Special Officers for Mines and Medical Officers

The proviso. Where in the opinion of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator an emergency exists, he may by order in writing authorise such a person to enter the mine for any of those purposes without giving any such notice.

Four things to hold, and they are the whole section.

Who. Not the Inspector-cum-Facilitator himself, but any person in the service of the Government whom he specially authorises in writing. Surveying is a technical skill and the Code does not assume the officer has it.

For what. Surveying, levelling or measuring the mine or its output. Not a general inspection; section 35 covers that.

Notice. Not less than three days, to the manager.

When. At any time by day or night, which is the point of the section. The measurement is not confined to working hours.

And the proviso removes the notice entirely where an emergency exists, on a written order of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator.

Section 42: medical officers

Section 42(1), appointment. The appropriate Government may appoint medical practitioners having prescribed qualifications to be medical officers for the purposes of the Code, in relation to factories, mines, plantations, motor transport undertakings and any other prescribed establishment.

The proviso, and this is the provision to quote. The medical officers so appointed shall, before entering into their office, disclose to the appropriate Government their interest in the concerned establishment.

This is the Code's only express conflict of interest rule. A medical officer who certifies that a worker is fit for a dangerous process, or that an illness is not caused by the process, is making a judgment the employer has a direct financial interest in. The Code does not disqualify a doctor who has an interest; it requires him to declare it before taking office, and leaves the appropriate Government to decide what to do about it.

Section 42(2), the three duties. The medical officer shall:

• (a) the examination and certification of workers in a mine or factory, or in such other establishment engaged in such dangerous occupations or processes as may be prescribed;
• (b) the exercise of such medical supervision for any factory, mine, plantation, motor transport undertaking and other prescribed establishment where cases of illness have occurred which it is reasonable to believe are due to the nature of any process carried on or other conditions of work prevailing there;
• (c) the examination and certification of an adolescent for ascertaining his fitness for employment in a factory, plantation, motor transport undertaking or other prescribed establishment, in any work which is likely to cause injury to his health.

The three duties are worth distinguishing because they are three different jobs.

Clause (a) is certification of the individual worker for dangerous work.

Clause (b) is supervision of a workplace, triggered not by an individual's illness but by cases of illness which it is reasonable to believe are due to the process or the conditions of work. It is the investigative limb.

Clause (c) is protection of the young. An adolescent may not be put to work likely to cause injury to his health without a medical officer certifying his fitness.

Do not confuse the medical officer under section 42 with the qualified medical practitioner under section 12(2). The section 42 officer is appointed by the appropriate Government and performs statutory functions. The section 12(2) practitioner is any doctor who happens to attend a person who is or has been employed, and who must report a Third Schedule disease to the Chief Inspector-cum-Facilitator without delay on pain of a penalty up to ten thousand rupees.

A worked example

An Inspector-cum-Facilitator suspects that a colliery has been extracting pillars it was ordered not to touch.

Can he simply measure the workings himself? He has broad powers under section 35, but surveying a mine is a technical exercise. Under section 41 he may, by special order in writing, authorise a person in the service of the Government to enter and survey, level or measure the mine or its output.

What notice must be given? Not less than three days, to the manager of the mine.

When may the surveyor enter? At any time by day or night. The section says so expressly, so the colliery cannot confine him to a shift when the workings are presentable.

A roof fall makes the matter urgent. Where in the officer's opinion an emergency exists, he may by order in writing authorise entry without any notice: the proviso.

Now a different problem. Three workers at a chemical factory develop the same respiratory illness.

Who investigates the medical side? A medical officer appointed under section 42(1). His duty under clause (b) is the exercise of medical supervision where cases of illness have occurred which it is reasonable to believe are due to the nature of a process carried on or other conditions of work.

The factory proposes to put a seventeen year old on the same process. Under clause (c) the medical officer must examine and certify the adolescent for his fitness for employment in work likely to cause injury to his health. The adolescent's hours are separately governed by section 25(4) and his leave rate by section 32(1)(ii).

The medical officer holds shares in the factory. Section 42 does not disqualify him, but the proviso to section 42(1) required him, before entering into his office, to disclose to the appropriate Government his interest in the concerned establishment.

The workers' own doctor treats one of them and believes the illness is a Third Schedule disease. That is a different duty altogether. Under section 12(2) he must without delay send a written report to the office of the Chief Inspector-cum-Facilitator, and failure is punishable with a penalty which may extend to ten thousand rupees under section 12(3).

What this does NOT mean

Section 41 is not a general power of inspection. It is confined to surveying, levelling or measuring a mine or its output; general inspection is section 35.

The surveyor need not be the Inspector-cum-Facilitator. He is any person in the service of the Government specially authorised in writing.

Three days' notice is not always required. The proviso dispenses with it where an emergency exists, on a written order.

A medical officer with an interest is not disqualified. He must disclose it to the appropriate Government before entering office.

A section 42 medical officer is not the same as a section 12(2) practitioner. The first is appointed and performs statutory duties; the second is any attending doctor with a reporting duty and a penalty attached.

Limits and criticism

Section 42's proviso requires disclosure and nothing more. The Code does not say what the appropriate Government must do with the disclosure, nor forbid the appointment of a doctor whose interest is substantial.

Three days' notice under section 41 may be enough to change what is measured, which is why the emergency proviso matters, and it depends on the officer forming the view that an emergency exists.

The qualifications of a medical officer are prescribed, not stated, so the standard of the person certifying fitness for dangerous work is set by rules.

Neither section says anything about the worker's consent to examination under section 42, which is dealt with, if at all, through the standards under section 18(2)(b)(iv).

Quick revision

• Section 41: a person in Government service, authorised by special order in writing of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator, may survey, level or measure a mine or its output, after not less than three days' notice to the manager, at any time by day or night; no notice where an emergency exists, on a written order.
• Section 42(1): the appropriate Government may appoint medical practitioners with prescribed qualifications as medical officers for factories, mines, plantations, motor transport undertakings and other prescribed establishments. Proviso: they must disclose their interest in the concerned establishment to the appropriate Government before entering office.
• Section 42(2), three duties: (a) examination and certification of workers in a mine or factory or other prescribed establishment in dangerous occupations or processes; (b) medical supervision where cases of illness occur which it is reasonable to believe are due to the process or conditions of work; (c) examination and certification of an adolescent for fitness for employment in work likely to cause injury to his health.

Test yourself

1. Who may survey a mine under section 41, and on whose authority? Any person in the service of the Government, duly authorised by a special order in writing of the Chief Inspector-cum-Facilitator or of an Inspector-cum-Facilitator.

2. What notice is required, and when may it be dispensed with? Not less than three days' notice to the manager of the mine. The proviso permits entry without notice where, in the opinion of the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator, an emergency exists, on an order in writing.

3. At what times may the survey be carried out? At any time by day or night.

4. What must a medical officer do before taking office? Disclose to the appropriate Government his interest in the concerned establishment: the proviso to section 42(1).

5. State the three duties of a medical officer. The examination and certification of workers in a mine or factory or other prescribed establishment engaged in dangerous occupations or processes; the exercise of medical supervision where cases of illness have occurred which it is reasonable to believe are due to the nature of a process carried on or other conditions of work; and the examination and certification of an adolescent to ascertain his fitness for employment in work likely to cause injury to his health.

6. Distinguish a medical officer under section 42 from a qualified medical practitioner under section 12(2). A medical officer is appointed by the appropriate Government under section 42(1), holds prescribed qualifications, must declare his interest before taking office, and performs the three statutory duties in section 42(2). A qualified medical practitioner under section 12(2) is any doctor attending a person who is or has been employed in an establishment, who must without delay report a suspected Third Schedule disease to the office of the Chief Inspector-cum-Facilitator, on pain of a penalty up to ten thousand rupees under section 12(3).