The Employer’s Liability Act, 1938

The Employer’s Liability Act, 1938 (Act No. 24 of 1938) was enacted with object to declare protection for Workman who brings suit for damages for injuries sustained by them, against certain defenses. The Act originally dealt with its extension over whole of India and State of Jammu and Kashmir was exempted from its application. However, this exemption was removed by Amendment Act of 1970 which was came into effect in the year 1971 and the State of Jammu and Kashmir also brought within the purview of this Act. Further, this Act is amended on several occasions by different Amendment Acts including Act no. 3 of 1951, 5 of 1951 and 51 of 1970 to extend the provisions of this Act as a protective umbrella for Workmen.

In the civil suits for damages against injuries sustained by Workman, the Employer can take defence of by pleading Doctrine of Common Employment under Common Law, which was protecting Employer against payment of damages to Workman for an injury resulting from the default of another Workman. Similarly, the another doctrine which was protecting Employer is The Doctrine of Assumed risk, by which Workman is presumed to have accepted a risk if it is such that he ought to know it to be part of the risks of his occupation. However, the recommendation as to abrogating these to defences of Employer by providing legal remedy was put forward by Royal Commission on Labour. As such the firstly the Bill seeking to abolish these two defences in all such cases of Workman was brought and finally the Act of 1938 was enacted by September, 1938. Moreover, most of the Indian text books on law of Torts state that the Doctrine of Common Employment has been abolished by the Employers’ Liability Act, 1938 as amended by the Amendment Act of 1951.

Section 2 of the Act provides for Definition of certain terms used in the Act, including ‘Workman’ and ‘Employer’. The definition of the term ‘Workman’ under this Act helps to understand the same term used in The Workman’s Compensation Act, 1923 (i.e. Employee’s Compensation Act, 1923), also the definition of the terms like ‘employee’, ‘principal employer’ and ‘immediate employer’ in the ESI Act, 1998 and the terms ‘Workman’, ‘contract labour’ and ‘contractor’ in The Contract Labour (Regulation & Abolition) Act, 1970. This Act of 1938 helps to fill certain important gaps which may arise between various other Labour Welfare Enactments.

Section 3 of the Act specifically, provides for such defences under the head ‘Defence of common employment barred in certain cases’, wherein any workman suffered any personal injury due to non-maintenance of good and safe condition of work, equipments, machinery, etc. or by reason of negligence of any persons employed by employer as described under the provision, under such circumstances the suit brought against employer should not fail by reason of employment of workman with such employer.

Section 3A was not originally enacted with the Act, however, this provision is provided by Amendment Act of 1951 (Act No. 5 of 1951) which makes provisions relating to contractual employment where, if any provisions in contract of employment or service or apprenticeship which dealt with liability of employer in respect of personal injuries to the employees, such provisions should be treated void in so far as it would have effect of excluding or limiting any liability of employer as to personal injuries caused to the employees.

Further, Section 4 of the Act speaks about risk and responsibility of Workman, i.e. any undertaking of Workman voluntarily undertaken by himself without full knowledge as to risk attached to the Employment, should be treated illegal unless such risk was fully explained to and understood by workman.

The last provisions of the Act i.e. Section 5 provides for saving clause, by providing that this Act should not affect validity of any decree or order of Civil Court passed before the commencement of this Act in such concerning suit for damages. Recently, there is no discussion on the law of Employers’ liability, however, the Act need not be repealed looking towards its significance.

by Faim Khalilkhan Pathan