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Well, if you see the definition of interstate migrant worker in sec 2 (e), this is made very clear.
(e) “Inter-state migrant workman” means any person who is recruited by or through a contractor in one state under an agreement or other arrangement for employment in an establishment in another state, whether with or without the knowledge of the principal employer in relation to such establishment;
It has to be through a contractor. Not a direct employee
It has to be recruitment in one state for working in another.
There are more points in the rules that you can see that points to the same thing.

From India, Mumbai
Dear Mr. Banerjee,
The discussion seems to be heading towards a wrong direction. The initial question from Mr. Mohan was that some of the workers from other state have voluntarily joined their organisation (Construction Engineering Industry) and was asking from us whether the ISMW Act is applicable for such workers or not and it was suggested by our team that the act is not applicable if he is establishing his stand regarding their voluntary recruitment at his site.
Now the question is the applicability of the act in the subject case and the answer is a simple NO for the reason as mentioned by you in your second point. Let us not take the discussion personally. You have also mentioned correctly as is the case with Mr. Keshav and it seems that it is only a linguistic war between the two giants.
Happy chatting with you Mr. Banerjee after a long time.
Regards,
P. Vathiraj
Dy. Manager- Personnel
+91 954 333 3044

From India
Sorry if it sounded like I was refuting or arguing.
Perhaps I need to change my wording.
Someone asked to give the relevant section of e act, so I quoted it.
I also said there may be other supporting provisions in the rules, which he needs to see. Cause I didn't get to cross check, since the definition already gives the supporting answer
Just to be clear, this is to be taken under assumption that they are doing construction on their own account and not a contractor for someone else. Cause then they will be the principal employer, and the act does not apply to direct employees.
Second, if the first does not apply, then they need to have proof that these employees were recruited locally even if they are domicile e in a different state. The documentation of that will be critical in case the matter goes for investigation or hearing.
Again, I am not disputing anything, only giving a clarification so that no one works on a wrong assumption.

From India, Mumbai
Dear All,

I once again reproduce the definition of Inter-State migrant workman as under:

Sec. 2(e) “inter-State migrant workman” means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment.

Now I reproduce the definition of contractor as under:

Sec. 2(b) “Contractor” in relation to an establishment, means a person who undertake (whether as an independent contractor, agent, employee or otherwise) to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, by the employment of workmen or to supply workmen to the establishment, and includes a sub-contractor. Khatadar, Sardar, agent or any other person, by whatever name called, who recruits or employs workmen.

On the basis of above definitions and the knowledge which I got over the period in my professional experience, my understanding on Inter-State migrant workman up till now was as under:

Citizen of India has a right to move freely throughout the territory of India and practice any profession or to carry on any occupation, trade or business.

However, In some of the states in India like Orissa, Bihar, W.B., Andhra Pradesh etc. there is a system of recruiting labours through contractors or agents called Sardars or Khatadars for work outside the State in large construction projects.

The contractors who recruits such labours in those states requires to take permit of the state for the work outside the state/ taking labours outside the state under certain conditions.

Outside the state where such labours are deployed through such contractors, the PE is required to obtain RC and the contractor is required to obtain Licence under the Inter-State Migrant Workmen Act.

However, after reading various posts in this thread, I am confused and started feeling that whatever I read, interpreted and practiced and advised on this subject up till now is wrong.

Can any one enlighten me on this?

From India, Mumbai
Dear All,
I would like to correct my self as under:
The querist said the workers approach them voluntarily. What I understand that there is no intermediate agency in between the workers and the company / the contractor. Under this circumstances the provisions of ISMW Act does not apply to the queriest.
Sec. 2(e) “inter-State migrant workman” means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment.
If queriest employ workers not through the intermediate agency who is defined as 'contractor' under the ISMW Act and he able to establish his stand, the ISMW Act is not applicable to him, to my views.

From India, Mumbai
Mr Kargoanker is right.If the employees are directly engaged without any agreement with a contractor for supply of ISM you need not comply with ISM Act. VARGHESE MATHEW 9961266966
From India, Thiruvananthapuram
Your understanding of the act and its application is correct.
I think we are all saying the same thing in different manner.
The act was established to prevent exploitation of the migrant workers by the thekedar who would take them from home state and deploy them elsewhere. In the meanwhile they would not pay full wages, give bad accommodation etc. that is why the act came into effect, providing certain base rules to be followed and to some extent deciding the jurisdiction and monitoring mechanism.
Whether the act applies to you depends on whether you are a contractor and whether the employees are recruited from another state. Again, I wish to clarify : recruit from another state is different from recruiting a person who is resident / domiciled in another state. It must be that they are recruiting in the resident state. Otherwise the act does not apply to you.
So you have to show to the labour officer that both of these conditions do not apply to you. That's all.

From India, Mumbai
Dear Saswata ji,
Since we are on same line now, I further would like to share my experience in ISMW with you all.
The thekedars they take permit in their state for very few people and bring more people in other state. In other state invariably they do not take licence or if at all they take, take it for less people. No cross check. (Mera Bapu Mahan!)
The ISMW or the other workers who are bought in to other state by the thekedar without permit they raise grievances in their state later on and you get summons from the department of their state. You have no option but to attend the case there.
We should discuss such cases in this forum and find out the ways.

From India, Mumbai
What you say is definitely true.

Our thekedar love to circumvent the law and take short cuts.

Forget them, I find even large operators in security services are doing the same. As you know they recruit security guards from Bihar but in most cases do not comply with the requirements in terms if licence, etc.

The solution is for the principal employers to be careful in checking the records of contractors (eg. We are doing this exercise for our clients as a part of labour laws compliance audit - lust finished for a set of 17 locations for a client and 8 locations for another). The principal employer will need to ask each contractor :

- to give details of their license under the act

- details of address of people who are working at their unit

- cross check with some of them at random to see if they were recruited locally or from the other state

- check for payment, specially where part of the money is being paid to the family at the village (mostly an indicator of them being recruited in the other state)

- ask the contractor to follow a practice of issuing appointment letters (which will show they are recruited locally)

Often a random depth check by HR will revele malpractices if they are happening.

If the principal employer makes it clear they will not accept non compliance, the contractors will follow the law. Unfortunately in most cases they principal employers turn a blind eye as the cost will otherwise go up. In that case, there is nothing that can be done.

Some will say that the smaller employers can't afford to do such type of checking, they do not have this type of resources, etc. in that case, you will have to live with the risk.

In spite of this, someone may complain.

In such cases, as you rightly pointed out, you have to attend to the matter in the other state. If you have your documentation and have exercised due delligence, then it is likely that no action will be taken against you. I have no answer to your other implied query : what if someone makes a false complain (or investigation based in wrong assumptions). I hope some of the seniors will give pointers on preventing or tackling that.


From India, Mumbai
Dear Mr. Keshav
At present as per my knowledge, the Orissa Government only following the licence procedures for those contractors who are taking the workmen to other states. The contractors applied for licence will have to maintain the Outward Journey / Return journey ticket fare register & Dislocation allowance Register for the workmen who are those leaving the state. Yearly once the registers, Wages Register Muster roll etc must be produced to the licencing authority at the time of renewal of licence.
If the workers alongwith the contractor planned to corner the employer, that too possible. They will simply file a case of less payment / non payment of Minimum Wages. The concerned authority will send the notice to the employer and the employer has to attend the case in the state/authority where / with whom the case has been filed.

From India, Kumbakonam

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