1|Page
I am feeling highly elated to work on the topic “GIFT UNDER Hindu LAW” under the guidance of my FAMILY LAW-2 faculty. I am very grateful to her for her exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available
to me at
the
time of my busy
research
work and gave me
assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.
Thanking you Kumar Mangalam 936 C.N.L.U.
2|Page
SL.NO.
CONTENTS
1.
ACKNOWLEDGEMENT
2.
RESEARCH METHODOLOGY, CHAPTERISATION
3.
INTRODUCTION
4.
PAGE NO.
2
OBJECTIVE
TYPES OF CONTRACTOR
and 4
5-8 8-9
10-12 5.
LICENSING OF CONTRACTOR 13-15
6.
CASE STUDY 16-18
7.
ANALYSIS AND CONCLUSION BIBLIOGRAPHY
3|Page
19
The main objective of this research work to:-
1. To know about different types of contractor, 2. Licensing of contractor, 3. Penalties and procedure.
The hypothesis of the researcher is as follows:1. There is no special procedure for licensing the contractor. 2. All types’ contractors are the same and have same work to do.
The researcher has used doctrinal method to do this research. The researcher has relied upon books, documents, and online databases. th
Primary sources: - Labour and Industrial laws, S.N.Mishra, 27 edition, Central Law
Agency. Secondary sources: - journals, documents and online databases.
1. Introduction 2. Types of contractor 3. Licensing a contractor 4. Case laws 5. Analysis and conclusion
4|Page
Contractor is a person who is hired to perform work or to provide goods at certain price or within certain time. Contractor is an independent entity that agrees to furnish certain number and quantity of goods, material, and equipment, personnel services that meet or exceed stated requirements or specifications at a mutually agreed price within specified time to another independent entity called as contractee or principal. Contractor means, “A person who undertakes to produce a given result for the establishment, other than a mere supply of goods and articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes sub contractor.”
1
Licensing is permission granted by competent authority to exercise a certain privilege
that without such authorization would constitute an illegal act. The certificate or the document itself confers the permission to engage in otherwise prescribed conduct. The granting of permission to use intellectual property rights such as trademarks, patents or technology under certain conditions. There are some legislations under “The Contract Labour (Regulation and Abolition) Act, 1970:1. Central Advisory Board —
The Central Government shall, as soon as may be, constitute a board to be called the Central Advisory Contract Labour Board to advise the Central Government on such matters arising out of administration of this act as may be referred to it and to carry out other functions assigned to it under this act. The Central Board shall consist of:-
2
a. A chairman to be appointed by the central government. b. The Chief Labour commissioner(Central) c. Such number of members, not exceeding seventeen but not less than eleven, as the Central Government may nominate to represent that government, the railways and any other interests which, in the opinion of the Central Government, ought to be represented on the Central Board.
1 2
Section 2(c), The contract labour(Regulation and Abolition) Act, 1970 Section 3 of The contract labour(Regulation and Abolition) Act, 1970
5|Page
2. State Advisory Board
3
This board could be constituted by State Government. The State Board shall consist of:a. A chairman to be appointed by the State Government b. The labour commissioner c. Such number of members, not exceeding eleven but not less than nine. Power to constitute committees
4
1. The central Board or the State Board as the case may be may constitute such committees and for such purpose or purposes as it may think fit. 2. The committee constituted shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed. 3. The members of a committee shall be paid such fees and allowances for attending its meetings as may be prescribed: Provided that no fees shall, be payable to a member who is an officer of Government or of any corporation established by any law for the time being in force. REGISTRATION OF ESTABLISHMENTS EMPLOYING CONTRACT LABOUR
Appointment of registering officers:-
5
The appropriate Government may, by an order notified in the Official Gazette — (a) Appoint such persons, being Gazetted Officers of Government. (b) Define the limits, within which a registering officer shall exercise the powers conferred on him by or under this Act. Registration of certain establishments.-
6
1. Every principal employer of an establishment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application 3
Section 4 of The contract labour(Regulation and Abolition) Act, 1970 Section 5 of The contract labour(Regulation and Abolition) Act, 1970 5 Section 6 of The contract labour(Regulation and Abolition) Act, 1970 6 Section 7 of The contract labour(Regulation and Abolition) Act, 1970 4
6|Page
to the registering officer in the prescribed manner for registration of the establishment. 2. If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment a certificate of registration containing such particulars as may be prescribed. Revocation of registration in certain cases:-
7
If the registering officer is satisfied, either on a reference made to him in this behalf or otherwise, that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, or that for any other reason the registration has become useless or ineffective and, therefore, requires to be revoked, the registering officer may, after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate Government, revoke the registration.
Prohibition of employment of contract labour.-
8
(1) Notwithstanding anything contained in this Act, the appropriate Government
may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (2) Before issuing any notification under sub-section (1) in relation to an
establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors.
7 8
Section 8 of The contract labour(Regulation and Abolition) Act, 1970 Section 10 of The contract labour(Regulation and Abolition) Act, 1970
7|Page
There are different types of contractors and contracting services, and if I had to categorize them, I would define three major categories. The differences in these three categories of contractor largely account for the differences in price, and have a very large impact on the amount of work the investor will be required to exert himself. As you might suspect, as you move from the more expensive to the less expensive contractor solutions, the amount of effort that the investor must exert increases quickly. 1. GENERAL CONTRACTOR The term “general contractor” is used in two ways, in my experience. From now on, I
am going to differentiate “general contractor” from “General Contractor”. A general contractor is someone who has the ability to tackle a lot of different aspects of a rehab project; most general contractors are good at carpentry, sheet-rock, basic electrical, basic plumbing, basic HVAC, and other general areas of home renovation and rehab. This type of general contractor might be referred to as a “handyman,” though if he is licensed and highly experienced, he’s likely a lot more than just that.
The term General Contractor refers to someone who has all the skills of a general contractor, but also manages all the aspects of the renovation that he doesn’t
actually execute himself. A General Contractor will often hire sub-contractors (contractors with specific skill-sets) to come in to handle the work that he is either not skilled enough to complete or too busy to complete. Not only does a General Contractor hire the necessary sub-contractors, but he will often manage the schedule, the project budget, and all the payments as well. For big projects, the General Contractor might spend all his time managing schedules, budgets, and subcontractors, and therefore might not have time to do any of the work himself. The General Contractor is also responsible for ensuring that his subs are properly licensed and insured, to protect you and your investment (as well as to protect himself).
2. TURN-KEY (SPECIALTY) SERVICES
Most specialty contractors, they include those popular businesses such as Terminex (pest/termite) and plumbing; of course, there are likely thousands of these kinds of companies in your area that you’ve never heard of, but are just as reliable and hold the necessary credentials license, insurance, Better Business Bureau Rating, etc. These contractors may not be the cheapest contractors as they spent a lot of time 8|Page
and effort getting the experience necessary to get their licenses and credentials, and want to get paid for their efforts, they will likely get the job done without you having to keep an eye on them or watch their every move. 3. FREELANCE WORKERS
The cheapest, but most time intensive for you avenue for getting a rehab done is to hire what I call “freelance workers.” These are guys who might have some experience in some aspects of rehab (they might even be general contractors), but don’t have enough expertise and experience to trust them to complete even individual parts of a project without management. Whereas a turn-key dry-waller can be trusted to finish up a room while you head to lunch, you probably would want to stick around to manage and instruct a freelance worker who was doing the same thing. Freelance workers are often called “unskilled contractors,” because while they work very hard, they don’t have the expertise to know how to solve tough problems themselves. They’ll look to you to do that, so it’s required that you would have the knowledge and expertise to solve those problems. Freelance workers are by-far the cheapest contractor costs for a rehab, but will require the most time, effort, expertise and patience from you.
9|Page
Who may apply for contractor? The basic requirements for becoming a contractor:
9
At least 18 years old with a high school diploma or the equivalent. Proof of Indian citizenship or legal residency. Documentation on any other occupational license you hold in the state. Two passport-size photos. Explanation of citations, violations or liens resulting from construction work. Corporations doing business in any state must be registered with the Secretary of State. Bidding for work on state projects usually requires prequalification.
THE PROCEDURE FOR LICENSING A CONTRACTOR IS AS FOLLOWS:1. APPOINTMENT OF LICENSING OFICERS
10
The appropriate Government may, by an order notified in the Official Gazette:A. Appoint such persons, being Gazetted Officers of Government, as it thinks fit to be licensing officers for the purposes of licensing a contractor, B. Define the limits, within which a licensing officer shall exercise the powers conferred on licensing officers in accordance of this act.
11
2. LICENSING OF CONTRACTORS 1. The appropriate Government may, by notification in the Official Gazette, appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer. 2. License may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of 9
http://www.contractors-license.org/cna03.htm Section 11 of The contract labour(Regulation and Abolition) Act, 1970 11 Section 12 of The contract labour(Regulation and Abolition) Act, 1970 10
10 | P a g e
contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under section 35 and shall be issued on payment of such fees and on the deposit of such sum.
12
3. GRANT OF LICENSE 1. Every application for the grant of a licence in accordance of Section 12 shall be made in the prescribed form and shall contain the particulars regarding the location of the establishment, the nature of process, operation or work for which contract labour is to be employed and such 13 other particulars as prescribed in the application. 2. The licensing officer may make such investigation in respect of the application received under sub-section (1) and in making any such investigation the 14 licensing officer shall follow such procedure as may be prescribed by this act. 3. A licence granted under this Chapter shall be valid for the period specified therein and may be renewed from time to time for such period and on 15 payment of such fees and on such conditions as may be prescribed.
4. REVOCATION, SUSPENSION AND AMENDMENT OF LICENSES
16
If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that:A. A licence granted under section 12 has been obtained by misrepresentation or suppression of any material fact, or B. The holder of a licence has, without reasonable cause, failed to comply with the conditions subject to which the licence has been granted or has contravened any of the provisions of this Act or the rules made there under, then, without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing officer may, after giving the holder of the licence an opportunity of show cause, revoke or suspend the licence or forfeit the sum, if any, or any portion thereof deposited as 12
Section 13 of The contract labour(Regulation and Abolition) Act, 1970 Section 13(1) of The contract labour(Regulation and Abolition) Act, 1970 14 Section 13(2) of The contract labour(Regulation and Abolition) Act, 1970 15 Section 13 (3) of The contract labour(Regulation and Abolition) Act, 1970 16 SECTION 14 of The contract labour(Regulation and Abolition) Act, 1970 13
11 | P a g e
security for the due performance of the conditions subject to which the 17 licence has been granted. 18 C. The licensing officer may vary or amend a licence granted under section 12.
19
5. APPEAL
A. Any person aggrieved by an order made under section 7, section 8, section 12 or section 14 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to an appellate officer who shall be a person nominated in this behalf by the appropriate Government. Provided that the appellate officer may entertain the Appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
20
B. On receipt of an appeal under SECTION 15(1), the appellate officer shall, after giving the appellant an opportunity of being heard dispose of the appeal as expeditiously as possible. 21
17
Section 14 (1) of The contract labour(Regulation and Abolition) Act, 1970 Section 14(2) of The contract labour(Regulation and Abolition) Act, 1970 19 Section 15 of The contract labour(Regulation and Abolition) Act, 1970 20 Section 15(1) of The contract labour(Regulation and Abolition) Act, 1970 21 Section 15(2) of The contract labour(Regulation and Abolition) Act, 1970 18
12 | P a g e
1. G.M., O.N.G.C., Silchar v. O.N.G.C. Contractual Workers Union
22
FACTS: The O.N.G.C. workers union demanded regularisation of services of
labourers of contractors. A reference for the same was given to the government and government referred it to the Industrial Tribunal. HELD:- The Industrial Tribunal gave an award that the labourers are the workmen of the O.N.G.C., Silchar, and not the contractors and were entitled for regularisation. This award was challenged in the high court (single judge bench) , and the decision of the tribunal was reversed. The division bench of high court reversed the decision of the single bench high court. An appeal was made in the Supreme Court. Supreme Court held that since industrial tribunal has reached to the conclusion that there is presence of master-servant relationship and no contractor is appointed then the workmen were the only employees and was entitled for the regularisation.
2. Food Corporation of India Worker’s Union v. Food Corporation of 23 India and others In this case, Gujarat High Court held that under Section 7 of the Act, the principal employer is required to obtain a certificate of registration issued by the appropriate Government and under section 12, the contractor is required to obtain license. The workman could be employed as contract labour only through licensed contractor. In the situation wherein either of these two conditions are not satisfied a workman employed by an intermediary would be deemed to have been employed by the principal employer.
22
2008, Law Library Journal, 1071 (S.C.) 1992, I L.L.J 257 (Guj.)
23
13 | P a g e
3. Philips Workers Union v. State of Maharashtra and another
24
In this case it was HELD that “where this act applies to an establishment, it is for the appropriate government under section 10 to prohibit the employment of contract labour and no reference under section 10 of industrial dispute act, 1947 can be sought for absorption of contract labour by principal employer and for payment of all benefits available to permanent employees of principal employer.
4. H.D. CHOWDA v. STATE OF ANDHRA PRADESH
25
In this case a notification was issued under section 10(1) of this act, 1970 by the State Government prohibiting contract labour in the following process of operations:
Watch and Ward personnel
Routine sweeping and scavenging
Boiler house workers
Workers of routine maintenance of plants and machinery
Persons engaged in automobile garages and workshops.
5. GENERAL LABOUR UNION(Red Flag) v. K.M.DESAI AND 26 OTHERS In this case it was held that there is no provision in this act whereby it can be constructed even by remote possible way that in the case of failure on part of contractor to register his contract under section 12 of the act, the employees employed in the factory through contractor will become the employees of the company. But the contractor will be legally penalised for such failure.
24
(1987) II L.L.J. 91 (Bom.) (2003) II L.L.J. 814 (A.P.) 26 (1990) II L.L.J. 259 (Bom.) 25
14 | P a g e
6. UNITED LABOU UNION AND OTHERS v. UNION OF INDIA 27 AND OTHERS In this case it was held that mere existence of penal provisions does not detract from the positions that there can be no deemed contract labour if the two conditions related to registration of principal employer and obtaining a valid license by the contractor are not satisfied.
27
(1991) I L.L.J. 89 (Bom.)
15 | P a g e
After doing the research work, the researcher has made the analysis, is as follows: There
are
several
pros
and
cons
of
the
contract
labours
as
well
as
contractors(licensed). PROS:2. Freedom
As a contractor, an individual have the freedom of picking which jobs you want to work on and setting your own schedule. If you need time off to handle personal matters, you can adjust your schedule without seeking permission from your clients. You can work for as many clients as you see fit, work from your home in whatever clothing you want and travel to your clients’ premises only as required. The limitations on how successful you can be are up to you, as you control your professional destiny. 3. Higher Pay Along with paying employees’ w ages and salaries, employers often provide
competitive benefits to retain quality workers. They must also pay Social Security, Medicare and unemployment taxes plus carry workers’ compensation and disability insurance when applicable. Contract labourers can often command a higher hourly rate than employees, because for the employer, they cost less than employees. 4. Tax benefits Employers must withhold taxes from their employees’ pay checks, but independent contractors generally pay their own taxes quarterly. This allows you to hold onto your full pay longer. You might be able to deduct business-related expenses on your tax return that employees cannot deduct. This includes deductions for home office, meals, entertainment, travel, equipment and insurance expenses.
DEMERITS OF CONTRACTORS 1. Job security A contractor you have less job security than a premise. As employment law has lessened this may not be as true as it was. Many contracts include one month get “out clauses” in which case both you and the permit tha t sits next to you
could be gone in 4 weeks.
2. LESS SAY IN THE AFFAIRS 16 | P a g e
3. CONTRACTORS HAVE TO PROVE THEM AGAIN AND AGAIN 4. LOSS OF KEY SKILLS
CONCLUSION
After completing the research work, the researcher has came to the following conclusion: Contractor means, “A person who undertakes to produce a given result for the
establishment, other than a mere supply of goods and articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and in cludes sub contractor” Licensing is permission granted by competent authority to exercise a certain privilege that without such authorization would constitute an illegal act. The certificate or the document itself confers the permission to engage in otherwise prescribed conduct. There are several legislations in “The Contract Labour (Regulation and Abolition) Act, 1970 that have
been discussed earlier. The licensing of the contractor includes some basic requirement that a contractor has to fulfill to convince employer that he is a contractor.
The basic requirements for becoming a contractor:
At least 18 years old with a high school diploma or the equivalent. Proof of Indian citizenship or legal residency. Documentation on any other occupational license you hold in the state. Two passport-size photos. Explanation of citations, violations or liens resulting from construction work. Corporations doing business in any state must be registered with the Secretary of State.
There is a particular procedure to provide license to a contractor 1. Appointment of licensing officer 2. Licensing application by the contractor has to be submitted to licensing officer. 3. Grant of license. 4. Revocation, suspension, and amendment in the license 5. Appeal
17 | P a g e
At last, the hypothesis of the researcher has been proved wrong. There is a particular procedure for licensing a contractor. There are also different liabilities and duties of the licensed contractor and non-licensed contractor.
18 | P a g e
S.N.MISHRA, LABOUR AND INDUSTRIAL LAWS, 27TH EDITION, CENTRAL LAW PUBLICATIONS, PAGE NO.- 1063-1092 http://www.contractors-license.org/cna03.htm 3. http://www.ehow.com/info_8233943_pros-cons-contract-labor.html 4. http://www.firstpointgroup.com/pros-and-cons-of-using-contractors
19 | P a g e
