Section 38 Occupational Safety, Health and Working Conditions Code, 2020

 Section 38 Occupational Safety, Health and Working Conditions Code, 2020: 

Special powers of Inspector-cum-Facilitator in respect of factory, mines, dock work and building or other construction work. - (1) Without prejudice to the other powers of an Inspector-cum-Facilitator in this Code, an Inspector-cum-Facilitator,-

(A) shall have the following special powers in respect of a factory, namely:-


(a) where it appears to the Inspector-cum-Facilitator that conditions in a factory or part thereof are such that they may cause serious hazard or imminent danger by way of injury or death to the persons employed therein or to the general public in the vicinity, he may, by order in writing to the occupier of the factory, state the particulars in respect of which he considers the factory or part thereof to be the cause of such serious hazard or imminent danger and prohibit such occupier from employing any person in the factory or any part thereof other than the minimum number of persons necessary to attend to the minimum tasks till the hazard or danger is removed;


(b) any order issued by the Inspector-cum-Facilitator under sub-clause (a) shall have effect for a period of three days until extended by the Chief Inspector-cum-Facilitator by a subsequent order;


(c) any person aggrieved by an order of the Inspector-cum-Facilitator under sub-clause (a), and the Chief Inspector-cum-Facilitator under sub-clause (b), shall have the right to appeal to the High Court;


(d) any person whose employment has been affected by an order issued under sub-clause (a), shall, without prejudice to the rights of the parties under the Industrial Disputes Act, 1947(14 of 1947), be entitled to wages and other benefits and it shall be the duty of the occupier to provide alternative employment to him wherever possible in such manner as may be prescribed by the appropriate Government;


(B) shall have the following special powers in respect of mines, namely:-


(a) if, in respect of any matter for which no express provision is made by or under this Code, it appears to the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator that any mine or part thereof or any matter, thing or practice in or connected with the mine, or with the control, supervision, management or direction thereof, is dangerous to human life or safety or is defective so as to threaten or tend to cause, the bodily injury of any person, he may give notice in writing thereof to the employer of the mine stating therein the particulars in respect of which he considers the mine or part thereof or the matter, thing or practice to be dangerous or defective and require the same to be remedied within such time and in such manner as he may specify in the notice;


(b) where the employer of a mine fails to comply with the terms of a notice given under sub-clause (a) within the period specified therein, the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator may, by order in writing, prohibit the employment in or about the mine or any part thereof of any person whose employment is not in his opinion reasonably necessary for securing compliance with the terms of the notice;


(c) without prejudice to the provisions contained in sub-clause (a), the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator may, by order in writing addressed to the employer of a mine, prohibit the extraction or reduction of pillars or blocks of minerals in the mine or part thereof, if, in his opinion, such operation is likely to cause the crushing of pillars or blocks of minerals or the premature collapse of any part of the workings or otherwise endanger the mine or the life or safety of persons employed therein or if, in his opinion, adequate provision against the outbreak of fire or flooding has not been made by providing for the sealing off and isolation of the part of the mine in which such operation is contemplated and for restricting the area that might be affected by fire or flooding;


(d) if the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator authorised, by general or special order in writing by the Chief Inspector-cum- Facilitator, is of opinion that there is urgent and immediate danger to the life or safety of any person employed in any mine or part thereof, he may, by order in writing containing a statement of the grounds of his opinion, prohibit until he is satisfied that the danger is removed, the employment in or about the mine or any part thereof of any person whose employment is not in his opinion reasonably necessary for the purpose of removing the danger;


(e) every person whose employment is prohibited under sub-clause (b) or sub-clause (d) shall be entitled to payment of full wages for the period for which he would have been, but for the prohibition, in employment and the employer shall be liable for payment of such full wages of that person:


Provided that the employer may instead of paying such full wages provide such person with an alternative employment at the same wages which such person was receiving in the employment which was prohibited;

(f) where a notice has been given under sub-clause (a) or an order is made under sub-clause (b) or sub-clause (c) or sub-clause (d) by an Inspector-cum- Facilitator, the employer of the mine may, within ten days after the receipt of the notice or order, as the case may be, appeal against the same to the Chief Inspector-cum-Facilitator who may confirm, modify or cancel the notice or order;


(g) the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator sending a notice under sub-clause (a) or making an order under sub-clause (b) or sub-clause (c) or sub-clause (d) and the Chief Inspector-cum-Facilitator making an order (other than an order of cancellation in appeal) under sub-clause (f) shall forthwith report the same to the Central Government;


(h) if the employer of the mine objects to a notice sent under sub-clause (a) by the Chief Inspector-cum-Facilitator or the Inspector-cum- Facilitator or to an order made by the Chief Inspector-cum-Facilitator or the Inspector-cum-Facilitator under sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (f), as the case may be, he may, within twenty days after the receipt of the notice containing the requisition or of the order or after the date of the decision on appeal, as the case may be, send his objection in writing stating the grounds thereof to the Central Government which shall, ordinarily within a period of one month from the date of receipt of the objection, decide the matter;


(i) every notice under sub-clause (a), or order under sub-clause (b) or sub-clause (c) or sub-clause (d) or sub-clause (f), to which objection is made under sub-clause (h), shall be complied with, pending the objection with the concerned Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator of the mine, for the decision of the Central Government:


Provided that the Central Government may, on the application of the employer, suspend the operation of a notice under sub-clause (a), pending its decision on the objection;

(j) nothing in this section shall affect the powers of a magistrate under section 144 of the Code of Criminal Procedure, 1973(2 of 1974);


(k) where in respect of any matter relating to safety of mine for which express provision is made by or under this Code, the employer of a mine fails to comply with such provisions, the Chief Inspector-cum-Facilitator may give notice in writing requiring the same to be complied with within such time as he may specify in the notice or within such extended period of time as he may, from time to time, specify thereafter;


(l) where the employer fails to comply with the terms of a notice given under sub-clause (k) within the period specified in such notice or within the extended period of time specified under that sub-clause, the Chief Inspector-cum-Facilitator may, by order in writing, prohibit the employment, in or about the mine or any part thereof, of any person whose employment is not, in his opinion, reasonably necessary for securing compliance with the terms of the notice;


(m) every person whose employment is prohibited under sub-clause (l), shall be entitled to payment of full wages for the period for which he would have been, but for the prohibition, in employment, and the owner, agent or manager referred to in section 67 shall be liable for payment of such full wages of that person:


Provided that the employer may, instead of paying such full wages, provide such person with an alternative employment at the same wages which such person was receiving in the employment which was prohibited under sub-clause (l);

(n) the provisions of sub-clauses (g), (h) and (i) shall apply in relation to a notice issued under sub-clause (k) or an order made under sub-clause (l) as they apply in relation to a notice or an order under sub-clause (b);


(o) the Chief Inspector-cum-Facilitator may, for reasons to be recorded in writing, reverse or modify any order passed by him under this Code or under any regulation, rule or bye-law made thereunder in relation to mine;


(p) no order prejudicial to the owner, agent or manager of a mine shall be made under this section unless such owner, agent or manager has been given a reasonable opportunity of making representation;


(q) the Central Government may reverse or modify any order passed by Chief Inspector-cum-Facilitator under this Code or under any regulation, rule or bye-laws thereunder in relation to mine;


(C) shall have the following special powers in respect of dock work namely:-


(a) if it appears to an Inspector-cum-Facilitator that any place where any dock work is being carried on is in such a condition that it is dangerous to life, safety or health, of workers employed in dock work, he may, in writing, serve on the employer, an order prohibiting any dock work, in such place, until measures have been taken to remove the cause of the danger to his satisfaction;


(b) an Inspector-cum-Facilitator after serving an order under clause (a) shall endorse a copy thereof to the Chief Inspector-cum-Facilitator who may modify or cancel the order without waiting for an appeal;


(c) any person aggrieved by an order under clause (a) or clause (b) may, within fifteen days from the date on which the order is communicated to him, prefer an appeal to the Chief Inspector-cum-Facilitator or where such order is by the Chief Inspector-cum-Facilitator, to the Central Government and the Chief Inspector-cum-Facilitator or the Central Government shall, after giving the appellant an opportunity of being heard, dispose of the appeal within sixty days:


Provided that the Chief Inspector-cum-Facilitator or the Central Government may entertain the appeal after the expiry of the said period of fifteen days, if he or it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time:

Provided further that an order under clause (a) or an order modified under clause (b) shall be complied with, pending the decision of the Chief Inspector-cum-Facilitator or the Central Government.

(2) Without prejudice to the other powers of an Inspector-cum-Facilitator elsewhere in this Code,-

(a) if it appears to the Chief Inspector-cum-Facilitator or Inspector-cum-Facilitator that any site or place at which any building or other construction work is being carried on, is in such condition that it is dangerous to life, safety or health of building workers or the general public, he may, in writing serve, on the employer of building workers working at such site or place or on the employer of the establishment in which such site or place is situated or on the person in charge of such site or place, an order prohibiting any building or other construction work at such site or place until measures have been taken to remove the cause of the danger to his satisfaction;


(b) an Inspector-cum-Facilitator serving an order under clause (a) shall endorse a copy of the order to the Chief Inspector-cum-Facilitator;


(c) such prohibition order made by the Inspector-cum-Facilitator shall be complied with by the employer forthwith.


(3) Any person aggrieved by an order under clause (a) of sub-section (2), may, within fifteen days from the date on which the order is communicated to him, prefer an appeal to the Chief Inspector-cum-Facilitator or where such order is by the Chief Inspector-cum- Facilitator, to the appropriate Government and the Chief Inspector-cum-Facilitator or the appropriate Government, as the case may be, shall, after giving the appellant an opportunity of being heard, dispose of the appeal within sixty days:

Provided that the Chief Inspector-cum-Facilitator or the appropriate Government may, entertain the appeal after the expiry of the said period of fifteen days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time:

Provided further that the order under clause (a) of sub-section (2), shall be complied with, subject to the decision of the Chief Inspector-cum-Facilitator or the appropriate Government as the case may be.


Supreme Court of India Important Judgments And Leading Case Law Related to Section 38 Occupational Safety, Health and Working Conditions Code, 2020 ( in Hindi ) :  Not Yet Available


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