Keep alive the Employers’ Liability Act, 1938!

Employers Liability Act, 1938 has been legislated with the objective of ruling out certain defences in suits for damages arising out of injuries sustained by workmen. Under the Common law, in case of civil suits for damages resulting from injuries sustained by workmen the employer can plead the Doctrine of Common Employment, by which the employer is not normally liable to pay damages to a workman for an injury resulting from the default of another workman and the Doctrine of Assumed Risk, by which an employee is presumed to have accepted a risk if it is such that he ought to have known it to be part of the risks of his occupation.

The Royal Commission on Labour viewed both these doctrines as inequitable and recommended with a majority that a law should be enacted to abolish these defences in case of all workmen.

Employers’ Liability Act, 1938 says clearly who the employer is in respect of the workers deputed by the contractors and man-power supply agencies to work in the factories and establishments of other employers. The definition in this Act helps understanding the definition of the term ‘Workman’ in the Workman’s Compensation Act, 1923 (now Employee’s Compensation Act, 1923), the definition of the terms like ‘employee’, ‘principal employer’ and ‘immediate employer’ in the ESI Act, 1998, the definition of the terms ‘workman’, ‘contract labour’ and ‘contractor’ in the Contract Labour (Regulation & Abolition) Act, 1970. This Employers’ Liability Act, 1938 would help bridge many gaps that may arise between various other labour welfare enactments. This Act is resorted to for clarification and protection, when there is flaw or doubt in other enactments. This is a protective umbrella for workmen and had been enacted after due deliberations. This has withstood the test of time.

The utitlity of the Employer’s Liability Act, 1938 and the way it helps understanding the subject matter pertaining to the employees employed through contractors including the outsourcing agencies can be seen from the exhaustive Powerpoint Presentation (containing 206 slides) available in the article given in the following link: https://flourishingesic.info/2014/09/27/coverage-of-man-power-supply-agencies/

The Powerpoint presentation explains how this Act supplements and aids interpretation when doubts are raised by the employers in regard to their liability towards the workmen engaged through contractors or in respect of employees whose services are utilised through outsourcing methods.   The history behind this Act and its contents are very useful to explain the concept of contract labour in various seminars of employers, with the help of this Act.

Employers’ Liability Act defines and restricts the occasions and the extent to which public and private employers shall be liable in compensation in case of injuries to their employees occurring in the course of their employment and particularly abolishing the common law rule that the employer is not liable if the injury is caused by the fault or negligence of a fellow servant and also the defences of contributory negligence and assumption of risk.

There is no harm in retaining the Statute as a live enactment, especially when the legislators of these days had shown no interest in proper discussion and understanding the intricacies of amendments proposed by bureaucrats. (Ex. the amendments proposed in 2009 to the ESI Act, 1948 contained so many serious flaws that affect the functioning of the organization till date). It is therefore proper to retain the Employer’s Liability Act, 1938 in the Statutes without repealing it.

2. Definitions:-

 In this Act, unless there is anything repugnant in the subject or context,–      (a) “workman” means any person who has entered into, or works under a contract of, service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, oral or in writing; and       (b) “employer” includes any  body of persons whether incorporated or not, any managing agent of an employer, and the legal representatives of a deceased employer, and, where the services of a workman are temporarily rent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him.

The definition in this Act helps fix tortious liability on the employers not covered by any other enactment,too. Retaining it on the statute books will not be harmful to anyone.

Repealing it can be harmful to the working population in various contingencies. The text of the Employers’ Liability Act, 1938 is available at:

http://indiankanoon.org/doc/47831/

and also at http://labour.nic.in/upload/uploadfiles/files/ActsandRuleshindi/employeesliabilityact1938.pdf

(although it is written as Employees Liability Act, 1938 there).

Those who agree with this proposition may convey their views to kumar.subhash@nic.in