Duties of Designers, Manufacturers and Architects

The proviso, imports. This is the examinable part. Where an article is designed or manufactured outside India, it is obligatory on the importer to see that:

• (A) the article conforms to the same standards as such an article manufactured in India; or
• (B) where the standards adopted in the foreign country are above the Indian standards, that it conforms to those foreign standards; or
• (C) where there is no Indian standard, that it conforms to the standard adopted at national level in the country from which it is imported.

Learn the three limbs as a sequence. Indian standard as a floor; the foreign standard where it is higher; and the exporting country's national standard where India has none. The importer can never take advantage of a laxer regime abroad.

Section 8(2) to (7): the rest of the section

Section 8(2). The designer, manufacturer, importer or supplier shall also comply with such duties as the Central Government may specify by regulations, in consultation with the National Occupational Safety and Health Advisory Board under section 16(1).

Section 8(3), research. Every person who undertakes to design or manufacture an article or substance for use in a factory may carry out or arrange research with a view to discovering and, so far as reasonably practicable, eliminating or minimising any risks to health or safety to which the design or manufacture may give rise.

Note "may". Sub-section (3) is permissive where sub-section (1) is mandatory.

Section 8(4), no needless repetition. Nothing in sub-sections (1) and (2) requires a person to repeat testing, examination or research carried out by or at the instance of another, so far as it is reasonable for him to rely on those results.

Section 8(5), the limit of the duty. Any duty under sub-sections (1) and (2) extends only to things done in the course of the business carried on by him and to matters within his control.

Section 8(6), erectors, installers and substances. Every person who:

• (a) erects or installs an article for use in a factory shall ensure, so far as practicable, that it does not become unsafe or a risk to health when used;
• (b) manufactures, imports or supplies a substance for use in a factory shall ensure so far as practicable that it is not unsafe or a risk to health in use, carry out the necessary tests and examination, and take steps to secure that the results and the conditions necessary for safe use are available in the factory;
• (c) undertakes the manufacture of a substance for use in a factory shall carry out or arrange the necessary research to discover and so far as practicable eliminate or minimise risks.

Section 8(7), the meaning of proper use. An article or substance is not to be regarded as properly used if it is used without regard to any information or advice relating to its use made available by the person who designed, manufactured, imported or supplied it.

Sub-section (7) is the counterpart of clause (a) of sub-section (1). The maker's duty is to make it safe when properly used; sub-section (7) then defines proper use as use with regard to the information he supplied. So the duty to warn in clause (c) and the standard of liability in clause (a) lock together.

Section 9: architects, project engineers and designers

Section 9(1), the planning stage duty. It is the duty of the architect, project engineer or designer responsible for any building or other construction work, or for the design of any project or part of it, to ensure that at the planning stage due consideration is given to the safety and health aspects of the building workers and employees employed in the erection, operation and execution of the projects and structures.

Section 9(2), the design itself. Adequate care shall be taken by the architect, project engineer and other professionals involved not to include anything in the design which would involve the use of dangerous structures or other processes or materials, hazardous to the health or safety of building workers and employees during erection, operation and execution.

Section 9(3), the whole life of the building. It is also the duty of the professionals designing buildings, structures or other construction projects to take into account the safety aspects associated with the maintenance and upkeep of the structures, where that maintenance and upkeep may involve such hazards as the appropriate Government notifies.

Sub-section (3) is the most modern idea in the Chapter and it is worth a sentence. The duty is not only to the workers who build the structure but to those who will clean, service and maintain it for the next fifty years. A building whose windows can only be washed from a rope is a design failure under section 9(3).

A worked example

Orion Machines designs and manufactures industrial presses in Pune. Vertex Traders imports presses from Germany. Sharma & Associates are architects designing a twenty storey office block.

What does Orion owe? Under section 8(1)(a) it must ensure, so far as reasonably practicable, that the press is designed and constructed to be safe and without risk to health when properly used; under (b) carry out or arrange the necessary tests; and under (c) ensure adequate information is available about its use, the use it was designed and tested for, and the conditions necessary for it to be safe.

A buyer ignores the manual and is hurt. By section 8(7) the press is not to be regarded as properly used, because it was used without regard to the information Orion made available. Orion's duty under clause (a) is to make it safe when properly used.

What does Vertex owe on its German presses? The proviso to section 8(1). It must see that the press conforms to Indian standards; or, where the German standards are higher, to those; or, where India has no standard, to the German national standard.

Vertex says the presses were tested in Germany. Section 8(4) helps it: it need not repeat testing, examination or research carried out by another, so far as it is reasonable to rely on those results. But the proviso's standards obligation remains its own.

Vertex also sells presses privately to a friend. Section 8(5) limits its duty to things done in the course of the business carried on by it and to matters within its control.

A contractor erects the press on a factory floor and does it badly. Section 8(6)(a) puts a duty on the person who erects or installs an article for use in a factory to ensure, so far as practicable, that it does not thereby become unsafe.

Orion also makes a cleaning solvent for the same factories. Section 8(6)(b) requires it to ensure so far as practicable that the substance is not unsafe in use, to test it, and to see that the results and the conditions for safe use are available in the factory. Section 8(6)(c) requires it to carry out or arrange the necessary research.

Now the office block. Sharma & Associates design a facade requiring workers to stand on unguarded ledges during erection.

Is that a breach? Yes. Section 9(1) requires due consideration at the planning stage to the safety and health of the building workers employed in erection, and section 9(2) requires adequate care not to include in the design anything involving dangerous structures, processes or materials hazardous to their health or safety.

The building is safe to erect but its windows can only be cleaned by a worker leaning out. Section 9(3) requires the designers to take into account the safety aspects associated with the maintenance and upkeep of the structure, where that may involve notified hazards. A design safe to build and dangerous to maintain is caught.

What this does NOT mean

These duties do not fall on the employer. They fall on designers, manufacturers, importers, suppliers, erectors, installers, architects and project engineers, none of whom need employ anybody at the workplace.

The section 8(1)(a) duty is not absolute. It is qualified by so far as is reasonably practicable, and by the concept of proper use in sub-section (7).

An importer cannot rely on a lower foreign standard. The proviso requires the Indian standard, or the higher foreign one, or the exporting country's national standard where India has none.

Section 8(3) does not compel research. It is permissive; section 8(6)(c) is the mandatory research duty, and it is confined to a person who undertakes the manufacture of a substance for use in a factory.

Section 9 is not confined to the construction phase. Sub-section (3) extends it to maintenance and upkeep.

Limits and criticism

Section 8's duties are enforced only through the general penalties. The Code creates the duty but leaves breach to be prosecuted under sections 94 and 97, with no specific offence for supplying an unsafe article.

"So far as is reasonably practicable" and "so far as practicable" appear in different sub-sections of section 8 with no explanation of the difference, and the Code defines neither.

Section 9 names professionals but provides no mechanism by which an architect's design is checked for safety before construction begins, outside the site appraisal committee for hazardous processes in section 83.

Section 9(3) depends on a notification. The maintenance duty bites only where the hazards are notified by the appropriate Government.

Quick revision

• Section 8(1): the designer, manufacturer, importer or supplier of an article must (a) make it safe when properly used, so far as reasonably practicable; (b) test and examine; (c) supply adequate information on use, tested use and safe conditions.
• The proviso on imports: the Indian standard; or the foreign standard if higher; or the exporting country's national standard if India has none.
• Section 8(2): further duties by regulations, after consulting the National Occupational Safety and Health Advisory Board.
• Section 8(3): research may be done by a designer or manufacturer of an article or substance for a factory. Section 8(4): no need to repeat another's testing where reliance is reasonable. Section 8(5): the duty extends only to the course of his business and matters within his control.
• Section 8(6): (a) erectors and installers must not make an article unsafe; (b) manufacturers, importers and suppliers of a substance must ensure safety, test, and make the results and safe use conditions available in the factory; (c) a manufacturer of a substance must carry out research.
• Section 8(7): use without regard to the information supplied is not proper use.
• Section 9: (1) safety of building workers considered at the planning stage; (2) no dangerous structures, processes or materials in the design; (3) safety of maintenance and upkeep taken into account, where the hazards are notified.

Test yourself

1. What must an importer of machinery ensure? By the proviso to section 8(1), that the article conforms to the same standards as such an article manufactured in India; or, where the standards adopted in the exporting country are above the Indian standards, that it conforms to those; or, where there is no Indian standard, that it conforms to the standard adopted at national level in the country from which it is imported.

2. A worker is injured using a machine in a way the manual forbids. Is the manufacturer liable under section 8(1)(a)? His duty is to ensure the article is safe and without risk to health when properly used. By section 8(7) an article is not to be regarded as properly used if it is used without regard to the information or advice on its use made available by the manufacturer, so the duty is not engaged in those terms.

3. Must a supplier repeat tests already carried out by the manufacturer? No. Section 8(4) provides that nothing in sub-sections (1) and (2) requires a person to repeat testing, examination or research carried out otherwise than by him or at his instance, so far as it is reasonable for him to rely on the results.

4. What are the duties of a person who erects a machine in a factory? Under section 8(6)(a), to ensure so far as practicable that the article so erected or installed does not become unsafe or a risk to health when used by persons in the factory.

5. State the architect's three duties under section 9. To ensure that at the planning stage due consideration is given to the safety and health of the building workers and employees employed in erection, operation and execution; to take adequate care not to include in the design anything involving dangerous structures, processes or materials hazardous to their health or safety; and to take into account the safety aspects associated with the maintenance and upkeep of the structure, where that may involve notified hazards.

6. Why does the Code impose duties on people who employ nobody at the workplace? Because the risk is often created before the workplace exists. A machine which is unsafe by design, or a building which cannot be maintained safely, cannot be made safe by the employer afterwards, so the Code reaches back to the designer, manufacturer, importer, supplier and architect who created the risk.