EMPLOYMENTGUARANTEE

ACT

A Primer

March 2014

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1

This Primer is a simple introduction to the

National Rural Employment Guarantee Act

2005. This Act is a law whereby any adult

who is willing to do unskilled manual

labour at the minimum wage is entitled to

being employed on public works within

fifteen days

Publisher: Right To Food Campaign, Secretariat, Delhi

Third Edition: January 2014

Copies: 1000 (One Thousand)

Published by Right to Food Campaign,Secretariat, Delhi for internal circulation only.

ACKNOWLEDGMENTS

The preparation of this booklet was a collective effort. Anearlier version was prepared by Nikhil Dey and Jean Drèzefor a convention on Employment Guarantee and the Right toWork, held at the Constitution Club (New Delhi) on 19October 2004. This version draws on further discussions withmany individuals and organisations during the campaign thatled to the enactment of the National Rural EmploymentGuarantee Act in August 2005: Baba Adhav, SwamiAgnivesh, Shiraz Balsara, Bela Bhatia, GautamBandhyopadhyay,A.B. Bardhan, Sudha Bharadwaj, SubhashBhatnagar, Ashok Bharti, Dipankar Bhattacharya, KiranBhatty, Praful Bidwai, C.P. Chandrasekhar, KashinathChatterjee, Ashok Chaudhry, Kamal Mitra Chenoy, SuneetChopra, H.M. Desarda, Arundhati Dhuru, Sehba Farooqi,Mahmood Farooqui, Jayati Ghosh, Colin Gonsalvez, SmitaGupta, Ravi Kiran Jain, Indira Jaising, Renana Jhabvala,Brinda Karat, Amarjeet Kaur, Reetika Khera, KavitaKrishnan, Madhuri Krishnaswamy, Hemanshu Kumar,Subhash Lomte, Harsh Mander, Babu Mathew, SantoshMathew, Thomas Mathew, Asha Mishra, R.A. Mittal, AnuragModi, Navjyoti, Sandeep Pandey, Kumudini Pati, MedhaPatkar, Prabhat Patnaik, Pradip Prabhu, Ambarish Rai, VinodRaina, Annie Raja, Roma, Vikas Rawal, Aruna Roy, DunuRoy, Samar, N.P. Samy, Abhijit Sen, Binayak Sen, Ilina Sen,Pratibha Shinde, T.S. Shankaran, Gurjeet Singh, GurminderSingh, Shankar Singh, Shekhar Singh, V.P. Singh, AnoopSrivastava, Kavita Srivastava, Pranay Srivastava, NandiniSundar, Sunil bhai, Anuradha Talwar, Rosamma Thomas,Rajni Tilak, Siddharth Varadarajan, Lal Bahadur Varma,Vijay bhai, S. Vivek, and Sitaram Yechury, among manyothers. Much was also learnt during the "Rozgar AdhikarYatra" launched by People's Action for EmploymentGuarantee on 13 May 2005, which travelled through tenstates over a period of fifty days.

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For further information, please send a line torozgar@gmail.com, check the "employment guarantee"section at www.righttofoodcampaign.in, or write to thesecretariat of the "right to food campaign", Tel: 011-29849563, Email: righttofoodindia@gmail.com

Part 1The National Rural Employment

Guarantee Act 2005

The National Rural Employment Guarantee Act 2005 waspassed unanimously in the Lok Sabha on 23 August 2005. Itcame into force in 200 districts on 2 February 2006, and wasextended to all rural districts by 1April 2008.

This section discusses the basic features of the National RuralEmployment GuaranteeAct 2005 (hereafter NREGA2005 or"Employment Guarantee Act" for short). The relevantsections of the Act are mentioned in square brackets.Occasional reference is also made to the "OperationalGuidelines" issued by the Ministry of Rural Development inJanuary 2006. However, a detailed account of theseGuidelines is beyond the scope of this Primer.

The idea is to give a legal guarantee of employment to anyonewho is willing to do casual manual labour at the statutoryminimum wage. Any adult who applies for work under theAct is entitled to being employed on public works withoutdelay. Thus, an Employment Guarantee Act provides auniversal and enforceable legal right to the most basic form ofemployment. It is a step towards legal enforcement of theright to work, as an aspect of the fundamental right to livewith dignity.

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A. GENERAL QUESTIONS

1. What is the basic idea of an Employment GuaranteeAct?

1The full text of the National Rural Employment Guarantee Act 2005 (in English and Hindi)

is available at www.righttofoodindia.org. Other key documents, including the "citizens'draft" mentioned in the Preface and the Operational Guidelines issued in January 2006 by theMinistry of Rural Development, are also available on this website. Detailed information onNREGA 2005 can also be found at www.nrega.nic.in, a special website on NREGAmaintained by the Ministry of Rural Development.

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2. To what extent does the National RuralEmployment Guarantee Act 2005 meet theseobjectives?

3. Why is it important to have an Act, and not just anemployment "scheme"?

NREGA 2005 is a kind of "half-hearted" EmploymentGuarantee Act. Under this Act, any adult who applies forwork is entitled to being employed on public works within 15days. However, this entitlement is subject to some importantlimitations. For instance, the work guarantee applies in ruralareas only, and it is limited to "100 days per household peryear". NREGA 2005 also has other limitations that willbecome clearer as you read on.

This does not mean that the NREGAis worthless. Far from it.For the first time, theAct provides employment opportunitiesto rural labourers as a matter of right. It is also a majordeparture from elitist economic policies, and a potentialstepping stone towards other forms of social security. In thisand other ways, theAct is a real "breakthrough".

An Act provides a legal guarantee of employment. Thisplaces a judicially enforceable obligation on the state, andgives bargaining power to the labourers. It createsaccountability. By contrast, a scheme does not involve anylegal entitlements, and leaves labourers at the mercy ofgovernment officials. There have been numerousemployment schemes in the past: the EmploymentAssuranceScheme (EAS), National Rural Employment Programme(NREP), Jawahar Rozgar Yojana (JRY), SampoornaGrameen Rozgar Yojana (SGRY), National Food For WorkProgramme (NFFWP), among others. Most of them havefailed to bring any security in people's lives. Often people arenot even aware of them.

There is another important difference between a scheme andan Act. Schemes come and go, but laws are more durable. Ascheme can be trimmed or even cancelled by a bureaucrat,whereas changing a law requires an amendment inParliament. Under the Employment GuaranteeAct, labourerswill have durable legal entitlements. Over time, they arelikely to become aware of their rights, and to learn how toclaim their due.

There are many. To start with, an effective EmploymentGuarantee Act (EGA) would help to protect rural householdsfrom poverty and hunger. One hundred days of guaranteedemployment at the minimum wage is not a great privilege, butfor those who live on the margin of subsistence, it can make abig difference. Secondly, the Act is likely to lead to asubstantial reduction of rural-urban migration: if work isavailable in the village, many families will stay in placeinstead of heading for the cities. Thirdly, guaranteedemployment can be a major source of empowerment forwomen. Based on past experience, women are likely toaccount for a large proportion of labourers employed underthe Act, and guaranteed employment will give them someeconomic independence. Fourthly, the EmploymentGuaranteeAct is an opportunity to create useful assets in ruralareas. For instance, there is plenty of scope for buildingproductive water-harvesting structures through labour-intensive methods. Fifthly, guaranteed employment is likelyto change power equations in the rural society, and to foster amore equitable social order.

Last but not least, the Employment Guarantee Act is a meansof strengthening the bargaining power of unorganizedworkers. This, in turn, could help them to struggle for otherimportant entitlements, such as minimum wages and social

4. What are the potential benefits of an EmploymentGuaranteeAct?

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security. The process of mobilising for effectiveimplementation of the Act also has much value in itself. It is aunique opportunity for "unorganised workers" to organise,which could give a new lease a life to the labour movement inlarge parts of India.

The work guarantee is a "universal" entitlement - any adult isentitled to apply. The Act is based on the principle of self-selection: anyone who is willing to do unskilled manuallabour at the minimum wage is presumed to be in need ofpublic support, and must be provided employment ondemand. If anyone tells you that the work guarantee is onlyfor households with a "BPLcard", do not believe it!

Yes. As mentioned earlier, the employment guarantee isrestricted to "100 days per household per year". Note that"year" here refers to the financial year, which starts on 1April.In other words, on 1 April each household gets a new "quota"of 100 days for the next twelve months. Note also that thequota of 100 days can be "shared" between adult members ofthe household: different persons can work on different days,or even on the same day, as long as their combined days ofemployment do not exceed 100 days in the financial year.From January 2014, scheduled tribe households that havebeen provided land under the Forest Rights Act 2006 will beentitled to 150 days of work in a year.

The National Rural Employment Guarantee Act 2005 applies

5. Who is entitled to work under the EmploymentGuaranteeAct?

6. Is there a limit on the number of days of guaranteedemployment over the year?

8. What about urban areas?

to rural areas only. Extending the employment guarantee tourban areas would require a separate "Urban EmploymentGuaranteeAct". Meanwhile, the National Rural EmploymentGuarantee Act itself is likely to be helpful to urban workers,because some of them will be able to stay in their village andget work there instead of migrating to the cities. Also, thereduction of rural-urban migration will lead to higher wagesfor those who stay in the urban areas.

The State of Maharashtra passed an Employment GuaranteeAct in 1976. It is still in force today.And in some respects, it isstronger than the National Rural Employment Guarantee Act2005. In particular, Maharashtra's EGA provides anindividual and unlimited work guarantee: any adult can applyat any time for any number of days there is no limit such as"100 days per household per year".

The National Rural Employment Guarantee Act 2005 directsevery State Government to prepare a Rural EmploymentGuarantee Scheme (REGS) within six months, in order toimplement the work guarantee. Thus, the Act provides thelegal foundation of the work guarantee, and the Scheme is themeans through which this guarantee comes into effect. Notethat the Act is a national legislation, but the Scheme is state-specific. Although each state is free to frame its own RuralEmployment Guarantee Scheme, this is subject to certain"basic features" that are spelt out in Schedule I of the Act. For

9. Does the proposed Employment GuaranteeAct haveany precedent?

B. THE EMPLOYMENT GUARANTEESCHEME

10. What is the relation between the EmploymentGuarantee Act and the "Employment GuaranteeScheme"?

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instance, Schedule I specifies the type of works that can beundertaken under REGS, and the minimum facilities that areto be provided at the worksite. Each REGS is also supposed tofollow the "Operational Guidelines" issued by the Ministry ofRural Development in 2013.

The list of permissible works under the Act has been recentlyexpanded. Schedule I of the Act lists four categories of worksthat are supposed to be "the focus of the Scheme". These newworks strengthen the link between NREGA and rurallivelihoods particularly agriculture and emphasise thecreation of 'durable' assets. (i) Category A includes publicworks that promote natural resource management such asirrigation works, afforestation and renovation of traditionalwater bodies. (ii) Category B includes individual works onland owned by scheduled castes, scheduled tribes othertraditional forest dwellers, Indira Awaas and land reformbeneficiaries, single women, persons with disability,nomadic and denotified tribes and other families below thepoverty line. (iii) Category C various livelihood activities andworks that promote agricultural productivity and can be takenup by self help groups under the National Rural LivelihoodMission. (iv) Category D includes rural infrastructure workssuch as toilet construction, roads and food grain storagestructures. Finally 'any other work' that is notified by theMinistry of Rural Development in consultation with the stategovernment may be taken up.

Schedule I of the Act state that atleast one category A workwhich is labour intensive must remain open at all times inevery gram panchayat along with atleast one work which issuited to the elderly and persons with disabilities.

11. What kinds of work can be taken up under the RuralEmployment Guarantee Scheme?

12. Can works under REGS be taken up in urban areas?

13. Are there any other important restrictions onREGS works?

14. Who will be responsible for implementing the RuralEmployment Guarantee Scheme?

In principle, no. The Act states that work will be employmentto every household 'in rural areas as per demand' [Schedule I,para 3.1]. A 'rural area' is defined by the Act as any area that isnot covered by an urban local body.

"New works" can be initiated only if (1) at least fifty labourersbecome available for such work, and (2) the labourers cannotbe absorbed in the ongoing works. However, this restrictioncan be waived by the State Government "in hilly areas and inrespect of afforestation".

The Rural Employment Guarantee Scheme will beimplemented by the State Government, with funding from theCentral Government. According to Section 13, the "principalauthorities" for planning and implementation of the Scheme arethe Panchayats at the District, Intermediate and village levels.However, the division of responsibilities between differentauthorities is actually quite complex, as we shall see further on.

The basic unit of implementation is the Block. In each Block,a "Programme Officer" will be in charge. The ProgrammeOfficer is supposed to be an officer of rank no less than theBlock Development Officer (BDO), paid by the CentralGovernment, and with the implementation of REGS as his orher sole responsibility. The Programme Officer isaccountable to the "Intermediate Panchayat" as well as to theDistrict Coordinator. We shall return to this in Section E, afterdiscussing the entitlements of the labourers employed undertheAct.

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C. WORKERS' ENTITLEMENTS

15. How are labourers expected to apply for workunder the Rural Employment Guarantee Scheme?

It is basically a "two-step" procedure. The first step is to"register" with the Gram Panchayat. The second step is toapply for work. Registration is required only once every fiveyears, but applications for work have to be submitted eachtime work is required.

The main purpose of the registration process is to facilitateadvance planning of works. If a household applies forregistration, it is the duty of the Gram Panchayat to register itand issue a "job card". The job card will ensure that labourersare in possession

of a written record of the number of days they haveworked, wages paid, unemployment allowances received,and so on, instead of depending on government officials forthis purpose. A job card is supposed to be valid for five yearsat least. Job cards will be renewed after verification. Once ajob card has been made it cannot be cancelled unless it is aduplicate or if the family has permanently migrated to anothergram panchayat. “Special job cards” will be issued to personsthat belong to particularly vulnerable groups such as theelderly, primitive tribals and released bonded labourers.However what “special protection” will be provided by thesecards has not been clearly defined in the schedules.

Applications for work may be submitted orally or in writing atany time, either through the ward member or through theGram Panchayat or directly to the Programme Officer. Allhave a duty to accept applications and to issue a dated receiptto the applicant [Schedule II, Para 8].Applications for workcan also be registered on toll free numbers, directly on theNREGA website or through any other system set up by the

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central or state government. A rozgar diwas must also be heldin every ward and gram panchayat atleast once a month wheredemand for work applications can be submitted.Applicationsshould be for at least 14 days of continuous work [Schedule II,Para 11]. The Act provides for group applications, advanceapplications, and multiple applications over time [ScheduleII, Paras 9, 12 and 13]. Applicants are supposed to be toldwhere and when to report for work within 15 days, by meansof a letter as well as of a public notice displayed on the noticeboard of the Gram Panchayat and at the office of theProgramme Officer [Schedule II, Paras 16 and 17].

For households that do not have a job cards, job cards andwork demand registration can take place simultaneously andthe fifteen day time limit will apply here as well.Note that the unit of registration is the "household", whileapplications for work are individual applications. Furtherdetails of the registration and applications procedures aregiven in the Operational Guidelines.

No household can be denied the issue of a jobcard orregistration of work demand on grounds that they do not havea bank or post office account and/or an adhaar number. TheProgramme Officer will ensure a bank/post office account forthe household is opened within fifteen days of receiving theapplication for job card or work demand.

The Act defines a household as "the members of a familyrelated to each other by blood, marriage or adoption andnormally residing together and sharing meals or holding acommon ration card" [Section 2(f)]. The problem with thisdefinition is that members of a "joint family" who livetogether and share a ration card may be treated as a single

Can a labourer register demand without a bank or postoffice account?

16. How is a "household" defined in theAct?

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household, even if the household is quite large. This will beunfair to large households, because they will be entitled to thesame 100 days of work per year as small households, even iftheir needs are much larger.

Labourers are entitled to the statutory minimum wageapplicable to agricultural workers in the State, unless theCentral Government "overrides" this by notifying a differentwage rate. If the Central Government notifies a wage rate, it issubject to a minimum of Rs 100 per day. [Section 6]

Payment will be based on the quantity of work done. Theschedule of rates drawn up for each work should be such thata person working at a normal pace for seven hours would earnthe minimum wage. The schedule of rates should be regularlyrevised in keeping with changes in soil type and seasons. Aseparate schedule of rates for women, the elderly and peoplewith disabilities must be prepared by each state.

Wages will be paid through individual savings accountseither through banks or post offices. The Central Governmentmay make exemptions in some cases and allow for paymentto be made in cash. [Schedule II section 30]

Wages are to be paid every week, or in any case "not later thana fortnight after the date on which such work was done"[Section 3(3)].

17. How much are labourers supposed to be paid underthe Rural Employment Guarantee Scheme?

18. What will be basis of wage payment?

19. Will wages be paid in cash or in kind?

20. What about the regularity of wage payments?

21. What if wages are not paid on time?

22. Can different wages be paid to men and women?

23. Are labourers entitled to any specific facilities at theworksite?

24. What about facilities for the care of young children?

In such cases, labourers are entitled to compensation at therate of 0.05% of unpaid wages for each day of delay. Thisamount will be automatically calculated by the MIS[Schedule II para 29]. It is important to note that thiscompensation amount is over and above the compensationthat can be claimed by the worker as per the provisions of thePayment of WagesAct 1936

Certainly not. Men and women are entitled to the same wages.In fact, any form of gender discrimination is prohibited.[Schedule II, Para 17 and 31]

Yes. The following facilities are supposed to be available atthe worksite: "safe drinking water, shade for children andperiods of rest, first-aid box with adequate material foremergency treatment for minor injuries and other healthhazards connected with the work" [Schedule II, Para 23]. Thisis not very much, but even these basic facilities are oftenmissing at the worksites it is important to insist that theyshould be in place.

The Act states that "in case the number of children below theage of five years accompanying the women working at anysite are five or more, provisions shall be made to depute one ofsuch women workers to look after such children". Further, theperson who is deputed to look after young children is entitledto the same minimum wage as other labourers [Schedule II,Para 24].

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25. Where will the work be provided?

26. Is there any provision in the Act for the employmentof persons with disabilities?

27. What happens if there is an accident at an REGSworksite?

"As far as possible", work must be provided within 5 km ofthe applicant's residence. If it is provided beyond that radius,work must be provided within the Block, and workers must bepaid daily transport and living allowances equivalent to 10per cent of the wage rate. [Schedule II, Paras 18 and 20]

Yes. Every panchayat must have atleast one work suitable forpersons with disabilities (and the aged) at all times. Theremust be a separate schedule of rates of persons withdisabilities along with “special protection” in providingwork, work evaluation and worksite facilities [Schedule Ipara 9, 18 and schedule II para 1]. The operational guidelinesincludes a comprehensive list of works for persons withdisabilities and indicates a number of additional steps that canbe taken for mobilization such as special identification drivesand worksite management such as introducing modifiedtools.

If a labourer is injured "by accident arising out of and in thecourse of his employment" under the Rural EmploymentGuarantee Scheme, he or she is entitled to "such medicaltreatment as is admissible under the Scheme", free of charge.If hospitalisation is required, he or she is entitled toaccommodation, treatment, medicines and a daily allowance"not less than half the wage rate". There are similar provisionsfor children who may be accompanying labourers employedunder the Scheme. In case of death or permanent disability, anex gratia payment as per the entitlements of the Aam AadmiBima Yojana ("or such amount as may be specified by the

Central Government") is to be paid to the victim or his or herfamily. [Schedule II, Paras25,26,27,28 ]

No. They have to accept whatever employment is given tothem by the Gram Panchayat or Programme Officer At best,they have some indirect say in the matter in so far as theyparticipate in the process of planning the works, throughGram Sabhas and other means (see Section E below).

If an applicant fails to report for work within 15 days of beinginformed that work is available, he or she stands debarredfrom receiving the unemployment allowance for a period ofthree months.

Anyone who has not been provided with work within 15 daysof applying (or within 15 days of the date for whichemployment is sought, in the case of "advanceapplications"). [Section 7(1)]

This is certainly the intention. Section 7(1) suggests thatlabourers who have not been provided with work have an

28. Can labourers exercise any choice regarding thetype of work that is given to them?

29. What happens if someone applies for work but doesnot report for work when employment is provided?

D. UNEMPLOYMENT ALLOWANCE

30. Who is entitled to an unemployment allowanceunder the Employment GuaranteeAct?

31. In such circumstances, is the State Governmentobliged to pay the unemployment allowance?

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unconditional right to the unemployment allowance. This isqualified in Section 7(2), which states that the payment of theallowance is "subject to such terms and conditions ofeligibility as may be prescribed by the State Government andsubject to the provisions of this Act and the Schemes and theeconomic capacity of the State Government".To claimunemployment allowance it is important to have a datedreceipt of work demand. The MIS also automaticallycalculates unemployment allowance that the stategovernment is bound to pay.It is important to insist on thepayment of the unemployment allowance in all cases wherelabourers have not been provided with work.

The unemployment allowance has several roles. First, itprovides a limited form of unemployment assistance to thosewho are waiting for work. Second, it provides a clear "signal"that the responsible authorities are failing to provideemployment to all applicants. Third, it acts as a "penalty" onthe State Government for this failure, since the payment ofunemployment allowances is the responsibility of the StateGovernment.

This penalty creates a strong incentive for the StateGovernment to provide work. This is because employmentcosts are borne overwhelmingly by the Central Government,while the unemployment allowance is paid by the StateGovernment. Therefore, State Governments can "savemoney" by providing employment instead of paying theallowance. However, for this incentive to work, theunemployment allowance must be actually paid, and notremain "on paper" as has happened in Maharashtra (where the

32. What is the role of the unemployment allowance?

unemployment allowance has never been paid). This is whythe actual payment of the unemployment allowance is soimportant.

The unemployment allowance is to be fixed by the StateGovernment. However, it must be "no less than one-fourth ofthe wage rate" for the first thirty days, and "not less than one-half of the wage rate" afterthat. [Section 7(2)]

The unemployment allowance is to be paid "not later thanfifteen days from the date on which it became due forpayment" [Section 7(5)].

The payment of the unemployment allowance can bediscontinued in the following circumstances: (1) the recipienthas been directed to report for work by the Gram Panchayat orthe Programme Officer; (2) the period for which employmentis sought has come to an end; (3) the recipient's household hasexhausted its "quota" of 100 days of work (within thefinancial year); (4) the household has earned as much as thewages of one hundred days of work, from the unemploymentallowance and wage employment combined, within thefinancial year. [Section 7(3)]

33. What is the level of the unemployment allowance?

34. What is the time frame for the payment of theunemployment allowance?

35. When does someone who is receiving theunemployment allowance cease to be eligible for it?

__________

2. If a worker who has applied for work under NREGA is not provided employment within15 days from the date on which work is requested, an unemployment allowance shall bepayable by the State Government at the rate prescribed in the Act. This entitlement comesinto effect as soon as theAct is notified in a particular District or area."

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E. IMPLEMENTATION AND MONITORINGAUTHORITIES

36. What are the responsibilities of the "ProgrammeOfficer" in the Rural Employment GuaranteeScheme?

Note: The National Rural Employment GuaranteeAct 2005 isa complex plot with many actors. The main actors are: theState Council, the District Programme Coordinator, theIntermediate Panchayat, the Gram Panchayat and the GramSabha, aside from "implementing agencies" other than thePanchayats. There is an elaborate division of responsibilitiesbetween these different authorities, and the details are notalways clear from the Act. An attempt is made below topresent a simplified account of the facts. For further details,please consult theAct and Operational Guidelines.

The Programme Officer essentially acts as a "coordinator" forthe Rural Employment Guarantee Scheme at the Block level.Within the Block, two separate processes take placesimultaneously. On one side, people are applying for workthrough the Gram Panchayat, or directly to the ProgrammeOfficer in both cases the applications eventually reach his orher office. On the other side, proposals for works to be takenup under REGS ("projects" for short) are being prepared bythe "implementing agencies": the Intermediate Panchayat,the Gram Panchayats, line departments, NGOs, and so on.The Programme Officer stands at the intersection of these twoprocesses: he or she receives the applications for work as wellas the project proposals, and is supposed to "match" the two.This involves sanctioning projects in such a way that all thosewho have applied for work can be employed within 15 days.

Aside from this "planning" role, the Programme Officer has a"monitoring" role. He or she is supposed to monitor theimplementation of the works sanctioned, ensure that wages

are paid on time, deal with any complaints that may arise,enforce all the transparency provisions, and so on. The list ofresponsibilities is quite long and hard to summarise the mainduties of the Programme Officer are listed in Box 1.

Ultimately, the chief responsibility of the Programme Officeris to ensure that anyone who applies for work getsemployment within 15 days, or in other words, to safeguardthe basic entitlements of labourers under theAct. When this isnot possible, he or she has to sanction and disburse theunemployment allowance, and explain in his or her annualreport why employment could not be provided. TheProgramme Officer is accountable to the IntermediatePanchayat and the District Programme Coordinator.

37. Can you clarify what is meant by "implementingagencies"?

Implementing agencies include any agency that is "authorizedby the Central Government or the State Government toundertake the implementation of any work" taken up underREGS [Section 2(g)]. The main implementing agencies arethe Gram Panchayats: at least 50 per cent of the works (interms of share of the REGS funds) have to be implementedthrough the Gram Panchayats [Section 16(5)]. Otherimplementing agencies include the Intermediate Panchayats,the District Panchayats, and "line departments" such as thePublic Works Department, the Forest Department, theIrrigation Department, and so on. The EmploymentGuarantee Act also allows NGOs to act as implementingagencies. Even the works of implementating agencies otherthan the Gram Panchayat must be presented before the gramsabha and included in the annual shelf of works.

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Box 1:Main Responsibilities of Various Actors at the Block Level

Responsibilities of the Block Officer

1. Ensure that every applicant is provided unskilled manual work inaccordance with the provisions of the Scheme within fifteen days.

2. Prepare a plan for the Block by consolidating the project proposalsprepared by the Gram Panchayats and other implementing agencies.

3. Match the demand for employment with the employment opportunitiesavailable in the Block.

4. Receive applications for work and issue a dated receipt to the applicant.(This responsibility is shared with the Gram Panchayat.)

5. Notify applicants to report for work. (This responsibility is also shared

6. with the Gram Panchayat.)

7. Ensure prompt and fair payment of wages to all labourers employed underREGS.

8. Sanction and disburse the unemployment allowance.

9. Sanction projects to be taken up by the Gram Panchayats as well as byother implementing agencies within the jurisdiction of the ProgrammeOfficer.

10. Monitor the projects taken up by the Gram Panchayats and otherimplementing agencies within the Block.

11. Keep a copy of the muster rolls available for inspection "by any personinterested".

12. Ensure that regular social audits of all works are carried out by the GramSabha.

13. 12. Deal promptly (within seven days) with any complaint that may arise inconnection with the implementation of the Scheme.

14. Prepare an annual report on the implementation of REGS in the Block.

15. Assist the "Intermediate Panchayat" in discharging its functions under theAct.

16. Any other work that may be assigned to the Programme Officer by theDistrict Programme Coordinator or the State Government.

Note: "All or any" of the functions of the Programme Office can be delegated tothe Gram Panchayat by the State Government (see text).

B. Responsibilities of the Intermediate Panchayat

C. Responsibilities of the Gram Panchayat

D. Responsibilities of the Gram Sabha

1. Send "proposals" of works to be taken up under REGS to the ProgrammeOfficer.

2. Implement projects that have been sanctioned by the Programme Officer.

3. Approve the Block Plan and forward it to the District Panchayat for finalapproval.

4. Supervise and monitor the projects taken up at the Gram Panchayat and Blocklevel.

5. Any other duties that may be assigned to the Intermediate Panchayat by theState Council.

1. Prepare a development plan and maintain a shelf of possible works to be takenup under REGS, taking into account the recommendations of the Gram Sabha.

2. Register those who are willing to work under REGS and issue a job card tothem.

3. Receive applications for work and issue a dated receipt to the applicant.

4. Allocate work opportunities among the applicants and ask them to report forwork.

1. Display a list of persons who are being provided with work on its noticeboard.

2. Implement works that have been sanctioned by the Programme Officer.

3. Make all relevant documents available to the Gram Sabha for the purpose ofsocial audits.

4. Keep a copy of the muster rolls available for public scrutiny at the Panchayatoffice.

5. Prepare an annual report on the implementation of the Scheme.

1. Recommend "projects" to the Gram Panchayat and make recommendations tothe Gram Panchayat for the "development plan" and "shelf of possibleworks".

2. Monitor the execution of works within the Gram Panchayat.

3. Conduct regular social audits of all the projects taken up within the GramPanchayat.

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38. Can private contractors act as implementingagencies?

39. What is the role of the Gram Panchayat in the RuralEmployment Guarantee Scheme?

40. What is the role of the Gram Sabha in the RuralEmployment Guarantee Scheme?

No. The Act clearly states: "The [Employment Guarantee]Scheme shall not permit engaging any contractor forimplementation of the projects under it" [Schedule I, Para 21].In short, contractors are banned.

To start with, the Gram Panchayat has to process applicationsfor "registration" and employment. This involves registeringpotential workers, issuing job cards to them, receiving theirapplications for work, forwarding these to the ProgrammeOfficer, and informing the applicants as and when work isavailable. Applications for registration and employment canalso be submitted directly to the Programme Officer, butnormally they are expected to be submitted at the GramPanchayat level.

As we saw, the Gram Panchayat is also the main"implementing agency". It is expected to prepare a"development plan" for the village and maintain a shelf ofprojects to be taken up under REGS, based on therecommendations of the Gram Sabha. The Gram Panchayatalso executes these projects, as and when they are sanctionedby the Programme Officer. All the relevant documents,including the muster rolls, are to be made available to theGram Sabha for the purpose of "social audits". Monitoring ofREGS works implemented by the Gram Panchayat is theresponsibility of the Gram Sabha and the Programme Officer.

The Gram Sabha is expected to monitor the work of the Gram

Panchayat, and also to participate in the planning process. Inparticular, the Gram Sabha will discuss and prioritise theworks to be taken up, conduct regular social audits of allworks carried out in the Panchayat, and verify that all therelevant norms are being observed. Resolutions of the GramSabha are to be given priority in the planning of REGS worksby the Gram Panchayat and the Programme Officer.

At the District level, the supervision of the RuralEmployment Guarantee Scheme is the responsibility of the"District Programme Coordinator". The District ProgrammeCoordinator is expected to coordinate the work of theProgramme Officers, for instance by consolidating theirrespective "plans" into a District-level shelf of projects[Section 14(3)(b)]. The District Coordinator is also expectedto prepare a "labour budget" every year during the month ofDecember, for the next financial year. Other responsibilitiesof the District Coordinator include conducting regularinspections of the works in the District, sanctioning worksthat are not within the jurisdiction of Programme Officers,assisting the District Panchayats, and preparing an annualreport to the State Council.

At the State level, the Rural Employment Guarantee Schemeis to be monitored by a State Employment Guarantee Council(or "State Council" for short). The State Council is essentiallyan advisory body for the State Government. For instance, theState Council is expected to advise the State Government onthe "schedule of rates" (payment rates for piece-rate work),the level of the unemployment allowance, and monitoringarrangements. Other key responsibilities of the State Councilinclude preparing a list of "preferred works" to be taken up ona priority basis, conducting evaluations of REGS, andpreparing an annual report to be laid before the StateLegislature.

41. What happens above the Block level, say at theDistrict and State levels?

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Finally, theAct calls for the creation of a Central EmploymentGuarantee Council (or "Central Council" for short). Thefunctions of the Central Council are similar to those of theState Council, at the national level. The Central Councilmonitors the implementation of theAct country-wide, advisesthe Central Government, and prepares an annual report to belaid before Parliament.

Yes, Schedule I of theAct spells out a number of transparencyand accountability measures. a) In addition to job cards thatare given to every households to track their payment andmaking muster rolls and other programme documentsavailable for public scrutiny, the schedule calls for thebuilding of a “Janta Information System”. This will includedisclosing programme related information through wallpaintings and worksite boards for instance. b) Regular "socialaudits" that shall audit both access to entitlements andexpenditure,of all REGS works are to be conducted by theGram Sabhas twice a year. c) “Concurrent social audits” of allworks will also take place every month through volunteers orvillage level organizations such as SHGs. The box below liststhe transparency accountability provisions as extensively laidout in schedule I para 25. For further details, see Chapters 13of the Operational Guidelines.

Complaints can be submitted at at any time at various levelsfrom the panchayat to the state through multiple channelssuch as helplines or in writing.All registered complaints mustbe given a receipt. In addition to this route for registeringgrievances, grievances can also be submitted during the

F. TRANSPARENCY AND ACCOUNTABILITY

42. Have any safeguards against corruption beenincluded in the Employment GuaranteeAct?

What are the grievance redress mechanisms that the Acthas put in place?

Box 2:

Transparency Provisions in the schedules

Schedule I of the Act includes detailed provisions for transparency and

accountability.

1. Display of “janta” estimates at every worksite

2. List of beneficiaries, payments made, entitlements and expenditure

incurred of works in the GPwall paintings.

3. Shelf of projects, funds received and expenditure displayed on boards

in the gram panchayat office

4. Mandating concurrent social audits to take place using the resources of

Bharat Nirman Volunteers, Vigilance and Monitoring Committees and

workers and verifying worksites on a.regular and periodic basis

5. Mandating social audits that facilitate audit of access to entitlements

and expenditure incurred through independent social audit units set up

by States

6. Ensuring a comprehensive and time bound protocol that synergises the

responsibilities of Vigilance and Monitoring Committees,

Ombudspersons, Programme Officers, DPC, Social Audit Units etc

The Guidelines also emphasise that the Right to Information Act should be

"followed both in letter and in spirit in all matters relating to NREGA"

In particular:

"Requests for copies of REGS-related documents submitted under

NREGA should be complied with within seven days. No request should

be refused under any circumstances and all documents related to

MGNREGA should be available in the public domain in compliance

with Section 4, RTI

"Fees charged for copies of NREGA-related documents should not

exceed photocopying costs." (p. 42)

§

§

rozgar diwas held on fixed days every month at the ward orgram panchayat level. Disposal must take place within 15days of filing the grievance. Grievances can also be submittedto the Ombudsperson appointed at the district level. [forfurther details see schedule I para 29].In addition, everyworker under MGNREGA has a right to be heard and registerany grievance at any point and it shall be the responsibility ofthe State to ensure its timely redress.

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43. How can the Right to Information Act help toenforce all the transparency provisions of theEmployment Guarantee Act and OperationalGuidelines?

44. The so-called "anti-corruption clause" in NREGAhas caused some controversy. What is this anti-corruption clause?

The Right to Information Act is very strong, and gives legalbacking to these transparency provisions. For instance, theRight to Information Act contains extensive provisions for"mandatory disclosure" of public documents (i.e. makingthese documents available in convenient form for publicscrutiny without waiting for anyone to ask for them). It alsocalls for stiff penalties against officers who fail to supplyinformation as prescribed, or fail to accept requests forinformation. Schedule I of the Act also explicitly states thatthe MIS must “

The Right to Information Act empowers you not only toaccess documents but also to take samples of materials and toinspect works and files. It also has a provision such that ifinformation is wrongfully delayed or denied to a citizen, theconcerned public authority can be required "to compensatethe complainant for any loss or other detriment suffered".Further, this Act overrides the provisions of all other acts, ifthere is a conflict. Thus, the Right to Information Actpowerfully supplements the transparency provisions of theNREGA 2005 and its Operational Guidelines. Skilful use ofthe Right to Information Act is an essential tool of effectiveimplementation of the Employment GuaranteeAct.

This clause essentially states that in the event where theCentral Government receives any complaint of "improperutilization of funds" and is "prima facie satisfied" that there is

fully comply with all the seventeen provisionsof Section 4 (1) (b) of the Right to InformationAct (22 of 2005)”

a case, it can "order stoppage of release of funds to theScheme" [Section 27(2)]. At first glance this may seemreasonable, and the concern about corruption is well taken.However, this clause is actually impractical, unfair, counter-productive and open to misuse. The basic problem is that ithits the victims of corruption instead of the perpetrators. Thestrongest potential force against corruption is people'svigilance, but this clause threatens to undermine theincentives that people (especially labourers) have to "blowthe whistle" in the event of corruption: if funds arediscontinued, work will stop and they will be the mainvictims.

Further, this clause gives the Central Government sweepingpowers to stop releasing funds in a selective manner, evenwithout adequate evidence of corruption. Entire "schemes"could be starved of funds based on flimsy suspicions ofcorruption or politically motivated complaints. Areas couldbe targeted and specific schemes could get bogged down inbattles between Centre and States.

What is required, instead of this flawed clause, is tostrengthen transparency measures and enable people tomonitor the works. This should also be backed by strong andimmediate action against those found guilty of corruption.

The Central Government is required to pay for the wages oflabourers employed under REGS, and for three fourths of thematerial costs. The State Government has to pay for onefourth of the material costs, and also the unemploymentallowance. If the labour-material ratio is 60:40 (the"minimum" ratio under the Act), this means that State

G. OTHER QUESTIONS

45. How are costs going to be shared between theCentral Government and the State Governments?

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Governments will pay 10 per cent of the employment costs,plus the unemployment allowance. For delayed paymentcompensation,

Note that the labour component in this cost-sharing formularefers to "unskilled labour" only. The cost of employingskilled labour is counted under "material costs". As far asadministrative and overhead costs are concerned (e.g. thesalaries of implementing officers), the Act does not provide arigid formula and the details are likely to be settled when the"Rules" are framed.

This may be feasible in some states, and over time, the scopefor entrusting REGS to the Gram Panchayats is likely toexpand. However, in many states there is a long way to go increating the conditions that would enable Gram Panchayats toimplement such a challenging scheme in an effective manner.This is one reason why the Act takes the Block as the basicunit of implementation, rather than the Gram Panchayat.Another reason is that it may be difficult to "match" thedemand for work with employment opportunities at thevillage level: some villages may have a large demand forwork and few employment opportunities, or vice-versa. Thematching is likely to be easier at the Block level.

However, the Act allows for any of the Programme Officer'srespnsibilities to be delegated to the Gram Panchayats: "TheState Government may, by order, direct that all or any of thefunctions of a Programme Officer shall be discharged by theGram Panchayat or a local authority." [Section 15(7)] Thus,the Act effectively permits implementation through Gram

the State Government shall pay thecompensation amount upfront within the fifteen day time limitand then recover this amount from the functionaries responsiblefor the delay.

46. Shouldn't the Rural Employment Guarantee Schemebe implemented entirely by the Gram Panchayats?

Panchayats if this is deemed possible and desirable.

TheAct states that "priority" should be given to women in theallocation of work, "in such a way that at least one-third of thebeneficiaries shall be women" [Schedule II, Para 15]. Theschedules of the Act list a number of provisions to encouragewomen's participation such as a separate schedule of rates,prioritisin individual assets on the land of women-headedhouseholds and child care services at the worksite. What isnot very clear is how this "quota" is to be implemented in theevent where the proportion of women among all applicants isless than one third. The best thing to do is to encouragewomen to apply, and facilitate their applications, to ensurethat this situation does not arise. In areas with a strongtradition of women's employment outside the household, it islikely that women will account for more (often much more)than one third of all applicants. In other areas, however, thismay require pro-active steps to facilitate their participation inthe Rural Employment Guarantee Scheme.

Ideally, there should be explicit penalties against responsibleofficers in the event where they fail to perform their dutyunder the Act. And there should be stiff penalties for grossviolations of the Act, such as refusal to register someone'sapplication for work, of failure to pay the unemploymentallowance. Unfortunately, the Act is quite weak in thisrespect. All it says is that "whoever contravenes theprovisions of this Act shall on conviction be liable to a finewhich may extend to one thousand rupees". Strongerpenalties may of course be introduced in the Rules tobe framed by State Governments.

47. Are women likely to get a fair share of employmentunder the Rural Employment Guarantee Scheme?

48. What happens if the responsible officers (e.g. theProgramme Officer) fail to perform their dutyunder theAct?

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49. Does the National Rural Employment GuaranteeAct 2005 leave room for state- specific EGAs also?

50. This Primer often refers to "Schedule I" and"Schedule II" of theAct what are these Schedules?

Yes. State Governments will be allowed to frame their ownEmployment Guarantee Act if they wish, provided that (1) itis consistent with NREGA2005, and (2) it does not reduce theentitlements of labourers ("the entitlement of the householdsis not less than and the conditions of employment are notinferior to what is guaranteed under thisAct"). [Section 28]

Note that in such cases, financial assistance from the CentralGovernment is to be "determined by the CentralGovernment", and is not supposed to exceed "what the Statewould have been entitled to receive under this Act had aScheme made under thisAct had to be implemented" [Section28]. How this upper limit is to be calculated, however, is notvery clear from theAct.

Schedule I and Schedule II deal with "the minimum featuresof a Rural Employment Guarantee Scheme" and "theentitlements of labourers", respectively. The main differencebetween the Schedules and the main text of the Act is that theSchedules can be modified by "notification" of the CentralGovernment, whereas modifying the text of the Act requiresan amendment in Parliament. "Notification" is a simplerprocedure than "amendment" (though both require theconsent of Parliament), and to that extent the entitlementsdefined in the Schedules are "weaker" than those defined inthe main text, since they can be modified more easily. There isa potential "loophole" here, which has to be borne in mind ininterpreting theAct. On the other hand, the relative flexibilityof the Schedules can also be seen as an opportunity to bringabout further improvements in the Act through publicpressure.

Part 2What We Can Do

We end this Primer with a few ideas about "what we can do" tointensify the campaign for a full-fledged EmploymentGuarantee Act. Many of them have already been used withgood effect somewhere or the other. We hope that theseexamples and suggestions will help you to initiate similaractivities in your own area.

o Spreading awareness about the National RuralEmployment Guarantee Act (NREGA) is the first step.This Primer is one possible tool for this purpose. Here area few ways in which it can be used:

- Read the Primer and organize discussions orworkshops around it.

- Translate the Primer into local languages anddisseminate it.

- Print extracts of the Primer as a "poster" and display itin public places.

o Cultural tools and activities, such as songs and plays, canalso be used to spread the word.

o Padyatras, cycle yatras, or even bus yatras can beorganised to spread awareness, gather information, andalso to agitate for simple transparency measures (such as"suchna patts" or information boards).

Awareness Campaigns

3

3 Another useful tool is the 30-minutes film "Kaam ka Adhikar", available from thesecretariat of the Right to Food Campaign (see contact details at the end of this booklet).

3332

o People also need to learn and practice the procedures thatare to be followed once the Act is in place. As you know,unlike earlier public works programmes the NREGA issupposed to be "demand-driven": projects are supposedto be initiated in response to people's demand for work.Here are some possible activities related to this process:

- Organize kaam mango abhiyan at the GramPanchayat.

- Raise NREGA-related issues at Gram Sabha andGram Panchayat meetings.

- Organize labourers into worker collectives in yourarea.

- Encourage and help women to apply.

- Prepare proposals for works and present them in theGram Sabha

Directly register people for work: Sign up on behalf of acivil society organization and directly enter demand forwork on behalf of jobcard holders onto .

Prepare a "primer" based on your state's REGS.

o Avariety of monitoring activities can be taken up:

- Get copies of the District's "Perspective Plan" andconduct public hearings around this. The PerspectivePlan is supposed to be prepared in a participatorymanner, based on wide consultations, but often this isnot the way it happens in practice. Studying and

Monitoring of works

www.nrega.nic.in

debating the Plan is an opportunity to learn about, andto get involved in, the planning process.

Organize a survey of NREGA worksites to checkwhether the provisions of the Act and OperationalGuidelines are being followed.

- Monitor works, and use the transparency andaccountability provisions of the NREGA and theRight to Information Act to fight corruption. Forinstance, you could conduct social audits, or just"muster roll verification" exercises, at selectedNREGAworksites.

o There is also a continued need for organised pressure onthe State Government, relating for instance to the designof an effective "Rural Employment Guarantee Scheme"(REGS), the payment of unemployment allowances, theproactive disclosure of key documents, and so on.

o The best way of making NREGA work is to empowerthose who stand to gain from it. This means, first andforemost, NREGA workers and potential workers. Theprocess of organising NREGA workers also has muchvalue in itself, and can be used as a springboard for otherstruggles, e.g. for for minimum wages and social security.

o Organise labourers and help them to claim theirentitlements under the Act: insist on payment of statutoryminimum wages, enforce the payment of theunemployment allowance, ensure that basic worksitefacilities are in place, demand action in cases ofcorruption, and so on. Organisations and associations of

-

Organising for workers' entitlements

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NREGA labourers can perhaps be formed for thispurpose, aside from working with existing organisations.

These are just a few examples of "what we can do".We leave the rest to your imagination!

Appendix

National Rural Employment Guarantee Act:A Summary

Details of the guarantee

Eligibility:

Entitlement:

Distance:

Wages:

Timely payment:

The National Rural Employment GuaranteeAct 2005 is a lawwhereby any adult who is willing to do unskilled manualwork at the minimum wage is entitled to being employed onpublic works within 15 days of applying. If work is notprovided within 15 days, he/she is entitled to anunemployment allowance. The key features of the Act arespelt out below.

1. Any person who is above the age of 18 andresides in rural areas is entitled to apply for work.

2. Any applicant is entitled to work within 15days, for as many days as he/she has applied, subject to a limitof 100 days per household per year.

3. Work is to be provided within a radius of 5kilometres of the applicant's residence if possible, and in anycase within the Block. If work is provided beyond 5kilometres, travel allowances have to be paid.

4. Workers are entitled to the statutory minimumwage applicable to agricultural labourers in the state, unlessand until the Central Government "notifies" a different wagerate. If the Central Government notifies, the wage rate issubject to a minimum of Rs 60/day.

5. Workers are to be paid weekly, or in anycase not later than a fortnight. Payment of wages is to be madedirectly to the person concerned in the presence of

gj gkFk dks dke nksAdke dk iwjk nke nksAA

3736

independent persons of the community on pre-announceddates.

6. If work is not provided within15 days, applicants are entitled to an unemploymentallowance: one third of the wage rate for the first thirty days,and one half thereafter.

7. Labourers are entitled to variousfacilities at the worksite such as clean drinking water, shadefor periods of rest, emergency health care, and child-minding.

1. Each state governmenthas to put in place a Rural Employment Guarantee Scheme(REGS) within six months of theAct coming into force.

2. Alist of permissible works is given inSchedule I of theAct. These are concerned mainly with waterconservation, minor irrigation, land development, ruralroads, etc. However, the Schedule also allows "any otherwork which may be notified by the Central Government inconsultation with the State Government".

3. The Rural Employment GuaranteeScheme is to be coordinated at the Block level by a"Programme Officer". However, the Act allows any ofhis/her responsibilities to be delegated to the GramPanchayats.

4. REGS works are to be executedby "implementing agencies". These include, first andforemost, the Gram Panchayats (they are supposed toimplement half of the REGS works), but implementingagencies may also include other Panchayati Raj Institutions,

Unemployment allowance:

Worksite facilities:

EMPLOYMENT GUARANTEE SCHEME

Employment Guarantee Scheme:

Permissible works:

Programme Officer:

Implementing agencies:

line departments such as the Public Works Department orForest Department, and NGOs.

5. Private contractors are banned.

6. A shelf of projects is to bemaintained by the Programme Officer, based on proposalsfrom the implementing agencies. Each Gram Panchayat isalso supposed to prepare a shelf of works based on therecommendations of the Gram Sabha.

7. The Act includesvarious provisions for transparency and accountability, suchas regular social audits by the Gram Sabhas, mandatorydisclosure of muster rolls, public accessibility of all REGSdocuments, regular updating of job cards, etc.

1. Priority is to be given to womenin the allocation of work, "in such a way that at least one-thirdof the beneficiaries shall be women".

2. The Act states that "whoever contravenes theprovisions of this Act shall on conviction be liable to a finewhich may extend to one thousand rupees".

3. The implementation of the Act is to bemonitored by a "State Employment Guarantee Council".

4. The Central Government has to pay forlabour costs and 75% of the material costs. State governmentshave to pay the unemployment allowance and 25% of thematerial costs.

Contractors:

Decentralised planning:

Transparency and accountability:

Other Provisions

Participation of women:

Penalties:

State Council:

Cost sharing:

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5. The Act is to come into force initially in 200districts, and is to be extended to the whole of rural Indiawithin five years of its enactment.

For further information, please send a line torozgar@gmail.com, check the "employment guarantee"section at www.righttofoodcampaign.in, or contact thesecretariat of the "right to food campaign" at Tel: 011-29849563 or Email: righttofoodindia@gmail.com

Time frame:

40