraph
or telephone line or post or any overhead electric line or cable or post or standard or
fittings and fixtures for the same; or
(x) employed, in the construction, working, repair or demolition of any aerial
ropeway, canal, pipeline or sewer; or
(xi) employed in the service of any fire brigade; or
(xii) employed upon a railway as defined in clause (31) of section 2 and sub-section (1)
of section 197 of the Railways Act, 1989 (24 of 1989), either directly or through a
sub-contractor, by a person fulfilling a contract with the railway administration; or
(xiii) employed as an inspector, mail guard, sorter or van peon in the Railway
Mail Service or as a telegraphist or as a postal or railway signaller, or employed in any
occupation ordinarily involving outdoor work in the Indian Posts and Telegraphs
Department; or
(xiv) employed, in connection with operation for winning natural petroleum or
natural gas; or
(xv) employed in any occupation involving blasting operations; or
(xvi) employed in the making of any excavation for which explosives have been
used, or whose depth from its highest to its lowest point exceeds twelve feet; or
(xvii) employed in the operation of any ferry boat capable of carrying more than
ten persons; or
(xviii) employed on any estate which is maintained for the purpose of growing
cardamom, cinchona, coffee, rubber or tea; or
(xix) employed, in the generating, transforming transmitting or distribution of
electrical energy or in generation or supply of gas; or
(xx) employed in a lighthouse as defined in clause (d) of section 2 of the Indian
Lighthouse Act, 1927 (17 of 1927); or
(xxi) employed in producing cinematograph pictures intended for public
exhibition or in exhibiting such pictures; or
(xxii) employed in the training, keeping or working of elephants or wild animals;
or182 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(xxiii) employed in the tapping of palm-trees or the felling or logging of trees, or
the transport of timber by inland waters, or the control or extinguishing of forests
fires; or
(xxiv) employed in operations for the catching or hunting of elephants or other
wild animals; or
(xxv) employed as a diver; or
(xxvi) employed in the handling or transport of goods in, or within the precincts
of,—
(a) any warehouse or other place in which goods are stored; or
(b) any market; or
(xxvii) employed in any occupation involving the handling and manipulation of
radium or X-rays apparatus, or contact with radioactive substances; or
(xxviii) employed in or in connection with the construction, erection, dismantling,
operation or maintenance of an aircraft as defined in section 2 of the Indian Aircraft
Act, 1934 (22 of 1934); or
(xxix) employed in horticultural operations, forestry, bee-keeping or farming by
tractors or other contrivances driven by steam or other mechanical power or by
electricity; or
(xxx) employed, in the construction, working, repair or maintenance of a
tube-well; or
(xxxi) employed in the maintenance, repair or renewal of electric fittings in a
building; or
(xxxii) employed in a circus; or
(xxxiii) employed as watchman in any factory or establishment; or
(xxxiv) employed in any operation in the sea for catching fish; or
(xxxv) employed in any employment which requires handling of snakes for the
purpose of extraction of venom or for the purpose of looking after snakes or handling
any other poisonous animal or insect; or
(xxxvi) employed in handling animals like horses, mules and bulls; or
(xxxvii) employed for the purpose of loading or unloading any mechanically
propelled vehicle or in the handling or transport of goods which have been loaded in
such vehicles; or
(xxxviii) employed in cleaning of sewer lines or septic tanks within the limits of
a local authority; or
(xxxix) employed on surveys and investigation, exploration or gauge or discharge
observation of rivers including drilling operations, hydrological observations and
flood forecasting activities, ground water surveys and exploration; or
(xl) employed in cleaning of jungles or reclaiming land or ponds; or
(xli) employed in cultivation of land or rearing and maintenance of live-stock or
forest operations or fishing; or
(xlii) employed in installation, maintenance or repair of pumping equipment
used for lifting of water from wells, tube-wells, ponds, lakes, streams and the like; or
(xliii) employed in the construction, boring or deepening of an open well or dug
well, bore well, bore-cum-dug well, filter point and the like; orSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 183
(xliv) employed in spraying and dusting or insecticides of pesticides in agricultural
operations or plantations; or
(xlv) employed in mechanised harvesting and threshing operations; or
(xlvi) employed in working or repair or maintenance of bulldozers, tractors,
power tillers and the like; or
(xlvii) employed as artist for drawing pictures on advertisement boards at a
height of 3.66 metres or more from the ground level; or
(xlviii) employed in any newspaper establishment as defined in the Working
Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955 (45 of 1955) and engaged in outdoor work; or
(xlix) Employed as sales promotion employee; or
(l) any other employee or class of employee employed in an establishment or
class of establishment to which the Employees' Compensation Act, 1923 (8 of 1923)
was applicable in any State immediately before the commencement of this Code.184 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
THE THIRD SCHEDULE
[See sections 36 and 74]
LIST OF OCCUPATIONAL DISEASES
Serial No. Occupational disease Employment
(1) (2) (3)
PART A
1. Infectious and parasitic diseases (a) all work involving exposure to health or
contracted in an occupation where laboratory work;
there is a particular risk of
contamination (b) all work involving exposure to
veterinary work;
(c) work relating to handling animals, animal
carcasses, part of such carcasses, or
merchandise which may have been
contaminated by animals or animal
carcasses;
(d) other work carrying a particular risk of
contamination.
2. Diseases caused by work in All work involving exposure to the risk
compressed air concerned.
3. Diseases caused by lead or its All work involving exposure to the risk
toxic compounds concerned.
4. Poisoning by nitrous fumes All work involving exposure to the risk
concerned.
5. Poisoning by organo phosphorus All work involving exposure to the risk
compounds concerned.
PART B
1. Diseases caused by phosphorus All work involving exposure to the risk
or its toxic compounds concerned.
2. Diseases caused by mercury or All work involving exposure to the risk
its toxic compounds concerned.
3. Diseases caused by benzene or All work involving exposure to the risk
its toxic homologues concerned.
4. Diseases caused by nitro and All work involving exposure to the risk
amido toxic derivatives of benzene concerned.
or its homologues
5. Diseases caused by chromium or All work involving exposure to the risk
its toxic compounds concerned.
6. Diseases caused by arsenic or its All work involving exposure to the risk
toxic compounds concerned.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 185
(1) (2) (3)
7. Diseases caused by radioactive All work involving exposure to the action
substances and ionising radiations of radioactive substances or ionising
radiations.
8. Primary epitheliomatous cancer of the All work involving exposure to the risk
skin caused by tar, pitch, bitumen, concerned.
mineral oil, anthracene, or the
compounds, products or residues
of these substances
9. Diseases caused by the toxic All work involving exposure to the risk
halogen derivatives of hydro- concerned.
carbons (of the aliphatic and
aromatic series)
10. Diseases caused by carbon All work involving exposure to the risk
disulphide concerned.
11. Occupational cataract due to infra- All work involving exposure to the risk
red radiations concerned.
12. Diseases caused by manganese All work involving exposure to the risk
or its toxic compounds concerned.
13. Skin diseases caused by physical, All work involving exposure to the risk
chemical or biological agents not concerned.
included in other items
14. Hearing impairment caused by All work involving exposure to the risk
noise concerned.
15. Poisoning by dinitrophenol or a All work involving exposure to the risk
homologue or by substituted concerned.
dinitrophenol or by the salts of
such substances
16. Diseases caused by beryllium or All work involving exposure to the risk
its toxic compounds concerned.
17. Diseases caused by cadmium or All work involving exposure to the risk
its toxic compounds concerned.
18. Occupational asthma caused by All work involving exposure to the risk
recognised sensitising agents concerned.
inherent to the work process
19. Diseases caused by fluorine or All work involving exposure to the risk
its toxic compounds concerned.
20. Diseases caused by nitroglycerin All work involving exposure to the risk
or other nitroacid esters concerned.
21. Diseases caused by alcohols All work involving exposure to the risk
and ketones concerned.
22. Diseases caused by asphyxiants, All work involving exposure to the risk
carbon monoxide, and its toxic concerned.
derivatives, hydrogen sulphide
23. Lung cancer and mesotheliomas All work involving exposure to the risk
caused by asbestos concerned.186 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(1) (2) (3)
24. Primary neoplasm of the epithelial All work involving exposure to the risk
lining of the urinary bladder or the concerned.
kidney or the ureter
25. Snow blindness in snow bound All work involving exposure to the risk
areas concerned.
26. Disease due to effect of heat in All work involving exposure to the risk
extreme hot climate concerned.
27. Disease due to effect of cold in All work involving exposure to the risk
extreme cold climate concerned.
PART C
1. Pneumoconioses caused by All work involving exposure to the risk
sclerogenic mineral dust concerned.
(silicoses, anthraoosilicosis,
asbestosis) and silico-tuberculosis
provided that silicosis is an
essential factor in causing the
resultant incapacity or death
2. Bagassosis All work involving exposure to the risk
concerned.
3. Bronchopulmonary diseases caused All work involving exposure to the risk
by cotton, flax hemp and sisal dust concerned.
(Byssionsis)
4. Extrinsic allergic alveelitis caused All work involving exposure to the risk
by the inhalation of organic dusts concerned.
5. Bronchopulmonary diseases caused All work involving exposure to the risk
by hard metals concerned.
6. Acute Pulmonary oedema of high All work involving exposure to the risk
altitude concerned.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 187
THE FOURTH SCHEDULE
[See sections 2(52) and 2(53)]
PART I
LIST OF INJURIES DEEMED TO RESULT IN PERMANENT
TOTAL DISABLEMENT
Serial Description of Injury Percentage of loss
No. of earning capacity
(1) (2) (3)
1. Loss of both hands or amputation at higher sites 100
2. Loss of a hand and a foot 100
3. Double amputation through leg or thigh, or amputation 100
through leg or thigh on one side and loss of other foot
4. Loss of sight to such an extent as to render the claimant 100
unable to perform any work for which eye-sight is essential
5. Very severe facial disfigurement 100
6. Absolute deafness 100
PART II
LIST OF INJURIES DEEMED TO RESULT IN PERMANENT
PARTIAL DISABLEMENT
1. Amputation through shoulder joint 90
2. Amputation below shoulder with stump less than [20.32 Cms.] 80
from tip of acromion
3. Amputation form [20.32 Cms.] from tip of acromion to 70
less than [11.43 Cms.] below tip of olecranon
4. Loss of a hand or of the thumb and four fingers of one hand 60
or amputation from [11.43 Cms.] below tip of olecranon
5. Loss of thumb 30
6. Loss of thumb and its metacarpal bone 40
7. Loss of four fingers of one hand 50
8. Loss of three fingers of one hand 30
9. Loss of two fingers of one hand 20
10. Loss of terminal phalanx of thumb 20
11. Guillotine amputation of tip of thumb without loss of bone 10
Amputation cases—lower limbs
12. Amputation of both feet resulting in end bearing stumps 90
13. Amputation through both feet proximal to the 80
metatarso-phalangeal joint
14. Loss of all toes of both feet through the metatarso- 40
phalangeal joint188 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(1) (2) (3)
15. Loss of all toes of both feet proximal to the proximal 30
inter-phalangeal joint
16. Loss of all toes of both feet distal to the proximal inter- 20
phalangeal joint
17. Amputation at hip 90
18. Amputation below hip with stump not exceeding [12.70 Cms.] 80
in length measured from tip of great trenchanter
19. Amputation below hip with stump exceeding [12.70 Cms.] 70
in length measured from tip of great trenchanter but not
beyond middle thigh
20. Amputation below middle thigh to [8.89 Cms.] below knee 60
21. Amputation below knee with stump exceeding [8.89 Cms.] 50
but not exceeding [12.70 Cms.]
22. Amputation below knee with stump exceeding [12.70 Cms.] 50
23. Amputation of one foot resulting in end bearing 50
24. Amputation through one foot proximal to the 50
metatarso-phalangeal joint
25. Loss of all toes of one foot through the metatarso-phalangeal 20
joint
Other injuries
26. Loss of one eye, without complications, the other being normal 40
27. Loss of vision of one eye, without complications or 30
disfigurement of eye-ball, the other being normal
28. Loss of partial vision of one eye 10
Loss of—
A—Fingers of right or left hand
Index finger
29. Whole 14
30. Two phalanges 11
31. One phalanx 9
32. Guillotine amputation of tip without loss of bone 5
Middle finger
33. Whole 12
34. Two phalanges 9
35. One phalanx 7
36. Guillotine amputation of tip without loss of bone 4
Ring or little finger
37. Whole 7
38. Two phalanges 6SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 189
(1) (2) (3)
39. One phalanx 5
40. Guillotine amputation of tip without loss of bone 2
B—Toes of right or left foot
Great toe
41. Through metatarso-phalangeal joint 14
42. Part, with some loss of bone 3
Any other toe
43. Through metatarso-phalangeal joint 3
44. Part, with some loss of bone 1
Two toes of one foot, excluding great toe
45. Through metatarso-phalangeal joint 5
46. Part, with some loss of bone 2
Three toes of one foot, excluding great toe
47. Through metatarso-phalangeal joint 6
48. Part, with some loss of bone 3
Four toes of one foot, excluding great toe
49. Through metatarso-phalangeal joint 9
50. Part, with some loss of bone 3190 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
THE FIFTH SCHEDULE
[See section 15]
MATTERS THAT MAY BE PROVIDED FOR IN THE SCHEMES
Any Scheme framed under section 15 may provide for any of the following matters:—
PART-A
Serial No. Matters on which the Provident Fund Scheme may make provisions
(1) (2)
1. The employees or class of employees who shall join the Fund, and the
conditions under which employees may be exempted from joining the Fund
or from making any contribution.
2. The time and manner in which contributions shall be made to the Fund by
employers and by, or on behalf of, employees, (whether employed by him
directly or by or through a contractor), the contributions which an employee
may, if he so desires, make under section 16, and the manner in which such
contributions may be recovered.
3. The manner in which employees' contributions may be recovered by
contractors from employees employed by or through such contractors.
4. The payment by the employer of such sums of money as may be necessary to
meet the cost of administering the Fund and the rate at which and the manner
in which the payment shall be made.
5. The constitution of any committee for assisting any board of trustees.
6. The opening of regional and other offices of any board of trustees.
7. The manner in which accounts shall be kept, the investment of moneys
belonging to the Fund in accordance with any directions issued or conditions
specified by the Central Government, the preparation of the budget, the audit
of accounts and the submission of reports to the Central Government, or to
any specified State Government.
8. The conditions under which withdrawals from the Fund may be permitted
and any deduction or forfeiture may be made and the maximum amount of
such deduction or forfeiture.
9. The fixation by the Central Government in consultation with the boards of
trustees concerned of the rate of interest payable to members.
10. The form in which an employee shall furnish particulars about himself and his
family whenever required.
11. The nomination of a person to receive the amount standing to the credit of a
member after his death and the cancellation or variation of such nomination.
12. The registers and records to be maintained with respect to employees and the
returns to be furnished by employers or contractors.
13. The form or design of any identity card, token or disc for the purpose of
identifying any employee, and for the issue, custody and replacement thereof.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 191
(1) (2)
14. The fees to be levied for any of the purposes specified in this Schedule.
15. The contraventions or defaults which shall be punishable under section 135.
16. The further powers, if any, which may be exercised by Inspector-cum-
Facilitators.
17. The manner in which accumulations in any existing provident fund shall be
transferred to the Fund and the mode of valuation of any assets which may
be transferred by the employers in this behalf.
18. The conditions under which a member may be permitted to pay premia on life
insurance, from the Fund.
19. Any other matter which is to be provided for in the Scheme or which may be
necessary or proper for the purpose of implementing the Scheme.
PART-B
MATTERS THAT MAY BE PROVIDED FOR IN THE PENSION SCHEME
1. The employees or class of employees to whom the Pension Scheme shall
apply.
2. The portion of employers' contribution to the Provident Fund which shall be
credited to the Pension Fund and the manner in which it is credited.
3. The regulation of the manner in which and the period of service for which, no
contribution is received.
4. The manner in which employees' interest will be protected against default in
payment of contribution by the employer.
5. The manner in which the accounts of the Pension Fund shall be kept and
investment of moneys belonging to Pension Fund to be made subject to
such pattern of investment as may be determined by the Central Government.
6. The form in which an employee shall furnish particulars about himself and the
members of his family whenever required.
7. The forms, registers and records to be maintained in respect of employees,
required for the administration of the Pension Scheme.
8. The scale of pension and pensionary benefits and the conditions relating to
grant of such benefits to the employees.
9. The manner in which the exempted establishments have to pay contribution
towards the Pension Scheme and the submission of returns relating thereto.
10. The mode of disbursement of pension and arrangements to be entered into
with such disbursing agencies as may be specified for the purpose.
11. The manner in which the expenses for administering the Pension Scheme will
be met from the income of the Pension Fund.
12. Any other matter which is to be provided for in the Pension Scheme or which
may be necessary or proper for the purpose of implementation of the Pension
Scheme.
PART-C
MATTERS THAT MAY BE PROVIDED FOR IN THE EMPLOYEES' DEPOSIT-LINKED
INSURANCE SCHEME
1. The employees or class of employees who shall be covered by the Insurance
Scheme.192 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(1) (2)
2. The manner in which the accounts of the Insurance Fund shall be kept and
the investment of moneys belonging to the Insurance Fund subject to such
pattern of investment as may be determined, by order, by the Central
Government.
3. The form in which an employee shall furnish particulars about himself and the
members of his family whenever required.
4. The nomination of a person to receive the insurance amount due to the
employee after his death and the cancellation or variation of such nomination.
5. The registers and records to be maintained in respect of employees; the form
or design of any identity card, token or disc for the purpose of identifying
any employee or his nominee or member of his family entitled to receive the
insurance amount.
6. The scales of insurance benefits and conditions relating to the grant of such
benefits to the employees.
7. The manner in which the amount due to the nominee or the member of the
family of the employee under the scheme is to be paid including a provision
that the amount shall not be paid otherwise than in the form of a deposit in a
savings bank account, in the name of such nominee or member of family, in
any corresponding new bank specified in the First Schedule to the Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
8. Any other matter which is to be provided for in the Employees' Deposit-
linked Insurance Scheme or which may be necessary or proper for the purpose
of implementing that Scheme.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 193
THE SIXTH SCHEDULE
[See section 76(b)]
FACTORS FOR WORKING OUT LUMP SUM EQUIVALENT OF COMPENSATION
AMOUNT IN CASE OF PERMANENT DISABLEMENT AND DEATH
Completed years of age on the last birthday of the Factors
employee immediately preceding the date on which
the compensation fell due
(1) (2) (3)
Not more than 16 228.54
17 227.49
18 226.38
19 225.22
20 224.00
21 222.71
22 221.37
23 219.95
24 218.47
25 216.91
26 215.28
27 213.57
28 211.79
29 209.92
30 207.98
31 205.95
32 203.85
33 201.66
34 199.40
35 197.06
36 194.64
37 192.14
38 189.56
39 186.90
40 184.17
41 181.37
42 178.49194 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(1) (2) (3)
43 175.54
44 172.52
45 169.44
46 166.29
47 163.07
48 159.80
49 156.47
50 153.09
51 149.67
52 146.20
53 142.68
54 139.13
55 135.56
56 131.95
57 128.33
58 124.70
59 121.05
60 117.41
61 113.77
62 110.14
63 106.52
64 102.93
65 or more 99.37SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 195
STATEMENT OF OBJECTS AND REASONS
The Second National Commission on Labour, which submitted its report in June, 2002
had recommended that the existing set of labour laws should be broadly amalgamated into
the following groups, namely:––
(a) industrial relations;
(b) wages;
(c) social security;
(d) safety; and
(e) welfare and working conditions.
2. In pursuance of the recommendations of the said Commission and the deliberations
made in the tripartite meeting comprising of the Government, employers’ and employees’
representatives, it had been decided to bring the proposed legislation. The proposed
legislation intends to amalgamate, simplify and rationalise the relevant provisions of the
following nine central labour enactments relating to social security, namely:––
1. The Employees’ Compensation Act, 1923;
2. The Employees’ State Insurance Act, 1948;
3. The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;
4. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959;
5. The Maternity Benefit Act, 1961;
6. The Payment of Gratuity Act, 1972;
7. The Cine Workers Welfare Fund Act, 1981;
8. The Building and Other Construction Workers Welfare Cess Act, 1996; and
9. The Unorganised Workers’ Social Security Act, 2008.
3. The amalgamation of the said laws will facilitate the implementation and remove the
multiplicity of definitions and authorities without compromising the basic concepts of welfare
and benefits to workers. The proposed legislation, namely, the Code on Social Security, 2019
would facilitate the use of technology ensuring transparency and accountability leading to
effective enforcement of the provisions of the proposed legislation. Widening the scope of
the benefits to the fixed term employees and facilitating ease of compliance of labour laws
would be a big step towards equity and promote setting up of more enterprises thus catalysing
the creation of employment opportunities.
4. The salient features of the Code on Social Security, 2019, inter alia, are—
(i) to extend the coverage of Employees’ State Insurance to all establishments
employing ten or more employees and to the employees working in establishments
with less than ten employees on voluntary basis and also to plantations on option
basis. It further seeks to empower the Central Government to notify the applicability of
the said coverage to establishments which carries on the hazardous or life threatening
occupation irrespective of the number of workers employed therein;
(ii) to extend the Employees’ Provident Fund, Employees’ Pension Scheme and
Employees Deposit Linked Insurance Scheme to all industries or establishments
employing twenty or more employees and thereby expands the existing coverage;196 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(iii) to make provision for specifying differential rates of employees’ contribution
for class of employees for employees’ provident fund as the Central Government may
notify for a specified period;
(iv) to provide that the money dues shall be the charge on the assets of the
employer and shall be paid on priority basis in accordance with the Insolvency and
Bankruptcy Code, 2016;
(v) to provide that in case of employer’s failure to register the employee with
Employees’ State Insurance Corporation or failure to pay contribution and the
Employees’ State Insurance Corporation releasing the benefits to the workers, then,
such benefits shall be recovered from the employer;
(vi) to empower the Central Government to frame schemes for providing social
security, to the gig workers and platform workers who do not fall under traditional
employer-employee relation;
(vii) to empower the Central Government, by notification, to constitute a Social
Security Fund or funds for provision of social security for the unorganised workers,
platform workers or gig workers or any such class of workers;
(viii) to provide for payment of gratuity in case of Fixed Term Employment on
pro-rata basis even if the period of fixed term contract is less than five years;
(ix) to provide for maternity benefit to the woman employee;
(x) to provide for compensation to the employees in case of the accidents while
commuting from residence to place of work and vice versa;
(xi) to provide for levying and collecting the cess for the purposes of social
security and welfare of building workers;
(xii) to provide for limitation period of five years for institution of proceedings in
respect of assessment and determination of money dues from employer;
(xiii) to expand the sources of the fund for schemes to include funds from
corporate social responsibility or any other source as may be specified in the scheme
and also contains enabling provision for constituting the special purpose vehicle for
the purpose of implementation of schemes for unorganised workers;
(xiv) to provide for renaming the designation of Inspector as Inspector-cum-
Facilitator and to enhance his power to supply information and give advice to employers
and workers concerning the most effective means of complying with the provisions of
the proposed Code;
(xv) to provide for filing of a single return electronically or otherwise by the
employer;
(xvi) to provide that the interests charged on delayed payments under the
provisions of the proposed Code be specified in the rules;
(xvii) to provide penalty for the different types of violations commensurate with
the gravity of the violations;
(xviii) to make Aadhaar mandatory for seeding at the time of registration of
member or beneficiary or any other person to register or for receiving benefit;
(xix) to empower the appropriate Government to exempt certain establishments
from all or any of the provisions of the proposed Code.
5. The notes on clauses explain in detail the various provisions contained in the Bill.
6. The Bill seeks to achieve the above objectives.
NEW DELHI; SANTOSH GANGWAR.
the 6th December, 2019.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 197
Notes on Clauses
Clause 1 of the Bill seeks to provide for short title, extent, commencement and application
of the proposed Code.
Clause 2 of the Bill seeks to define certain expressions used in the Code, which
inter alia, includes “appropriate Government”, “building worker”, “employment injury”,
“factory”, “permanent partial disablement”, “permanent total disablement’, “tribunal”, etc.
Clause 3 of the Bill seeks to provide for registration of establishment to which the
proposed Code applies in the manner provided in the rules.
Clause 4 of the Bill seeks to provide for the manner of constitution and composition of
the Central Board of Trustees for the purposes of Chapter III and the provisions of this
proposed Code relating to that Chapter.
Clause 5 of the Bill seeks to provide for the manner of constitution and the composition
of the Employees State Insurance Corporation for the purposes of chapter IV and the
provisions of this proposed Code relating to that chapter.
Clause 6 of the Bill seeks to provide for the manner of constitution, composition and
functions of the National Social Security Board for Unorganised Workers and also for the
constitution of State Unorganised Workers Board.
Clause 7 of the Bill seeks to provide for the manner of constitution, composition and
function of the State Building and Other Construction Workers’ Welfare Board.
Clause 8 of the Bill seeks to provide the conditions which leads to disqualification and
removal of a member of any social security organisation.
Clause 9 of the Bill seeks to provide for the procedure of Social Security Organisation
relating to their meetings, functions and allowances.
Clause 10 of the Bill seeks to provide that the Central Provident Fund Commissioner
and the Director General shall not undertake any work unconnected with their office without
prior approval of the Central Government.
Clause 11 of the Bill seeks to provide for the supersession of the Corporation, the
Central Board of Trustees, the Unorganised Workers’ National Social Security Board or the
State Unorganised Workers Social Security Board by the Central or State Government as the
case may be.
Clause 12 of the Bill seeks to provide for the constitution of State Board, Regional
Board, local committees, etc.
Clause 13 of the Bill seeks to provide for entrustment of additional functions by the
Central Government to Social Security Organisations.
Clause 14 of the Bill seeks to provide for appointment of officers of the Central Board
by the Central Government.
Clause 15 of the Bill seeks to provide for framing of Schemes, such as the Employees’
Provident Fund Scheme, Employees’ Pension Scheme, and Employees’ Deposit Linked
Insurance Scheme.
Clause 16 of the Bill seeks to provide for establishment of the funds by the Central
Government with respect to Schemes.
Clause 17 of the Bill seeks to provide regarding contribution in respect of employees
and contractors.198 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Clause 18 of the Bill seeks to provide for fund to be recognised under the Income Tax
Act, 1961.
Clause 19 of the Bill seeks to provide priority of payment of contributions over other
debts.
Clause 20 of the Bill seeks to provide non-applicability Chapter III to certain
establishments.
Clause 21 of the Bill seeks to provide authorisation to certain employers to maintain
provident fund accounts.
Clause 22 of the Bill seeks to provide transfer of accounts where the employee
relinquishes his employment and obtains employment in any other establishment.
Clause 23 of the Bill seeks to provide for appeal to tribunal for matters specified
therein.
Clause 24 of the Bill seeks to provide appointment of Principal Officers and other staff
of the Corporation.
Clause 25 of the Bill seeks to provide for payment of all contributions and other
moneys received in the Employees’ State Insurance Fund and its administration thereof.
Clause 26 of the Bill seeks to provide the purposes for which the Employees’ State
Insurance Fund may be expanded for the purposes specified therein.
Clause 27 of the Bill seeks to provide for acquiring and holding of property, sale or
otherwise transfer of property both movable and immovable by the Corporation.
Clause 28 of the Bill seeks to provide for insurance of all employees in the
establishments where provisions of this proposed code shall apply.
Clause 29 of the Bill seeks to provide for contribution payable by the employer and
the employee to be paid to the Corporation.
Clause 30 of the Bill seeks to provide administrative expenses and percentage of
income of Corporation which may be spent for such expenses.
Clause 31 of the Bill seeks to provide for payment of contribution by employers and
recovery of contribution from the contractor, if paid by him and shall bear the expenses of
remitting the contributions to the Corporation
Clause 32 of the Bill seeks to provide for benefits mentioned specified in this clause to
the insured persons, their dependants, etc., which includes periodical payments to any
insured person in case of his sickness, periodical payments to an insured person being a
woman in case of confinement or miscarriage or sickness arising out of pregnancy,
confinement, premature birth of child or miscarriage, such woman being certified to be
eligible for such payments by an authority specified by regulations.
Clause 33 of the Bill seeks to provide power of corporation to promote measures for
improvement of the health and welfare of insured persons and for the rehabilitation and
reemployment of insured persons.
Clause 34 of the Bill seeks to provide presumption as to accident arising in course of
employment. An accident happening to an employee in or about any premises at which he
is for the time being employed for the purpose of his employer’s trade or business shall be
deemed to arise out of and in the course of his employment, if it happens while he is taking
steps, on an actual or supposed emergency at those premises, to rescue, succour or protect
persons who are, or are thought to be or possibly to be, injured or imperiled, or to avert or
minimise serious damage to property. 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 courseSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 199
of employment if nexus between the circumstances, time and place in which the accident
occurred and the employment is established.
Clause 35 of the Bill seeks to provide happening of accidents while acting in breach of
law, etc. An accident shall be deemed to arise out of and in the course of an employee’s
employment if the accident 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 or the act is done for the purpose of and in connection with the employer’s trade or
business.
Clause 36 of the Bill seeks to provide a list of ooccupational disease specified in the
Third Schedule of the proposed code. The contracting of the disease shall, unless the
contrary is proved, be deemed to be an “employment injury” arising out of and in the course
of employment.
Clause 37 of the Bill seeks to provide references to medical board to insured persons
related to permanent disablement, lose of earning capacity, etc., as mentioned therein.The
case of any insured person for permanent disablement benefit shall be referred by the
Corporation to a medical board for determination of the disablement. Any decision of a
medical board may be reviewed at any time by the medical board if it is satisfied by fresh
evidence that the decision was given in consequence of the non-disclosure or
misrepresentation by the employee or any other person of a material fact. If the Insured
Person or the Corporation is aggrieved by any decision of the medical board, the Insured
Person or the Corporation, as the case may be, may appeal to the medical appeal tribunal in
the manner specified in the regulations or directly to the Employees’ Insurance Courts.
Clause 38 of the Bill seeks to provide dependants’ benefit. If an insured person dies as
a result of an employment injury sustained as an employee (whether or not he was in receipt
of any periodical payment for temporary disablement in respect of the injury) dependants’
benefit shall be payable to his dependants at such rates and for such periods and subject to
such conditions as may be prescribed by the Central Government.
Clause 39 of the Bill seeks to provide medical benefit. An insured person or (where
such medical benefit is extended to his family) a member of his family whose condition
requires medical treatment and attendance shall be entitled to receive medical benefit.
An insured person who has attained the age of superannuation, a person who retires under
a Voluntary Retirement Scheme or takes premature retirement, and his spouse shall be eligible
to receive medical benefits subject to payment of contribution and such other conditions as
may be specified in the regulations. The Corporation may establish medical colleges, dental
colleges, nursing colleges and training institutes for its officers and staff with a view to
improve the quality of services provided under the Employees’ State Insurance Scheme.
Clause 40 of the Bill seeks to provide for medical treatment by State Government or by
the Corporation.The State Government shall provide for insured persons and (where such
benefit is extended to their families) their families in the State, reasonable medical, surgical
and obstetric treatment. The Corporation may enter into agreement with any local authority,
private body or individual in regard to the provision of medical treatment and attendance for
insured persons and (where such medical benefit is extended to their families) their families,
in any area and sharing the cost thereof.
Clause 41 of the Bill seeks to provide general provisions of the benefits. A person
who is in receipt of sickness benefit or disablement benefit (other than benefit granted on
permanent disablement) shall remain under medical treatment at a dispensary, hospital, clinic
or other institution provided under this Chapter, and shall carry out the instructions given
by the medical officer or medical attendant in-charge thereof.
Clause 42 of the Bill seeks to provide the rights of Corporation, when an employer fails
to register or neglects to insure an employee or neglects to pay any contribution, the
Corporation may, on being satisfied in the manner prescribed by the Central Government200 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
that the benefit is payable to the employee, pay to the employee benefit at such rate to which
he is entitled or would have been entitled if the failure or neglect would not have occurred,
and the Corporation shall be entitled to recover from the employer, subject to the employer
being given an opportunity of being heard, the capitalised value of the benefit paid to the
employee, to be calculated in such manner as may be prescribed by the Central Government.
Clause 43 of the Bill seeks to provide liability of owner or occupier of factories, etc., for
excessive sickness benefit.Where the Corporation considers that the incidence of sickness
among insured persons is excessive by reasons of insanitary working conditions in a factory
or other establishment, insanitary conditions of any tenements or lodgings occupied by
insured persons then, the Corporation may send to the owner or occupier of the factory or
other establishment, as the case may be, a claim for the payment of the amount of the extra
expenditure incurred by the Corporation as sickness benefit.
Clause 44 of the Bill seeks to provide for schemes for other beneficiaries. The Central
Government may, in consultation with the Corporation, and by notification, frame scheme
for other beneficiaries and the members of their families for providing medical facility in any
hospital established by the Corporation in any area which is under utilised on payment of
user charges.Other beneficiaries “mean persons other than employees insured.
Clause 45 of the Bill seeks to provide for schemes for un organised workers, gig
workers and platform workers. The Central Government may, in consultation with the
Corporation, and by notification, frame scheme for unorganised workers, gig workers and
platform workers and the members of their families for providing benefits admissible under
Chapter-IV by the Corporation.
Clause 46 of the Bill seeks to provide for exemption of factories or other establishments
belonging to Government or any local authority.The appropriate Government may, after
consultation with the Corporation, by notification and subject to such conditions as may be
specified in the notification, exempt any factory or other establishment belonging to any
local authority, from the operation of Chapter IV, if the employees in any such factory or
other establishment are otherwise in receipt of benefits substantially similar or superior to
the benefits provided under Chapter IV.
Clause 47 of the Bill seeks to provide for contributions, etc., due to Corporation to
have priority over other debts. Any amount due under Chapter-IV relating to Employees
State Insurance shall be the first charge on the assets of the establishment to which it relates
and shall be paid in priority to all other debts.
Clause 48 of the Bill seeks to provide for constitution of Employees’ Insurance Court
by State Government by notification.
Clause 49 of the Bill seeks to provide for the matters specified in therein, to be decided
by Employees' Insurance Court.
Clause 50 of the Bill seeks to provide for the powers of Employees’ Insurance Court
which shall have all the powers of a Civil Court for the purposes of summoning and enforcing
the attendance of witnesses, compelling the discovery and production of documents and
material objects, administering oath and recording evidence. An order of the Employees’
Insurance Court shall be enforceable as if it were a decree passed in a suit by a Civil Court.
Clause 51 of the Bill seeks to provide for the proceedings of Employees’ Insurance
Courts, manner of commencement of proceedings before that Court. But, and the time limit of
filing, fees and procedure thereof shall be such as may be provided by rules by the State
Government.
Clause 52 of the Bill seeks to provide for appeals from orders of Employees’ Insurance
Courts. No appeal shall lie from an order of an Employees’ Insurance Court. But, an appeal
shall lie to the High Court from an order of an Employees’ Insurance Court, if it involves a
substantial question of law.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 201
Clause 53 of the Bill seeks to provide for eligibility for payment of Gratuity. Gratuity
shall be payable to an employee on the termination of his employment after he has rendered
continuous service for not less than five years, on his superannuation; or on his retirement
or resignation; or on his death or disablement due to accident or disease; or on termination
of his contract period under fixed term employment; or on happening any such event as may
be notified by the Central Government.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.
Clause 54 of the Bill seeks to define continuous service for the purpose of payment of
gratuity. An employee shall be said to be in continuous service for a period if he 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 proposed Code.
Clause 55 of the Bill seeks to provide manner of nomination. Each employee, who has
completed one year of service, shall make, a nomination within such time, in such form and
in such manner, as may be provided by rules by the appropriate Government. A nomination
may be modified by an employee at any time, after giving to his employer a written intimation
in such form and in such manner as may be provided by rule by the appropriate Government,
of his intention to do so.
Clause 56 of the Bill seeks to provide for determination and payment of amount of
gratuity. As soon as gratuity becomes payable, the employer shall determine the amount of
gratuity and give notice in writing to the person to whom the gratuity is payable and also to
the competent authority specifying the amount of gratuity so determined.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.
Clause 57 of the Bill seeks to provide for compulsory insurance.With effect from such
date as may be notified by the appropriate Government in this behalf, every employer, other
than an employer or an establishment belonging to, or under the control of, the Central
Government or a State Government, shall obtain an insurance in the manner provided by
rules by the Central Government, for his liability for payment towards the gratuity, from any
insurance company regulated by the Authority as defined under clause (b) of the Insurance
Regulatory and Development Authority of India Act, 1999.
Clause 58 of the Bill seeks to provide for the appointment of competent authority. The
appropriate Government may, by notification, appoint any person having such qualifications
and experience as may be provided by rules, by the Central Government to be a competent
authority for implementation of any provision of Chapter V for such area as may be specified
in the notification.
Clause 59 of the Bill seeks to provide for prohibition of employment of, or work by,
women during certain period. No employer shall knowingly employ a woman in any
establishment during the six weeks immediately following the day of her delivery, miscarriage
or medical termination of pregnancy. No woman shall work in any establishment during the
six weeks immediately following the day of her delivery, miscarriage or medical termination of
pregnancy.
Clause 60 of the Bill seeks to provide for right to payment of maternity benefit. Every
woman shall be entitled to, and her employer shall be 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 immediately202 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
following that day, If 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 date of her delivery.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. 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.
Clause 61 of the Bill seeks to provide for continuance of payment of maternity benefit in
certain cases. This clause entitles every woman eligible to the payment of maternity benefit
under Chapter VI relating to maternity benefit continue to be so entitled until she becomes
qualified to claim maternity benefit under the provision of the proposed code relating to
Employees State Insurance irrespective of the fact that she is employed to the factory or other
establishment to which the provisions relating to Employees State Insurance applies.
Clause 62 of the Bill seeks to provide for notice of claim for maternity benefit and
payment thereof. Any woman employed in an establishment and entitled to maternity benefit
under the provisions of Chapter VI relating to maternity benefit may give notice in writing in
such form as may be provided by rules by the Central Government, to her employer, stating
that her maternity benefit and any other amount to which she may be entitled, 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. The failure to give
notice under this clause shall not disentitle a woman to maternity benefit or any other
amount under the said Chapter if she is otherwise entitled to such benefit or amount.
Clause 63 of the Bill seeks to provide for payment of maternity benefit in case of death
of a woman before receiving such maternity benefit or amount, or where the employer is
liable for maternity benefit, the employer shall pay such benefit or amount to the person
nominated by the woman in the notice given and in case there is no such nominee, to her
legal representative.
Clause 64 of the Bill seeks to provide for payment of medical bonus of three thousand
five hundred rupees or such amount as may be notified by the Central Government from her
employer, if no pre-natal confinement and post-natal care is provided for by the employer
free of charge.
Clause 65 of the Bill seeks to provide for leave for miscarriage, medical termination of
pregnancy, tubectomy operation, suffering from illness arising out of pregnancy, delivery,
premature birth of child, miscarriage or medical termination of pregnancy on production of
such proof as may be prescribed by rules by the Central Government.
Clause 66 of the Bill seeks to provide for nursing breaks. 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 rules by the Central Government, for nursing the child until the child attains
the age of fifteen months.
Clause 67 of the Bill seeks to provide for creche facility in every establishment where
fifty employees or such number of employees as may be prescribed by the Central Government,
are employed.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. The employer shall intimate in writing
and electronically to every woman at the time of her initial appointment in such establishment
regarding every benefit available under Chapter VI relating to maternity benefit.
Clause 68 of the Bill seeks to provide for dismissal for absence during pregnancy.
When a woman absents herself from work in accordance with the provisions of Chapter VI,
it shall be 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.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 203
Clause 69 of the Bill seeks to provide for no deduction of wages in certain cases. No
deduction from the normal and usual daily wages of a woman entitled to maternity benefit
under the provisions of Chapter VI relating to maternity benefit shall be made by reason only
of the nature of work assigned to her or breaks for nursing the child allowed to her under the
relevant provisions.
Clause 70 of the Bill seeks to provide for forfeiture of maternity benefit to a woman
who works for remuneration during the period she has been permitted by an employer to
absent herself for availing the maternity benefit.
Clause 71 of the Bill seeks to provide for duties of employer. An abstract of the
provisions of Chapter VI and the rules relating thereto in the language or languages of the
locality shall be exhibited in a conspicuous place by the employer in every part of the
establishment in which women are employed.
Clause 72 of the Bill seeks to provide for power of Inspector-cum-Facilitator to direct
payments to be made to a women, maternity benefit or any other amount to which she is
entitled under Chapter VI relating to maternity benefit and any person claiming that payment
due under the said Chapter has been improperly withheld or her employer has discharged or
dismissed her during or on account of her absence from work in accordance with the
provisions of the said Chapter. The Inspector-cum-Facilitator may, on receipt of a complaint,
make an inquiry or cause an inquiry and pass such orders as he deems just and proper
according to the circumstances of the case.
Clause 73 of the Bill seeks to provide for reports of fatal accidents and serious bodily
injuries to competent authority. A notice is required to be given to any authority, by or on
behalf of an employer, of any accident occurring on his premises which results in death or
serious bodily injury, 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.
Clause 74 of the Bill seeks to provide for 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 Chapter VII.
Clause 75 of the Bill seeks to provide for compensation in case of death of or injury in
plantation. 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.
Clause 76 of the Bill seeks to provide for the manner of calculation of amount of
compensation to be paid in case of death, permanent total disablement, permanent partial
disablement or temporary disablement resulting from the injury. 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. 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 for payment of the same to the
eldest surviving dependent of the employee towards the expenditure of the funeral of such
employee.
Clause 77 of the Bill seeks to provide for compensation to be paid when due and
damages for default as soon as it falls due. In cases where the employer does not accept the
liability for compensation to the extent claimed, he shall be bound to make provisional
payment based on the extent of liability which he accepts. Where any employer is in default
in paying the compensation within one month from the date it fell due, the competent
authority shall direct that the employer in addition to the amount of the arrears, pay interest
at rates specified in the rules. If there is no justification for the delay, direct that the employer204 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
shall, in addition to the amount of the arrears and interest thereon, pay a further sum not
exceeding fifty per cent. of such amount of arrears by way of damages.
Clause 78 of the Bill seeks to provide for method of calculating monthly wages for
purposes of compensation. For the purposes of calculation of compensation, 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).
Clause 79 of the Bill seeks to provide for review of half-monthly payment payable
under Chapter VII relating to Employee compensation. Any half-monthly payment payable
under this Chapter, either under an agreement between the parties or under the order of a
competent authority, may be reviewed by the competent authority, on the application either
of the employer or of the employee accompanied by the certificate of a medical practitioner.
Clause 80 of the Bill seeks to provide for commutation of half-monthly payments . On
the application of either party to the competent authority half-monthly payments may be
redeemed by the payment of a lump sum of such amount as may be agreed to by the parties
or determined by the competent authority.
Clause 81 of the Bill seeks to provide for distribution of compensation in respect of an
employee whose injury has resulted in death. No payment of compensation in respect of an
employee whose injury has resulted in death, and no payment of a lump sum as compensation
to a woman or a person under a legal disability, shall be made otherwise than by deposit with
the competent authority, and no such payment made directly by an employer shall be deemed
to be a payment of compensation.The employer may make to any dependent advances on
account of compensation of an amount equal to three months’ wages of such employee. On
the deposit of any money as compensation in respect of a deceased employee, the competent
authority shall cause notice to be published or to be served on each dependent, calling upon
the dependents to appear before him on such date as he may fix for determining the distribution
of the compensation.
Clause 82 of the Bill seeks to provide for notice of the accident and claim. No claim for
compensation shall be entertained by a competent authority unless notice of the accident
has been given in the manner as soon as practicable after the happening thereof and unless
the claim is preferred before him within two years of the occurrence of the accident or, in case
of death, within two years from the date of death. The competent authority may entertain
and decide any claim to compensation in any case notwithstanding that the notice has not
been given, or the claim has not been preferred in due time, if he is satisfied that the failure
so to give the notice or prefer the claim, was due to sufficient cause.
Clause 83 of the Bill seeks to provide for special provisions relating to accidents
occurring outside Indian territory in the case of employees who are masters of ships or
seamen or captain and other members of crew of aircraft, persons recruited by companies
registered in India and working as such abroad, persons sent for work abroad along with
motor vehicles registered under the Motor Vehicles Act, 1988 as drivers, helpers, mechanics,
cleaners or other employees.
Clause 84 of the Bill seeks to provide for free medical examination. An employee who
has given notice of an accident, he, shall, if the employer, before the expiry of three days from
the time at which service of the notice has been effected, offers to have him examined free of
charge by a medical practitioner, submit himself for such examination, and any employee
who is in receipt of a half-monthly payment under Chapter VII shall, if so required, submit
himself for such examination from time to time.
Clause 85 of the Bill seeks to provide for compensation in case of contracting the
work.Where any employer in the course of or for the purposes of his trade or business
contracts with contractor for the execution by or under the contractor of the whole or any
part of any work which is ordinarily part of the trade or business of the employer, theSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 205
employer shall be liable to pay to any employee employed in the execution of the work any
compensation, which he would have been liable to pay if that employee had been immediately
employed by him.Where the employer is liable to pay compensation, he shall be entitled to
be indemnified by the contractor.
Clause 86 of the Bill seeks to provide for remedies of employer against stranger.Where
an employee has recovered compensation in respect of any injury caused under
circumstances creating a legal liability of some person other than the person by whom the
compensation was paid, the person by whom the compensation was paid shall be entitled to
be indemnified by the person so liable to pay damages.
Clause 87 of the Bill seeks to provide for liability in case of insolvency of employer.
Where any employer has entered into a contract with any insurers in respect of any liability
under Chapter VII relating to compensation to any employee, then, in the event of the
employer becoming insolvent or making a composition or scheme of arrangement with his
creditors or, if the employer is a company, in the event of the company having commenced to
be wound up, the rights of the employer against the insurers as respects that liability shall be
transferred to and vest in the employee, and upon any such transfer the insurers shall have
the same rights and remedies and be subject to the same liabilities as if they were the
employer.
Clause 88 of the Bill seeks to provide for power to require statements regarding fatal
accidents from employers. Where a competent authority receives information from any
source that an employee has died as a result of an accident arising out of and in the course
of his employment, he may send a notice to the employee’s employer requiring him to
submit, within thirty days, a statement, giving the circumstances attending the death of the
employee, and indicating whether, in the opinion of the employer, he is or is not liable to
deposit compensation on account of the death and a copy of such notice shall also be sent
by the competent authority to the dependents of such employee ascertained by the competent
authority. Where in the opinion of the competent authority, a dependent of the deceased
employee is not in a position to engage an advocate to file a claim for compensation, the
competent authority may provide an advocate to such dependent.
Clause 89 of the Bill seeks to provide for registration of agreements. Where the amount
of any lump sum payable as compensation has been settled by agreement, whether by way
of redemption of a half-monthly payment or otherwise, or where any compensation has been
so settled as being payable to a woman, or a person under a legal disability, a memorandum
thereof shall be sent by the employer to the competent authority, who shall, on being
satisfied as to its genuineness, record the memorandum in a register. An agreement for the
payment of compensation which has been registered shall be enforceable under the proposed
Code.
Clause 90 of the Bill seeks to provide for reference to competent authority. If any
question arises in any proceedings as to the liability of any person to pay compensation
or as to whether a person injured is or is not an employee or as to the amount or duration
of compensation or as to the nature or extent of disablement, the question shall be settled
by a competent authority. No Civil Court shall have jurisdiction to settle, decide or deal
with any question which is required to be settled, decided or dealt with by a competent
authority.
Clause 91 of the Bill seeks to provide for qualification and appointment of competent
authority. The State Government may, by notification, appoint any person who is or has
been a member of a State Judicial Service for a period of not less than five years or is or has
been for not less than five years an advocate or is or has been a Gazetted Officer for not less
than five years having educational qualifications and experience in personnel management,
human resource development, industrial relations and legal affairs or such other experience
and qualifications as may be prescribed by the Central Government to be a competent
authority for Employee's Compensation.206 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Clause 92 of the Bill seeks to provide for venue of proceedings and transfer. Where
any matter related with compensation to be done by or before a competent authority, the
same shall be done by or before the competent authority for the area in which, the accident
took place which resulted in the injury or the employee or in case of his death, the dependant
claiming the compensation ordinarily resides or the employer has his registered office. If a
competent authority is satisfied that any matter arising out of any proceedings pending
before him can be more conveniently dealt with by any other competent authority, order
such matter to be transferred to such other competent authority.
Clause 93 of the Bill seeks to provide for form of application for claim of compensation.
An application to a competent authority for claim under or settlement may be made
electronically or otherwise in such form and in such manner accompanied by such fee, if any,
as may be prescribed by rules by the Central Government.
Clause 94 of the Bill seeks to provide for power of competent authority to require
further deposit in cases of fatal accident, from the employer as compensation payable , if in
the opinion of the competent authority that such sum is insufficient, the competent authority
may, by notice in writing state his reasons, call upon the employer to show cause why he
should not make a further deposit within such time as may be stated in the notice.
Clause 95 of the Bill seeks to provide for powers and procedure of competent authority.
The competent authority shall have all the powers of a Civil Court under the Code of Civil
Procedure, 1908, for the purpose of taking evidence on oath and of enforcing the attendance
of witnesses and compelling the production of documents and material objects.
Clause 96 of the Bill seeks to provide for appearance of parties before the competent
authority. Any appearance, application or act required to be made or done by any person
before or to a competent authority may be made or done on behalf of such person by a legal
practitioner or by an official of an Insurance Company or a registered Trade Union or by an
Inspector-cum-Facilitator or by any other officer specified by the State Government in this
behalf, authorised in writing by such person, or, with the permission of the competent
authority, by any other person so authorised.
Clause 97 of the Bill seeks to provide for method of recording evidence before the
competent authority. The competent authority shall make a brief memorandum of the substance
of the evidence of every witness as the examination of the witness proceeds, and such
memorandum shall be authenticated under the hand of the competent authority.
Clause 98 of the Bill seeks to provide for power to submit cases. A competent authority
may, if he thinks fit, submit any question of law for the decision of the High Court and, if he
does so, shall decide the question in conformity with such decision.
Clause 99 of the Bill seeks to provide for appeal. An appeal shall lie to the High Court
from the orders of a competent authority on the matters specified in this clause. No appeal
by an employer shall lie unless the memorandum of appeal is accompanied by a certificate by
the competent authority to the effect that the appellant has deposited with him the amount
payable under the order appealed against. The period of limitation for an appeal shall be
sixty days.
Clause 100 of the Bill seeks to provide for levy and collection of cess in respect of
building and other construction workers. There shall be levied and collected a cess for the
purposes of social security and welfare of building workers at such rate not exceeding two
per cent. but not less than one per cent. of the cost of construction incurred by an employer.
Clause 101 of the Bill seeks to provide for Interest payable on delay in payment of
cess on building or other construction work. If any employer fails to pay any amount of cess
payable within specified time, such employer shall be liable to pay interest as may be specified
in the rules for the period from the date on which such payment is due till such amount is
actually paid.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 207
Clause 102 of the Bill seeks to provide for the power to exempt from cess on building
or other construction work. The Central Government may, by notification, exempt any employer
or class of employers in a State from the payment of cess payable, where such cess is already
levied and payable under any corresponding law in force in that State.
Clause 103 of the Bill seeks to provide for self-assessment of cess by the employer.
Employer shall after completion of his each building and other construction work, pay such
cess by adjusting the advance cess already paid on the basis of his self-assessment on the
cost of construction worked out on the basis of the documents and after such payment of
cess, he shall file a return.
Clause 104 of the Bill seeks to provide penalty for non-payment of cess within the
specified time. If any amount of cess payable by any employer is not paid within the date
specified in the order of assessment, it shall be deemed to be in arrears and the authority
prescribed by the Central Government in this behalf may, after making such inquiry as it
deems fit, impose on such employer a penalty not exceeding the amount of cess.
Clause 105 of the Bill seeks to provide for appeal by the employer. Any employer
aggrieved by an order of assessment or by an order imposing penalty may, within such time
as may be provided in the rules by the Central Government, appeal to such appellate authority
in such form and in such manner as may be provided in the rules by the Central Government.
Every order passed in appeal under this section shall be final and shall not be called in
question in any court of law.
Clause 106 of the Bill seeks to provide for registration of building workers as
beneficiaries. 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 Board as a beneficiary under Chapter VIII relating to building
and other construction in such manner as may be provided in the rules by the Central
Government.
Clause 107 of the Bill seeks to provide for cessation as a beneficiary.A building
worker who has been registered as a beneficiary 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.
Clause 108 of the Bill seeks to provide for Building and Other Construction Workers’
Welfare Fund and its application. The fund shall be constituted by the Board to be called the
Building and other Construction Workers’ Welfare Fund. It shall be credited with the amount
of any cess levied, any grants and loans made to the Board by the Central Government or
any sum received by the Board. The fund shall be applied for meeting expenses of the
National Social Security Board in discharge of its functions, salaries, allowances and
other remuneration of the members, officers and other employees for the Board not exceeding
five per cent. of total expense and on objects and for purposes authorised by the proposed
code.
Clause 109 of the Bill seeks to provide for framing of schemes and constitution of
social security fund for unorganised workers gig workers’ platform workers, etc. The
Central Government shall formulate and notify, from time to time, suitable welfare schemes
for unorganised workers (including audio visual workers, beedi workers, non-coal workers)
on matters relating to life and disability cover, health and maternity benefits, old age
protection, education, housing, etc.The State Government shall formulate 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. A special purpose
vehicle may also be constituted by the Central Government for the purpose of
implementation of such scheme.208 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Clause 110 of the Bill seeks to provide for funding of schemes notified by the State
Government. Any scheme notified by the State Government may be wholly funded by the
State Government, partly funded by the State Government, partly funded through
contributions collected from the beneficiaries of the scheme or the employers, funded from
any source including corporate social responsibility fund. The Central Government may
provide such financial assistance to the State Governments for the purpose of schemes for
such period and on such terms and conditions as it may deem fit.
Clause 111 of the Bill seeks to provide for keeping the records electronically or otherwise
relating to the scheme and the authority by whom such records shall be maintained.
Clause 112 of the Bill seeks to provide for setting-up of workers facilitation centres.
The Central Government or the State Government may set-up workers facilitation centres to
perform the functions such as disseminate information on available social security schemes,
facilitate filling, processing and forwarding of application forms for registration of unorganised
worker and facilitate the enrolment of the registered unorganised workers in social security
schemes.
Clause 113 of the Bill seeks to provide for registration of unorganised worker for
social security. Every unorganised worker shall be eligible for registration if he has completed
sixteen years of age or such age and he has submitted a self-declaration electronically or
otherwise in such form, in such manner and to such authority containing such information
as may be required. A registered unorganised worker shall be eligible to avail the benefit of
a scheme on making such contribution, if any.
Clause 114 of the Bill seeks to provide for framing of scheme for gig workers and
platform workers. The Central Government shall formulate and notify, from time to time,
suitable welfare schemes for gig workers and platform workers on the matter relating to life
and disability cover, health and maternity benefits, old age protection, etc.
Clause 115 of the Bill seeks to provide for maintenance of proper accounts of income
and expenditure of each of the Social Security Organisations in a manner as the appropriate
Government may, after consultation with the Comptroller and Auditor-General of India, specify.
Clause 116 of the Bill seeks to provide for audit. The accounts of each of the Social
Security Organisations shall be audited annually by the Comptroller and Auditor-General of
India.
Clause 117 of the Bill seeks to provide for budget estimates of the Social Security
Organisations. Each of the Social Security Organisations shall in each year frame a budget
showing the probable receipts and the expenditure which it proposes to incur during the
following year and shall submit a copy of the budget for the approval of the appropriate
Government before the date as may be fixed by it in that behalf.
Clause 118 of the Bill seeks to provide for the annual report. Each of the Social
Security Organisations shall submit to the appropriate Government an annual report of its
work and activities along with the budget finally adopted by it. A copy of the annual report,
budget and the audited accounts together with the report of the Comptroller and Auditor-
General of India and the comments of the respective Social Security Organisation thereon
shall be laid before each House of Parliament or the State legislature, as the case may be by
the appropriate Government.
Clause 119 of the Bill seeks to provide for valuation of assets and liabilities. Each of
the fund maintained by a Social Security Organisation or by an establishment under the
proposed code shall have a valuation of its assets and liabilities made by a valuer or actuary.
Clause 120 of the Bill seeks to provide for holding of property, etc., by the Social
Security Organisation, subject to such conditions as may be prescribed by the appropriate
Government, acquire and hold property, sell or otherwise transfer any movable or immovable
property which may have become vested in or have been acquired by it, invest any moneysSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 209
vested in it,raise loans and take measures for discharging such loans and do all things
necessary for such purposes and for the purposes for which the said Social Security
Organisation is established.
Clause 121 of the Bill seeks to provide for writing off of losses.where any of the Social
Security Organisations is of the opinion that the amount of contribution, cess, interest and
damages due to it, under the proposed Code, is irrecoverable, the concerned Social Security
Organisation may sanction the writing off of the said amount in such manner as provided in
the rules by the appropriate Government.
Clause 122 of the Bill seeks to provide for appointment of Inspector-cum-Facilitators,
their powers and design of inspection scheme. The Central Government for the purposes of
Chapter III i.e. Employee Provident Fund and Chapter IV i.e. Employees State Insurance
Corporation and the provisions in the proposed Code relating to those chapters, and the
appropriate Government for the purposes of other provisions of the proposed code, may, by
notification, appoint Inspector-cum-Facilitators.The Inspector-cum-Facilitator may give
advice to employers and employees relating to compliance with the provisions of the
proposed code, inspect the establishments as assigned to him subject to the instructions or
guidelines issued by the appropriate Government from time to time.
Clause 123 of the Bill seeks to provide for maintenance of records, registers,
returns,display notices at the work places,issue wage slips, etc. by the employer. An employer
of an establishment shall maintain records and registers in the form 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 provided in the rules by the
appropriate Government.
Clause 124 of the Bill seeks to provide that the employer shall not reduce the wages of
the employees with the reason only to meet his liability for the payment of any contribution
under the proposed code, or any charges thereunder.
Clause 125 of the Bill seeks to provide for assessment and determination of money
dues from employer. The Central Government may, by notification, authorise, such officers
of the Central Board or the Corporation, as the case may be, not below the rank of Group ‘A’
officer of that Government, to function as the Authorised officers for the purposes of determine
the amount due from any employer,conduct such inquiry and decide the dispute regarding
the applicability of chapters relating to Employee Provident Fund or Employees State
Insurance Corporation.
Clause 126 of the Bill seeks to provide for the review of orders passed by the authorised
officer. Any person considering himself aggrieved by orders passed by the Authorised
Officer, but from which no appeal has been preferred, may apply for a review of that order to
the Authorised officer who made the order if the discovery of new and important matter or
evidence which, after the exercise of due diligence was not within his knowledge or could
not be produced by him at the time when the order was made. The authorised officer may
also on his own motion, review his order if he is satisfied that it is necessary so to do in the
interest of justice.
Clause 127 of the Bill seeks to provide for appeal against the order of the Authorised
officer. If an employer is not satisfied with the order made by Authorised officer, he may
prefer an appeal to an appellate authority as may be provided in the rules by the Central
Government, within sixty days of the date of such order only after depositing twenty-five
per cent. of the contribution so ordered or the contribution as per his own calculation,
whichever is higher, with the concerned Social Security Organisation.
Clause 128 of the Bill seeks to provide for determination of escaped amount. Such
determination shall be made where the authorised officer has reason to believe that by
reason of the omission of failure on the part of the employer to make any document or report
available or to disclose fully and truly or material facts necessary for determining the correct210 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
amount due from the employer any amount so due from such employer for any period has
escaped his notice and in case of other escape as specified in detail in the clause.
Clause 129 of the Bill seeks to provide for interest on amount due.The employer shall
be liable to pay simple interest at such rate as may be specified in the rules from the date on
which any amount has become due under the proposed code till the date of its actual
payment.
Clause 130 of the Bill seeks to provide for power to recover damages.Where an employer
makes default in the payment of any contribution which he is liable to pay in accordance
with the provisions of the proposed code, the Central Provident Fund Commissioner of the
Central Board or the Director General of the Corporation, as the case may be, or such other
officer as may be authorised, by notification, by the appropriate Government, may levy on,
and recover from, the employer by way of damages, an amount not exceeding the amount of
arrears after giving an opportunity to employer of being heard.
Clause 131 of the Bill seeks to provide for recovery of amount due. Any amount due
from an employer or any other person in relation to an establishment including any
contribution or cess payable, charges, interest, damages, or benefit or any other amount
may, if the amount is in arrear, be recovered in the specified manner.The Authorised officer,
or the competent authority, as the case may be, shall issue, to the Recovery Officer, a
certificate under his signature specifying the amount of arrears and the Recovery Officer, on
receipt of such certificate, shall proceed to recover the amount specified therein from the
establishment.
Clause 132 of the Bill seeks to provide for the validity of certificate and its amendment.
When the Authorised officer or the competent authority issues a certificate to a Recovery
Officer, it shall not be open to the employer to dispute before the Recovery Officer the
correctness of the amount, and no objection to the certificate on any other ground shall be
entertained by the Recovery Officer.
Clause 133 of the Bill seeks to provide for other modes of recovery. Such mode
includes the power of the Central Provident Fund Commissioner or the Director General of
the Corporation or any other officer of the Social Security Organisation to require a person
to whom the person who is in arrears of the employer to deduct from amount of arrears due,
and such person shall comply with any such requisition and to pay the sum so deducted to
the credit of Central Provident Fund Commissioner or the Director General of the Corporation,
as the case may be, or any other person who is authorised in this behalf.
Clause 134 of the Bill seeks to provide for application of certain provisions of Income-
tax Act, 1961. The provisions of the Second and Third Schedules to the Income-tax Act and
the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time, shall apply
with necessary modifications as if the said provisions and the rules referred to the arrears of
the amount mentioned in the proposed code instead of to the income-tax.
Clause 135 of the Bill seeks to provide penalty for failure of pay contribution, etc. The
penalties specified in the clause are inconsonance with the gravity of the offences.
Clause 136 of the Bill seeks to provide for enhanced punishment in certain cases after
previous conviction.Whoever, having been convicted by a court of an offence punishable
under this proposed Code, commits the same offence for second, or subsequent offence,
shall be punishable with imprisonment for a term which may extend to two years and with
fine of two lakhs rupees. Where such second or subsequent offence is for failure by the
employer to pay any contribution, charges, cess, maternity benefit, gratuity or compensation
under this proposed code, he shall be punishable with imprisonment for a term which may
extend to five years but which shall not be less than two years and shall also be liable to fine
of three lakhs rupees.
Clause 137 of the Bill seeks to provide for offences by companies.Where an offence
under chapter XII has been committed by a company, every person who, at the time theSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 211
offence was committed, was directly 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.
Clause 138 of the Bill seeks to provide for cognizance of offences by Court. No court
shall take cognizance of an offence punishable under the proposed code except on a complaint
made by such officer or other person as may be prescribed for the purposes of offences
relating to Chapter III and Chapter IV and the rules, regulations or schemes made or framed
under the proposed code relating to those Chapters, by the Central Government; and for the
purposes of offences relating to other provisions of the proposed code, by the appropriate
Government.
Clause 139 of the Bill seeks to provide for prior opportunity to employer for compliance
before prosecution. Before initiation of prosecution proceeding against an employer for any
offence under the proposed code, an opportunity shall be given to the employer to comply
with the aforesaid relevant provisions by way of a written direction. If the employer complies
with the direction then, no such proceeding shall be initiated against the employer.
Clause 140 of the Bill seeks to provide for compounding of offences as provided
under the said clause.
Clause 141 of the Bill seeks to provide for regarding reporting of vacancies to career
centres. The appropriate Government may, by notification, require that from such date as
may be specified in the notification, the employer in every establishment or any class or
category of establishments, before filling up any vacancy in any employment in that
establishment shall report that vacancy to such career centre as may be specified in the
notification. It shall not be obligation upon any employer to recruit any person through the
career centre to fill any vacancy merely because such vacancy has been reported.
Clause 142 of the Bill seeks to provide for exclusions of certain employment from the
application of Chapter XIII. This Chapter shall not apply in respect of vacancies relating to
in any employment in agriculture (including horticulture) in any establishment in private
sector other than employment in plantation, and employment as agriculture or farm machinery
operatives, in any employment in domestic service, in any employment connected with the
staff of Parliament or any State Legislature, etc.
Clause 143 of the Bill seeks to provide for application of Aadhaar for registration as
member or beneficiary, 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, receiving
any payment or medical attendance as insured person himself or for his dependents, under
the proposed code or rules, regulations or schemes made or framed thereunder has to
establish his identity or the identity of his family members or dependents through Aadhaar
number.
Clause 144 of the Bill seeks to provide for power of appropriate Government to
exempt establishment. The appropriate Government may, by notification, and subject to
the conditions which may include the eligibility conditions to be fulfilled prior to exemption
and the conditions to be complied with after exemption, as may be prescribed by the
Central Government in this behalf, grant exemption to an establishment or class of
establishments or employees or class of employees, from any or all of the provisions of
the proposed Code as may be specified in the notification and may renew for further
period such exemption by like notification. No such exemption shall be granted or renewed
without prior consultation with the Central Board or without prior consultation with the
Corporation.
Clause 145 of the Bill seeks to provide for liability in case of transfer of establishment.
Where an employer transfers his establishment in whole or in part, by sale, gift, lease or
license or in any other manner whatsoever, the employer and the person to whom the
establishment is so transferred shall jointly and severally be liable to pay the amount due in212 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
respect of any liabilities, cess or any other amount payable under this proposed Code in
respect of the periods up to the date of such transfer.
Clause 146 of the Bill seeks to provide for the members, officers and staff of Social
Security Organisation, any Inspector-cum-Facilitator, Competent Authority, Authorised
officer, Recovery Officer and any other person discharging any function under the proposed
Code shall be deemed to be a public servant within the meaning of section 21 of the Indian
Penal Code.
Clause 147 of the Bill seeks to provide for protection of a person or authority from
legal proceeding if action is taken in good faith in pursuance of the proposed Code.
Clause 148 of the Bill seeks to provide for misuse of benefits. In case the appropriate
Government is satisfied that any establishment or any person has misused the benefit
provided under the proposed code then, the appropriate government may, by notification,
deprive such establishment or other person, as the case may be, from such benefit for such
time as may be specified in the notification.
Clause 149 of the Bill seeks to provide for power of Central Government to give
directions. The Central Government may give directions to the Social Security Organisations
in respect of matters relating to the implementation of the provisions of this proposed Code.
Clause 150 of the Bill seeks to provide for power of the appropriate Government to
frame schemes. The appropriate Government may, subject to the condition of previous
publication, frame schemes not inconsistent with this proposed Code, for the purposes of
giving effect to the provisions thereof.
Clause 151 of the Bill seeks to provide for protection against attachment of amount,
etc. The amount standing to be credited in favour of the employee under relevant Chapters
or, of any member in the fund, or of any exempted employee in a provident fund maintained
by his employer, shall not in any way be capable of being assigned or charged and shall not
be liable to attachment under any decree or order of any Court in respect of any debt or
liability incurred by such employee or member or the exempted employee.
Clause 152 of the Bill seeks to provide for power to amend schedules. The Central
Government may, by notification amend First, Fourth, Fifth and Sixth Schedules by way of
addition or deletion therein and upon such addition or deletion, the said Schedule shall
stand to have been amended accordingly. Similarly, the appropriate Government may amend
the Second or Third Schedules by way of addition to the said Schedules.
Clause 153 of the Bill seeks to provide for power of Central Government to make rules.
The appropriate Government may, by notification, and subject to the condition of previous
publication, make rules for the purpose of giving effect to the provisions of the proposed
Code.
Clause 154 of the Bill seeks to provide for Power of make rules. The Central Government
may, by notification, and subject to the condition of previous publication, make rules for the
purpose of giving effect to the provisions of the proposed Code.
Clause 155 of the Bill seeks to provide for power of State Government to make rules.
The State Government may, by notification, and subject to the condition of previous
publication, make rules for the purpose of giving effect to the provisions of the proposed
Code.
Clause 156 of the Bill seeks to provide for power of Corporation to make regulations.
The Corporation may, by notification, and subject to the condition of previous publication,
make regulations, not inconsistent with this proposed Code and the rules and schemes
made or framed thereunder, for the administration of the affairs of the Corporation and for
carrying into effect the provisions of Chapter-IV and the provisions of this proposed Code
relating to that Chapter.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 213
Clause 157 of the Bill seeks to provide for prior publication of rules, regulations, etc.
The purpose of such publication is to obtain the objections and suggestions of the persons
affected and to consider those objections and suggestions before the rules, regulations are
finalised.
Clause 158 of the Bill seeks to provide for rules to give effect to arrangements with
other countries for transfer of money. The Central Government may, by notification, make
rules for the transfer to any foreign country of money deposited with a Competent Authority
under Chapter VII relating to Employees Compensation, which has been awarded to or may
be due to, any person residing or about to reside in such foreign country.
Clause 159 of the Bill seeks to provide for laying of rules, regulations and schemes,
etc. Every rule, regulation, notification and scheme made, issued or framed by the Central
Government or the Corporation, as the case may be, under this proposed Code shall be laid,
as soon as may be after it is made, issued or framed, before each House of Parliament. Every
rule and scheme made or framed, and every notification issued by, the State Government
under this proposed Code, shall be laid as soon as may be after it is made or framed or issued
before the State Legislatures.
Clause 160 of the Bill seeks to provide for effect of laws and agreements inconsistent
with the proposed Code. Such provision is required to give the overriding effect for smooth
implementation of the provisions of the proposed Code.
Clause 161 of the Bill seeks to provide for delegation of powers. The appropriate
Government, may, by notification, direct that all or any of the powers and functions which
may be exercised or performed by that Government, may, in relation to such matters and
subjects in such conditions, be also exercisable by the Board, Corporation or any officer or
authority as specified in the said clause.
Clause 162 of the Bill seeks to provide for power of Central Government to remove
difficulties by order, published in the Official Gazette. Such order shall not be made after the
expiry of a period of two years from the commencement of this proposed Code.
Clause 163 of the Bill seeks to provide for repeal and savings. The enactments which
are being repealed are enumerated in the said clause. Further, anything done or any action
taken under the enactments to be repealed under the said clause including any rule, regulation,
notification (including the notifications issued by the State Governments), schemes,
appointment, order or direction made thereunder or any benefit provided or given under any
provision of the enactments so repealed, rules, regulations, notifications or schemes made
thereunder for any purpose have been saved to the extent they are not contrary to the
provisions of the proposed Code, till they are repealed under the corresponding provisions
of the proposed code. It also provides that the Central Board and the Executive Committee
constituted under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
so repealed and the Corporation, Standing Committee and the Medical Benefit Council
constituted under the Employees’ State Insurance Act, 1948 so repealed shall remain so
constituted and discharge respectively the functions and exercise the powers of the Central
Board, Executive Committee, Corporation, Standing Committee and Medical Benefit
Committee under the proposed Code, till such Central Board, Executive Committee,
Corporation, Standing Committee and Medical Benefit Committee are constituted in
accordance with the provisions of the proposed Code. It also contains that any exemption
given under any enactments so repealed shall continue to be in force till its validity expires
or it is ceased to be in operation under the provisions of the proposed Code or any direction
made thereunder for such purpose. Further details have been specified in the provisions of
the clause.214 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
FINANCIAL MEMORANDUM
At present, the provisions of the proposed Code does not involve any expenditure
either recurring or non-recurring from the Consolidated Fund of India. However, the financial
implications may arise in future for formulating the schemes for unorganised sector and for
entrusting the additional work for administration of other enactments or schemes relating to
social security under clause 13 of the Bill. Such recurring or non-recurring expenditure
cannot be estimated at present.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 215
MEMORANDUM REGARDING DELEGATED LEGISLATION
Sub-clause (1) of clause 154 empowers the Central Government, subject to the condition
of previous publication, to make rules for the purpose of giving effect to the provisions of
the proposed legislation. Sub-clause (2) of the said clause specifies the matters in respect of
which such rules may be made. These matters include (a) manner of establishment and
maintenance of career centre and the career services under sub-clause (8) of clause 2; (b) the
income of dependant parents (including father-in-law and mother-in-law of a woman
employee), under sub-clause (33) (e) of clause 2; (c) such other authority who may appoint
the person or persons to manage the affairs of the factory and the matters which are directly
related to the condition of ship for which the owner of ship shall be deemed to be the
occupier, under the proviso to sub-clause (49) of clause 2; (d) the time and manner of
registration of establishment under clause 3; (e) the manner of administration of the funds
vested in the Board under sub-clause (1), the manner of performance of functions by an
Executive Committee under sub-clause (3), the terms and conditions, including tenure of
office of member of the Central Board and Executive Committee and their duties under sub-
clause (5) and the manner of performance of such other functions under sub-clause (6) of
clause 4; (f) the manner of administration of Employees’ State Insurance scheme and the
manner of representation of States under sub-clause (1) (d), the manner of constitution of
Standing Committee under sub-clause (3), the manner of administration of the affairs of the
Corporation, exercise of powers and performance of function by the Standing Committee
under sub-clause (4) (a), the composition of the Medical Benefit Committee under sub-
clause (5) and the terms and conditions, including tenure of office, subject to which a
member of the Corporation and Standing Committee shall discharge their respective duties
under sub-clause (7) of clause 5; (g) the manner of exercising the powers and performance of
the functions by the National Social Security Board under sub-clause (1), the number of
persons to be nominated as members, their term of office and other conditions of service,
procedure to be followed in the discharge of their functions and manner of filling vacancies
under sub-clause (4) and time, place and rules of procedure relating to the transaction of
business under sub-clause (6) of clause 6; (h) welfare measures and facilities under sub-
clause (6) (j) of clause 7; (i) meetings and procedure in regard to the transaction of business
at meetings (including the quorum at such meetings) under sub-clause (1) and fee and
allowances of members of Social Security Organisation or any Committee under sub-clause
(4), of clause 9; (j) manner of re-constitution of the Corporation or the Central Board or the
National Social Security Board or the State Unorganised Workers Board or the Building
Workers’ Welfare Board, or any of the Committees under sub-clause (1) and the alternate
arrangements for the purpose of administration of the relevant provisions of this Code
under sub-clause (2), of clause 11; (k) manner of establishment of a Pension Fund and the
manner of establishment of Insurance Fund under sub-clause (1) of clause 16; (l) the manner
of maintenance of a provident fund account in relation to the establishment under sub-
clause (1) of clause 21; (m) the manner of transfer and dealing with accounts under clause 22;
(n) form, manner, time limits and fees for filing of appeal under sub-clause (2) of clause 23;
(o) salary and allowances of the Director General or the Financial Commissioner under sub-
clause (3) and the limit of maximum monthly salary under the proviso to sub-clause (6), of
clause 24; (p) limits for defraying expenditure under clause 26 (k) ; (q) conditions to acquire,
hold, sell or otherwise transfer any movable or immovable property under sub-clause (1),
conditions to invest moneys by the Corporation under sub-clause (2) and the terms to raise
loans and take measures for discharging such loans under sub-clause (3), of clause 27;
(r) manner of insurance of employees under clause 28; (s) the rate of contributions under
sub-clause (2) and the days on which the contributions fall due where an employee is
employed for part of the wage period, or is employed under two or more employers during
the same wage period under sub-clause (4), of clause 29; (t) the percentage of income which
may be spent on expenses and the limits for such expenses under clause 30; (u) the amount216 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
of payment under the proviso to sub-clause (1) (f) and the qualifications to claim benefits,
conditions, rate and period thereof under sub-clause (3) of clause 32; (v) the limits within
which the Corporation may incur expenditure from the Employees’ State Insurance Fund
under clause 33; (w) the rates, periods and conditions for payment of dependants’ benefit
under sub-clauses (1) and (2) of clause 38; (x) the qualification of an insured person and his
family, to claim medical benefit and the conditions subject to which such benefit may be
given, the scale and period thereof under sub-clause (3) and the payment of contribution
and other conditions under the second proviso to sub-clause (3) of clause 39; (y) the terms
and conditions subject to which the scheme may be operated under clause 44; (z) the
contribution, user charges, scale of benefits, qualifying and eligibility conditions and other
terms and conditions under sub-clause (2) of clause 45; (aa) the form of application to the
competent authority under sub-clause (5) (b) of clause 56; (bb) the manner of obtaining an
insurance by every employer, other than an employer or an establishment belonging to, or
under the control of, the Central Government or a State Government under sub-clause (1),
conditions to exempt and manner of establishing an approved gratuity fund under sub-
clause (2), and the time and manner to get establishment registered and the manner thereof
under sub-clause (3) of clause 57; (cc) the form of notice under sub-clause (1) and the proof
of pregnancy and proof of delivery under sub-clause (5) of clause 62; (dd) the proof of
miscarriage or medical termination of pregnancy under sub-clause (1) the proof of tubectomy
operation under sub-clause (2) and the proof of illness under sub-clause (3) of clause 65;
(ee) the duration of breaks under clause 66; (ff) the number of employees and distance for
crèche facility under sub-clause (1) of clause 67; (gg) gross misconduct under the second
proviso to sub-clause (1) of clause 68; (hh) rate of interest to be paid by the employer under
sub-clause (3) (a) of clause 77; (ii) the manner of notice under the first proviso to sub-clause
(1), and the manner of transmitting money under sub-clause (3) of clause 92; (jj) the form,
manner and fee for application for claim and settlement under sub-clause (3) of clause 93;
(kk) the manner and time of collection of cess under sub-clause (2), manner of deposit of the
cess so collected under sub-clause (3) and the uniform rate or rates of advance cess under
sub-clause (4) of clause 100; (ll) the rate of interest in case of delayed payment of cess under
clause 101; (mm) the manner of self-assessment of cess under sub-clause (1) of clause 103;
(nn) the authority to inquire and impose penalty under clause 104; (oo) time limit to prefer
appeal, appellate authority, form and manner of appeal under sub-clause (1) of clause 105;
(pp) manner of registration as beneficiary under clause 106; (qq) benefits of a beneficiary
under sub-clause (2) of clause 107; (rr) manner of administration of the Social Security Fund
or funds under sub-clause (5) of clause 109; (ss) eligible age for registration and form,
manner, authority and information under sub-clause (1) and the form of application and
documents for registration and registering authority under sub-clause (2) of clause 113;
(tt) form, manner and time for filing application for review under sub-clause (2) of clause 126;
(uu) appellate authority to whom an employer may prefer an appeal under clause 127, and
rate of interest on the refund of deposit to the employer, under the second proviso, to the
said clause; (vv) the rate of simple interest which the employer shall be liable to pay under
clause 129; (ww) manner of levying and recovery of damages under clause 130; (xx) manner
to certify under sub-clause (5) of clause 131; (yy) manner of compounding of offences under
sub-clause (1) and the form and manner of application for compounding of an offence under
sub-clause (4), of clause 140; (zz) manner to establish identity under clause 143; (aaa) the
eligibility conditions to be fulfilled prior to exemption and the conditions to be complied with
after exemption and the period of extension of exemption under sub-clause (3) of clause 144;
(bbb) any other matter which is required to be, or may be, prescribed by the Central
Government under the provisions of this Code.
2. Sub-clause (1) of clause 155 empowers the State Government, subject to the condition
of previous publication, to make rules for the purpose of giving effect to the provisions of
the proposed legislations. Sub-clause (2) specifies the matters in respect of which rules may
be made. These matters include (a) the manner of exercising the powers and performance of
functions by State Unorganised Workers’ Board under sub-clause (9), the number of persons
to be nominated as members, their term of office and other conditions of service, the procedureSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 217
to be followed in the discharge of their functions by, and the manner of filling vacancies
among the members of, the State Unorganised Workers’ Board under sub-clause (12), and
the time, place and rules of procedure relating to the transaction of business at its meetings
under sub-clause (14) of clause 6; (b) the terms and conditions of appointment and the
salaries and other allowances payable to the chairperson and the other members and the
manner of filling of casual vacancies of the members, under sub-clause (4) and the terms and
conditions of appointment and the salary and allowances payable to the Secretary and the
other officers and employees under sub-clause (5) (c) of clause 7; (c) structure, functions,
powers and activities of the organisations under sub-clause (6) of clause 40; (d) procedure
to be followed by the Employees’ Insurance Court under sub-clause (2) of clause 50;
(e) manner of commencement of proceedings before the Employees’ Insurance Court and
the time-limit of filing, fees and procedure thereof under sub-clause (1) of clause 51;
(f) conditions when application for review is made without certificate of a medical practitioner
under sub-clause (1) of clause 79; (g) manner of matters to be dealt by or before a competent
authority under sub-clause (1) of clause 92; (h) time limit for disposal of application and
costs incidental to the proceedings under sub-clause (4) of clause 93; (i) the manner of
authentication of memorandum under clause 97; and (j) any other matter which is required to
be, or may be, prescribed by the State Government under the provisions of this Code.
3. Sub-clause (1) of clause 153 empowers the appropriate Government, subject to the
condition of previous publication, to make rules for the purpose of giving effect to the
provisions of the proposed legislation. Sub-clause (2) specifies the matters in respect of
which such rules may be made. These matters include (a) the amount in connection with
premium for Group Insurance Scheme of the beneficiaries, educational schemes for the
benefit of children of the beneficiaries and the medical expenses for treatment of major
ailments of a beneficiary or, such dependant under sub-clause (6) of clause 7; (b) other
member who may authenticate the orders and decisions of the Social Security Organisations
and other instruments issued under sub-clause (2) of clause 9; (c) bank or other financial
institution in which the gratuity shall be invested for the benefit of minor under the second
proviso to sub-clause (1) of clause 53; (d) the time, form and manner of nomination by an
employee under sub-clause (1), the time to make fresh nomination under sub-clause (4), the
form and manner of modification of a nomination under sub-clause (5) and the form for fresh
nomination under sub-clause (6) of clause 55; (e) time and form of application under
sub-clause (1) of clause 56; (f) the composition of the Board of Trustees of the approved
gratuity fund and for the recovery by the competent authority of the amount of the gratuity
payable to an employee from the insurer under sub-clause (4) of clause 57; (g) the qualifications
and experience of competent authority under sub-clause (1) of clause 58; (h) authority to
whom an appeal may be preferred under sub-clause (3) of clause 72; (i) class of employers
and the form of notice-book under sub-clause (4) of clause 82; (j) the frequent interval for
medical examination under proviso to sub-clause (1) of clause 84; (k) form of statement and
the manner of ascertaining the dependants under sub-clause (1), the manner of providing an
advocate under sub-clause (5) of clause 88; (l) manner of recording memorandum under
sub-clause (1) of clause 89; (m) such other experience and qualifications for appointment as
a competent authority under sub-clause (1) of clause 91; (n) time-limit to pay the amount of
cess under clause 101; (o) fees for appeal under sub-clause (2) of clause 105; (p) conditions
to acquire, hold, sell or otherwise transfer any movable or immovable property under
sub-clause (1), conditions to invest moneys, re-invest or realise investments under
sub-clause (2), terms to raise loans and take measures for discharging such loans under
sub-clause (3) and terms to constitute for the benefit of officers and staff or any class of
them, provident or other benefit funds under sub-clause (4) of clause 120; (q) conditions and
manner of writing off losses under clause 121; (r) other powers of Inspector-cum-Facilitator
under sub-clause (6) (e) of clause 122; (s) form and manner for maintenance of records and
registers and other particulars and details, manner and form for display of notices at the work
places of the employees and the manner and period of filing returns under clause 123;
(t) officer or other person who may make complaint under sub-clause (1), the authority to
give sanction under sub-clause (2) of clause 138; (u) the manner and form for reporting218 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
vacancies to the career centres and the manner and form of filing the return by the employer
to the concerned career centre under sub-clause (2) of clause 141; (v) the time within which
the Central Board or the Corporation as the case may be, shall forward its view to the
appropriate Government under sub-clause (1) and the conditions which the exempted
establishment or the class of establishment or the employers or class of employers or the
employees or class of employees as the case may be, shall comply after exemption under
sub-clause (2) of clause 144; and (w) any other matter which is required to be, or may be,
prescribed by the appropriate Government under the provisions of this Code.
4. Sub-clause (1) of clause 156 empowers the Corporation, subject to the condition of
previous publication to make regulations for carrying into effect the provisions of Chapter
VI and the provisions of this Code relating to that Chapter. Sub-clause (2) specifies the
matters in respect of which such regulations may be made. These matters include (a) the
cases and matters to be submitted for the decision of the Corporation under sub-clause (4)
of clause 5; (b) composition of committees under sub-clause (6) of clause 5; (c) the method
of recruitment, salary and allowances, discipline and other conditions of services of the
officers and employees under sub-clause (7) (a) of clause 24; (d) unit in respect of which all
contributions shall be payable under sub-clause (3) of clause 29; (e) maintenance of register
of employees by or through the contractor under sub-clause (7), conditions for deduction of
wages under sub-clause (8), any matter relating or incidental to the payment and collection
of contribution under sub-clause (9) of clause 31; (f) qualifications and experience of other
person to certify sickness under sub-clause (1) (a), authority to certify eligibility of a woman
under sub-clause (1) (b), authority to certify eligibility for payment under sub-clause (1) (c),
conditions for extension of medical benefits under sub-clause (2) and any matter relating or
incidental to the accrual and payment of benefits under sub-clause (4) of clause 32;
(g) continuous period in which the employee contracts occupational disease under
sub-clause (1) of clause 36; (h) constitution of medical board under sub-clause (1), constitution
of medical appeal tribunal under sub-clause (5) and manner of filing appeals before the
medical appeal tribunal under sub-clause (7) of clause 37; (i) conditions for voluntary
retirement scheme under the first proviso to sub-clause (3) of clause 39; (j) other authority
for providing permission under sub-clause (3) (c), form of nomination under sub-clause (6)
and the authority to determine benefits under sub-clause (9) of clause 41; (k) user charges to
be paid by other beneficiaries for medical facilities under the Explanation to clause 44; and
(l) any matter in respect of which regulations are required or permitted to be made by this
Code.
5. The matters in respect of which rules or regulations may be made are matters of
procedure and administrative detail and it is not practicable to provide for them in the Bill
itself. The delegation of legislative power is, therefore, of a normal character.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 219
BILL NO. 374 OF 2019
A Bill further to amend the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007.
BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—
1. (1) This Act may be called the Maintenance and Welfare of Parents and Senior Short title
Citizens (Amendment) Act, 2019. and
commencement.
(2) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint.
56 of 2007. 2. In the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter Amendment of
referred to as the principal Act), for the long line, the following long line shall be substituted, long line.
namely:—220 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
"An Act to give effect to the provisions for the welfare of parents and senior
citizens as guaranteed and recognised under the Constitution by providing for the
maintenance and welfare of parents and senior citizens, ensuring their overall physical
and mental well-being, establishment, management and regulation of institutions for
senior citizens and services therefor and for other matters connected therewith or
incidental thereto;
Amendment 3. In section 2 of the principal Act,—
of section 2.
(i) for clauses (a) and (b), the following clauses shall be substituted, namely:—
'(a) "children", in relation to a parent or a senior citizen, means his son or
daughter, whether biological, adoptive or step-child and includes his son-in-law,
daughter-in-law, grandson, grand-daughter and the legal guardian of minor
children, if any;
(aa) "Code" means the Code of Criminal Procedure, 1973; 2 of 1974.
(ab) "Conciliation Officer" means the person referred to in
sub-section (6) of section 6;
(ac) "local body" means the Municipality as defined in clause (e) of article
243P of the Constitution or, as the case may be, the Panchayat as defined in
clause (d) of article 243 thereof;
(b) "maintenance" includes provision for food, clothing, housing, safety
and security, medical attendance, healthcare and treatment necessary to lead a
life of dignity;';
(ii) after clause (b), the following clause shall be inserted, namely:—
'(ba) "Maintenance Officer" means an officer designated as such by the
State Government under sub-section (1) of section 18;';
(iii) after clause (c), the following clauses shall be inserted, namely:—
‘(ca) "Multi-Service Day Care Centre for Senior Citizens'' means an
institution registered as such under sub-section (2) of section 19, established or
maintained by the Government or a local body or an organisation for providing
day-care facilities, including healthcare, peer interaction, recreation and
entertainment to senior citizens;
(cb) "Nodal Officer for Senior Citizens" means a police officer designated
as such by the State Government under sub-section (2) of section 22;
(cc)"organisation" includes any voluntary or private or non-Governmental
organisation or a society or trust registered under any law for the time being in
force;';
(iv) for clauses (d) and (e), the following clauses shall be substituted, namely:—
'(d) "parent" means father or mother, whether biological, adoptive or
step-parent and includes father-in-law, mother-in-law and grandparents, whether
or not a senior citizen;
(e) "prescribed" means prescribed by rules made under this Act;';
(v) in clause (g), for the words "citizen who is not a minor and is", the words
"citizen, including a minor through his legal guardian, who is" shall be
substituted;
(vi) after clause (h), the following clause shall be inserted, namely:—
'(ha) "Senior Citizens' Care Home" means an institution registered as such
under sub-section (2) of section 19, established or maintained by the GovernmentSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 221
or a local body or an organisation for providing residential facilities to senior
citizens for their care and welfare;';
(vii) for clause (k), the following clause shall be substituted, namely:—
'(k) "welfare" means provision for food, clothing, housing, safety and
security, medical attendance, healthcare, treatment, recreation and other amenities
necessary for the physical and mental well being of parents and senior citizens.'.
4. For section 4 of the principal Act, the following section shall be substituted, Substitution
namely:— of new
section for
section 4.
"4. (1) A parent or a senior citizen who is unable to maintain himself to lead a life Maintenance
of dignity from his own earning, including earning from any property owned by him, of parents and
senior
and is either not maintained by his children or relatives or is neglected by them, shall
citizens.
be entitled to make an application for maintenance under section 5.
(2) The obligation of the children to maintain a parent extends to such needs of
the parent as are necessary for him to lead a life of dignity.
(3) The obligation of a relative to maintain a childless senior citizen extends to
such needs of the senior citizen as are necessary for him to lead a life of dignity
provided such relative has sufficient means to do so and is either in possession of, or
shall inherit, the property of such senior citizen after his death:
Provided that where more than one relative is in possession of, or shall inherit,
the property of a childless senior citizen, the obligation of such relatives shall be in
proportion in which they are in possession of, or shall inherit, the property’’.
5. In section 5 of the principal Act, for sub-sections (1) to (5), the following Amendment
sub-sections shall be substituted, namely:— of section 5.
"(1) An application for maintenance under section 4 may be made to the Tribunal
in person or by registered post or online or by any other means, by—
(a) a parent or senior citizen, as the case may be, against one or more
children as defined in clause (a) of section 2; or
(b) a childless senior citizen, against one or more relatives as defined in
clause (g) of section 2,
and if such parent or senior citizen is incapable so to do, he may authorise any other
person or organisation to make such application on his behalf or the Tribunal may also
take suo motu cognizance of such matter.
(2) On receipt of an application for maintenance under sub-section (1), the
Tribunal may, after giving notice of the application to the children or relative, as the
case may be, and after giving the parties an opportunity of being heard, hold an
inquiry for determining the maintenance in accordance with the provisions of
section 6.
(3) During the pendency of the proceeding for maintenance, the Tribunal may,
by order, direct the children or relative to pay such monthly allowance towards the
interim maintenance of such parent or senior citizen, as may be determined by it from
time to time.
(4) Every application under sub-section (1) shall be disposed of by the Tribunal
within a period of ninety days from the date of receipt of such application:
Provided that in case of senior citizens who are eighty years or above, such
application shall be disposed of within a period of sixty days:222 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Provided further that in exceptional circumstances and for reasons to be recorded
in writing, the Tribunal may extend such period only once for a maximum period of
thirty days.
(5) Where an application under sub-section (1) is filed against one or more
children or relatives, such children or relative may implead any other person who is
liable to maintain the parent or senior citizen, as the case may be.".
Amendment 6. In section 6 of the principal Act,—
of section 6.
(i) for sub-section (1), the following sub-section shall be substituted, namely:—
"(1) The proceedings referred to in section 5 may be taken against the
children or relatives in the district where—
(a) the parent or senior citizen resides or has last resided; or
(b) any of the children or relatives reside.";
(ii) in sub-section (3), for the words and figures "as provided under the Code of
Criminal Procedure, 1973", the words "as provided under the Code" shall be substituted; 2 of 1974.
(iii) in sub-section (4),—
(a) in the opening portion, for the words "an order for payment of
maintenance is proposed to be made", the words and figure "the application
under section 5 has been filed" shall be substituted;
(b) in the proviso, for the words "an order for payment of maintenance
is proposed to be made is", the words, brackets and figure "process has been
issued under sub-section (2), are" shall be substituted;
(iv) for sub-section (6), the following sub-section shall be substituted, namely:—
"(6) The Tribunal may, for assisting and persuading the parties to arrive at
amicable settlement, refer the proceedings under section 5 to a Conciliation
Officer, nominated by the Tribunal in such manner as may be prescribed, and
such Conciliation Officer shall submit his findings within fifteen days from the
date of his nomination and in case of any amicable settlement, the Tribunal shall
pass an order to that effect.".
Amendment 7. In section 7 of the principal Act, in sub-section (1), for the words "order for
of section 7. maintenance", the words "application filed" shall be substituted.
Amendment 8. In section 8 of the principal Act, in sub-section (2), for the words and figures "the
of section 8. Code of Criminal Procedure, 1973", the words "the Code" shall be substituted. 2 of 1974.
Substitution of 9. For section 9 of the principal Act, the following section shall be substituted,
new section namely:—
for section 9.
Order for "9. (1) The Tribunal may, on being satisfied of the neglect or refusal on part of
maintenance. the children or the relative, as the case may be, to maintain a parent or senior citizen
who is unable to maintain himself to lead a life of dignity, pass an order for maintenance
directing such children or relative to provide such monthly allowance, other resources
and care for the maintenance of the parent or senior citizen, as it may, from time to time,
determine.
(2) While determining the maintenance, the Tribunal may take into consideration
the standard of living of the parent or senior citizen and the earnings of such parent or
senior citizen and of the children or relative.
(3) The order for maintenance shall be enforceable from the date of such order or,
if so ordered by the Tribunal, from the date of the application.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 223
(4) A copy of the order for maintenance shall be—
(i) made available free of cost to the parent or senior citizen, as the case
may be;
(ii) posted on the Notice Board of the Tribunal;
(iii) made available online on the website of the concerned Department of
the State; and
(iv) provided to the Maintenance Officer.
(5) Where an order for maintenance is made against more than one person, the
death of one of them shall not affect the liability of the others to continue providing
the maintenance.".
10. In section 10 of the principal Act, for sub-section (1), the following sub-section Amendment
shall be substituted, namely:— of section 10.
"(1) On proof of misrepresentation or mistake of fact or any change in the
circumstances of the parent or senior citizen receiving maintenance under section 9,
the Tribunal may make such alteration in the order for maintenance, as it deems fit.".
11. In section 11 of the principal Act,— Amendment
of section 11.
(i) for sub-section (1), the following sub-section shall be substituted, namely:—
"(1) An order for maintenance may be enforced by the Tribunal in any
place where the person against whom it is made resides, on being satisfied as to
the identity of the parties and non-compliance of such order.";
(ii) in sub-section (2), for the words and figures, "Code of Criminal
2 of 1974. Procedure, 1973 and shall be executed in the manner prescribed for the execution of
such order by that Code", the words "the Code and shall be executed in the manner
prescribed by the Code for the execution of such order" shall be substituted;
(iii) after sub-section (2), the following sub-sections shall be inserted, namely:—
"(3) If the children or relative against whom an order for maintenance is
passed under section 9 fails to comply with such order without sufficient cause,
the Tribunal may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines:
Provided that no warrant shall be issued for the recovery of any amount
due under this section unless application is made by the parent or the senior
citizen to the Tribunal to levy such amount.
(4) If the children or relatives, as the case may be, fails to pay the fine
levied under sub-section (3), the Tribunal may sentence him to imprisonment
for a term which may extend to one month or until the payment is made, whichever
is earlier.".
12. In section 12 of the principal Act, the following provisos shall be inserted, Amendment
namely:— of section 12.
"Provided that where any application for maintenance under Chapter IX of the
Code is pending before any Court prior to the date of commencement of the Maintenance
and Welfare of Parents and Senior Citizens (Amendment) Act, 2019, the Court may, on
the request of the parent or senior citizen, allow withdrawal of such application and
such parent or senior citizen shall be entitled to file an application for maintenance
before the Tribunal under this Act:
Provided further that such application filed before the Tribunal shall be deemed
to have been filed from the date when such application was filed before the Court.".224 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Amendment 13. In section 13 of the principal Act, for the words "within thirty days", the words
of section 13. "within fifteen days" shall be substituted.
Amendment 14. In section 16 of the principal Act,—
of section 16.
(i) in sub-section (1),—
(a) in the opening portion, after the words "senior citizen or a parent", the
words "or any of the children or relatives" shall be inserted;
(b) in the first proviso, after the word "parent", the words "senior citizen"
shall be inserted;
(ii) in sub-section (6), after the words "receipt of an appeal", the words "and in
exceptional circumstances and for reasons to be recorded in writing, within a further
period of thirty days" shall be inserted.
Amendment 15. In section 18 of the principal Act,—
of section 18.
(i) for sub-section (1), the following sub-section shall be substituted, namely:—
"(1) The State Government shall designate an officer in the rank of District
Social Welfare Officer or an officer of equivalent rank from any related Department
of the State or the Block level Officer or the Tehsildar as Maintenance Officer for
the purposes of this Act.";
(ii) in sub-section (2), for the words "shall represent a parent", the words "may
represent a parent or a senior citizen" shall be substituted;
(iii) after sub-section (2), the following sub-sections shall be inserted, namely:—
"(3) It shall be the duty of the Maintenance Officer to ensure that the order
for maintenance passed under section 9 is complied with, and in case of its non-
compliance, he may take such steps as may be necessary for the compliance of
such order.
(4) The Maintenance Officer shall be a point of contact for the parent or
senior citizen to liaison and co-ordinate with them.".
Amendment of 16. In the principal Act, for the heading of CHAPTER III, the following heading shall be
heading of substituted, namely:—
CHAPTER III.
"ESTABLISHMENT AND MANAGEMENT OF SENIOR CITIZENS' CARE HOMES AND
MULTI-SERVICE DAY CARE CENTRES FOR SENIOR CITIZENS".
Substitution of 17. For section 19 of the principal Act, the following section shall be substituted,
new section namely:—
for section 19.
Senior "19. (1) The Government or an organisation may establish or maintain Senior
Citizens' Care Citizens' Care Homes for providing residential facilities for the care of senior citizens or
Homes and
Multi-Service Day Care Centre for Senior Citizens for providing day care facilities for
Multi-Service
Day Care senior citizens.
Centre for
Senior (2) Notwithstanding anything contained in any other law for the time being in
Citizens.
force, all such institutions established and maintained as Senior Citizens' Care Homes
or as Multi-Service Day Care Centre for Senior Citizens shall be registered with the
Registration Authority referred to in sub-section (3).
(3) The State Government shall designate a Registration Authority for registration
of institutions under this Act in such manner as may be prescribed.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 225
(4) Every institution registered under this Act shall provide necessary amenities
specified under sub-section (5) and if it fails to do so, the State Government may
cancel or withhold registration of such institution, after following such procedure as
may be prescribed.
(5) The Central Government shall prescribe minimum standards for establishment
and maintenance of Senior Citizens’ Care Homes and Multi-Service Day Care Centres
and for the food, infrastructure, medical facilities, recreation, staff, safety and security
and such other matters as may be necessary.
(6) The State Government shall designate such authority, as it deems fit, as the
Regulatory Authority to monitor the functioning of the institutions registered under
this Act through regular inspections or social audit to ensure that the minimum
standards are adhered to.".
18. In the principal Act, in the heading of CHAPTER IV, for the word "MEDICAL", the Amendment of
word "HEALTHCARE" shall be substituted. heading of
CHAPTER IV.
19. For section 20 of the principal Act, the following sections shall be substituted, Substitution of
namely:— new sections
20 and 20A
for section 20.
"20. The Government shall ensure that,— Healthcare for
senior
(i) all hospitals, whether fully or partially funded by the Government or
citizens.
private healthcare institutions, provide beds for senior citizens as far as
possible;
(ii) separate queues are earmarked for senior citizens in all healthcare and
allied institutions;
(iii) facilities for treatment of chronic, terminal and degenerative diseases
are expanded for senior citizens;
(iv) research and development in geriatric sciences is undertaken;
(v) facilities are earmarked for geriatric patients in every district hospital
duly headed by a medical officer with experience in geriatric care and other
objectives and outcomes of National and State level programmes for geriatric
healthcare are monitored and achieved;
(vi) necessary measures are taken to provide barrier-free access for senior
citizens in all healthcare and allied institutions.
20A. (1) The Government or an organisation may provide homecare services for Homecare
such senior citizens who suffer from difficulties in performing activities of daily life services for
due to any physical or mental impairment. senior
citizens.
(2) The institutions providing such homecare services shall engage trained and
certified attendants or caregivers for the senior citizens as per their needs.
(3) Institutions providing training, certification and homecare services shall be
registered as service provider with the Registration Authority referred to in sub-section
(3) of section 19.".
20. In the principal Act, for the heading of CHAPTER V, the following heading shall be Amendment
substituted, namely:— of heading of
CHAPTER V.
"PROTECTION OF LIFE AND PROPERTY OF SENIOR CITIZENS AND OTHER WELFARE MEASURES".
21. In section 21 of the principal Act, for clauses (i), (ii) and (iii), the following clauses Amendment
shall be substituted, namely:— of section 21.
"(i) the provisions of the Act and measures for the well-being of senior citizens
are given wide publicity through various means;226 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(ii) the officers of the Central Government and of the State Government, including
the members of Civil Defence Corps and Home Guards, police officers and members of
judicial service are given periodic sensitisation and awareness training on the provisions
of this Act and the issues relating thereto.".
Insertion of 22. After section 21 of the principal Act, the following section shall be inserted, namely:—
new section
21A.
Action plan "21A. (1) The State Government shall prepare and implement a comprehensive
for senior action plan for the welfare of senior citizens including for protection of their life and
citizens.
property.
(2) The State Government shall take all measure to ensure effective co-ordination
between the services provided by the concerned Ministries or Departments,
non-Governmental organisations and other stakeholders to address the issues relating
to the welfare of the senior citizens and that periodical review of the same is conducted.".
Amendment 23. In section 22 of the principal Act, for sub-section (2), the following sub-sections
of section 22. shall be inserted, namely:—
"(2) In every police station, at least one officer, not below the rank of Assistant
Sub-Inspector possessing aptitude, appropriate training and orientation shall be
designated as the Nodal Officer for senior citizens to deal with issues relating to
parents and senior citizens.
(3) The State Government shall constitute a Special Police Unit for senior citizens
in each district to co-ordinate the functions of police in respect of parents and senior
citizens and such Unit shall be headed by a police officer not below the rank of Deputy
Superintendent of Police and consist of the Nodal Officers for senior citizens designated
under sub-section (2) and two social workers having experience of working in the field
of senior citizens, of whom one shall preferably be a woman.".
Amendment 24. In section 23 of the principal Act, for the words "senior citizen", wherever they
of section 23. occur, the words "parent or senior citizen" shall be substituted.
Insertion of 25. After section 23 of the principal Act, the following section shall be inserted, namely:—
new section
23A.
Other welfare "23A. (1) The Central Government and the State Government shall take suitable
measures for measures to create more accessible and age-friendly environment, transportation,
senior
information and communications and other public facilities including separate queues
citizens.
for senior citizens.
(2) The State Government shall establish and maintain helpline for safety and
security of senior citizens having one common number across the nation and it shall be
linked to healthcare facilities, police department and other related agencies.
(3) The Government may undertake welfare measures for the benefit of senior
citizens and any benefit for elderly persons made available by the Government or semi-
Government or organisation shall also be available to senior citizens who are sixty
years and above:
Provided that the provisions of this section shall not have any effect on any
benefits extended by the Government or semi-Government or organisations to any
person below sixty years.".
Substitution of 26. For section 24 of the principal Act, the following section shall be substituted,
new section namely:—
for section 24.
Abuses and ‘24. Whoever, having the care or protection of a parent or senior citizen,
abandonement intentionally abuses or abandons such parent or senior citizen, shall be punishable
of senior
citizen.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 227
with imprisonment for a term which shall not be less than three months, but which may
extend to six months or with fine up to ten thousand rupees or with both.
Explanation.—For the purposes of this section, the term "abuse" includes
physical abuse, verbal and emotional abuse and economic abuse, neglect and
abandonment causing assault, injury, physical or mental suffering.".
27. After section 28 of the principal Act, the following sections shall be inserted, Insertion of
namely:— new sections
28A and 28B.
"28A. The details of the institutions registered under sub-section (3) of Obligation of
section 19 or, as the case may be, under sub-section (3) of section 20A shall be made State
Government
available by the State Government by placing it on the website of concerned Department
to place
of that State. details of
registered
institutions on
website.
28B. The institutions registered under sub-section (3) of section 20A shall be Accreditation
accredited for quality of services by accreditation agencies authorised under any law of
institutions.
for the time being in force.".
28. For section 29 of the principal Act, the following section shall be substituted, Substitution of
namely:— new section
for section 29.
"29. (1) If any difficulty arises in giving effect to the provisions of this Act, the Power to
Central Government may, by order published in the Official Gazette, make such remove
difficulties.
provisions not inconsistent with the provisions of this Act, as appear to it to be
necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two
years from the date of the commencement of the Maintenance and Welfare of Parents
and Senior Citizens (Amendment) Act, 2019.
(2) Every order made under sub-section (1) shall, as soon as may be after it is
made, be laid before each House of Parliament.".
29. In section 32 of the principal Act,— Amendment
of section 32.
(a) in sub-section (1), the following proviso shall be inserted, namely:—
"Provided that the Central Government may frame model rules in respect
of all or any of the matters with respect to which the State Government is required
to make rules and where any such model rules have been framed in respect of
any such matter, they shall apply to the State mutatis mutandis until the rules in
respect of that matter are made by the State Government and while making any
such rules, they conform to such model rules.";
(b) in sub-section (2),—
(i) for clause (a), the following clauses shall be substituted, namely:—
"(a) the manner of nominating Conciliation Officer under
sub-section (6) of section 6;
(aa) the manner of holding inquiry under section 5 subject to such
rules as may be prescribed under sub-section (1) of section 8;";
(ii) after clause (d), the following clauses shall be inserted, namely:—
"(da) the manner of designating Registration Authority under
sub-section (3) of section 19;
(db) the procedure for cancellation or withholding of registration
of institutions under sub-section (4) of section 19;228 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
(dc) the minimum standards for the establishment and maintenance
of Senior Citizens' Care Homes and Multi-Service Day Care Centres and
for the food, infrastructure, medical facilities, recreation, staff, safety and
security and other matters under sub-section (5) of section 19;".SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 229
STATEMENT OF OBJECTS AND REASONS
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted
on 29th December, 2007 to ensure need based maintenance for parents and senior citizens
and their welfare. It's been more than a decade now that the Act is in place, serving the needy
parents and senior citizens, with the active co-operation of the State Governments and
Union territory Administrations.
2. However, with the gradual breakdown of joint family system in the society, number
of cases of neglect, crime, exploitation and abandonment of parents and senior citizens are
in the rise. Various High Courts have also issued orders directing the Government to review
provisions of the Act.
3. After examining various provisions of the Act, the Group of Secretaries have made
recommendations to extend all the benefits to senior citizens of uniform age, to enhance
maintenance amount for senior citizens and standardisation of homecare services. Besides,
petitions and representations have been received from individuals and institutions requesting
to make certain modifications in the Act, including to bring daughter-in-law and son-in-law
within the ambit of the definition of 'children', to provide punishment for abuse of parents
and senior citizens. It is, therefore, decided to revise various provisions of the said Act and
to incorporate new provisions therein to make the Act more comprehensive and helpful to
the greying population.
4. The Maintenance and Welfare of Parents and Senior Citizens (Amendment)
Bill, 2019 seeks to —
(a) expand the scope of the Act by modifying the definitions of 'children',
'parents', 'maintenance', 'welfare' and 'senior citizens', to enable parents and senior
citizens to lead a life of dignity;
(b) enlarge the mode of submission of application for maintenance by the parents
or senior citizens;
(c) provide for expeditious disposal of maintenance applications with special
preference to the applications of senior citizens above eighty years of age, so as to
enable parents or senior citizens to receive necessary relief;
(d) remove the upper limit of rupees ten thousand as monthly maintenance
amount that may be awarded by the Tribunal;
(e) extend the right to file appeal to children and relatives also who are aggrieved
by the order of the Maintenance Tribunal, if they continue to pay the maintenance
amount as ordered by the Maintenance Tribunal;
(f) provide for registration of Senior Citizens’ Care Homes, Multi-Service Day
Care Centre for Senior Citizens and Institutions providing Homecare Services for
Senior Citizens and their minimum standards;
(g) constitute Special Police Unit for Senior Citizens in each district and appoint
Nodal Officers for Senior Citizens in every Police Station;
(h) maintain Helpline for senior citizens; and
(i) provide stringent punishment to those who abuse or abandon parents or
senior citizens.
5. The Bill seeks to achieve the above objects.
NEW DELHI; THAAWARCHAND GEHLOT.
The 6th December, 2019.230 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—
Notes on clauses
Clause 3 of the Bill provides for definitions of certain expressions including
"children", "maintenance", "parent", etc.
Clause 4 of the Bill seeks to substitute a new section for section 4 which provides for
maintenance of parents and senior citizens and obligation of children and relatives to maintain
them.
Clause 5 of the Bill seeks to amend section 5 to expand the mode of filing application
before the Tribunal for maintenance.
Clause 6 of the Bill seeks to amend section 6 inter alia to empower the Tribunal to refer
the proceedings to the Conciliation Officers.
Clause 7 of the Bill seeks to amend section 7 to substitute the words 'order for
maintenance' with the words 'application filed'.
Clause 8 of the Bill seeks to amend section 8 to substitute the words 'the Code' with the
words' the Code of Criminal Procedure, 1973'.
Clause 9 of the Bill proposes to substitute a new section for section 9 which provides
manner of determining maintenance by the Tribunal.
Clause 10 of the Bill seeks to substitute sub-section (1) of section 10 to provide for
making alteration in the order for maintenance passed by the Tribunal.
Clause 11 of the Bill seeks to amend section 11 to provide for the enforcement of order
of maintenance.
Clause 12 of the Bill seeks to amend section 12 so as to insert a proviso therein to
enable the parent or senior citizen to withdraw the application pending before any court and
to file the same before the Tribunal and such application shall be deemed to have been filed
from the date when such application was filed before the court.
Clause 13 of the Bill seeks to amend section 13 to substitute the words 'within thirty
days' with the words 'within fifteen days'.
Clause 14 of the Bill seeks to amend section 16 to enable the children or relatives of
parent or senior citizens to file appeal against the order of the Tribunal.
Clause 15 of the Bill seeks to amend section 18 to provide for appointment of the
Maintenance Officer.
Clause 16 of the Bill seeks to amend heading of chapter III as 'Establishment and
Management of Senior Citizens’ Care Homes and Multi Service day Care Centres for Senior
Citizens.
Clause 17 of the Bill seeks to substitute section 19 with a new section to provide for
setting up and management of Senior Citizens’ Care Homes and Multi Service day Care
Centres for Senior Citizens’.
Clause 18 of the Bill seeks to amend heading of chapter IV to substitute the word
'Medical' with the word 'Healthcare'.
Clause 19 of the Bill seeks to substitute section 20 with a new section to provide for the
healthcare of senior citizens and for homecare services for senior citizens.
Clause 20 of the Bill seeks to amend heading of Chapter V as 'Protection of Life and
Property of senior citizens and other welfare measures'.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 231
Clause 21 of the Bill seeks to amend section 21 to provide for giving wide publicity to
the provisions of the Act and measures for the well-being of the senior citizens and also to
sensitise the officers of the Central Government and the State Government.
Clause 22 of the Bill seeks to insert a new section 21A to provide for Action Plan for
Senior Citizens.
Clause 23 of the Bill seeks to amend section 22 to provide for designation of Nodal
Officer for senior citizens to deal with issues relating to parents and senior citizens in every
police stations and to constitute a Special Police Unit for senior citizens in each district to
coordinate the functions of police in respect of parents and senior citizens.
Clause 24 of the Bill seeks to amend section 23 to substitute the words 'senior citizens',
wherever they occur, with the words 'parent or senior citizen'.
Clause 25 of the Bill seeks to insert a new section 23A to provide for other welfare
measures for senior citizens.
Clause 26 of the Bill seeks to substitute section 24 with a new section to provide
punishment for the abuse or abandonment of parent or senior citizen.
Clause 27 of the Bill seeks to insert new sections 28A and 28B to provide for obligation
of State Governments to place details of registered institutions on website and accreditation
of institutions, respectively.
Clause 28 of the Bill seeks to substitute a new section for section 29 to provide for
power to remove difficulties.
Clause 29 of the Bill seeks to amend section 32 to empower the Central Government to
frame model rules and to empower the State Government to make rules in respect of certain
matters.232 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—SEC. 2]
FINANCIAL MEMORANDUM
Clause 17 of the Bill seeks to substitute a new section for section 19 which provides for
establishment or maintenance of Senior Citizens' Care Homes for providing residential facilities
for the care of senior citizens or Multi-Service Day Care Centre for Senior Citizens for providing
day care facilities for senior citizens.
Clause 19 of the Bill seeks to substitute new sections 20 and 20A for section 20. Section
20A provides for provisioning of homecare services to senior citizens who suffer from
difficulties in performing activities of daily life due to any physical or mental impairment.
Clause 25 of the Bill seeks to insert a new section 23A which provides for creating more
accessible and age-friendly environment, transportation, information and communications
and other public facilities for senior citizens and for establishing and maintaining Helpline for
safety and security of senior citizens.
Since these provisions will be implemented in a phased manner mostly by the State
Government, it is not possible at this stage to estimate the full financial burden likely to be
incurred. Further, there would be no additional requirement of fund from the Consolidated
Fund of India at present. The Bill does not involve any other recurring or non-recurring
expenditure.
————
MEMORANDUM REGARDING DELEGATED LEGISLATION
Sub-clause (a) of clause 29 of the Bill seeks to insert a proviso in sub-section (1) of
section 32 to empower the Central Government to frame model rules in respect of all or any of
the matters with respect to which the State Government is required to make rules and where
any such model rules have been framed in respect of any such matter, they shall apply to the
State mutatis mutandis until the rules in respect of that matter are made by the State
Government and while making any such rules, they conform to such model rules.
Sub-clause (b) of clause 29 of the Bill seeks to amend sub-section (2) of section 32 to
empower the State Government to make rules to provide for (i) the manner of nominating
Conciliation Officer under sub-section (6) of section 6; (ii) the manner of designating
Registration Authority under sub-section (3) of section 19; (iii) the procedure for cancellation
or withholding of registration of institutions under sub-section (4) of section 19; (iv) the
minimum standards for the establishment and maintenance of Senior Citizens' Care Homes
and Multi-Service Day Care Centres for senior citizens and for the food, infrastructure,
medical facilities, recreation, staff, safety and security and other matters under sub-section
(5) of section 19.
The matters in respect of which rules may be made are generally matters of procedure
and administrative details and it is not practicable to provide for them in the Bill itself. The
delegation of legislative power is, therefore, of a normal character.
————
SNEHLATA SHRIVASTAVA
Secretary General
UPLOADED BY THE MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD,
NEW DELHI–110002 AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS,
DELHI–110054.
MGIPMRND—4381GI(S3)—21-12-2019.