The Right to Warn of Imminent Danger, and Appeals

Some words this chapter uses

Reasonable apprehension is a belief a reasonable person in that position would hold; it is not certainty and it does not require the worker to be right.

Imminent danger is danger that is about to happen, not a general risk.

Safety Committee is the committee under section 22, which the appropriate Government may require an employer to constitute, with equal representation of employer and workers.

Occupier, agent, manager or person in charge are the four persons to whom the warning may be given.

Final in section 89(3) means the Inspector-cum-Facilitator's decision on the existence of imminent danger is not open to be reopened under that section.

Confidential position in section 91(1)(a) is not defined.

Section 89: the right to warn

Section 89(1), who may warn, about what, and to whom. Where the workers employed in any factory engaged in a hazardous process have reasonable apprehension that there is a likelihood of imminent danger to their lives or health due to any accident, they may:

• bring it to the notice of the occupier, agent, manager or any other person who is in charge of the factory or the process concerned, either directly or through their representatives in the Safety Committee; and
• simultaneously bring it to the notice of the Inspector-cum-Facilitator.

Section 89(2), the duty if he agrees. It is the duty of the occupier, agent, manager or person in charge to take immediate remedial action if he is satisfied about the existence of such imminent danger, and to send a report forthwith of the action taken to the Inspector-cum-Facilitator.

Section 89(3), the duty if he does not agree, and this is the important sub-section. If he is not satisfied about the existence of any imminent danger as apprehended by the workers, he shall nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision on the question of the existence of such imminent danger shall be final.

The scheme is worth setting out as three steps, because that is how it should be answered.

Step one: the warning, given twice. To the person in charge, and at the same time to the inspector.

Step two: the person in charge decides. If satisfied, immediate remedial action and a report forthwith of what he did. Note both words: the action is immediate, and the report is forthwith, so his own judgment is put on the record.

Step three: disagreement does not end it. If he is not satisfied he cannot simply dismiss the complaint. He must refer it forthwith to the Inspector-cum-Facilitator, and the inspector decides, finally.

Four limits should be stated honestly.

It applies only in a factory engaged in a hazardous process. A worker in an ordinary factory, a mine or a building site has no right under this section.

It confers no right to stop work and no right to refuse to work. Compare the general duty of an employee under section 13 and the employer's duties under section 6; nothing in section 89 entitles a worker to leave the process while the question is decided.

It confers no protection against victimisation. The Code protects a complainant's identity in a different context, under section 39(3), where information is given to the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator. Section 89 itself says nothing about protecting the worker who raises the alarm.

And nothing is said about what the inspector must do. His decision on the existence of imminent danger is final, but section 89 does not say he must act on it. His powers to act come from sections 35 and 38.

Section 90: appeal against an Inspector-cum-Facilitator's order

The appropriate Government may prescribe provisions providing the manner in which and the appropriate authority to whom the manager or occupier of the factory may make appeal against the order of the Inspector-cum-Facilitator, and the procedure for disposing of such appeals.

The whole of the section is a rule making power. Three points follow.

The appeal is the employer's. The section names the manager or occupier. No worker has an appeal against an order, or against a refusal to make one.

Nothing is stated in the Code: not the period, not the authority, not the procedure, not the remedies. Compare section 52 in the contract labour Part, which states thirty days from communication, allows condonation for sufficient cause and requires disposal within thirty days; and section 38(3), which gives fifteen days against a site prohibition order in building work and names the authority.

Until rules are made there is no appeal at all under this section against a factory inspector's order.

Section 91: the power to exempt

Section 91(1)(a), the supervisory and confidential exclusion. The appropriate Government may make rules specifying the persons who hold positions of supervision or management, or are employed in a confidential position in a factory, or empowering the Chief Inspector-cum-Facilitator to declare any person, other than a person so specified, as a person holding such a position or so employed if in his opinion he does; and the provisions of this Code shall not apply to any person so defined or declared.

Read the last clause slowly, because it is very wide. It is not an exemption from the hours provisions. The provisions of this Code shall not apply to that person at all.

Section 91(1)(b), exemption of workers. Rules may provide, in respect of any worker or class of workers in any establishment or class of establishments, for the exemption, the extent of the exemption, and the conditions subject to which it may be given.

Section 91(2), exemption by order. The appropriate Government or the Chief Inspector-cum-Facilitator may, by order in writing, exempt, subject to such conditions as it may deem expedient, any or all of the adult workers in any establishment or class of establishments.

Three features to notice, and each is a fair criticism.

Sub-section (2) does not say from what. It says the authority may exempt any or all of the adult workers, without naming the provisions exempted, whereas sub-section (1)(b) at least requires the rules to state the extent of the exemption.

It may be done by a single officer. The Chief Inspector-cum-Facilitator may exempt by order in writing, without a notification, without consultation and without any stated ground.

Only adult workers may be exempted under sub-section (2), which is the one limit on its face.

And there is a relationship with the definition of "worker" that should be noticed. Section 2(1)(zzl) already excludes from the meaning of worker a person employed mainly in a managerial or administrative capacity, and a supervisor drawing more than eighteen thousand rupees a month. Section 91(1)(a) goes further: it removes the person from the Code, not merely from the definition of worker, and it extends to a confidential position, which the Code nowhere defines.

A worked example

Konkan Petrochem runs a factory engaged in a hazardous process. On a night shift, three operators notice that a flange on a solvent line is weeping and that the smell in the bay has changed. They believe an escape is about to happen.

What may they do? Under section 89(1), having a reasonable apprehension that there is a likelihood of imminent danger to their lives or health due to an accident, they may bring it to the notice of the occupier, agent, manager or the person in charge of the factory or of the process, directly or through their representatives in the Safety Committee, and simultaneously bring it to the notice of the Inspector-cum-Facilitator.

Must they be right? No. The section requires a reasonable apprehension of a likelihood of imminent danger, not proof of it.

The night manager agrees with them. Then under section 89(2) it is his duty to take immediate remedial action and to send a report forthwith of the action taken to the Inspector-cum-Facilitator.

Suppose he does not agree. He may not simply refuse. Under section 89(3) he must nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision on the question of the existence of such imminent danger shall be final.

May the operators walk off the line while the question is decided? Section 89 gives no such right. It gives a right to warn and to have the question decided, and no right to stop work or refuse it.

The Inspector-cum-Facilitator decides there is imminent danger. What then? That decision is final on the question of existence. What he can do about it comes from elsewhere: his general powers under section 35 and his special powers under section 38.

One of the three operators is transferred to a distant unit the following week. Section 89 says nothing about victimisation. The nearest protection in the Code is section 39(3), which protects the source of information given to the Chief Inspector-cum-Facilitator or an Inspector-cum-Facilitator.

Konkan Petrochem is aggrieved by an order the Inspector-cum-Facilitator makes about the plant. Under section 90 the appropriate Government may prescribe the manner, the appropriate authority and the procedure for an appeal by the manager or occupier. Until those rules exist, this section provides no appeal, and no worker has an appeal under it in any event.

The company asks whether its shift superintendents are covered by the Code. Under section 91(1)(a) the appropriate Government may make rules specifying the persons holding positions of supervision or management or employed in a confidential position in a factory, or empowering the Chief Inspector-cum-Facilitator to declare a person to be such, and the provisions of the Code shall not apply to a person so defined or declared.

And its adult operators? Under section 91(2) the appropriate Government or the Chief Inspector-cum-Facilitator may, by order in writing, and subject to such conditions as it deems expedient, exempt any or all of the adult workers in the establishment or class of establishments.

What this does NOT mean

Section 89 does not apply in every factory. It applies to a factory engaged in a hazardous process.

It does not require the workers to be right. A reasonable apprehension of a likelihood of imminent danger is enough to set it in motion.

It does not give a right to stop or refuse work.

A warning to the occupier alone is not the section. The notice to the Inspector-cum-Facilitator is simultaneous.

Disagreement by the person in charge does not end the matter. He must refer it forthwith, and the inspector's decision on the existence of the danger is final.

Section 90 does not create an appeal. It empowers rules to provide one, for the manager or occupier.

Section 91(1)(a) is not a working hours exemption. The provisions of this Code do not apply to a person so defined or declared.

Section 91(2) is not confined to a class defined in advance. It permits exemption of any or all of the adult workers of an establishment by an order in writing.

Limits and criticism

The right to warn is confined to hazardous process factories. The workers most likely to see an imminent danger and least likely to be heard are on building sites and in mines, and neither is within section 89.

There is no protection for the worker who uses it. A right to raise an alarm that carries no protection against transfer or dismissal is a right most workers will not use. Section 39(3) protects the source of information given to an inspector, but section 89 does not import it, and the section requires the warning to be given to the employer as well.

There is no right to withdraw from the danger. International practice, and the logic of the section, would allow a worker to remove himself from imminent danger without penalty while the question is decided. The Code does not say so.

The inspector's decision is final on existence but nothing follows automatically. The section ends where it should begin: it does not require him to inspect, to order or to prohibit.

Section 90 states nothing at all. The appeal against a factory inspector's order, unlike the appeals in sections 38(3), 52 and 75, has no period, no authority and no procedure on the face of the Code.

Section 91 is the widest exemption power in the Part. Sub-section (1)(a) removes a person from the Code entirely on the strength of a rule or the opinion of the Chief Inspector-cum-Facilitator, and extends to a confidential position which the Code nowhere defines. Sub-section (2) lets a single officer exempt any or all of the adult workers of an establishment by order in writing, without stating the provisions exempted, without consultation, and without any stated ground.

Quick revision

• Section 89(1): workers in a factory engaged in a hazardous process with a reasonable apprehension of a likelihood of imminent danger to their lives or health due to any accident may notify the occupier, agent, manager or person in charge, directly or through their Safety Committee representatives, and simultaneously the Inspector-cum-Facilitator.
• Section 89(2): if satisfied, that person must take immediate remedial action and report forthwith to the Inspector-cum-Facilitator.
• Section 89(3): if not satisfied, he must nevertheless refer the matter forthwith, and the Inspector-cum-Facilitator's decision on the existence of imminent danger is final.
• Section 90: the appropriate Government may prescribe the manner, the appropriate authority and the procedure for an appeal by the manager or occupier against an order of the Inspector-cum-Facilitator.
• Section 91(1)(a): rules may specify persons in supervision, management or a confidential position in a factory, or empower the Chief Inspector-cum-Facilitator to declare a person to be such; the provisions of the Code shall not apply to him.
• Section 91(1)(b): rules may provide exemption, its extent and conditions, for any worker or class of workers in any establishment or class of establishments.
• Section 91(2): the appropriate Government or the Chief Inspector-cum-Facilitator may by order in writing, on such conditions as it deems expedient, exempt any or all of the adult workers in an establishment or class of establishments.

Test yourself

1. Who may exercise the right in section 89, and what must they apprehend? Workers employed in a factory engaged in a hazardous process, who have a reasonable apprehension that there is a likelihood of imminent danger to their lives or health due to any accident.

2. To whom must the warning be given? To the occupier, agent, manager or any other person in charge of the factory or of the process concerned, either directly or through the workers' representatives in the Safety Committee, and simultaneously to the Inspector-cum-Facilitator.

3. What must the person in charge do if he agrees, and what if he does not? If satisfied of the existence of imminent danger, he must take immediate remedial action and send a report forthwith of the action taken to the Inspector-cum-Facilitator. If not satisfied, he must nevertheless refer the matter forthwith to the Inspector-cum-Facilitator, whose decision on the question of the existence of such imminent danger shall be final.

4. Does section 89 give a worker a right to stop work? No. It gives a right to bring the apprehension to notice and to have the question of imminent danger decided. It confers no right to stop or to refuse work, and no express protection against victimisation.

5. What does section 90 provide? Nothing on the face of the Code. It empowers the appropriate Government to prescribe the manner in which, and the appropriate authority to whom, the manager or occupier may appeal against an order of the Inspector-cum-Facilitator, and the procedure for disposing of such appeals.

6. State the effect of section 91(1)(a). Rules may specify persons holding positions of supervision or management, or employed in a confidential position, in a factory, or empower the Chief Inspector-cum-Facilitator to declare any other person to be such if in his opinion he is; and the provisions of the Code shall not apply to any person so defined or declared.

7. What may be done under section 91(2), and why is it criticised? The appropriate Government or the Chief Inspector-cum-Facilitator may, by order in writing and subject to such conditions as it deems expedient, exempt any or all of the adult workers in any establishment or class of establishments. It is criticised because the sub-section does not say from which provisions the exemption operates, requires no notification, no consultation and no stated ground, and may be exercised by a single officer.