Employment Information and Monitoring

Section 139(2), what may be prescribed. The appropriate Government may prescribe:

1. the manner in which vacancies are reported, electronically or otherwise;
2. the form in which they are reported; and
3. the manner and form of filing the return by the employer to the career centre.

Section 139(3), the crucial saving. Nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the career centre to fill any vacancy merely because that vacancy has been reported.

Learn this sub-section in its own words. It is the answer to the standing misconception that reporting a vacancy to an employment exchange obliges the employer to take a candidate the exchange sends. It never did, and section 139(3) says so expressly.

Section 139(4), the executive officer's powers. The executive officer shall have access to any record or document in the possession of any employer required to furnish information or returns under the Chapter, and may:

• enter, at any reasonable time, any premises where he believes such a record or document to be;
• inspect or take copies of such records or documents; and
• ask any question necessary for obtaining information required.

Obstructing him is an offence under section 133(n), punishable with a fine up to fifty thousand rupees.

Section 140: the exclusions

Section 140(1), seven excluded vacancies. Section 139 does not apply to vacancies:

Clause (a) carries a double qualification which is exactly the sort of thing an examiner tests. Private sector agriculture and horticulture are out, but a plantation is in, and a public sector agricultural establishment is not excluded by the clause at all.

Clause (f) is the size threshold: twenty employees, and it does not protect a Government establishment however small.

Section 140(2), two further exclusions unless the Central Government directs otherwise. The Chapter does not apply in relation to:

• (a) vacancies proposed to be filled through promotion, or by absorption of surplus staff of any branch or department of the same establishment, or through independent recruitment agencies such as the Union Public Service Commission, the Staff Selection Commission, a State Public Service Commission or other notified agencies; or
• (b) vacancies in an employment carrying a monthly remuneration of less than an amount notified by the appropriate Government.

Note the difference between sub-sections (1) and (2). The exclusions in (1) are absolute unless the Chapter itself is amended. Those in (2) apply "unless the Central Government, by notification, direct" otherwise, so they can be switched off.

A worked example

Meridian Systems is a private company in Pune with sixty employees. The State has notified the requirement under section 139(1) for establishments of its class.

Must it report a vacancy for a software engineer? Yes, before filling it, to the career centre specified in the notification, in the prescribed manner and form: section 139(1) and (2).

The career centre sends three candidates. Must Meridian appoint one? No. Section 139(3) provides that nothing in the section imposes any obligation to recruit any person through the career centre merely because the vacancy was reported.

It has a vacancy for a driver on a two month project. Excluded. Section 140(1)(d) excludes employment the total duration of which is less than ninety days.

It is filling a team leader post by promoting an existing employee. Excluded, unless the Central Government directs otherwise: section 140(2)(a) covers vacancies proposed to be filled through promotion.

It is moving surplus staff from its Nashik branch into a Pune vacancy. Also within section 140(2)(a), being absorption of surplus staff of a branch or department of the same establishment.

Now change the employer. Anand runs a private farm with thirty workers.

Must he report a vacancy for a field hand? No. Section 140(1)(a) excludes employment in agriculture, including horticulture, in an establishment in the private sector.

And if his land were a tea plantation? Then he is covered, because clause (a) expressly excepts employment in a plantation from the exclusion.

A household employs a cook. Excluded: domestic service, section 140(1)(b).

A private firm with fifteen employees has a vacancy. Excluded by section 140(1)(f), which applies to an establishment other than a Government establishment with fewer than twenty employees, or such number as is notified.

A Government office with eight employees has a vacancy. Not excluded by clause (f), which protects only non-Government establishments.

The executive officer arrives to check Meridian's records. He has access to any record or document in its possession, may enter at any reasonable time premises where he believes it to be, may inspect or take copies, and may ask any question necessary: section 139(4). Obstructing him is an offence under section 133(n).

What this does NOT mean

Reporting is not hiring through the centre. Section 139(3) is express.

The duty is not automatic. It arises only when the appropriate Government issues a notification under section 139(1).

Agriculture is not wholly excluded. Clause (a) excludes private sector agriculture and horticulture but not a plantation, and it says nothing about the public sector.

The twenty employee threshold does not protect Government establishments. Clause (f) is confined to establishments other than Government establishments.

The section 140(2) exclusions are not permanent. They operate unless the Central Government by notification directs otherwise.

Limits and criticism

A dataset nobody must act on has limited value. Section 139(3) makes reporting purely informational, which is the honest design, but it means the Chapter cannot by itself place a single worker in a job.

The whole Chapter depends on a notification. Until the appropriate Government notifies under section 139(1), no employer owes anything.

The exclusions are wide. Private agriculture, domestic service, short engagements, small private establishments, promotions, internal absorption, recruitment through public service commissions, and low paid work are all outside it, which removes a very large part of the labour market from the data.

Only obstruction is punished. Section 133(n) penalises obstructing the executive officer with a fine, and a failure to report a vacancy falls into the residual clause 133(m), also fine only.

Quick revision

• The Chapter succeeds the Employment Exchanges (Compulsory Notification of Vacancies) Act 1959, repealed by item 4 of section 164(1). "Employment exchange" becomes career centre, section 2(9).
• Section 139(1): on notification, an employer must report a vacancy before filling it to the specified career centre.
• Section 139(2): manner, form and returns are prescribed; reporting may be electronic.
• Section 139(3): no obligation to recruit through the career centre merely because a vacancy was reported.
• Section 139(4): the executive officer has access to records, may enter at a reasonable time, inspect or copy, and ask questions. Obstruction is an offence under section 133(n).
• Section 140(1), seven exclusions: private sector agriculture and horticulture but not a plantation; domestic service; staff of Parliament or a State Legislature; employment of less than ninety days; notified classes; non-Government establishments with fewer than twenty employees; and other notified employments.
• Section 140(2), unless the Central Government directs otherwise: vacancies filled by promotion, by absorption of surplus staff of the same establishment, or through independent recruitment agencies such as the Union Public Service Commission, Staff Selection Commission or a State Public Service Commission; and employment carrying monthly remuneration below a notified amount.

Test yourself

1. Does reporting a vacancy to a career centre oblige the employer to recruit through it? No. Section 139(3) provides that nothing in sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the career centre to fill any vacancy merely because that vacancy has been reported.

2. When does the duty to report arise? Only when the appropriate Government requires it by notification under section 139(1), from the date specified, for every establishment or a specified class or category, and the vacancy must be reported before it is filled.

3. Is a vacancy on a private tea plantation excluded? No. Section 140(1)(a) excludes employment in agriculture, including horticulture, in a private sector establishment, but expressly other than employment in a plantation, so a plantation vacancy is covered.

4. A private firm with eighteen employees, and a Government office with eight, each have a vacancy. Which must report? The Government office. Section 140(1)(f) excludes an establishment other than a Government establishment with fewer than twenty employees, so the private firm is excluded and the Government office is not.

5. Name two kinds of vacancy excluded by section 140(2), and say what makes those exclusions different. Vacancies proposed to be filled through promotion or by absorption of surplus staff of a branch or department of the same establishment, or through independent recruitment agencies such as the Union Public Service Commission, the Staff Selection Commission or a State Public Service Commission; and vacancies in employment carrying monthly remuneration below a notified amount. They differ from the section 140(1) exclusions in that they operate unless the Central Government by notification directs otherwise.

6. What may the executive officer do, and what happens if he is obstructed? He has access to any record or document in the possession of an employer required to furnish information or returns, may enter any premises at a reasonable time where he believes such a record to be, inspect or take copies, and ask any question necessary: section 139(4). Obstructing him is an offence under section 133(n), punishable with a fine which may extend to fifty thousand rupees.