Inspector-cum-Facilitators: Appointment and Powers

Section 34(4). The scheme may be designed taking into account, among other things, the assignment of a unique number to each establishment, which shall be the same as its registration number under section 3, a unique number to each Inspector-cum-Facilitator, and one to each inspection.

The single identity thread runs through the Code: section 3 registration number, section 34(4) inspection number, section 33 register. Registration, inspection and record all key off the same number.

Section 35: the fourteen powers

Subject to rules, an Inspector-cum-Facilitator may:

Four of these are worth naming in an answer because they have no counterpart in the Social Security Code.

Clause (iii), inquiry into a dangerous occurrence "whether resulting in bodily injury, disability or death or not". The officer investigates the near miss, which is consistent with section 11's reporting duty.

Clause (viii), freezing the scene. After an accident an employer's first instinct is to tidy up. This power stops that.

Clause (x), sampling the air. Occupational disease is usually invisible, and an air sample is the only evidence of it.

Clause (xi), taking possession of a dangerous article. He may dismantle or test it and detain it, but expressly not so as to damage or destroy it unless that is necessary for the purposes of the Code.

Note the thresholds. Entry under clause (i) needs the place to be used, or the officer to have reason to believe it is used, as a workplace. Search and seizure under clause (vii) needs reason to believe an offence has been committed.

Section 35(2), refusal is an offence. Any person required to produce a document or give information is deemed legally bound to do so within the meaning of sections 175 and 176 of the Indian Penal Code 1860.

Section 35(3), search and seizure. The Code of Criminal Procedure 1973 applies, so far as may be, to a search or seizure under sub-section (1) as it applies to one under a warrant issued under section 94 of that Code.

Section 36: the District Magistrate

The District Magistrate shall, within the local limits of his jurisdiction, exercise such powers and duties of the Inspector-cum-Facilitator in respect of mines as the Central Government prescribes.

A short section with a practical reason. A mine may be far from any labour office, and an emergency there cannot wait. The District Magistrate is the nearest executive authority with the standing to act, and section 36 lets the Central Government give him the officer's powers for mines.

Note the limits: mines only, within his local limits, and only such powers as the Central Government prescribes.

A worked example

An explosion at a chemical plant injures two workers. An Inspector-cum-Facilitator arrives the next morning.

May he enter? Yes, under section 35(1)(i), and he may bring persons in Government or local authority service, or an expert, to assist him.

May he inquire? Yes, under clause (iii), into any accident or dangerous occurrence, whether resulting in bodily injury, disability or death or not, and he may take statements on the spot.

The occupier has begun clearing the debris. The officer may direct that the premises or anything lying in them be left undisturbed, generally or in particular respects, for so long as is necessary for the inspection or inquiry: clause (viii).

He wants to know what was in the air. He may take samples of articles or substances and of the air of the atmosphere in or in the vicinity of the premises, in the prescribed manner: clause (x).

He wants a record of the scene. He may take measurements, photographs and videographs and make recordings: clause (ix).

A pressure vessel looks to have caused the explosion. Because it appears to him as having caused danger to the health and safety of the employees, he may direct it to be dismantled or subjected to a process or test, and take possession of it and detain it for so long as is necessary, but not so as to damage or destroy it unless that is necessary for the purposes of the Code: clause (xi).

The occupier refuses to produce the maintenance register. He is deemed legally bound to produce it within the meaning of sections 175 and 176 of the Indian Penal Code 1860: section 35(2).

The officer seizes the register. The Code of Criminal Procedure 1973 applies to that seizure as it would to a seizure under a section 94 warrant: section 35(3).

The occupier asks what he should have done differently. Answering is part of the officer's job: clause (v) makes it a power to supply information and sensitise employers and workers about the Code and compliance with it.

A prosecution follows. The officer may prosecute, conduct or defend the proceeding before the court: clause (xiii).

Now change the workplace to a remote mine. An emergency arises and no Inspector-cum-Facilitator is within reach. The District Magistrate may exercise, within his local limits, such powers and duties of the Inspector-cum-Facilitator in respect of mines as the Central Government has prescribed: section 36.

How was this establishment selected for inspection in the first place? Under the inspection scheme notified under section 34(3)(i), which may provide for the randomised selection of both the establishment and the Inspector-cum-Facilitator: section 34(3)(ii).

What this does NOT mean

The officer is not only an inspector. Clause (v) makes supplying information and sensitising employers and workers one of his powers.

Entry is not unconditional. The place must be used, or he must have reason to believe it is used, as a workplace.

Search and seizure is not at large. It needs reason to believe an offence has been committed, and the Code of Criminal Procedure applies to it.

Clause (xi) does not permit destruction. The article may be dismantled, tested and detained, but not damaged or destroyed unless that is necessary for the purposes of the Code.

Section 36 does not make the District Magistrate a general labour authority. He has such powers of the Inspector-cum-Facilitator in respect of mines as the Central Government prescribes, within his local limits.

Limits and criticism

The inspection scheme is entirely delegated. Section 34(3) says the appropriate Government may notify one, so the randomisation which is the reform depends on an executive act.

"Special circumstances" survive randomisation. Section 34(3)(i) preserves provisions for assigning inspection and calling for information outside the web based system, which is necessary but is also the route by which targeted inspection returns.

Clause (viii) states no maximum period. Premises may be required to be left undisturbed for so long as is necessary, with no outer limit and no appeal stated in the section.

Section 36 gives a magistrate technical safety powers over mines, and the Code says nothing about the expertise required to exercise them.

Quick revision

• Section 34(1) and (2): the appropriate Government appoints Inspector-cum-Facilitators for a specified jurisdiction, who conduct inspections under the scheme.
• Section 34(3): a notified inspection scheme, web based, catering for special circumstances; and randomised selection of the establishment AND the Inspector-cum-Facilitator.
• Section 34(4): unique numbers for each establishment, being its section 3 registration number, for each officer and for each inspection.
• Section 35(1), fourteen powers: enter with assistance or an expert; inspect and examine; inquire into an accident or dangerous occurrence, injury or not; examine a plantation's crops and workers; supply information and sensitise; require production of documents; search, seize or copy on reason to believe an offence; direct premises left undisturbed; measurements, photographs and videographs; samples of substances and of the air; dismantle, test, take possession of and detain a dangerous article, not destroying it unless necessary; show cause notice; prosecute, conduct or defend; and other prescribed powers.
• Section 35(2): sections 175 and 176 of the Indian Penal Code 1860 apply to refusal. Section 35(3): the Code of Criminal Procedure 1973 applies to search and seizure as under a section 94 warrant.
• Section 36: the District Magistrate exercises such powers and duties in respect of mines as the Central Government prescribes, within his local limits.

Test yourself

1. Who appoints an Inspector-cum-Facilitator under this Code, and who under the Code on Social Security? Under section 34(1) of this Code, the appropriate Government. Under section 122(1) of the Code on Social Security, the Central Government for Chapters III and IV and the appropriate Government for the rest.

2. What is randomised under section 34(3)(ii), and how does that differ from the other Code? Both the establishment and the Inspector-cum-Facilitator are selected at random. Section 122(3) of the Code on Social Security provides for randomised selection of inspection but does not in terms randomise the officer.

3. Name any five powers of an Inspector-cum-Facilitator under section 35. Any five of: entering a workplace with assistance or an expert; inspecting and examining the establishment, premises, plant, machinery or articles; inquiring into an accident or dangerous occurrence whether or not it caused injury and taking statements; examining a plantation's crops or workers; supplying information and sensitising employers and workers; requiring production of registers and documents; searching, seizing or copying documents where he has reason to believe an offence has been committed; directing premises to be left undisturbed; taking measurements, photographs and videographs; taking samples of substances and of the air; dismantling, testing, taking possession of and detaining a dangerous article; issuing a show cause notice; and prosecuting, conducting or defending proceedings.

4. May the officer investigate an event in which nobody was hurt? Yes. Clause (iii) of section 35(1) empowers him to inquire into any accident or dangerous occurrence whether resulting in bodily injury, disability or death or not.

5. What may he do with a machine he believes caused the danger? Under clause (xi) he may direct it to be dismantled or subjected to any process or test, and take possession of it and detain it for so long as is necessary for the examination, but not so as to damage or destroy it unless that is necessary for carrying out the purposes of the Code.

6. What powers does a District Magistrate have under the Code? Within the local limits of his jurisdiction, such powers and duties of the Inspector-cum-Facilitator in respect of mines as the Central Government may prescribe: section 36.