Sections 104-105 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Sections 104 and 105 of the Occupational Safety, Health and Working Conditions Code, 2020 (the OSH Code) each deal with one specific default. Section 104 punishes continuing to work in contravention of an order under section 38, the Inspector-cum-Facilitator's special powers. Section 105 punishes failing to appoint a manager for a mine as section 67 requires.
Section 104: whoever continues to work in contravention of any general or special order issued under section 38 faces imprisonment up to two years and is also liable to fine up to Rs 5 lakh; the court may not impose a fine below Rs 2 lakh without recording reasons. Section 105: failing to appoint a manager under section 67 is punishable with imprisonment up to three months, or fine up to Rs 1 lakh, or both.
Sections 104 and 105 at a glance
| Section | Offence | Punishment | Compoundable under s.114(1)? |
|---|---|---|---|
| 104 | Continuing to work in contravention of a general or special order under section 38 | Imprisonment up to 2 years, and fine up to Rs 5 lakh (court needs recorded reasons to fine below Rs 2 lakh) | Not listed |
| 105 | Failure to appoint a manager under section 67 | Imprisonment up to 3 months, or fine up to Rs 1 lakh, or both | Yes, as an offence, at 75% of the maximum fine |
Both defaults can be handled well if you act on the first notice. Our legal dispute resolution team can help you read an order and plan the response.
Section 104: defying a section 38 order
Section 38 gives the Inspector-cum-Facilitator special powers in respect of factories, mines, dock work and building or other construction work. Among them is the power to prohibit employment where conditions create serious hazard or imminent danger. For a factory, an order under section 38(A)(a) has effect for three days until extended by the Chief Inspector-cum-Facilitator, and only the minimum number of persons needed for minimum tasks may be employed until the hazard is removed. For mines, the powers include notices to remedy danger, prohibitions on employment in or about the mine, and prohibiting the extraction or reduction of pillars. See our section 38 article.
The offence. "Whoever continues to work in contravention of any general or special order issued under the provisions of section 38". The key word is continues: the offence is carrying on after the order, not the underlying condition.
Punishment. Imprisonment up to two years, and the person "shall also be liable to fine which may extend to five lakh rupees". The proviso says the court "shall not impose a fine under this section which shall be less than two lakh rupees without recording in the judgment the reasons for imposing such fine". So the practical floor for a fine is Rs 2 lakh unless the court explains.
Who is exposed. The text says "whoever", so it can reach the owner, occupier, manager or whoever directs work to go on; section 109 adds company liability for persons in charge. See sections 109 and 110.
What to do on receiving an order. Stop the prohibited work immediately, limit staff to those permitted, record the time, and follow the appeal route. An appeal does not, by the text of the factory clause, suspend the order. In mines, sub-clause (i) says a notice or order to which objection is made must still be complied with pending the objection, although the Central Government may suspend a notice under sub-clause (a) on application. The remedies against a factory order (appeal to the High Court) and the wages rule (affected persons are entitled to wages and benefits; the occupier must try to provide alternative employment) are in section 38 itself. Employers who want help on the response can use our legal dispute resolution team.
Section 104 is not in the compounding list in section 114(1), so a prosecution under it is decided by the court.
Section 105: failure to appoint a mine manager
Section 67(1) requires that, save as otherwise prescribed, every mine be under a sole manager with qualifications prescribed by the Central Government, and the owner or agent must appoint a person with those qualifications. The owner or agent may appoint himself if he has the qualifications. Sub-section (2) makes the manager responsible for overall management, control, supervision and direction; sub-section (3) stops the owner or agent from bypassing the manager except in an emergency. See sections 67 and 68.
Section 105: "Whoever in compliance of the provisions of section 67, fails to appoint a manager shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one lakh rupees, or with both."
Three observations.
- The duty falls on the owner or agent who must appoint. The text of section 105 says "whoever".
- The offence is failure to appoint. A manager who is appointed but unqualified raises a different question, governed by the prescribed qualifications.
- Section 105 is an offence, in the compounding list in section 114(1). At 75 per cent of the maximum fine, composition would be Rs 75,000. Composition is unavailable for a repeat within three years of an earlier composition or conviction. See sections 113 and 114.
Qualifications. Section 67(1) says the qualifications are those prescribed by the Central Government. The Central Rules, 2026 carry rule 107 on this; see our rule 107 article and check the rule text before acting.
How prosecutions are run
For mines, section 107 restricts who can start a prosecution against an owner, agent or manager; see sections 106 to 108. Section 110(1) requires a 30-day opportunity to comply before prosecution, except in case of an accident or a repeat of the same violation within three years.
Example. An inspector stops work in a section of a factory that shows a serious hazard, allowing only a skeleton crew. The occupier lets the full shift continue the next day. That is continuing to work in contravention of a section 38 order, and section 104 applies. Separately, a newly acquired mine is run for weeks by an agent without a qualified manager; section 105 is engaged against whoever was obliged to appoint one.
Need help responding to an order or a notice?
Orders under section 38 and notices about mine management move fast, and the first reply often decides how the matter goes. Our legal dispute resolution team can help you comply with an order, file an appeal or objection and prepare for any prosecution.
Key takeaways
- Section 104: working on after a section 38 order is punishable with up to 2 years and a fine up to Rs 5 lakh; fine below Rs 2 lakh needs recorded reasons.
- Section 105: not appointing a qualified mine manager under section 67 carries up to 3 months, or fine up to Rs 1 lakh, or both.
- Only section 105 is in the compounding list in section 114(1).
- Comply with an order first, and challenge it through the route the Code provides.
Read next
- Section 38: special powers of the Inspector-cum-Facilitator
- Sections 67 and 68: mine manager and mines outside the Code
- Sections 102 and 103: penalties for duty breaches and accidents
- Mines Act: safety provisions and DGMS
Disclaimer: Based on the Occupational Safety, Health and Working Conditions Code, 2020 (as enacted) and, where noted, the Occupational Safety, Health and Working Conditions (Central) Rules, 2026 (G.S.R. 345(E), 8 May 2026), as on 30 September 2026. The Code is in force from 21 November 2025; some provisions may be notified later, and State Governments make their own rules for establishments where the State is the appropriate Government. Verify the current position before acting.