The debate is indeed taking interesting twists and turns.As the learned member Sh.Harsh Kumar Mehta pointed out, it is not possible to give a specific reply from a legal perspective to the member's query which is whether a consultant is legally eligible to sign a compliance document., without knowing the nature of the compliance document and the context of the query.Cautioning the readers that what I say here is not a reply to the query but an examination of the scope of compliance management in order to find a way to connect the dots in this compliance puzzle, I may be permitted to say that the one line query .stirred up several lines of thoughts in me to grapple with the issue.
Having said that, I do not see any problem if an establishment engages a consultant to advise them on compliances and assist them in preparing the returns registers and records etc required under various labour laws.and issue a certificate to the employer that they are complied in full.This is only an internal arrangement between the employer and the consultant.
Though the labour laws pin the responsibility on the employer/principal employer for fulfilling all compliances under various labour laws as seen from various/returns and registers, they do not restrain him from delegating this responsibility to a representative of his (with the exception of occupiers or owners with regard to some under Factories Act).The question is whether the employer can choose a consultant or a fixed term employee to delegate this responsibility.
Now coming to signing compliance documents purported to be submitted to government authorities under various Acts.The responsibility for compliance , in my view, does not begin and end with signing a compliance document, certifying that all is well. It is not a responsibility merely limited to submitting returns and maintaining registers but extending to actually implementing the obligations under various labour laws in day to day administration of labour welfare like adhering to working hours, muster roll management, over time, leave management,payment of wages, remittance of statutory contributions on time,displaying various notices, First Aid Boxes, cleanliness,fire equipment, amenities like water facilities,crech,canteen, accident reporting and a plethora of compliances on safety and health under Factories Act.Therefore any one who certifies to government that all these obligations are complied , must be some one who is involved with it directly on regular and day to day basis. If a consultant is directly involved with it on day to day basis, he must be stepping into the shoes of a regular employee. Compliances like deduction of statutory contributions from wages can be made by the officers of the company who are authorized to pay wages but not consultants.
A look at penal provisions of various laws also offers some clues to the tangle.Co-existing with the responsibility for compliance is also the accountability for breach of them. For any breach, first a complaint has to be filed and the complaint shall name the person who is responsible for the breach and such person shall be one who is actually in charge of the responsibility and involved in day to day affairs of labour administration . If the consultant by signing any compliance document to be submitted to government authorities or any correspondence there of, presents himself before the government authorities as some who has control and knowledge of the affairs and is likely to attract the accountability for breach of the provisions under various Acts. In such case it is doubtful whether a consultant agrees to accept this responsibility.If so, he is acting more like an employee than a consultant.
Though an employer can authorize a consultant to sign compliance document as there does not seem to be a legal bar, the member by his query probably hints at its seeming incompatibility with penal provisions of the Acts, apart from the risk of receiving demands from such consultants for a status of permanent employee
B.Saikumar
HR & Labour relations Consulatant