Hello! One of our employees hurt his three fingers while working on a press machine in our factory. He is covered under ESIC and P.F from day one of his joining, i.e., November 2016. His accident happened three days ago. He was given immediate medical attention in ESIC and was discharged after the medical procedure on the same date.
The police, informed by the ESIC hospital, are harassing us, saying that an FIR will be filed. They have also seemingly asked the worker to demand compensation and are asking for money to reach a settlement.
Advice:
(A) Since our factory is covered under the Factories Act and the safety mechanisms were in place on the machine like sensors and dual hand operation switch, can the police file an FIR?
(B) Is the factory liable to pay the worker any compensation when he is registered under ESIC, and his accident report has been filed under the ESIC Act?
From India, Delhi
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The police, informed by the ESIC hospital, are harassing us, saying that an FIR will be filed. They have also seemingly asked the worker to demand compensation and are asking for money to reach a settlement.
Advice:
(A) Since our factory is covered under the Factories Act and the safety mechanisms were in place on the machine like sensors and dual hand operation switch, can the police file an FIR?
(B) Is the factory liable to pay the worker any compensation when he is registered under ESIC, and his accident report has been filed under the ESIC Act?
From India, Delhi
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When an employee is injured inside the factory in the course of employment and is given medical attention at the hospital, the hospital authorities send an MLC (Medico Legal Case) report to the police station. Based on this, the police will conduct an inquiry to ascertain whether the injury was a result of the accident he suffered. Based on the inquiry, the police file a report on the MLC received.
As regards ESI, you have not indicated whether you have communicated with the ESI & Factories Inspectorate regarding the accident. It is mandatory to file a report from your side.
Regarding compensation, it will be paid by ESIC based on the disablement suffered, and you need not pay any compensation. However, we have heard of instances wherein the employer is harassed despite the employee being covered under ESIC.
Trust the matter is clarified.
Regards
From India, Madras
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291As regards ESI, you have not indicated whether you have communicated with the ESI & Factories Inspectorate regarding the accident. It is mandatory to file a report from your side.
Regarding compensation, it will be paid by ESIC based on the disablement suffered, and you need not pay any compensation. However, we have heard of instances wherein the employer is harassed despite the employee being covered under ESIC.
Trust the matter is clarified.
Regards
From India, Madras
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Yes, police can file an FIR if it seems to them that the accident happened due to some error or gap on the side of factory administration.
My advice is to get an advocate to oversee the police case. Also, the ESIC department must be kept in the loop. Treat the matter with care; if trade unions get involved, then the situation will worsen.
If the police or workers are creating chaos, apply for protection and Section 144 with the help of the court. If you first visit the court, the matter will be in your favor.
From India, Kolkata
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My advice is to get an advocate to oversee the police case. Also, the ESIC department must be kept in the loop. Treat the matter with care; if trade unions get involved, then the situation will worsen.
If the police or workers are creating chaos, apply for protection and Section 144 with the help of the court. If you first visit the court, the matter will be in your favor.
From India, Kolkata
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In addition to what I had stated earlier, I wish to add the following for you to ponder over.
You are aware that accidents happen due to unsafe acts or unsafe conditions. In your post, you have stated that the accident could have happened due to an unsafe act by the employee. If the following unsafe conditions have been addressed, you need to find out how the accident actually happened.
Unsafe conditions investigation:
1) Did the sensor in the press that senses human body parts while it is in operation fail in this instance?
2) Are the sensors that allow only dual-hand operation located apart so that they cannot be operated by a single hand?
3) Are the sensors located at a reasonable height so that it cannot be operated using a hand and leg?
4) Is there any gap to access the press beyond the sensor, as a result of which it did not sense the human hand?
5) If there is a gap for operational reasons, was the employee aware that he should not access the press beyond the sensor?
6) Is there an emergency stop button that ceases the press in case of such an emergency?
7) If there was an emergency button, was it functional?
8) If there was an emergency stop button and it was functional, was the employee who met with the accident aware of such a provision, and are other co-workers aware of it?
9) Does your company provide safety training to employees before deploying them on machines?
10) Are the Do's and Don'ts emphasized to the employees at the beginning of every shift?
A thorough AIR (Accident Investigation Report) has to be done internally with a view to prevent further accidents.
In my opinion, many accidents happen to employees who are working in organizations as Temporary Operator Trainees (TOT's). These youngsters join companies to earn a livelihood.
In some companies, these TOT's are from other states and do not understand the local language. So, it becomes difficult to educate them on aspects relating to safety.
It would be prudent on the part of employers to identify persons who can educate them in the language known to them.
Maintain an internal record of accidents and analyze the causes to minimize/prevent accidents.
Regards
From India, Madras
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You are aware that accidents happen due to unsafe acts or unsafe conditions. In your post, you have stated that the accident could have happened due to an unsafe act by the employee. If the following unsafe conditions have been addressed, you need to find out how the accident actually happened.
Unsafe conditions investigation:
1) Did the sensor in the press that senses human body parts while it is in operation fail in this instance?
2) Are the sensors that allow only dual-hand operation located apart so that they cannot be operated by a single hand?
3) Are the sensors located at a reasonable height so that it cannot be operated using a hand and leg?
4) Is there any gap to access the press beyond the sensor, as a result of which it did not sense the human hand?
5) If there is a gap for operational reasons, was the employee aware that he should not access the press beyond the sensor?
6) Is there an emergency stop button that ceases the press in case of such an emergency?
7) If there was an emergency button, was it functional?
8) If there was an emergency stop button and it was functional, was the employee who met with the accident aware of such a provision, and are other co-workers aware of it?
9) Does your company provide safety training to employees before deploying them on machines?
10) Are the Do's and Don'ts emphasized to the employees at the beginning of every shift?
A thorough AIR (Accident Investigation Report) has to be done internally with a view to prevent further accidents.
In my opinion, many accidents happen to employees who are working in organizations as Temporary Operator Trainees (TOT's). These youngsters join companies to earn a livelihood.
In some companies, these TOT's are from other states and do not understand the local language. So, it becomes difficult to educate them on aspects relating to safety.
It would be prudent on the part of employers to identify persons who can educate them in the language known to them.
Maintain an internal record of accidents and analyze the causes to minimize/prevent accidents.
Regards
From India, Madras
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Generally, there are three reasons for accidents:
1. Not observing safety by the management of the factories in the installation of plant and machinery.
2. Sudden and unanticipated failure of system parts.
3. Failure of an employee due to overriding safety rules.
Any fatal accident needs to be reported to The Factory Inspector and ESIC voluntarily and at the first available opportunity but certainly within one working day.
In the case of an employee covered under ESIC, all claims are settled by ESIC at their level. However, when the Medico-legal report is sent by ESIC to the police, the police start investigating and also file an F.I.R. They may or may not instigate the employee to demand more from the employer so that they also get a share, depending upon the employer's relationship with the police.
If the factory management has investigated the reason for the accident and/or CCTV footage is available and provided to the inspecting officer, the intensity of the case gets diluted. This depends on the reason for the accident at the employee level, police level, or court level. In such cases, there are no chances of a big payout to the employee and police due to cohesive pressure tactics.
However, it is essential to be cautious in all such cases.
We are also affected persons in one such case.
Jawaharlal Moondra
9829028028
From India, Jodhpur
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1. Not observing safety by the management of the factories in the installation of plant and machinery.
2. Sudden and unanticipated failure of system parts.
3. Failure of an employee due to overriding safety rules.
Any fatal accident needs to be reported to The Factory Inspector and ESIC voluntarily and at the first available opportunity but certainly within one working day.
In the case of an employee covered under ESIC, all claims are settled by ESIC at their level. However, when the Medico-legal report is sent by ESIC to the police, the police start investigating and also file an F.I.R. They may or may not instigate the employee to demand more from the employer so that they also get a share, depending upon the employer's relationship with the police.
If the factory management has investigated the reason for the accident and/or CCTV footage is available and provided to the inspecting officer, the intensity of the case gets diluted. This depends on the reason for the accident at the employee level, police level, or court level. In such cases, there are no chances of a big payout to the employee and police due to cohesive pressure tactics.
However, it is essential to be cautious in all such cases.
We are also affected persons in one such case.
Jawaharlal Moondra
9829028028
From India, Jodhpur
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Yes, the police can file an FIR. Additionally, the Factory Inspector will be visiting the factory. You have to inform the DISH office within 24 hours about the accident report. The Inspector will analyze the accident and then either warn, fine, or in the worst cases, file a case against you.
It is crucial to ensure that the safety of the workers is prioritized. Safety training should be provided, safety instructions should be clearly displayed in a way that workers can understand them. Workers should not work without supervision and safety gear.
Simply having safety rules and equipment is not enough. Individuals must actually follow them. If someone has not followed the rules, questions arise about why they were allowed to work and what the supervisor, safety officer, and Production Incharge were doing. Therefore, the FIR is justified.
ESIC will provide medicines and the salary for medical leaves, but later, you will be responsible for the worker's rehabilitation.
From India, Mumbai
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It is crucial to ensure that the safety of the workers is prioritized. Safety training should be provided, safety instructions should be clearly displayed in a way that workers can understand them. Workers should not work without supervision and safety gear.
Simply having safety rules and equipment is not enough. Individuals must actually follow them. If someone has not followed the rules, questions arise about why they were allowed to work and what the supervisor, safety officer, and Production Incharge were doing. Therefore, the FIR is justified.
ESIC will provide medicines and the salary for medical leaves, but later, you will be responsible for the worker's rehabilitation.
From India, Mumbai
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If you have informed the Factory Inspectorate, then the police have no role to play, as for one incident, two authorities cannot take action. The Supreme Court has given judgment in this regard that if the Factory Inspectorate is investigating, police authorities cannot take any action. Police will threaten you, which is a separate issue.
From India, Mumbai
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From India, Mumbai
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An accident in side the factory is not in the jurisdiction of Police. Inspector of Factories will take care and you should actually tell the police to mind their business. T.Sivasankaran
From India, Chennai
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From India, Chennai
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Dear All,
Mr. Sivasankaran is right. Please find attached a copy of the judgment by the Jharkhand High Court, which quashed the FIR filed by the Bistupur Police Station.
Regards,
N. Nataraajhan
Sakthi Management Services
Hp: +91 94835 17402
From India, Bangalore
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Mr. Sivasankaran is right. Please find attached a copy of the judgment by the Jharkhand High Court, which quashed the FIR filed by the Bistupur Police Station.
Regards,
N. Nataraajhan
Sakthi Management Services
Hp: +91 94835 17402
From India, Bangalore
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1. Sir, with reference to remarks of one of the seniors and experts as mentioned above, wherein it is advised, "An accident inside the factory is not in the jurisdiction of the Police. The Inspector of Factories will take care, and you should actually tell the police to mind their business," I feel that these remarks do not reflect the correct legal position and are harsh in nature. In Rule 110 of the U.P. Factories Rules, there is a provision that in the case of all serious accidents inside the factory, the management is required to send a report to the District Magistrate or the Police Authorities of the area. I believe similar provisions may also exist in the Factories Rules of Tamil Nadu and Karnataka. When rules framed under the Factory Act establish the jurisdiction of the Police or District Magistrate, I doubt if anybody can instruct the Police in the manner mentioned above.
2. Another senior/expert has advised, "Supreme Court has given a judgment in this regard that if Factory Inspectorate is investigating, police authorities cannot take any action." I think it would be better to upload some judgments of the Honorable Supreme Court in this thread for our guidance and knowledge update.
3. I would like to further submit that as per Section 35 of the Cr.P.C., the Emergency Incharge of any Hospital is required to send reports of accidents to the Police Authorities, and it is the responsibility of the Police Authorities to investigate the matter according to their own procedures and laws. In a case titled "Y.P. Mehrotra And Ors. vs State Of U.P. And Anr." on 13/11/1987, the Honorable Allahabad High Court had decided a similar case with the following words:
"In Mam Ram v. Union of India A.I.R. 1980 S.C. 2147, Section 5 of the Code is discussed by Krishna Iyer, J. Broadly speaking, there are three components to be separated. Firstly, the Code generally governs matters covered by it; secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail; and thirdly, if there is a specific provision to the contrary, then that will override the special or local law. The provisions of the Act and the Rules do not cover the same area as is earmarked by the Code. We have already emphasized that the provisions of the Act and the Rules are confined to breaches of the provisions contained therein. They provide for punishment of the offenses committed for violating their provisions. Section 5 of the Code will apply not only when the field of operation of the Act and the Rules completely cover the field of operation of the Code but also when their provisions lay down a contrary rule in the entire field altogether nullifying the provisions of the Code for the purpose of investigating, inquiring into, and launching a prosecution for an offense punishable under Section 304-A of the Indian Penal Code. This is not so. An offense under Section 304-A of the Indian Penal Code and an offense under the Act and the Rules operate in different fields. They flow in different channels. This position is clarified by Section 4 of the Code which enjoins that all offenses under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code."
From India, Noida
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2. Another senior/expert has advised, "Supreme Court has given a judgment in this regard that if Factory Inspectorate is investigating, police authorities cannot take any action." I think it would be better to upload some judgments of the Honorable Supreme Court in this thread for our guidance and knowledge update.
3. I would like to further submit that as per Section 35 of the Cr.P.C., the Emergency Incharge of any Hospital is required to send reports of accidents to the Police Authorities, and it is the responsibility of the Police Authorities to investigate the matter according to their own procedures and laws. In a case titled "Y.P. Mehrotra And Ors. vs State Of U.P. And Anr." on 13/11/1987, the Honorable Allahabad High Court had decided a similar case with the following words:
"In Mam Ram v. Union of India A.I.R. 1980 S.C. 2147, Section 5 of the Code is discussed by Krishna Iyer, J. Broadly speaking, there are three components to be separated. Firstly, the Code generally governs matters covered by it; secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail; and thirdly, if there is a specific provision to the contrary, then that will override the special or local law. The provisions of the Act and the Rules do not cover the same area as is earmarked by the Code. We have already emphasized that the provisions of the Act and the Rules are confined to breaches of the provisions contained therein. They provide for punishment of the offenses committed for violating their provisions. Section 5 of the Code will apply not only when the field of operation of the Act and the Rules completely cover the field of operation of the Code but also when their provisions lay down a contrary rule in the entire field altogether nullifying the provisions of the Code for the purpose of investigating, inquiring into, and launching a prosecution for an offense punishable under Section 304-A of the Indian Penal Code. This is not so. An offense under Section 304-A of the Indian Penal Code and an offense under the Act and the Rules operate in different fields. They flow in different channels. This position is clarified by Section 4 of the Code which enjoins that all offenses under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code."
From India, Noida
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