Ankita Surabhi, Law Officer ,Shakti Vahini
The government framed Jharkhand Nizi Niyozan Abhikaran and Gharelu Kamgar (viniyam) vidheyak 2016 (Jharkhand private employment agency and domestic employee bill) which was passed by the assembly recently, an official release said today. The bill was taken up at the behest of Chief Minister Raghubar Das who had advocated strong action against such agencies. The bill is aimed at removing the stain of human trafficking from Jharkhand and to put curb on placement agencies involved in the act, the release said.
Under the new act, licence or proof certificate is required for placement agencies, and they should take licence within 90 days of the notification of the act, including those existing before the notification, the release said.
The state of Jharkhand, passed its Private Placement Agencies and Domestic Workers (Regulation) Bill-2016. The Bill comes at a time after Chhattisgarh and New Delhi notified their Act and the Delhi High Court Executive Order, respectively to regulate the functioning of placement agencies, while affording legal protection to domestic workers. Jharkhand is yet another state with a large tribal population, hailing from remote areas and villages, and mostly from the illiterate and unaware background.
Ground realities of unemployment, lack of livelihood and difficulty in sustenance makes Jharkhand a hunting ground of traffickers, luring vulnerable groups into exploitative situations. While the Bill is similar to the Executive Order and the Chhattisgarh Act in many respects, it works to strengthen the response mechanism at the source and the destination, by pinning liability on all erring stakeholders.
The Bill is divided into eight chapters, sub-divided into 17 sections, dealing with specific subject matters. This Article is a summarized introduction to the various aspects of the same. Under section 3, state government shall appoint an officer not below the rank of a Labour Inspector to be the Controlling Authority, while defining the jurisdictional limits of their adjudicatory powers. Section 4 mandates every Private Placement Agency (PPA) to have Registration Certificate for commencement and operation issued under the tentative Act. For those already in existence the Certificate must be obtained within 90 days of the notification of the Act. Section 5 enumerates the necessary information to be furnished before the Certificate can be granted. They are as follows:
- Information regarding Private Placement Agency
- Number, Names, Age and Address of persons employed.
- Details of salary fixed for each worker
- Address of person employed within and outside Jharkhand
- Minimum Bank Guarantee prescribed by Government.
- Any and all other Registers maintained by the Agency.
The Controlling Authority (CA) will conduct enquiries regarding the aforementioned requisites for grant of certificate, to be completed on the fulfilment of prescribed terms and conditions. The Certificate shall be valid for 5 years to be renewed from time to time. Every PPA should have an office in Jharkhand with verifiable legal documents.
Under section 6 (i) (a), if the Controlling Authority is satisfied in the reference made to them or otherwise that the Registration Certificate was obtained through misrepresentation or suppression of material fact; and under ss. (b) if the certificate holder fails to comply with the applicable conditions and contravenes provisions of the Act without reasonable cause, after being given an opportunity to be heard and produce his case before the CA, shall have his registration cancelled by a written order from the CA and the charges settled against the Bank Guarantee submitted by the PPA. The same shall be conveyed to the PPA. The proviso to the sub section states that upon the discretion of the CA, the same shall stand revoked for the duration and time period as they think fit, via a written order with reasons which shall be sent to the Certificate holder by registered post. The CA shall, within the Rules prescribed under the Act, make the necessary/required amendments to the Certificate.
Section 8 attempts to encapsulate the essence of the Act by determining the ‘Functions and Duties of Private Placement Agencies’. It comprises of a list of Dos and Don’ts such as no charging of any fee from any worker registered with the PPA, no employment of persons below 18 years of age, provide details of registration of any worker to the CA within 7 days (as under the Jharkhand Social Security Board, as well); and in case the worker is not yet registered, a written application singed by their hand must be submitted along with the Registration Certificate. Every PPA shall publicly display the name and registration details of the Agency outside its office, maintain and provide details of the workers/employee and their employers, ensure minimum wage to the workers with respect to the state laws, ensure compliance of labour laws so that workers receive double the minimum wage if they work beyond the designated 8 hours, ensure healthy working conditions and safety during travel. Under section 8 (9) every registered worker shall be issued a passbook from the PPA, with a passport photo bearing the following details:
- Name, Age & Address of worker
- Name of Employer, Address, Contact details, etc.
- Proposed duration and terms of employment, weekly holidays, leaves, recesses, etc.
- Payment structure and method, albeit no salary cycle to exceed a month.
- Details of Relative of worker, along with details of Aadhar card (if any).
- Bank Account details of worker, in which the employer shall deposit the wages of worker.
- Lastly the pass book shall have, if available, the address and contact details of the Block Development Officer/ Local authorities/ Police Superintendent/ Women or Child Helpline.
There shall be an MoU to be signed and entered into with terms and conditions clearly laid down between the PPA, employer and the employee; provision for redressal of complaints/litigation arising out of the employment; provision for travel allowance from home to employer’s which shall be considered a duty of the PPA, and lastly under section 8 (12) details of any contractor’s or broker’s or agent’s services if taken for recruitment and employment of any worker shall be provided to the CA, at the earliest.
Section 9 provides for appointment of an Inspector, by the state government, not below the rank of Labour Enforcement Officer/ BDO/Zonal Officer etc., who is empowered to monitor and enter premises along with persons notified by the state government, where domestic workers are living or are employed, or at the PPA. The Inspector, if he/she has reason to believe that the records and details of wages maintained by the PPA violate provisions under this Act, then he/she can acquire such documents and/or records and copies of the same. Any documents or records sought by the Inspector under section 9 from the PPA shall be considered bound to do so under section 175 and 176 of the IPC, 1860.
Section 10 provides for a Grievance/Litigation Redressal/Execution Authority. It states that any workers aggrieved due to non-performance of duties of the PPA as laid down u/s. 8, shall by themselves or any other person or parent/guardian or Inspector file a complaint through the officer-on-duty at the local police station to be submitted before the Grievance Redressal Authority. The Inspector shall gather all relevant information regarding the complaint, and summon PPA to fill in missing details as required. Notwithstanding, anything contained under the Act, the Redressal Authority shall after giving reasonable time and opportunity to the Certificate holder or the employer to be heard against the complaint shall dispose the same within 30 days of its filing. A minimum penalty of Rs. 10, 000/- shall be levied against contravention of the order passed by the Authority, to a maximum of Rs. 25,000/-, against the employer or PPA, which can be recovered as land arrears. Moreover, the CA has the authority to cancel the registration of the PPA, prohibiting its operation anywhere across Jharkhand.
Section 11 deals with the roles and responsibilities of Jharkhand Women and Child Development department and the State Human Rights Commission. Under ss. 1, any person aggrieved against the order passed u/s. 10 by the Authority, shall file an appeal within 30 days in the prescribed manner and form, which can be extended if the appellant can reasonably prove and submit in writing the reason for the delay. The appellant shall be given ample time to present their case, after which the order in question may be amended or suspended or delayed, as the case may be. Section 7 which deals with Appeal provides for the same procedure to be followed against order passed by the CA under sections 5 and 6.
Section 12, deals with ‘Offence and Penalties’ levied under the tentative Act. Any contravention of section 4 shall attract imprisonment for a term which shall extend to 2 years and fine up to 1 lac. or both. Any person found in violation of the Act and any Rules made thereunder shall be punished with imprisonment up to 1 year or fine up to Rs. 20,000/- or both. Under Section 13, no court shall take cognizance of any case without taking prior permission of Controlling Authority or State Government, except litigation filled by any person. Lastly, No court below the Court of First Class Judicial Magistrate shall hear the case punishable under this act.