Saswatabanerjee
Partner - Risk Management
Boss2966
Industrial Relations
Vathiraja271481
Working As Assistant General Manager (personnel)
Korgaonkar K A
Ba,llb,mpm,dir&pm,dll&lw,d.cyber
N.Mohan
Hr Professional
Djayraj
Hr/ir
S_jaim
Auditor
Nitin K Shahi
Researcher
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Dear All,
We are in Construction Industry and employed the labourers not only from local areas but also from other states.These labourers have approached us Voluntarily and there is no intermediate agencies in appointments.Now the Statutory Authorities are insisting to Obtain Licence Under Interstate Migration Act.I request some one to clarify my doubt as whether to take Licence under the said Act.
N.Mohan
Dear Mr. Mohan
As like Contract Labour Licence for ISMW Lincence also you must obtain copy of Registration certificate & Certificate by Principal Employer from your Principal employer and apply for ISMW Licence. The Fee and Deposit details will be available with your labour commissioner Office.
After obtaining the licence you must start maintain the Onward journey, return journey fare payment details, separate register of workmen and you must send the return also to Labour Commissioner as per ISMW Rules of your state.
Dear Bhaskar ji,
The querist said the workers approach them voluntarily. There is no intermediate agency in between the workers and the company. 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 directly and he able to establish his stand, the ISMW Act is not applicable to him, to my views. You may correct me if I am wrong.
Dear Mr. Keshav
If the workers are approaching directly then we need not to take contract labour licence as well as ISMW Licence. One thing the employer must ensure that the worker whoever getting engaged should submit the local address.
Dear Bhaskar ji,
Greetings of the day to you as well to all viewers.
With due respect to you Sir, I would like to repeat as under:
A person is an “inter-State migrant workman” when he is bought to other state thru an agent from one state under an agreement.
I will give salient features of the said Act in due course of time for the benifit of all the members / viewers.
The RC & contract labour license under CLRA is granted under different parameters and RC & license under this Act is granted under different parameters.
Dear Mohan,
ISMW License needs to be taken only when the contractor you had engaged in the projects or the employer himself bring the labourers from other state to employ in the state .
You can take a declaration from the contractor that they had not employed any labourers from othe state .
They have clearly stated that the workers are coming directly without any intermediate therefore the labours are coming under the direct employment of the company. In this case ISMW not required.
Not only for workers some time we appointed Middle level and Senior Level employees those who are applying ISMW.
P. Xavier Raj
Dear Team,
I second Mr. Keshav's view on the applicability of ISMW Act for the query that has been raised by Mr. Mohan.
Before a migrant workman is to be employed, the contractor has to obtain license for recruiting such labourers from the licensing officer having the jurisdiction of the place of recruitment before applying for a license under the subject act for the employment in a different state, and has to follow the rules which are laid in Inter State Migrant Workmen Rules of the respective state or central, as applicable.
In the subject case, since the workers have directly approached Mr. Mohan for employment, the applicability of ISMW act does not arise.
I am enclosing the extract of ISMW Act 1979 and Central Rules, 1980 for the benefit of our members.
Regards,
P. Vathiraj

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File Type: docx Inter-state Migrant Workmen Act, 1979 and Central Rules, 1980.docx (40.7 KB, 2886 views)

Dear Mohan

There are 2 points that needs to be considered.

First, are you the principal employer or the contractor.

For example, are you using the construction workers in building flats that you later sell or are you building a building for another company or perhaps a factory. If its your own project, the interstate migrant workers act does not apply as it is only for contract workers. But if you are doing work as a contractor for another company, then this act applies.

Second, the act applies if you are recruiting from another state. That means you have an office in that other state, you are hiring employes there and asking them to report to work in another state. It does not apply to a case where the worker (say) from Bihar comes to bangalore looking for work, and then finds you have a vacancy and joins. So if that is the case, you need to maintain documentation properly to record that. Eg when he came for interview, who recommended him, his local address, etc

Hope this clears the doubts.

These points are in the act and you have to show the relevant points to the labour officer and convince him of its non applicability to you
Dear Saswata ji Could you please tell us where are those points in the Act? Can you give the relevant sections?
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.

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
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.

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?
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.
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
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.

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.
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.


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.
Dear All, I extremely thankful to you all for airing your views and helping me to reply to the Observations of Statutory Authorities. With Regards N.Mohan
I had taken labour license of 100 No. form Maharashtra after-that from other state i have taken 100 workers for which i had taken Migrant license, now the total strength of workers is 200. now my issue is that my client insist me to amend your labour license again by 100 nos. because your total strength is 200, migrant will not considered.
So should i amend the labour license for 100 or what i had done is right now is correct ?
please let us know your views or what is right as per ac
regards
Jayraj Dutal
7350014235
Your contract labour license is irrespective of whether you have a migrant license. So you need to increase the number in the license to 200. I am surprised that your client waited so long.
Dear all,
As per my understanding of Sec 2 (b) of the Act, "whoever recruits or employs workmen" falls under the purview of the same. Hence whether principal employer or contractor, registration is a must. but Sec 2 (e) brings about ambiguity in the Act, as an Inter-State Migrant Workman should invariably be recruited by a contractor only, for the Act to be applicable.
Previous participants in the discussion have completely ruled out the need for employers to get registered on the basis of Sec 2 (e).
Kindly indicate whether any Honourable Supreme Court/High Court judgement have been passed to such effect.
Regards,
L. K. Nongrum
Dear all,
It has also arisen that a contractor is defined by the Act to be, inter alia, an EMPLOYEE {Sec 2 (1) (b)}. Does this mean that an "employee" of the principal employer, who recruits inter state migrant workmen, on behalf of the principal employer, whether with or without his knowledge, is a contractor within the meaning of the Act? if not, then who is an employee under Section (1) (b) of the Act???
I hope you realise that this thread is more than 2 years old.
Anyway, the applicability of the interstate migrant workers act is to the contractors and has nothing to do with the principal employers. The registration is for contractors in the state from which he is recruiting. The principal employer again is not involved in that.
The contractor is required to take a normal labour license in the state where the labour is employed, as he falls under the contract labour act. The principal employer is required to get registered under contract labour act and not under interstate act. In the above case, the principal employer is already registered.
Dear Saswata ji,
You need to read the Act and correct yourself. I know it is totally not appropriate to tell this to one of the Senior Members and that to by an ordinary member like me. I am sorry for this.
By all means, it is totally appropriate to tell someone if he posts wrong, and seniority matters less. I am here to learn from the forum.
Please tell me in what way I am wrong. (Meaning ofcourse my post above)

Dear Team,

Let us read the Act in between the lines and understand the concept in its own essence and not in bits and pieces of various sections

1. It applies to every establishment, which employed or employs five or more interstate migrant workmen, on any day, of the preceding twelve months (Sec 1 (4) (a)).

2. Similarly, it applies to every contractor who employs or employed five or more interstate migrant workmen, on any day, of the preceding twelve months (Sec 1 (4) (b)).

3. Principal Employer means any person who is responsible for the supervision and control of the establishment (Sec 2 g (iv).

4. Contractor means a person who undertakes (whether as an independent contractor, agent, employee or otherwise) to produce a given result for the establishment (Sec 2 (b)).

5. Establishment means any place where any industry, trade, business, manufacture or occupation is carried on (Sec 2(d) (ii)).

6. Inter-state Migrant Workmen means any person who is recruited in one State for employment in an establishment in another state, by or through a contractor.

Now, as per Section 4 of the Act, one need to register an establishment who employs five or more inter-state migrant workmen as per Sec 1 (4) (a), which is called a Certificate of Registration (RC), in Form I.

The Contractor needs to apply license for recruitment in Form IV in the state where recruitment is made as per Sec 8 (1) (a) and apply a license for employment in Form V in the state where he is/was employed as per Sec 8 (1) (b).

Here, I would like to clarify one and all that -

(a) a Contractor cannot become a Principal Employer as per Sec 2 (b) and 2 (g) (iv) of the Act.

(b) A Principal Employer, by virtue of owning the responsibility for the supervision and control of the establishment has to take RC as per Sec 4 (1) of the Act.

(c) A Contractor, who employs five or more inter-state migrant workmen by recruiting him in one state to work for an establishment in other state, has to obtain a license (a) for recruitment in the state of recruitment and a license (b) for employment in the state of employment.

(d) Both- the Principal Employer and Contractors have to fulfill certain obligations while employing an inter-state migrant workmen.

I hope the applicability part is cleared. Healthy discussion is welcome

P. Vathiraj
Dear Saswata ji,
Hope you get where your were wrong.
I was waiting someone else to give correct answer. Mr. Vathiraj did it. Thanks to him.
We are all here to learn from each other. During my journey of more than 5 years now, I learn lot of things from every member who contributed in this forum including you Sir. I have no intension to hurt you Sir but to request all the members that one should check himself the correctness before posting. Views or interpretation of law may be different but fact of law can not be different.
I remain.....
Dear P. Vathiraj sir,
As per point no 4 mentioned by you, my question is - does the word "employee" here refer to a person employed by the CONTRACTOR or the PRINCIPAL EMPLOYER?
For example, if a principal employer does not engage any contractor, but the Migrant Workmen are directly recruited by an employee under his company's pay-roll - say an HR executive - whether the terms of employment be express/implied, then would that employee be treated as a contractor within the meaning of Sec 2 (1) (b) of the Act?
Again, if so, then should the Principal Employer be liable to the same set of compliances that any other contractor would necessarily have to oblige, to avail a valid licence, as the essence of the Act is to protect the interests of the Migrant Labourer and not those of the employer .
Thank you for your time and efforts.
Lamshwa K. Nongrum
Meghalaya.
Halo Sirs,
I am a researcher interested in looking into the utility and rationale of the Act in discussion here. Most importantly its functioning which could be aligned with the scholarly area of sociology of law!
Could you people please show me the way how to proceed with this. My tentative universe of research may be Surat District in the state of Gujarat.
Regards,
Nitin K Shahi
Kindly confirm which form is required for annual returns under ismw(central) act 1979
I want to be registered as an employment agency in banglore , i am from MP.
what are the licenses i will need and what are the authorities with whom i have to deal.
Please provide accurate information regarding the same.
Hello,
Pls visit, www.simpliance.in, free online labour law library.
Here you will get labour law experts help for your queries.
Dear Sir,
One question so many answer please i would like to inform you that dear members if you know complete knowledge in labour law please guide or otherwise dont confuse others with half baked knowledge above said answer clearly your knowledge if you guide others please go through the Act Book
Hi Friends,
I have been going through all the postings of this thread and understood many points. I want to have a clarity on one aspect though the posting was so long period.
I work in an Infra Company and our PE is a Government client. We get work order from PE and we give it to a sub contractor to finish the job. Here our sub contractor is getting manpower from different states to full fill the job of our project but the sub contractor is not engaging the workers on the condition that he is providing employment in another state as a recruiting agent. To get his job done, he is engaging from different states, in this case we as principle contractor do we need to obtain Inter State license and maintain norms of ISWC and all those registers,
Please confirm me.
Thanks,
Ravindra
Manager HR
The act is very clear, it applies to workmen migrated from one state to other state for an engagement in a particular project job.
But our regulatory authority under the Act, they interprete as " people belong to other state as the workmen under ISMW'' even though not migrated but a domicile person of the state".
In big construction project of 5-6 years duration large number of workmen are being engaged and they come from differen states. During their stay they changed their contractor for other for better rate & facilities. In many cases they live in that place, own house & do petty business.
Workmen of such category if being engaged would fall under which category?
The ISMW Act applies to (i) any establishment in which five or more inter-state migrant workmen are employed or who were employed on any day of the preceding twelve months; and (ii) every contractor who employs or who employed five or more inter-state migrant workmen on any day of the preceding twelve months.
For the purpose of the ISMW Act, an 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 an establishment.
Similiarly, the workmen of Mohan does not fall under ISMW category, still authority under the act to be made understood by the Principal Authority.
I had an experience of engaging 45000 workmen out of which 30000 were from difrent states for our mega project but without ISMW. The authority under ISMW were satisfied that there was no migration rather workmen came in search of better scope for their skill, neither contractor nor any agency induced them.
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