This should be a case study and a warning for hr managers who wilfully and actively support their management in violating the laws of the land. In times of need and trouble, the management will look for scrape goats, which would be you.
From India, Mumbai
2395From India, Mumbai
Dear ,
HR head is not responsible for any non compliance if he is not nominated factory manger under the Act. Only Factory manager and Occupier nominated under the factories act are responsible for non compliance. After leaving the company court will call factory manager and Occupier those are nominated under the act till the final the case.They can not escape after leaving the Organisation.
Regards
Shamsher Yadav
From India, Delhi
HR head is not responsible for any non compliance if he is not nominated factory manger under the Act. Only Factory manager and Occupier nominated under the factories act are responsible for non compliance. After leaving the company court will call factory manager and Occupier those are nominated under the act till the final the case.They can not escape after leaving the Organisation.
Regards
Shamsher Yadav
From India, Delhi
Dear K.Ramachandra,
Mr. Kamal Prasoon is totally right nothing left to say after his elaborated posts. thanks a ton Mr Prasoon.
However the definition of Occupier under factories act is given below for everybody's reference.
(n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory12[***].
13[Provided that—
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be the occupier
(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier:]
13[14[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,—
(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under:
(a) section 6, section 7, 13[section 7A, section 7B,] section 11 or section 12;
(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;
(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to the workers employed on such repair or maintenance;
(2) the owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16 or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to—
(a) the workers employed directly by him, or by or through any agency; and
(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in-charge or person;]
From India, New Delhi
Mr. Kamal Prasoon is totally right nothing left to say after his elaborated posts. thanks a ton Mr Prasoon.
However the definition of Occupier under factories act is given below for everybody's reference.
(n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory12[***].
13[Provided that—
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be the occupier
(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier:]
13[14[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,—
(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under:
(a) section 6, section 7, 13[section 7A, section 7B,] section 11 or section 12;
(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;
(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to the workers employed on such repair or maintenance;
(2) the owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16 or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to—
(a) the workers employed directly by him, or by or through any agency; and
(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in-charge or person;]
From India, New Delhi
Mr. K. Ramachandra,
As per my opinion ultimate statutory is with the occupier. He much accepts the lapses in front of court. Further, he should take following steps to avoid the same in future:-
1) Statutory Audit from reputed HR firm
2) Lapses must be identified & corrected the same immediately.
3) MIS must be maintained by the occupier
This is for your information.
Thanks & Regards,
Yogesh Kulkarni
Assistant Manager – HR
Krishidhan Seeds Pvt. Ltd.
Contact No. : +91 98908 45553
Email ID :
From India, Mumbai
As per my opinion ultimate statutory is with the occupier. He much accepts the lapses in front of court. Further, he should take following steps to avoid the same in future:-
1) Statutory Audit from reputed HR firm
2) Lapses must be identified & corrected the same immediately.
3) MIS must be maintained by the occupier
This is for your information.
Thanks & Regards,
Yogesh Kulkarni
Assistant Manager – HR
Krishidhan Seeds Pvt. Ltd.
Contact No. : +91 98908 45553
Email ID :
From India, Mumbai
Dear All, Following are my comments to your responses;
1. Mr Kamal - Thank you for your post on "Occupier" - I note and agree with your point that "No manager designated as factory manager can escape from past liability"
2. Mr KK Nair - I agree that a foreigner is not above law - Also kindly note the Ex.Manger that I am referring in my question was nominated as Factory manager and more than shifting of blame here, it is the authorities who have issued notice to the employer which in turn has become a case making the factory manager (Ex.) and the occupier jointly responsible leading to an offense, which is in the Court. The occupier has stated that he is a foreigner and the Factory Manager was responsible for compliances.
3.Mr.Nitin - thanks for posting definition of Occupier - it has added to the point - I agree that the ultimate control of factory rests with the occupier - however, the question here is factory manager being responsible for compliances, be sued/punished even after he has left the organisation.
4. Mr UK Singh - I think we have to wait and watch to see what happens at the end.
5. Mr.Saswatabanerjee - I note your point that the court is free to call back any retired employee (in this case, it is an ex.employee/factory manager), which is a valid point for the question raised and all HR heads to note this point.
6. Mr.Sham Shen Yadav - FYI - HR head was nominated as Factory Manager and hence the question and discussion. I note your valid point that "they cannot escape after leaving the organisation".
7. Mr Kamal Kant Yogi - thank you for adding definition of Occupier under Sec 12 and 13 of Factories Act - I hope it helped everyone involved in the discussion
8. Mr Yogesh Kulkarni - Thanks for your input, which I agree with you. This case is done in a company where all systems are followed - however, this is a lapse over the system.
9. Mr.Devendra K Srivastava - I appreciate your participation and noting the points
Iam contemplating on this issue and I will come back on this point further.
Thanks and regards
K.Ramachandra
Bangalore
1. Mr Kamal - Thank you for your post on "Occupier" - I note and agree with your point that "No manager designated as factory manager can escape from past liability"
2. Mr KK Nair - I agree that a foreigner is not above law - Also kindly note the Ex.Manger that I am referring in my question was nominated as Factory manager and more than shifting of blame here, it is the authorities who have issued notice to the employer which in turn has become a case making the factory manager (Ex.) and the occupier jointly responsible leading to an offense, which is in the Court. The occupier has stated that he is a foreigner and the Factory Manager was responsible for compliances.
3.Mr.Nitin - thanks for posting definition of Occupier - it has added to the point - I agree that the ultimate control of factory rests with the occupier - however, the question here is factory manager being responsible for compliances, be sued/punished even after he has left the organisation.
4. Mr UK Singh - I think we have to wait and watch to see what happens at the end.
5. Mr.Saswatabanerjee - I note your point that the court is free to call back any retired employee (in this case, it is an ex.employee/factory manager), which is a valid point for the question raised and all HR heads to note this point.
6. Mr.Sham Shen Yadav - FYI - HR head was nominated as Factory Manager and hence the question and discussion. I note your valid point that "they cannot escape after leaving the organisation".
7. Mr Kamal Kant Yogi - thank you for adding definition of Occupier under Sec 12 and 13 of Factories Act - I hope it helped everyone involved in the discussion
8. Mr Yogesh Kulkarni - Thanks for your input, which I agree with you. This case is done in a company where all systems are followed - however, this is a lapse over the system.
9. Mr.Devendra K Srivastava - I appreciate your participation and noting the points
Iam contemplating on this issue and I will come back on this point further.
Thanks and regards
K.Ramachandra
Bangalore
We do legal compliance audit for companies
However, if the company is not serious, or where the owners are knowingly committing or continuing the offense for business reasons (cost and profitability), then nothing will change.
From India, Mumbai
However, if the company is not serious, or where the owners are knowingly committing or continuing the offense for business reasons (cost and profitability), then nothing will change.
From India, Mumbai
Hi
In your case, it is necessary to show due dalliance was done by the occupier and things still went wrong and there was no mens rea (no intent to violate law), court will probably release him from liability.
From India, Mumbai
In your case, it is necessary to show due dalliance was done by the occupier and things still went wrong and there was no mens rea (no intent to violate law), court will probably release him from liability.
From India, Mumbai
Dear All,
Thank you for taking the discussion to end at a right conclusion:
Mr Saswatha Banerjee has ended his point right as below:
"The court is free to call back any retired employee to the court for answering questions. So can the labour department in it's investigation. In such case, the company will have to pay for his travel and stay is he has shifted to a different city".
I hope the team agrees with this point.
Regards
K Ramachandra
Thank you for taking the discussion to end at a right conclusion:
Mr Saswatha Banerjee has ended his point right as below:
"The court is free to call back any retired employee to the court for answering questions. So can the labour department in it's investigation. In such case, the company will have to pay for his travel and stay is he has shifted to a different city".
I hope the team agrees with this point.
Regards
K Ramachandra
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