Sections 106-108 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 106, 107 and 108 of the Occupational Safety, Health and Working Conditions Code, 2020 (the OSH Code) decide who is answerable when something goes wrong at work. Section 106 penalises an employee who breaks the employee's duties and protects the employer who took reasonable measures. Section 107 limits who may prosecute a mine owner, agent or manager. Section 108 lets an owner, agent, manager, employer or occupier have the actual offender brought before the court.
Section 106: an employee who contravenes a provision of the Code, rules or orders imposing a duty on employees faces a penalty up to Rs 10,000 (clause (d) of section 13 excepted), and the employer is not deemed guilty unless he failed to take all reasonable measures to prevent it. Section 107: a mine owner, agent or manager can be prosecuted only at the instance of the Chief Inspector-cum-Facilitator, the District Magistrate or an authorised Inspector-cum-Facilitator, after checking failure of due diligence. Section 108: the accused can bring the actual offender to court on not less than three clear days' written notice to the prosecutor.
Sections 106 to 108 at a glance
| Section | Who | Rule |
|---|---|---|
| 106(1) | Employee at a workplace | Penalty up to Rs 10,000 for contravening a provision that imposes a duty or liability on employees; subject to section 13 except clause (d) |
| 106(2) | Employer | Not deemed guilty on the employee's conviction unless he failed to take all reasonable measures to prevent the contravention |
| 107 | Owner, agent or manager of a mine | Prosecution only at the instance of the Chief Inspector-cum-Facilitator, District Magistrate or authorised Inspector-cum-Facilitator |
| 108 | Owner, agent, manager, employer or occupier | Right to have the actual offender brought before the court, on three clear days' written notice to the prosecutor |
Section 106: offences by employees
Section 106(1) applies "subject to the provisions of section 13, except clause (d) thereof". If an employee employed in a workplace contravenes any provision of the Code or any rules or orders imposing any duty or liability on employees, the employee is "punishable with penalty which may extend to ten thousand rupees".
Section 13 lists the employee's duties: reasonable care for health and safety, complying with standards, cooperating with the employer, not wilfully interfering with or misusing safety appliances, not endangering himself or others, and other prescribed duties. See our article on section 13. Clause (d), the duty to report an unsafe situation, is excluded from section 106 and is dealt with by the heavier section 102 where it relates to hazardous processes; see sections 102 and 103.
Employer's protection (106(2)). When an employee is convicted under section 106(1), "the employer of the establishment shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention". This turns on proof: the prosecution must show the employer failed to take all reasonable measures. For an employer, the practical meaning is that training, written safe-work rules, supervision and enforcement records are valuable evidence.
A caution. Section 106(2) protects the employer against being treated as guilty for that contravention. It does not wipe out the employer's own duties under section 6 or the penalties for them.
If your HR policy disciplines employees for safety breaches and you want to align it with this section, our legal dispute resolution team can review the policy and the record-keeping. Section 106 penalties can be imposed by the officer under section 111 and compounded under section 114(1) at fifty per cent of the maximum penalty, which on the text would be Rs 5,000.
Section 107: who may prosecute a mine owner, agent or manager
Section 107 says "no prosecution shall be instituted against any owner, agent or manager of a mine for any offence under this Code except at the instance of":
- the Chief Inspector-cum-Facilitator;
- the District Magistrate; or
- an Inspector-cum-Facilitator authorised in this behalf by general or special order in writing by the Chief Inspector-cum-Facilitator.
First proviso. Before instituting the prosecution, that officer "shall satisfy himself that the owner, agent or manager of a mine had failed to exercise due diligence to prevent the commission of such offence".
Second proviso. For an offence committed "in the course of the technical direction and management of a mine", the District Magistrate shall not institute a prosecution against an owner, agent or manager without the previous approval of the Chief Inspector-cum-Facilitator.
So a private complaint against a mine owner, agent or manager is not the route under this Code. Note the Code also makes the owner and agent jointly and severally responsible for certain mine duties in section 7; see our article on section 7. The District Magistrate for a mine is defined in section 2(1)(r).
Section 108: naming the actual offender
Where the owner, agent or manager of the mine, or the employer or occupier of the factory, is charged with an offence, he is entitled, "upon complaint duly made by him and on giving to the prosecutor not less than three clear days' notice in writing", to have any other person whom he charges as the actual offender brought before the court at the time appointed for the hearing.
If, after the offence is proved, the owner, agent, manager, occupier or factory manager shows to the court's satisfaction either:
- (a) that he exercised due diligence to enforce the execution of the Code; or
- (b) that the other person committed the offence without his knowledge, consent or connivance,
then the other person is convicted and liable to the like punishment, and the owner, agent, manager, occupier or factory manager is discharged from liability for that offence.
| Step | Detail |
|---|---|
| Notice | Not less than three clear days, in writing, to the prosecutor |
| Burden | On the accused, to satisfy the court on (a) or (b) |
| Evidence | The accused may be examined on oath; he and his witnesses can be cross-examined by the alleged actual offender and the prosecutor |
| If the named person cannot be produced | Court adjourns from time to time for not more than three months, then hears the charge against the accused and convicts if proved |
Point to watch: the three-day notice is a procedural gate, and it is clear days, so the day of notice and the day of hearing do not count. A factory manager who plans this defence should serve notice early and preserve proof of due diligence: inspection records, training logs and written instructions.
Example. A mine's ventilation fan is switched off by a shift in-charge against written instructions, and the owner is charged. The owner serves written notice on the prosecutor more than three clear days before the hearing naming the shift in-charge, and shows that written safety orders existed and the act was done without his knowledge or consent. If the court accepts this, the shift in-charge is convicted and the owner is discharged.
Need help with prosecution defences?
The roles in sections 106 to 108 turn on documents: who was told what, which safeguards existed and who acted against them. Our legal dispute resolution team can help you assemble the record, serve the section 108 notice on time and plan the defence.
Key takeaways
- Section 106: employee penalty up to Rs 10,000 (clause (d) of section 13 excepted); the employer is not deemed guilty unless he failed to take all reasonable measures.
- Section 107: only the Chief Inspector-cum-Facilitator, District Magistrate or an authorised Inspector-cum-Facilitator can prosecute a mine owner, agent or manager, after checking due diligence.
- Section 108: serve not less than three clear days' written notice to bring the actual offender before the court; the burden is on the accused.
- Keep training, instruction and inspection records.
Read next
- Section 13: duties of the employee
- Sections 109 and 110: offences by companies and limitation of prosecution
- Section 7: duties of the owner, agent and manager of a mine
- 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.