In the second of a five-part series on the absence of checks and balances on the State to ensure the effective operation of labour laws, and how it led to the shameful and tragic predicament faced by thousands of migrant workers across the country during the COVID-induced nation-wide lockdown last year, K.R. SHYAM SUNDAR delves into the failure of implementing the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (the ISMW Act). It provides for an elaborate framework for formalising the employment of inter-state migrant workmen (ISMW). The law provides for the appointment of registering officers for registering the principal employers (under Section 4), employing five or more ISMW (whether or not in addition to other workmen), as well as the revocation of registration in certain cases (under Section 5).HE discussion of the non-implementation of the law relating to the unorganised workers brings me to discuss another utterly ignored law, the
Section 6 prohibits the principal employers from engaging ISMW without securing the registration certificate from the Labour Department. The licensing officers, after due investigation for grant of licenses to the contractors employing five or more ISMW (whether or not in addition to other workmen), are required to grant such licenses containing terms and conditions of employment of the ISMW (Sections 8 and 9).
It is essential to recognise that the Central Rules under the ISMW Act (the Rules), that govern the employment of ISMW, require the principal employers and contractors to provide, in the formats contained in several “administrative forms”, a rich database concerning the ISMW. The details required in these forms are set out below.
The forms and the database relating to the ISMW under the Rules
|Form||Details||Details in the Forms|
|FORM I||Application for registration of establishments employing migrant workmen by the Principal Employers|
|FORM II||Certificate of registration|
|FORM III||Register of Establishments|
|FORM IV||Application for Licence for Recruitment by the Contractor|
|FORM V||Application for Licence for Employment by the Contractor|
|FORM VI||Form of certificate by principal employer|
|FORM VII||Application for adjustment of security deposit by the contractor|
|FORM IX||Application for Renewal of Licence|
|FORM X||[Form in which to furnish particulars in respect of recruitment and employment of migrant workman/workmen as prescribed under sub-rule (1) of rule 21, to the authorities specified under the Explanation below sub-section (2) of section 12 of the ISMW Act]||Serial Number
Name of migrant workmen
Permanent home address
Name and address of the next of kin of the migrant workman
Place and address of residence in the home state
Amount of displacement allowance paid
Amount of outward journey allowance paid
Amount of wages for outward journey period paid
Nature of job required to be performed
Date of recruitment
Date of employment
Detail of rates of wages and other allowances payable
Period of contract of employment
Detail of other service conditions
|FORM XI||[Return to be sent by the contractor to the authorities specified under Explanation below sub-section (2) of section 12 of the ISMW Act]
I/We hereby declare that all wages, other dues including displacement allowances, outward return journeys allowances and wages for journeys period payable to migrant workman/workmen named above by me/us have been paid by me/us to him/them.
Signature of the Contractor or his authorised representative
Name of migrant workman
Permanent home address indicating the state
Place and address of residence in home state
Date of employment
Date on which ceased to be employed
Total days worked
Detail of rates of wages and other allowances paid.
Amount of displacement allowances paid.
Amount of outward journey allowances and wages for outward journey paid
Amount of return journey allowances and wages for return journey paid
Total wages paid.
Details of compensation and other allowances.
Amount of deduction, if any
Amount of advance, if any paid
Amount of advance, if any recovered
|FORM XII||Register of Contractors||Period of contract
Name and address of contractor.
Nature of work on contract.
Location of contract work.
Maximum number of migrant workmen employment by contractor.
|FORM XIII||Register of workmen employed by Contractor||Serial No.
Name and surname of migrant workman
Age & Sex
Nature of employment/ designation
Permanent home address of migrant workmen (Village and tahsil/Taluk and District)
Date of commencement of employment
Signature or thumb impression of migrant workmen
Date of termination of employment
Reasons for termination
|FORM XIV||Service Certificate by the Contractor|
|FORM XV||Displacement and outward journey allowance sheet|
|Form XVI||Return Journey Allowance Register|
|FORM XVII||Muster Roll|
|FORM XVIII||Register of Wages|
|FORM XIX||Register of deduction for damage or loss|
|FORM XX||Register of Fines|
|FORM XXI||Register of Advances|
|FORM XXII||Register of Overtime|
|FORM XXIII||Half-yearly return to be sent by the Contractor to the Licensing Officer|
|FORM XXIV||Annual return of Principal Employer to be sent to the Registering Officer.|
Source: Chief Labour Commissioner (Central).
The above forms and the details they seek from the principal employers and the contractors form an excellent and elaborate database of the ISMW. However inadequate in coverage and other aspects, the ISMW Act and the Rules together have put in place a detailed labour administrative framework evidenced by numerous forms, registers, and returns (see the above table).
Ineffective implementation in light of the COVID-19 pandemic
When the COVID-19 pandemic struck India and the migrants fled their host states searching for lives and livelihood security, India stared at blank papers concerning statistics on the ISMW. I searched for the Annual Reports on the Working of the ISMW Act on the Labour Bureau’s website but could not find a single annual report under it.
The Chief Labour Commissioner (CLC) office’s reply to an RTI application filed on April 21, 2020, seeking statistical information on migrant workers was, “As per the stat (sic) section is concerned, no such details are available based on requisite information.”
This response, in typical cryptic and bureaucratic fashion, speaks volumes on the implementation of the ISMW Act. At a later stage, in early June, the CLC’s office released “incomplete data” on migrant workers.
In the case of Shashank Mangal versus GNCTD (202), before the Single Judge Bench of Justice Pratibha M. Singh of the Delhi High Court, the Delhi Government in June 2020 submitted that not a single worker was registered under the ISMW Act. Further, there was no registration on the Shram Suvidha Portal, which enables online issuance of licenses and registrations under the ISMW Act.
The High Court observed that there was a “dire need” for creating a mechanism for the registration of migrant workers in Delhi.
Further, even months after witnessing painful social and economic experiences of millions of workers during the COVID-19 pandemic, the union government did not collect any data on migrant workers who lost their jobs or died due to the pandemic, as per the Union Labour Minister’s response submitted to the Parliament during the Monsoon session of 2020.
Both the National Commission on Rural Labour (NCRL 1991, Chapter 9) and the National Commission on Enterprises in the Unorganised Sector (NCEUS, 2006-10, on page 165) flayed the government for the “tardy” implementation of the ISMW Act, that is, the poor rate of formalisation of contractors and principal employers, via licenses and registrations, and the “very weak” prosecution rates. They also observed that these deficits resulted in the “persistent vulnerability” of unskilled and poor migrant workers.
The NCRL, unlike the NCEUS, made detailed and specific recommendations (on page 123) for reform of the ISMW Act (e.g., framing of a national migration policy, effective administration of law, issuance of temporary ration cards to ISMW, etc.). But none of the Governments paid attention to these recommendations or the criticism.
The Governments and their administrative agencies failed in three major ways.
First, they did not implement the ISMW Act. Second, they did reform the law or its administrative system, despite sharp observations made by the NCRL. Third, even after the woeful and heart-breaking sufferings of the migrant workers witnessed during the onslaught of the pandemic, the Governments failed to respond adequately.
This article series is an updated version of an earlier article by the author published by Newsclick last year. It has been published as a chapter in a book written by the author titled ‘Impact of COVID-19, Reforms and Poor Governance on Labour Rights in India’ (Synergy Books India, 2021).
(Dr K. R. Shyam Sundar is Professor, HRM Area, XLRI, Xavier School of Management, Jamshedpur. The views expressed are personal.)