Delegation, Onus of Proof and Common Licences

In one line

The Centre may let a State exercise its powers, the accused must prove a person's age and prove that compliance was not reasonably practicable, and one licence may cover a factory, beedi premises and contract labour together.

In exam wording: section 116 of the Occupational Safety, Health and Working Conditions Code 2020 empowers the Central Government by notification to make its powers exercisable also by a State Government or a subordinate officer or authority; section 117 places the onus of proving that a person is not under a given age on the accused where the court finds him prima facie under it, and prescribes the order of documents a medical authority must use in certifying age; section 118 places on the person alleged to have failed to comply with a duty the onus of proving that it was not reasonably practicable or that all practicable measures were taken; and section 119 provides for a common or single licence in respect of a factory, industrial premises for beedi and cigar work and the engagement of contract workers, applied for electronically, issued within forty five days or deemed issued and auto generated, with an appeal within thirty days decided electronically within thirty days.

Why the law has these at all

Chapter XIV is the Code's residue: the provisions that belong to no Part and apply to everything. These four are the first of them, and three different ideas run through them.

Section 116 is about federalism. A Code administered by the Centre for some establishments and by the States for others needs a way of moving a power downward without an amendment.

Sections 117 and 118 are about proof, and they are the more interesting pair. Both put the burden on the person charged, and both do it for the same reason: the facts lie with him. Only the employer knows what he knew about a worker's age, and only the employer knows what it would have cost and what it would have taken to comply. A prosecution that had to disprove practicability would fail in almost every case.

Section 119 is about the paperwork of doing business. Before this Code an establishment that ran a factory, made beedi and engaged contract labour needed three separate licences from three separate authorities under three separate statutes. Section 119 lets one authority issue one licence for all of it, and adds the device this Code uses everywhere: if the authority does not decide in time, the applicant wins by default.

Some words this chapter uses

Prima facie means on the face of it, on first appearance, before the contrary is proved.

Ossification test is a medical estimate of age from the state of the bones.